Petition for Writ of Certiorari — Bigelow v. Department of Defense

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IN THE

Supreme Court of the Anited States

STEVEN D.C. BIGELOW, Petitioner,

Vv.

DEPARTMENT OF DEFENSE, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARI

EUGENE R. FIDELL

(Counsel of Record)

DAVID P. SHELDON

JAMES L. FELDESMAN

FELDESMAN, TUCKER, LEIFER,

FIDELL & BANK LLP

2001 L Street, N.W.

Washington, D.C. 20036

(202) 466-8960

Attorneys for Petitioner

DECEMBER 2000

QUESTIONS PRESENTED

1. Is an otherwise unauthorized release of Privacy Act

information permissible without specific evidence that

the releasing official determined that the recipient had

a “need to know”’ on the theory that, under the Defense

Department’s Personnel Security Program regulation,

supervisors have a per se need to know the entire con-

tents of their supervisees’ security files?

2. In light of Bowen v. Georgetown University Hospital,

488 U.S. 204 (1988), is an interpretation of a Defense

Department regulation entitled to deference when it is

advanced only by Assistant United States Attorneys and

junior agency “‘of counsel,”’ rather than any policy-level

agency official?

(1)

Brest. .

TABLE OF CONTENTS

Ss 5 a ose hada receee oe tent

GOVERNING STATUTE AND REGULATIONS

he I ay aay ae eran

OMS pr

REASONS FOR GRANTING THE PETITION ...

Il.

Conclusion

EY MERON are es te bbs eo S255

Regulatory Framework ..............

Lt Col Bigelow’s DD Form 398 .........

Privacy Act Violation ................

Proceedings in the District Court .......

The Decision of the Court of Appeals ... .

The decision below dramatically expands

the class of persons who may access oth-

ers’ security files and makes a hash of the

Defense Department’s Personnel Security

Program regulation .................

The decision below conflicts with Bowen

because it defers to an interpretation that

has never been announced or embraced by

any policy-level official ..............

(iii)

== FF S882 977 8S 28S Se 6 66 O68 68 8686 6 6 6

APPENDIX

Decision of the Court of Appeals (July 14, 2000) .. la

Judgment of the Court of Appeals

oS RRP er eT err errr ere Ce l5da

Order denying rehearing (Oct. 13, 2000) ....... 17a

Order denying rehearing En Banc (Oct. 13, 2000) 18a

Order amending Judge Tatel’s dissent from

denial of rehearing and rehearing en banc

Ges I do eae enna bs cece 20a

Statement of Judge Tatel dissenting from

denial of rehearing and rehearing ;

en banc (corrected version) ............... 22a

Judgment of the District Court (June 11, 1999) . 24a 4

Cer Ga BO ned 6 kk nes ww ewes 25a

Transcript of proceedings in the District Court

SD Sig EE oa oe eee ahem nieses sess ee

Privacy Act of 1974, 5 U.S.C. § 552a (1994)

EEE Gicvecsnaans ee enadtbseu> ae kes 40a

Dep’t of Defense Personnel Security Program, .

32 C.F.R. Pt. 154 (2000) (excerpts) ......... 58a

I os deo hd eA 'ale Mak eae os 58a

2k ae ee Pee Pr ee 58a

PE ie 5 > ak dee ae a eee 65a

fe re rere ee er ce | 69a

SS BPE err are ree har 70a

II, Li in. 0- 6-0: s6 wo sacri Ee 75a

INS Spay 9s. jaw, eta ai wes ah ok le eed 77a

ho SPP remy ee ne 8la

I iii 440d. «ROR Os ce eee Cala 82a

IT i. -c-07a''o wwe hse aia We &2a

EE aS aha < ae aes mds ae oe 83a

IS osx Oe ates ag os tn Gal 84a

Dep’t of Defense Privacy Program,

32 C.F.R. Pt. 310 (2000) (excerpt) .......... 86a

Ro RS ee en errr 86a

Letter from Edmund F. McBride, Chief,

Information Management Division,

Secretariat, Joint Staff (Aug. 19, 1997) ...... 87a

Declaration of Col Nathan W. Noyes

(Fess 2:3, MOOR) 0 oc cca cance eas oc Getaners 89a

Affidavit of Steven D.C. Bigelow in Support of

Plaintiff's Motion to Conduct Limited Discovery

(Sully 24, 1908) 2... cece cece sccconcece 9la

TABLE OF CITED AUTHORITIES

Page

Auer v. Robbins, 516 U.S. 1109 (1996) (mem.) ... 22

Auer v. Robbins, 519 U.S. 452 (1997) .... 7, 8,9, 22

Bigelow v. Dep’t of Defense, 217 F.3d 875

sVees 2 Perry y re re rere passim

Bowen v. Georgetown University Hospital,

GBD Us GG Cee 4 64 ew eeseaunsaes 8, 21, 22

Britt v. Naval Investigative Service, 886 F.2d 544

GOR GH. BG ocss 0 cceuadewaetsesns 13

Buffalo Crushed Stone, Inc. v. Surface Transp. Bd.,

194 F.3d 125 (D.C. Cir. 1999) ............... 8

Christensen v. Harris County,

RGD TH. GR. BOG GHD cc cccccasccesceceen 16

Geier v. American Honda Motor Co., Inc.,

190 S. Ce. 1928 (B00G) .. ccc ccceee 8, 22, 23

Hernandez v. Alexander, 671 F.2d 402

aL: 0 roe rere eee 14

Kargman v. Sullivan, 552 F.2d 2 (Ist Cir. 1977) .. 20

Martin v. OSHRC, 499 U.S. 144 (1991) ........ 21

Meehan v. Macy, 392 F.2d 822 (D.C. Cir. 1967),

modified, 425 F.2d 469 (1968), reinstated in part,

425 F.2d 472 (1969) (en banc) (per curiam), ... 20

O’Melveny & Myers v. F.D.I.C., 512 U.S. 79 (1994) 16

Pippinger v. Rubin, 129 F.3d 519 (10th Cir. 1997) 14

Tampa Phosphate R.R. v. Seaboard Coast Line R.R.,

418 F.2d 387 (5th Cir. 1969), cert. denied,

SOT UR. GEO GW 2c ccwnncsveccbeuseres 20

oe -.r rrrrerr rhc

ieteeeeeenenaaiiiaiiaiiliiiiiiiail

Statutes:

Freedom of Information Act, 5 U.S.C. § 552 (1994) . 4

Privacy Act of 1974, 5 U.S.C. § 552a (1994) . . passim

5 US.C. § GEBa(DM1) .. 1... ccc cece eens 2,4

10 U.S.C. § 155(a) (1994) .... 2... cece ee eeee 3

10 U.S.C. .§ 155(a)(3) (1994) ..... 2... eee ee eee 3

10 U.S.C. § 155(f)(2) (1994) ..........- eee eeee 3

28 U.S.C. § 1254(1) (1994) .... 2... 6. ee eee eee 2

28 US.C. $ 1881 (1994) .........0c cece ecees 6

Regulations:

Dep’t of Defense Personnel Security Program,

$2 C.F.R. Pt. 154 (2000) ..............-; passim

SED 5.60 ctces s0neeandensatonaw ees 11

|! eer ero ee 15

eS er rrr Tr 17

RO . cse¢a wa wecebasn abba tswen 14, 16

pO PPT CPT Tee I ree Ire 14, 16

RR es obocdiea cesses esa neaeee es 16

5 Pr TTerrey Teer eee ro 15

ED cco oil's les oes wae We eases 17, 18

Os wns ase pe eee one ae oe 8,9

0 SS Ree ry rere ee 17

0 eee er rr re 15

CL cesses esatbeu vba ta veee aun 4,5

DS tat weenad dra weheewesceseN we 5

0 er reer eee ee ee 4

PPT UTE TUTTE Te ree 5

eS POV TEP EET CTT EL 15

SS Set ee ee Peer eee eee ee 17

$8 CPR. Pt. 156 (9000)... cece ccc cc ceces 11

Dep’t of Defense Privacy Program,

$2 C.F.R. Pt. 310 (2000) .........--2225-.- 3

PR waadsksebacégdasthaneeeeessanes 4

Miscellaneous:

Brief for the United States as Amicus Curiae,

Auer v. Robbins, 1995 US. Briefs 897 [LEXIS],

DE: ae vad tne bowaa bic th bbw kes sos 22

Brief for the United States as Amicus Curiae

Supporting Affirmance, Geier v. American Honda

Motor Co., Inc., No. 98-1811,

<www.usdoj.gov/osg/briefs/1999/3mer/

lami/98-1811/mer.ami.html> .............. 23

Dep’t of Defense, Defense Almanac (1999),

<www.defenselink.mil/pubs/almanac/> ....... 11

Defense Security Service, Personnel Security

Investigations, Frequentiy Asked Questions,

<www.dss.mil/aboutdss/faq.htm> ............ 4

ee ie OU do Ace oo a ano ee 6-0-n ww eee 6d 7

GAO, Audit Report, Security Clearance

Investigative Priorities,

Rep. No. D-2000-11 (Apr. 5, 2000) ........... 12

GAO, National Security and International Affairs

Div., DOD Personnel: Inadequate Personnel

Security Investigations Pose National

Security Risks (Letter Report, Oct. 27, 1999,

SID 6 h.0.53-5% od xwsG due ene de. 12

John F. Joyce, The Privacy Act: A Sword and a

Shield But Sometimes Neither,

GP Bais Es. BO. BED CAGED 6b cid ccieacdvess. 20

Edward T. Pound, Security Clearance Backup

Continues, USA Today, Aug. 25, 2000, at 8A... 12

a Tey wey —

ae eres aed a 4

TABLE OF PARALLEL PROVISIONS

Dep’t of Defense Personnel Security Program

Internal DOD Version 32 C.F.R. Pt. 154

EN: yg ko 06 bs 0 050 ee ee ee § 154.6(b)

Oe nv kk bbw ee keer bade beet § 154.7

DE site doe ad ceaee tere § 154.8(g)

oo no a as we aS cee § 154.9(c)(3)

ee Os ea ago wee wen ee ee § 154.40

EE foc ene oe Lie a ee pl aa § 154.55(c)

NS re ks Sb dd oe hee eee ee § 154.60(a)

SE ces ba ove re sek Cae § 154.60(c)

SRG ld ae ee a es ee eae ek ace § 154.60(e)

NS aces a ee alee oe a ee § 154.65

I Ao 055 58 o sb Sk a eee wen § 154.67

I ee de ta ae § 154.68

0 re ae ee ee ee a § 154.69

IN THE

Supreme Court of the Gnited States

STEVEN D.C. BIGELOW, Petitioner,

Vv.

DEPARTMENT OF DEFENSE, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Lieutenant Colonei Steven D.C. Bigelow, U.S. Air

Force (Retired), respectfully prays that a writ of certiora-

ri issue to review the judgment below.

The case raises the important question whether,

under the Privacy Act and the Defense Department’s

Personnel Security Program regulation, a supervisor has

& per se “‘need to know” the contents of his or her super-

visees’ security files and whether ‘‘need to know” is to

be determined by the individual seeking access to

protected records or by the officials responsible for

maintaining and safeguarding those records. Left undis-

turbed, the decision below will grant to literally tens of

thousands of military and civilian supervisors a license

to rummage. It creates a gaping hole in those important

parts of DOD’s regulation which, consistent with the

Privacy Act, purport to impose strict limits on the

accessibility of sensitive personnel information.

The case also raises the important and recurring

generic issue of whether an interpretation of an agency

regulation is entitled to deference even if no policy-level

official has ever announced or embraced that interpreta-

tion.

Opinions Below

The decision of the Court of Appeals is reported

at 217 F.3d 875 and is reproduced in the Appendix

(““Pet. App.’’) at la. The unpublished orders denying

rehearing and rehearing en banc appear at Pet. App. 17a

and 18a. The order amending Judge Tatel’s dissent from

the denial of rehearing and rehearing en banc appears at

Pet. App. 20a, and the dissent (as corrected) appears at

Pet. App. 22a. The transcript of proceedings in and the

judgment of the District Court (Jackson, J.) appear at

26a and 25a. ;

Jurisdiction

The Court of Appeals decided the case on July 14,

2000, and denied rehearing and rehearing en banc on

October 13, 2000. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

Governing Statute and Regulations

The governing statute is the Privacy Act of 1974.

5 U.S.C. § 552a. Of particular relevance is the exception

that permits disclosure of otherwise nondisclosable

records “‘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.’’ Jd. § 552a(b)-

(1). The governing regulations are DOD’s Personnel

Security Program regulation, 32 C.F.R. Pt. 154 (2000),’

and Privacy Program regulation, 32 C.F.R. Pt. 310

(2000). Pertinent portions of the statute and regulations

are reproduced in the Appendix.

Statement

1. Summary. The Joint Staff assists the Joint

Chiefs of Staff. 10 U.S.C. § 155(a). Only those who are

“considered to be the most outstanding”’ are selected to

serve on the Joint Staff, id. § 155(a)(3), a prestigious,

career-enhancing assignment. See id. § 155(f)(2). Lt Col

Bigelow (then a Major) was an Air Force officer assigned

to the Joint Staff's Information Warfare and Special

Technical Operations Center. His supervisor, Army

Colonel Nathan W. Noyes, was able to obtain access to

Lt Col Bigelow’s security file, which contained adverse

information. Col Noyes was neither his commander nor

assigned to the Joint Staff Security Office (“‘JSSO”’’),

which is responsible for personnel security matters.

Col Noyes used highly sensitive personal informa-

tion from the file in a campaign to torpedo Lt Col Bigel-

ow’s career. Lt Col Bigelow was effectively fired from the

Joint Staff, dropped from several top-flight military-run

schools, and given a dead-end job at Bolling Air Force

Base. For a time his promotion to Lieutenant Colonel

was at risk. He was eventually transferred to Los

Angeles Air Force Base, and retired on July 1, 2000.

1 In the District Court, the parties cited to paragraphs in the

internal DOD version of the Personnel Security Program

regulation rather than the Code of Federal Regulations. See,

e.g., Pet. App. 27a-3la, 34a-37a, 93a. A Table of Parallel

Provisions appears at page ix supra.

2. Regulatory Framework. Under the Privacy Act,

otherwise nondisclosable records may be disclosed “‘to

those officers and employees of the agency which main-

tains the record who have a need for the record in the

performance of their duties.”” 5 U.S.C. § 552a(b)(1).

Under DOD’s regulations, “‘[rjecords pertaining

to an individual may be disclosed without the consent of

the individual to any DOD official who has need for the

record in the performance of his or her assigned duties.”

32 C.F.R. § 310.41(a). Access to personnel security

investigative reports shall be afforded only to persons

whose official duties require such information. Jd. §

154.65. Access to personnel security investigative reports

and personnel security determination information can be

authorized only in accordance with the Privacy Act

Program and the Freedom of Information Act and, in

pertinent part, with the following:

Within DoD, access to personnel security

investigative reports shall be limited to

those designated DoD officials who require

access in connection with specifically as-

signed personnel security duties, or other

activities specifically identified under the

provisions of [§ 154.65]. 32 C.F.R. § 154.67

(emphases added).

The Defense Security Service (“‘DSS’’, previously

known as the Defense Investigative Service) is responsi-

ble for administration of the Personnel Security Investi-

gations Program. It claims that “{aJll information

received during the course of the investigation is scrupu- _

lously protected under the laws and statutes of the U.S.,

including the Privacy Act of 1974.’”’ DSS, Personnel

Security Investigations, Frequently Asked Questions,

<www.dss.mil/aboutdss/faq. htm>, at 3 (emphasis

added). “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 shall be handled with the

highest degree of discretion. Access to such information

shall be afforded only for the purposes cited herein and

to persons whose official duties require such informa-

tion.” 32 C.F.R. § 154.65 (emphases added). The regula-

tions also call for “internal controls to ensure adequate

safeguarding and limit access to and use of personnel

security reports and records. . . .”” Id. § 154.66.

3. Lt Col Bigelow’s DD Form 398. In 1992, Lt Col

Bigelow submitted a Personnel Security Questionnaire

(DD Form 398) in order to obtain the Top Secret clear-

ance required for assignment to the Joint Staff. Based

upon the form and a personnel security investigation,

the Air Force’s Air Intelligence Agency, as the cognizant

Central Adjudication Facility, determined that Lt Col

Bigelow could have access to classified information. In

turn, the JSSO determined that he had a need to know

particular classified information.

4. Privacy Act Violation. In 1995, when Lt Col

Bigelow was assigned to the Operations Branch of the

Special Technical Operations Center, Col Noyes super-

vised him. Col Noyes was neither a “‘personnel security

specialist’ nor assigned to the JSSO. In the autumn of

1995, he learned of allegations of misconduct regarding

Lt Col Bigelow. He met with the Air Force Office of

Special Investigations, which declined to intervene. Then

he contacted the JSSO, where he was permitted to

examine Lt Col Bigelow’s personnel security investiga-

tive report (which JSSO had illegally retained beyond

the 90 days permitted by 32 C.F.R. § 154.69(a), Pet. App.

93a (f| 7)). In this fashion he learned of other, unrelated

allegations that had been known to the responsible

officials when Lt Col Bigelow was granted access to

highly classified information.

Lt Col Bigelow was thereafter relieved of his

duties and escorted from the Pentagon. A month later,

he learned that Col Noyes had been permitted to exam-

ine his personnel security investigative report. In an

effort to determine how Col Noyes had been able to

obtain information protected by the Privacy Act, Lt Col

Bigelow requested an accounting of all disclosures of his

record while he was assigned to the Joint Staff. The

Joint Staff Secretariat’s Information Management

Division (not the JSSO) responded that the disclosures

were exempt from the Privacy Act’s accounting require-

ment because they were made to officers and employees

who had a need to know the information for the perfor-

mance of their duties. Pet. App. 87a.

5. Proceedings in the District Court. Lt Col

Bigelow sued DOD because JSSO had disclosed his

security file to Col Noyes. The bases for federal jurisdic-

tion in the District Court were the Privacy Act and 28

U.S.C. § 1331. He sought money damages for career and

emotional harm; expungement of all reference to the

matter that was disclosed; an accounting of all disclo-

sures of his prior background investigations while he

was assigned to the Joint Staff; attorney’s fees and costs;

and such other and further relief as might, in the

circumstances, be just and proper.

Relying on an affidavit from Col Noyes and no

other factual information regarding the disclosure at

issue, DOD moved for summary judgment on the ground

that he had a need to know the contents of Lt Col Bige-

low’s security file. Lt Col Bigelow sought limited discov-

ery on several issues, such as Col Noyes’s need to know,

any procedure that provided for access by mere supervi-

sors, the identity and authority of the individual who

permitted him to examine the file, and the connection

between the disclosure and Lt Col Bigelow’s reassign-

ment. The District Court (Jackson, J.) granted summary

judgment for DOD and denied Lt Col Bigelow’s Rule

56(f) motion as moot. Pet. App. 25a. Ruling from the

bench and explicitly (and impermissibly) drawing on

intuition and personal experience as a naval officer

(years before Congress passed the Privacy Act), the court

found that because Col Noyes was Lt Col Bigelow’s

supervisor, he had the requisite need to know. Pet. App.

37a-38a.

No policy-level DOD official signed the govern-

ment’s brief. The only attorneys who entered appear-

ances or signed anything in the District Court were from

the United States Attorney’s Office. No one from DOD’s

Office of General Counsel entered an appearance, signed

anything, or even was shown as “‘of counsel.’’ The name

of a junior officer assigned to the Air Force’s General

Litigation Division was shown, without signature, as “‘of

counsel’ on a statement of points and authorities in

support of a motion to dismiss or for summary judg-

ment. :

6. Proceedings in the Court of Appeals. The Court

of Appeals denied cross-motions for summary disposi-

tion. After plenary briefing and argument, it ruled for

DOD, holding, in an opinion by Judge Randolph, that

Col Noyes’ continual duty to assess the reliability and

loyalty of subordinates gave him a “need to know” and

that “‘[iJf 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,”’ citing Auer v. Robbins, 519 U.S. 452, 462 (1997).

Pet. App. 5a.

Judge Tate] dissented. In his view, “had the

Secretary of Defense, exercising his authority to inter-

pret Department regulations, interpreted ‘shared’

responsibility to mean that supervisors are ‘designateca

DoD officials who require access in connection with

specifically assigned personnel duties’ within the mean-

ing of section 154.67, I would defer to that interpreta-

tion,” citing Buffalo Crushed Stone, Inc. v. Surface

Transp. Bd., 194 F.3d 125, 128 (D.C. Cir. 1999), “‘[bJut

neither the Secretary nor any other policy-making

official has so interpreted the regulation.” Pet. App. 9a-

10a. Not only was there nothing in the record to demon-

strate “that Noyes has authority to make policy for the

Department,” he “‘is the alleged wrongdoer in this case,

the person with the greatest incentive to defend his past

‘action{s] against attack,’”” quoting Auer at 462. Pet.

App. lla-12a. “By deferring to [DOD’s] 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 inter-

pretation of section 154.60 that he cannot change

without notice and comment rulemaking.” Pet. App.

14a.

On petition for rehearing, Judge Tatel again

dissented:

Contrary to Bowen v. Georgetown

University Hospital, the panel decision

defers to “what appears to be nothing

more than an agency’s convenient liti-

gating position.” 488 U.S. 204, 213 (1988).

Unlike in Auer v. Robbins, 519 U.S. 452,

461-63 (1997), and Geier v. American

Honda Motor Co., 1208S. Ct. 1913, 1926-27

(2000), the high-water marks of deference

to litigating positions, here the agency’s

own conduct is at issue and the proposed

interpretation of section 154.60 was of-

fered not only in defense of that conduct,

but also for the first time in this case.

Under such circumstances, the record

must contain some evidence that the

proposed interpretation reflects the agen-

cy’s fair and considered judgment. Other-

wise, the interpretation represents noth-

ing more than a “‘post-hoc rationalization

advanced . . . to defend past agency action

against attack.” Aver, 519 U.S. at 462.

To support its proposed interpre-

tation of section 154.60, the government’s

brief cites only the affidavit of the very

Department of Defense official whose con-

duct Bigelow challenges. The record, mor-

eover, contains no evidence either of long-

standing agency practice consistent with

the government’s interpretation of section

' 154.60 or of implicit agency reliance upon

| that interpretation, nor did Department of

| Defense attorneys sign the appellate brief.

' See Bigelow, 217 F.3d at 881. Although

the government has now informed us that

an Air Force lawyer’s name appears as of

counsel on the motion to dismiss in the

district court, see Opposition to Appel-

lant’s Petition for Panel Rehearing and for

Rehearing En Banc at 4, that is hardly

sufficient to transform an interpretation

of a regulation advanced for the first time

as a defensive litigating position into a

considered agency judgment worthy of

deference. Pet. App. 22a-23a.

No DOD policy-level official with authority to

interpret the regulations ever entered an appearance in

the Court of Appeals, or signed or was shown, even as

“of counsel,”’ on the government’s motion for summary

affirmance or plenary brief. Nor did any of its submis-

sions recite that Secretary Cohen had approved the

interpretation asserted. The names of two attorneys in

the Air Force’s General Litigation Division were eventu-

ally shown (without signatures) as ‘‘of counsel’”’ on the

government’s opposition to Lt Col Bigelow’s rehearing

petition.

Reasons for Granting the Petition

THE DECISION BELOW DRAMATICALLY

EXPANDS THE CLASS OF PERSONS WHO

MAY ACCESS OTHERS’ SECURITY FILES

AND MAKES A HASH OF THE DEFENSE

DEPARTMENT’S PERSONNEL SECURITY

PROGRAM REGULATION

1. The Personnel Security Program affects

millions of citizens. Left undisturbed, the Court of

Appeals’ decision would grant to literally tens of thou-

sands of DOD military and civilian supervisors a license

to rummage. For this reason alone, if Judge Tatel is

correct and the majority below erred, review here is

essential.

The majority took issue with Lt Col Bigelow’s

claim—endorsed by Judge Tatel and not disputed by the

government—that the District Court’s decision would

dramatically expand the number of people who would be

under a duty to inspect others’ security files. Nonethe-

less, the majority argued that

[gliven these circumstances it is an over-

statement to suppose, as our dissenting

colleague does, that our decision “has

dramatically expanded the number of peo-

ple’’ 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.

Pet. App. 4a-5a.

The clear implication is that the decision of the District

Court (and, by extension, that of the Court of Appeals)

is “no big thing.” In addition to having nothing to do

with whether the Privacy Act had been violated, this

implication is simply untrue.

The Personnel Security Program applies to all

members of the armed forces (other than the Coast

Guard in peacetime), all civilian DOD employees, all

defense contractor employees, and all “other personnel

who are affiliated with” DOD. 32 C.F.R. § 154.2(b).?

This describes literally millions of Americans.* “At the

end of fiscal year 1998, about 2.4 million DOD active

duty military, civilian, and contractor employees held

personnel security clearances: 96,000 employees held

2 The only exception is that unfavorable administrative

action procedures for contractor personnel are separately

prescribed in 32 C.F.R. Pt. 155.

* As of last year, there were 1.37 million military personnel

on active duty, 1.35 in the ready and standby reserves, and

703,000 civilian DOD employees. DOD, Defense Almanac (1999),

< www.defenselink. mil/pubs/almanac/>.

confidential clearances, 1.8 million held secret clearanc-

es, and 524,000 held top secret clearances.”” GAO,

National Security and International Affairs Div., DOD

Personnel: Inadequate Personnel Security Investigations

Pose National Security Risks (Letter Report, Oct. 27,

1999, GAO/NSIAD-00-12), at 3.

The Court of Appeals majority’s hunch that the

supervisors of these millions do not “regularly receive

information casting doubt on their trustworthiness” has

absolutely no foundation. Given the sheer number of

affected individuals, a regular flow of such cases seems

highly likely, and such information as there is confirms _

this. DSS closed about 1,100 cases per day during the

first quarter of FY 2000. GAO, Audit Report, Security

Clearance Investigative Priorities, Rep. No. D-2000-11

(Apr. 5, 2000), at 6.‘ Looking only at one category of

those covered by the regulation, “‘[a]pproximately 12,000

contractor cases a year are normally sent” from DSS to

DOD’s Office of Hearings and Appeals. Statement of

Harold J. Kwalwasser, Dep. Gen. Counsel for Legal

Counsel, DOD, Hearing before the Senate Comm. on

Armed Services, Apr. 6, 2000, at 5, <www.senate.gov-

/~ armed_services/statemnt/2000/000406hk.pdf>.

The majority below also sought to downplay the

magnitude of the change worked by its decision by

; “ The massive scale of the Personnel Security Program is

apparent from the fact that the backlog of PRs was estimated

earlier this year at 600,000. Statement of Carol R. Schuster,

Assoc. Dir., National Security Preparedness Issues, National

Security and International Affairs Div., GAO, Hearing before

the Senate Comm. on Armed Services, Apr. 6, 2000, at 2,

<www.senate.gov/~ armed_services/statemnt/2000/000406cs.-

pdf>; see also Edward T. Pound, Security Clearance Backup

Continues, USA Today, Aug. 25, 2000, at 8A, col. 2 (noting

interagency dispute over size of backlog).

treating as one of (if not the) operative circumstances

(Pet. App. 4a) the fact that Col Noyes “‘had a need to

examine the file in view of the doubts that had been

raised in his mind about [Lt Col] Bigelow and [Lt Col]

Bigelow’s access to the country’s top secrets.’ This

seriously misconceives the issue. Col Noyes’s alleged

need to know is said to have rested on a duty to monitor

Lt Col Bigelow’s trustworthiness. But that duty would

have existed independent of any “doubts that had been

raised in [Col Noyes’s] mind.”’ In other words, the scope

of the change at issue must be gauged in light of the

broader duty, whatever it was, rather than the particu-

larized circumstance that Col Noyes had his doubts.°

> The Court of Appeals’s citation to Britt v. Naval Investi-

gative Service, 886 F.2d 544, 549 n.2 (3d Cir.), even with the

telltale ‘‘see” signal and dictum parenthetical, Pet. App. 4a, is

generous. Although the Third Circuit commented that disclo-

sure of a criminal investigation file (not a security file) to a

commanding officer (not a mere supervisor) “would appear to

fall within the ‘right [sic] to know’ provision” of the Privacy

Act, it made no effort to test the claimed need to know against

the specifics of the applicable agency regulation, and noted that

the disclosure was “‘no longer challenged.”

® The majority's response to Judge Tatel’s description of the

sweeping effect of the decision subtly misstates an important

element in his analysis. He properly assessed the impact of the

decision in terms of supervisors’ “duty to examine highly

sensitive personnel security files,” Pet. App. 14a (emphasis

added), while the majority incorrectly paraphrases him (Pet.

App. 4a) as having referred to ““the number of people’ within

the military who may examine personnel files.” (Emphasis

added.) By the majority’s logic, that “‘may” is really a “‘must.”

As a result, the impact of the decision must be gauged against

the entire class of supervisors, not merely whatever subset may

at one time or another harbor doubts about a subordinate. Note

also that it is not simply supervisors “in the military” who

2. On the merits, Judge Tatel described the

majority’s interpretation of the regulation as ‘‘counterin-

tuitive.” Pet. App. 7a. He was being charitable. Whether

an individual has a Privacy Act ‘‘need to know” is not

something that can be determined in the abstract, either

by reference to intuition based on long-past personal

experience (as Judge Jackson had done), Pet. App. 37a,

or from other cases (as the majority did at least in

part).’ Rather, it depends upon the regulatory text, the

philosophy underlying the regulations as stated by the

issuing agency, and the particular individual’s job. The

Court of Appeals failed on all three counts.

DOD has established a complex system both for

ensuring on a continuing basis that only those who are

would have such a duty; civilian DOD supervisors as well as

defense contractor supervisory employees would be under the

same duty.

” Because Pippinger v. Rubin, 129 F.3d 519, 529-30 (10th

Cir. 1997), cited at Pet. App. 4a, involved the IRS, it adds

nothing to the conversation insofar as the proper construction

of DOD’s regulation is concerned. Moreover, in direct contrast

to the responsibilities said to have been imposed on the IRS

employees to whom the information there at issue was disclosed,

Col Noyes had no investigative function. Under DOD’s regula-

tion investigations are {. be conducted by designated DOD

subagencies. 32 C.F.R. §§ 154.9(a), -(c)(3). While Hernandez v.

Alexander, 671 F.2d 402, 410 (10th Cir. 1982), also cited at Pet.

App. 4a, arose within the Army, it makes no reference to DOD’s

Personnel Security Program regulation, and simply states

conclusorily that ‘“‘Lenko and Samaniego had need of plaintiff’s

EEO files in performance of their duties,” which “included

advising the White Sands [Missile Range] command group

concerning personnel matters.” Neither of them was a mere

supervisor, see id. at 408-09, unlike Col Noyes, and the case had

nothing to do with Hernandez’s security file. With good reason

the government never cited either of these cases below.

trustworthy may have access to the Nation’s secrets and

for safeguarding the highly sensitive personal informa-

tion it must possess in order to achieve that first objec-

tive. Given the clear evidence that DOD intended the

regulation to be part of a system that “scrupulously

protect(s]’’ Privacy Act information and contemplates

“the highest degree of discretion,” see pp. 4-5 supra,

those principles should have informed the Court of

Appeals’ analysis and led it to apply a hard look to any

reading that defeats the statutory and regulatory

protections and opens floodgates of access. Instead, the

Court of Appeals majority read DOD’s regulation loosely

and without regard to the department’s advertised

purposes and orientation.

DOD’s regulation goes into detail as to the role of

supervisors. That role does not include snooping in

others’ security files even where the supervisor “has his

doubts.” If all supervisors indeed have a need to know

the contents of their supervisees’ security files, one

would expect to find that simple proposition set forth in

haec verba in agency regulations. But there is no hint of

such a sweeping rule in the regulation DOD fashioned.

Where the drafters intended to permit supervisors to

have access to supervisees’ security information, they did

so explicitly and under narrow constraints.’ Under the

® Section 154.60(c)(1) addresses supervisory responsibility for

evaluating continued security eligibility:

In conjunction with the submission of PR’s

[Periodic Reinvestigations, see § 154.3(q)] stated

in § 154.19, and paragraph 5, Appendix A,

supervisors will be required to review an indivi-

dual’s DD Form 398 to ensure that no signifi-

cant adverse information of which they are

aware and that may have a bearing on subject’s

familiar expressio unius canon of construction, e.g.,

Christensen v. Harris County, 120 S. Ct. 1655, 1660-61

(2000); O’Melveny & Myers v. F.D.I.C., 512 U.S. 79, 86

(1994), the fact that the regulation limits supervisor

access with such particularity disposes of the notion that

supervisors enjoy a roving commission to access subord-

inates’ entire security files.

The regulation includes a variety of express

provisions that rule out vigilante action like Col Noyes’s.

Personnel security investigations are the exclusive prov-

ince of DSS.° Allegations of possible criminal activity,

are carved out of the mandatory referral to DSS, 32

C.F.R. §§ 154.9(c)(3)-(4), and must be referred, in the

case of uniformed personnel, to the appropriate Military

Criminal Investigative Organization. Id. § 154.9(c)(4).

Under § 154.9(c)(3), which is especially pertinent

because it concerns personnel security investigations

conducted after there has been a determination of an

continued eligibility for access to classified

information is omitted.

Col Noyes’s access was not authorized under this provision

because his review of Lt Col Bigelow’s security file was not

confined to DD Form 398, which is merely a questionnaire

completed by the individual seeking a clearance. Col Noyes was

permitted to examine Lt Col Bigelow’s entire security file,

including raw investigative data. Moreover, Col Noyes’s review

was not “‘[i]n conjunction with the submission of” a PR.

® DSS “provides a single ceutrally directed personnel

security investigative service to conduct personnel security

investigations within the 50 States, District of Columbia, and

Commonwealth of Puerto Rico. . . . No other DoD Component

shall conduct personnel security investigations unless specifically

authorized by the Deputy Under Secretary of Defense for Policy.”’

32 C.F.R. § 154.9(a) (emphasis added).

individual’s eligibility for access to classified information

or retention in a sensitive position, derogatory suitability

allegations ‘‘shall be referred to [DSS] to conduct a

Special Investigative Inquiry.” Self-help by every

supervisor is simply not part of this pervasively regulat-

ed field.

Under the heading ‘“‘Continuing Security Respon-

sibilities,’’ the regulation provides that ‘‘[t]he responsi-

bility for [continuing assessment of trustworthiness after

a clearance has been issued] must be shared by the

organizational commander or manager, the individual’s

supervisor and, to a large degree, the individual him-

self.” Id. § 154.60(a). But the term “share”’ is clearly

used only to recognize that a number of officials may be

involved in the overall process of continuing assessment,

not to say that there are no boundary lines that distin-

guish the individual roles of the participants. Col

Noyes’s “‘share” in the “‘shared responsibility’”’ was to

refer allegations of misconduct to his commander to

determine whether investigation was called for.

The Court of Appeals majority’s reliance on §

154.55(b)(1)"° is entirely misplaced. That section merely

calls for derogatory information to be reported to the

proper authority. It is perverse to read this duty to

report information that is “developed” or “become(s]

‘available’”’ as carrying within it an affirmative, anteced-

ent obligation to search out such information even if

10 Whenever derogatory information relating to

the criteria and policy set forth in § 154.7(a)

and Appendix H of this part is developed or

otherwise becomes available to any DoD ele-

ment, it shall be referred by the most expedi-

tious means to the commander or the security

officer of the organization to which the individ-

ual is assigned for duty.

that information is, as here, already in the hands of

security personnel. If Col Noyes had ‘‘doubts,” his duty

was to report them to those responsible for investiga-

tion.

3. Allowing a supervisor—even one with

“‘doubts’’—to rummage in the sensitive files held by the

JSSO makes a hash of the process and the institutional

relationships established by DOD’s regulation. Under §

154.55(b)(1), derogatory information must be referred to

either the security office—here, the JSSO—or the com-

mander. Under the Court of Appeals majority’s reading,

if a supervisor, having been permitted to review others’

security files held by the security office, found something

he thought was derogatory, he would have to do one of

two things: refer it to the security officer or refer it to

the commanding officer. It obviously makes no sense to

refer something to the security office that is already in

that office’s ken. And for a supervisor—not assigned to

the security office—to refer matter he has seen in that

office’s own files to the commanding officer would

permit every supervisor to second-guess the trained

experts and interject himself between the security officer

and the commanding officer. Either way, the majority’s

view of the duties of a supervisor subverts the regula-

tion’s careful allocation of tasks, not to mention DOD’s

assurances that investigative information will be “‘scru-

pulously protected” and handled ‘“‘with the highest

degree of discretion.’”’ The regulation, as Judge Jackson

observed, may be “turgid,”’ Pet. App. 37a, but it still

deserves far more respectful treatment than the majority

below afforded it.

4. Even now, it is unclear that anyone at the

JSSO actually made the requisite need to know determi-

nation. Although Col Noyes, who was not assigned to the

Te a Oe eT ce

JSSO, claimed he had a need to know the contents of Lt

Col Bigelow’s security file, Pet. App. 90a (9 6), nothing

in his declaration indicates that he explained the factual

basis for that claim to the person who afforded him

access to the file. Id. (1 5). Describing his interaction

with the JSSO, Col Noyes states:

(5) Consequently, I went to the

[JSSO] and requested Major Bigelow’s

personnel security file because it was my

considered opinion that he was lying about

certain aspects of his past. The procedure

is such that a personnel security specialist

will access the file and then review it with

the supervisor, provided that the supervi-

sor has the appropriate clearance level,

which I did. . . . Id.

But he never says that the security specialist made a

need to know determination or even was made aware of

the facts on which Col Noyes claims to have had a need

to know. Tellingly, the government never submitted any-

thing from the JSSO in support of its-motion for sum-

mary judgment. Both aspects of the case—Col Noyes’s

claimed need to know and judicial deference to a post

hoc rationalization, see Point II infra—thus share a fatal

defect: the record contains nothing from a competent

agency official as to either one.

While the District Court rules de novo when an

agency asserts a need to know defense, the judicial

process would plainly benefit if the court were able to

review the custodian’s statement of the facts that were

taken into account at the time of disclosure. ‘“‘The

releasing official, normally the records custodian, should

determine whether it is a valid agency function and

whether the information is actually needed to perform

RETESET

rrr

STE a

the function.’”’ John F. Joyce, The Privacy Act: A Sword

and a Shield But Sometimes Neither, 99 MIL. L. REv.

118, 147 (1983). Without a statement from that official,

the court is placed in the unacceptable position of having

to take a possible.wrongdoer’s self-serving word and, in

the sense that the main player (the records custodian)

was AWOL, allow Hamlet to proceed without the Prince.

Cf. Kargman v. Sullivan, 552 F.2d 2, 4 (1st Cir. 1977);

Tampa Phosphate R.R. v. Seaboard Coast Line R.R., 418

F.2d 387, 396 n.6 (5th Cir. 1969), cert. denied, 397 U.S.

910 (1970).

Admittedly, DOD is a party here, but the individ-

ual who allowed Col Noyes to examine Lt Col Bigelow’s

file (and had a duty to make a need to know determina-

tion before doing so) has never even been identified,

much less submitted a sworn statement that Lt Col

Bigelow could test through normal discovery. Without

knowing that individual’s rank, for example, it is

impossible to determine whether Col Noyes’s seniority

permitted him to exert undue influence over the custodi-

an. Cf. Meehan v. Macy, 392 F.2d 822, 838 (D.C. Cir.

1967) (‘‘as the Ensign said to the Admiral, ‘Your every

wish is my command’’’), modified, 425 F.2d 469 (1968),

reinstated in part, 425 F.2d 472 (1969) (en banc) (per

curiam).

The need for something from the official responsi-

ble for maintaining security files is further underscored

by the government’s repeated insistence that “even if

Colonel Noyes went unsupervised into the security office

through a window in the dead of night to review the

files in violation of a hundred written procedures, he

still had a ‘need for the record.””"’ The use of stealth

“' Motion for Summary Reversal at 6 n.6; Opp. to Pl. Motion

to Conduct Limited Discovery at 5.

or other unauthorized procedures would be highly

probative, albeit circumstantial, evidence that he did not

in fact have a need to know. Requiring a statement from

the custodian would help identify cases in which release

was irregular.

For these reasons, DOD’s evidentiary submission

was inadequate to support summary judgment and it

was improper to deny Lt Col Bigelow the basic discovery

to which every litigant is entitled.

THE DECISION BELOW CONFLICTS

_ WITH BOWEN BECAUSE IT DEFERS TO

AN INTERPRETATION THAT HAS NEVER

BEEN ANNOUNCED OR EMBRACED BY

ANY POLICY-LEVEL OFFICIAL

Perhaps sensing that its own analysis was insuffi-

cient to carry the day, the majority below claimed that

even if it “were somewhat less sure of [its] reading of

the Defense Department’s regulations, the interpretation

advanced in the Department’s brief would still carry the

day.”’ Pet. App. 5a. As Judge Tatel explained, however,

reliance on that interpretation conflicts with Bowen. See

also, e.g., Martin v. OSHRC, 499 U.S. 144, 156 (1991);

Pet. App. 7a, 10a-12a, 22a. This is not a case in which

deference is owed to an agency’s interpretation of its

own regulation: here there has been no such interpreta-

tion. Neither Col Noyes nor the United States Attorney’s

Office is competent to issue a deference-incurring

interpretation. Col Noyes was not assigned to security

duties and there is no reason to treat his claim that he

had a need to know as anything other than a personal

view. What is more, since it is his conduct that is at

issue, his claim (which Lt Col Bigelow was never allowed

to test through discovery) is transparently self-serving.

As an Army officer (one of thousands), Col Noyes

at least was part of the Defense Department. The United

States Attorney’s Office cannot even claim this status.

Nor can it claim that its submissions here and below

reflect a “fair and considered” agency judgment, Auer,

supra, 519 US. at 462, since at no time during this

litigation has any policy-level official publicly evinced

concurrence with the views that have been asserted in

DOD’s name. :

The Court of Appeals majority’s reliance on Auer

in preference to Bowen is unjustified. In addition to the

reasons advanced by Judge Tatel, the agency interpreta-

tion to which this Court deferred in Auer, even though

it was articulated in the course of the litigation, had

vastly firmer indicia of agency-level approval than does

the reading adopted below at the behest of the United

States Attorney’s Office. Specifically, the government

position there was not only affirmatively requested by

the Court, 516 U.S. 1109 (1996) (mem.), and understood

to be the views of the Secretary of Labor, 519 US. at

461, but its brief amicus curiae bore the names of Acting

Solicitor (and Assistant Secretary) of Labor J. Davitt

McAteer and other Department of Labor attorneys above

those of the Acting Solicitor General, his Deputy and the

Assistant who argued the case. Brief for the United

States as Amicus Curiae, Auer v. Robbins, 1995 U.S.

Briefs 897 [LEXIS], No. 95-897 (U.S.).””

2 In the airbags case, where the majority thought “‘the

agency’s views should make a difference,” Geier, supra, 120 S.

Ct. at 1926-27; compare id. at 1941 (Stevens, J., dissenting), the

government’s position was of long standing and its brief bore

the names, among others, of the General Counsel of the Depart-

ment of Transportation and the Chief Counsel of the National

Waar eh ee ee ee ee ee ee

granted.

DECEMBER 2000

Conclusion

The petition for a writ of certiorari should be

Respectfully submitted,

EUGENE R. FIDELL

(Counsel of Record)

DAVID P. SHELDON

JAMES L. FELDESMAN

FELDESMAN, TUCKER, LEIFER,

FIDELL & BANK LLP

2001 L Street, N.W.

Washington, D.C. 20036

(202) 466-8960

Attorneys for Petitioner

Highway Traffic Safety Administration. Brief for the United

States as Amicus Curiae Supporting Affirmance, Geier v.

American Honda Motor Co., Inc., No. 98-1811, <www.usdoj-

.gov/osg/briefs/1999/3mer/lami/98-1811/mer.ami.html>,

APPENDIX

TABLE OF CONTENTS

Page

Decision of the Court of Appeals (July 14, 2000) .... la

Judgment of the Court of Appeals

Cy OG, De es aris hc ooo east, lda

Order denying rehearing (Oct. errr re 17a

en banc (corrected version) ................. 22a

Judgment of the District Court (June 11, 1999) 24a

Onder Gane 11,1808) ...................... 25a

Transcript of proceedings in the District Court

sty wt tts orcas he aa 26a

Privacy Act of 1974, 5 U.S.C. § 552a (1994)

RES Oe Saleen rai maees 40a

Dep’t of Defense Personnel Security Program,

32 C.F.R. Pt. 154 (2000) | | re 58a

A RRS ASIA ae ae aoa: 58a

ES DE Sar an og eR 58a

De are ANY 1 et 65a

ee JA I SE i a a 69a

AEE EPG aa el pee eg 70a

era ey en 75a

ES ron tiga 1 el eh Sam oe 77a

ARES ar A COS DAS Ne nol an fa 8la

NEE are mi Or ra slat oth 82a

ane ee meeneimnls 82a

SRR ee arent O-gald manaeer Eanes 83a

MG Pee res gk yuh ee 84a

Dep’t of Defense Privacy Program,

32 C.F.R. Pt. 310 (2000) (excerpt) ............ 86a ;

fo Terr Ce ee eeee ios oe :

Letter from Edmund F. McBride, Chief,

Information Management Division,

Secretariat, Joint Staff (Aug. 19,1997) ........ 87a

Declaration of Col Nathan W. Noyes

a ee a Peper re rrr ey oar eS eee 89a

Affidavit of Steven D.C. Bigelow in Support of

Plaintiffs Motion to Conduct Limited Discovery

CEE Oe, SOE 6 eed es Ke eee eee 9la

(ii)

Gnited 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

Department of Defense, Appellee

Appeal from the United States District Court

for the District of Columbia

(98cv00535)

Eugene R. Fideli 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 Lewrence,

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 Information Warfare and Special Technical Opera-

tions 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 securi-

ty 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)(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.

At the Pentagon, “personnel security investiga-

tive 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 s 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.” Amend-

ed Complaint 1 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 “‘responsi-

bility for such assessment must be shared by the organi-

zational 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 Tatel asserts that despite the unconditional word-

ing 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 trust-

worthiness 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 exemp-

tion 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 exam-

ined 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 circum-

stances it is an overstatement to suppose, as our dissent-

ing colleague does, that our decision “has dramatically

expanded the number of people”’ within the military who

may examine personnel files. Dissenting op. at 881.

RPE Ft ends ee

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 informa-

tion casting doubt on their trustworthiness.

Bigelow points to § 154.55, which gives command-

ers, 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 adjudicato-

ry scheme for revoking or suspending security clearanc-

es. 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 presum-

ably 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, 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 ofa regulation—-appeared

only in a legal brief. Auer does not require an agency to

demonstrate affirmatively that its interpretation repre-

sents its fair and considered judgment. See id. Nor must

an agency’s litigating position represent some “‘long-

standing agency practice.”’ Dissenting op. at 881 (quot-

ing 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 judg-

ment.’’ 519 U.S. at 462. Like the Auer Court, we have no

reason to suppose that the interpretation of the regula-

tions set forth by government counsel represents any-

thing 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.

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 judg-

ment. 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 informa-

tion 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 any-

where 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-ma-

king responsibility, Auer v. Robbins, 519 US. 452, 462

(1997), Supreme Court and circuit precedent preclude us

from deferring to it. See, e.., Bowen v. Georgetown

Univ. Hospital, 488 U.S. 204, 213 (1988); Akzo Nobel

Salt v. FMSHRC, 212 F.3d 1301 (D.C. Cir. 2000).

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 protec-

tion, Defense Department regulations provide:

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 re-

quire such information.

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; trans-

mitted 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: “‘determin-

ing 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. Jd. § 154.67(b). But ‘‘[rJank, position, or

title alone do not authorize access to personal informa-

tion about others. An official need for the information

must exist before disclosure.” Jd. § 310.41(a)(2).

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 N oyes 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 responsi-

ble for reviewing the information and determining

whether Bigelow’s conduct required further investiga-

tion. Id. § 154.9 (“No other DoD component [other than

the Defense Investigative Service] shall conduct person-

nel security investigations unless specifically authorized

by the Deputy Under Secretary of Defense for Policy.’’)

x a oe

Citing section 154.60 of the regulations, my

colleagues conclude that Noyes had an “official need”

for access to Bigelow’s file because “Cajn ‘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 877 (quoting 32 C.F.R. § 154.60(a)). Al-

though 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 regula-

tions protect the privacy of personnel security files by

10a

providing access only to certain specified officials (com-

manders 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 Depart-

ment regulations, interpreted “‘shared”’ responsibility to

mean that supervisors are “designated DoD officials who

require access in connection with specifically assigned

personne! 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 “‘[dJefer-

ence 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 Secre-

tary’s interpretation in Aver 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.”” Aver, 519

U.S. at 462 (internal quotation marks and citation

omitted). See also Martin v. OSHRC, 499 U.S. 144, 156

lla

(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 review-

ing court.”) (internal quotation marks omitted); Akzo

Nobel Salt, 212 F.3d at 1304 (“{CJourts . . . 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 regula-

tion’s clear ambiguity.”” Akzo Nobel Salt, 212 F.3d at

1305.

Bowen, not Auer, controls this case. The record

indicates that the Secretary of Defense has never ““grap-

pled with” or “exercised [his] judgment over .. . the

12a

conundrum posed by [this] regulation’s clear ambigu-

ity”: whether all supervisors have a per se duty to

review the personnel security files of employees they

supervise. Jd. 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 Aver,

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.’”’ Aver, 519 US. at 462.

Of course, we could rely on the government’s

appellate brief alone if its interpretation of the regula-

tion reflected the agency’s “‘fair and considered judg-

ment.”’ 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

13a

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

1204, nor is there any indication that the Department

“in practice . . . has, at least implicitly, followed the

same interpretation that it advances on appeal.”’ Nation-

al 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 interpreta-

tion 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).

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 878. The point is that we

have good “reason to suspect that this interpretation

does not reflect the agency’s fair and considered judg-

ment” (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 inter-

pretation 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), “[iJn whatever context we defer to

l4a

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.”

For these reasons, I believe that the U.S. Attorn-

ey’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 Ameri-

ca, 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.

15a

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 99-5280 September Term, 1999

Steven D.C. Bigelow, Appellant

Vv.

Department of Defense, Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 98cv00535)

Before: GINSBURG, RANDOLPH and TATEL, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the record on

appeal from the United States District Court for the

District of Columbia and was argued by counsel. On

consideration thereof, it is

ORDERED and ADJUDGED, by the Court, that

the judgment of the District Court appealed from in this

cause is hereby affirmed, in accordance with the opinion

for the Court filed herein this date.

16a

FOR THE COURT

Mark J. Langer, Clerk

BY: /s/

Robert A. Bonner

Deputy Clerk

Date: July 14, 2000

Opinion for the Court filed by Circuit Judge Randolph.

Dissenting opinion filed by Circuit Judge Tatel.

17a

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 99-5280 September Term, 2000

98cv00535

Filed On: OCT 13 2000 [stamp]

Steven D.C. Bigelow, Appellant

Department of Defense, Appellee

BEFORE: Ginsburg, Randolph and Tatel, Circuit

Judges.

ORDER

Upon consideration of appellant’s petition for

rehearing filed August 28, 2000, and of the response

thereto, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT

Mark J. Langer, Clerk

BY: /s/

Robert A. Bonner

Deputy Clerk

Circuit Judge Tatel would grant the petition for

rehearing.

18a

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 99-5280 September Term, 2000

98cv00535

Filed On: OCT 13 2000 [stamp]

Steven D.C. Bigelow, Appellant

Department of Defense, Appellee

BEFORE: Edwards, Chief Judge; Silberman,

Williams, Ginsburg, Sentelle, Henderson, Randolph,

Rogers, Tatel and Gerland, Circuit Judges.

ORDER

Appellant’s petition for rehearing en banc and the

response thereto have been circulated to the full court.

The taking of a vote was requested. Thereafter, a

majority of the judges of the court in regular active

service did not vote in favor of the petition. Upon

consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

19a

FOR THE COURT

Mark J. Langer, Clerk

BY: /s/

Robert A. Bonner

Deputy Clerk

A statement of Circuit Judge Tatel dissenting

from the denial of rehearing is attached.

20a

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 99-5280 September Term, 1999

FILED OCT 25 2000 [stamp]

Steven D.C. Bigelow, Appellant

Department of Defense, Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 98cv00535)

Before: EDWARDS, Chief Judge; SILBERMAN,

WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RAN-

DOLPH, ROGERS, TATEL and GARLAND, Circuit Judges.

ORDER

It is ORDERED that the statement of Judge

Tatel dissenting from the denial of rehearing en banc,

attached to the Court’s Order denying rehearing en

banc, filed October 13, 2000, is amended as follows:

At lines 6 and 7 of the second paragraph, replace

the words “‘lawyer signed”’ with “‘lawyer’s name appears

as of counsel on.”

BY:

2la

FOR THE COURT:

Mark J. Langer, Clerk

/s/

Deputy Clerk

22a

{Corrected Version]

Statement of TATEL, Circuit Judge, dissenting

from the denial of rehearing and rehearing en banc:

Contrary to Bowen v. Georgetown University

Hospital, the panel decision defers to ““what appears to

be nothing more than an agency’s convenient litigating

position.” 488 U.S. 204, 213 (1988). Unlike in Auer v.

Robbins, 519 U.S. 452, 461-63 (1997), and Geier v.

American Honda Motor Co., 120 S. Ct. 1913, 1926-27

(2000), the high-water marks of deference to litigating

positions, here the agency’s own conduct is at issue and

the proposed interpretation of section 154.60 was offered

not only in defense of that conduct, but also for the first

time in this case. Under such circumstances, the record

must contain some evidence that the proposed inter-

pretation reflects the agency’s fair and considered

judgment. Otherwise, the interpretation represents

nothing more than a “‘post-hoc rationalization advanced

.. . to defend past agency action against attack.” Auer,

519 US. at 462.

To support its proposed interpretation of section

154.60, the government’s brief cites only the affidavit of

the very Department of Defense official whose conduct

Bigelow challenges. The record, moreover, contains no

evidence either of longstanding agency practice consis-

tent with the government’s interpretation of section

154.60 or of implicit agency reliance upon that interpre-

tation, nor did Department of Defense attorneys sign the

appellate brief. See Bigelow, 217 F.3d at 881. Although

the government has now informed us that an Air Force

lawyer’s name appears as of counsel on the motion to

dismiss in the district court, see Opposition to Appel-

lant’s Petition for Panel Rehearing and for Rehearing

23a

En Banc at 4, that is hardly sufficient to transform an

interpretation of a regulation advanced for the first time

as a defensive litigating position into a considered

agency judgment worthy of deference.

24a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STEVEN D.C. BIGELOW

Plaintiff

v. Civil Action No. 98-

535

DEPARTMENT OF DEFENSE.

Defendant FILED: JUN 11, 1999

JUDGMENT FOR DEFENDANT

This cause having been considered by the Court

on defendants motion for summary judgment, before the

Honorable Thomas Penfield Jackson, Judge presiding,

and the issues having been duly briefed by all parties

and the court having rendered its decision granting

defendants motion, now therefore, pursuant to the

decision of the Court,

IT IS ORDERED, ADJUDGED AND DECREED

that the plaintiffSTEVEN D.C. BIGELOW. take nothing

on the complaint against the defendant DEPARTMENT

OF DEFENSE have and recover costs from the said

plaintiff.

NANCY MAYER-WHITTINGTON,

Clerk

Dated: 6-11-99 By: /s/

Robert E. West, Deputy Clerk

RARE. ee enn ne mene re ee ero

25a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STEVEN D.C. BIGELOW,

)

Plaintiff, )

)

v. ) Civil Action

No. ) 98-0535 (TPJ)

DEPARTMENT OF DEFENSE, )

) FILED

Defendant. ) JUN 11, 1999

ORDER

In accordance with the proceedings at the May

13, 1999 hearing, upon consideration of defendant’s

motion to dismiss or,in the alternative, for summary

judgment, and the entire record herein, it is this 11th

day of June, 1999,

ORDERED, that defendant’s motion for summary

judgment is granted, and it is

FURTHER ORDERED, that the Clerk of Court is

directed to enter judgment in favor of defendant Depart-

ment of Defense and against plaintiff Major Steven D.C.

Bigelow, and it is

FURTHER ORDERED, that all pending motions

are denied as moot.

/s/

Thomas Penfield Jackson

USS. District Judge

26a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE THOMAS P. JACKSON

[June 11, 1999]

x-_ * *

Mary Price and David Sheldon for the plaintiff.

Mark Nebeker for the defendants.

Mr. Nebeker: also at counsel table with me is Mr.

Barry Walters. (Phonetics.)

The Court: All right. Let me ask you a question,

Mr. Nebeker. I have read the papers in the case. I take

it that Colonel Noyes was in the direct chain of com-

mand; is that correct?

Mr. Nebeker: That’s correct, your honor. In fact,

the complaint specifically says he was a supervisor to the

plaintiff.

The Court: Let me hear from Ms. Price first, if

you will.

Ms. Price, I cannot understand how anybody

would be more in necessity of knowing pertinent back-

ground information about a military officer than his

commanding officer.

Ms. Price: But he wasn’t his commanding officer.

He was his supervisor, your honor.

27a

The Court: Well. all right.

Ms. Price: And there are only particular people

who are given access to this information. Commanding

officers are given access to the information in order to

assess the person’s eligibility for access to information in

the particular command.

Supervisors are not, your honor. And paragraph

10-100 of the regulation is very clear about that. It

doesn’t say supervisors cannot, but it lays out very

specifically who can, and the people who can are those

who provide access—who provide the permission for

access.

Paragraph 7-102 says those are commanders.

*- * *

Ms. Price: Supervisors, your honor—it’s clear

from the regulations in paragraph 9-100 that supervisors

do have a role in the process. They have a role in the

assessment process for an individual. However, what

the supervisors’ role is, is when they receive adverse

information, under paragraph 2-402 of the regulation,

what they are to do is to refer that information directly

to the defense investigative service, which then makes

the decision whether or not it’s going to conduct an

investigation and determine whether or not the allega-

tions are founded or unfounded.

Paragraph 10-100, your honor, states that person-

nel security investigative reports may be used only for

the purpose of determining eligibility of DOD military

personnel, and other persons affiliated, for access to

classified information, assignment or retention.

28a

Paragraph 7-102 states that access to classified

information shall be granted to persons whose official

duties require such access.

It is not an adjudicative function. In other words,

it’s not the clearance so much, your honor, but rather

those are decisions that are made by the commander

that acts, as is officially required—not the supervisor.

The Court: Well, who would be making an

assignment to your client which would require his access

to classified information?

Ms. Price: The commander at the Joint Staff was

responsible—

The Court: Then what was Noyes’ function?

Ms. Price: Noyes was his supervisor in the office

in which he was operating, the Information Warfare and

Special Technical Operations. I don’t think he was the

chief of that office, because he was not the person ulti-

mately who suspended my client’s access and had him

removed from the Joint Staff office.

In fact, what’s interesting about this, your honor,

is that initially apparently Colonel Noyes attempted to

do the right thing. He made a referral to, I think, the

Air Force Office of Special Investigations. They declined

to investigate the allegations of misconduct. And that’s

when he took matters into his own hands and he went

to the Joint Staff office, and according to some proce-

dure, which we don’t know about and we had asked for

discovery on, he was able to gain access to the file.

29a

What else is interesting is whose declaration we |

don’t have is the declaration of Joint Staff Security %

Officer, who provided him access in the first place, if

because that is really the missing link in this case—that

individual—because it is that individual who, we con-

tend, did not have a basis for believing that his action

was grounded in law—that he had a lawful basis for

providing this information to a mere supervisor.

Otherwise, access would be available to anybody.

I mean anybody in the chain would have access to very,

very personal information. And the Privacy Act and

these regulations are very comprehensive protections

about very, very personal information.

This is information that, you know, a person

provides because they are entrusted with very important

secrets. As a consequence of being entrusted with those

secrets, they have to give up some pretty important

secrets themselves. And that information should not be

available to anybody. And paragraph 10-100 again

makes that point very, very clearly.

“In recognition of the sensitivity of personnel

security reports, it is Department of Defense policy that

such personal information shall be handled with the

highest degree of discretion.”

And it says further on at paragraph 10-101, “‘the

heads of DOD Components and the Deputy Under Secre-

tary of Defense shall establish the internal controls to

ensure adequate safeguarding and limit access to and

use of personnel security reports.”

We would like discovery to find out what those

internal controls are, because we suspect, and we

EE ——EOEOO—EO——=SEE—OOOOOEOOEEeEEEeEeEeE=eeEOEOeeEeEeEeEee_eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee ee ee

30a

suggest, and we submit that those internal controls do

not provide access to supervisors at Colonel Noyes’ level.

Colonel Noyes also referenced in his affidavit a

procedure that he followed, but we have been unable to

determine what that procedure is. And we would also

need discovery to determine that information.

The Court: All right. What do you make of

paragraph 9-100 of the directive, which provides this

program should insure close coordination between

security authorities and personnel, medical, legal and

supervisory personnel to assure that all pertinent

information available within a command is considered in

the personnel security process?”’

Ms. Price: That paragraph is very important. It

doesn’t give carte blanche to people to go into investiga-

tive reports. What it does do is require of everybody

that they be a part of the assessment process.

Part of the assessment process is when you

receive adverse information about an individual, who is

entrusted with our nation’s secrets, you have to do

something with that.

You have to read the entire regulation together.

Paragraph 2-402 requires that when adverse information

is received, it’s not investigated. It is referred immedi-

ately to the defense investigative service. And that is

the agency that has the personnel who are qualified to

figure out is this information that makes a difference.

They do the investigation.

The Court: I am not sure that they are. Why

wouldn’t the supervisor be in the best position of all to

Sla

determine whether or not an individual represented a

security risk? The investigative service is skilled in

conducting investigations, not necessarily in assessing

the consequences of access to classified information.

Ms. Price: I am sorry, your honor. You’re correct

about that. What they do do is they produce reports that

have been evaluated initially by the central adjudication

facility, which is the agency, or the organization, or the

component that provides clearance in the first place, and

those reports, for the purpose of access, are provided to

the commander or to the command.

That is under paragraph 7-102.

The Court: you say Noyes was not the command-

er. Who was the commander? How far up the chain

was the person you identify as the commanding officer?

Ms. Price: The commander would be the person

who is in charge of the office in which he was involved,

which was the program security office—I am sorry—the

Special Operations Office of the Joint Staff. I’m SOrry.

We could, of course, use discovery as well on who

had access to the report and who was making decisions

on that report.

The Court: All right. Let me bear from Mr.

Nebeker.

Ms. Price: Thank you, your honor.

The Court: I think your client wants to talk to

you.

32a

Mr. Sheldon: I’m sorry. My name is David Shel-

don, your honor. I represent Steven Bigelow, who has

been promoted to lieutenant colonel very recently by an

act of the Secretary of the Air Force. I don’t think our

position was made.

The Court: Well, who is Ms. Price then? I

thought she represented Mr. Bigelow.

Mr. Sheldon: She does as well, your honor. I just

wanted to clarify for your honor that a commanding

officer in any particular unit makes a decision on

whether a person has access to classified information.

The individual—the particular individual—and the way

the regulations work is that a person has to apply to the

government to get a security clearance at any particular

level.

The Court: Your client already had a security

clearance. The question was whether or not he should

be allowed to avail himself of it.

Mr. Sheldon: That’s correct, your honor. And in

making that determination, a commanding officer cannot

access these security reports. He can take an indepen-

dent action and remove the person, based upon whatever

he believes is justified. He can do that, but what he

can’t do and what—there is a cloak around this informa-

tion that is very, very sensitive information that is

investigated, and then later, a group called the Central

Adjudication Facility—and each of the services has one

of these—-they make a determination about whether the

person has a security clearance at any particular level.

At that point, once the person is cleared up, he

doesn’t automatically have a right to get that informa-

33a

tion. He may have a top secret clearance. Until his

commanding officer says, “I give you the ability to see

this; you have a need to know this information”—then

that’s when he gets the information.

And Colonel Noyes had one thing that he could

have done—actually two things. He could have, when he

learned whatever information he learned—he could have

turned over to the Defense Investigative Service or the

Joint Staff Security Office—he could have said, “I just

found this information out, sir, and I want you to

investigate this. I want to make sure he doesn’t

have—that he is all right—that he is not a security

risk.’’ But what can[") happen is the Joint Staff Securi-

ty Officer to turn over information to Colonel N oyes and

say, ‘‘this is some other information that we found out.”’

And that’s exactly what happened in this case, your

honor.

So, your honor’s question is very, very important

in terms of what a supervisor can or can’t do. And I

understand that it’s a logical assumption that the

C.E.0.—the skipper of a ship has an obligation to assess

and everything. That is what the regulation Says.

That’s the specific paragraph that you said where the

supervisor provides information and cooperates with the

assessor.

That is true. He cooperates with the J.S.S.O., the

Joint Staff Security Office, or with the Defense Investi-

gative Service, or whoever it is, but what he doesn’t get

is the cloak of information behind there.

* Sic; should read ‘“‘cannot’’ (footnote added).

34a

It is an one-way flow of information. It’s not two

ways, and the reason that that’s so is because we don’t

want supervisors—the military doesn’t want supervisors

having access to this very, very personal information.

And that is universal within the regulation. And the

reason is because these supervisors have to assess a

person as far as their duty performance. They don’t

need to know that they have X, Y and Z.

The government has set up a separate compart-

ment, the Central Adjudication Facility, to make that

assessment on whether the person is entitled to a

security clearance.

The Court: All right.

Mr. Sheldon: I apologize, your honor.

The Court: All right, Mr. Nebeker.

Mr. Nebeker: I just have to take issue with that,

your honor. I look at 9-100. First of all, it talks about

the supervisor is included within the people that are

supposed to exchange information. It says that there is

a continuing responsibility to—a continuing assessment

has to be done of whether somebody should have access

to this classified type of information.

So it’s not just that, okay, he now has security

clearance that’s been given to him by this one compo-

nent, but that has to be ongoing. The whole purpose is

so that the military doesn’t—you don’t have a supervisor

saying, “‘hey, I know I found this derogatory informa-

tion, but it’s not my job to go find out whether he

should still have access to this classified information.”

That is exactly what the regulation is designed to

prohibit.

Let me just point out a couple of other things,

your honor. The plaintiff, through counsel, has now

argued that he didn’t have any role, once he passed that

information over.

The language from 9-100 says the information

should be shared. And there are a couple of other parts

of this DOD regulation that talk about how these stan-

dards should be applied, based on all available informa-

tion.

That’s found in paragraph 2-101, and I think also

in 2-200. In paragraph 2-306, it talks about Special

Investigative Inquiries. That is what apparently plain-

tiff alleges and I guess our declaration supports. Colonel

Noyes referred this matter for Special Investigative

Inquiry. Interestingly enough, under 2-306(c), if the

requester of an investigative inquiry isn’t satisfied, he

can then forward on to the Depu‘y Under-Secretary of

Defense for Policy his disagreement and get a higher

level of review of whether or not they are going to

investigate or what they are going to investigate. In

order to make that type of a determination, he, of

course, has to know whether this is the kind of thing he

wants to fight about, and the only way he can get that

is to fulfill his responsibility as the supervisor and see

what information they have.

If they know that—I am just going to pick a

hypothetical here—that Mr. Bigelow was lost near

enemy lines in wartime or something, and they couldn’t

figure out where he was, and they are trying to figure

out if he is, maybe, meeting with a spy—well, the fact

that he is missing once, it might be relevant to know

36a

whether they want to seek higher-level approval or

higher-level review of the decision not to investigate a

subsequent unexplained absence to find out if he had

ever done it before.

There is nothing wrong with that. And that, of

course, dovetails with the Privacy Act, which says that

records are able to be reviewed by employees within the

agency who have a duty to access the records in the

course of their employment. That’s exactly what this

supervisor was doing here.

There are a couple of other things that argue

against the idea that once you pass off the information,

you're done—the fact that under paragraph 8-102, there

is a mechanism whereby you can suspend an individual

or suspend their access to classified information.

That deals with the assignment. That doesn’t

deal with whether they have a clearance. That just

deals with whether they are going to get the informa-

tion. And if you’re waiting in the interim for a special

investigative inquiry to be conducted to determine

whether or not further inquiry is going to be made,

that’s the kind of thing that a super'visor has to decide.

“‘Am I going to let him into that office today to look over

that classified information?”

So I would argue to the court that based upon the

regulation itself, and the fact that the plaintiff has

admitted in the complaint that Noyes was the supervi-

sor, that the plaintiff had access to the nation’s most

sensitive secrets, and that Noyes learned of allegations

of misconduct that caused this whole thing to start up,

it seems like there is no—it seems to me there is no

doubt that they have failed to state a claim because, in

37a

essence, they shoot themselves in the foot when they say

he is a supervisor. And we know from the regs that the

supervisor has this ongoing responsibility.

The Court: Well, I wish the regs were a little

more explicit. It is rather turgid regulation writing.

Mr. Nebeker: I understand, your honor.

The Court: But intuitively, based upon, among

other things, my own personal military experience, I

know that if derogatory information had come to the

attention of my commanding officer, he would have said,

“Lieutenant, look into this and see whether or not there

is a basis to take seamen so and so off of assignment.”

Mr. Nebeker: Right. And that’s exactly—

The Court: It is so fundamental that I am

assuming that the regulation must say that.

Mr. Nebeker: Well, in fact, 9-100 does say that.

Now, also, I will point out, plaintiffs were talking

about discovery. They want to know what the proce-

dures are.

I asked if there were other written procedures on

how this is accomplished, and I found that there were

none. I would have filed them with the court. Maybe

they would have clarified for the court this rather

lengthy regulation, but the bottom line is the common-

sense approach. They say throughout the regulation

that it should be fulfilled using common sense, but also

with access to all available information. And it only

makes sense.

38a

Finally, the plaintiffs suggested that they needed

discovery in various areas. I would point out to the

court that we’re referring to the regulation, and I think,

to that extent, it’s the law. It’s written down. It’s not

in dispute. But if the court were inclined to go beyond

it and include the declaration that Colonel Noyes

included—of recent, the Court of Appeals has come down

with a couple of cases that suggest that the court has

discretion to grant summary judgment, even prediscov-

ery. This would be a perfect case for it. Those cases

include the Joann Carpenter case versus Federal Nation-

al Mortgage Association, 98-7170, from April of ‘99—Ap-

ril 27th of ’99 at page 8 of the slip opinion. And the

other one is Daniel M. Byrd, III, versus E.P.A., 98-

5180—

The Court: I don’t think discovery is necessary

in the case.

Mr. Nebeker: I would have to agree. I don’t

think the court abused its discretion in any way, shape

or form. When you look at the regulation and the

allegations in the complaint, it seems pretty clear to me

that this is exactly the kind of circumstance that the

Department of Defense intends a supervisor to investi-

gate—not to go out and interview witnesses and so

forth, but to gather the information available within the

command. And that’s exactly what was done here. And

we would submit that in light of that, our motion to

dismiss or for summary judgment should be granted,

your honor.

The Court: All right. I am going to grant the

motion. I suggest that you take it to the Court of Ap-

peals, and if I have misapprehended the import of the

regulations, they will let me know. They have shown no

39a

reluctance in the past to let me know.

Ms. Price: Thank you, your honor.

The Court: So I am sure that we’ll find out.

40a

PRIVACY ACT OF 1974

[Excerpts]

§ 552a. Records maintained on individuals

(a) Definitions.—For purposes of this section—

(1) the term “‘agency’’ means agency as

defined in section 552(e) of this title;

(2) the term “‘individual’’ means a citizen

of the United States or alien lawfully admitted

for permanent residence;

(3) the term “‘maintain’”’ includes main-

tain, collect, use or disseminate;

(4) the term “record’’ means any item,

collection, or grouping of information about an

individual that is maintained by an agency,

including, but not limited to, his education,

financial transactions, medical history, and

criminal or employment history and that contains

his name, or the identifying number, symbol, or

other identifying particular assigned to the

individual, such as a finger or voice print or

photograph;

(5) the term “system of records” means a

group of any records under the control of any

agency from which information is retrieved by

the name of the individual or by some identifying

number, symbol, or other identifying particular

assigned to the individuai;

*-_ * *

4la

(7) the term “routine use” means, with

respect to the disclosure of a record, the use of

such record for a purpose which is compatible

with the purpose for which it was collected;

* * *

(13) the term ‘‘Federal personnel” means

officers and employees of the Government of the

United States, members of the uniformed services

(including members of the Reserve Components),

individuals entitled to receive immediate or de-

ferred retirement benefits under any retirement

program of the Government of the United States

(including survivor benefits).

(b) Conditions of disclosure—No agency shall

disclose any record which is contained in a system of

records by any means of communication to any person,

or to another agency, except pursuant to a written

request by, or with prior written consent of, the individ-

ual to whom the record pertains, unless disclosure of the

record would be—

(1) 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;

'- + *

agency, with respect to each system of records under its

control, shall—

42a

(1) except for disclosure made under sub-

sections (b)(1) or (b)(2) of this section, keep an

accurate accounting of—

(A) the date, nature, and purpose of

each disclosure of a record to any person or to

another agency made under subsection (b) of this

section; and

(B) the name and address of the

person or agency to whom the disclosure is made;

(2) retain the accounting made under

paragraph (1) of this subsection for at least five

years or the life of the record, whichever is

longer, after the disclosure for which the ac-

counting is made;

(3) except for disclosures made under sub-

section (b)(7) of this section, make the accounting

made under paragraph (1) of this subsection

available to the individual named in the record at

his request; and

(4) inform any person or other agency

about any correction or notation of dispute made

by the agency in accordance with subsection (d)

of this section of any record that has been dis-

closed to the person or agency if an accounting of

the disclosure was made.

(d) Access to records.—Each agency that main-

tains a system of records shall—

(1) upon request by any individual to gain

access to his record or to any information per-

43a

taining to him which is contained in the system,

permit him and upon his request, a person of his

own choosing te accompany him, to review the

record and have a copy made of all or any portion

thereof in a form comprehensible to him, except

that the agency may require the individual to

furnish a written statement authorizing discus-

sion of that individual’s record in the accompany-

ing person’s presence;

(2) permit the individual to request am-

endment of a record pertaining to him and—

(A) not later than 10 days (exclud-

ing Saturdays, Sundays, and legal public

holidays) after the date of receipt of such

request, acknowledge in writing such

receipt; and

(B) promptly, either—

(i) make any correc-

tion of any portion thereof which

the individual believes is not accu-

rate, relevant, timely or complete;

(ii) inform the indi-

vidual of its refusal to amend the

record in accordance with his re-

quest, the reason for the refusal,

the procedures established by the

agency for the individual to request

a review of that refusal by the head

of the agency or an officer desig-

nated by the head of the agency,

44a

and the name and business address

of that official;

(3) permit the individual who disagrees

with the refusal of the agency to amend his

record to request a review of such a refusal, and

not later that 30 days (excluding Saturdays,

Sundays, and legal public holidays) from the date

on which the individual request such review,

complete such review and make a final determi-

nation unless, for good cause shown, the head of

the agency extends such 30-day period; and if,

after his review, the reviewing official also refus-

es to amend the records in accordance with the

request, permit the individual to file with the

agency a concise statement setting forth reasons

for his disagreement with the refusal of the

agency, and notify the individual of the provisions

for judicial review of the reviewing official’s

determination under subsection (g)(1)(A) of this

section;

(4) in any disclosure, containing informa-

tion about which the individual has filed a state-

ment of disagreement, occurring after the filing

of the statement under paragraph (3) of this

subsection, clearly note any portion of the record

which is disputed and provided copies of the

statement and, if the agency deems it appropri-

ate, copies of a concise statement of the reasons

of the agency for not making the amendments

requested, to persons or other agencies to whom

the disputed record has been disclosed; and

(5) nothing in this section shall allow an

individual access to any information compiled in

45a

reasonable anticipation of a civil action or pro-

ceeding.

(e) Agency requirements——Each agency that

maintains a system of records shall—

(1) maintain in its records only such infor-

mation about an individual as is relevant and

necessary to accomplish a purpose of the agency

required to be accomplished by statute or by

executive order of the President;

(2) collect information to the greatest

extent practicable directly from the subject

individual when the information may result in

adverse determinations about an individual's

rights, benefits, and privileges under Federal

programs;

(3) inform each individual whom it asks to

supply information, on the form which it uses to

collect the information or on a separate form that

can be retained by the individual—

(A) the authority (whether granted

by statute, or by executive order of the

President) which authorizes the solici-

tation of the information and whether

disclosure of such information is mandato-

ry or voluntary;

(B) the principal purpose or purpos-

es for which the information is intended

to be used;

46a

made of the information, as published

pursuant to paragraph (4)(D) of this sub-

section; and

(D) the effects on him, if any, of

not providing all or any part of the re-

quested information;

(4) subject to the provisions of paragraph

(11) of this subsection, publish in the Federal

of the existence and character of the system of

records, which notice shall include—

(A) the name and location of the

system;

(B) the categories of individuals on

whom records are maintained in the sys-

tem;

tained in the system;

(D) each routine use of the records

contained in the system, including the

categories of users and the purpose of

such use;

(E) the policies and practices of the

agency regarding storage, retrievability,

access controls, retention, and disposal of

the records;

47a

(F) the title and business address of

the agency official who is responsible for

the system of records;

(G) the agency procedures whereby

an individual can be notified at his re-

quest if the system of records contains a

record pertaining to him;

(H) the agency procedures whereby

an individual can be notified at his re-

quest how he can gain access to any re-

cord pertaining to him contained in the

system of records, and how he can contest

its content; and

(I) the categories of sources of re-

cords in the system;

(5) maintain all records which are used by

the agency in making any determination about

any individual with such accuracy, relevance,

timeliness, and completeness as is reasonably

necessary to assure fairness to the individual in

the determination;

(6) prior to disseminating any record about

an individual to any person other than an agency,

unless the dissemination is made pursuant to

subsection (b)(2) of this section, make reasonable

efforts to assure that such records are accurate,

complete, timely, and relevant for agency purpos-

es,

(7) maintain no record describing how any

individual exercises rights guaranteed by the

48a

First Amendment unless expressly authorized by

statute or by the individual about whom the

record is maintained or unless pertinent to and

within the scope of an authorized law enforce-

ment activity;

(8) make reasonable efforts to serve notice

on an individual when any record on such indi-

vidual is made available to any person under

compulsory legal process when such process

becomes a matter of public record;

(9) establish rules of conduct for persons

involved in the design, development, operation, or

maintenance of any system of records, or in

maintaining any record, and instruct each such

person with respect to such rules and the require-

ment of this section, including any other rules

and procedures adopted pursuant to this section

and the penalties for noncompliance;

(10) establish appropriate administrative,

technical, and physical safeguards to insure the

security and confidentiality of records and to

protect against any anticipated threats or hazards

to their security or integrity which could result in

substantial harm, embarrassment, inconvenience,

or unfairness to any individual on whom informa-

tion is maintained;

(11) at least 30 days prior to publication of

information under paragraph (4)(D) of this

subsection, publish in the Federal Register notice

of any new use or intended use of the informa-

tion in the system, and provide an opportunity

for interested persons to submit written data,

49a

views, or arguments to the agency; and

(12) if such agency is a recipient agency or

a source agency in a matching program with a

non-Federal agency, with respect to any establish-

ment or revision of a matching program, at least

30 days prior to conducting such program, pub-

lish in the Federal Register notice of such estab-

lishment or revision.

(f) Agency rules.—In order to carry out the provi-

sions of this section, each agency that maintains a

system of records shall promulgate rules, in accordance

with the requirements (including general notice) of

section 553 of this title, which shall—

(1) establish procedures whereby an

individual can be notified in response to his

request if any system of records named by the

individual contains a record pertaining to him;

(2) define reasonable times, places, and

requirements for identifying an individual who

requests his record or information pertaining to

him before the agency shall make the record or

information available to the individual;

(3) establish procedures for the disclosure

to an individual upon his request of his record or

information pertaining to him, including special

procedure, if deemed necessary, for the disclosure

to an individual of medical records, including

psychological records, pertaining to him;

(4) establish procedures for reviewing a

request from an individual concerning the am-

OME Penal tie wk ne

50a

endment of any record or information pertaining

to the individual, for making a determination, on

the request, for an appeal within the agency of an

initial adverse agency determination, and for

whatever additional means may be necessary for

each individual to be able to exercise fully his

rights under this section; and

(5) establish fees to be charged, if any, to

any individual for making copies of his record,

excluding the cost of any search for and review of

the record.

The Office of the Federal Register shall biennially

compile and publish the rules promulgated under this

subsection and agency notices published under subsec-

tion (e)(4) of this section in a form available to the

public at low cost.

(g)(1) Civil remedies —Whenever any agency

(A) makes a determination under subsec-

tion (d)(3) of this section not to amend an indivi-

dual’s record in accordance with his request, or

fails to make such review in conformity with that

subsection;

(B) refuses to comply with an individual

request under subsection (d)(1) of this section;

any individual with such accuracy, relevance,

timeliness, and completeness as is necessary to

assure fairness in any determination relating to

the qualifications, character, rights, or oppertuni-

ties of, or benefits to the individual that may be

5la

made on the basis of such record, and conse-

quently a determination is made which is adverse

to the individual; or

(D) fails to comply with any other provi-

sion of this section, or any rule promulgated

thereunder, in such a way as to have an adverse

effect on an individual,

the individual may bring a civil action against the

agency, and the district courts of the United States shall

have jurisdiction in the matters under the provisions of

this subsection.

(2)(A) In any suit brought under the provisions of

subsection (g)(1)(A) of this section, the court may order

the agency to amend the individual’s record in accor-

dance with his request or in such other way as the court

may direct. In such a case the court shall determine the

matter de novo.

(B) The court may assess against the United

States reasonable attorney fees and other litigation costs

reasonably incurred in any case under this paragraph in

which the complainant has substantially prevailed.

(3)(A) In any suit brought under the provisions of

subsection (g)(1)(B) of this section, the court may enjoin

the agency from withholding the records and order the

production to the complainant of any agency records

improperly withheld from him. In such a case the court

shall determine the matter de novo, and may examine

the contents of any agency records in camera to deter-

mine whether the records or any portion thereof may be

withheld under any of the exemptions set forth in

subsection (k) of this section, and the burden is on the

52a

agency to sustain its action.

(B) The court may assess against the United

States reasonable attorney fees and other litigation costs

reasonably incurred in any case under this paragraph in

which the complainant has substantially prevailed.

(4) In any suit brought under the provisions of

subsection (g)(1)(C) or (D) of this section in which the

court determines that the agency acted in a manner

which was intentional or willful, the United States shall

be liable to the individual in an amount equal to the

sum of—

(A) actual damages sustained by the indi-

vidual as a result of the refusal or failure, but in

no case shall a person entitled to recovery receive

less than the sum of $1,000; and

(B) the costs of the action together with

reasonable attorney fees as determined by the

court.

(5) An action to enforce any liability created

under this section may be brought in the district court

of the United States in the district in which the com-

plainant resides, or has his principal place of business,

or in which the agency records are situated, or in the

District of Columbia, without regard to the amount in

controversy, within two years from the date on which

the cause of action arises, except that where an agency

has materially and willfully misrepresented any informa-

tion required under this section to be disclosed to an

individual and the information so misrepresented is

material to establishment of the liability of the agency

to the individual under this section, the action may be

53a

brought at any time within two years after discovery by

the individual of the misrepresentation. Nothing in this

section shall be construed to authorize any civil action

by reason of any injury sustained as the result of a

disclosure of a record prior to September 27, 1975.

(h) Rights of legal guardians.—For the purposes

of this section, the parent of any minor, or the legal

guardian of any individual who has been declared to be

incompetent due to physical or mental incapacity or age

by a court of competent jurisdiction, may act on behalf

of the individual.

(i)(1) Criminal penalties —Any officer or em-

ployee of an agency, who by virtue of his employment or

official position, has possession of, or access to, agency

records which contain individually identifiable informa-

tion the disclosure of which is prohibited by this section

or by rules or regulations established thereunder, and

who knowing that disclosure of the specific material is

so prohibited, willfully discloses the material in any

manner to any person or agency not entitled to receive

it, shall be guilty of a misdemeanor and fined not more

than $5,000.

(2) Any officer or employee of any agency who

willfully maintains a system of records without meeting

the notice requirements of subsection (e)(4) of this

section shall be guilty of a misdemeanor and fined not

more then $5,000.

(3) Any person who knowingly and willfully

requests or obtains any record concerning an individual

from an agency under false pretenses shall be guilty of

a misdemeancr and fined not more than $5,000.

54a

(j) General exemptions.—The head of any agency

nay promulgate rules, in accordance with the require-

ments (including general notice) of sections 553(b)(1),

(2), and (3), (c), and (e) of this title, to exempt any

system of records within the agency from any part of

this section except subsections (b), (c)(1) and (2), (e)(4)-

(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) if

the system of records is-

(1) maintained by the Central Intelligence

Agency; or

(2) maintained by an agency or component

thereof which performs as its principal function

any activity pertaining to the enforcement of

criminal laws, including police efforts to prevent,

control, or reduce crime or to apprehend crimi-

nals, and the activities of prosecutors, courts,

correctional, probation, pardon, or parole author-

ities, and which consists of (A) information

compiled for the purpose of identifying individual

criminal offenders and alleged offenders and

consisting only of identifying data and notations

of arrests, the nature and disposition of criminal

charges, sentencing, confinement, release, and

parole and probation status; (B) information

compiled for the purpose of a criminal investiga-

tion, including reports of informants and investi-

gators, and associated with an identifiable indi-

vidual; or (C) reports identifiable to an individual

compiled at any stage of the process of enforce-

ment of the criminal laws from arrest or indict-

ment through release from supervision.

At the time rules are adopted under this subsection, the

agency shall include in the statement required under

55a

section 553(c) of this title, the reasons why the system

of vecords is to be exempted from a provision of this

section.

(k) Specific exemptions.—The head of any agency

may promulgate rules, in accordance with the require-

ments (including general notice) of sections 553(b)(1),

(2), and (3), (c), and (e) of this title, to exempt any

system of records within the agency from subsections

(c)(8), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of this

section if the system of records is—

(1) subject to the provisions of section

552(b)(1) of this title,

(2) investigatory material compiled for law

enforcement purposes, other than material within

the scope of subsection (j)(2) of this section: Pro-

vided, however, That if any individual is denied

any right, privilege, or benefit that he would

otherwise be entitled by Federal law, or for which

he would otherwise be eligible, as a result of the

maintenance of such material, such material shall

be provided to such individual, except to the

extent that the disclosure of such material would

reveal the identity of a source who furnished

information to the Government under an express

promise that the identity of the source would be

held in confidence, or, prior to the effective date

of this section, under an implied promise that the

identity of the source would be held in confi-

dence;

(3) maintained in connection with provid-

ing protective services to the President of the

United States or other individuals pursuant to

56a

section 3056 of title 18;

(4) required by statute to be maintained

and used solely as statistical records;

(5) investigatory material compiled solely

for the purpose of determining suitability, eligibil-

ity, or qualifications for Federal civilian employ-

ment, military, service, Federal contracts, or

access to classified information, but only to the

extent that the disclosure of such material would

reveal the identity of a source who furnished

information to the Government under an express

promise that the identity of the source would be

held in confidence, or, prior to the effective date

of this section, under an implied promise that the

identity of the source would be held in confi-

dence;

(6) testing or examination material used

solely to determine individual qualifications for

appointment or promotion in the Federal service

the disclosure of which would compromise the

objectivity or fairness of the testing or examina-

tion process; or

(7) evaluation material used to determine

potential for promotion in the armed services, but

only to the extent that the disclosure of such

material would reveal the identity of a source

who furnished information to the Government

under an express promise that the identity of the

source would be held in confidence, or, prior to

effective date of this section, under an implied

promise that the identity of the source would be

held in confidence.

57a

At the time rules are adopted under this subsection, the

agency shall include in the statement required under

section 553(c) of this title, the reasons why the system

of records is to be exempted from a provision of this

section.

* * *

(t)(1) Effect of other laws.—No agency shall rely

on any exemption contained in section 552 of this title

to withhold from an individual any record which other-

wise accessible to such individual under the provisions

of this section.

(2) No agency shall rely on any exemption in this

section to withhold from an individual any record which

is otherwise accessible to such individual under the

provisions of section 552 of this title.

* * *

58a

DEPARTMENT OF DEFENSE

PERSONNEL SECURITY PROGRAM

82 C.F.R. Pt. 154

[Excerpts]

§ 154.2 Applicability.

* * *

(b) All provisions of this part apply to DoD

civilian personnel, members of the Armed Forces,

excluding the Coast Guard in peacetime, contractor

personnel and other personnel who are affiliated with

the Department of Defense except that the unfavorable

administrative action procedures pertaining to contrac-

tor personnel requiring access to classified information

are contained in DoD 5220.22-R and in 32 CFR part 155.

* * *

§ 154.3 Definitions.

(a) Access. The ability and opportunity to obtain

knowledge of classified information. An individual, in

fact, may have access to classified information by being

in a place where such information is kept, if the security

measures that are in force do not prevent him from

gaining knowledge of such information.

(b) Adverse action. A removal from employment,

suspension from employment of more than 14 days,

reduction in grade, reduction in pay, or furlough of 30

days or less.

59a

security investigation consisting of both record reviews

and interviews with sources of information as prescribed

in paragraph 3, Appendix A, this part, covering the most

recent 5 years of an individual’s life or since the 18th

birthday, whichever is shorter, provided that at least the

last 2 years are covered and that no investigation will be

conducted prior to an individual’s 16th birthday.

(d) Classified information. Official information or

material that requires protection in the interests of

national security and that is classified for such purpose

by appropriate classifying authority in accordance with

the provisions of Executive Order 12356.

(e) Defense Clearance and Investigative Index

(DCID. The DCII is the single, automated, central DoD

repository which identifies investigations conducted by

DoD investigative agencies, and personnel security

determinations made by DoD adjudicative authorities.

(f) DoD component. Includes the Office of the

Secretary of Defense; the Military Departments; Chair-

man of the Joint Chiefs of Staff; Directors of Defense

Agencies and the Unified and Specified Commands.

(g) Entrance National Agency Check (ENTNAC).

A personnel security investigation scoped and conducted

in the same manner as a National Agency Check except

that a technical fingerprint search of the files of the

Federal Bureau of Investigation is not conducted.

(h) Head of DoD component. The Secretary of

Defense; the Secretaries of the Military Departments;

the Chairman of Joint Chiefs of Staff; and the Com-

manders of Unified and Specified Commands; and the

60a

Directors of Defense Agencies.

(i) Immigrant alien. Any alien lawfully admitted

into the United States under an immigration visa for

permanent residence.

(j) Interim security clearance. A security clearance

based on the completion of minimum investigative

requirements, which is granted on a temporary basis,

pending the completion of the full investigative require-

ments.

(k) Limited access authorization. Authorization

for access to Confidential or Secret information granted

to non-US. citizens and immigrant aliens, which is

limited to only that information necessary to the suc-

cessful accomplishment of their assigned duties and

based on a background investigation scoped for 10 years

(paragraph 3, Appendix A).

(1) Minor derogatory information. Information

that, by itself, is not of sufficient importance or magni-

tude to justify an unfavorable administrative action in a

personnel security determination.

(m) National Agency check (NAC). A personnel

security investigation consisting of a records review of

certain national agencies as prescribed in paragraph 1,

Appendix A, this part, including a technical fingerprint

search of the files of the Federal Bureau of Investigation

(FBD.

(n) National Agency Check Plus Written Inquiries

(NACI). A personnel security investigation conducted by

the Office of Personnel Management, combining a NAC

and written inquiries to law enforcement agencies,

6la

former employers and supervisors, references and

schools.

(0) National security. National security means the

national defense and foreign relations of the United

States.

(p) Need-to-know. A determination made by a

possessor of classified information that a prospective

recipient, in the interest of national security, has a

requirement for access to, knowledge, or possession of

the classified information in order to perform tasks or

services essential to the fulfillment of an official U.S.

Government program. Knowledge, possession of, or

access to, classified information shall not be afforded to

any individual solely by virtue of the individual’s office,

position, or security clearance.

(q) Periodic Reinvestigation (PR). An investiga-

tion conducted every five years for the purpose of

updating a previously completed background investiga-

tion, special background investigation, single scope

background investigation or PR on persons occupying

positions referred to in § 154.19. Investigative require-

ments are as prescribed in appendix A to part 154,

section 5. The period of investigation will not normally

exceed the most recent 5-year period.

(r) Personnel Security Investigation (PSI). Any

investigation required for the purpose of determining the

eligibility of DoD military and civilian personnel, con-

tractor employees, consultants, and other persons

affiliated with the Department of Defense, for access to

classified information, acceptance or retention in the

Armed Forces, assignment or retention in sensitive

duties, or other designated duties requiring such investi-

62a

gation. PSIs include investigations of affiliations with -

subversive organizations, suitability information, or

hostage situations (see § 154.9(d)) conducted for the

purpose of making personnel security determinations.

They also include investigations of allegations that arise

subsequent to adjudicative action and require resolution

to determine an individual’s current eligibility for access

to classified information or assignment or retention in a

sensitive position.

(s) Scope. The time period to be covered and the

sources of information to be contacted during the pre-

scribed course of a PSI.

(t) Security clearance. A determination that a

person is eligible under the standards of this part for

access to classified information.

(u) Senior Officer of the Intelligence Community

(SOIC). The DoD Senior Officers of the Intelligence

Community include: the Director, National Security

Agency/Central Security Service; Director, Defense

Intelligence Agency; Assistant Chief of Staff for Intelli-

gence, U.S. Army; Assistant Chief of Staff for Intelli-

gence, U.S. Air Force; and the Director of Naval Intelli-

gence, U.S. Navy.

(v) Sensitive position. Any position so designated

within the Department of Defense, the occupant of

which could bring about, by virtue of the nature of the

position, a materially adverse effect on the national

security. All civilian positions are either critical-sensi-

tive, noncritical-sensitive, or nonsensitive as described in

§ 154.13(b).

63a

(w) Significant derogatory information. Informa-

tion that could, in itself, justify an unfavorable adminis-

trative action, or prompt an adjudicator to seek addition-

al investigation or clarification.

(x) Special access program. Any program impos- —

ing need-to-know or access controls beyond those

normally provided for access to Confidential, Secret, or

Top Secret information. Such a program may include,

but not be limited to, special clearance, adjudication,

investigative requirements, material dissemination

restrictions, or special lists of persons determined to

have a need-to-know.

(y) Special Background Investigation (SBI). A

personnel security investigation consisting of all of the

components of a BI plus certain additional investigative

requirements as prescribed in paragraph 4, Appendix B,

-this part. The period of investigation for an SBI is the

last 15 years or since the 18th birthday, whichever is

shorter, provided that the last 2 full years are covered

and that no investigation will be conducted prior to an

individual’s 16th birthday.

(z) Special Investigative Inquiry (SII). A supple-

mental personnel security investigation of limited scope

conducted to prove or disprove relevant allegations that

have arisen concerning a person upon whom a personnel

security determination has been previously made and

who, at the time of the allegation, holds a security

clearance or otherwise occupies a position that requires

- apersonnel security determination under the provisions

of this part.

(aa) Service. Honorable active duty (including

attendance at the military academies), membership in

64a

ROTC Scholarship Program, Army and Air Force

National Guard, Military Reserve Force (including active

status and ready reserve), civilian employment in

Government service, or civilian employment with a DoD

contractor or as a consultant involving access under the

DoD Industrial Security Program. Continuity of service

is maintained with change from one status to another as

long as there is no single break in service greater than

12 months.

(bb) Unfavorable administrative action. Adverse

action taken as the result of personnel security determi-

nations and unfavorable personnel security determina-

tions as defined in this part.

(ec) Unfavorable personnel security determination.

A denial or revocation of clearance for access to classi-

fied information; denial or revocation of access to

classified information; denial or revocation of a Special

Access authorization (including access to SCI); nonap-

pointment to or nonselection for appointment to a

sensitive position; nonappointment to or nonselection for

any other position requiring a trustworthiness determi-

nation under this part; reassignment to a position of

lesser sensitivity or to a nonsensitive position; and

nonacceptance for or discharge from the Armed Forces

when any of the foregoing actions are based on derogato-

ry information of personnel security significance.

(dd) United States Citizen (Native Born). A person

born in one of the 50 United States, Puerto Rico, Guam,

American Samoa, Northern Mariana Islands, U.S. Virgin

{slands; or Panama Canal Zone (if the father or mother

(or both) was or is, a citizen of the United States).

65a

[52 FR 11219, Apr. 8, 1987, as amended at 58 FR 61024,

Nov. 19, 1993]

* + #

§ 154.9 Authorized personnel security investigative

agencies.

(a) General. The DIS provides a single centrally

directed personnel security investigative service to

conduct personnel security investigations within the 50

States, District of Columbia, and Commonwealth of

Puerto Rico for DoD Components, except as provided for

in DoD Directive 5100.23 '. DIS will request the Mili-

tary Departments or other appropriate Federal Agencies

to accomplish DoD investigative requirements in other

geographic areas beyond their jurisdiction. No other DoD

Component shall conduct personnel security investiga-

tions unless specifically authorized by the Deputy Under

Secretary of Defense for Policy. In certain instances

provided for below, the DIS shall refer an investigation

to other investigative agencies.

(b) Subversive affiliations—(1) General. In the

context of DoD investigative policy, subversion refers

only to such conduct as is forbidden by the laws of the

United States. Specifically, this is limited to information

concerning the activities of individuals or groups that

involve or will involve the violation of Federal law, for

the purpose of:

(i) Overthrowing the Government of the United

States or the government of a State;

1 See footnote 1 to § 154.2(c). [Footnote in original.]

66a

(ii) Substantially impairing for the purpose of

influencing U.S. Government policies or decisions: (A)

The functions of the Government of the United States,

or (B) The functions of the government of a State;

(iii) Depriving persons of their civil rights under

the Constitution or laws of the United States.

(2) Military Department/FBI jurisdiction. Allega-

tions of activities covered by § 154.7 (a) through (f) are

in the exclusive investigative domain of either the coun-

terintelligence agencies of the Military Departments or

the FBI, depending on the circumstances of the case and

the provisions of the Agreement Governing the Conduct

of Defense Department Counterintelligence Activities in

Conjunction with the FBI. Whenever allegations of this

nature are developed, whether before or after a security

clearance has been issued or during the course of a

personnel security investigation conducted by DIS, they

shall be referred immediately to either the FBI or to a

military department counterintelligence agency, as

appropriate.

(3) DIS jurisdiction. Allegations of activities

limited to those set forth in § 154.7 (g) through (j) of

this part shall be investigated by DIS.

derogatory information developed through personnel

security investigations of DoD military or civilian

personnel is so-called suitability information, that is,

information pertaining to activities or situations covered

by § 154.7 (g) through (q). Almost all unfavorable

personnel security determinations made by DoD authori-

ties are based on derogatory suitability information,

although such information is often used as a basis for

67a

unfavorable administrative actions not of a security

nature, such as action under the Uniform Code of

Military Justice or removal from Federal employment

under OPM regulations.

(2) Pre-clearance investigation. Derogatory

suitability information, except that covered in paragraph

(c)(4) of this section, developed during the course of a

personnel security investigation, prior to the issuance of

an individual’s personnel security clearance, shall be

investigated by DIS to the extent necessary to confirm

or refute its applicability to § 154.7 (g) through (q).

(3) Postadjudication investigation. Derogatory

suitability allegations, except those covered by paragraph

(c)(4) of this section arising subsequent to clearance

requiring investigation to resolve and to determine the

individual’s eligibility for continued access to classified

information, reinstatement of clearance/access, or reten-

tion in a sensitive position shall be referred to DIS to

conduct a Special Investigative Inquiry. Reinvestigation

of individuals for adjudicative reconsideration due to the

passage of time or evidence of favorable behavior shall

also be referred to DIS for investigation. In such cases,

completion of the appropriate statement of personal

history by the individual constitutes consent to be

investigated. Individual consent or completion of a

statement of personal history is not required when §

154.19(b) applies. Postadjudication investigation of

allegations of a suitability nature required to support

other types of unfavorable personnel security determina-

tions or disciplinary procedures independent of a person-

nel security determination shall be handled in accor-

dance with applicable Component administrative regula-

tions. These latter categories of allegations lie outside

the DoD personnel security program and are not a

68a

proper investigative function for departmental counter-

intelligence organizations, Component personnel security

authorities, or DIS.

(4) Allegations of criminal activity. Any allega-

tions of conduct of a nature indicating possible criminal

conduct, including any arising during the course of a

personnel security investigation, shall be referred to the

appropriate DoD, military department or civilian crimi-

nal investigative agency. Military department investiga-

tive agencies have primary investigative jurisdiction in

cases where there is probable cause to believe that the

alleged conduct will be the basis for prosecution under

the Uniform Code of Military Justice.

(d) Hostage situations—({1) General. A hostage

situation exists when a member of an individual’s

immediate family or such other person to whom the

individual is bound by obligation or affection resides in

a country whose interests are inimical to the interests of

the United States. The rationale underlying this catego-

ry of investigation is based on the possibility that an

individual in such a situation might be coerced, influ-

enced, or pressured to act contrary to the best interests

of national security.

(2) DIS jurisdiction. In the absence of evidence of

any coercion, influence or pressure, hostage investiga-

tions are exclusively a personnel security matter, rather

than counterintelligence, and all such investigations

shall be conducted by DIS.

(3) Military Department and/or FBI jurisdiction.

Should indications be developed that hostile intelligence

is taking any action specifically directed against the

individual concerned—or should there exist any other

69a

evidence that the individual is actually being coerced,

influenced, or pressured by an element inimical to the

interests of national security—then the case becomes a

counterintelligence matter (outside of investigative

jurisdiction of DIS) to be referred to the appropriate

military department or the FBI for investigation.

(e) Overseas personnel security investigations.

Personnel security investigations requiring investigation

overseas shall be conducted under the direction and

control of DIS by the appropriate military department

investigative organization. Only postedjudication investi-

gations involving an overseas subject may be referred by

the requester directly to the military department investi-

gative organization having investigative responsibility in

the overseas area concerned (see Appendix I) with a copy

of the investigative request sent to DIS. In such cases,

the military department investigative agency will

complete the investigation, forward the completed report

of investigation directly to DIS, with a copy to the

requester.

z= * *

Subpart G—Issuing Clearance and Granting Access

§ 154.47 General.

(a) The issuance of a personnel security clearance

(as well as the function of determining that an individu-

al is eligible for access to Special Access program infor-

mation, or is suitable for assignment to sensitive duties

or such other duties that require a trustworthiness

determination) is a function distinct from that involving

the granting of access to classified information. Clear-

ance determinations are made on the merits of the

70a

individual case with respect to the subject’s suitability

for security clearance. Access determinations are made

solely on the basis of the individual’s need for access to

classified information in order to perform official duties.

Except for suspension of access pending final adjudica-

tion of a personnel security clearance, access may not be

finally denied for cause without applying the provisions

of § 154.56(b).

(b) Only the authorities designated in paragraph

A, Appendix E are authorized to grant, deny or revoke

personnel security clearances or Special Access authori-

zations (other than SCI). Any commander or head of an

organization may suspend access for cause when there

exists information raising a serious question as to the

individual’s ability or intent to protect classified infor-

mation, provided that the procedures set forth in §

154.55(b) of this part are complied.

tions have the responsibility for determining those

position functions in their jurisdiction that require

access to classified information and the authority to

grant access to incumbents of such positions who have

been cleared under the provisions of this part.

Subpart H—Unfavorable Administrative Actions

§ 154.55 Requirements.

(a) General. For purposes of this part, an unfavor-

able administrative action includes any adverse action

which is taken as a result of a personnel security

determination, as defined at § 154.3 and any unfavorable

personnel security determination, as defined at § 154.3.

This subpart is intended only to provide guidance for the

Tla

internal operation of the Department of Defense and is

not intended to, does not, and may not be relied upon, to

create or enlarge the jurisdiction or review authority of

any court or administrative tribunal, including the Merit

Systems Protection Board.

(b) Referral for action. (1) Whenever derogatory

information relating to the criteria and policy set forth

in § 154.7(a) and Appendix H of this part is developed or

otherwise becomes available to any DoD element, it shall

be referred by the most expeditious means to the com-

mander or the security officer of the organization to

which the individual is assigned for duty. The command-

er or security officer of the organization to which the

subject of the information is assigned shail review the

information in terms of its security significance and

completeness. If further information is needed to con-

firm or discrove the allegations, additional investigation

should be requested. The commander of the duty

organization shall insure that the parent Component of

the individual concerned is informed promptly concern-

ing the derogatory information developed and any

actions taken or anticipated with respect thereto.

However, referral of derogatory information to the

commander or security officer shall in no way affect or

limit the responsibility of the central adjudication facility

to continue to process the individual for denial or

revocation of clearance or access to classified informa-

tion, in accordance with § 154.56(b), if such action is

warranted and supportable by the criteria and policy

contained in § 154.7(a) and Appendix H. No unfavorable

administrative action as defined in § 154.3 may be taken

by the organization to which the individual is assigned

for duty without affording the person the full range of

protections contained in § 154.56(b) or, in the case of

SCI, Annex B, DCID 1/14.

72a

(2) The Director DIS shall establish appropriate

alternative means whereby information with potentially

serious security significance can be reported other than

through DoD command or industrial organization chan-

nels. Such access shall include utilization of the DoD

Inspector General “‘hotline”’ to receive such reports for

appropriate follow-up by DIS. DoD Components and

industry will assist DIS in publicizing the availability of

appropriate reporting channels. Additionally, DoD

Components will augment the system when and where

necessary. Heads of DoD Components will be notified

immediately to take action if appropriate.

(1) The commander or head of the organization

shall determine whether, on the basis of all facts avail-

able upon receipt of the initial derogatory information,

it is in the interests of national security to continue

subject’s security status unchanged or to take interim

action to suspend subject’s access to classified informa-

tion or assignment to sensitive duties (or other duties

requiring a trustworthiness determination), if informa-

tion exists which raises serious questions as to the

individual’s ability to intent to protect classified infor-

mation or execute sensitive duties (or other duties

requiring a trustworthiness determination) until a final

determination is made by the appropriate authority

designated in appendix F to this part.

(2) Whenever a determination is made to suspend

a security clearance for access to classified information

or assignment to sensitive duties (or other duties

requiring a trustworthiness determination), the individu-

al concerned must be notified of the determination in

writing by the commander, or head of the component or

73a

adjudicative authority, to include a brief statement of

the reason(s) for the suspension action consistent with

the interests of national security.

(3) Component field elements must promptly

report all suspension actions to the appropriate central

adjudicative authority, but not later than 10 working

days from the date of the suspension action. The adjudi-

cative authority will immediately update the DCII

Eligibility and Access fields to alert all users to the

individual’s changed status.

(4) Every effect("] shall be made to resolve

suspension cases as expeditiously as circumstances

permit. Suspension cases exceeding 180 days shall be

closely monitored and managed by the DoD Component

concerned until finally resolved. Suspension cases

pending in excess of 12 months will be reported to the

DASD(CI&SCM) for review and appropriate action.

(5) A final security clearance eligibility determina-

tion shall be made for all suspension actions and the

determination entered in the DCII. If, however, the

individual under suspension leaves the jurisdiction of the

Department of Defense and no longer requires a clear-

ance (or trustworthiness determination), entry of the

“Z”’ Code (adjudication action incomplete due to loss of

jurisdiction) if the clearance eligibility field is appropri-

ate. In no case shall a “suspension’’ code (Code Y)

remain as a permanent record in the DCII.

(6) A clearance or access entry in the DCII shall

not be suspended or downgraded based solely on the fact

* Sic; should read “‘effort”’ (footnote added).

74a

that a periodic reinvestigation was not conducted

precisely within the 5 year time period for TOP SE-

CRET/SCI or within the period prevailing for SECRET

clearances under departmental policy. While every effort

should be made to ensure that PRs are conducted within

the prescribed time frame, agencies must be flexible in

their administration of this aspect of the personnel

security program so as not to undermine the ability of

the Department of Defense to accomplish its mission.

(d) Final unfavorable administrative actions. The

authority to make personnel security determinations

that will result in an unfavorable administrative action

is limited to those authorities designated in Appendix E,

except that the authority to terminate the employment

of a civilian employee of a military department or

Defense agency is vested solely in the head of the DoD

component concerned and in such other statutory official

as may be designated. Action to terminate civilian

employees of the Office of the Secretary of Defense and

DoD Components, on the basis of criteria listed in §

154.7 (a) through (f), shall be coordinated with the

Deputy Under Secretary of Defense for Policy prior to

final action by the head of the DoD Component. DoD

civilian employees or members of the Armed Forces shall

not be removed from employment or separated from the

Service under provisions of this part if removal or

separation can be effected under OPM regulations or

administrative (nonsecurity) regulations of the military

departments. However, actions contemplated in this

regard shall not affect or limit the responsibility of the

central adjudication facility to continue for process the

individual for denial or revocation of a security clear- -

ance, access to classified information on or assignment

to a sensitive position if warranted and supportable by

the criteria and standards contained in this part.

75a

(52 FR 11219, Apr. 8, 1987, as amended at 58 FR 61025,

Nov. 19, 1993]

§ 154.56 Procedures.

(a) General. No final personnel security determi-

nation shall be made on a member of the Armed Forces,

an employee of the Department of Defense, a consultant

to the Department of Defense, or any other person

affiliated with the Department of Defense without

granting the individual concerned the procedural bene-

fits set forth in paragraph (b) of this section when such

determination results in an unfavorable administrative

action (see § 154.55(a)). As an exception, Red

Cross/United Service Organizations employees shall be

afforded the procedures prescribed by 32 CFR part 253.

(b) Unfavorable administrative action procedures.

Except as provided for below, no unfavorable administra-

tive action shall be taken under the authority of this

part unless the person concerned has been given:

(1) A written statement of the reasons why the

unfavorable administrative action is being taken. The

statement shall be as comprehensive and detailed as the

protection of sources afforded confidentiality under the

provisions of the Privacy Act of 1974 (5 U.S.C. 552a) and

national security permit. The statement will also provide

the name and address of the agencies (agencies) to which

the individual may write to obtain a copy of the investi-

gative file(s) upon which the unfavorable administrative

action is being taken. Prior to issuing a statement of

reasons to a civilian employee for suspension or removal

action, the issuing authority must comply with the

provisions of Federal Personnel Manual, chapter 732,

subchapter 1, paragraph 1-6b. The signature authority

76a

must be as provided for in § 154.41(b) (1)Gi) and (2)(ii).

(2) An opportunity to reply in writing to such

authority as the head of the Component concerned may

designate;

(3) A written response to any submission under

subparagraph b. stating the final reasons therefor, which

shall be as specific as privacy and national security

considerations permit. The signature authority must be

as provided for in § 154.41(b) (1)(ii) and (2)(ii). Such re-

sponse shall be as prompt as individual circumstances

permit, not to exceed 60 days from the date of receipt of

the appeal submitted under paragraph (b)(2) of this

section provided no additional investigative action is

necessary. If a final response cannot be completed within

the time frame allowed, the subject must be notified in

writing of this fact, the reasons therefor, and the date a

final response is expected, which shall not, in any case,

exceed a total of 90 days from the date of receipt of the

appeal under paragraph (b) of this section.

(4) An opportunity to appeal to a higher level of

authority designated by the Component concerned.

graph (b) of this section or any other provision of this

part, nothing in this part shall be deemed to limit or

affect the responsibility and powers of the Secretary of

Defense to find that a person is unsuitable for entrance

or retention in the Armed Forces, or is ineligible for a

security clearance or assignment to sensitive duties, if

the national security so requires, pursuant to section

7532, title 5, U.S. Code. Such authority may not be

delegated and may be exercised only when it is deter-

mined that the procedures prescribed in paragraph (b)

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of this section are not appropriate. Such determination

shall be conclusive.

(52 FR 11219, Apr. 8, 1987, as amended at 58 FR 61025,

Nov. 19, 1993]

*- * *

Subpart I—Continuing Security Responsibilities

§ 154.60 Evaluating continued security eligibility.

(a) General. A personnel security determination

is an effort to assess the future trustworthiness of an

individual in terms of the likelihood of the individual

preserving the national security. Obviously it is not

possible at a given point to establish with certainty that

any human being will remain trustworthy. Accordingly

the issuance of a personnel security clearance or the

determination that a person is suitable for assignment

to sensitive duties cannot be considered as a final

personnel security action. Rather, there is the clear need

to assure that, after the personnel security determina-

tion is reached, the individual’s trustworthiness is a

matter of continuing assessment. The responsibility for

such assessment must be shared by the organizational

commander or manager, the individual’s supervisor and,

to a large degree, the individual himself. Therefore, the

heads of DoD Components shall establish and maintain

a program designed to evaluate on a continuing basis the

' status of personnel under their jurisdiction with respect

to security eligibility. This program should insure close

coordination between security authorities and personnel,

medical, legal and supervisory personnel to assure that

all pertinent information available within a command is

considered in the personnel security process.

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(b) Management responsibility. (1) Commanders

and heads of organizations shall insure that personnel

assigned to sensitive duties (or other duties requiring a

trustworthiness determination under the provisions of

this part) are initially indoctrinated and periodically

instructed thereafter on the national security implication

of their duties and on their individual responsibilities.

(2) The heads of all DoD components are encour-

aged to develop programs designed to counsel and assist

employees in sensitive positions who are experiencing

problems in their personal lives with respect to such

areas as financial, medical or emotional difficulties. Such

initiatives should be designed to identify potential prob-

lem areas at an early stage so that any assistance ren-

dered by the employing activity will have a reasonable

chance of precluding long term, job-related security

problems.

shall be established to insure that supervisory personnel

are familiarized with their special responsibilities in

matters pertaining to personnel security with respect to

personnel under their supervision. Such programs shall

provide practical guidance as to indicators that may

signal matters of personnel security concern. Specific

instructions should be disseminated concerning report-

ing procedures to enable the appropriate authority to

take timely corrective action to protect the interests of

national security as well as to provide any necessary

help to the individual concerned to correct any personal

problem which may have a bearing upon the individual’s

continued eligibility for access.

(1) In conjunction with the submission of PRs

stated in § 154.19, and paragraph 5, Appendix A, super-

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visors will be required to review an individual’s DD

Form 398 to ensure that no significant adverse informa-

tion of which they are aware and that may have a

bearing on subject’s continued eligibility for access to

classified information is omitted.

(2) If the supervisor is not aware of any signifi-

cant adverse information that may have a bearing on the

subject’s continued eligibility for access, then the follow-

ing statement must be documented, signed and dated,

and forwarded to DIS with the investigative package:

I am aware of no information of the type con-

tained at Appendix D, 32 CFR part 154, relating to

subject’s trustworthiness, reliability, or loyalty that may

reflect adversely on his/her ability to safeguard classified

information.

(3) If the supervisor is aware of such significant

adverse information, the following statement shall be

documented, signed and dated and forwarded to DIS

with the investigative package, and a written summary

of the derogatory information forwarded to DIS with the

investigative package:

I am aware of information of the type contained

in Appendix D, 32 CFR part 154, relating to subject’s

trustworthiness, reliability, or loyalty that may reflect

adversely on his/her ability to safeguard classified infor-

mation and have reported all relevant details to the

appropriate security official(s).

(4) In conjunction with regularly scheduled

fitness and performance reports of military and civilian

personnel whose duties entail access to classified infor-

mation, supervisors will include a comment in accor-

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dance with paragraphs (c) (2) and (3) of this section as

well as a comment regarding an employee’s discharge of

security responsibilities, pursuant to their Component

guidance.

(d) Individual responsibility. (1) Individuals must

familiarize themselves with pertinent security regula-

tions that pertain to their assigned duties. Further,

individuals must be aware of the standards of conduct

required of persons holding positions of trust. In this

connection, individuals must recognize and avoid the

kind of personal behavior that would result in rendering

one ineligible for continued assignment in a position of

trust. In the final analysis, the ultimate responsibility

for maintaining continued eligibility for a position of

trust rests with the individual.

(2) Moreover, individuals having access to classi-

fied information must report promptly to their security

office:

(i) Any form of contact, intentional or otherwise,

with individuals of any nationality, wheth

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