United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 17, 2000 Decided July 14, 2000
No. 99-5280
Steven D.C. Bigelow,
Appellant
v.
Department of Defense,
Appellee
Appeal from the United States District Court
for the District of Columbia
(98cv00535)
Eugene R. Fidell argued the cause for appellant. With him
on the briefs was David P. Sheldon.
W. Mark Nebeker, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: Ginsburg, Randolph, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Dissenting opinion filed by Circuit Judge Tatel.
Randolph, Circuit Judge: Steven D.C. Bigelow, while a
major in the United States Air Force, worked in the Informa-
tion Warfare and Special Technical Operations Center, a part
of the Office of the Joint Chiefs of Staff in the Pentagon.
The chief of that section and Major Bigelow's immediate
supervisor, United States Army Colonel Nathan W. Noyes,
learned of allegations of misconduct concerning Bigelow, per-
haps the most serious of which was that he sometimes
disappeared in foreign countries near sensitive international
borders. Major Bigelow's position demanded that he hold
the highest security classification, above "Top Secret" (the
name of the classification is itself classified). Colonel Noyes's
position, so it is claimed, demanded that he continually assess
the trustworthiness of those under his command. To this
end, and because he thought Bigelow might be lying about his
past, Noyes went to the Joint Staff Security Office and
requested Bigelow's personnel security file. Convinced that
his suspicions had been confirmed, Colonel Noyes referred
the matter to the Air Force for disciplinary action, as a result
of which Major Bigelow was relieved of his duties at the
Pentagon (he is now a Lieutenant Colonel at Bolling Air
Force Base).
Bigelow brought this action under the Privacy Act, 5 U.S.C.
s 552a, seeking damages and other relief against the Depart-
ment of Defense on the ground that Colonel Noyes unlawfully
reviewed his personnel security file in violation of the Act.
The district court, Judge Thomas P. Jackson, granted the
government's motion for summary judgment and declared
moot Bigelow's motion for discovery pursuant to Rule 56(f) of
the Federal Rules of Civil Procedure.
The appeal comes down to the question whether Colonel
Noyes, as an officer of the agency maintaining the file, had "a
need for the [Bigelow's] record in the performance of [his]
duties." 5 U.S.C. s 552a(b)(1). Among other things the
Privacy Act generally prohibits government agencies from
disclosing personnel files. To this general prohibition there
are several exceptions, one of which is the "need-to-know"
provision of s 552a(b)(1). The Defense Department assures
us, through a brief filed on its behalf by the United States
Attorney, and through a sworn declaration of Colonel Noyes,
that Noyes's duties entailed examining Bigelow's personnel
security file because Bigelow was under his supervision. We
believe the Department's regulations support this position.
At the Pentagon, "personnel security investigative reports"
may be revealed only to "those designated DoD officials who
require access in connection with specifically assigned person-
nel duties, or other activities specifically identified under the
provisions of s 154.65." 32 C.F.R. s 154.67. The activities
mentioned in s 154.65 include "determining eligibility of DoD
military and civilian personnel ... [for] assignment or reten-
tion in sensitive duties." 32 C.F.R. s 154.65. Major Bigelow
had "access to the Nation's most sensitive secrets." Amend-
ed Complaint p 45. Did Colonel Noyes have a continuing
duty to determine whether Major Bigelow should be retained
in his sensitive duties on the Joint Chiefs of Staff? According
to s 154.60(a) of the regulations, the answer is yes. An
"individual's trustworthiness is a matter of continuing assess-
ment," and the "responsibility for such assessment must be
shared by the organizational commander or manager, [and]
the individual's supervisor...." 32 C.F.R. s 154.60(a).
Bigelow and our dissenting colleague read s 154.60(a) dif-
ferently than does the Defense Department. Judge Tatel
asserts that despite the unconditional wording of s 154.60(a),
military supervisors do not have an official need to examine
personnel files in assessing the trustworthiness of any individ-
ual under their command. Why not? Because only com-
manders and security officers have access to personnel securi-
ty files, which of course begs the question. Bigelow, at least,
is willing to concede that a supervisor is responsible for
assuring the trustworthiness of those under him. The ques-
tion is how the supervisor may go about this. Bigelow says
that the various ways of fulfilling the supervisor's duty are
spelled out in s 154.60(c). Searching personnel files for
derogatory information is not listed. We think his line of
reasoning misses the point of the need-to-know exemption in
the Privacy Act. Section 552a(b)(1) does not require an
agency to list those of its officers eligible to look at protected
records, nor does it demand that an agency official be specifi-
cally assigned to examining records. What must be deter-
mined--and what Judge Tatel does not confront--is whether
the official examined the record in connection with the perfor-
mance of duties assigned to him and whether he had to do so
in order to perform those duties properly. See Pippinger v.
Rubin, 129 F.3d 519, 529-30 (10th Cir. 1997); Hernandez v.
Alexander, 671 F.2d 402, 410 (10th Cir. 1982). Colonel Noyes
reviewed Major Bigelow's file in connection with his continu-
ing duty to make sure that the major was worthy of trust;
and he had a need to examine the file in view of the doubts
that had been raised in his mind about Bigelow and Bigelow's
access to the country's top secrets. See Britt v. Naval
Investigative Service, 886 F.2d 544, 549 n.2 (3d Cir. 1989)
(dictum). Given these circumstances it is an overstatement to
suppose, as our dissenting colleague does, that our decision
"has dramatically expanded the number of people" within the
military who may examine personnel files. Dissenting op. at
6. There may be many people in the military who have
access to the nation's most important secrets, but we doubt
that their supervisors regularly receive information casting
doubt on their trustworthiness.
Bigelow points to s 154.55, which gives commanders, upon
the receipt of certain kinds of "derogatory information" about
an individual, the power to take actions including temporarily
suspending the individual's access to classified materials in
the interest of national security. 32 C.F.R. s 154.55(c). Al-
though Colonel Noyes was the "Chief" of his unit, all agree
that he was not a commander within the regulation's intent.
Still, we cannot see how this regulation helps Bigelow's case.
From all that appears, s 154.55, together with its procedural
counterpart (32 C.F.R. s 154.56), simply spells out in detail
the formal administrative adjudicatory scheme for revoking
or suspending security clearances. The regulation nowhere
mentions who shall have access to personnel security records;
that is the subject of s 154.65 and s 154.67, which we have
already cited. It does not relieve supervisors of their duty,
spelled out in s 154.60(a), to assess continually the reliability
and loyalty of those working under them. While s 154.55(b)
does require the reporting of "derogatory information" to the
commander forthwith, it contemplates that such information
will first be "developed" or will become "available." 32
C.F.R. s 154.55(b). Here Colonel Noyes developed such
information and when he reported it to the Air Force, as he
attests in his affidavit, he presumably acted in accordance
with s 154.55(b).
If we were somewhat less sure of our reading of the
Defense Department's regulations, the interpretation ad-
vanced in the Department's brief would still carry the day.
Although the Supreme Court held in Christensen v. Harris
County, 120 S. Ct. 1655, 1662-63 (2000), that agency interpre-
tations of statutes must derive from some formal agency
action before judicial deference is due, the Court treated
Auer v. Robbins, 519 U.S. 452, 462 (1997), as still good law
despite the fact that the agency's interpretation--there of a
regulation--appeared only in a legal brief. Auer does not
require an agency to demonstrate affirmatively that its inter-
pretation represents its fair and considered judgment. See id.
Nor must an agency's litigating position represent some
"longstanding agency practice." Dissenting op. at 5, 6 (quot-
ing Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301, ----,
2000 WL 639933, at *3 (D.C. Cir. May 26, 2000)). Auer held
that so long as there is no basis to suspect that the agency's
position represents anything less than its considered opinion,
deference is appropriate. Auer put the matter in these
terms: the Court had "no reason to suspect that the interpre-
tation does not reflect the agency's fair and considered judg-
ment." 519 U.S. at 462. Like the Auer Court, we have no
reason to suppose that the interpretation of the regulations
set forth by government counsel represents anything other
than his client's position. And we have been pointed to no
past practices or pronouncements that are inconsistent with
the Defense Department's current interpretation. Compare
Akzo Nobel Salt, Inc., 212 F.3d at ----, 2000 WL 639933, at
*3 (finding deference unwarranted given "the flip-flops [in]
the Secretary's position.... [and] litigation counsel's simulta-
neous advocacy of several different positions"). The Depart-
ment's interpretation of the regulations is therefore entitled
to weight.
Because we are unpersuaded that discovery would have
reaped anything pertinent to resolving these issues, we will
not upset the district court's discretionary decision to refuse
to grant Major Bigelow's Rule 56(f) motion before acting on
the motion for summary judgment. See White v. Fraternal
Order of Police, 909 F.2d 512, 517 (D.C. Cir. 1990).
Affirmed.
Tatel, Circuit Judge, dissenting: To maintain national
security, Department of Defense employees whose official
duties require access to classified information undergo exten-
sive, very personal background investigations. The regulato-
ry scheme at issue in this case protects the sensitive informa-
tion collected during those investigations and maintained in
personnel security files--information about political associa-
tions, criminal or dishonest conduct, mental illness, family
relationships, financial circumstances, drug and alcohol use,
sexual behavior, etc. See 32 C.F.R. s 154.7 & Pt. 154, App.
H. Relying on the government's appellate brief in this case,
which in turn relies solely on a declaration of the non-policy-
making employee whose behavior is the target of this suit,
this court interprets the regulations to give access to person-
nel files not just to officials specified in the regulation, but to
any supervisor anywhere in the Department who doubts an
employee's loyalty. Because there is more than ample "rea-
son to suspect" that this counterintuitive interpretation of the
regulation represents a convenient litigating position rather
than the "fair and considered judgment" of the Secretary of
Defense or any other official with policy-making responsibili-
ty, Auer v. Robbins, 519 U.S. 452, 462 (1997), Supreme Court
and circuit precedent preclude us from deferring to it. See,
e.g., Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 213
(1988); Akzo Nobel Salt v. FMSHRC, 212 F.3d 1301, No.
99-1370, 2000 WL 639933 (D.C. Cir. 2000).
The Privacy Act prevents non-consensual release of person-
nel records except "to those officers and employees of the
agency which maintains the record who have a need for the
record in the performance of their duties." 5 U.S.C.
s 552a(b)(1). Reinforcing this protection, Defense Depart-
ment regulations provide:
In recognition of the sensitivity of personnel security
reports and records, particularly with regard to individu-
al privacy, it is Department of Defense policy that such
personal information be handled with the highest degree
of discretion. Access to such information shall be afford-
ed only for the purposes cited herein and only to persons
whose official duties require such information.
32 C.F.R. s 154.65. To protect the privacy of personnel
security files, the regulation requires them to be stored only
in approved locked cabinets, vaults, or safes; transmitted
only in sealed double envelopes bearing a special restricted
access notation; and reproduced only to the minimum extent
necessary. See id. s 154.68. Information contained in these
files may not be made available without the consent of the
subject except to those personnel who have an official need
for the information, and then only for specified limited pur-
poses: "determining eligibility ... for access to classified
information, assignment or retention in sensitive duties, ...
or for law enforcement and counterintelligence investiga-
tions." Id. s 154.65. Commanders and security officers who
have "specifically assigned personnel security duties" may
access the files. Id. s 154.67(b). But "[r]ank, position, or
title alone do not authorize access to personal information
about others. An official need for the information must exist
before disclosure." Id. s 310.41(a)(2).
Despite these regulatory safeguards, Colonel Noyes ob-
tained Major Bigelow's file solely on the basis of his status as
Bigelow's supervisor. The government does not contend that
Noyes has any law enforcement, counterintelligence, or other
"specifically assigned personnel security duties." Id.
s 154.67(b). Nor does it claim that Noyes is one of the
specifically enumerated persons empowered to make deci-
sions about Bigelow's security clearance or duty assignment.
See id. Pt. 154, App. E; s 154.47(b); s 154.55(c). Indeed,
the regulations make it quite clear that if Noyes was "aware
of ... significant adverse information" about Bigelow, his
obligation was to forward that information to the Defense
Investigative Service for further investigation. Id.
s 154.60(c)(3). That agency, not Noyes, was responsible for
reviewing the information and determining whether Bigelow's
conduct required further investigation. Id. s 154.9 ("No
other DoD component [other than the Defense Investigative
Service] shall conduct personnel security investigations unless
specifically authorized by the Deputy Under Secretary of
Defense for Policy.")
Citing section 154.60 of the regulations, my colleagues
conclude that Noyes had an "official need" for access to
Bigelow's file because "[a]n 'individual's trustworthiness is a
matter of continuing assessment,' and the 'responsibility for
such assessment must be shared by the organizational com-
mander or manager, [and] the individual's supervisor' "--in
this case, Noyes. Maj. Op. at 3 (quoting 32 C.F.R.
s 154.60(a)). Although I agree with my colleagues that the
regulations impose on supervisors a "shared" duty to assess
the trustworthiness of those they supervise, I do not agree
that this duty gives supervisors a per se "official need"--
indeed duty--to go through security files. The regulations
protect the privacy of personnel security files by providing
access only to certain specified officials (commanders and
security officers) and by requiring that supervisors like
Noyes report their concerns to the Defense Investigative
Service for further investigation. 32 C.F.R. s 154.60(c)(3).
Of course, had the Secretary of Defense, exercising his au-
thority to interpret Department regulations, interpreted
"shared" responsibility to mean that supervisors are "desig-
nated DoD officials who require access in connection with
specifically assigned personnel duties" within the meaning of
section 154.67, I would defer to that interpretation. See
Buffalo Crushed Stone v. Surface Transp. Bd., 194 F.3d 125,
128 (D.C. Cir. 1999) ("Where the meaning of regulatory
language is not free from doubt, we will defer to the agency's
interpretation so long as it sensibly conforms to the purpose
and wording of the regulations.") (internal quotation marks
and alteration omitted). But neither the Secretary nor any
other policy-making official has so interpreted the regulation.
The Supreme Court made clear in Auer that under certain
circumstances we may defer to regulatory interpretations
that appear "only in the context of" litigation. 519 U.S. at
462. But Auer deference has limits. In Bowen, the Supreme
Court held that "[d]eference to what appears to be nothing
more than an agency's convenient litigating position would be
entirely inappropriate." 488 U.S. at 213. The difference
between the two cases is this--the Court deferred to the
Secretary's interpretation in Auer because, unlike in Bowen,
it was "in no sense a post hoc rationalization advanced by an
agency seeking to defend past agency action against attack,"
but instead "reflect[ed] the agency's fair and considered
judgment on the question." Auer, 519 U.S. at 462 (internal
quotation marks and citation omitted). See also Martin v.
OSHRC, 499 U.S. 144, 156 (1991) ("Our decisions indicate that
agency litigating positions are not entitled to deference when
they are merely appellate counsel's post hoc rationalizations
for agency action, advanced for the first time in the reviewing
court.") (internal quotation marks omitted); Akzo Nobel Salt,
212 F.3d at ----, 2000 WL 639933 at *3 ("[C]ourts ... defer
to agency interpretations of ambiguous regulations first put
forward in the course of litigation, but only where they
'reflect the agency's fair and considered judgment on the
matter in question.' ") (quoting Auer, 519 U.S. at 462). This
insistence that an agency exercise its "fair and considered
judgment" stems from two concerns: "First, appellate coun-
sel's interpretation may not reflect the views of the agency
itself. Second, it is likely that 'a position established only in
litigation may have been developed hastily, or under special
pressure,' and is not the result of the agency's deliberative
processes." National Wildlife Fed'n v. Browner, 127 F.3d
1126, 1129 (D.C. Cir. 1997) (quoting FLRA v. United States
Dept. of Treasury, 884 F.2d 1446, 1455 (D.C. Cir. 1989)).
Thus, we may defer to an agency's litigating position if, for
instance, it merely "articulate[s] an explanation of longstand-
ing agency practice," Akzo Nobel Salt, 212 F.3d at ----, 2000
WL 639933 at *3 (citing Association of Bituminous Contrac-
tors, Inc. v. Apfel, 156 F.3d 1246, 1252 (D.C. Cir. 1998)), or if
the Secretary explicitly adopts the position expressed in the
brief, see FLRA, 884 F.2d at 1455, but not where the record
"strongly suggests to us that the Secretary has in fact never
grappled with--and thus never exercised her judgment
over--the conundrum posed by the regulation's clear ambigu-
ity." Akzo Nobel Salt, 212 F.3d at ----, 2000 WL 639933 at
*3.
Bowen, not Auer, controls this case. The record indicates
that the Secretary of Defense has never "grappled with" or
"exercised [his] judgment over ... the conundrum posed by
[this] regulation's clear ambiguity": whether all supervisors
have a per se duty to review the personnel security files of
employees they supervise. Id. The government's brief cites
only one source in support of its interpretation of the regula-
tion: a declaration prepared for this litigation by Noyes.
Nothing in the record, however, demonstrates that Noyes has
authority to make policy for the Department. See Paralyzed
Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 587
(D.C. Cir. 1997) ("A speech of a mid-level official of an agency
... is not the sort of 'fair and considered judgment' that can
be thought of as an authoritative departmental position.")
(quoting Auer, 519 U.S. at 462). Indeed, the statement in
Noyes's declaration cited in the brief--"I had an official need
to know the information in the personnel security file of any
employee under my supervision in order to protect the inter-
ests of national security"--does not purport to set agency
policy. It represents only Noyes's view about why he
thought he had authority to search Bigelow's file. Noyes,
moreover, is the alleged wrongdoer in this case, the person
with the greatest incentive to defend his past "action[s]
against attack." Auer, 519 U.S. at 462.
Of course, we could rely on the government's appellate
brief alone if its interpretation of the regulation reflected the
agency's "fair and considered judgment." Auer, 519 U.S. at
462 (deferring to the Secretary of Labor's explicit interpreta-
tion of his regulation appearing for the first time in her
amicus brief). But it does not. The brief merely asserts that
"Appellee" has interpreted its regulation to require supervi-
sors to review personnel files, citing only the Noyes declara-
tion. Moreover, the record contains none of the indicators
that would allow us to conclude that a government position
set forth for the first time in an appellate brief reflects an
agency's "fair and considered judgment." The brief does not
say that the Defense Department has a "longstanding agency
practice" of allowing supervisors access to personnel files,
Akzo Nobel Salt, 212 F.3d at ----, 2000 WL 639933 at *3, nor
is there any indication that the Department "in practice ...
has, at least implicitly, followed the same interpretation that
it advances on appeal." National Wildlife Fed'n, 127 F.3d at
1129. Defense Department lawyers, moreover, neither
signed the brief nor appear of counsel, as agency lawyers
often do in our cases. See FLRA, 884 F.2d at 1455 (deferring
to agency interpretation in brief because "Ms. Horner, the
agency head, has explicitly adopted the view of the amicus
brief. There is no risk that counsel may have acted as
mavericks disembodied from the agency that they repre-
sent.") (internal quotation marks omitted).
It misses the point to say that "we have been pointed to no
past practices or pronouncements that are inconsistent with
the Defense Department's current interpretation." Maj. Op.
at 5. The point is that we have good "reason to suspect that
this interpretation does not reflect the agency's fair and
considered judgment" (Auer's words) and is nothing more
than the position of the U.S. Attorney and the two AUSAs
who signed the brief. As the Supreme Court observed in a
similar situation where counsel "rationalized the basis of [a
regulation] with great professional competence.... this is
hardly tantamount to an administrative interpretation of [the
relevant statutory provisions].... Congress has delegated to
the administrative official and not to appellate counsel the
responsibility for elaborating and enforcing statutory com-
mands." Investment Co. Inst. v. Camp, 401 U.S. 617, 628
(1971). And as we said in City of Kansas City, Missouri v.
HUD, 923 F.2d 188, 192 (D.C. Cir. 1991), "[i]n whatever
context we defer to agencies, we do so with the understanding
that the object of our deference is the result of agency
decisionmaking, and not some post hoc rationale developed as
part of a litigation strategy."
For these reasons, I believe that the U.S. Attorney's brief
represents a classic example of " 'post hoc rationalization[ ]'
advanced by an agency seeking to defend past agency action
against attack." Auer, 519 U.S. at 462. By deferring to the
brief, the court has not only dramatically expanded the
number of people with a duty to examine highly sensitive
personnel security files, but attributed to the Secretary an
interpretation of section 154.60 that he cannot change without
notice and comment rulemaking. See Paralyzed Veterans of
America, 117 F.3d at 586 ("Once an agency gives its regula-
tion an interpretation, it can only change that interpretation
as it would formally modify the regulation itself: through the
process of notice and comment rulemaking."). I respectfully
dissent.