United States Court of Appeals,Fourth Circuit.
Jeffrey Alexander STERLING, Plaintiff-Appellant, v. George TENET,
Director, Central Intelligence Agency, Defendant-Appellee, John Does 110, Defendant.
No. 04-1495.
Decided: August 3, 2005
Before WILKINS, Chief Judge, and WILKINSON and GREGORY, Circuit Judges. 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.
OPINION
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, 544 U.S. 1, ----  -  ----, 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, 544U.S. 1, ---  -  ----, 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 automatically require a complete disclosure to the judge
before the claim of privilege will be accepted in any case. It may be possible to satisfy 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, 73 S.Ct. 528. The Court held that “[w]hen this is the case ․ 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.” Id. at 10, 73 S.Ct. 528.
The Supreme Court reaffirmed this principle in United States v. Zolin, 491 U.S. 554, 109 S.Ct. 2619, 105
L.Ed.2d 469 (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, 109 S.Ct. 2619.
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 presumptively privileged materials. Id. at 570-71, 109 S.Ct. 2619 (citing Reynolds  ).
Instead, “the party seeking in camera review must make some threshold showing that such review is
appropriate.” Id. at 570, 109 S.Ct. 2619.
Zolin was sensitive to “the burdens in camera review places upon the district courts,” and refused to
allow parties to force “groundless fishing expeditions” upon them. Id. at 571, 109 S.Ct. 2619. 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, 73 S.Ct. 528,
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 intentionalthat 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 security risks, civil claims put the plaintiff in the driver's seat. See Reynolds, 345
U.S. at 12, 73 S.Ct. 528. 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 graymail 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. Penthouse Int'l, Ltd., 776 F.2d 1236, 1242, 1243 n. 9 (4th Cir.1985) (affidavit 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 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 standards, however, we conclude that the state secrets
evidentiary privilege 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 McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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 legitimate, 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

 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 vandalizing 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 procedures
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, 73 S.Ct. 528. He has
stated that this claim came after his personal consideration of the matter, 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 convinced, 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 inherently 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 discussing 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 Agency would be virtually impotent.” CIA v. Sims, 471 U.S. 159, 170, 105 S.Ct.
1881, 85 L.Ed.2d 173 (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, 105 S.Ct. 1881 (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, 105 S.Ct. 1881 (quoting Snepp v. United States, 444
U.S. 507, 512, 100 S.Ct. 763, 62 L.Ed.2d 704 (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 employment that gives context to his claim. If he were to employ the McDonnell
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 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 processing 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 impossible 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 different 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 gathered 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 dangerous 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 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,
105 S.Ct. 1881 (quotation marks omitted). Only the Director has the expertise to attest-as he has-to this
larger view. Cf. id. (noting that Congress has granted the Director the power under FOIA even “to
withhold 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, however, 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] 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. Fitzgerald, 776 F.2d at 1243;   see also Farnsworth
Cannon, 635 F.2d at 281 (dismissal 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 material.”
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 disclosure 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).
Needless to say, litigation centering around a covert agent's assignments, 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 procedures, whatever they might be, still entail considerable risk. Inadvertent
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 country, a burden on Sterling that he alone
must bear. “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.” Fitzgerald, 776 F.2d at 1238 n. 3. Yet there can be no doubt that, in limited circumstances 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, 73 S.Ct. 528.
We take comfort in the fact that Sterling and those similarly situated 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 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 contain references to the secret” anti-terror or other national security concerns that were
“the primary concern” of hiring Sterling as a covert operative in the first place. Reynolds, 345 U.S. at 10,
73 S.Ct. 528. We are neither authorized nor qualified to inquire further. For the foregoing reasons, the
judgment of the district court is
AFFIRMED.
FOOTNOTES
FOOTNOTE.   Sterling's suggestion that he could avoid McDonnell Douglas comparative analysis by
presenting direct evidence of discrimination is therefore 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 discrimination that he alleges.
WILKINSON, Circuit Judge.

 Affirmed by published opinion.
and Judge GREGORY joined.

 
  

Judge WILKINSON wrote the opinion, in which Chief Judge WILKINS