                              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.
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.     Abilt 1        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.



                                           2
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.


                                         3
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,

                                           4
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

                                                5
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)).


                                                6
      “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).


                                          7
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.”).


                                                    8
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

                                           9
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

                                                10
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




                                      11
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.



                                         12
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.”                                El-

Masri, 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

                                             13
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.

                                        14
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.




                                               15
                                             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.



                                              16
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”).

      8Abilt 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)
                                        17
                                       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 El-

Masri, 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.


                                       18
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 elements 9 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)
                                            19
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).


                                           20
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

                                          21
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.


                                                  22
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 non-

discriminatory 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

                                                23
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.

                                        24
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



                                       25
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.




                               26
