No Pseudonymity in Challenge to Justice Department’s “China Initiative”

The 2018 “then Attorney General Jeff Sessions” []The “China Initiative” was launched to counter a perceived threat to national security posed by “hundreds of thousand of residents and citizens” who have ties to China. It directed the FBI to coordinate with the National Security Division of Justice in “assuming responsibility for countering nation-state threats to the country’s private sector,” including hacking, trade secret theft and economic espionage. The plaintiff, a U.S. naturalized citizen with Chinese heritage, claims that the China Initiative “institutionalizes racism” and “repeals a historical and illegally discriminatory stereotype that Americans from China are undesirable and unloyal to this country.”

The FBI conducted a predawn search of the residence of the plaintiff on November 27, 2019. This was allegedly in accordance with the China Initiative.  Plaintiff claims this raid was done for the former employer from his private sector. He had “fabricated []Submit a claim[s]Lee is accused of hacking computers in government offices and “disclosing private health information.”  Lee further claims his employer used Lee’s ethnicity to make him a nontraditional Chinese collector of American healthcare data. This was to make him believe he had been a criminal.[b]You can find ut [his]Chinese heritage, FBI would never have granted a search warrant or sought further evidence against Lee without investigating false accusations made by a 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.”

The Court doesn’t believe plaintiff has proven that his interest outweighs the public’s right to know the details of litigation at this stage. Plaintiff has articulated no privacy interest sufficient to rebut the presumption in favor of open proceedings….

Plaintiff asserts that pseudonymity justifies its existence because of “[b]Plaintiff would find it embarrassing and damaging to his reputation to be publicly identified as part of the China Initiative investigations. At this point, Plaintiff’s vague fears about reputational damage and loss of job prospects seem more like a desire to “escape the criticism and annoyance that can accompany 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 also cites COVID-19, which “has worsened the already prejudicial environment which has further stigmatized Asians solely based on race.” Although the Court agrees with plaintiff about anti-Asian bias’s rise, the plaintiff does not provide any indication of retaliation in lawsuits like this. He also doesn’t identify specific threats to him or others that could result from his public association with the suit. The second James factor weighs against granting plaintiff’s motion….

The “public interest” is heightened when the anonymous party seeking to proceed seeks to change the operation of public laws as they apply to them and to any other parties moving 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….