Sterling v. Tenet

• Decision Date: 03 August 2005
• Docket Number: No. 04-1495.,04-1495.
• Citation: 416 F.3d 338
• Parties: Jeffrey Alexander STERLING, Plaintiff-Appellant, v. George TENET, Director, Central Intelligence Agency, Defendant-Appellee, and John Does 1-10, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

416 F.3d 338

Jeffrey Alexander STERLING, Plaintiff-Appellant, v. George TENET, Director, Central Intelligence Agency, Defendant-Appellee, and John Does 1-10, Defendant.

No. 04-1495.

United States Court of Appeals, Fourth Circuit.

Argued May 26, 2005.

Decided August 3, 2005.

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ARGUED: Mark Steven Zaid, Krieger & Zaid, P.L.L.C., Washington, D.C., for Appellant. William Joseph Howard, Assistant United States Attorney, Department of Homeland Security, Washington, D.C., for Appellee. ON BRIEF: George R.A. Doumar, Arlington, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Larry Lee Gregg, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINS, Chief Judge, and WILKINSON and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge WILKINS and Judge GREGORY joined.

OPINION

WILKINSON, Circuit Judge.

In this case we consider the applicability of the "state secrets doctrine" to a Title VII racial discrimination claim brought against the Director of Central Intelligence and ten unnamed CIA employees by a CIA covert agent. That doctrine embodies an evidentiary "privilege which protects military and state secrets" from disclosure in judicial proceedings. United States v. Reynolds, 345 U.S. 1, 7, 73 S.Ct. 528, 97 L.Ed. 727 (1953). The Supreme Court has recently and unanimously reaffirmed the vitality of the privilege. See Tenet v. Doe, ___ U.S. ___, ___ _ ___, 125 S.Ct. 1230, 1236-37, 161 L.Ed.2d 82 (2005). The district court properly concluded that this case would require disclosure of highly classified information concerning the identity, location, and assignments of CIA operatives. We therefore affirm its judgment that the state secrets doctrine requires dismissal of the case.

I.

Jeffrey Sterling, an African American, was an Operations Officer in the CIA's Near East and South Asia division from 1993 to 2001. He alleges that during this time he experienced unlawful discriminatory practices at the hands of CIA management. For instance, Sterling believes that the expectations for him were "far above those required of non-African-American Operations Officers." He says his superiors repeatedly denied him advantageous opportunities, subjected him to disparate treatment, and gave him Advanced Work Plans that contained more rigorous requirements than those given to non-African Americans.

He also alleges retaliation for utilizing the internal Equal Employment Opportunity ("EEO") process. He claims that he was scheduled to undergo security processing earlier than he should have been. According to him, security processing is an "arbitrary regime within the CIA that is utilized more for its nature as a tool for intimidation than any substantive security implications." He also asserts that management vandalized his personal property.

Sterling initially filed a pro se complaint in the Southern District of New York in August 2001, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. A complaint (redacted because the CIA objected that the original contained classified information) was served on the government in January 2002. The district court in the Southern District of New York granted a motion to transfer the case to the Eastern District of Virginia, where the CIA is located. Although the government also asked the judge in New York to dismiss the case based on the state secrets doctrine, he specifically declined to endorse the government's argument.

The CIA renewed its invocation of the state secrets doctrine in the Eastern District. The Director filed both an unclassified and a classified declaration explaining why allowing Sterling to pursue his case would threaten exposure of classified information. The district court conducted an ex parte, in camera examination of both declarations. It satisfied itself that the Director had personally considered the national security implications of both the information that Sterling would need to establish his case as well as the information that would likely become public if the litigation were to continue.

The district court thus granted the motion to dismiss. It noted that for Sterling to pursue his claim, he would have to disclose the nature and location of his employment and the employment of those similarly situated. Yet Sterling's duties and those of his colleagues — and even the names of most of his supervisors and colleagues — were classified, rendering comparative proof of discrimination impossible. After a thorough review, the court concluded that the state secrets doctrine operated to preclude this suit because it barred the evidence that would be necessary to state a prima facie claim. State secrets, the court held, were critical to the resolution of core factual questions in the case, and therefore the doctrine justified dismissal.

Sterling timely appealed the district court's order. We review such legal determinations involving state secrets de novo. See Molerio v. FBI, 749 F.2d 815, 820 (D.C.Cir.1984); 26A Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5693 (Supp.2005).

II.

This case turns on the breadth of the state secrets doctrine, both as to when the privilege can be invoked and as to when a properly invoked privilege justifies dismissing a plaintiff's claim altogether.

A.

The Supreme Court set forth the state secrets doctrine in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). The Court's discussion of Reynolds last Term in Tenet v. Doe, ___ U.S. ___, ___ _ ___, 125 S.Ct. 1230, 1236-37, 161 L.Ed.2d 82 (2005), confirms its continued validity. See also Fed.R.Evid. 501 (government evidentiary privilege in federal law cases is a matter of federal common law).

Reynolds concerned suits that followed the crash of a military aircraft that had been testing secret electronic equipment. The government "filed a formal `Claim of Privilege'" in which it argued that the aircraft was on "`a highly secret mission of the Air Force,'" and disclosure of the requested materials would "`seriously hampe[r] national security, flying safety and the development of highly technical and secret military equipment.'" 345 U.S. at 4-5, 73 S.Ct. 528. The Court held that widows of those killed in the accident could not demand "production of the Air Force's official accident investigation report" and other such documents to assist their suit under the Federal Tort Claims Act. Id. at 3, 73 S.Ct. 528. The Court sustained the government's refusal to produce the materials by citing "the privilege against revealing military secrets, a privilege which is well established in the law of evidence." Id. at 6-7, 73 S.Ct. 528 (citing, inter alia, Totten v. United States, 92 U.S. 105, 107, 23 L.Ed. 605 (1875)). "[S]tate secrets" and military secrets are equally valid bases for invocation of the evidentiary privilege. Id. at 7, 73 S.Ct. 528.

Reynolds explained the nature of the privilege and the process for applying it:

The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.

Id. at 7-8, 73 S.Ct. 528 (footnotes omitted).

Judicial involvement in policing the privilege is important, but the Court emphasized limitations on a judge's supervisory function. Reynolds analogized the judicial inquiry in a state secrets case to the judge's role in regulating the invocation of the privilege against self-incrimination. "Too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses." Id. at 8, 73 S.Ct. 528.

Recognizing this conflict as a "real difficulty," id., the Court resolved it the same way it had resolved the identical dilemma in the self-incrimination context, see id. at 8-10, 73 S.Ct. 528. "[T]he court must be satisfied from all the evidence and circumstances, and `from the implications of the question ... that a responsive answer ... or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.'" Id. at 9, 73 S.Ct. 528 (quoting Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)). In other words, once the court is "satisfied" that any response at all to a question or request for production might have a deleterious effect on national security, "the claim of the privilege will be accepted without requiring further disclosure." Id. at 9, 73 S.Ct. 528.

B.

What is required to satisfy a district judge will depend on the circumstances of the case. The plaintiff's "showing of necessity" for the privileged evidence "will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate." Reynolds, 345 U.S. at 11, 73 S.Ct. 528. However, national security concerns are paramount, for "even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake." Id. (citing Totten).

Thus, Reynolds made clear that the process of "satisfying" a district judge that the privilege has been properly invoked does not necessarily require in camera review of all the materials likely to contain state secrets:

Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may...