UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
XUNXIAN LIU,
Plaintiff,
v. Civil Action No. 21-494 (TJK) ADMINISTRATIVE OFFICE OF THE U.S. COURTS et al.,
Defendants.
MEMORANDUM
In 2018, Judge Theodore Chuang of the United States District Court for the District of
Maryland granted summary judgment against Xunxian Liu in a suit Liu brought under Title VII of
the Civil Rights Act of 1964. Liu, claiming Judge Chuang defamed him in the relevant opinion,
sued him in the District of Maryland. After substituting the United States as the party defendant,
the court dismissed that case because the United States was protected by sovereign immunity, so
the court lacked subject-matter jurisdiction. Liu v. Chuang, No. 8:18-cv-03674 (PWG), 2019 WL
1559428 (D. Md. Apr. 10, 2019), aff’d sub nom. Liu v. United States, 797 F. App’x 775 (4th Cir.
2020). Now, Liu has pivoted to this District, and sued the Administrative Office of the U.S. Courts
and the United States, making similar allegations against Judge Chuang. He claims that Judge
Chuang committed common law torts and violated his constitutional rights by writing defamatory
and libelous comments about him in his 2018 summary judgment opinion. Defendants moved to
dismiss for lack of subject-matter jurisdiction, arguing that sovereign immunity again bars Liu’s
claims. The Court agrees and will grant Defendants’ motion to dismiss. * * *
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) “presents a threshold
challenge to the court’s jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987).
Because federal courts are courts of limited jurisdiction, it is “presumed that a cause lies outside
this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Thus,
when faced with a motion to dismiss under Rule 12(b)(1), “the plaintiff bears the burden of estab-
lishing jurisdiction by a preponderance of the evidence.” Moran v. U.S. Capitol Police Bd., 820
F. Supp. 2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
In reviewing such a motion, while the court is not limited to the allegations in the complaint and
may consider materials outside the pleadings, the court must “accept all of the factual allegations
in [the] complaint as true.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.
2005) (alteration in original) (quoting United States v. Gaubert, 499 U.S. 315, 327 (1991)).
Liu has not established jurisdiction by a preponderance of the evidence. The Supreme
Court has made clear that, under the doctrine of sovereign immunity, neither the United States nor
its agencies can “be sued without [the United States’] consent and that the existence of consent is
a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). In other
words, “the Court’s jurisdiction is limited to those instances in which the government has unequiv-
ocally waived sovereign immunity.” Briscoe v. United States, 268 F. Supp. 3d 1, 8 (D.D.C. 2017)
(cleaned up). Liu invokes both 42 U.S.C. § 1983 and the Federal Tort Claims Act (“FTCA”), but
the government has not waived sovereign immunity for his claims under either statute.1
1 Liu does not reference 42 U.S.C. § 1983 in his complaint. ECF No. 1. But he does allege that Judge Chuang’s “use[]” of “misrepresentations” in the 2018 summary judgment opinion “violates the 14th Amendment of the US Constitution, section 1, last sentence.” Id. at 2. And he states in his opposition to Defendants’ motion to dismiss that he brings his claims under both the FTCA
2 Take Liu’s supposed Section 1983 claims first, whatever they might be. Section 1983 bars
the deprivation of rights by individuals acting under the color of state law. “By its terms, [it] does
not apply to any federal government entity or to federal officials acting under federal law.” Way
v. Johnson, 893 F. Supp. 2d 15, 22 (D.D.C. 2012); see also Settles v. U.S. Parole Comm’n, 429
F.3d 1098, 1104 (D.C. Cir. 2005). So it does not “waive . . . sovereign immunity,” and any claims
Liu has brought under Section 1983 must be dismissed. Dye v. United States, 516 F. Supp. 2d 61,
71 (D.D.C. 2007); see also Partovi v. Matuszewski, 647 F. Supp. 2d 13, 17–18 (D.D.C. 2009),
aff’d, No. 09-5334, 2010 WL 3521597 (D.C. Cir. Sept. 2, 2010).
Liu’s FTCA claims fare no better. To be sure, the FTCA “is a limited waiver of the United
States’ sovereign immunity and renders the Federal Government liable to the same extent as a
private party for certain torts of its employees committed within the scope of their employment.”
GAF Corp. v. United States, 818 F.2d 901, 904 (D.C. Cir. 1987); 28 U.S.C. § 2674. But the FTCA
also provides “exceptions for actions in which the [g]overnment has not waived sovereign immun-
ity.” Farmer v. Disability Program Manager, No. 19-cv-01731 (TNM), 2020 WL 2571521, at *2
(D.D.C. May 21, 2020) (emphasis added) (quoting Wuterich v. Murtha, 562 F.3d 375, 380 (D.C.
Cir. 2009)). Several of those exceptions apply here.
First, “the FTCA does not permit lawsuits against federal agencies.” Hamilton v. United
States, 502 F. Supp. 3d 266, 271 (D.D.C. 2020); see also 28 U.S.C. § 2679(a). “Under the FTCA,
the United States is the only proper party defendant.” Welsh v. Hagler, 83 F. Supp. 3d 212, 223
(D.D.C. 2015) (emphasis added) (quoting Cureton v. U.S. Marshal Serv., 322 F. Supp. 2d 23, 25
n.4 (D.D.C. 2004)). Liu does not argue otherwise. In fact, he agrees that “the US is the defendant.”
and Section 1983. See ECF No. 25 at 3, 6–7; see also Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
XUNXIAN LIU,
Plaintiff,
v. Civil Action No. 21-494 (TJK) ADMINISTRATIVE OFFICE OF THE U.S. COURTS et al.,
Defendants.
MEMORANDUM
In 2018, Judge Theodore Chuang of the United States District Court for the District of
Maryland granted summary judgment against Xunxian Liu in a suit Liu brought under Title VII of
the Civil Rights Act of 1964. Liu, claiming Judge Chuang defamed him in the relevant opinion,
sued him in the District of Maryland. After substituting the United States as the party defendant,
the court dismissed that case because the United States was protected by sovereign immunity, so
the court lacked subject-matter jurisdiction. Liu v. Chuang, No. 8:18-cv-03674 (PWG), 2019 WL
1559428 (D. Md. Apr. 10, 2019), aff’d sub nom. Liu v. United States, 797 F. App’x 775 (4th Cir.
2020). Now, Liu has pivoted to this District, and sued the Administrative Office of the U.S. Courts
and the United States, making similar allegations against Judge Chuang. He claims that Judge
Chuang committed common law torts and violated his constitutional rights by writing defamatory
and libelous comments about him in his 2018 summary judgment opinion. Defendants moved to
dismiss for lack of subject-matter jurisdiction, arguing that sovereign immunity again bars Liu’s
claims. The Court agrees and will grant Defendants’ motion to dismiss. * * *
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) “presents a threshold
challenge to the court’s jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987).
Because federal courts are courts of limited jurisdiction, it is “presumed that a cause lies outside
this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Thus,
when faced with a motion to dismiss under Rule 12(b)(1), “the plaintiff bears the burden of estab-
lishing jurisdiction by a preponderance of the evidence.” Moran v. U.S. Capitol Police Bd., 820
F. Supp. 2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
In reviewing such a motion, while the court is not limited to the allegations in the complaint and
may consider materials outside the pleadings, the court must “accept all of the factual allegations
in [the] complaint as true.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.
2005) (alteration in original) (quoting United States v. Gaubert, 499 U.S. 315, 327 (1991)).
Liu has not established jurisdiction by a preponderance of the evidence. The Supreme
Court has made clear that, under the doctrine of sovereign immunity, neither the United States nor
its agencies can “be sued without [the United States’] consent and that the existence of consent is
a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). In other
words, “the Court’s jurisdiction is limited to those instances in which the government has unequiv-
ocally waived sovereign immunity.” Briscoe v. United States, 268 F. Supp. 3d 1, 8 (D.D.C. 2017)
(cleaned up). Liu invokes both 42 U.S.C. § 1983 and the Federal Tort Claims Act (“FTCA”), but
the government has not waived sovereign immunity for his claims under either statute.1
1 Liu does not reference 42 U.S.C. § 1983 in his complaint. ECF No. 1. But he does allege that Judge Chuang’s “use[]” of “misrepresentations” in the 2018 summary judgment opinion “violates the 14th Amendment of the US Constitution, section 1, last sentence.” Id. at 2. And he states in his opposition to Defendants’ motion to dismiss that he brings his claims under both the FTCA
2 Take Liu’s supposed Section 1983 claims first, whatever they might be. Section 1983 bars
the deprivation of rights by individuals acting under the color of state law. “By its terms, [it] does
not apply to any federal government entity or to federal officials acting under federal law.” Way
v. Johnson, 893 F. Supp. 2d 15, 22 (D.D.C. 2012); see also Settles v. U.S. Parole Comm’n, 429
F.3d 1098, 1104 (D.C. Cir. 2005). So it does not “waive . . . sovereign immunity,” and any claims
Liu has brought under Section 1983 must be dismissed. Dye v. United States, 516 F. Supp. 2d 61,
71 (D.D.C. 2007); see also Partovi v. Matuszewski, 647 F. Supp. 2d 13, 17–18 (D.D.C. 2009),
aff’d, No. 09-5334, 2010 WL 3521597 (D.C. Cir. Sept. 2, 2010).
Liu’s FTCA claims fare no better. To be sure, the FTCA “is a limited waiver of the United
States’ sovereign immunity and renders the Federal Government liable to the same extent as a
private party for certain torts of its employees committed within the scope of their employment.”
GAF Corp. v. United States, 818 F.2d 901, 904 (D.C. Cir. 1987); 28 U.S.C. § 2674. But the FTCA
also provides “exceptions for actions in which the [g]overnment has not waived sovereign immun-
ity.” Farmer v. Disability Program Manager, No. 19-cv-01731 (TNM), 2020 WL 2571521, at *2
(D.D.C. May 21, 2020) (emphasis added) (quoting Wuterich v. Murtha, 562 F.3d 375, 380 (D.C.
Cir. 2009)). Several of those exceptions apply here.
First, “the FTCA does not permit lawsuits against federal agencies.” Hamilton v. United
States, 502 F. Supp. 3d 266, 271 (D.D.C. 2020); see also 28 U.S.C. § 2679(a). “Under the FTCA,
the United States is the only proper party defendant.” Welsh v. Hagler, 83 F. Supp. 3d 212, 223
(D.D.C. 2015) (emphasis added) (quoting Cureton v. U.S. Marshal Serv., 322 F. Supp. 2d 23, 25
n.4 (D.D.C. 2004)). Liu does not argue otherwise. In fact, he agrees that “the US is the defendant.”
and Section 1983. See ECF No. 25 at 3, 6–7; see also Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (“a district court errs in failing to consider a pro se litigant’s com- plaint in light of all filings, including filings responsive to a motion to dismiss” (cleaned up)).
3 ECF No. 25 at 4. Thus, the Administrative Office of the U.S. Courts “remains immune from suit,”
and the Court lacks jurisdiction to consider Liu’s FTCA claims against it. Hamilton, 502 F. Supp.
3d at 274. Second, the FTCA “does not waive sovereign immunity for constitutional torts.” Epps
v. U.S. Atty. Gen., 575 F. Supp. 2d 232, 238 (D.D.C. 2008). So to the extent that Liu brings a
separate claim under the FTCA for Judge Chuang’s alleged violation of his constitutional rights,
ECF No. 1 at 2, the Court lacks jurisdiction to consider that claim too. Third, the FTCA does not
waive sovereign immunity for “[a]ny claim arising out of . . . libel, slander, misrepresentation, [or]
deceit.” 28 U.S.C. § 2680(h). And Liu’s claims all arise out of Judge Chuang’s alleged “misrep-
resentations” and “libels.” ECF No. 1 at 1. Thus, the Court cannot consider any remaining FTCA
claims. See Liu, 2019 WL 1559428, at *4 (concluding that the United States had not waived
sovereign immunity for Liu’s defamation claims against Judge Chuang).
Liu argues in response that the FTCA does waive sovereign immunity for such intentional
tort claims because Section 2680(h) applies only to investigative or law enforcement officers, not
judicial officers like Judge Chuang. ECF No. 25 at 5–6. But that gets Section 2680(h) backwards.
In full, the subsection provides that:
The provisions of [the FTCA] . . . shall not apply to . . . [a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law en- forcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsec- tion, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.
4 28 U.S.C. § 2680(h). Read in total, Section 2680(h) excludes from the FTCA’s limited waiver of
sovereign immunity claims “arising out of assault, battery, false imprisonment, false arrest, mali-
cious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with
contract rights”—but it includes an exception to this exception for certain torts committed by “in-
vestigative or law enforcement officers of the United States Government.” Id. Because, as Liu
admits, Judge Chuang “is not an investigative or law enforcement officer,” that exception to the
exception does not apply here. ECF No. 25 at 5. Thus, the FTCA claims against Judge Chuang
remain barred by sovereign immunity.
* * *
For all these reasons, the United States has not waived sovereign immunity for Liu’s
claims, so this Court lacks subject-matter jurisdiction, and it need not consider Defendants’ venue
and claim preclusion arguments. Thus, the Court will grant Defendants’ motion to dismiss. A
separate order will issue.
/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge
Date: April 21, 2022