Ramer v. Saxbe

• Decision Date: 06 November 1975
• Docket Number: No. 74-1483,74-1483
• Citation: 173 U.S.App.D.C. 83,522 F.2d 695
• Parties: Lanier RAMER et al., Appellants, v. William B. SAXBE, Attorney General of the United States.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 695

522 F.2d 695

173 U.S.App.D.C. 83

Lanier RAMER et al., Appellants, v. William B. SAXBE, Attorney General of the United States.

No. 74-1483.

United States Court of Appeals, District of Columbia Circuit.

Argued March 11, 1975.

Decided Nov. 6, 1975.

Charles E. Lister, Washington, D. C., with whom Herbert Dym and Robert Plotkin, Washington, D. C., was on the brief for appellants.

Bette E. Uhrmacher, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Thomas G. Corcoran, Jr., Asst. U. S. Attys., were on the brief for appellee.

Before BAZELON, Chief Judge, MacKINNON, Circuit Judge, and CHRISTENSEN, ^* Senior District Judge for the District of Utah.

Opinion for the Court filed by District Judge CHRISTENSEN.

Opinion filed by Circuit Judge MacKINNON, concurring specially.

CHRISTENSEN, District Judge.

The contention that the "policies" of the Bureau of Prisons have never been considered "rules" within the contemplation of the Administrative Procedure Act and therefore never should be, and the counterpoint that had they been the resulting broader input into them and more understanding compliance with them would constitute a much needed and salutary reform of the Federal Prison System, ¹ come along and between the lines of the briefs like Sandburg's Fog. However, such a confrontation will have to move on to another time or case. The district court, having permitted prisoners complaining of lack of compliance by the Bureau with APA to cross the threshold, unceremoniously ushered them back to it after almost a year of considering motions to transfer, to bring in new parties, to amend and for summary judgment, and sent them piking up to this court by deciding sua sponte that their cause was not justiciable.

The validity, or more descriptively the invalidity, of the latter ruling is all that need be decided here, aside from the government's claim of post-appeal mootness which we reject. We agree with appellees that rather than attempt to determine now what specific "policies" or rules must be published to satisfy the Act, further processing of the problem by the district court would be desirable, and we therefore remand. But to give point to such remand we recognize in the context of this case that the Bureau of Prisons is, indeed, an "agency" within the definition of the APA, 5 U.S.C. § 551, and that its rule making is subject to applicable requirements of that Act.

At the time this action was commenced plaintiffs-appellants Lanier Ramer and Jerry Desmond were federal prisoners incarcerated in the Federal Penitentiaries at Marion, Illinois and Leavenworth, Kansas, respectively. They brought suit against the Attorney General of the United States and the Director of the Federal Bureau of Prisons upon allegations that the district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337, 1361, 2201, and 2202, that defendants in violation of sections 3 and 4 of the Administrative Procedure Act, 5 U.S.C. §§ 552 and 553, failed to publish in the Federal Register notices of rule making and the texts of numerous rules and regulations issued in the administration of federal penal and correctional institutions, by reason of which failures the plaintiffs suffered, and were threatened by loss of rights and privileges, and became entitled to declaratory, injunctive and mandamus relief. ²

An amended complaint was tendered with a motion for leave to file. This would have added as parties plaintiff two additional inmates of other institutions, together with an agency interested in prison reform. Defendants-appellees requested the court to postpone that ruling until motions for summary judgment were determined. So far as the record before us discloses, there was no ruling on the initial motion for leave to amend, but the district court expressly denied plaintiffs' motion for leave to file a second amended complaint for the purpose of naming as a party plaintiff still another federal prisoner then incarcerated in the United States Correctional Institution at El Reno, Oklahoma.

The order denying such leave recited "that the legal issues have been clearly defined in the plaintiffs' pending motion for summary judgment and that the addition of other plaintiffs to this suit would be of no assistance to the court or the parties in resolving these issues . . . (and) that justice does not require that leave be given to amend the complaint. . . ." The proposed second amended complaint, tendered November 2, 1973, alleged that Ramer was then incarcerated in the United States Penitentiary located at Terre Haute, Indiana, and that Desmond was on mandatory release status in Seattle, Washington.

The parties filed cross-motions for summary judgment, supported by affidavits. While the trial court did not rule upon these motions, we have looked to their supporting affidavits to see if facts were suggested to commend at least some opportunity for supplementing the pleadings before a dismissal of the action as nonjusticiable. We believe the trial court improperly closed its eyes to the affidavits since their allegations would have fleshed out the more general assertions of the complaint and thus negated the assumed lack of concrete impact or injury from the Board's unpublished policies or rules. There had been no objection to the pleading on the ground of indefiniteness. The justiciability of the action should not have depended upon the preciseness of the allegations in the complaint, especially if there were reasonable indication otherwise that amended pleadings or proof to which they could be conformed would correct deficiencies.

An affidavit of the Acting Director of the Bureau of Prisons represented that "(t)hose Statements (of 'policies') which regulate inmate conduct provide guidelines for the preparation of local policy statements, issued by the individual institution". But wardens of two of these institutions swore that "all regulations of this institution are within the guidelines established in Bureau regulations and in no way are inconsistent with or exceed the authority given to us by these regulations." It was also stated by the wardens that "a set of the most significant Bureau and institution regulations, including the regulations concerning inmate discipline and forfeiture of good time, are readily available in the institutional law library for use of inmates in general population, and a duplicate set is available in segregation for use of inmates in segregation." ³

To the contrary, affidavits filed by plaintiffs put into question both the availability of policy statements in prison libraries and the absence of personal detriment resulting from the non-publication and unavailability of the governing rules. ⁴ The wife of the appellant Ramer alleged that in spite of repeated requests to the Bureau she had never been sent copies of their regulations and policy statements; that she had been cut off from his visiting list three times for alleged violation of visiting regulations; that one of these violations by her was the reason for charges being brought against the appellant Ramer which resulted in his losing good time and which were litigated in Workman v. Kleindienst, No. 8-71C3 (W.D.Wash.1973), in which "the Court ruled there that the Bureau acted illegally by not complying with their own regulations when they forfeited Lanier's earned good time."

Other inmates by affidavit gave examples of their inability to get copies of prison regulations or "policies" and furnished instances of claimed prejudice that resulted. The Chairman of the Washington State Bar Association Corrections Committee alleged that attorneys and law students were frustrated by lack of access to Bureau regulations and described his efforts to bring about an improvement in availability of the information. ⁵ In dismissing the action "for lack of jurisdiction", the district court found "that it need not face the procedural and substantive questions raised by the parties because plaintiffs have 'failed to satisfy the threshold requirement imposed by Art. III of the Constitution that those who seek to invoke the power of federal courts must allege an actual case or controversy', O'Shea v. Littleton, (414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674) 42 U.S.L.W. 4139, 4141." It commented after quoting paragraph 13 of plaintiffs' complaint (already set out in the margin, n. 2):

"From this statement it is apparent that no threat of interference by defendants with the rights of plaintiffs is alleged beyond that implied by the present attitude of the Bureau of Prisons toward the applicability of the Administrative Procedure Act . . . That no substantial concrete controversy exists is made clear by the relief that plaintiffs request. In addition to injunctive relief, plaintiffs ask the court to issue a declaratory judgment that the policy statements described in the complaint are subject to the requirements of sections 3 and 4 of the Administrative Procedure Act. However, no such policy statements are presented to the court in a factual setting that could be described as adversary. Plaintiffs would have the court pass on the legal status of each policy statement without the benefit of their 'concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.' Baker v. Carr, 369 U.S. 186, 204 (82 S.Ct. 691, 7 L.Ed.2d 663) (1962). This court will not undertake such a task. See O'Shea v. Littleton, supra. . . ."

There is no necessity for rewalking the grounds since explored and occupied by Pickus v. United States Board of Parole, 165 U.S.App.D.C. 284, 507 F.2d 1107 (1974). This decision has cleared out the argumentative underbrush ⁶ obscuring these central problems remaining for our decision: I. Whether absent more specific complaint of damage or impact to plaintiffs from the actual application or enforcement of Bureau "policies" a justiciable case or controversy existed; II. Whether...