Bigelow v. Department of Defense

TATEL, Circuit Judges. appeal The comes question down to the whether Noyes, Colonel anas officer of the Opinion by for the Court filed Circuit file, maintaining the had “a need Judge RANDOLPH. for the [Bigelow’s] perfor- record Dissenting opinion by filed Circuit mance [his] duties.” 5 U.S.C. Judge TATEL. 552a(b)(l). Among other things Pri- vacy Act generally prohibits government RANDOLPH, Judge: Circuit agencies from disclosing personnel files. Steven Bigelow, major D.C. while a in To general prohibition there are sev- Force, the United Air States worked in the exceptions, eral one of which is the “need- Information Special Warfare and Technical 552a(b)(l). to-know” provision §of The Center, Operations part a of the Office of Department us, through assures the Joint Chiefs of Staff in the Pentagon. brief filed on its behalf the United The chief of that Major section and Bige- Attorney, States through a sworn dec- low’s immediate supervisor, United States laration of Noyes, Colonel Noyes’s Army Colonel Nathan Noyes, W. learned duties entailed examining Bigelow’s per- of allegations of misconduct concerning Bi- sonnel security file Bigelow because was gelow, perhaps the most serious of which supervision. under his We believe the De- was that he disappeared sometimes in for- partment’s regulations support posi- eign countries near sensitive international tion. Major borders. Bigelow’s position de- manded that he hold the highest security At Pentagon, “personnel securi classification, (the “Top above Secret” ty investigative reports” may be revealed name of the classification is itself classi- designated “those DoD officials fied). Noyes’s Colonel position, so it is who access in connection spe with claimed, demanded that he continually cifically duties, as- assigned personnel or oth sess the trustworthiness of those under his er activities specifically identified under he had to do so signed to him and whether 32 C.F.R. 154.65.” provisions properly. those duties perform order mentioned activities 154.67. Rubin, 129 F.3d Pippinger eligibility of “determining include 154.65 (10th Cir.1997); Hernandez v. Al- 529-30 civilian military and DoD (10th Cir.1982). exander, in sensitive or retention assignment [for] Noyes Major Bigelow’s reviewed Colonel Major Bige- § 154.65. 32 C.F.R. duties.” continuing duty in his file connection with sensi- the Nation’s most had “access to low major worthy of to make sure that the was ¶ 45. Complaint Amended tive secrets.” trust; and had a need to examine the he continuing a Noyes have Did Colonel in the doubts that had been view of Major Bigelow to determine whether Bigelow Bige- in and raised his mind about in duties retained his sensitive should be country’s top access to the secrets. low’s According of Staff? on the Joint Chiefs Service, Investigative Britt v. Naval 154.60(a) the answer regulations, § of the (3d Cir.1989) (dic- 2n. is trustworthiness yes. An “individual’s is tum). circumstances it is an Given these assessment,” and continuing matter of a suppose, as our dissent- overstatement for such assessment “responsibility the does, that our decision “has ing colleague organizational com- be shared must peo- of dramatically expanded number the individual’s manager, [and] or mander military may within the who examine ple” 154.60(a). § 32 C.F.R. supervisor....” Dissenting op. at 881. personnel files. dissenting col Bigelow and our many people military in the may There be 154.60(a) differently § than league read im- to the nation’s most who have access Judge Ta- Department. the Defense does secrets, we doubt that their portant but despite the unconditional tel asserts that regularly receive information supervisors 154.60(a), military supervi § wording of casting doubt on their trustworthiness. need to exam do not have an official sors 154.55, gives §to which Bigelow points assessing the trust files personnel ine commanders, receipt of certain upon their any individual under worthiness of about an “derogatory of information” kinds Because com Why not? command. individual, in- to take actions power security officers have access manders and the indi- cluding temporarily suspending files, security which of course materials in the access to classified vidual’s least, is Bigelow, at begs question. security. 32 C.F.R. interest of national supervisor is re willing to concede that 154.55(c). was Although Noyes § Colonel assuring the trustworthiness for sponsible unit, he agree all the “Chief’ of his is how question under him. The of those regula- within the not a commander was Bigelow supervisor may go about this. Still, cannot see how this intent. we tion’s ways fulfilling says that the various case. From all regulation helps Bigelow’s out supervisor’s duty spelled are 154.55, together § with its appears, 154.60(c). for Searching personnel (32 § files counterpart C.F.R. procedural not We information is listed. derogatory 154.56), spells § out detail simply point reasoning line of misses the think his scheme adjudicatory formal administrative in the Pri exemption security of the need-to-know clear- revoking suspending or 552a(b)(l) not re does mentions vacy Act. Section nowhere regulation ances. The to list those of its officers quire have access to who shall records, records; nor subject 154.65 eligible protected to look 154.67, already be have cited. that an official which we does it demand their examining supervisors records. assigned to It does not relieve specifically 154.60(a), to assess duty, spelled what out must determined —and What be reliability loyalty continually the not confront—is whether Judge Tatel does them. While working under in connec those the record the official examined 154.55(b) reporting of does of duties as- performance with the Inc., “derogatory information” to the command- (finding F.3d at 1305 deference forthwith, it in- contemplates er that such given unwarranted “the flip-flops [in] “developed” formation will first be Secretary’s position.... will litigation [and] become “available.” C.F.R. advocacy counsel’s simultaneous of several 154.55(b). Here Colonel devel- positions”). Department’s different oped report- such information and when he interpretation of regulations is there- Force, Air ed it to the as he attests in weight. fore entitled to affidavit, presumably he acted in accor- unpersuaded Because we are that dis- 154.55(b). §with dance covery would reaped anything have perti- issues, resolving nent to these we will not If were somewhat less sure upset the district discretionary court’s de- reading Department’s our of the Defense grant Major cision to refuse to Bigelow’s regulations, interpretation advanced in 56(f) Rule motion acting before on the Department’s carry brief would still summary judgment. motion for See White day. Although Supreme Court Police, 512, v. Fraternal Order — held Christensen v. Harris County, (D.C.Cir.1990). 517 -,-, 1655, 120 S.Ct. 1662-63, (2000), 146 L.Ed.2d 621 that Affirmed. agency interpretations of statutes must de TATEL, Circuit Judge, dissenting: rive from agency some formal action be due, judicial fore deference is the Court To maintain security, national Depart- Robbins, 452, 462, treated v. Auer 519 U.S. ment of employees Defense whose official 905, (1997), 117 S.Ct. 137 L.Ed.2d 79 as require duties access to classified informa- good still despite law the fact extensive, tion undergo very personal agency’s interpretation regula of a background investigations. The regulato- —there appeared legal brief. Auer ry scheme at protects issue in case this tion— does not to demonstrate sensitive information collected during affirmatively repre its investigations those and maintained in per- sents its fair and judgment. considered security sonnel files—information about id. Nor agency’s associations, must an litigating posi political criminal or dishonest represent conduct, “longstanding agency illness, some mental family relation- practice.” Dissenting op. at 881 (quoting ships, circumstances, financial drug and Salt, FMSHRC, Akzo Nobel v. use, Inc. 212 behavior, alcohol sexual etc. See 32 1301, (D.C.Cir.2000)). F.3d 1304 154, Auer C.F.R. 154.7 & App. Pt. H. Rely- held that long so as there is no ing basis to on government’s appellate brief in suspect agency’s case, that the position repre which in solely turn relies on a anything sents less than its considered declaration of the non-policymaking em- opinion, deference appropriate. ployee Auer whose target behavior is the of this put the suit, matter these terms: the Court this court interprets regulations had “no to suspect reason that the inter give to just access to files not pretation does not reflect the fair specified officials regulation, in the but to and judgment.” considered any 519 U.S. at supervisor anywhere in Depart- 462, Court, 117 S.Ct. 905. Like the Auer ment employee’s who doubts an loyalty. we suppose have no reason to the Because there ample is more than “reason interpretation of the regulations set forth suspect” that this counterintuitive inter- by government represents any counsel pretation of the regulation represents a thing other than position. his client’s And convenient litigating position rather than pointed have been past practices no “fair judgment” considered of the pronouncements that are inconsistent Secretary of any Defense or other official with the Department’s Defense in current with policy-making responsibility, Auer v. terpretation. Salt, Robbins, Compare 452, 462, Akzo Nobel 905, 117 S.Ct. must exist before dis- (1997), the information Supreme Court L.Ed.2d 310.41(a)(2). closure.” Id. us from defer- preclude precedents circuit See, Georgetown e.g., Bowen v. ring to it. regulatory safeguards, these Despite 213, Hospital, 488 U.S. Univ. Major Noyes Bigelow’s Colonel obtained (1988); Akzo 102 L.Ed.2d as solely on basis his status FMSHRC, 212 F.3d 1301 Nobel Salt Bigelow’s supervisor. government The (D.C.Cir.2000). Noyes any does not contend that has law enforcement, counterintelligence, or other non-consensu- Privacy prevents Act “specifically assigned personnel except records “to al release 154.67(b). duties.” Id. Nor does it of the employees officers and those Noyes specifically claim that is one of the have a maintains the record who which persons empowered enumerated to make performance in the for the record need Bigelow’s security decisions about clear- 552a(b)(l). Re- duties.” 5 U.S.C. their Pt. duty assignment. ance or See id. Depart- inforcing protection, 154.55(c). 154.47(b); Indeed, E; § App. regulations provide: ment it that if regulations quite make clear sensitivity per- recognition In of the significant was “aware of ... ad- records, par- security reports and sonnel Bigelow, information” about his obli- verse regard priva- with to individual ticularly gation was to forward that information to policy of Defense cy, Department it is fur- Investigative Service for information han- personal that such be 154.60(c)(3). § investigation. ther Id. degree of discre- highest dled with the Noyes, responsible was agency, That not information shall tion. Access to such information and deter- reviewing for only purposes for the cited be afforded re- mining Bigelow’s whether conduct whose official only persons herein and to § quired investigation. further Id. 154.9 information. require duties such (“No than component [other other DoD shall Investigative Service] the Defense § protect priva- To 32 C.F.R. 154.65. investigations security personnel conduct files, regula- security cy personnel of by Depu- specifically unless authorized only in requires them to be stored Secretary of Defense for Poli- ty Under cabinets, vaults, safes; or approved locked cy.”). only in sealed double envel- transmitted regulations, 154.60 of the Citing section bearing special a restricted access opes conclude that had notation; only my colleagues to the mini- reproduced Bigelow’s for access to 154.68. “official need” necessary. mum See id. extent trustworthiness may because ‘individual’s “[a]n contained these files Information assessment,’ and continuing a of the consent is matter made available without not be ‘responsibility for such assessment those subject except of the to com- by organizational the informa- must be shared have an official need for who the individual’s manager, [and] mander or tion, specified limited only and then for case, Maj. Noyes. eligibility supervisor’” ... “determining purposes: —in 154.60(a)). information, 32 C.F.R. assign- Op. (quoting at 877 access classified duties, my colleagues that Although agree I with ment or retention sensitive a impose supervisors on regulations and counterintelli- for law enforcement assess the trustworthi- duty “shared” Id. 154.65. Com- investigations.” gence I do not they supervise, have ness of those security officers who manders and duty gives supervisors security agree “specifically assigned personnel go need”—-indeed per Id. se “official may. access files. duties” —to 154.67(b). regulations “[r]ank, through security files. position, or title But of privacy personal protect access to alone do not authorize to certain only access by providing files An official need about others. information 880 (commanders

specified and securi- post officials sel’s hoc for agency rationalizations officers) ty action, requiring supervi- advanced for the first time in the Noyes report court.”) (internal sors like their concerns to reviewing quotation the Defense fur- Investigative Service for omitted); Salt, marks Akzo Nobel F.3d ther investigation. C.F.R. (“[Cjourts at 1304 ... defer to agency 154.60(c)(3). course, had Of the Secre- interpretations ambiguous regulations Defense, tary exercising authority put first forward in litigation, the course of interpret Department regulations, inter- but only they where ‘reflect preted responsibility “shared” to mean judgment fair and considered on the mat that supervisors “designated are DoD offi- ”) Auer, in question.’ (quoting ter who cials access connection with 462, 117 905). This insistence that specifically assigned personnel duties” an agency exercise its “fair and considered 154.67, meaning within the I section judgment” stems from two concerns: interpretation. would defer to that “First, appellate counsel’s Crushed Stone v. Transp. Buffalo Bd., Surface may not reflect the views of the (D.C.Cir.1999) 194 F.3d Second, likely itself. it position that ‘a (“Where the meaning regulatory lan- litigation established may have doubt, guage free is not from we will defer developed been hastily, or special under agency’s interpretation to the long so as it pressure,’ and is not the result of the sensibly purpose conforms to the and agency’s processes.” deliberative Nation (internal wording regulations.”) of the quo- Browner, al Fed’n v. Wildlife omitted). tation marks and alteration But (D.C.Cir.1997) (quoting FLRA Secretary any neither the nor other policy- v. United Dept. States Treasury, 884 making interpreted official has reg- so (D.C.Cir.1989)). F.2d Thus, ulation. may agency’s defer to an litigating position Supreme Court made clear in Auer if, instance, for it merely an “articulate[s] that under certain may circumstances we explanation of longstanding agency prac defer regulatory to interpretations ap- that tice,” Salt, Akzo Nobel 212 F.3d at 1304 pear in “only the context litigation. of’ (citing Association Bituminous Con of 462, 519 at U.S. 117 S.Ct. 905. But Auer tractors, Apfel, 1246, Inc. v. 1252 Bowen, deference has In limits. the Su- (D.C.Cir.1998)), or if Secretary the explic preme Court held that “[d]eference to itly adopts position the expressed in the what appears nothing to be more than an brief, 1455, see 884 F.2d at but not FLRA agency’s convenient litigating position where the record “strongly suggests to us entirely would be inappropriate.” 488 U.S. that the Secretary has in grap fact never 213, at 109 S.Ct. 468. The difference be- pled with—and thus never exercised her tween the two cases is this —the Court judgment posed over—the conundrum by Secretary’s deferred to the interpretation the regulation’s clear ambiguity.” Akzo because, Bowen, in Auer in unlike it was Salt, Nobel 212 F.3d at 1305. “in no a post sense hoc rationalization ad- Bowen, Auer, not controls by agency seeking vanced this case. to defend The record past attack,” indicates that agency against Secretary action the of but “grappled instead Defense has never agency’s “refiect[ed] the fair with” or “ex- and ercised judgment judgment [his] considered over ... question.” on the the conun- Auer, (inter- 462, posed drum regulation’s 519 U.S. at 117 [this] S.Ct. 905 clear am- omitted). quotation biguity”: nal marks citation whether all supervisors have a OSHRC, See 144, per also Martin v. se to 499 review the personnel U.S. securi- 156, 1171, (1991) 111 ty S.Ct. 113 L.Ed.2d 117 files of employees they supervise. Id. (“Our decisions agency government’s indicate that liti- The brief cites one gating positions are not entitled support to defer- source in of interpretation its of ence they when are merely appellate coun- regulation: the prepared declaration for the brief signed appear in the neither nor Noyes. Nothing litigation by counsel, in record, however, agency lawyers that as often do our demonstrates (defer- FLRA, the De policy to make for F.2d at 1455 authority has cases. See Paralyzed, Veterans partment. agency interpretation to brief be- ring L.P., 117 F.3d v. D.C. Arena Horner, head, America agency cause “Ms. the has (“A (D.C.Cir.1997) a mid- speech of the amicus explicitly adopted the view of not agency ... official of an level may There brief. is no risk counsel judgment’ ‘fair and considered sort of acted as mavericks disembodied from have de of as an authoritative thought can be (internal they represent.”) Auer, (quoting position.”) partmental omitted). quotation marks 905). Indeed, at 117 S.Ct. U.S. say to that “we have point It misses cited in Noyes’s declaration statement pointed past practices pro- to no been need to know had an official the brief—“I that are inconsistent with the nouncements information Department’s interpreta- current my supervision under any employee Maj. Op. point national tion.” at 878. The is that the interests of protect in order to purport not to set “reason to that this security”- good suspect we have —does only Noyes’s view represents It policy. interpretation does not reflect the authority (Acer’s he had why thought about he judgment” fair considered moreover, is Noyes, file. Bigelow’s words) search nothing posi- and is more than the case, wrongdoer alleged Attorney and the two tion of the U.S. greatest incentive to de with person signed who the brief. As the Su- AUSAs against attack.” past “action[s] his fend observed in a similar situa- preme Court Auer, 462, 117 905. at “rationalized the basis tion where counsel course, rely govern- regulation] great professional with [a we could on the Of interpre- if hardly brief alone its this is tantamount appellate competence ment’s agen- regulation tation of the reflected [the an administrative judgment.” “fair and considered cy’s statutory provisions].... Con- relevant (defer- Auer, 117 S.Ct. 905 administrative gress delegated has Secretary explicit of Labor’s ring to the appellate official and not to counsel regulation appearing interpretation of elaborating and enforc- responsibility brief). But first time in her amicus for the statutory commands.” Investment Co. ing that merely not. The brief asserts it does 617, 628, 91 Camp, Institute v. regulation interpreted its “Appellee” has (1971). 1091, And as S.Ct. 28 L.Ed.2d require supervisors personnel review City City, Kansas Missouri we said files, only declaration. citing (D.C.Cir.1991), HUD, 188, 192 v. 923 F.2d Moreover, contains none of the the record agen- we defer to whatever context “[i]n allow us to conclude indicators that would cies, understanding we do so with forth for position set government that a object is the result of of our deference reflects appellate first time in an brief decisionmaking, post and not agency some judg- “fair and considered an part litiga- as of a developed hoc rationale say The brief does not ment.” strategy.” “longstanding has a Department Defense reasons, I For these believe supervisors practice” allowing agency represents a classic Attorney’s brief Salt, U.S. files, Nobel Akzo access “ ad- ‘post ]’ hoc example 1304, any nor is there indica- 212 F.3d at rationalization seeking to defend an vanced “in Department practice tion that the Auer, against attack.” past agency action has, the same implicitly, at followed least By 905. defer- at appeal.” U.S. that it advances on interpretation brief, has not Fed’n, to the the court ring at 1129. National 127 F.3d Wildlife peo- moreover, expanded the number of dramatically Department lawyers, highly to examine sensitive pie with a files, but attributed to Secretary an of section change

154.60 that he cannot without no- rulemaking. See Para-

tice and comment America,

lyzed Veterans of

(“Once gives regulation its an only change it can that in-

interpretation, it formally modify as would

terpretation through process regulation itself: I rulemaking.”).

of notice and comment dissent.

respectfully

The HUMANE SOCIETY OF STATES,

THE UNITED al., Appellees,

et GLICKMAN, Secretary,

Dan Agriculture,

Department of al., Appellants.

et

No. 99-5309.

United of Appeals, States Court

District of Columbia Circuit.

Argued May 2000. July

Decided 2000. Kilbourne,

James C. Attorney, U.S. De- Justice, partment of argued the cause for appellants. With him on the briefs were Schiffer, Lois J. Assistant Attorney Gener- al, and Mergen, Attorney. Andrew Jonathan R. argued Loworn the cause for appellees. With him on the brief was Katherine A. Meyer. EDWARDS,

Before: Judge, Chief GARLAND, RANDOLPH and Circuit Judges.

Opinion for the Court filed Circuit Judge RANDOLPH.

Case Details

Case Name: Bigelow v. Department of Defense

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 14, 2000

Citation: 217 F.3d 875

Docket Number: 99-5280

Court Abbreviation: D.C. Cir.