The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

No Pseudonymity in Challenge to Justice Department's "China Initiative"


From Chief Judge Beryl Howell's decision Jan. 28 in Lee v. U.S.:

Plaintiff, who is using the name "Lee" for purposes of this case, seeks to proceed under pseudonym in the instant action seeking declaratory and injunctive relief related to the "China Initiative," an alleged "government sponsored program which institutionalizes discrimination based on race, falsely disguised as a national security program." Plaintiff seeks to proceed pseudonymously to "protect his employment prospects" and because "[b]eing publicly identified with the 'China Initiative' investigations would be embarrassing to [him] and certainly damaging to his reputation." For the reasons set forth below, plaintiff's motion is denied….

In 2018, "then-Attorney General Jeff Sessions [] launched the 'China Initiative'" to combat a perceived national security threat posed by "hundreds of thousands of citizens and residents" with ties to China, and directed the FBI and the National Security Division of the Department of Justice to "assume responsibility for countering nation state threats to the country's private sector" including threats such as "trade secret theft, hacking and economic espionage." Plaintiff, who is a naturalized U.S. citizen of Chinese ancestry, argues that the China Initiative "institutionalizes discrimination based on race," embodying "a repeat of a historic and illegally discriminatory stereotype that Americans of Chinese descent are an undesirable and disloyal race to this country."

On November 27, 2019, the FBI "conducted a predawn raid" of plaintiff's residence, allegedly pursuant to the China Initiative.  Plaintiff asserts that this raid was conducted on behalf of his former private sector employer, who had "fabricated [] claim[s]" against Lee of "hacking government computers" and "disclosing protected health information."  He further alleges that the employer "used Lee's ethnicity and national origin against him to classify him as a Chinese 'nontraditional collector' of healthcare data in the United States and to assume he had committed a crime," and that "[b]ut for [his] Chinese ancestry, the FBI would never had issued the search warrant, nor would it have sought additional evidence against Lee without first investigating the false allegations made by a private company."

Plaintiff filed the instant suit seeking various forms of declaratory relief, including a judgment that the China Initiative is unconstitutional …, and an order directing the FBI "to release Lee's personal properties and to expunge any and all of his FBI records."

At this early stage of the litigation, this Court is not persuaded that plaintiff has met the burden of showing that his interests outweigh the public's presumptive interest in knowing the details of this litigation. Plaintiff has articulated no privacy interest sufficient to rebut the presumption in favor of open proceedings….

Plaintiff argues that pseudonymity is justified because "[b]eing publicly identified with the 'China Initiative' investigations would be embarrassing to Plaintiff and certainly damaging to his reputation." Plaintiff's ambiguous fears of reputational harm and the loss of employment prospects appear, at this stage, more akin to a mere desire "to avoid the annoyance and criticism that may attend any litigation." While plaintiff asserts that "other person of Chinese heritage unlawfully investigated and prosecuted by Defendants" have suffered such harm, plaintiff fails to provide any examples of similarly situated individuals or otherwise establish that any harm to his reputation or job prospects is more than speculative….

Plaintiff asserts that being publicly identified would pose "a serious risk of retaliatory physical or mental harm of Plaintiff" because, "by designating an entire ethnic group as 'fraudsters', 'spies', 'traitors,' or 'thieves' Defendants provided a motivational factor in … violent attacks against Asian Americans." Plaintiff further cites the COVID-19 pandemic which has "worsened the already prejudicial atmosphere which has further demonized Asians based entirely on their race." While the Court shares plaintiff's concern about the rise of anti-Asian bias, plaintiff provides no indication that such retaliation has occurred in the context of lawsuits such as this one, nor does he identify any specific threats to himself or others that would stem from his name being publicly associated with the instant suit. Thus, the second James factor weighs against granting plaintiff's motion….

Furthermore, the "public interest is intensified when, as here, the party asking to proceed anonymously seeks to alter the operation of public law both as applied to it and, by virtue of the legal arguments presented, to other parties going forward." Plaintiff's challenge to the constitutionality of the China Initiative, and its role in the government's investigations of his own actions, would be a matter of significant public interest….

Taking these factors together, plaintiff has presented no compelling justification for "the rare dispensation of pseudonymous status," and thus has failed to demonstrate a need for secrecy or identify consequences likely to befall plaintiff if he proceeded in his own name….