Darrell Prows, Appellant, v. Federal Bureau of Prisons, 966 F.2d 702 (D.C. Cir. 1992)

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US Court of Appeals for the District of Columbia Circuit - 966 F.2d 702 (D.C. Cir. 1992) May 6, 1992. Rehearing Denied July 21, 1992

Before WALD, D.H. GINSBURG and SENTELLE, Circuit Judges.



Upon consideration of the motion for summary reversal, the Federal Bureau of Prisons' response to this court's July 23, 1991 order to show cause and the reply thereto, it is

ORDERED that the order to show cause be discharged. It is

FURTHER ORDERED that the motion for summary reversal be denied. It is

FURTHER ORDERED, on the court's own motion, that the district court's order of May 13, 1991 be summarily affirmed. Because the Federal Bureau of Prisons' Program Statement 5100.03 merely restated what was contained in the Security Design and Custody Classification Manual, the program statement was not required to comply with the Administrative Procedure Act's "notice and comment" requirement, 5 U.S.C. § 553. See Association for Regulatory Reform v. Pierce, 849 F.2d 649, 654 (D.C. Cir. 1988) (statement restating operative statute not subject to "notice and comment" requirement). The merits of the parties' positions are so clear as to justify summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987); Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.) (per curiam), cert. denied, 449 U.S. 994 (1980).

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15.