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.
2

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 the information in question is properly 

privileged and that litigation of the case would present an 

unjustifiable risk of disclosure of that information.

Accordingly, we affirm. 

I.

Appellant Jacob E. Abilt1 was hired by the Central 

Intelligence Agency (CIA or the “Agency”) in June 2006 as an 

Applications Developer. Around the time he was hired, Abilt

informed the Agency that he had a diagnosis of narcolepsy. 

Beginning in May 2008 until the ultimate termination of his 

employment in October 2011, Abilt was a covert employee. 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.
3

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 Abilt complained, he was told that his TDY 

assignment was delayed six months due to potential 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.
4

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. Abilt 

successfully completed his TDY overseas assignment, and then 

requested a TDY assignment to a warzone. 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 provide him with the same training and 

opportunities offered to his co-workers. Abilt filed 

administrative complaints in both 2009 and 2010 alleging 

disability discrimination, failure to accommodate, and 

retaliation. The Agency issued a decision rejecting his claims 

as unsupported in 2011. The Equal Employment Opportunity 

Commission (EEOC) affirmed the Agency’s 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 “Agency”) in February 2014,
5

alleging discrimination and ultimately termination based on his 

disability, failure to accommodate, and retaliation. The Agency 

invoked the state secrets privilege over various information 

related to Abilt’s employment. The district court held that the 

Agency properly invoked the privilege, and dismissed the 

complaint without prejudice, finding that Abilt could not prove 

his prima facie case of discrimination without resorting to 

privileged information. 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 and failure to accommodate, as well as

retaliation. In particular, Abilt 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. After Abilt I was dismissed, the Agency moved for 

summary judgment in Abilt II based on the state secrets 
6

privilege. 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 I covered many of the same categories of 

information, Abilt was barred from relitigating those same 

issues. The court then dismissed the action 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 to grant 

dismissal of a complaint on state secrets grounds.” El-Masri v. 

United States, 479 F.3d 296, 302 (4th Cir. 2007) (quoting 

Sterling v. Tenet, 416 F.3d 338, 342 (4th Cir. 2005)).
7

“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 the interest of national 

security, should not be divulged.’” 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 repeatedly confirmed by the 

Supreme Court and by this Court. 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 aircraft that had been testing secret 

electronic equipment. 345 U.S. at 2–3. 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.” Id. at 4–5 (internal quotation 

marks omitted). 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). 
8

privilege, finding that “the privilege against revealing 

military secrets . . . is well established in the law of 

evidence.” Id. at 6-7. 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 resolution of a claim of state secrets privilege 

requires a three-step analysis. El-Masri, 479 F.3d at 304. 

First, “the court must ascertain that the 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.” Id. Third, if the “information is 

determined to be privileged, the ultimate question to be 

resolved is how the matter should proceed in light of the 

successful privilege claim.” 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.”).
9

345 U.S. at 7-8. First, the state secrets privilege must be 

asserted by the United States government; it “can neither be 

claimed nor waived by a private party.” Id. at 7 (footnotes 

omitted). 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.” El-Masri, 479 

F.3d at 304. 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 secrets privilege “performs a function of 

constitutional significance, because it allows the executive 

branch to protect information whose secrecy is necessary to its 

military and foreign-affairs responsibilities.” El-Masri, 479 

F.3d at 303. As such, the executive’s determination that 
10

disclosure of information might pose a threat to national 

security is entitled to “utmost deference.” 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 same time, “‘[j]udicial control over the 

evidence in a case cannot be abdicated to the caprice of 

executive officers’--no matter how great the interest in 

national security.” El-Masri, 479 F.3d 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 of 

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

privilege is validly asserted, “the result is 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 privilege is asserted no more frequently and 

sweepingly than necessary, it is essential that the courts 

continue critically to examine instances of its 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 
11

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, the explanation of the department head who has 

lodged the formal privilege claim, provided in an affidavit or 

personal declaration, is sufficient to carry the Executive’s 

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

declarations of CIA Director); Reynolds, 345 U.S. at 5 (relying 
12

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 U.S. at 9. Although it is for the court to determine 

“whether the circumstances are appropriate for the claim of 

privilege,” we must “do so without forcing a disclosure of the 

very thing the privilege is designed to protect.” Reynolds, 345 

U.S. at 7-8. “[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.
13

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.” ElMasri, 479 F.3d at 306. The Supreme Court was explicit as to 

this point in 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.” El-Masri, 479 F.3d at 306 (citing 

Reynolds, 346 U.S. at 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.” El-Masri, 479 F.3d at 306. On the other 

hand, “a proceeding in which the state secrets privilege is 
14

successfully interposed must be dismissed if the circumstances 

make clear that privileged information will be so central to the 

litigation that any attempt to proceed will threaten that 

information’s disclosure.” 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,’ which provides ‘no way [that] case could be tried 

without compromising sensitive military secrets,’ a district 

court may properly dismiss the plaintiff’s 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. See Farnsworth Cannon, Inc. 
15

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 pursue this litigation.”). Second, even if the 

plaintiff can prove a prima facie case without resort to 

privileged information, the case should be dismissed if “the 

defendants could not properly defend themselves without using 

privileged evidence.” El-Masri, 479 F.3d at 309; see also

Sterling, 416 F.3d at 347. Finally, dismissal is appropriate 

where further litigation would present an unjustifiable risk of 

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

which the state secrets privilege is successfully interposed 

must be dismissed if the circumstances make 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.
16

III.

A.

The district court correctly found that the government 

satisfied each of the first two steps of the state secrets 

inquiry outlined by this Court in El-Masri. 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 sources, methods, and activities that may be 

implicated by the allegations in the plaintiff’s Amended 

Complaint . . . are at risk of disclosure in this case.” J.A. 

44. Furthermore, after a review of the public and classified 

declarations filed by Dir. Brennan in support of the invocation 

of the state secrets privilege, we are satisfied that the 

government has satisfied the Reynolds “reasonable 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. 
17

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.” 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)
18

B.

Finding that the information is properly privileged, “the 

ultimate question to be resolved is how the matter should 

proceed in light of the successful privilege claim.” El-Masri, 

479 F.3d at 304. 

Our analysis, then, properly begins with an examination of 

the information required to litigate Abilt’s claims. See ElMasri, 479 F.3d at 308. Abilt brings two claims, one under the 

Rehabilitation Act for 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. 
19

Abilt is attempting to 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. Id. at 58. If the plaintiff succeeds, the burden 

shifts to the defendant to articulate some legitimate, 

nondiscriminatory reason for its actions. Id. 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.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 

U.S. 248, 253 (1981) (citing McDonnell Douglas, 411 U.S. at 

804).

Establishing each of the prima facie elements9 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)
20

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

(finding dismissal proper because “virtually any conceivable 

response to El–Masri’s allegations would disclose privileged 

information”); see also Sterling, 416 F.3d at 347. For 

instance, in Sterling, a covert employee filed a complaint 

against the CIA under Title VII alleging employment 

discrimination and retaliation. 416 F.3d at 341. 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).
21

situated coworkers. Id. 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 the criteria inherent in sensitive CIA 

decisionmaking.” 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 of those jobs, the job performance of his

colleagues, and/or the criteria used by the CIA to make 

assignments. Abilt’s claims allege that his supervisor at the 

CIA canceled his temporary duty assignment to a warzone, denied 
22

him other assignments and training opportunities available to 

his coworkers, and falsely reported that he was failing to 

satisfactorily perform his clandestine work assignments. Just 

as in Sterling, any explanation that the CIA could offer for 

these actions “would inescapably reveal the criteria inherent in 

sensitive CIA decisionmaking.” 416 F.3d at 347.10 This 

information is properly protected from disclosure, 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 Douglas framework, its 

responsibilities do not end there. 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 cross-examination of the 

 10 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. 
23

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 Abilt suggests, proffer a legitimate 

nondiscriminatory reason for its actions without resort to 

privileged information, in properly litigating that reason, 

Abilt would be entitled to probe deeper into the CIA’s 

justifications “through cross-examination of the [CIA]’s 

witnesses.” Id. In doing so, Abilt “would have every incentive 

to probe as close to the core secrets as the trial judge would 

permit.” Farnsworth, 635 F.2d at 281. “Such probing . . . 

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 pursue this 

litigation.” Id.

Abilt further contends that “the Agency does not need 

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

argument that he could not perform his duties overseas or 

overseas in a warzone is contradicted by non-classified 

information.” Appellant’s Br. 22–23. 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 
24

properly privileged. 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. At worst, that information 

would become public, placing covert agents and intelligence 

sources alike at grave personal risk.” 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. 
25

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. See

Sterling, 416 F.3d at 348 (“We recognize that our 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 privilege imposes a heavy burden on the party 

against whom the privilege is asserted.”). 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.” 

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 of a case-—in order to 

protect a greater public value.”). We however find that “in 

limited circumstances like these, the fundamental principle of 
26

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.