Filed: Feb. 08, 2017
Latest Update: Mar. 03, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-2568 JACOB E. ABILT, Maryland, United States, Plaintiff - Appellant, v. CENTRAL INTELLIGENCE AGENCY; JOHN O. BRENNAN, Director, In his official capacity only, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:14-cv-01626-GBL-MSN) Argued: October 27, 2016 Decided: February 8, 2017 Before WYNN, FLOYD, and HARRIS, Circuit
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-2568 JACOB E. ABILT, Maryland, United States, Plaintiff - Appellant, v. CENTRAL INTELLIGENCE AGENCY; JOHN O. BRENNAN, Director, In his official capacity only, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:14-cv-01626-GBL-MSN) Argued: October 27, 2016 Decided: February 8, 2017 Before WYNN, FLOYD, and HARRIS, Circuit ..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2568
JACOB E. ABILT, Maryland, United States,
Plaintiff - Appellant,
v.
CENTRAL INTELLIGENCE AGENCY; JOHN O. BRENNAN, Director, In
his official capacity only,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:14-cv-01626-GBL-MSN)
Argued: October 27, 2016 Decided: February 8, 2017
Before WYNN, FLOYD, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge Wynn and Judge Harris joined.
ARGUED: Donna Renee Williams Rucker, TULLY RINCKEY PLLC,
Washington, D.C., for Appellant. Jaynie Randall Lilley, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Sharon Swingle, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellees.
FLOYD, Circuit Judge:
This is an appeal from the dismissal of a complaint under
the state secrets doctrine. After careful consideration of the
public and classified pleadings, the district court correctly
concluded that the information in question is properly
privileged and that litigation of the case would present an
unjustifiable risk of disclosure of that information.
Accordingly, we affirm.
I.
Appellant Jacob E. Abilt 1 was hired by the Central
Intelligence Agency (CIA or the “Agency”) in June 2006 as an
Applications Developer. Around the time he was hired, Abilt
informed the Agency that he had a diagnosis of narcolepsy.
Beginning in May 2008 until the ultimate termination of his
employment in October 2011, Abilt was a covert employee. Many
of the basic facts regarding Abilt’s employment with the Agency
are classified, as are the job responsibilities and even the
identities of most of his former supervisors and co-workers.
In early 2009, Abilt began experiencing difficulty with his
narcolepsy and asked his then-supervisor for permission to take
1 Due to the sensitive nature of his job responsibilities,
Abilt is proceeding under a pseudonym.
2
periodic naps, which his then-supervisor granted. Around the
same time, Abilt was cleared by the Agency’s Medical Officer for
a temporary duty yonder (TDY) assignment overseas, as well as to
a warzone. 2
Abilt was then assigned a new supervisor, referred to in
the record only as “Lee.” When Lee witnessed Abilt sleeping at
his desk, Lee delayed Abilt’s TDY assignment by 30 days in March
2009. When Abilt complained, he was told that his TDY
assignment was delayed six months due to potential concerns
about his narcolepsy, and a few weeks later told that he could
not travel overseas for six months, or to a warzone for twelve
months. Abilt was instructed that any future decision would be
based in part on his ability to manage his narcolepsy.
At the end of the six-month period, Abilt requested TDY
assignment, and was told there were no plans to send anyone
overseas. Abilt alleges that multiple of his co-workers without
disabilities were subsequently sent overseas. Abilt was
evaluated again by the Agency’s Medical Officer, and both Abilt
and Lee were informed that Abilt was medically cleared to travel
to a warzone. At the end of the twelve-month period, Abilt was
given a list of new requirements he would have to meet to be
2 Agency employees who go on TDY assignment to a warzone
earn income above their standard salary.
3
assigned overseas or to a warzone. Abilt alleges that the new
requirements applied only to him.
In March 2011, Abilt was authorized for TDY overseas, but
denied a TDY assignment to a warzone. The Agency informed him
that he needed to complete a TDY overseas assignment before he
could be authorized for a TDY assignment to a warzone. Abilt
successfully completed his TDY overseas assignment, and then
requested a TDY assignment to a warzone. After undergoing two
examinations, both of which Abilt passed, he was still denied,
allegedly because of safety concerns related to his narcolepsy.
During this time, Abilt complained to the Equal Employment
Opportunity (EEO) office about his treatment, and he alleges
that as a result, Lee delayed his TDY overseas assignment and
also refused to provide him with the same training and
opportunities offered to his co-workers. Abilt filed
administrative complaints in both 2009 and 2010 alleging
disability discrimination, failure to accommodate, and
retaliation. The Agency issued a decision rejecting his claims
as unsupported in 2011. The Equal Employment Opportunity
Commission (EEOC) affirmed the Agency’s decision. Abilt’s
employment with the Agency was ultimately terminated in October
2011.
Abilt first filed suit against the Agency and Director John
Brennan (collectively, still the “Agency”) in February 2014,
4
alleging discrimination and ultimately termination based on his
disability, failure to accommodate, and retaliation. The Agency
invoked the state secrets privilege over various information
related to Abilt’s employment. The district court held that the
Agency properly invoked the privilege, and dismissed the
complaint without prejudice, finding that Abilt could not prove
his prima facie case of discrimination without resorting to
privileged information. See Abilt v. C.I.A. (Abilt I), No. 14-
cv-1031, 2015 WL 566712 (E.D. Va. Feb. 10, 2015).
While the motion for summary judgment was pending in his
first suit, Abilt filed this suit (Abilt II) against the same
defendants on December 1, 2014, under the Rehabilitation Act of
1973, Pub. L. No. 93-112, 87 Stat. 355 (codified as amended at
29 U.S.C. § 791, et seq.), and Title VII of the Civil Rights Act
of 1964, Pub. L. No. 88-352, 78 Stat. 241, 253–66 (codified as
amended at 42 U.S.C. § 2000e to § 2000e-17), alleging disability
discrimination and failure to accommodate, as well as
retaliation. In particular, Abilt alleged that the CIA canceled
his TDY assignment to a warzone because of his disability,
denied him other assignments and training opportunities
available to his coworkers, and falsely reported that he was
failing to satisfactorily perform his clandestine work
assignments. After Abilt I was dismissed, the Agency moved for
summary judgment in Abilt II based on the state secrets
5
privilege. In support, the Agency submitted two declarations
from Dir. Brennan--one public, which explained how disclosure of
information would harm national security and compromise the
Agency, and one ex parte, in camera, that further explained the
scope of information subject to the assertion of privilege. The
district court held that the Agency had properly invoked the
state secrets privilege, and found that because the un-appealed
decision in Abilt I covered many of the same categories of
information, Abilt was barred from relitigating those same
issues. The court then dismissed the action because (1)
privileged information was at the core of Abilt’s prima facie
case; (2) the Agency could not defend its case without resorting
to privileged information; and (3) further litigation would risk
disclosure of privileged information.
Abilt timely appealed the district court’s decision in this
suit, arguing that the district court misapplied the state
secrets doctrine.
II.
“We review de novo a district court’s ‘legal determinations
involving state secrets,’ including its decision to grant
dismissal of a complaint on state secrets grounds.” El-Masri v.
United States, 479 F.3d 296, 302 (4th Cir. 2007) (quoting
Sterling v. Tenet,
416 F.3d 338, 342 (4th Cir. 2005)).
6
“Under the state secrets doctrine, the United States may
prevent the disclosure of information in a judicial proceeding
if ‘there is a reasonable danger’ that such disclosure ‘will
expose military matters which, in the interest of national
security, should not be divulged.’” Id. at 302 (quoting United
States v. Reynolds,
345 U.S. 1, 10 (1953)). 3 The doctrine’s
modern form was set forth by the Supreme Court in Reynolds, and
its continued validity has been repeatedly confirmed by the
Supreme Court and by this Court. See, e.g., Tenet v. Doe,
544
U.S. 1 (2005);
El-Masri, 479 F.3d at 302-03;
Sterling, 416 F.3d
at 342.
Reynolds dealt with suits filed under the Federal Tort
Claims Act arising from the deaths of three civilians in the
crash of a military aircraft that had been testing secret
electronic equipment. 345 U.S. at 2–3. The government filed a
“formal ‘Claim of Privilege’” arguing that the plane had been on
“a highly secret mission of the Air Force,” and that disclosure
of the requested materials would “seriously hamper[ ] national
security, flying safety and the development of highly technical
and secret military equipment.”
Id. at 4–5 (internal quotation
marks omitted). The Court sustained the government’s claim of
3“State secrets and military secrets are equally valid
bases for invocation of the evidentiary privilege.” Sterling,
416 F.3d at 343 (internal quotation marks and alterations
omitted).
7
privilege, finding that “the privilege against revealing
military secrets . . . is well established in the law of
evidence.” Id. at 6-7. The Court in a footnote cited a long
line of decisions, both American and English, recognizing the
government’s privilege against revealing state secrets.
Id. at
7, n.11 (collecting cases and secondary sources). 4
The resolution of a claim of state secrets privilege
requires a three-step analysis. El-Masri, 479 F.3d at 304.
First, “the court must ascertain that the procedural
requirements for invoking the state secrets privilege have been
satisfied.”
Id. Second, “the court must decide whether the
information sought to be protected qualifies as privileged under
the state secrets doctrine.”
Id. Third, if the “information is
determined to be privileged, the ultimate question to be
resolved is how the matter should proceed in light of the
successful privilege claim.”
Id.
A.
The procedural requirements for invoking the state secrets
privilege were established by the Supreme Court in Reynolds.
4 See, e.g., Totten v. United States, 92 U.S. 105, 107
(1875) (“[P]ublic policy forbids the maintenance of any suit in
a court of justice, the trial of which would inevitably lead to
the disclosure of matters which the law itself regards as
confidential, and respecting which it will not allow the
confidence to be violated.”).
8
345 U.S. at 7-8. First, the state secrets privilege must be
asserted by the United States government; it “can neither be
claimed nor waived by a private party.”
Id. at 7 (footnotes
omitted). Second, “[t]here must be a formal claim of privilege,
lodged by the head of the department which has control over the
matter.”
Id. at 7-8. Third, the department head’s formal claim
of the state secrets privilege may be made only “after actual
personal consideration by that officer.”
Id. at 8.
B.
“After a court has confirmed that the Reynolds procedural
prerequisites are satisfied, it must determine whether the
information that the United States seeks to shield is a state
secret, and thus privileged from disclosure.” El-Masri, 479
F.3d at 304. This determination “places on the court a special
burden to assure itself that an appropriate balance is struck
between protecting national security matters and preserving an
open court system.” Al-Haramain Islamic Found., Inc. v. Bush,
507 F.3d 1190, 1203 (9th Cir. 2007).
The state secrets privilege “performs a function of
constitutional significance, because it allows the executive
branch to protect information whose secrecy is necessary to its
military and foreign-affairs responsibilities.” El-Masri, 479
F.3d at 303. As such, the executive’s determination that
9
disclosure of information might pose a threat to national
security is entitled to “utmost deference.” United States v.
Nixon, 418 U.S. 683, 710 (1974), superseded by statute on other
grounds as recognized by Bourjaily v. United States,
483 U.S.
171, 177–79 (1987).
Yet at the same time, “‘[j]udicial control over the
evidence in a case cannot be abdicated to the caprice of
executive officers’--no matter how great the interest in
national security.” El-Masri, 479 F.3d at 304 (quoting
Reynolds, 345 U.S. at 9–10) (alteration in quoting source); see
also
Sterling, 416 F.3d at 343 (noting the importance of
“[j]udicial involvement in policing the privilege”). When the
privilege is validly asserted, “the result is unfairness to
individual litigants,” Fitzgerald v. Penthouse Int’l, Ltd.,
776
F.2d 1236, 1238, n.3 (4th Cir. 1985); thus, “to ensure that the
state secrets privilege is asserted no more frequently and
sweepingly than necessary, it is essential that the courts
continue critically to examine instances of its invocation.”
Ellsberg v. Mitchell,
709 F.2d 51, 58 (D.C. Cir. 1983). “We
take very seriously our obligation to review the [government’s
claims] with a very careful, indeed a skeptical, eye, and not to
accept at face value the government’s claim or justification of
privilege.”
Al–Haramain, 507 F.3d at 1203. Appropriate
judicial oversight is vital to protect against the “intolerable
10
abuses” that would follow an “abandonment of judicial control,”
Reynolds, 345 U.S. at 8.
The Supreme Court balanced these concerns in Reynolds “by
leaving the judiciary firmly in control of deciding whether an
executive assertion of the state secrets privilege is valid, but
subject to a standard mandating restraint in the exercise of its
authority.” El-Masri, 479 F.3d at 304–05. As such, “[a] court
is obliged to honor the Executive’s assertion of the privilege
if it is satisfied, ‘from all the circumstances of the case that
there is a reasonable danger that compulsion of the evidence
will expose military matters which, in the interest of national
security, should not be divulged.’”
Id. at 305 (quoting
Reynolds, 345 U.S. at 10).
The burden is on the government to satisfy the “reviewing
court that the Reynolds reasonable-danger standard is met.” Id.
“Frequently, the explanation of the department head who has
lodged the formal privilege claim, provided in an affidavit or
personal declaration, is sufficient to carry the Executive’s
burden.” Id.; citing
Sterling, 416 F.3d at 345 (relying on
declarations of CIA Director);
Reynolds, 345 U.S. at 5 (relying
11
on a claim of privilege by Secretary of the Air Force and an
affidavit of the Air Force Judge Advocate General). 5
Once this burden is carried, “the claim of privilege will
be accepted without requiring further disclosure.” Reynolds,
345 U.S. at 9. Although it is for the court to determine
“whether the circumstances are appropriate for the claim of
privilege,” we must “do so without forcing a disclosure of the
very thing the privilege is designed to protect.”
Reynolds, 345
U.S. at 7-8. “[B]oth Supreme Court precedent and our own cases
provide that when a judge has satisfied himself that the dangers
asserted by the government are substantial and real, he need
not--indeed, should not--probe further.”
Sterling, 416 F.3d at
345.
C.
Once the information is found to be properly privileged,
the final step in the state secrets privilege analysis is for
5
It is important to note that, by itself, “an executive
decision to classify information is insufficient to establish
that the information is privileged.” Mohamed v. Jeppesen
Dataplan, Inc., 614 F.3d 1070, 1082 (9th Cir. 2010); see also
Ellsberg, 709 F.2d at 57 (“[T]he privilege may not be used to
shield any material not strictly necessary to prevent injury to
national security. . . .”). “Although classification may be an
indication of the need for secrecy, treating it as conclusive
would trivialize the court’s role.”
Mohamed, 613 F.3d at 1082.
12
the court to determine whether the case can proceed without the
privileged information.
Information that is properly privileged under the state
secrets doctrine “is absolutely protected from disclosure--even
for the purpose of in camera examination by the court.” El-
Masri, 479 F.3d at 306. The Supreme Court was explicit as to
this point in Reynolds: “When . . . the occasion for the
privilege is appropriate, . . . the court should not jeopardize
the security which the privilege is meant to protect by
insisting upon an examination of the evidence, even by the judge
alone, in
chambers.” 345 U.S. at 10.
Furthermore, “no attempt is made to balance the need for
secrecy of the privileged information against a party’s need for
the information’s disclosure; a court’s determination that a
piece of evidence is a privileged state secret removes it from
the proceedings entirely.” El-Masri, 479 F.3d at 306 (citing
Reynolds, 346 U.S. at 11). “[E]ven the most compelling
necessity cannot overcome the claim of privilege if the court is
ultimately satisfied that military secrets are at stake.”
Reynolds, 345 U.S. at 11.
As such, “[i]f a proceeding involving state secrets can be
fairly litigated without resort to the privileged information,
it may continue.” El-Masri, 479 F.3d at 306. On the other
hand, “a proceeding in which the state secrets privilege is
13
successfully interposed must be dismissed if the circumstances
make clear that privileged information will be so central to the
litigation that any attempt to proceed will threaten that
information’s disclosure.” Id. at 308 (citations omitted); see
also
Sterling, 416 F.3d at 347-48 (“We have long recognized that
when ‘the very subject of [the] litigation is itself a state
secret,’ which provides ‘no way [that] case could be tried
without compromising sensitive military secrets,’ a district
court may properly dismiss the plaintiff’s case.” (quoting
Fitzgerald, 776 F.2d at 1243) (alterations in original)); Bowles
v. United States,
950 F.2d 154, 156 (4th Cir. 1991) (per curiam)
(“If the case cannot be tried without compromising sensitive
foreign policy secrets, the case must be dismissed.”). “To be
sure, dismissal is appropriate ‘[o]nly when no amount of effort
and care on the part of the court and the parties will safeguard
privileged material,’”
Sterling, 416 F.3d at 348 (quoting
Fitzgerald, 776 F.2d at 1244) (alteration in original); however,
“dismissal follows inevitably when the sum and substance of the
case involves state secrets,”
id. at 347.
We have identified three examples of circumstances in which
the privileged information is so central to the litigation that
dismissal is required. First, dismissal is required if the
plaintiff cannot prove the prima facie elements of his or her
claim without privileged evidence. See Farnsworth Cannon, Inc.
14
v. Grimes, 635 F.2d 268, 281 (4th Cir. 1980) (en banc) (per
curiam) (“[A]ny attempt on the part of the plaintiff to
establish a prima facie case would so threaten disclosure of
state secrets that the overriding interest of the United States
and the preservation of its state secrets precludes any further
attempt to pursue this litigation.”). Second, even if the
plaintiff can prove a prima facie case without resort to
privileged information, the case should be dismissed if “the
defendants could not properly defend themselves without using
privileged evidence.”
El-Masri, 479 F.3d at 309; see also
Sterling, 416 F.3d at 347. Finally, dismissal is appropriate
where further litigation would present an unjustifiable risk of
disclosure. See
El-Masri, 479 F.3d at 308 (“[A] proceeding in
which the state secrets privilege is successfully interposed
must be dismissed if the circumstances make clear that
privileged information will be so central to the litigation that
any attempt to proceed will threaten that information’s
disclosure.”).
With these principles in mind, and “being cognizant of the
delicate balance to be struck in applying the state secrets
doctrine,” El-Masri, 479 F.3d at 308, we proceed to our analysis
of Abilt’s claim.
15
III.
A.
The district court correctly found that the government
satisfied each of the first two steps of the state secrets
inquiry outlined by this Court in El-Masri. 479 F.3d at 304.
The government satisfied the first step, the Reynolds procedural
requirements, by submitting the declaration of John Brennan, in
his capacity as the Director of the CIA, asserting the state
secrets privilege after personal consideration of Abilt’s claims
and determining that the disclosure of information relating to
“intelligence sources, methods, and activities that may be
implicated by the allegations in the plaintiff’s Amended
Complaint . . . are at risk of disclosure in this case.” J.A.
44. Furthermore, after a review of the public and classified
declarations filed by Dir. Brennan in support of the invocation
of the state secrets privilege, we are satisfied that the
government has satisfied the Reynolds “reasonable danger”
standard. 6 There is little doubt that there is a reasonable
danger that if information the government seeks to protect from
6
The district court held that collateral estoppel applies
to the government’s invocation of the state secrets privilege
because the issues in this case are identical to the issues
settled in Abilt I. Finding that the information is properly
privileged regardless, we do not reach the collateral estoppel
issue.
16
disclosure--information regarding the specific CIA programs on
which Abilt worked; the identities of certain CIA officers; the
job titles, duties, and work assignments of Abilt, his
coworkers, and his supervisors; the criteria for making work
assignments; the sources and methods used by the CIA; the
targets of CIA intelligence collection and operations; the
training preparations required to send a CIA officer overseas;
and the location of CIA covert facilities--were revealed, that
disclosure would threaten the national security of the United
States. As such, it falls squarely within the ambit of the
state secrets privilege. 7 Finding the information in question to
be properly privileged, we necessarily “remove[ ] it from the
proceedings entirely.” See El-Masri, 479 F.3d at 306 (citing
Reynolds, 345 U.S. at 11). 8
7 See, e.g., Sterling 416 F.3d at 346 (holding that
“information that would result in . . . disclosure of
intelligence-gathering methods or capabilities, and disruption
of diplomatic relations with foreign governments falls squarely
within the definition of state secrets” (alterations in
original) (internal quotation marks omitted) (quoting Molerio v.
F.B.I.,
749 F.2d 815, 820–21 (D.C. Cir. 1984)));
Mohamed, 614
F.3d at 1086 (holding that “information concerning CIA
clandestine intelligence operations that would tend to reveal
intelligence activities, sources or methods” is protected by
state secrets privilege);
Al–Haramain, 507 F.2d at 1204
(applying the state secrets privilege to “the means, sources and
methods of intelligence gathering”).
8Abilt does not reasonably contend that the information the
government seeks to protect is not properly privileged.
Although Abilt asserts that the district court erred in
(Continued)
17
B.
Finding that the information is properly privileged, “the
ultimate question to be resolved is how the matter should
proceed in light of the successful privilege claim.” El-Masri,
479 F.3d at 304.
Our analysis, then, properly begins with an examination of
the information required to litigate Abilt’s claims. See El-
Masri, 479 F.3d at 308. Abilt brings two claims, one under the
Rehabilitation Act for alleged disability discrimination and
failure to accommodate, and another under Title VII for alleged
retaliation for his EEO activities. Abilt may succeed on these
claims either by presenting direct evidence of his superiors’
discriminatory intent, or by proceeding under the burden
shifting framework set out in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). It appears, based on his briefs, that
determining “that there were no genuine issues of material fact
that the agency properly invoked the state secrets privilege,”
Appellant’s Br. 9, Abilt’s brief fails to make any argument to
support this assertion. Abilt’s only argument regarding this
issue is simply that the district court misstated his concession
that the privilege applied and that “non-privileged information
exists and/or can be discovered, which would enable the
Appellant to support a prima facie case and enable Defendants to
support a defense to Mr. Abilt’s claims.” Appellant’s Br. 11
(emphasis in original). This, however, is an argument that the
case may go forward under the third El-Masri step, not whether
the privilege has been properly invoked. Accordingly, we
address this argument in Section III.B.
18
Abilt is attempting to proceed under the McDonnell Douglas
framework.
The McDonnell Douglas framework has been utilized to
evaluate discrimination and retaliation claims under both Title
VII and the Rehabilitation Act. See Ennis v. Nat’l Ass’n of
Bus. & Educ. Radio, Inc., 53 F.3d 55, 57–58 (4th Cir. 1995).
Under McDonnell Douglas, the plaintiff has the initial burden of
proving his or her prima facie case by a preponderance of the
evidence.
Id. at 58. If the plaintiff succeeds, the burden
shifts to the defendant to articulate some legitimate,
nondiscriminatory reason for its actions.
Id. Finally, once
the defendant proffers its justification for the action, the
burden shifts back to the plaintiff to “prove by a preponderance
of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for
discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine,
450
U.S. 248, 253 (1981) (citing McDonnell
Douglas, 411 U.S. at
804).
Establishing each of the prima facie elements 9 of his claims
without resort to privileged information is an extremely high
9
To establish his prima facie claim of disparate treatment
discrimination Abilt must show that: (1) he has a disability;
(2) suffered a material adverse action; (3) was performing the
essential functions of his position at a level that met his
employer’s legitimate expectations; and (4) the adverse action
(Continued)
19
hurdle given the facts of this case, one that the district court
felt Abilt could not clear. However, even if we assume that
Abilt can make his prima facie case, we find that our precedent
nonetheless requires dismissal because any defense to these
claims that the government could offer would undoubtedly rely on
privileged information.
We have consistently upheld dismissal when “the defendants
could not properly defend themselves without using privileged
information” and the “main avenues of defense available” would
require privileged information. El-Masri, 479 F.3d at 309-10
(finding dismissal proper because “virtually any conceivable
response to El–Masri’s allegations would disclose privileged
information”); see also
Sterling, 416 F.3d at 347. For
instance, in Sterling, a covert employee filed a complaint
against the CIA under Title VII alleging employment
discrimination and
retaliation. 416 F.3d at 341. Specifically,
Sterling alleged that he was denied “advantageous opportunities,
subjected . . . to disparate treatment, [was given work plans]
that contained more rigorous requirements” than similarly
occurred under circumstances that raise a reasonable inference
of unlawful discrimination.
Ennis, 53 F.3d at 58. Likewise, in
order to establish his prima facie case of retaliation, Abilt
would need to show that he engaged in protected activity, that
he was subject to an adverse employment action, and that there
is a causal link between the two. See Laing v. Fed. Express
Corp.,
703 F.3d 713, 720 (4th Cir. 2012).
20
situated coworkers. Id. He also alleged retaliation for using
the EEO process to report this alleged discrimination. Although
we found that Sterling could not make out his prima facie case,
we reasoned that “[e]ven assuming Sterling were somehow able to
manage the impossible feat of making out all the elements of a
Title VII claim without revealing state secrets, further issues
would remain” because the government would still be “entitled to
present, as a defense to Sterling’s prima facie case, legitimate
nondiscriminatory reasons for its actions.”
Id. at 347. The
evidence required to mount this defense, we explained, “would
inescapably reveal the criteria inherent in sensitive CIA
decisionmaking.”
Id.
In the present case, even if Abilt establishes the prima
facie case for either of his claims, the CIA is entitled to
proffer a legitimate, non-discriminatory reason for its actions
as a defense. St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502,
506–07 (1993). Yet, based on the nature of Abilt’s claims,
virtually any reason the CIA could offer for its actions would
require the disclosure of information about Abilt’s performance
as a covert operative, the nature of the jobs he sought, the
requirements of those jobs, the job performance of his
colleagues, and/or the criteria used by the CIA to make
assignments. Abilt’s claims allege that his supervisor at the
CIA canceled his temporary duty assignment to a warzone, denied
21
him other assignments and training opportunities available to
his coworkers, and falsely reported that he was failing to
satisfactorily perform his clandestine work assignments. Just
as in Sterling, any explanation that the CIA could offer for
these actions “would inescapably reveal the criteria inherent in
sensitive CIA decisionmaking.” 416 F.3d at 347. 10 This
information is properly protected from disclosure, thus,
dismissal is required.
Abilt points to the lower burden at step two of the
McDonnell Douglas framework as evidence that the CIA can defend
itself without resort to privileged information. See Burdine,
450 U.S. at 254 (“The defendant need not persuade the court that
it was actually motivated by the proffered reasons. It is
sufficient if the defendant’s evidence raises a genuine issue of
fact as to whether it discriminated against the plaintiff.”
(citations omitted)). However, even if the CIA enjoys a lower
burden at step two of the McDonnell Douglas framework, its
responsibilities do not end there. Under step three of the
McDonnell Douglas analysis, “[t]he plaintiff then has ‘the full
and fair opportunity to demonstrate,’ through presentation of
his [or her] own case and through cross-examination of the
10
Although Abilt attempts to distinguish Sterling on the
grounds that he does not need comparator evidence to establish
his prima facie case, the nature of the information required for
the CIA to defend itself in the two cases is indistinguishable.
22
defendant’s witnesses, ‘that the proffered reason was not the
true reason for the employment decision.” Hicks, 509 U.S. at
507-08 (quoting
Burdine, 450 U.S. at 256). To be clear, even if
the CIA could, as Abilt suggests, proffer a legitimate
nondiscriminatory reason for its actions without resort to
privileged information, in properly litigating that reason,
Abilt would be entitled to probe deeper into the CIA’s
justifications “through cross-examination of the [CIA]’s
witnesses.”
Id. In doing so, Abilt “would have every incentive
to probe as close to the core secrets as the trial judge would
permit.”
Farnsworth, 635 F.2d at 281. “Such probing . . .
would so threaten disclosure of state secrets that the
overriding interest of the United States and the preservation of
its state secrets precludes any further attempt to pursue this
litigation.”
Id.
Abilt further contends that “the Agency does not need
classified information to advance its defense” because “[a]ny
argument that he could not perform his duties overseas or
overseas in a warzone is contradicted by non-classified
information.” Appellant’s Br. 22–23. However, the simple fact
that Abilt believes he can show that the CIA’s proffered non-
discriminatory reasons for its actions are pretextual does not
mean that the CIA is not entitled to present its justifications,
or that we should ignore the fact that any such justification is
23
properly privileged. The CIA is entitled to proffer legitimate,
nondiscriminatory reasons for its actions. If those reasons are
properly privileged--as is the case here--then the case must be
dismissed.
C.
Abilt also argues that “protective measures,” particularly
in camera review, are adequate to protect the state secrets at
issue here. To the contrary, this Court has held that an ex
parte trial is “expressly foreclosed” by the Supreme Court’s
decision in Reynolds. El-Masri, 479 F.3d at 311. Indeed,
“[i]nadvertent disclosure during the course of a trial--or even
in camera--is precisely the sort of risk that Reynolds attempts
to avoid. At best, special accommodations give rise to added
opportunity for leaked information. At worst, that information
would become public, placing covert agents and intelligence
sources alike at grave personal risk.”
Sterling, 416 F.3d at
348.
Although Abilt points to procedures developed by the
district court in Roule v. Petraeus, No. C 10-04632 LB, 2012 WL
2367873, at *7 (N.D. Cal. June 21, 2012), designed to “avoid
presenting sensitive information,” that case is easily
distinguishable in that at the time of that court’s decision,
the government had not asserted the state secrets privilege.
24
Once the privilege has been asserted, we are obliged to evaluate
that claim under the three-step analysis put forward by this
Court in El-Masri, 479 F.3d at 304. As explained above, those
steps require dismissal.
D.
We acknowledge once again the unfortunate burden, on behalf
of the entire country, that our decision places on Abilt. See
Sterling, 416 F.3d at 348 (“We recognize that our decision
places, on behalf of the entire country, a burden on Sterling
that he alone must bear.”);
El-Masri, 479 F.3d at 313 (“As we
have observed in the past, the successful interposition of the
state secrets privilege imposes a heavy burden on the party
against whom the privilege is asserted.”). Abilt suffers
dismissal of his claim “not through any fault of his own, but
because his personal interest in pursuing his civil claim is
subordinated to the collective interest in national security.”
El-Masri, 479 F.3d at 313; see also
Fitzgerald, 776 F.2d at 1238
n.3 (“When the state secrets privilege is validly asserted, the
result is unfairness to individual litigants-—through the loss
of important evidence or dismissal of a case-—in order to
protect a greater public value.”). We however find that “in
limited circumstances like these, the fundamental principle of
25
access to court must bow to the fact that a nation without sound
intelligence is a nation at risk.” Sterling, 416 F.3d at 348.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
26
