United States District Court, D. Maryland, Southern Division
W. GRIMM, UNITED STATES DISTRICT JUDGE
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.
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
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.
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."
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.
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. ¶¶
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
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.
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.
has opposed the Government's motion. Opp'n, ECF No.
25. A hearing is not necessary. See Loc. R. 105.6.
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 ...