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Media Alerts - Abilt v. Central Intelligence Agency -- Fourth Circuit
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March 14, 2017
  Abilt v. Central Intelligence Agency -- Fourth Circuit
National Security > Disability Discrimination: Sleepy Spy Shoulders "Unfortunate Burden" in State Secrets Privilege Case

Areas of Law: Employment Law, Disability Law

Issue Presented: Whether the district court correctly applied the state secrets doctrine.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court correctly applied the state secrets doctrine. The court affirmed the district court's decision to dismiss Abilt's lawsuits against the Central Intelligence Agency.

Extended Summary: In June 2006, the Central Intelligence Agency ("CIA" or the "Agency") hired Jacob E. Abilt as an Applications Developer. Abilt informed the Agency that he had narcolepsy. Abilt became a covert employee in May 2008, rendering classified many of the basic facts of his employment with the Agency, including his job responsibilities and the identities of most of his supervisors and coworkers. In early 2009, Abilt began to experience difficulty managing his narcolepsy and asked his then-supervisor for permission to take periodic naps. His then-supervisor granted this request. Around the same time, the Agency's Medical Officer cleared Abilt for a temporary-duty-yonder ("TDY") assignment to an overseas warzone. Abilt was then assigned to a new supervisor, who delayed Abilt's TDY assignment by 30 days after he saw Abilt sleeping at his desk. Over the next two years, the Agency cancelled Abilt's war zone and TDY assignments and allegedly denied him other assignments and training opportunities because of his narcolepsy. Abilt filed administrative complaints with the Equal Employment Opportunity Office ("EEOO"), alleging disability discrimination, failure to accommodate, and retaliation. The Agency rejected his claims as unsupported, and the Equal Employment Opportunity Commission affirmed. Abilt was fired in October 2011.

Abilt sued the Agency and Director John Brennan in February 2014 and again in December 2014. He presented the same claims he had alleged in his EEOO complaint, as well as a failure to accommodate claim under both Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. The Agency invoked the state secrets privilege over various information related to Abilt's employment in both suits. Under the state secrets doctrine, the government 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. The district court dismissed Abilt's claims in both suits, holding that the Agency properly invoked the privilege. The court reasoned that neither Abilt nor the Agency could make a case without disclosing privileged information.

On appeal, Abilt argued that the district court misapplied the state secrets doctrine. He also contended that the Agency could defend itself by using non-classified information. The court disagreed, finding that even if Abilt could establish a prima facie case, the Agency could not defend itself without relying on privileged information. The court relied heavily on United States v. Reynolds, 345 U.S. 1, 10 (1953), and El-Masri v. United States, 479 F.3d 296, 302 (4th Cir. 2007), which established procedural requirements for invoking the privilege and the three-step analysis for the resolution of a claim of the privilege, respectively. The three-step analysis requires a court to: 1) ascertain that the procedural requirements for invoking the state secrets privilege have been satisfied; 2) decide whether the information sought to be protected qualifies as privileged under the state secrets doctrine; and 3) determine how the matter should proceed in light of the successful privilege claim if the information is determined to be privileged.

First, the court determined the Agency satisfied Reynolds' procedural requirements by submitting Director John Brennan's affidavit asserting the state secrets privilege after personal consideration of Abilt's claims and determining that classified information related to his employment was at risk of disclosure in this case. Second, the court found that the information the government sought to protect, such as the identity of covert CIA employees, Abilt's work assignments, the location of CIA facilities overseas, and the sources and methods used by the CIA, was properly privileged. Therefore, the disclosure of such information would threaten the national security of the United States. Finally, in deciding the ultimate question of how the matter should proceed given the privileged information, the court determined the case had to be dismissed. The court first noted that establishing each of the prima facie elements of Abilt's claims without the privileged information would be an "extremely high hurdle." Nevertheless, the court reasoned, assuming Abilt could clear the hurdle, the case should still be dismissed because any defenses the Agency could offer would "undoubtedly" rely on privileged information. The court found unconvincing Abilt's argument that the lower burden at step two of the McDonnell Douglas framework, a framework used to evaluate discrimination and retaliation claims under both statutes, was evidence that the Agency could defend itself without resort to privileged information. The court reasoned that the Agency was entitled to proffer legitimate, non-discriminatory reasons for its actions and because those reasons are privileged, the case had to be dismissed.

The court acknowledged the "unfortunate burden" its decision placed on Abilt on behalf of the entire country, noting that "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.'"

To read the full opinion, click here.

Panel: Wynn, Floyd, and Harris, Circuit Judges.

Argument Date: 10/27/2016

Date of Issued Opinion: 02/08/2107

Docket Number: No. 15-2568

Decided: Affirmed by published opinion. Judge Floyd wrote the opinion, in which Judge Wynn and Judge Harris joined.

Case Alert Author: Yvette Pappoe, Univ. of Maryland Carey School of Law

Counsel: 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.

Author of Opinion: Judge Floyd, Circuit Judge

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/14/2017 09:57 AM     4th Circuit  

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