Jacob E. Abilt v. CIA

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cv-01626-GBL-MSN. [1000019671]. [15-2568]

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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.

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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

privileged

and

unjustifiable

the
that

information
litigation

risk

of

of

in

question

the

case

disclosure

of

is

would
that

properly

present

an

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.
informed

the

Beginning

in

Agency
May

Around the time he was hired, Abilt

that

2008

he

until

had
the

a

diagnosis

ultimate

of

narcolepsy.

termination

of

employment in October 2011, Abilt was a covert employee.

his
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

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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

assignment

Abilt

was

complained,

delayed

six

he

months

was
due

to

told

that

potential

his

TDY

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

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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.
successfully

completed

his

TDY

overseas

assignment,

requested a TDY assignment to a warzone.

Abilt

and

then

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

opportunities

offered

administrative
disability
retaliation.
as

him

to

complaints

with

his
in

discrimination,

the

same

training

co-workers.

both

2009

failure

to

and

Abilt
2010

and
filed

alleging

accommodate,

and

The Agency issued a decision rejecting his claims

unsupported

Commission

provide

in

(EEOC)

2011.
affirmed

The

Equal

Employment

the

Agency’s

Opportunity

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
4

“Agency”)

in

February

2014,

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alleging discrimination and ultimately termination based on his
disability, failure to accommodate, and retaliation.
invoked

the

state

secrets

privilege

related to Abilt’s employment.
Agency

properly

invoked

over

various

The Agency
information

The district court held that the

the

privilege,

and

dismissed

the

complaint without prejudice, finding that Abilt could not prove
his

prima

facie

case

of

privileged information.

discrimination

without

resorting

to

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
retaliation.
his

TDY

denied

and

to

accommodate,

as

well

as

In particular, Abilt alleged that the CIA canceled

assignment
him

failure

other

to

a

warzone

assignments

because
and

of

his

training

disability,

opportunities

available to his coworkers, and falsely reported that he was
failing

to

assignments.
summary

satisfactorily

perform

his

clandestine

work

After Abilt I was dismissed, the Agency moved for

judgment

in

Abilt

II
5

based

on

the

state

secrets

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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

information,
issues.

I

Abilt

The

court

covered

was

many

barred

then

of

from

the

same

categories

relitigating

dismissed

the

action

of

those

same

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

dismissal of a complaint on state secrets grounds.”
United

States,

479

F.3d

296,

302

(4th

Cir.

to

El-Masri v.

2007)

Sterling v. Tenet, 416 F.3d 338, 342 (4th Cir. 2005)).

6

grant

(quoting

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“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

security, should not be divulged.’”

the

interest

of

national

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

Supreme Court and by this Court.

repeatedly

confirmed

by

the

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

electronic equipment.

aircraft

that

had

345 U.S. at 2–3.

been

testing

secret

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.”
marks omitted).

Id. at 4–5 (internal quotation

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

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privilege,
military

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finding

secrets

evidence.”

that

.

.

“the

.

Id. at 6-7.

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is

privilege

well

against

established

in

revealing

the

law

of

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
requires
First,

resolution
a

of

three-step

“the

court

a

claim

analysis.
must

of

state

El-Masri,

ascertain

that

secrets
479

privilege

F.3d

the

at

304.

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.”
determined
resolved

is

to

be

how

Id.

privileged,
the

matter

successful privilege claim.”

Third, if the “information is
the

should

ultimate
proceed

question
in

light

to
of

be
the

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

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345 U.S. at 7-8.

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First, the state secrets privilege must be

asserted by the United States government; it “can neither be
claimed nor waived by a private party.”
omitted).

Id. at 7 (footnotes

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.”
F.3d at 304.

El-Masri, 479

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

constitutional

secrets

privilege

significance,

because

“performs
it

allows

a

function
the

of

executive

branch to protect information whose secrecy is necessary to its
military and foreign-affairs responsibilities.”
F.3d

at

303.

As

such,

the

executive’s
9

El-Masri, 479

determination

that

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of

information

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might

pose

a

threat

security is entitled to “utmost deference.”

to

national

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

evidence

in

a

executive

same

case

time,

cannot

officers’--no

national

“‘[j]udicial
be

abdicated

matter

security.”

control

how

El-Masri,

479

to

great

the

caprice

of

interest

in

the
the

F.3d

over

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

“[j]udicial involvement in policing the privilege”).
privilege

is

validly

asserted,

“the

result

is

of

When the

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

sweepingly
continue

privilege

than

is

necessary,

critically

to

asserted
it

is

examine

no

more

essential

instances

of

frequently
that
its

the

and

courts

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

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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,

has

the

explanation

of

the

department

head

who

lodged the formal privilege claim, provided in an affidavit or
personal
burden.”

declaration,

is

sufficient

to

carry

the

Executive’s

Id.; citing Sterling, 416 F.3d at 345 (relying on

declarations of CIA Director); Reynolds, 345 U.S. at 5 (relying

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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

determine

U.S.

“whether

at
the

9.

Although

circumstances

it

is

are

for

the

appropriate

court

to

for

the

claim

of

privilege,” we must “do so without forcing a disclosure of the
very thing the privilege is designed to protect.”
U.S. at 7-8.

Reynolds, 345

“[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

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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.”
Masri, 479 F.3d at 306.
this

point

in

El-

The Supreme Court was explicit as to

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.”
Reynolds,

346

U.S.

at

El-Masri, 479 F.3d at 306 (citing

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.”
hand, “a

proceeding

El-Masri, 479 F.3d at 306.
in

which

the
13

state

secrets

On the other
privilege

is

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successfully interposed must be dismissed if the circumstances
make clear that privileged information will be so central to the
litigation

that

any

attempt

information’s disclosure.”

to

proceed

will

threaten

that

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,’
without
court

which

provides

compromising
may

properly

‘no

way

sensitive
dismiss

[that]

military

the

case

could

secrets,’

plaintiff’s

be

tried

a

district

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.
14

See Farnsworth Cannon, Inc.

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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

plaintiff

pursue
can

this

prove

a

litigation.”).
prima

facie

Second,

case

even

without

if

the

resort

to

privileged information, the case should be dismissed if “the
defendants could not properly defend themselves without using
privileged

evidence.”

El-Masri,

Sterling, 416 F.3d at 347.

479

F.3d

at

309;

see

also

Finally, dismissal is appropriate

where further litigation would present an unjustifiable risk of
disclosure.
which

the

must

be

See El-Masri, 479 F.3d at 308 (“[A] proceeding in
state

secrets

dismissed

privilege

if

the

is

successfully

circumstances

make

interposed
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

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III.
A.
The

district

satisfied

each

of

court
the

correctly
first

two

found
steps

that
of

inquiry outlined by this Court in El-Masri.

the

the

government

state

secrets

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
implicated

sources,

by

the

methods,

and

allegations

in

activities
the

that

plaintiff’s

may

Amended

Complaint . . . are at risk of disclosure in this case.”
44.

be

J.A.

Furthermore, after a review of the public and classified

declarations filed by Dir. Brennan in support of the invocation
of

the

state

secrets

privilege,

satisfied

the

we

are

Reynolds

satisfied
“reasonable

that

the

government

has

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.

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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;
targets

of

the
CIA

sources

and

intelligence

methods

used

collection

and

by

the

CIA;

the

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”).
8

Abilt 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)
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B.
Finding that the information is properly privileged, “the
ultimate

question

to

be

resolved

is

how

the

matter

proceed in light of the successful privilege claim.”

should

El-Masri,

479 F.3d at 304.
Our analysis, then, properly begins with an examination of
the information required to litigate Abilt’s claims.
Masri, 479 F.3d at 308.
Rehabilitation

Act

for

See El-

Abilt brings two claims, one under the
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.
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Abilt

is

Filed: 02/08/2017

attempting

to

Pg: 19 of 26

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.
shifts

to

Id. at 58. If the plaintiff succeeds, the burden
the

defendant

to

articulate

nondiscriminatory reason for its actions.

some
Id.

legitimate,
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.”
U.S.

248,

253

Texas Dep’t of Cmty. Affairs v. Burdine, 450
(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)
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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.
(finding

dismissal

response

to

El–Masri’s

information”);
instance,
against

in

proper

see

the

CIA

because

“virtually

allegations

also

Sterling,

El-Masri, 479 F.3d at 309-10

would

under

416

covert

employee

Title

discrimination and retaliation.

VII

conceivable

disclose

Sterling,
a

any

F.3d

at

filed

347.
a

alleging

416 F.3d at 341.

privileged
For

complaint
employment

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).
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situated coworkers.

Id.

Pg: 21 of 26

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

decisionmaking.”

the

criteria

inherent

in

sensitive

CIA

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
colleagues,
assignments.

of

those

and/or

the

jobs,

the

criteria

job

used

performance
by

the

CIA

of
to

his
make

Abilt’s claims allege that his supervisor at the

CIA canceled his temporary duty assignment to a warzone, denied
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him other assignments and training opportunities available to
his

coworkers,

and

falsely

reported

that

he

was

failing

satisfactorily perform his clandestine work assignments.

to

Just

as in Sterling, any explanation that the CIA could offer for
these actions “would inescapably reveal the criteria inherent in
sensitive

CIA

information

decisionmaking.”

is

properly

416

F.3d

protected

from

347. 10

at

disclosure,

This
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

responsibilities do not end there.

Douglas

framework,

its

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

10

cross-examination

of

the

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.
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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

nondiscriminatory
privileged
Abilt

Abilt

reason

information,

would

be

justifications
witnesses.”

for
in

entitled
“through

Id.

suggests,
its

actions

properly
to

proffer

probe

a

legitimate

without

litigating
deeper

cross-examination

resort

that

into
of

reason,

the

the

to

CIA’s
[CIA]’s

In doing so, Abilt “would have every incentive

to probe as close to the core secrets as the trial judge would
permit.”
would

Farnsworth, 635 F.2d at 281.

so

threaten

disclosure

of

“Such probing . . .

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.”
Abilt

Id.

further

contends

that

“the

Agency

does

not

need

classified information to advance its defense” because “[a]ny
argument

that

overseas

in

information.”

he
a

could
warzone

not
is

perform

his

contradicted

Appellant’s Br. 22–23.

duties
by

overseas

or

non-classified

However, the simple fact

that Abilt believes he can show that the CIA’s proffered nondiscriminatory 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
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properly privileged.

Pg: 24 of 26

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.
would

become

public,

placing

At worst, that information

covert

sources alike at grave personal risk.”

agents

and

intelligence

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.
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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.
Sterling,

416

F.3d

at

348

(“We

recognize

that

our

See

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

against

whom

privilege
the

imposes

privilege

is

a

heavy

burden

asserted.”).

on

the

Abilt

party

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

protect a greater public value.”).

of

a

case-—in

order

to

We however find that “in

limited circumstances like these, the fundamental principle of

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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