Appeals Court Awards Half A Win To Professor Wrongfully Arrested For Sharing ‘Secret’ Tech With Chinese Entities
from the we-admit-we're-wrong-but-you-still-can't-sue-us dept
Being abnormally suspicious of anything Chinese isn’t new. There’s a wave of hysteria-based lawmaking happening right now involving TikTok, but deciding Chinese nationals and Chinese entities are inherently suspicious has been part of this nation’s cultural fabric since the construction of railroads back in the mid-19th century.
That supposition that foreigners — especially the exotic-looking ones — are trying to undermine our nation is almost as old as this nation itself. This case only dates back to May 2015 — the day the Chair of the Temple University Physics Department, Xiaoxing Xi — was arrested at gunpoint by FBI agents.
The FBI agents held Xi and his family (including his daughters) at gunpoint while they ransacked his house. Xi was interrogated for two hours and subjected to DNA sampling and fingerprinting. Once this was completed, the FBI finally got around to telling Xi why it had arrested him. According to the FBI, Xi had been indicted for four counts of wire fraud for allegedly passing on information about a “pocket heater” (not the one you’re thinking of, Midwesterners) to Chinese entities.
After a bit of actual due diligence, DOJ prosecutors realized Xi had never discussed this supposedly “revolutionary” bit of superconductor tech with anyone in China and dropped the charges against him. (Albeit, without prejudice, which is kind of shitty.)
Instead, his emails had only discussed his own invention, which wasn’t related to the “pocket heater” the FBI agent handling the case pretended the case was about. Well, “pretending” is perhaps too kind. FBI agent Andrew Haugen — the lead defendant in this lawsuit — lied about Xi’s communications. We know he lied because he had already been informed of the truth and decided to move forward with a raid of Xi’s house anyway — a raid predicated on the lies Agent Haugen told the court in order to secure the search warrant.
This is from the Third Circuit Court of Appeals decision [PDF]:
In the course of that investigation, as set forth in the Complaint, Haugen had interviewed the inventor of the pocket heater and learned that Xi’s emails were “not related” to the STI pocket heater, but rather to a different process that Xi himself had invented. Nevertheless, according to the Complaint, Haugen averred in his affidavits, reports, and other communications with prosecutors that those emails did concern the pocket heater.
Dropping the charges freed Xi from prosecution but it didn’t undo the damage to his life. Thanks to widespread news coverage of this bogus bust, Xi was suspended by Temple University and barred from participating in any research or communication with his students. Special Agent Andrew Haugen, however, suffered no consequences at all for his actions.
That’s what Xi is hoping to change. But the Appeals Court only allows one cause of action to move forward, claiming (like almost every court does, thanks to Supreme Court precedent) that the agent can’t be sued for rights violations under Bivens because (altogether now) this is a “new context.” As the Third Circuit notes, the Supreme Court has bound the hands of every court in the land:
In the fifty-two years since Bivens was decided, however, the Supreme Court has pulled back the reins to what appears to be a full stop and no farther.
In other words, if your rights have been violated by a federal agent, there is roughly a 0.0001% you’ll be able to successfully bring a Bivens claim. For everyone else, there’s whatever else might still have a remedy the Supreme Court hasn’t managed to destroy yet.
Making this a bit worse, the Third Circuit also says it would not have granted a Bivens claim to Xi even if the Supreme Court hadn’t all but eliminated that option… because national security.
[A]s a practical matter, counterintelligence officials, like Border Patrol agents, are on the front lines of responding to national security threats where the prospect of damages liability could cause them to “second-guess difficult but necessary decisions” with significant consequences for public safety and foreign policy.
But Xi still has one option left: the Federal Tort Claims Act, which allows the government to be sued for the negligence of its employees. That claim can proceed.
The Appeals Court first addresses the lower court opinion, which said the FTCA claim was valid but that qualified immunity should be awarded to Agent Haugen. The Appeals Court says this gets the law wrong. There’s no qualified immunity element in the FTCA, which waives sovereign immunity for government agencies to allow citizens whose rights were violated to bring a lawsuit against the federal government.
Given these factors, Agent Haugen’s misconduct cannot be immunized. And it’s clear from Xi’s allegations that there’s more than enough to allow this lawsuit to proceed:
Xi has met that pleading standard here because the Complaint alleged at least seven discrete instances of Haugen intentionally, knowingly, and/or recklessly providing false information that led to Xi’s prosecution. It alleged, for example, that before charges were filed, the inventor of the pocket heater informed Haugen that the emails in question described an “entirely different” device from the pocket heater—one that Xi himself had invented; and that the pocket heater technology was not “revolutionary,” but “widely known.” It also alleged that Haugen accused Xi of “a scheme to obtain the pocket heater technology” at a point in time when, as Haugen knew or recklessly disregarded, that technology did not yet exist, and that Haugen knew or recklessly disregarded that Xi never sent samples or test results from the pocket heater to colleagues in China, but only engaged with them in normal academic collaboration. Such detailed allegations are hardly the “naked assertion[s] devoid of further factual enhancement” that would justify dismissal. George v. Rehiel, 738 F.3d 562, 581 (3d Cir. 2013)
It’s a very limited win. And even if this goes Xi’s way in the lower court, the FTCA claim limits him to monetary damages, which means he’ll only be able to get back what he can prove the FBI cost him. Reputational damage won’t be a factor, which means the FBI and the agent that basically fabricated claims against Xi will likely walk away from this owing Xi almost nothing for baselessly attempting to destroy his life.
Filed Under: 3rd circuit, bivens claim, civil rights, espionage, fbi, federal tort claims act, ftca, wire fraud, xi xiaoxing