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Liu v. Chuang

United States District Court, D. Maryland, Southern Division

April 10, 2019

XUNXIAN LIU, Plaintiff,



         Plaintiff Xunxian Liu has brought this case against U.S. District Court Judge Theodore Chuang, asserting what appear to be two claims for defamation under Maryland law. I am granting the Government's motion to dismiss Judge Chuang and substitute the United States in his place as the party defendant. I am further granting the Government's motion to dismiss this case for lack of jurisdiction. But even if jurisdiction were not lacking, Plaintiffs claims would still be barred under the doctrine of judicial immunity.


         This case marks a follow up to a previous lawsuit Plaintiff filed in this Court in May 2017. See Liu v. Azar, 17-1398-TDC. The defendants in that action were Plaintiffs former supervisors at the National Institutes of Health ("NIH"). See Liu v. Bushnell,, No. TDC-17-1398, 2018 WL 3093974, at *8 (D. Md. June 22, 2018), aff'd, Liu v. Azar, 742 Fed.Appx. 748 (4th Cir. 2018). The May 2017 complaint asserted claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1964; age discrimination and retaliation under the Age Discrimination In Employment Act ("ADEA";; and perjury under federal and state law. See Id. at *1.

         Judge Chuang, the presiding judge in that case, granted the supervisors' motion for summary judgment and dismissed the case. See Id. Within the court's 28-page memorandum opinion, dated June 22, 2018, two sections are relevant for present purposes. The first of these addressed Plaintiffs discrimination claims under Title VII and the ADEA. The court, applying the McDonnell Douglas burden-shifting framework, agreed with the defendants that Plaintiffs discriminatory termination claim must fail because he could not establish that at the time of the alleged adverse actions he was "performing at a level that met NIH's legitimate expectations." Id. at *8. The court explained that the stated reason for Plaintiffs termination "was his inability to satisfactorily complete any of the assignments" in his performance improvement plan, which required him to conduct literature reviews and make data comparisons. Id. at *4, *9. Plaintiff, the court's opinion stated, "could not have been meeting NIH's legitimate performance expectations" in light of the evidence in the record showing that portions of the literature reviews he submitted were plagiarized. Id. at *9.

         A separate section of the court's opinion, also relevant for present purposes, addressed Plaintiffs motion urging Judge Chuang to issue an order requiring the Assistant United States Attorney ("AUSA") representing the defendants to recuse herself from the case. See Id. at *6. That motion, the opinion explained, alleged the AUSA had a conflict of interest - not only because of her employment with the U.S. Department of Justice, but because, according to Plaintiff, she had personally investigated, then rejected, his requests to bring criminal perjury charges against one of the former NIH supervisors and an NIH attorney. See Bushnell, 2018 WL 3093974, at *6. In rejecting this argument, the judge wrote: "Dr. Liu's pure speculation that [the AUSA] was involved in the investigation into his allegations of perjury is an insufficient basis to demand [the AUSAs]] removal." Id.

         Among Plaintiffs responses to the court's decision - responses that included an unsuccessful appeal in the Fourth Circuit - this case against Judge Chuang was one. Plaintiff brought the suit on October 22, 208,, in the Circuit Court for Montgomery County, Maryland. ECF No. I. The U.S. Attorney for the District of Maryland, exercising his authority under 28 U.S.C. S 2679(d), promptly certified that Judge Chuang "was acting within the scope of his employment as an employee of the United States at all times relevant to the allegations contained in Plaintiffs Complain.." Certification, ECF NO.1, Ex. 9. The Government then removed the case to this Court on November 30, 2018.[1]

         Plaintiffs Complain,, filed without the assistance of counsel, asserts what appear to be two claims of defamation. See Compl. ¶¶ 8, 11, ECF No. 1-1. Count I references "Maryland defamation law" and states: "Chuang makes false statements in his opinion that is published on electronic media." Id. ¶¶ 1, 8. Count II, styled as a claim for "defamation per se," states: "Those false statements/points put Liu's in ridicule status and damage Liu's reputation and professional standings." Id. ¶¶ 8, 11.

         Counts I and II overlap, in that both take issue with two statements included in Judge Chuang's June 22, 2018 memorandum opinion. The first of the challenged statements can be found in the section of the opinion denying the motion for an order requiring the AUSA to recuse herself from the case because of a purported conflict of interest. Specifically, Plaintiff faults the court for characterizing the conflict-of-interest theory as "pure speculation." Compl. ¶ 2. He accuses Judge Chuang of ignoring evidence that the AUSA had, indeed, investigated the perjury allegations. See id.

         Plaintiff next challenges the portion of the court's opinion addressing his discrimination claims. In particular, he alleges: "Chuang ignores the apparent difference between reading comprehension of literature (superior understanding of the pain research area) that is required in Liu's Employee Performance Plan (Exhibit D) and writing reviews that is one of the assignments in the Performance Improvement Plan (PIP) (Exhibit E)." Id. ¶ 5.

         The Government has since moved to substitute itself as the defendant in place of Judge Chuang. ECF No. 22. It also moved to dismiss the Complaint, raising a mix of jurisdictional and merits challenges. Mot. to Dismiss I, ECF No. 23. As to jurisdiction, the motion argues, first, that the United States enjoys sovereign immunity to tort claims for defamation and, second, that Plaintiff failed to exhaust his administrative remedies before filing suit. See id The motion then argues that the Complaint fails to state a claim upon which relief could be granted because Judge Chuang enjoys absolute judicial immunity from suit. See Id. Finally, it contends a dismissal is warranted because Plaintiff did not properly serve the United States with process. See id.

         Plaintiff has opposed the Government's motion. Opp'n, ECF No. 25. A hearing is not necessary. See Loc. R. 105.6.


         The Government seeks a dismissal under either Rule 12(b)(1) or 12(b)(6) of the Federal Rules of Civil Procedure. A 12(b)(1) motion challenges the district court's subject matter jurisdiction, asserting, in effect, that the plaintiff lacks any "right to be in the district court at all." Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012). The burden of establishing the court's subject matter jurisdiction rests with the plaintiff. Evans v. B.F. PerkinsCO., 166 F.3d 642, 647 (4th Cir. 1999). The district court should grant the l2(b)()) motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to ...

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