217 F.3d 875 (D.C. Cir. 2000)
Steven D.C. Bigelow, Appellantv.Department of Defense, Appellee
No. 99-5280
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 17, 2000Decided July 14, 2000

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:


1
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 Pentag on. 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).


2
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.


3
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)(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 § 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.


4
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 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 § 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).


5
Bigelow and our dissenting colleague read § 154.60(a) differently than does the Defense Department.  Judge Tatel  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)(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 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  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.


6
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).


7
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, 120 S. Ct. 1655, 1662-63 (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 (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 5, 6 (quoting Akzo 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.  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 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.


8
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).


9
Affirmed.

Tatel, Circuit Judge, dissenting:

10
To maintain national  security, Department of Defense employees whose official  duties require access to classified information undergo extensive, very personal background investigations.  The regulatory scheme at issue in this case protects the sensitive information collected during those investigations and maintained in  personnel security files--information about political associations, criminal or dishonest conduct, mental illness, family  relationships, financial circumstances, drug and alcohol use,  sexual behavior, etc.  See 32 C.F.R. § 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-policymaking employee whose behavior is the target of this suit,  this court interprets the regulations to give access to personnel 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 "reason 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 responsibility, 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(D.C. Cir. 2000).


11
The Privacy Act prevents non-consensual release of personnel 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.  § 552a(b)(1).  Reinforcing this protection, Defense Department regulations provide:


12
In recognition of the sensitivity of personnel security reports and records, particularly with regard to individual 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.


13
32 C.F.R. § 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. § 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 purposes:  "determining eligibility ... for access to classified  information, assignment or retention in sensitive duties, ...  or for law enforcement and counterintelligence investigations."  Id. § 154.65.  Commanders and security officers who  have "specifically assigned personnel security duties" may  access the files.  Id. § 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. § 310.41(a)(2).


14
Despite these regulatory safeguards, Colonel Noyes obtained 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.  § 154.67(b).  Nor does it claim that Noyes is one of the  specifically enumerated persons empowered to make decisions about Bigelow's security clearance or duty assignment. See id. Pt. 154, App. E;  § 154.47(b);  § 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.  § 154.60(c)(3).  That agency, not Noyes, was responsible for  reviewing the information and determining whether Bigelow's  conduct required further investigation.  Id. § 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.")


15
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 commander or manager, [and] the individual's supervisor' "--in  this case, Noyes.  Maj. Op. at 3 (quoting 32 C.F.R.  § 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. § 154.60(c)(3).Of course, had the Secretary of Defense, exercising his authority to interpret Department regulations, interpreted  "shared" responsibility to mean that supervisors are "designated 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.


16
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 diference  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 1304 ("[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 counsel'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 longstanding agency practice," Akzo Nobel Salt, 212 F.3d at 1304 (citing Association of Bituminous Contractors, 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 ambiguity."  Akzo Nobel Salt, 212 F.3d at 1305.


17
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 regulation:  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 interests 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.


18
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 interpretation 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 supervisors to review personnel files, citing only the Noyes declaration.  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 1304, 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 represent.") (internal quotation marks omitted).


19
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 commands."  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  decision making, and not some post hoc rationale developed as  part of a litigation strategy."


20
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 regulation 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.

