Submitted: May 25, 2018
the Appellees' Motion to Dismiss - GRANTED
JEFFREY J. CLARK, JUDGE
se Appellant Amir Fatir (hereinafter "Mr.
Fatir") is an inmate at James T. Vaughn Correctional
Center (hereinafter "JTVCC") serving a life
sentence for first degree murder. Mr. Fatir faced discipline
at JTVCC for allegedly concealing unauthorized writing
supplies and paper in his prison cell in June 2017. As a
consequence, the Delaware Department of Correction
(hereinafter "DOC") terminated his prison
employment. Mr. Fatir unsuccessfully appealed his punishment
through DOC's internal appeals process. He now seeks to
appeal DOC's final decision to this Court under the
Administrative Procedures Act (hereinafter "APA").
Independent of his APA appeal, Mr. Fatir also argues that a
DOC policy providing for "judicial review" of
adverse DOC decisions separately provides jurisdiction for
this Court to hear his appeal.
moves to dismiss Mr. Fatir's appeal alleging that the
Court has no jurisdiction to hear it because the APA does not
permit the appeal. DOC also asserts that to the extent Mr.
Fatir challenges a DOC policy, rule, or regulation, his
appeal is untimely and procedurally improper. Lastly, DOC
asserts that its Policy 5.1 referencing "judicial
review" was not intended to confer appellate
jurisdiction on the Superior Court; DOC further argues that
if there was any such intent, an administrative policy cannot
confer appellate jurisdiction.
reasons discussed below, the Court must dismiss Mr.
Fatir's appeal because a DOC case decision is not
appealable under the APA and no other statute independently
provides appellate jurisdiction for his appeal. Likewise, to
the extent Mr. Fatir's appeal can be read to challenge
DOC rules and regulations, a case decision appeal is not the
proper mechanism. Finally, because DOC policy cannot confer
jurisdiction upon this Court to hear appeals regarding prison
rule violations, DOC's motion to dismiss must be granted.
Fatir's appeal challenges a DOC case decision that this
Court does not have authority to review under the
Administrative Procedures Act.
Fatir argues that the Court has jurisdiction over his prison
rule violation appeal pursuant to the APA. Pursuant to 29
Del. C. § 10142, case decisions by many
Delaware agencies are appealable to this Court. A case
decision is defined as "any agency proceeding or
determination that a named party ... is or is not in
violation of a law or regulation." However, only
certain Delaware agencies are affected by 29 Del. C.
§ 10142. DOC is not a listed agency, and therefore
it is only subject to some provisions in the APA.
prison rules violation finding, and its decision after Mr.
Fatir's subsequent internal appeal, constitute a case
decision as defined 29 Del. C. § 10102(3).
Because DOC is not included in the list of affected agencies
in 29 Del. C. § 10161, appellate review of this
case decision is not available under 29 Del.C.
§ 10142. Consequently, Mr. Fatir's rules
violation appeal is not reviewable under the portions of the
APA permitting appeals of enumerated agencies.
appeal of a case decision is not the proper mechanism for
challenging the lawfulness of a rule or regulation under 29
Del. C. § 10141.
Fatir's filing, both in name and content, makes it clear
that he challenges DOC's case decision. The crux of his
sixty-page filing entitled "Administrative Procedures
Act Appeal" focuses on his disagreement with the outcome
of a decision after a disciplinary hearing held at JTVCC. He
includes references in his appeal to 29 Del. C.
§ 10141, and then also references various procedural
rules in DOC's disciplinary hearing process. Section
10141 of the APA, that applies to DOC, separately provides
for judicial review of regulations through declaratory
judgment actions. In such cases, the regulation must be
challenged within 30 days of its publication in the Register
of Regulations. Separately, when a regulation is the
subject of an enforcement action, the lawfulness of the
regulation may be reviewed by this Court as a defense to the
APA's preamble explains that "[t]he policy of [the
APA] is ... to specify the manner and extent to which action
by [agencies subject to the APA] may be subjected to ...
judicial review." The APA is intended to subject to judicial
review only agency conduct that may be fairly characterized
as regulations or case decisions. This language demonstrates
the General Assembly's intent to limit judicial
matter is not an enforcement action brought by DOC against
Mr. Fatir. As a result, the limited exception of §
10141(c) of Title 29 permitting a challenge of a DOC
regulation does not apply. Under §§ 10141(a) and
(d) of Title 29, any challenge to DOC's regulations must
therefore have been brought by a declaratory judgment within
30 days of the regulation's publication in the Register
of Regulations. Mr. Fatir's appeal does not involve a
defense to an enforcement action; nor can it be considered a
declaratory judgment action. Furthermore, if it were somehow
to be construed as a declaratory judgment action, it would be
untimely because it was not brought within thirty days of
publication of a challenged regulation.
matter, Mr. Fatir is proceeding as a pro se
appellant, has no formal legal education and is an inmate as
JTVCC. Nevertheless, even liberally interpreting pleading
requirements for unrepresented litigants does not permit the
Court to convert his action to one seeking a declaratory
judgment. Furthermore, even if it did, the Court finds that
on the face of his appeal, he is unable to satisfy 29
Del. C. § 10141(d)'s requirements ...