Appeal from the United States District Court for the District of Nevada. D.C. No. CV-92-00204-LDG. Lloyd D. George, District Judge, Presiding.
Before: Mary M. Schroeder and Pamela Ann Rymer, Circuit Judges, and William L. Dwyer,*fn1 District Judge. Opinion by Judge Schroeder.
SCHROEDER, Circuit Judge:
The Independent Guard Association of Nevada, Local No. 1 ("IGAN"), appeals the district court's grant of summary judgment to the Secretary of Energy in IGAN's suit to enjoin the application of the Department of Energy's ("DOE" or "agency") Nuclear Explosive Safety Order 5610.11 (Oct. 10, 1990) ("Order"). IGAN objected to the DOE's promulgation of the Order, which is an extensive personnel regulation, without the prior notice and comment required by the Administrative Procedure Act's ("APA") rulemaking procedures, 5 U.S.C. § 553. The district court held that the "military function" exception, 5 U.S.C. § 553(a)(1), to the APA applied. We reverse because our law requires APA exceptions to be construed narrowly, and the record fails to disclose that these guards perform any function directly related to the manufacture or development of military weapons by the DOE.
IGAN is a union representing the armed civilian guards employed by Wackenhut Services, Inc. The DOE contracted with Wackenhut to guard its facilities at the Nevada Test Site near Mercury, Nevada, and its support facilities in Las Vegas, Nevada. At these sites, the DOE researches, produces and tests nuclear explosive devices for use by the military. Wackenhut, not the DOE, hires and supervises the guards.
On October 10, 1990, the DOE issued the Order pursuant to its statutory authority to maintain security and safety standards for its defense programs. See, e.g., 42 U.S.C. §§ 2165, 2201. The Order applies to all activities and operations involving nuclear explosives and nuclear weapons conducted under the Department's nuclear program. The DOE did not comply in full with the APA's normal rulemaking procedures, which would have entailed prior notice and comment of the entire Order. See 42 U.S.C. § 7191.
The Order provides management policy guidance for the selection and certification of personnel; sets forth nuclear explosive safety standards and rules; and provides for nuclear explosive safety studies and surveys. In the portion relevant here, the Order establishes a Personnel Assurance Program ("PAP") applicable to all DOE and contractor employees assigned nuclear explosive duties. The PAP provides detailed certification requirements for the DOE and its contractor personnel who are certified to guard nuclear explosive devices in Nevada. For example, PAP disqualifies persons from such duties who fail to comply with any of its provisions, which include submission to laboratory testing, random drug testing, and a certification review procedure. PAP also provides for permanent disqualification from duty for any employee who has ever used hallucinogens, regardless of quantity consumed or remoteness in time.
The Order superseded an earlier safety program promulgated in 1980 that had delegated more responsibility for contractor employee qualification review to the contractor itself. See "Program to Prevent Accidental or Unauthorized Nuclear Explosive Detonations," DOE Order 5610.3 (Dec. 18, 1980).*fn1 Shortly after the Order went into effect, it resulted in the disqualification of four employees because of prior use of an "hallucinogen." DOE subsequently "suspended" the hallucinogen provision, and all four employees were certified for nuclear explosive safety duties.
On March 10, 1992, IGAN filed a complaint seeking declaratory and injunctive relief, pending compliance with notice and comment procedures.*fn2 The case came before the district court on cross-motions for summary judgment. The DOE invoked the "military function" exception to the APA's notice and comment provisions. This exception provides:
(a) This section applies, according to the provisions thereof, except to the extent that there is involved -
(1) a military or foreign affairs function of the United States;
5 U.S.C. § 553(a)(1). Because the parties agreed on the material facts, the case turned on a legal question: the proper scope of this exception.
In granting the DOE's motion for summary judgment, the district court determined that the DOE's authorization to conduct the research and production of nuclear weapons constituted a military function. The court further found that "the proper conduct of a military function often requires essential, though non-military, support functions," and that "such military functions cannot proceed absent full regulation and control of the support function." The district court did not find that the guards themselves performed a military function. Rather, the district court concluded that the exception applied because the Order deals ...