The Administrative Procedure Act and the Military Departments

Author:by Major Thoma R. FOB

    To what extent does the Administrative Procedure Act (APA)' apply to the military departments? What impact does the APA have on military department regulations, adjudications, and other administrative actions. and on judicial review of these activities? The answers to these questions are not simple because of the many different provisions of the APA and their varying applicability to assorted military activities. This article briefly outlines the applicability of the various provisions of the APA to administrative ac-tions hy the military departments. The article first provides an overview of the APA and then discusses the general applicability of the APA to the military departments. Next, it discusses exemptions from the APA that are particularly applicable to military department ac-tivities. Finally, it discusses the specific provisions of the APA applicable to militaly department activities and the potential impact these provisions might have on military operatiom.


    In the 1930s and 1840s, the size and functions of federal administrative agencies expanded greatly.2 This led to a gowing concern about controiling the discretion of these agencies and insuring the

    *Judge Aduoeate General's Corps, United States Army Currently asaimed fa the ldtlgatlon Dlvwon, Office of The Judge Advocate General. U S Army, 1953 to pres-ent. Formerly Asaufant to the General Counsel of the Army, 1980-83,

    Tnal Counsel.

    Officer-!"-Charge, Office of the Staff Judge Advocate, 36 Armoced Dwmon, Omsen Blanch Office, 1978-80, Infantry Plalwn Lender, 4th &Ittallon. 6th Infnnfry. Berlln Brigade, 1873-75. Dlslrnguirhed Graduate. 31sl Judge Advocate Offlcer Graduate Coune, 1983. Distinguvhed Graduate, 87th Judge Advoeare Officer Coune, 1978. Completed Infantry Officer Basic Coume, 1972 S D..

    University of Vaglnla, 1978, B S I United States Military Academy, 1872 Author of Tolliw o/Slalules ofLimrlDtums OhderSetLinZOb pfLheSoldws'ondSoilors' C ~ u i l R e l ~ A d ,

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    L Rev 157 11983). Mtltlary Appeomnce Repuwmmnl OVA the h e

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    Reltgum, 88 Md L Rev 53 11982). Ure ~'Cmnpeilod IWtmony m MtlrMw AdmtnWholrw Pmcaedmngs, The Army Lawyer, Aug 1982, BC 1, Smice g'prwess enFawnmml Official5 Made Em!, .%vent Chongps Io the Federal Rvbs o/Czvil fixedu~,TheArmvLawvcr,~av1883,at23.nemberofthebaroftheCommonwealthof

    )Act of June 11, 1846, ch 324, 60 Stat. 237 (1946) (current version aL 5 U 8.C We,

    B Y , K Davb. I Administrative Law Treatise 6 I 02 (1st ed 1958) S8651-568, 701-706


    uniformity, Impartiality, and fairness of thex procedures As a result of this concern, in 1946, Congress enacted the Administrative Procedure Act.

    The APA provides a set of basic procedures for use by federal administrative agencies I" carrying out their functions. As its name implies, the Administrative Procedure Act's provisions are purely procedural It does not provide any Substantive rights4 nor even a jurisdictional bans for seeking judicial review of agency actions

    The various provisions of the APA are now codified at 6 U.S.C 55661 to 569 and 701 to 706. Basically, they cover the following majar areas of agency administrative practice: (1) public information practices, such as publication m the Federal Register of agency organization and ruies;O (2) public participation in rulemaking through informal rulemaking procedures;' (3) formal rulemaking and formal adjudication proceudres;@ (4) basic requirements for other miscei-ianeous agency administrative actions;8 and (5) judicial review of agency action.lo


    The APA does not exclude the military departmentspw se from its coverage. The APA applies to each "agency," which 1s defined as "each authority of the Government of the United States."lL Although sections 651 and 701 exclude certain military activities from their definition of "agency," and thus from almost ali APA coverage, they deliberately do not exclude the military departments as organizations. The APA's legislative history explains: "[llt has been the undeviating poiicy to deal with types of functions as such and in no case with adrnmstrative agencies by name Thus cwtain war and defense functions are ezmpted but mt the War or Naug

    %e, r y , Onited Stales Y Mona" Salt Ca , 338 U S 638. 644 (1950). Wong Yang

    'Hill \, United Stales. 671 F 26 1088 (9th Clr 1978)'Cahfano % Sanders. 130 L S 90 (1977)15 K s C $ 552 (1862)'Id 4 653'Id 44553Ic). 654, 666 667'Id $555,Old 4(701-706"Id $6 551(1), 701(bXI) 11882) Courts haim found thm broad definition of agency to melude nonappraprlated fund lnstiumentalifie~such as post exchanges 5sr Youngv Llnited Stales. 488 F 26 1121 (5th Clr 19741

    Sung > MeCrath 338 L S 33. 37 (1050)

    Llepytmta in t k p f m n c e of their functions."lP Courts con. sidenng the question have found the APA applicable to the military departments except to the extent the APA specifically exempts certain of their functions.x8


    While not excluding the military departments generally, the APA does not apply, except for purposes of the public information requirements in 6 U.S.C. $662, to "courts martial [sic] and military commissions" and "military authority exemised in the field in time of war or in occupied territory."" In addition, the informal rule-ma)ting16 and formal rulemaldng and adjudication sectiansI6 of the APA exempt cenain activities, including those invoivinga "military function,'' from their coverage. This part of the article wiii discuss these exemptions from the APA


      Neither the APA nor its legislative history defines the terms "cour& martial [sic]" or "military commissions." However, under common usage. these terms have a well understood and limited meaning. A court-martial is a court of military or naval pemnnel for the trial of offenses against military law or the law of war," the for. malities prescribed for convening courts-martial by the Uniform Code of Military Justice,Ln the Manual for Courts-Martial,l* and regulationsPo make it virtually impossible to confuse a court-martial

      "Senate Committee an the Judiciary, Admml~traflve Procedure Act Legislative Hbton, 5. Doe No 248, 79th Cong., 2d Sess 191 119471 lemphasis added) [here-halter cited = APS LeClauve Hlsforyl. &e aQo id at 13s

      'PRoelofsv. Secretanoffhe AlrForce. 62SF.2d694.588ID C Cir. 19801, Nlchalson Y Brown. 599 F2d 638, 648 (5th Cir. 1979) Jaffc v Knited States, 592 F 2d 712, 719-20(3dCxr 19791. Ornalov. Hoffman, 546F 2d IO. 14(2d Cs 18761 Knifed States arsl. Schanbrun v Commanding Officer, 403 F 26 371, 375 n 2 (2d Clr 1968) Story V. Marsh. 574 F. Supp 505, 512 IE D Mo 1983)

      "5 U S.C. 46 551lIXFl. IGl (19821.,a,* c C i "

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      " """'#Id 4s 663lel. 554. 556-557"Webster's New World Dictionary 339 (19641.'*I0 U S C $4 801-938 (19S21 lhereinalfer cited a;/ UCMJ] xsManualfor CourU Martial, United Stares. 1984%'Eg C S Dep't of Army, Reg No 27 10,

      12 I1 July 19841

      Legal Services Mdllary luatlce. ehs 6,

      with another type of military tribunal. Military comm1ssmns are far le% common m military practice but still have a narrox function simiiar to that of a court-martial These tribunals are courts

      convened by military authority for the triai of perron5 not usually subject to military law who are charged n ith viola-tions of the laws of war, and in places subject to milltar) government or martial law. for th? trial of such persons when charged with violations of proclamations, ordi-nances. and valid domertic ciwi and criminal law of the territory concerned

      Historrail). "the distinctive name of mrlitnry commirion has heen adopted for the ~xcIus~on~rywar court, which functions for the court-martial proper in time of war

      Courrs have followed this narrow usage in determining whether rarim5 military trihunais or hoard4 fail under the APA exPmptmn for ''mum martial [SIC] or military commissions". In RorloiC

      5 1552 did not fall under thi7 exemption.23 Similarly in .V?ni

      !'. .S?(.rmry oithr .\-"I'?,,~~ the Third Circuit found that a military administrati\e board acting on reenlistment requests was not a court-martiai or militao commission under the APA. B. EXEMPTION OF MILITARY AUTHORITY EXERCISED IN THE FIELD IN TIME OF WAR OR IN OCCUPIED


      Neither the APA nor its legislative history offer any guidance regarding the meaning of the 4PA exemption for "military authority exercised in the field in time of war or in occupied territory." The exemption's language raises four possible interpretational ISSUBS.

      What LE "mihtary" authority under this exemptiono What is "in the field"? What does "in time of war" meann And, what is "occupied territory"?


      Very few reported eases deal with this exemption, and they do so bnefiy. For exampie, in Kom Koon Wan u E.E. Black, Ltd.,zs the court noted briefly, in dicta, that "the Army in Hawaii legally was not 'in the fieid' or in occupied terntory' even though it acted in that manner" in a case invoivine martial law in Hawaii in World War 11. Jsffee u. United Statesze considered bnefly, without deciding, the question of whether nuclear tests conducted in Nevada during the Korean conflict involved military authonty exercied ''in the fieid intime of war."

      These two cases offer no meaningful guidance as to what the ex-emption means. Thus, one must look to the common meaning and usage of the terms of the exemption and the policy considerations behind the exemption to resolve the four interpretational issues raised by 11

      1. "MMilitary Authority"

      Multiple definitions and usage illustrate an interpretational issue regarding the term "military authority." Does the term mean "military" in the narrow sense of pertaining to soldiers and armiesZ7 or in the broader sense of pertaining to war and defense functions?zs Congress' approach in the APA of focusing on functions rather than organizations2* suggests that...

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