Jeffrey Alexander Sterling v. GEORGE TENET, Director, Central Intelligence Agency, No. 04-1495 

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JEFFREY ALEXANDER STERLING,
Plaintiff-Appellant,
v.
GEORGE TENET, Director, Central
Intelligence Agency, No. 04-1495 
Defendant-Appellee,
and
JOHN DOES 1-10,
Defendant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CA-03-329-1)
Argued: May 26, 2005
Decided: August 3, 2005
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.
COUNSEL
ARGUED: Mark Steven Zaid, KRIEGER & ZAID, P.L.L.C., Wash-
ington, D.C., for Appellant. William Joseph Howard, Assistant United

-- 1 of 14 --

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, Alexan-
dria, Virginia, for Appellee.
OPINION
WILKINSON, Circuit Judge:
In this case we consider the applicability of the "state secrets doc-
trine" 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 (1953). The
Supreme Court has recently and unanimously reaffirmed the vitality
of the privilege. See Tenet v. Doe, 125 S. Ct. 1230, 1236-37 (2005).
The district court properly concluded that this case would require dis-
closure of highly classified information concerning the identity, loca-
tion, 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 discrimina-
tory 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 con-
tained more rigorous requirements than those given to non-African
Americans.
He also alleges retaliation for utilizing the internal Equal Employ-
ment Opportunity ("EEO") process. He claims that he was scheduled
2 STERLING v. TENET

-- 2 of 14 --

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 man-
agement 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 classi-
fied 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 specif-
ically 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 classi-
fied 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 simi-
larly 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.
3 STERLING v. TENET

-- 3 of 14 --

FBI, 749 F.2d 815, 820 (D.C. Cir. 1984); 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 (1953). The Court’s discussion of
Reynolds last Term in Tenet v. Doe, 125 S. Ct. 1230, 1236-37 (2005),
confirms its continued validity. See also Fed. R. Evid. 501 (govern-
ment evidentiary privilege in federal law cases is a matter of federal
common law).
Reynolds concerned suits that followed the crash of a military air-
craft that had been testing secret electronic equipment. The govern-
ment "filed a formal ‘Claim of Privilege’" in which it argued that the
aircraft was on "‘a highly secret mission of the Air Force,’" and dis-
closure of the requested materials would "‘seriously hampe[r]
national security, flying safety and the development of highly techni-
cal and secret military equipment.’" 345 U.S. at 4-5. The Court held
that widows of those killed in the accident could not demand "produc-
tion 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. 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 (citing, inter alia, Totten v. United States, 92 U.S. 105, 107 (1875)).
"[S]tate secrets" and military secrets are equally valid bases for invo-
cation of the evidentiary privilege. Id. at 7.
Reynolds explained the nature of the privilege and the process for
applying it:
4 STERLING v. TENET

-- 4 of 14 --

The privilege belongs to the Government and must be
asserted by it; it can neither be claimed nor waived by a pri-
vate party. It is not to be lightly invoked. There must be a
formal claim of privilege, lodged by the head of the depart-
ment which has control over the matter, after actual personal
consideration by that officer. The court itself must deter-
mine whether the circumstances are appropriate for the
claim of privilege, and yet do so without forcing a disclo-
sure of the very thing the privilege is designed to protect.
Id. at 7-8 (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 intol-
erable abuses." Id. at 8.
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. "[T]he court must be satis-
fied from all the evidence and circumstances, and ‘from the implica-
tions 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 (quoting Hoffman
v. United States, 341 U.S. 479, 486-87 (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.
B.
What is required to satisfy a district judge will depend on the cir-
cumstances 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 appro-
5 STERLING v. TENET

-- 5 of 14 --

priate." Reynolds, 345 U.S. at 11. However, national security con-
cerns 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 necessar-
ily require in camera review of all the materials likely to contain state
secrets:
Judicial control over the evidence in a case cannot be abdi-
cated to the caprice of executive officers. Yet we will not go
so far as to say that the court may automatically require a
complete disclosure to the judge before the claim of privi-
lege will be accepted in any case. It may be possible to sat-
isfy the court, 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 9-10. The Court held that "[w]hen this is the case . . . the court
should not jeopardize the security which the privilege is meant to pro-
tect by insisting upon an examination of the evidence, even by the
judge alone, in chambers." Id. at 10.
The Supreme Court reaffirmed this principle in United States v.
Zolin, 491 U.S. 554 (1989). That case relied heavily upon Reynolds
in discussing a judge’s role in determining whether a particular
attorney-client conversation fell outside the attorney-client privilege
because the client was seeking advice regarding the perpetration of "a
future crime or fraud." Id. at 563. Even in that context, far removed
from the national security concerns at stake when the state secrets
doctrine is invoked, the Court refused to undermine the evidentiary
privilege by automatically requiring in camera review of presump-
tively privileged materials. Id. at 570-71 (citing Reynolds). Instead,
"the party seeking in camera review must make some threshold show-
ing that such review is appropriate." Id. at 570.
Zolin was sensitive to "the burdens in camera review places upon
the district courts," and refused to allow parties to force "groundless
6 STERLING v. TENET

-- 6 of 14 --

fishing expeditions" upon them. Id. at 571. This admonition certainly
applies where national security concerns are involved. Once the judge
is satisfied that there is a "reasonable danger" of state secrets being
exposed, Reynolds, 345 U.S. at 10, any further disclosure is the sort
of "fishing expedition" the Court has declined to countenance. Courts
are not required to play with fire and chance further disclosure —
inadvertent, mistaken, or even intentional — that would defeat the
very purpose for which the privilege exists.
The threat of "graymail" likewise counsels courts to be cautious
about risking exposure of sensitive materials. Graymail is a practice
where "individual lawsuits [are] brought to induce the CIA [or
another government agency] to settle a case (or prevent its filing) out
of fear that any effort to litigate the action would reveal classified
information that may undermine ongoing covert operations." Tenet,
125 S. Ct. at 1238. Unlike a criminal case, where the government can
drop the charges if it fears that litigation presents unacceptable secur-
ity risks, civil claims put the plaintiff in the driver’s seat. See Reyn-
olds, 345 U.S. at 12. The state secrets privilege provides a necessary
safeguard against litigants presenting the government with a Hobson’s
choice between settling for inflated sums or jeopardizing national
security. Were judges to fail to take care to avoid unnecessary risks
of disclosure when the privilege is invoked, the incentives for gray-
mail would correspondingly increase.
In sum, once a formal and proper claim of privilege has been made,
district courts frequently can satisfy themselves of the sufficiency of
that claim through the explanation of the department head who is
lodging it. Such explanations often come in the form of affidavits or
declarations made personally by the department head. See, e.g.,
Bowles v. United States, 950 F.2d 154, 156 (4th Cir. 1991)(assertion
by Secretary of State); In re Under Seal, 945 F.2d 1285, 1287 (4th
Cir. 1991) (affidavit by Secretary of Defense); Fitzgerald v. Pent-
house Int’l, Ltd., 776 F.2d 1236, 1242, 1243 n.9 (4th Cir. 1985) (affi-
davit by Secretary of the Navy); Farnsworth Cannon, Inc. v. Grimes,
635 F.2d 268, 281 (4th Cir. 1980) (en banc) (affidavit by Secretary
of the Navy).
There may of course be cases where the necessity for evidence is
sufficiently strong and the danger to national security sufficiently
7 STERLING v. TENET

-- 7 of 14 --

unclear that in camera review of all materials is required to evaluate
the claim of privilege. But both 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.
III.
Sterling contends that the state secrets evidentiary privilege does
not require dismissal of his claim. He argues that the "district court
abdicated its responsibility" when it reached the opposite conclusion.
He bases this assertion on his belief that the privilege was improperly
invoked and that the district court should have attempted to devise
"adequate protective measures" to allow the case to proceed even if
classified materials were a part of it. Applying the foregoing stan-
dards, however, we conclude that the state secrets evidentiary privi-
lege was indeed applicable and required the dismissal of Sterling’s
claim.
A.
Sterling may prevail in his Title VII claim in one of two ways.
First, he may present direct evidence of his superiors’ discriminatory
intent. Second, he may attempt to satisfy the test specified in McDon-
nell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), which allows
him to raise an inference of discriminatory intent by showing that he
was treated worse than similarly situated employees of other races.
See White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir.
2004). Defendants are then entitled to respond by presenting a legiti-
mate, nondiscriminatory reason for their actions. See, e.g., Gillins v.
Berkeley Elec. Coop., 148 F.3d 413, 415 (4th Cir. 1998). The burden
would finally shift back to Sterling to demonstrate that this reason
was a pretext for discrimination. Id. at 415-16.
"Regardless of the route a plaintiff follows in proving a Title VII
action, . . . the existence of some adverse employment action is
required." James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375
(4th Cir. 2004) (citation and footnote omitted). Here, Sterling seeks
to prove discriminatory adverse employment actions by presenting
evidence that higher expectations were placed upon him than upon
8 STERLING v. TENET

-- 8 of 14 --

similarly situated non-African American CIA operatives and that he
was passed over for operational opportunities. He further alleges
defendants retaliated against him for lodging his EEO complaint by
forcing him to undergo a premature security screening and vandaliz-
ing his personal property.
B.
Consideration of the state secrets privilege can only proceed if the
privilege was properly invoked under the procedures described by
Reynolds. Here, the district court correctly determined that those pro-
cedures were followed. There is no doubt that the Director is "the
head of the department which has control over the matter" and has
lodged a formal claim of privilege. Reynolds, 345 U.S. at 7-8. He has
stated that this claim came after his personal consideration of the mat-
ter, and in both classified and unclassified declarations, he has
explained why the privilege must be applied. See id.
The subsequent inquiry is whether the materials necessary for
pressing Sterling’s Title VII claim or defending against it are likely
to result in inappropriate disclosure of state secrets. The district court
noted the Director’s declaration that litigating the factual issues in this
case would compromise CIA sources and methods, threaten the safety
of intelligence sources, and adversely affect foreign relations. There
is no question 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. Molerio, 749 F.2d at 820-21 (quoting
Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983)). We are con-
vinced, as was the district court, that such information forms the very
basis of the factual disputes in this case.
As a covert operative, Sterling’s position and responsibilities inher-
ently involved state secrets. We hardly need defend the proposition
that CIA personnel, activities, and objectives must be protected from
prying eyes. The Supreme Court has noted in the context of discuss-
ing the Freedom of Information Act (FOIA) "that Congress intended
to give the Director of Central Intelligence broad power to protect the
secrecy and integrity of the intelligence process. The reasons are too
obvious to call for enlarged discussion; without such protections the
9 STERLING v. TENET

-- 9 of 14 --

Agency would be virtually impotent." CIA v. Sims, 471 U.S. 159, 170
(1985).
This national security concern is particularly acute here because as
a covert operative, the nature of Sterling’s duties may well have
involved recruiting foreign sources of intelligence. Congress has
imbued the Director with "very broad authority to protect all sources
of intelligence information from disclosure." Id. at 168-69 (discussing
FOIA). "‘The continued availability of intelligence sources depends
upon the CIA’s ability to guarantee the security of information that
might compromise them and even endanger their personal safety.’"
Id. at 175-76 (quoting Snepp v. United States, 444 U.S. 507, 512
(1980) (per curiam)) (alterations omitted).
There is no way for Sterling to prove employment discrimination
without exposing at least some classified details of the covert employ-
ment that gives context to his claim. If he were to employ the McDon-
nell Douglas framework to establish his prima facie case, he would
be required to show that he was treated worse than similarly situated
non-African American agents. This inquiry would expose classified
information involving not only Sterling’s activities, but those of other
agents as well. It would be impossible to avoid investigation into the
comparative responsibilities of Sterling and other CIA agents, the
nature and goals of their duties, the operational tools provided (or
denied) to them, and their comparative opportunities and performance
in the field.
Similar comparative evidence is necessary for Sterling to meet his
further burden of establishing that he suffered an adverse employment
action.* Every such action that he alleges rests upon an assertion that
non-African Americans were treated more favorably than he. Sterling
claims that the expectations for his performance were "far above
those required of non-African-American Operations Officers," that
*Sterling’s suggestion that he could avoid McDonnell Douglas com-
parative analysis by presenting direct evidence of discrimination is there-
fore unavailing. Assuming such evidence sufficient to prove
discriminatory intent, some type of comparator would still be necessary
to establish that he in fact suffered one of the adverse acts of discrimina-
tion that he alleges.
10 STERLING v. TENET

-- 10 of 14 --

his Advanced Work Plan "was considerably more demanding and
‘harsher’ than any requirements placed on non-African-Americans,"
and that he was "repeatedly passed over for operational opportunities"
(which presumably went to less qualified operatives of other races).
Proof of these allegations would require inquiry into state secrets such
as the operational objectives and long-term missions of different
agents, the relative job performance of these agents, details of how
such performance is measured, and the organizational structure of
CIA intelligence-gathering.
Sterling’s retaliation claims similarly depend on proof of facts that
are state secrets. He cannot prove his assertion that CIA security pro-
cessing is an "arbitrary regime . . . that is utilized more for its nature
as a tool for intimidation than any substantive security implications"
without evidence regarding the CIA’s internal security procedures.
And his claim of personal property vandalism would require proof of
details regarding where and when it might have happened, who his
superiors were who might have ordered it, and why they had cause
to retaliate against him.
Even assuming Sterling were somehow able to manage the impos-
sible feat of making out all the elements of a Title VII claim without
revealing state secrets, further issues would remain. The government
would be entitled to present, as a defense to Sterling’s prima facie
case, legitimate nondiscriminatory reasons for its actions. This
defense would have to show exactly why the CIA gave Sterling dif-
ferent assignments and different operational tools from his peers. The
evidence required would inescapably reveal the criteria inherent in
sensitive CIA decisionmaking.
Furthermore, the very methods by which evidence would be gath-
ered in this case are themselves problematic. Many of the witnesses
would necessarily be covert CIA operatives. Forcing such individuals
to participate in a judicial proceeding — or even to give a deposition
— risks their cover. And once they do appear, it is doubtful what
information they could provide that would not have national security
implications. Almost any relevant bit of information could be danger-
ous to someone, even if the agent himself was not aware that giving
the answer could jeopardize others. The Supreme Court has cautioned
that "what may seem trivial to the uninformed, may appear of great
11 STERLING v. TENET

-- 11 of 14 --

moment to one who has a broad view of the scene and may put the
questioned item of information in its proper context." Sims, 471 U.S.
at 178 (quotation marks omitted). Only the Director has the expertise
to attest — as he has — to this larger view. Cf. id. (noting that Con-
gress has granted the Director the power under FOIA even "to with-
hold superficially innocuous information" if it "might enable an
observer to discover the identity of an intelligence source").
In short, the Director has met the requirements for application of
the state secrets doctrine here and went beyond them, providing a
classified declaration, which the district court was able to review in
camera. The district court’s reliance on that declaration, combined
with the highly classified nature of the allegations in Sterling’s own
complaint, was more than adequate to conclude that the state secrets
privilege was properly invoked.
C.
Even if the state secrets privilege is applicable, Sterling contends
that dismissal of his entire case was error. Like the district court, how-
ever, we believe that dismissal follows inevitably when the sum and
substance of the case involves state secrets.
We have long recognized that when "the very subject of [the] liti-
gation is itself a state secret," which provides "no way [that] case
could be tried without compromising sensitive military secrets," a dis-
trict court may properly dismiss the plaintiff’s case. Fitzgerald, 776
F.2d at 1243; see also Farnsworth Cannon, 635 F.2d at 281 (dis-
missal ordered since establishing a prima facie case was impossible
without threatening to disclose privileged information). 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 mate-
rial." Fitzgerald, 776 F.2d at 1244. But where "the very question on
which a case turns is itself a state secret, or the circumstances make
clear that sensitive military secrets will be so central to the subject
matter of the litigation that any attempt to proceed will threaten dis-
closure of the privileged matters," dismissal is the proper remedy.
DTM Research, LLC v. AT&T Corp., 245 F.3d 327, 334 (4th Cir.
2001) (quotation marks omitted).
12 STERLING v. TENET

-- 12 of 14 --

Needless to say, litigation centering around a covert agent’s assign-
ments, evaluations, and colleagues meets this test. "[H]ere, the whole
object of the suit and of the discovery is to establish a fact that is a
state secret," Molerio, 749 F.2d at 821 — namely, the methods and
operations of the Central Intelligence Agency. As explained above,
Sterling cannot prove his Title VII claim, nor can the government
defend against it, without presenting evidence on topics that are state
secrets. "If the case cannot be tried without compromising sensitive
foreign policy secrets, the case must be dismissed." Bowles, 950 F.2d
at 156.
Sterling’s argument that the court could devise special procedures
that would allow his suit to proceed must therefore fail. Such proce-
dures, whatever they might be, still entail considerable risk. Inadver-
tent 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.
D.
We recognize that our decision places, on behalf of the entire coun-
try, a burden on Sterling that he alone must bear. "When the state
secrets privilege is validly asserted, the result is unfairness to individ-
ual litigants — through the loss of important evidence or dismissal of
a case — in order to protect a greater public value." Fitzgerald, 776
F.2d at 1238 n.3. Yet there can be no doubt that, in limited circum-
stances like these, the fundamental principle of access to court must
bow to the fact that a nation without sound intelligence is a nation at
risk. See Reynolds, 345 U.S. at 11.
We take comfort in the fact that Sterling and those similarly situ-
ated are not deprived of all opportunity to press discrimination claims.
The CIA provides, and Sterling has utilized, an internal EEO process
where his claims may be heard and resolved. While the state secrets
privilege is not contingent on the availability of such internal or
administrative process, invocation of the privilege in federal court
must not operate to discourage the CIA’s own efforts to provide a
13 STERLING v. TENET

-- 13 of 14 --

working environment that honors our nation’s bedrock commitment
to nondiscrimination and fair treatment.
IV.
The Director has satisfied us, as he did the district court, of the
"reasonable danger that the [material sought by Sterling] would con-
tain references to the secret" anti-terror or other national security con-
cerns that were "the primary concern" of hiring Sterling as a covert
operative in the first place. Reynolds, 345 U.S. at 10. We are neither
authorized nor qualified to inquire further. For the foregoing reasons,
the judgment of the district court is
AFFIRMED.
14 STERLING v. TENET

-- 14 of 14 --