Steven D.C. BIGELOW, Appellant, v. DEPARTMENT OF DEFENSE, Appellee, 342 U.S. App. D.C. 369

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 Information 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, perhaps 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. § 552a, seeking damages and other relief against the Department 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. § 552a(b)(l). 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 § 552a(b)(l).

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 personnel duties, or other activities specifically identified under the provisions of § 154.65.” 32 C.F.R. § 154.67. The activities mentioned in § 154.65 include “determining eligibility of DoD military and civilian personnel ... [for] assignment or retention in sensitive duties.” 32 C.F.R. § 154.65. Major Bigelow had “access to the Nation’s most sensitive secrets.” Amended Complaint ¶ 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 § 154.60(

a) of the regulations, the answer is yes. An “individual’s trustworthiness is a matter of continuing assessment,” and the “responsibility for such assessment must be shared by the organizational commander or manager, [and] the individual’s supervisor....” 32 C.F.R. § 154.60(a). Bigelow and our dissenting colleague read § 154.60(

a) differently than does the Defense Department. Judge Ta-tel asserts that despite the unconditional wording of § 154.60(a), military supervisors do not have an official need to examine personnel files in assessing the trustworthiness of any individual under their command. Why not? Because only commanders and security officers have access to personnel security 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 question is how the supervisor may go about this.

Bigelow says that the various ways of fulfilling the supervisor’s duty are spelled out in § 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)(

l) 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 specifically assigned to examining records. What must be determined — -and what Judge Tatel does not confront — is whether the official examined the record in connection with the performance 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 continuing 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 881.

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 § 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. § 154.55(c).

Although 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, § 154.55, together with its procedural counterpart (32 C.F.R. § 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 § 154.65 and § 154.67, which we have already cited.

It does not relieve supervisors of their duty, spelled out in § 154.60(a), to assess continually the reliability and loyalty of those working under them. While § 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. § 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 § 154.55(b). If we were somewhat less sure of our reading of the Defense Department’s regulations, the

interpretation advanced in the Department’s brief would still carry the day. Although the Supreme Court held in Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 1662-63, 146 L.Ed.2d 621 (2000), that agency

interpretations 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, 117 S.Ct. 905, 137 L.Ed.2d 79 (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

interpretation represents its fair and considered judgment. See id. Nor must an agency’s litigating position represent some “longstanding agency practice.” Dissenting op. at 881 (quoting Alezo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301, 1304 (D.C.Cir.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

interpretation does not reflect the agency’s fair and considered judgment.” 519 U.S. at 462, 117 S.Ct. 905. 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 Alezo Nobel Salt, Inc., 212 F.3d at 1305 (finding deference unwarranted given “the flip-flops [in] the Secretary’s position____ [and] litigation counsel’s simultaneous advocacy of several different positions”). The Department’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.