Upon Petition for Rehearing, Etc., and Appellee Witmer’s Motion to Dismiss Appeal.
Before CHAMBERS, BONE and POPE, Circuit Judges.
PER CURIAM.The petition for rehearing adds up to two contentions. The first one amounts to an assertion that the orders of the Bureau of Land Management, and of the Secretary, are not subject to judicial review. Thus appellees say: “Whether such a discovery has been made is a factual issue which is to be determined by the Secretary of the Interior,” and “the Secretary of the Interior must determine, among other things, that a valid discovery has been made.” Again: “To meet this situation, the Secretary of the Interior has provided a procedure whereby a hearing can be held to permit determination of the validity of mining locations.”
Of course those hearings are in order. Every “agency” as that term is defined in the Administrative Procedure Act, holds hearings and makes findings. These statements of the appellees can have no relevance here unless they are meant to suggest that these hearings and determinations by the Secretary are final *38and nonreviewable. But the Administrative Procedure Act was enacted to bring “the decision of controversies * * * back into the judicial system.”1 The question is not whether the Secretary and the Bureau may make orders, — it is whether those orders are subject to judicial review.
A second contention is that the court below cannot entertain the appellant’s action since that action seeks “mandatory affirmative relief”. It is asserted we have overlooked the distinction between “cases seeking solely negative relief and those in which affirmative relief necessarily plays a vital part.”
As far as appellee Berriman is concerned, this argument has no application here. Appellant asks that Berriman be enjoined from disturbing him in possession of the mining claims. How one would find a more “negative” form of relief it would be impossible to say. But the argument is no good for Witmer either. A similar contention was made in Lester v. Parker, 9 Cir., 235 F.2d 787, 789, and there rejected.2 Lester v. Parker was a case where the Administrative Procedure Act did not apply. It was based on general rules relating to relief in equity. But here, where the Administrative Procedure Act does apply, we have two provisions expressly authorizing this sort of injunctive relief against Witmer. § 10(b) provides for judicial review through “any applicable form of legal action (including actions for declaratory judgments or writ of prohibitory or mandatory injunction. * * *)” (Emphasis added) § 10(e) provides that the reviewing court shall “compel agency action unlawfully withheld.”
As for Witmer, however, he has moved to dismiss the appeal as to him on the ground that he retired from Government service on June 30, 1958, and no move has been made to substitute his successor in office. This motion was made with the petition for rehearing. Although it did not disclose when Witmer’s successor took office, (the six months period called for by Rule 25(d) F.R.Civ.P., 28 U.S.C.A. and by Supreme Court Rule 48 subd. 3, 28 U.S.C.A., runs from the time “the successor takes office”)3 a subsequently filed affidavit shows the successor took office June 9, 1958. This means the action has abated as to Witmer.
But that does not affect the action as it concerns Berriman, who, after all, is the person who is alleged to threaten appellant’s possession. It is that possession appellant seeks to protect and vindicate. Our opinion noted that “appellant’s continued possession of and right to work the mining claims is not dependent upon a patent being issued.” An injunction against Berriman “will effectively grant the relief desired by expending itself on the subordinate official who is before the court”, as we noted in our opinion. We perceive no reason why the abatement of the case as against Witmer should affect its continued prosecution against Berri-man.
Whether, after remand to the court below, appellant could institute a new action against Witmer’s successor, or whether the successor might then be added by amendment pursuant to Rule 19(b) are questions not now before us.
The appeal is dismissed as to appellee Witmer. The petition of appellee Berri-man for a rehearing is denied.
. See Davis, Administrative Law Treatise (1958), Vol. 1, § 1.04, p. 26. In discussing the pressures which led to the enactment, the author quotes from Elihu Root: “If we are to continue a government of limited powers, these agencies of regulation must themselves be regulated.”
. For a comment on that case, see Davis, Administrative Law Treatise, Vol. 3, § 23.10, p. 341. That section discusses at length the supposed limitation on mandatory injunctions.
. These rules have been adopted by this court by its Rule 8.