Abilt v. Central Intelligence Agency, 848 F.3d 305

Background

Jacob Abilt, a covert CIA applications developer with diagnosed narcolepsy, alleged disability discrimination, failure to accommodate, and retaliation after being denied warzone TDY assignments and later terminated.
Many core facts (assignments, duties, identities of supervisors/coworkers, CIA programs, sources/methods, covert facility locations) were classified.
Abilt filed two suits: Abilt I (dismissed after CIA invoked state secrets) and Abilt II (this appeal), both raising Rehabilitation Act and Title VII claims.
The CIA Director submitted public and classified declarations asserting the state secrets privilege under Reynolds; the district court accepted the privilege and dismissed Abilt II because litigation would require privileged information.
The Fourth Circuit reviewed de novo and affirmed, holding the privilege properly invoked and that the case could not proceed without impermissibly risking disclosure.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the government satisfied Reynolds procedural requirements for asserting the state secrets privilege	Abilt largely conceded the privilege applied but argued non-privileged evidence could prove his case	CIA argued Director personally considered the claim and submitted declarations invoking privilege	Held: CIA satisfied Reynolds procedural requirements (privilege properly invoked by Director)
Whether the information falls within state secrets privilege	Abilt did not meaningfully dispute privilege over the classified operational details	CIA argued disclosure would reveal intelligence sources, methods, assignments, personnel, and covert facilities harming national security	Held: Information (programs, identities, duties, criteria, sources/methods, targets, training, covert locations) is privileged under Reynolds standard
Whether litigation can proceed without privileged information (prima facie and defenses)	Abilt argued non-privileged evidence exists to make a prima facie case and to show pretext	CIA argued any legitimate defense (and meaningful prosecution of plaintiff’s case and cross-examination) would require privileged material	Held: Case must be dismissed because defenses and core issues would inevitably rely on privileged information (prima facie/defense and probing would threaten disclosure)
Whether protective measures (in camera review, redaction, procedures) would permit litigation	Abilt urged protective measures and in camera procedures could avoid disclosure	CIA and the court warned that even in camera or special procedures risk inadvertent disclosure and are foreclosed where Reynolds privilege applies	Held: Protective measures insufficient once privilege asserted; dismissal required to avoid unjustifiable risk of disclosure

Key Cases Cited

United States v. Reynolds, 345 U.S. 1 (1953) (establishes the state secrets privilege and procedural requirements)
El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007) (three-step framework for evaluating state secrets claims; de novo review)
Sterling v. Tenet, 416 F.3d 338 (4th Cir. 2005) (affirming dismissal where CIA defenses would disclose sensitive decisionmaking)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for discrimination claims)
St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) (plaintiff’s right to probe employer’s proffered reasons)
Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268 (4th Cir. 1980) (dismissal appropriate where litigating would threaten disclosure of state secrets)
Tenet v. Doe, 544 U.S. 1 (2005) (recognition of state secrets doctrine in national-security contexts)