Liu v. Secretary of Department of Health and Human Services ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
XUNXIAN LIU,
Plaintiff, Civil Action No. 21-cv-495 (JMC)
v.
SECRETARY OF DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.,
Defendants.
MEMORANDUM OPINION
This is the fifth time that Plaintiff Xunxian Liu has filed a lawsuit about his termination
from the National Center for Complementary and Integrative Health. The District Court for the
District of Maryland addressed the circumstances surrounding Liu’s removal and dismissed his
suit—twice. Liu v. Bushnell (Liu I), No. CV TDC-17-1398, 2018 WL 3093974 (D. Md. June 22,
2018); Liu v. Shurtleff (Liu II), No. 8:18-CV-3468, 2020 WL 42756 (D. Md. Jan. 3, 2020). And
Liu twice tried to litigate his removal in the Court of Federal Claims without success. Liu v. United
States (Liu III), No. 20-1901C, 2021 WL 451003 (Fed. Cl. Feb. 9, 2021); Fed. Cl. 20cv1902 (Liu
IV) ECF 7. Liu cannot keep bouncing between courts to do over a case that he has already lost.
His Complaint, moreover, fails to state any claim upon which relief can be granted. This Court
thus GRANTS Defendants’ Motion to Dismiss, ECF 19; DENIES Liu’s Motion for a Hearing,
ECF 29; and DENIES Liu leave to file an amended complaint, ECF 30.1
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Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by
omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to
documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the
top of each page.
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I. BACKGROUND
Plaintiff Xunxian Liu was a biologist at the Bethesda, Maryland office of the National
Center for Complementary and Integrative Health (NCCIH), a subdivision of the National
Institutes of Health (NIH) of the Department of Health and Human Services (HHS). ECF 1-2 at 1;
ECF 3 at 1. Liu’s supervisor, Mary Catherine Bushnell, placed Liu on a performance-improvement
plan on May 21, 2015. ECF 1-2 at 2. Bushnell claims that she told Liu during a May 8, 2015,
meeting that he had been performing unacceptably. ECF 3 at 3. Liu, however, insists that this
meeting did not happen and that Bushnell never notified him that she was putting him on the
performance-improvement plan. ECF 1 at 2. Bushnell wrote a memorandum proposing Liu’s
removal on July 30, 2015. ECF 3 at 7. Bushnell’s supervisor, David Shurtleff, issued a final
decision to terminate Liu on August 31, 2015. Id. Liu appealed to the Merit Systems Protection
Board (MSPB), which affirmed Liu’s termination. ECF 1-3 at 2; ECF 3 at 9-10.
Liu filed his first lawsuit challenging his termination. Appearing pro se, Liu sued Bushnell,
Shurtleff, and NCCIH Executive Officer Wendy Liffers, who Liu also claims was responsible for
his termination, in the District of Maryland. Liu I ECF 1 at 1. The district court construed Liu’s
complaint as alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-
2000e-17; the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634,
as well as perjury violations. Liu I, 2018 WL 3093974, at *6. Days after he filed suit, Liu wrote a
letter to the U.S. Attorney General, claiming that Bushnell and an NIH attorney had committed
perjury by attesting to the MSPB that Bushnell and Liu had met on May 8, 2015. Liu I ECF 20 at
1; Liu I ECF 20-1 at 1. Liu then moved the district court to recuse Assistant U.S. Attorney Evelyn
Cusson, who represented Bushnell, Shurtleff, and Liffers in the lawsuit. Liu I ECF 20 at 1. Liu
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asserted that Cusson was involved in investigating his DOJ perjury complaint and thus had a
conflict. Id. at 2. Cusson disavowed any involvement in the investigation. Liu I ECF 25 at 1.
In Liu I, the district court granted summary judgment to the defendants on Liu’s Title VII,
ADEA, and perjury claims. Liu I, 2018 WL 3093974, at *13. Finding that Cusson’s involvement
in the DOJ investigation was “pure speculation,” the district court also denied Liu’s motion to
recuse. Id. at *6. The Fourth Circuit affirmed. Liu v. Azar, 742 F. App’x 748, 748 (4th Cir. 2018).
Undeterred, Liu filed his second lawsuit. This time, he sued Bushnell, Shurtleff, and
Cusson in the Circuit Court for Montgomery County, Maryland. Liu II ECF 1-6 at 1. First, Liu
alleged that Bushnell violated Liu’s due-process rights and committed “fraud in a federal
document.” Id. Liu claimed that Bushnell had falsely written in her July 30, 2015, memorandum
that she had notified him on May 8, 2015, that he had been performing unacceptably. To Liu, this
was a “lie” because Bushnell never notified Liu that his performance was lacking before putting
him on the performance-improvement plan. Id. at 2. Liu also complained that an NIH attorney
presented this purportedly false memorandum to the MSPB. Id. Second, Liu accused Shurtleff of
“cop[ying]” Bushnell’s “lie” in his August 31, 2015, removal decision. Id. Third, Liu accused
Cusson of violating his rights and presenting this false information before the court. Id. at 5. Liu
insisted that Cusson was involved in a DOJ investigation into his perjury complaint to the agency.
Id. To Liu, Cusson’s representing to the district court that she was uninvolved in such an
investigation violated his rights. Id. at 6.
The case was removed to the District of Maryland. Liu II ECF 1. In Liu II, the district court
determined that the issues that Liu raised were already litigated in, resolved in, and necessary to
the outcome of Liu I. Citing issue preclusion, the Liu II court dismissed Liu’s second suit. Liu II,
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2020 WL 42756, at *4-5. Again, the Fourth Circuit affirmed. Liu v. Bushnell, 802 F. App’x 789,
789 (4th Cir. 2020).
Liu then filed his third and fourth lawsuits. Appearing pro se, Liu filed two lawsuits in the
Court of Federal Claims against the United States for due-process, equal-protection, and Federal
Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680, violations. Liu III ECF 1 at 1; Liu IV
ECF 1 at 1. The Court of Federal Claims dismissed both suits for lack of subject-matter
jurisdiction. Liu III, 2021 WL 451003, at *2; Liu IV ECF 7 at 1.
Liu brought a fifth lawsuit—the case before this Court. Liu now sues the Secretary of HHS,
the Director of the MSPB, and the U.S. Attorney General in this jurisdiction. ECF 1. The
Complaint is difficult to follow, but the Court has endeavored to summarize Liu’s allegations. The
Complaint refers in passing to the “5th and 14th Amendments”; “14th Amendment of the US
Constitution, Section 1, last sentence” (which includes the due-process and equal-protection
clauses); “right to know, covered by the 9th Amendment”; and “federal tort claim act.” Id. at 1-2.
The Complaint otherwise consists of Liu’s articulation of three “lies.” Id. at 2. First, Liu alleges
that Bushnell “lied” by representing to the Liu I court that she had met with Liu on May 8, 2015,
and that she had told Liu that he was performing poorly at that meeting. Liu insists that this meeting
never happened. Id. at 2-4. Second, Liu alleges that DOJ and HHS lawyers “lied” by attesting to
the Liu I court that Cusson was not involved in DOJ’s investigation into Liu’s perjury complaint.
Liu claims that Cusson conducted that investigation. Id. at 4-5. Third, Liu asserts that a DOJ lawyer
“lied” by representing to the Liu I court that the Department investigated Liu’s perjury claim. Liu
claims that no investigation occurred. Id. at 5-6. Liu attached to his Complaint sundry filings
associated with his numerous administrative proceedings and lawsuits in which he protested his
termination from the NCCIH. ECF 1; ECF 3.
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Defendants moved to dismiss, invoking Federal Rule of Civil Procedure 12(b)(6). ECF 19.
After Defendants’ Motion to Dismiss was fully briefed, ECF 22; ECF 26, Liu sought leave to file
an amended complaint and moved for a “pre-motion conference” to submit a summary-judgment
motion. ECF 29 at 1. The Court now resolves these pending motions.
II. LEGAL STANDARD
To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A pro se
complaint—“however inartfully pleaded”—is “held to less stringent standards than formal
pleadings drafted by lawyers” are and must be “liberally construed.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Even so, a pro
se complaint—like the one before this Court—must still “plead factual matter that permits the
court to infer more than the mere possibility of misconduct.” Atherton v. D.C. Off. of Mayor, 567
F.3d 672, 681-82 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at 678-79)).
“In determining whether a complaint fails to state a claim, [courts] may consider only the
facts alleged in the complaint, any documents either attached to or incorporated in the complaint
and matters of which [courts] may take judicial notice.” EEOC v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Courts may take judicial notice of facts of public record,
including other courts’ proceedings and records. See Covad Commc’ns Co. v. Bell Atl. Corp., 407
F.3d 1220, 1222 (D.C. Cir. 2005). Doing so does not convert a motion to dismiss to one for
summary judgment. See Vance v. Chao, 496 F. Supp. 2d 182, 184 n.1 (D.D.C. 2007).
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III. ANALYSIS
Liu fashions this lawsuit as a challenge to the three “lies” that Bushnell and various
Government lawyers allegedly relayed to the Liu I court about the circumstances surrounding his
firing from the NCCIH. But Liu’s “lies” framework is a transparent attempt to once again aggrieve
his termination before yet another federal court. ECF 1 at 9 (“I request $100000 for removing my
position without due process . . . .” (emphasis added)); ECF 3 at 1-11 (attaching to Complaint
memoranda by Bushnell and Shurtleff and excerpts from the MSPB initial decision related to Liu’s
termination). That will not do. This Court will not disturb the Liu I court’s factual findings; nor
will this Court usurp the Liu II court’s holding that issue preclusion bars Liu from bringing a civil
action based on Bushnell’s allegedly “lying” about the May 8, 2015, meeting or based on any
purported misrepresentations about Cusson’s participation in any DOJ investigation. Liu cannot
swap jurisdictions simply because the Maryland courts have definitively ruled against him. Liu’s
Complaint, moreover, fails to state any claim upon which relief may be granted. Because no
amount of summary-judgment briefing can alter the preclusive effects of Liu I and Liu II, Liu’s
request for a hearing to decide whether such briefing is warranted is denied. Finally, because Liu’s
proposed amended complaint fixes just one inconsequential typo, the Court denies him leave to
file this document. This Court thus grants Defendants’ Motion to Dismiss, denies Liu’s Motion for
a Hearing, and denies Liu leave to file an amended complaint.
A. Defendants’ Motion to Dismiss
1. Claims Against the Director of the Merit Systems Protection Board
The Court disposes of Liu’s claims against the Director of the MSPB. Liu names the
Director as a defendant, but his Complaint supplies no factual allegations about the Director. The
Complaint and its attachments make clear that Liu has sued the Director because he is aggrieved
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that the MSPB found that Bushnell notified him of his poor performance on May 8, 2015, in
rejecting his administrative complaint. ECF 3 at 10. But Liu cannot sue for damages because he is
unhappy with the findings and determinations of MSPB administrative judges. See Butz v.
Economou, 438 U.S. 478, 514 (1978) (concluding that persons performing adjudicatory functions
in federal administrative agencies are absolutely immune from damages liability for their judicial
acts). Liu’s claims against the Director of the MSPB are thus dismissed.
2. Issue Preclusion
Defendants assert that issue preclusion bars Liu’s suit. ECF 19-1 at 7-9. This Court agrees.
Issue preclusion “bars successive litigation of an issue of fact or law actually litigated and
resolved in a valid court determination essential to the prior judgment, even if the issue recurs in
the context of a different claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008). The doctrine
“protect[s] the parties from the burden of relitigating the same issue following a final judgment
and to promote judicial economy by preventing needless litigation.” Consol. Edison Co. of N.Y. v.
Bodman, 449 F.3d 1254, 1258 (D.C. Cir. 2006). Issue preclusion applies not only to the parties in
the first litigation but also to those in privity with those parties. Jefferson Sch. of Soc. Sci. v.
Subversive Activities Control Bd., 331 F.2d 76, 82-83 (D.C. Cir. 1963).2
Issue preclusion kicks in when (1) the issue being raised was contested by the parties and
submitted for judicial determination in a prior case; (2) the issue was actually and necessarily
determined by a court of competent jurisdiction in that prior case; and (3) preclusion in the second
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Liu was a party in Liu I and Liu II. Defendants here are in privity with Bushnell, Shurtleff, and Cusson (the defendants
in Liu I and Liu II) because aforementioned defendants include Government officers in the same agencies. See
Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03 (1940) (“There is privity between officers of the same
government so that a judgment in a suit between a party and a representative of the United States is res judicata in
relitigation of the same issue between that party and another officer of the government.”).
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case does not work a basic unfairness to the party bound by the first determination. See
Canonsburg Gen. Hosp. v. Burwell, 807 F.3d 295, 301 (D.C. Cir. 2015).3
This case is simple: for the reasons stated by the Liu II court, issue preclusion forecloses
this lawsuit. Here, Liu complains that three “lies” were told to the Liu I court: (1) Bushnell “lied”
by attesting that she had met with Liu on May 8, 2015; (2) DOJ and HHS lawyers “lied” by
representing that Cusson was uninvolved in the perjury investigation; and (3) a DOJ lawyer “lied”
by representing that the agency had investigated Liu’s perjury claim. These “lies” are issues of fact
that were previously presented to, litigated in, and adjudicated by the Liu I court. This Court—as
in Liu II—cannot rehash these factual issues.
To drill down, take each of the issue-preclusion test’s three prongs in turn. Prong one is
easily satisfied because Liu raised and contested the May 8, 2015, meeting and Cusson’s
involvement in the perjury investigation in Liu I and Liu II. In Liu I, Liu asserted a perjury claim
against Bushnell in his complaint and his motion to recuse; he also asserted a perjury claim against
Cusson in his motion to recuse. Liu I, 2018 WL 3093974, at *6, 13.4 Liu reasserted these claims
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Here, Defendants properly invoke issue preclusion in their Rule 12(b)(6) motion because “the facts that give rise to
the defense are clear from the face of the complaint.” Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C.
Cir. 1998). Liu’s complaint repeatedly supplies the case numbers of Liu I, Liu II, Liu III, and Liu IV and recaps the
proceedings in those cases. ECF 1 at 2-8. Attached to the Complaint are judgments and orders issued in his two cases
before the Court of Federal Claims. ECF 1-3 at 5-6. Clearly, “the facts supporting [D]efendants’ dispositive motion
were apparent to [Liu] from the inception of [his] lawsuit.” Smith-Haynie, 155 F.3d at 578. Put simply: the preclusive
effects of prior decisions are clear from the face of the Complaint, and Liu had plenty of notice to dispute issue
preclusion. And, again, this Court may judicially notice other courts’ decisions and records. So this Court may consider
issue preclusion here.
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“Dr. Liu has filed a Motion for Recusal in which he asks the Court to order that Counsel for Defendants, Assistant
United States Attorney Evelyn Cusson, recuse herself from this case, arguing that she has a conflict of interest because
(1) she investigated, then rejected, his requests that criminal perjury charges be brought against Dr. Bushnell and
Susan Andorfer, the NIH attorney in the MSPB proceedings; and (2) she has an inherent conflict of interest because
she is employed by the Department of Justice. . . . Dr. Liu asserts a claim of perjury against Dr. Bushnell and Liffers
based, it appears, on their assertions that Dr. Bushnell informally met with Dr. Liu on May 8, 2015 to give him his
performance appraisal.” Liu I, 2018 WL 3093974, at *6, 13.
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in Liu II. Liu II, 2020 WL 42756, at *4-5.5 Notably, he used the same “lie” and “perjury” language
in his Liu I and Liu II filings as he does here. Compare Liu I ECF 1 at 4-5, 8, 10; Liu I ECF 20 at
1-2, and Liu II ECF 1-6 at 3-6, with ECF 1 at 1, 3.
As for prong two, the pertinence of the three “lies” was actually and necessarily determined
in Liu I. The Liu I court addressed Liu’s claims about the first “lie” (Bushnell’s representations
about the May 8, 2015, meeting) at least three times during that proceeding. First, in construing
the defendants’ motion as one for summary judgment, the Liu I court found that “Liu has known
of [Bushnell’s] assertion [that the May 8, 2015, meeting occurred] since at least July 2015, because
it is included in Dr. Bushnell’s proposed removal letter,” and that “Liu has already had an
opportunity to cross-examine Dr. Bushnell about any meeting on May 8, 2015 as part of the MSPB
hearing.” Liu I, 2018 WL 3093974, at *7. Second, the Liu I court referred to Bushnell’s alleged
duplicity about the May 8, 2015, meeting in finding that Liu failed to cite a statute providing a
private right of action for a civil claim of perjury. See id. at *13. Third, the Liu I court
acknowledged Liu’s and Bushnell’s conflicting positions about the May 8, 2015, meeting but
nonetheless found that Bushnell’s placing Liu on a performance-improvement plan was not based
on an impermissibly discriminatory motive. Id. at *3, 10-11. Addressing the first “lie” was thus
necessary to the final judgment in Liu I. Likewise for the second and third lies. The Liu I court
found that “Liu’s pure speculation that Cusson was involved in the investigation into his
allegations of perjury is an insufficient basis to demand Cusson’s recusal.” Liu I, 2018 WL
3093974, at *6. So, finding that the DOJ investigated Liu’s perjury complaint and that Cusson’s
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“[Liu’s] claims must be dismissed because the relevant issues have already been litigated in [Liu I]. . . . The core of
[Liu’s] claims against Drs. Bushnell and Shurtleff is that [Liu] was not notified that his job performance was
unacceptable prior to placing him on a PIP and that Drs. Bushnell and Shurtleff lied when they stated and affirmed,
respectively, that [Liu] was notified of his deficient performance on May 8, 2015. . . . The core issue in [Liu’s] claims
against AUSA Cusson is that she allegedly investigated [Liu’s] criminal complaint of perjury to the Department of
Justice and decided not to pursue action, while also representing Dr. Bushnell and the other defendants in [Liu I].” Liu
II, 2020 WL 42756, at *5.
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involvement in the perjury investigation was “pure speculation” was necessary to the Liu I court’s
refusal to recuse Cusson.
The relevance of the three “lies,” moreover, was actually and necessarily determined by
the Liu II court. That court held that Liu was “foreclosed” from bringing his claim that “Bushnell
and Shurtleff lied when they stated and affirmed, respectively, that [Liu] was notified of his
deficient performance on May 8, 2015,” because the issue was already decided in Liu I. Liu II,
2020 WL 42756, at *4. The Liu II court similarly found that Liu was “foreclosed” from bringing
his claim “that [Cusson] allegedly investigated [Liu’s] criminal complaint of perjury to the
Department of Justice and decided not to pursue action, while also representing Dr. Bushnell and
the other defendants in [Liu I].” Id. at *5. This Court will not disturb the actual and necessary
determinations of the Liu I and Liu II courts. The second issue-preclusion prong conclusively
favors Defendants.
The third prong—fairness—weighs heavily against Liu. Liu has attempted to challenge the
circumstances of his termination (and the “lies” that he claims were told in connection with it) in
at least four lawsuits—two of which were affirmed by a court of appeals—and in a litany of
administrative complaints. Denying Liu yet another chance to protest his removal from the NCCIH
and the subsequent fallout causes no unfairness.
That Liu cites different causes of action throughout these suits does not rescue him from
issue preclusion. On top of Liu’s due-process claim (which he had previously raised in Liu II), Liu
also alludes to equal-protection, Ninth Amendment, and FTCA violations. These claims were not
raised in Liu I and Liu II—but that does not matter. Again, “issue preclusion . . . bars successive
litigation of an issue of fact or law actually litigated and resolved in a valid court determination
essential to the prior judgment, even if the issue recurs in the context of a different claim.” Taylor,
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553 U.S. at 892 (emphasis added). As explained above, Liu already contested whether the May 8,
2015, meeting occurred and Cusson’s involvement in the perjury investigation before he filed this
suit in the District of Columbia. Bare minimum, Liu had a “full and fair opportunity to litigate”
the merits of his claims in Liu I. Montana v. United States, 440 U.S. 147, 153 (1979).
To sum up, consideration of the three “lies” alleged by Liu here was necessary to the
outcome of Liu I. Like in Liu II, this Court is precluded from adjudicating these issues again.
3. Failure to State a Claim
Having held that issue preclusion bars this suit, this Court would normally stop here. But
Liu is pro se. To explain comprehensively why Liu’s case cannot proceed, this Court alternatively
holds that Liu has failed to state any claim upon which relief can be granted.
The Court is sensitive to the barriers that pro se plaintiffs face. But Liu’s Complaint is far
too sparse to support any claim. Even taking the three “lies” as true, Liu has not pleaded facts that
sustain the elements of a claim under the due-process and equal-protection clauses, the Ninth
Amendment, the FTCA, or any other cognizable cause of action. This alone is grounds to dismiss
Liu’s suit. See Iqbal, 556 U.S. at 678 (“A pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders
naked assertions devoid of further factual enhancement.” (quoting Twombly, 550 U.S. at 555,
557)).
Liu has failed to allege violations of the due-process and equal-protection clauses.
Regarding due process, Liu claims only that Bushnell “lied” about notifying him of her
performance assessment on May 8, 2015, before she put him on a performance-improvement plan.
Even taking as true that the May 8, 2015, meeting never happened, Liu does not allege that he was
denied oral or written notice of the NCCIH’s charges against him, an explanation of those charges,
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or an opportunity to present his side of the story before he was terminated. See Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 546 (1985). Indeed, Liu’s own attachments to his Complaint—
the memoranda by Bushnell and Shurtleff—suggest that these due-process requirements were
satisfied. ECF 3 at 2-3, 7-8. Liu has thus failed to state a due-process violation. As for equal
protection, the Complaint fails to state any facts that Defendants treated Liu differently than they
treated any other person or class of persons. So this Court cannot infer any equal-protection
violation from Liu’s allegations.
Nor does Liu state a claim under the Ninth Amendment, which provides that “the
enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people.” U.S. Const. amend. IX. Although the Ninth Amendment has been
construed as protecting certain unenumerated constitutional rights, no other court has recognized
that the amendment espouses any right that could be violated by these purported “lies.”
Liu, finally, cannot maintain an FTCA claim here. Actionable FTCA claims must be
against the United States, for money damages, . . . for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the
act or omission occurred.
28 U.S.C. § 1346(b)(1) (emphases added); see also Brownback v. King, — U.S. —, 141 S. Ct. 740,
746 (2021) (explaining elements of FTCA claims). Here, the Complaint improperly names three
agency heads instead of the United States. See 28 U.S.C. § 2679(a), (b)(1). This alone is grounds
for dismissing any FTCA claim. See Johnson v. Veterans Affs. Med. Ctr., 133 F. Supp. 3d 10, 17
(D.D.C. 2015) (“Failure to name the United States as the defendant in an FTCA action requires
dismissal for lack of subject-matter jurisdiction.”).
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Liu’s FTCA claim is felled by legion other hurdles. Liu has not alleged any injury to
himself or his property. And, as Defendants point out, ECF 19-1 at 6, 18, this Court is not the
proper venue for an FTCA claim because Liu lives in Rockville, Maryland, and the events
underlying his allegations occurred entirely in Maryland. See 28 U.S.C. § 1402(b) (“Any civil
action on a tort claim against the United States under subsection (b) of section 1346 of this title
may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or
omission complained of occurred.”). The FTCA is also improperly invoked here because the Civil
Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (codified in scattered
sections of 5 U.S.C.), “provide[s] the exclusive remedy for wrongful discharge from government
employ.” Gergick v. Austin, 997 F.2d 1237, 1239 (8th Cir. 1993).
In short, even if this Court could overlook issue preclusion and entertain Liu’s
constitutional and FTCA claims (which it cannot), Liu has failed to state a claim upon which relief
can be granted.
***
Four years ago, the District Court for the District of Maryland addressed Liu’s termination
from the NCCIH. In granting summary judgment to the defendants in that case, the Liu I court
addressed the dispute over whether Bushnell and Liu met on May 8, 2015, and Cusson’s
involvement in the DOJ’s perjury investigation. Liu tried to relitigate these issues in that district
court, which, in Liu II, refused to engage with Liu’s claims because of Liu I’s preclusive effects.
So too here. Issue preclusion bars this Court from readjudicating Liu’s claims surrounding his
termination. And Liu has failed to state a claim upon which relief can be granted in any event. This
Court thus grants Defendants’ Motion to Dismiss.
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B. Other Motions
After Defendants’ Motion to Dismiss was fully briefed, Liu moved for a hearing to submit
summary-judgment briefing, ECF 29, and sought leave to file an amended complaint. No
discovery, no summary-judgment briefing, and no edits to pleadings can alter Liu I’s and Liu II’s
preclusive effects. And given that the Complaint cannot survive the motion-to-dismiss standard,
Liu is certainly not entitled to summary judgment. Liu’s proposed amended complaint, moreover,
corrects just one inconsequential typo in the Complaint’s case caption. ECF 30 at 1. Although
leave to amend the pleadings is freely given before trial, see Fed. R. Civ. P. 15(a)(2), the Court
can deny a motion to amend a complaint as futile if the proposed claim would not survive a motion
to dismiss. James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996).
Liu’s Motion and request for leave to file are denied.
IV. CONCLUSION
This Court GRANTS Defendants’ Motion to Dismiss, ECF 19; DENIES Liu’s Motion for
a Hearing, ECF 29; and DENIES leave to file an amended complaint, ECF 30.
SO ORDERED.
DATE: May 4, 2022
Jia M. Cobb
U.S. District Court Judge
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