O'Leary

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”) rulemak-ing 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.

BACKGROUND

IGAN is a union representing the armed civilian guards employed by Waekenhut Services, Inc. The DOE contracted with Wack-enhut 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…