Yanping Chen v. FBI

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 18, 2024           Decided September 30, 2025

                         No. 24-5050

                       YANPING CHEN,
                         APPELLEE

                              v.

        FEDERAL BUREAU OF INVESTIGATION, ET AL.,
                     APPELLEES

                   CATHERINE HERRIDGE,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:18-cv-03074)



    Patrick F. Philbin argued the cause for appellant. With
him on the briefs were Kyle T. West and Chase Harrington.

    Judd E. Stone II was on the brief for amicus curiae Senator
Ted Cruz in support of appellant.

    Bruce D. Brown, Katie Townsend, Gabe Rottman, and
Grayson Clary were on the brief for amici curiae Reporters
Committee for Freedom of the Press, et al. in support of
appellant.
                               2

    Andrew C. Phillips argued the cause and filed the brief for
appellee Yanping Chen.

     Jane Shim was on the brief for amici curiae Asian
American Legal Defense and Education Fund, et al. in support
of appellee.

   Before: KATSAS and CHILDS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge KATSAS.

     KATSAS, Circuit Judge: Yanping Chen alleges that federal
officials violated the Privacy Act by disclosing records about
her compiled as part of an FBI investigation. The records were
published by Fox News. In discovery, Chen sought to compel
Catherine Herridge—one of the journalists involved in
publishing the records—to identify who had leaked them.
Herridge invoked a First Amendment reporter’s privilege to
avoid being compelled to testify. The district court held that
Chen had overcome that qualified privilege and ordered
Herridge to answer Chen’s questions. When Herridge refused
to do so, the court held her in contempt. On appeal, Herridge
reasserts the privilege. We affirm the district court.

                                I

     The First Amendment to the Constitution provides that
“Congress shall make no law … abridging the freedom of
speech, or of the press.” U.S. Const. Amend. I. In Zerilli v.
Smith, 656 F.2d 705 (D.C. Cir. 1981), this Court recognized a
“qualified reporter’s privilege” based on the First Amendment.
Id. at 712–14. Where it applies, the privilege allows reporters
to resist civil discovery into the identity of their confidential
                                3
sources. See id. We identified two considerations as being “of
central importance” in determining whether the privilege
applies—the litigant’s “need for the information” and her
efforts “to obtain the information from alternative sources.” Id.
at 713. We further noted that the “equities weigh somewhat
more heavily in favor of disclosure” if, as in libel cases, the
journalist is a party and successful assertion of the privilege
“will effectively shield him from liability.” Id. at 714.

     The reporter’s privilege often arises in litigation under the
Privacy Act, which prohibits government agencies from
publicly disclosing certain records about individuals without
prior consent from the individual to whom the record pertains.
5 U.S.C. § 552a(a)(4), (b). An individual harmed by a Privacy
Act violation may bring a civil action against the offending
agency. Id. § 552a(g)(1), (5). If the agency acted “in a manner
which was intentional or willful,” then the affected individual
may recover “actual damages,” subject to a statutory floor of
$1,000. Id. § 552a(g)(4)(A).

                                II

                                A

     We recite the facts as alleged in the complaint. Yanping
Chen was born in China. In 1987, she moved to the United
States to study at George Washington University, from which
she eventually obtained graduate degrees. Chen became a
lawful permanent resident in 1993 and a citizen in 2001.

     In 1998, Chen founded the University of Management and
Technology (UMT), an educational institution headquartered
in Arlington, Virginia. Until January 2018, UMT participated
in the Department of Defense’s “Tuition Assistance Program,”
which pays a portion of tuition expenses for military students.
                              4
     In 2010, the Federal Bureau of Investigation began
investigating Chen for statements made on her immigration
forms. The FBI interviewed Chen’s family and colleagues,
seized her computer, used an informant to gather information
about her, monitored her travel, and recorded her private
conversations. In 2012, the FBI executed search warrants at
Chen’s home and UMT’s main office. The FBI seized
materials including tax records, business documents, family
photographs, and electronic storage devices. In 2016, the U.S.
Attorney’s Office for the Eastern District of Virginia decided
not to file charges against Chen.

     In 2017, Fox News aired a report alleging that Chen had
concealed her prior work for the Chinese military. The
network later published an FBI form memorializing an
interview with Chen’s daughter, personal photographs seized
from Chen’s home during the FBI search, and information from
Chen’s immigration and naturalization papers. The reports
stated that the FBI searches had occurred as part of a counter-
intelligence operation. They also cited anonymous sources
describing a conflict between the FBI and the U.S. Attorney’s
Office over whether to file charges against Chen, as well as
comments from an anonymous FBI agent who was upset that
UMT continued to receive payments from DoD. The print
versions of these reports were authored by Catherine Herridge.

    In 2018, DoD terminated UMT’s participation in the
Tuition Assistance Program. That decision, along with a
broader hit to UMT’s reputation, caused its enrollment and
revenue to fall sharply. These losses impacted Chen’s income
and the value of her personal investment in UMT.

                              B

    In December 2018, Chen filed this Privacy Act lawsuit
against the FBI and various other federal agencies. She sought
                              5
damages and an injunction prohibiting further disclosures of
information about her.

     In discovery, Chen served various document requests,
interrogatories, and requests for admission, took eighteen
depositions of current and former government employees,
issued over a dozen third-party subpoenas, and obtained
declarations from 22 government personnel who were
connected to the FBI investigation. Despite all of this, Chen
was unable to determine who was responsible for leaking the
materials aired in the Fox reports. Ultimately, in mid-2022,
Chen served Herridge and Fox with deposition and document
subpoenas. Both Herridge and Fox moved to quash the
subpoenas on the ground that they sought information
protected by reporter’s privileges grounded in the First
Amendment and federal common law.

     The district court denied Herridge’s motion to quash in
relevant part. It concluded that Chen had met her burden to
overcome the qualified First Amendment privilege recognized
in this Court’s precedents. The court then refused to recognize
a distinct newsgathering privilege under federal common law.
The court sequenced discovery so that Chen could depose
Herridge regarding her sources for the records allegedly
disclosed in violation of the Privacy Act before seeking
potentially the same information from Fox News. The court
thus largely denied Herridge’s motion and granted Fox’s while
allowing Chen to renew her subpoenas at a later time if
necessary.

    Following unsuccessful attempts to appeal the discovery
order, Herridge sat for a deposition on September 26, 2023.
When questioned, she refused to disclose the identity of her
source, and she refused to provide information on when and
how she received the leaked items. Herridge stated that she
                               6
was disobeying the discovery order so that she could seek
appellate review of it.

     The district court held Herridge in civil contempt. It
imposed a fine of $800 per day until Herridge complied with
the discovery order, but stayed the fine pending resolution of
this appeal.

                              III

     A non-party may appeal an adjudication of civil contempt
even before the entry of final judgment in the underlying case.
See, e.g., U.S. Cath. Conf. v. Abortion Rts. Mobilization, Inc.,
487 U.S. 72, 76 (1988); In re Clinton, 973 F.3d 106, 112 (D.C.
Cir. 2020). And our review of the contempt order “logically
includes” a review of the discovery order underlying the
contempt. Lee v. DOJ, 413 F.3d 53, 59 (D.C. Cir. 2005).
Whether a discovery order correctly articulates our test for the
reporter’s privilege is a legal question that we review de novo.
Id. We review a district court’s application of that test for
abuse of discretion. Id.

     We begin with a survey of the caselaw recognizing a
reporter’s privilege under the First Amendment. Next, we
discuss the district court’s application of governing precedent
to this case. Finally, we consider Herridge’s invitation to
announce a new reporter’s privilege rooted in federal common
law rather than the Constitution.

                              IV

                               A

     Under Zerilli, reporters have a qualified First Amendment
privilege to protect the identity of their sources from civil
discovery. 656 F.2d at 710–12. After recognizing the
                                7
privilege, we set forth “more precise guidelines” for
determining when it can be overcome. Id. at 713. We
identified two considerations “of central importance” for doing
so—whether the information is “crucial” to the case and
whether the litigant seeking the information “has exhausted
every reasonable alternative source of information.” Id. In
addition, we stated that a litigant may be more likely to
overcome the privilege in cases where the reporter is a party
(as in libel cases) than in cases where she is not (as in Privacy
Act cases like this one). Id. at 714.

     In Lee v. Department of Justice, 413 F.3d 53 (D.C. Cir.
2005), this Court held that a litigant may overcome the
privilege by showing centrality and exhaustion—even in a case
where the reporter is not a party. Like this case, Lee involved
an appeal by non-party journalists held in contempt for refusing
to identify their confidential sources in Privacy Act litigation.
Id. at 55. Applying Zerilli’s “two guidelines [for] determining
when a court can compel a non-party journalist to testify about
a confidential source,” we held that the district court had not
abused its discretion in requiring the reporters to testify. Id. at
59–60. First, the plaintiff had shown that the information he
sought went to the “heart” of the case, given the difficulty in
proving intent or willfulness without knowing the identity of
the leakers. Id. at 60. Second, by deposing numerous
witnesses before seeking to compel the reporters’ testimony,
the plaintiff had met his burden to exhaust reasonable
alternative sources of information. Id.

     For the Lee Court, that was the end of the matter. We
expressly declined to engage with Zerilli’s distinction between
journalists who are parties to a lawsuit and those who are not,
since all the journalists in the case before the court were non-
parties. Lee, 413 F.3d at 57 n.1. And in response to an
objection that we were leaving journalists without enough
                               8
protection, we explained that a litigant’s power to subpoena a
journalist remains constrained by the requirements of centrality
and exhaustion, which are not perfunctory, and by “the usual
requirements of relevance, need, and limited burdens on the
subpoenaed person” embodied in federal procedural and
evidentiary rules. Id. at 60.

                               B

    On appeal, Herridge does not contest the district court’s
determination that Lee’s centrality and exhaustion
requirements for overcoming the privilege were satisfied.
Herridge nonetheless asks us to rule in her favor because (1)
Chen’s Privacy Act claim is frivolous or meritless and (2) Lee
conflicts with prior circuit precedent and therefore does not
bind us. We reject both contentions.

                               1

     Herridge argues that we should uphold the privilege
because Chen’s Privacy Act claim is frivolous. We agree that
our governing framework is flexible enough to accommodate
such an inquiry. In Zerilli, we noted that the claim at issue was
“not frivolous” as part of our inquiry into whether the
information sought was “crucial” to the plaintiff’s case. 656
F.2d at 714. And although Lee did not separately discuss
frivolousness, we did reiterate the importance of considering
whether the information sought “goes to the heart of his case.”
413 F.3d at 60. Such an inquiry can readily accommodate
assessing whether the underlying claims are frivolous. For if a
claim would fail regardless of what the requested discovery
might reveal, there is no good reason for deeming the discovery
to be centrally important, much less for abrogating the privilege
on that basis. See, e.g., Carey v. Hume, 492 F.2d 631, 637–38
(D.C. Cir. 1974).
                              9
     We reject Herridge’s contention that the Privacy Act claim
here is frivolous. Herridge presses two main points: “most” of
Chen’s alleged damages were caused by DoD’s independent
decision to cut off funds to UMT, Appellant’s Br. at 34, and
“almost all” of Herridge’s reporting came from sources other
than Privacy Act information, id. at 42. But “most” is not all,
and Chen does seek damages not flowing from a loss of
business after DoD severed its ties with UMT. Likewise, even
if Herridge collected “almost all” of her information from
material that was already in the public domain, Chen plausibly
alleges that some of it had to have come from Privacy Act
violations—such as the disclosure of photographs seized from
Chen’s home during the FBI search. And so long as Chen
establishes that some Privacy Act violation harmed her, she
may recover actual or statutory damages if it was willful. 5
U.S.C. § 552a(g)(4)(A); Doe v. Chao, 540 U.S. 614, 627
(2004). In sum, Herridge’s arguments at most suggest that
Chen is likely to recover only a small amount of damages, but
that does not render her claim frivolous.

                              2

     Beyond this discrete point about frivolousness, Herridge
more broadly urges that Chen’s claim is simply not that
important. In Herridge’s view, regardless of centrality and
exhaustion, the reporter’s privilege should prevail if a court
determines that the social importance of the news story
outweighs the plaintiff’s personal interest in vindicating her
claim. Here, for example, Herridge argues that “the public’s
interest in protecting journalists’ ability to report without
reservation on sensitive issues of national security” should
outweigh Chen’s merely private interest in recovering perhaps
as little as $1,000 in statutory damages. Appellant’s Br. at 3
(quoting Lee v. DOJ, 428 F.3d 299, 302 (D.C. Cir. 2005)
(Tatel, J., dissenting from denial of rehearing en banc)).
                               10
     Herridge’s proposed balancing test echoes the view
advanced by the judges dissenting from denial of rehearing en
banc in Lee. See 428 F.3d at 300–03. As they were in dissent,
we are left simply to apply the Lee panel opinion. And
although Herridge describes that opinion as silent on the
questions whether and how to weigh factors beyond centrality
and exhaustion, even silence is fatal to her position here.
Again, Herridge contends that the district court erred in
ordering her to disclose the identity of her confidential source,
despite its findings as to centrality and exhaustion. Given this
posture, it makes no difference whether Lee affirmatively
forbade the broader interest-balancing favored by Herridge or
simply failed to apply it. Either way, Lee held that a district
court permissibly found a reporter’s privilege overcome based
on findings of centrality and exhaustion in a Privacy Act case,
without any broader balancing of private and public interests.
413 F.3d at 60. And that suffices to foreclose Herridge’s
privilege claim here.

     Perhaps recognizing as much, Herridge falls back to an
argument that Zerilli affirmatively requires case-by-case
balancing regardless of Lee. She therefore asks us to disregard
Lee as inconsistent with prior circuit precedent. But there is no
inconsistency. Zerilli upheld an assertion of the reporter’s
privilege in a case where the plaintiff had failed to exhaust, see
656 F.2d at 714, and it expressly reserved the question
“whether compelled disclosure would have been appropriate if
[plaintiffs] had fulfilled their obligation to exhaust alternative
sources,” id. at 714 n.52. Then, Lee answered that question in
the affirmative, in a Privacy Act case where the plaintiff had
established both centrality and exhaustion. See 413 F.3d at 57–
61. Herridge points us to Zerilli’s more general statement that
“courts should look to the facts of each case, weighing the
public interest in protecting the reporter’s sources against the
private interest in compelling disclosure.” 656 F.2d at 712.
                               11
But Zerilli made that statement in the course of deciding
whether to recognize a reporter’s privilege at all. See id. at
710–12. Having done so, the Court then established “more
precise guidelines … to determine how the balance should be
struck in a particular case.” Id. at 713. And as explained above,
it crystallized those guidelines into two inquiries “of central
importance”—whether the information is “crucial” to the case
and whether the litigant could obtain it from a “reasonable
alternative source.” Id.

                               V

     Finally, Herridge urges us to recognize, as a matter of
federal common law, a reporter’s privilege broad enough to
permit the case-by-case interest balancing urged by the Lee
dissentals. We decline this invitation to end-run our precedent.

      Rule 501 of the Federal Rules of Evidence authorizes
federal courts to recognize new privileges “in the light of
reason and experience.” Fed. R. Evid. 501; see Jaffee v.
Redmond, 518 U.S. 1, 8 (1996). But Herridge has provided
little cause to think that “reason and experience” support the
privilege that she propounds. As to reason, the First
Amendment analysis in cases like Zerilli and Lee thoroughly
lays out the competing considerations of encouraging
newsgathering while also respecting the elemental principle
that “the public has a right to every man’s evidence.” Trump
v. Vance, 591 U.S. 786, 791 (2020). As to experience, Herridge
contends that virtually every state has recognized some form of
a reporter’s privilege. She attached to her opening brief a chart
summarizing the relevant law in every state. But as this chart
demonstrates, the privilege varies widely in its scope from state
to state, both in the abstract and on the question whether case-
by-case interest balancing is appropriate. In short, if the First
Amendment itself does not entitle Herridge to disobey
                              12
discovery obligations imposed on every other citizen in the
circumstances of this case, we see little reason to create that
entitlement as a matter of judge-made common law.

   For these reasons, we decline to recognize a federal
common law newsgathering privilege.

                                                     Affirmed.