UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


BIGELOW, STEVEN

v.

DOD


99-5280a

D.C. Cir. 2000


*	*	*


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


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


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


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 


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,


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


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


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


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


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


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.