Abilt v. Maryland. The Fourth Circuit barred a claim of discrimination and retaliation by a clandestine CIA operative because the claim necessarily implicated state secrets. The opinion provides a good overview of the state secrets privilege doctrine.

Abilt (not his real name) was hired as an applications developer for the CIA in June 2006. About the same time, he informed the CIA he was diagnosed with narcolepsy. From May 2008 to October 2011, he was a covert employee and most of his job was classified.

In 2008, Abilt started napping at work with permission. Around that time, he was cleared for a temporary overseas assignment, which would have come with more pay because it was in a war zone. When his supervisor saw him sleeping at his desk, his overseas assignment was delayed 30 days. He complaint. The delay became 6 months overseas, and 12 months to any war zone. After six months, he was told there were no opportunities to travel. After 12 months, he was medically cleared for travel, but given a new list of requirements he alleged only applied to him.

In March 2011, he was cleared for overseas travel, but told he would have to complete an overseas assignment before being cleared for a war zone. After completing the first assignment, he was medically cleared, but still denied a war zone assignment allegedly because of safety concerns related to narcolepsy.

He complained to the EEOC and the EEOC affirmed the decision. He was terminated.

Abilt filed two suits. In this one, he 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.

The CIA moved for summary judgment based on state secrets privilege. The trial court then dismissed the action.

Under the state secrets doctrine, the government can prevent disclosure of information in court if there is a reasonable danger that disclosure will expose military matters which, in the interest of national security, should not be divulged. A claim of states secrets privilege requires the court to engage in a three-step analysis.

First, the court must determine that the procedural requirements for invoking the state secrets privilege have been satisfied. Second, the court must decide whether the information qualifies as privileged under the doctrine. Third, the court must resolve how the matter should proceed in light of the successful privilege claim.

Procedural Requirements

The three procedural requirements are that (1) the claim is made by the government (2) in a formal claim of privilege lodged by the head of the department which has control over the matter (3) after actual personal consideration by that officer. Here, the government satisfied this burden by submitting the declaration of John Brennan, then Director of the CIA, asserting the state secrets privilege after personal consideration of Abilt’s claims.

Information Qualified as Privileged

The court has a “special burden” to assure itself that an appropriate balance is struck between protecting national security matters and preserving an open court system. The government’s determination that disclosure of information might pose a threat to national security is entitled to “utmost deference” but the court must not abdicate to the “caprice of executive officers.”

The court must honor the assertion of the privilege if the court is satisfied 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. The burden is on the government to satisfy the court, but the court must weigh this decision without forcing disclosure of the confidential information the privilege is intended to protect. This really puts courts in the awkward position of having to decide whether the information ought not be disclosed without knowing specifically what the information is.

Here, after a review of Brennan’s public and classified declarations filed in support of the of privilege, the Fourth Circuit agreed with the trial court that the government met this burden.

There is little doubt that there is a reasonable danger that if information the government seeks to protect from 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.”

Citations Omitted.

Can the case proceed without the privileged info?

Information that is properly privileged is absolutely protected from disclosure. Not even an in camera review or disclosure under seal is sufficient to protect the information. There is no balancing the need for security against a party’s need for the information. Instead, the information is simply secret.

Where privileged information is central to the litigation, dismissal may be required to avoid disclosure. For example, dismissal is required if a plaintiff cannot prove the prima facie elements of the claim without the privileged information. A case should also be dismissed if the defendants cannot defend themselves without using the information. Finally, if litigation would present an unjustifiable risk of disclosure, the case should be dismissed.

Here, Abilt brought two claims, one for alleged disability discrimination and failure to accommodate, and another for alleged retaliation for his EEO activities. To succeed on those claims, he would have had to either present direct evidence of discriminatory intent, or by proving a prima facie case by a preponderance of the evidence and shifting the burden to the defendant to articulate its legitimate, nondiscriminatory reason for its actions. (this is known as the McDonnell Douglas burden shifting framework, set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Abilt attempted to proceed under the McDonnell Douglas framework.

The district court, in short, concluded that establishing each of the prima facie elements of his claims without resort to privileged information could not be done. The Fourth Circuit, however, assumed that even if Abilt could make his case, any defense would have relied on privileged information.

…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. …

If the case had been allowed to proceed, even if the CIA could have offered a nondiscriminatory reason for its actions, Abilt would have been able to cross examine the CIA’s witnesses. He could have probed into the actions to show that the nondiscriminatory reasons were only a pretext. This probing, in the Court’s opinion, would have impermissibly threatened disclosure of state secrets.

In short, clandestine intelligence workers should not expect to be able to engage in a full hearing of their claims. The nature of their work almost certainly precludes them from ever airing all the facts and circumstances of any work they are doing because it almost certainly falls into the realm of information which ought not to be disclosed – otherwise it wouldn’t be clandestine in the first place.

We acknowledge once again the unfortunate burden, on behalf of the entire country, that our decision places on Abilt. … 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.” … We however find that “in limited circumstances like these, the fundamental principle of access to court must bow to the fact that a nation without sound intelligence is a nation at risk.” …

Citations Omitted.