TILDEN v. TENET, (E.D.Va. 2000)

CLAUDE N. HILTON, Cheif United States District Judge.

This matter comes before the Court on Defendant's motion to dismiss for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). As is discussed below, the Court has considered materials outside the pleadings in rendering its decision. Accordingly, Defendant's motion to dismiss must be treated as a motion for summary judgment. See Fed.R.Civ.P. 12(b). Plaintiff filed materials outside the pleadings as well, and they have been considered by the Court.

This case involves a complaint of sex discrimination by an employee of the Central Intelligence Agency ("CIA"). The question before the Court in Defendant's motion is whether the claim of state secrets raised by the Director of Central Intelligence prevents this case from going forward.

Heads of the departments of the executive branch have the privilege to withhold information from disclosure when to do so would adversely affect the national security. See United States v. Reynolds, 345 U.S. 1 (1953). For the Defendant, the privilege is in fact a legal obligation. The Director of Central Intelligence is charged under the law with the responsibility of protecting the nation's secrets and intelligence sources and methods against unwarranted disclosure. See 50 U.S.C. § 403-3 (c)(6); 50 U.S.C. § 403g. However, the Supreme Court has cautioned that the privilege "is not to be lightly invoked." Reynolds, 345 U.S. at 7. To invoke the privilege, it must be asserted formally by the head of the department which has control over the matter. See id. at 8. He must personally consider the matter. See id. Once the privilege is invoked, the role of the court is a limited one. See Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978) (court must give "utmost deference" to executive assertions of privilege), appeal after remand, 690 F.2d 977 (D.C. Cir. 1982). It must consider whether and how the case may proceed in light of the privilege.See Fitzgerald v. Penthouse International, Ltd., 776 F.2d 1236, 1243 (4th Cir. 1985). It is not for a court to second-guess the assertion of privilege. The only question is how or whether the case can proceed without the information.

The state secrets privilege has been properly invoked by the Defendant in this case. As Director of Central Intelligence, he is the head of the CIA and the proper executive branch official to invoke privilege in this matter. He has filed an unclassified declaration with this Court in which he states that he has personally reviewed the documents in question. He has also filed a classified declaration which this Court has reviewed in camera and ex parte.

Based on a review of the Director's classified declaration the Court concludes that there is no way in which this lawsuit can proceed without disclosing state secrets. Contrary to Plaintiffs assertion, there are no safeguards that this Court could take that would adequately protect the state secrets in question. The Court is mindful that the invocation of the state secrets privilege in this case will deny the Plaintiff a forum under Article III of the Constitution for adjudication of her claim. Dismissal in the wake of a claim of state secrets privilege is an extraordinary but not unprecedented remedy. See, e.g., Bowles v. United States, 950 F.2d 154 (4th Cir. 1991) (dismissal warranted because "no amount of effort or care will safeguard the privileged information.");Fitzgerald, 776 F.2d at 1243 (dismissal of defamation action warranted "because there was simply no way [the] case could be tried without comprising sensitive military secrets"); Molerio v. Federal Bureau of Investination, 749 F.2d 815 (D.C. Cir. 1984) (dismissal of Title VII lawsuit warranted because without disclosure of state secrets, insufficient evidence of discrimination existed); Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 281 (4th Cir. 1980) (en banc) (on rehearing, affirmed dismissal of complaint in tortious interference of contract case based on assertion of state secrets privilege).

Plaintiff once again raises the issue of her counsel possessing a security clearance, which she argues defeats the claim of privilege. As this Court noted in its order granting the Defendant's request for this Court to review the Director's classified declaration, the security of our nation's secrets is too important to be left to the good will and trust of even a member of the Bar of this Court. Upon reviewing the Director's classified declaration, the Court finds that an in camera trial, utilizing court staff with security clearances, and swearing all participants to secrecy would not sufficiently safeguard the secrets outlined by the Director of Central Intelligence. The mere existence of such a trial would put state secrets in jeopardy, as the Director's classified declaration explains.

Plaintiff also argues that the Defendant has waived his claim of state secrets privilege through an internal CIA regulation concerning the agency's "equal employment opportunity program." The regulation states that "at any stage of the informal and formal EEO complaint process, complainants have the right to be accompanied, represented, and advised by a representative of their choice." However, the regulation itself is limited to the internal EEO process of the CIA and has no bearing on post-EEO judicial proceedings. Further, the opening paragraph of the regulation specifically states that compliance with employment-related civil rights laws is to be "in a manner consistent with the requirements of [national] security." This purported waiver of state secrets privileg is no waiver at all.

For those reasons it is hereby,

ORDERED that this case is DISMISSED.