On February 8, 2017, the Fourth Circuit issued a published opinion in the civil case, Abilt v. CIA. The following is a guest post by Tommy Tobin.[*]

Abilt v. CIA

Employment discrimination law protects individuals from discrimination at work based on their disabilities. But what about covert CIA employees: could they use the court system to allege employment discrimination? No, says the Fourth Circuit in a recent decision published on February 8, 2017.

In Abilt v. CIA, a covert employee with narcolepsy brought a series of suits using a pseudonym alleging disability discrimination, failure to accommodate, termination based on his disability, and retaliation. In particular, the covert employee alleged that because of his disability he was passed over for a warzone assignment, denied assignments and training opportunities, and falsely marked down in performance reports for his clandestine work. The employee also alleged that the Agency had created new work requirements for warzone travel that applied only to him and that he had been reprimanded by a supervisor for falling asleep at his desk. His employment with the Agency was eventually terminated in 2011.

In the court below, Judge Lee of the Eastern District of Virginia dismissed both of the employee’s related suits. In relevant part, Judge Lee’s dismissal noted that the core of the covert employee’s case was based on privileged information and that if the Agency were to actually defend this case, it would need to use such privileged information. Moreover, the litigation would risk the disclosure of this information. The employee appealed, and the Fourth Circuit panel reviewed Judge Lee’s determination de novo.

State Secrets Doctrine

The Abilt case intersected the concepts of employment discrimination with that of the doctrine of state secrets. Under the state secrets doctrine, as articulated in a 1953 Supreme Court case, the court “should not jeopardize” national security by “by insisting upon an examination of the evidence, even by the judge alone, in chambers.” That case, United States v. Reynolds, ruled that courts should invoke the privilege of state secrets when “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 Reynolds court noted that the doctrine pertains to state secrets, and as such it “belongs to the Government” and cannot be asserted by a private party.

In deciding Reynolds, the Supreme Court recognized a tension for courts evaluating claims in which the government would invoke the privilege. Courts must at once evaluate “whether the circumstances are appropriate for the claim of privilege” and do so “without forcing a disclosure of the very thing the privilege is designed to protect.” As the Fourth Circuit elaborated in a later case, El-Masri v. US, “this inquiry is a difficult one, for it pits the judiciary’s search for truth against the Executive’s duty to maintain the nation’s security.”

Pursuant to El-Masri, the Fourth Circuit panel applied the state secrets doctrine using a three-part test, in which the court asks:

  • Were the state secret doctrine’s procedural requirements for invocation satisfied at the outset of the case?
  • Does the information sought to be protected qualify as “privileged?”
  • If the information is “privileged,” how should the matter proceed?

In the instant case, the court noted that the executive’s determination that information disclosure would imperil national security were given the “utmost deference” by the judiciary. Concomitantly, the court also recognized that Reynolds warned against the “intolerable abuses” that would follow from an “abandonment of judicial control.”

Applying the Three Step Test

Writing for the unanimous panel, Judge Floyd applied each step of the three-step state secrets privilege test in the instant case.

The Abilt court first examined whether the Reynolds procedural pre-requisites were met. The privilege was asserted by the government, and specifically lodged by the head of the relevant department with control of the matter. Here, CIA Director John Brennan was joined in the suit in his official capacity. Finally, the court found that the Agency’s director formally asserted the privilege after personal consideration.

Next, the panel examined whether the material in this case would qualify as privileged as a state secret. In reviewing the public and confidential filings, the panel was satisfied that there would a “reasonable danger” to national security if the information was released. The was “little doubt” to the court that information, such as the identity of covert CIA employees, this employee’s work assignments, the location of CIA facilities oversees, and the sources and methods used by the CIA would, would threaten national security if disclosed.

The panel then evaluated the ultimate issue of the how the case should proceed given the privileged information. Given the nature of the CIA employee’s employment discrimination claims, the court noted that establishing the prima facie elements of the suit without the privileged information would be “an extremely high hurdle.”

The court went further, stating that even if the narcoleptic employee could substantiate his prima facie claims, any defense that the CIA would mount to the suit would “undoubtedly rely” on the privileged information. The court wrote:

[B]ased 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.

In resolving the third prong of the state secrets privilege test, the court considered the employee’s contentions about the use of this privileged information. Plaintiff argued that the CIA did not need the privileged information as it could simply point to non-classified non-discrimination policies or procedures. In addition, the plaintiff claimed that in camera review or other measures short of dismissal could sufficiently protect the privileged information. Ultimately, the court rejected both arguments, acknowledging the “unfortunate burden” of the Abilt plaintiff. On behalf of the nation, and its security, Abilt lost the case through no fault of his own; instead, as in El-Masri, “because his personal interest in pursuing his civil claim is subordinated to the collective interest in national security.”

Conclusion

It is an unfortunate reality that workplace discrimination all too often occurs. It may even be that the Abilt plaintiff—whatever his real name—experienced adverse treatment at work due to his disability. Even so, Abilt elaborates on a tension within the judicial process: court transparency and efficiency versus potential threats to national security.

Following Reynolds and El-Masri, the Abilt panel took a utilitarian approach. The panel’s elaboration of the state secret privilege echoes that of Star Trek’s Spock, whose logic dictated that “The needs of the many outweigh the needs of the one.” Under the same principle, Abilt demonstrates that sometimes even valid claims are non-justiciable for reasons beyond the scope of the individual dispute.  Or, as more succinctly put by the self-absorbed minor leaguer Ebby Calvin “Nuke” LaLoosh in the film Bull Durham, “Sometimes you win, sometimes you lose, sometimes it rains.”

 

[*] Tommy Tobin recently served as Instructor of Law at UC Berkeley’s Goldman School of Public Policy, where he taught a module on food law and policy. He is a graduate of Harvard Law School and the Kennedy School of Government.

Any views expressed by guests are their own and do not necessarily reflect the views of the Wake Forest Law Review.

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