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Royer v. Fed. Bureau of Prisons

United States District Court, District of Columbia

March 28, 2013


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Royce C. Lamberth, Chief United States District Judge.


Defendant Federal Bureau of Prisons (" BOP" ) moves to dismiss this action, to

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transfer or, in the alternative for summary judgment. ECF No. 38. Upon consideration of the motion, plaintiff's Opposition [65], BOP's Reply [72], the entire record herein, and the applicable law, the Court will deny BOP's motion.


Royer is a federal prisoner who has served approximately half of a twenty-year sentence.[1] In this Administrative Procedure Act (APA) challenge, Royer brings two counts. First, he alleges that, in 2006, BOP implemented a " 'terrorist inmate' policy" which " amount[ed] to a substantive rule requiring notice-and-comment rulemaking under 5 U.S.C. § § 553 and 552(a)." Although BOP issued a notice of proposed rulemaking prior to implementing the policy, see Limited Communication for Terrorist Inmates, 71 Fed. Reg. 16520 (Apr. 3, 2006), it never finalized the regulations but implemented the policy later that year. Am. Compl. ¶ 9-10. Thus, Royer argues that BOP has violated APA notice-and-comment requirements. Am. Compl. ¶ ¶ 26-27.

Royer asserts that the terrorist inmate policy included classification of certain inmates as terrorists, regardless of the crime for which they were convicted; imposing severe restrictions on these inmates' communications; and segregating the inmates from the general prison population by confining them in conditions approximating administrative segregation or in newly-created Communication Management Units (" CMUs" ). Am. Compl. ¶ 7.[2] Royer alleges that he has been classified as a " terrorist inmate" since December 2006 and housed in various restrictive prison units, including but not limited to the CMUs, since that time. See Mem. Op. at 2-3, Royer v. Fed. Bureau of Prisons, No. 10-cv-1996.

BOP responds that Royer has failed to state a claim with respect to his first count because its policy is not a substantive rule for which notice and comment is required. For the first time in its Reply, BOP asserts that it could not have implemented a " terrorist inmate policy" without notice and comment because " no such 'terrorist inmate policy' exists." Def.'s Reply 1. In the alternative, BOP argues that Royer's claim is moot because the agency issued a Notice of Proposed Rulemaking regarding the CMUs on April 6, 2010. Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss, Transfer or, in the Alternative, for Summ. J. 2, ECF No. 38 [hereinafter Def.'s Mem.].

Royer's second count alleges that, when BOP finally issued a proposed rule addressing the CMUs in 2010, it failed to inform Royer and other inmates of the opportunity to comment on the proposed rule, thus depriving them of the right to participate in agency rulemaking. Id. ¶ 29 (citing 5 U.S.C. § 553(c)). BOP seeks summary judgment on this count, arguing that it notified inmates of the rulemaking, that it was not required to individually notify potentially interested parties, and that Royer actually received notice from

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an outside source.[3] Def.'s Mem. 3. BOP also argues that Royer has failed to allege any injury because he not specified the content of his comments. Id. at. 10.

Finally, BOP argues that the case should be transferred to the District of Colorado because it " directly involves only actions occurring in the state of Colorado, at the Florence ADX" facility where Royer was housed when the 2010 proposed rule was published. Id.

For both counts, Royer seeks declarative and injunctive relief and an award of costs.[4] BOP argues that any relief must comply with the requirements of the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626(a)(1), and that " the most [the Court] should order is for BOP to consider Plaintiff's tardy comments." Def.'s Mem. 11-13. This argument is premature given the status of this case and the Court will not consider it now.


A. Royer's Challenge to BOP's Failure to Engage in Notice-and-Comment Rulemaking Survives Motion to Dismiss

1. Legal Standard: Motion to Dismiss

The Federal Rules of Civil Procedure Rule require " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 8 does not require " 'detailed factual allegations," but requires more than " 'labels and conclusions'" or " 'naked assertion[s].'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The complaint must " contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face,'" meaning it must " plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). Factual allegations, although assumed to be true, must still " be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. The Court need not accept legal conclusions cast as factual allegations. Iqbal, 556 U.S. at 678.

With respect to pro se plaintiffs, a complaint is " 'to be liberally construed' and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); cf. Fed.R.Civ.P. 8(f) (" All pleadings

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shall be so construed as to do substantial justice" ).

2. Legal Standard: Administrative Procedure Act

The APA defines a " rule" as " the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy . . .," 5 U.S.C. § 551(4), and requires agencies to provide notice and an opportunity to comment before adopting a rule. Id. § 553(b)-(c). However, the notice-and-comment requirement does not apply to " interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." Id. § 553(b)(3). Although the APA requires that agencies publish interpretive rules and statements of policy in the Federal Register, 5 U.S.C. § 552(a)(1)(D), if a person has " actual and timely notice of the terms thereof," there is no associated penalty on the agency. Id. § 552(a)(1).

Distinguishing between substantive rules and statements of policy, guidance documents and interpretive rules " is often a very difficult and confusing task." Iyengar v. Barnhart, 233 F.Supp.2d 5, 14 (2002) (citing several D.C. Circuit cases). Our Circuit has stated:

The distinction between legislative rules and interpretative rules or policy statements has been described at various times as 'tenuous,' 'fuzzy,' 'blurred,' and, perhaps most picturesquely, 'enshrouded in considerable smog.' . . . '[T]he problem is baffling.' By virtue of Congress' silence with respect to this matter, it has fallen to the courts to discern the line through the painstaking exercise of, hopefully, sound judgment.

Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946, 260 U.S. App. D.C. 294 (D.C. Cir. 1987) (internal citations omitted).

To determine whether a rule is interpretive or whether it instead must comply with notice-and-comment requirements, the our Circuit has framed the key question as " whether the purported interpretive rule has 'legal effect' . . . ." Am. Min. Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112, 302 U.S. App. D.C. 38 (D.C. Cir. 1993). If a court can answer any of the following questions in the affirmative, ...

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