JACOB E. ABILT v. CENTRAL INTELLIGENCE AGENCY
US Court of Appeals for the Fourth Circuit, Floyd, Feb. 8, 2017,
State Secrets Doctrine – State Secrets Doctrine barred suit against CIA from covert employee alleging discrimination based on narcolepsy, as trial would have risked disclosure of secrets
Facts: Abilt was a covert employee with the CIA from 2008 to 2011. In 2009, he requested permission to take naps due to narcolepsy, which his supervisor granted. Abilt was subsequently cleared for TDY assignment to a warzone. A new supervisor took over and saw Abilt napping, at which point Abilt’s TDY was delayed. Abilt filed with the EEOC and his claims were rejected in 2011. Abilt was terminated in October 2011 and filed suit in 2014 for discrimination and termination based on disability, failure to accommodate disability, and retaliation for filing an EEOC complaint.
State Secrets Doctrine- US may prevent disclosure of State (foreign-affairs) secrets or military secrets in a judicial proceeding if ‘there is a reasonable danger’ that such disclosure will expose ‘matters which, in the interest of national security, should not be divulged.’
Three-step process:
– Has proper procedure been followed to invoke the privilege? (only the federal government can assert; formal claim of privilege by head of department after personal consideration of issue)
– Does the information qualify as privileged? (reasonable danger of divulging secrets that should not be divulged)
– How should the matter proceed? (no in-camera review, no balancing, evidence is excluded)
State Secrets Doctrine- Dismissal- Where the secret is central to the case, the case must be dismissed
State Secrets involved in this case:
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.
ADA and EEO Retaliation:
– Plaintiff has the initial burden of proving his case (Here- disability discrimination and failure to accomodate, as well as retaliation for EEO activities)
– Defendant must then show a legitimate, nondiscriminatory reason for its actions
– Plaintiff must then show that the reasons given by the defendant were “not its true reasons, but were a pretext for discrimination.”