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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disclosure
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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
11
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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
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