Navab–safavi v. Glassman

• Decision Date: 01 March 2011
• Docket Number: No. 09–5388.,09–5388.
• Citation: 637 F.3d 311
• Parties: Melodi NAVAB–SAFAVI, Appelleev.James K. GLASSMAN, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

637 F.3d 311

394 U.S.App.D.C. 377

31 IER Cases 1542

39 Media L. Rep. 1417

Melodi NAVAB–SAFAVI, Appellee

v.James K. GLASSMAN, et al., Appellants.

No. 09–5388.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 5, 2010.Decided March 1, 2011.

Appeal from the United States District Court for the District of Columbia (No. 1:08–cv–01225).Robin M. Meriweather, Assistant U.S. Attorney, argued the cause for appellants. With her on the briefs were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.Richard A. Salzman argued the cause for appellee Melodi Navab–Safavi. With him on the brief were Carolyn N. Lerner and Douglas B. Huron.Before: SENTELLE, Chief Judge, GARLAND, Circuit Judge, and WILLIAMS, Senior Circuit Judge.Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge:

In July 2007, appellee Melodi Navab–Safavi, then a contractor for the Persian News Network of the Voice of America, appeared in a music video that criticized the United States' involvement in Iraq. Voice of America, overseen by the Broadcasting Board of Governors, terminated Navab–Safavi's contract and Navab–Safavi thereafter filed this action against the Board and several of its officials, alleging violations of the First and Fifth Amendments. The defendant officials moved to dismiss on several grounds, including qualified immunity. The district court denied their motions, and the defendant officials filed this interlocutory appeal, contending that the district court erred in its ruling on qualified immunity. For the reasons set out below, we conclude that the district court did not err in denying defendants' motions for dismissal. We therefore affirm the district court's order and remand for further proceedings.

I. Background

A. Factual Background

We note at the outset that we are reviewing the decision of the district court on a motion to dismiss on the basis of qualified immunity. At that stage of the proceedings, the district court was of course required to assume the truth of all factual allegations in the complaint. Vila v. Inter–Am. Investment Corp., 570 F.3d 274, 278 (D.C.Cir.2009). Like the district court, our discussion will assume the truth of those allegations and will reflect no conclusions upon their accuracy.

At the time of the events under litigation, plaintiff Melodi Navab–Safavi worked as a contractor with the Broadcasting Board of Governors (“BBG” or “the Board”). The BBG is a federal agency charged with overseeing all U.S. government and government-sponsored, non-military, international broadcasting services. The BBG oversees Voice of America (“VOA”), which in turn oversees the Persian News Network (“PNN”), formerly called the Persian Service. Navab–Safavi's contract was to provide services to the Persian Service, which produces programs, features, and talk shows in the Farsi language. Navab–Safavi's primary duties were to translate material into Farsi for these productions and to provide “voice-over” services, reading copy already approved by an editor. She also provided technical support for the production of newscasts. All of Navab–Safavi's work was reviewed by a VOA editor or producer. According to a supervisor, she was “not a journalist.” She did not create, but rather translated news and feature stories. Although she narrated some “History Channel” segments, she never appeared on air as a VOA employee, and at her request the VOA did not identify her by name on the air. Her only appearance on a VOA telecast was as a guest performer with her band Abjeez, a pop band that produces songs and music videos.

In early July 2007, Abjeez produced a music video called DemoKracy. The video, which was before the district court by incorporation in the pleadings, protests the United States' involvement in Iraq and depicts casualties of the war, including images of coffins of United States soldiers and of “brutal injuries and deaths suffered by Iraq's civilian population during the war,” among them wounded children. The format of the video portrays a television newsroom and two reporters, one of whom is in the newsroom and one of whom is reporting from the field. Navab–Safavi appears in the video as one of the reporters. The video was posted on www. youtube. com and other publicly available internet domains. It was not commercially distributed or sold. VOA resources were not involved in making the video and Navab–Safavi worked on the video only during non-work hours. Appellee admits in her complaint that the video attracted the attention of public officials, including at least two United States Senators.

On July 18, 2007, defendant Mary Poggioli, an official employed by the BBG's Labor Relations Office, met with Navab–Safavi's husband, Saman Arbabi, who helped to produce the DemoKracy video and was employed by the BBG. Poggioli told Arbabi that the BBG had convened to discuss the video and judged it to be anti-American. She said that the BBG thus saw Arbabi as a liability and she pressured him to resign.

The next day, on July 19, 2007, the BBG terminated Navab–Safavi's contract. After learning of her contract termination, Navab–Safavi went to her office to pack her things, at which point Sheila Gandji, Director of the PNN, told Navab–Safavi, “If this had happened in another service, like the Mandarin service, nothing would have happened. But since you are Iranian, working at the Persian service during these sensitive political times with Iran, this has become a disproportionate problem for you.” After Navab–Safavi's contract was terminated, defendants hired other contractors to provide the same services that Navab–Safavi had previously performed for the BBG.

On July 17, 2008, Navab–Safavi filed this lawsuit in the United States District Court for the District of Columbia against the BBG and several individuals who were officials at the BBG at the time of her termination, alleging a violation of her First Amendment free speech and Fifth Amendment equal protection rights. All individual defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) on the ground that they were qualifiedly immune from suit, among other grounds. The district court denied the motion in a memorandum opinion, holding that the defendants had not established that they were entitled to qualified immunity. Navab–Safavi v. Broad. Bd. of Governors, 650 F.Supp.2d 40, 53–65 (D.D.C.2009). Defendants filed this interlocutory appeal, arguing that the district court erred in denying the motion to dismiss based on qualified immunity.

B. Legal Background

Appellant's motion for dismissal is rooted in the well-established doctrine of qualified immunity. This doctrine protects “government officials performing discretionary functions” from civil consequences “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). We note at the outset that we have jurisdiction to review this interlocutory appeal on the issue of qualified immunity. Ordinarily, courts of appeals, such as this one, have jurisdiction only over appeals from “final decisions” of the district courts. 28 U.S.C. § 1291. However, there is a small class of interlocutory decisions which carry sufficient finality to afford jurisdiction over an interlocutory appeal. That exception to the usual finality rule includes those cases “which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Qualified immunity provides “an entitlement not to be forced to litigate the consequences of official conduct.” Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Therefore, a denial of a motion for dismissal on that ground constitutes a final decision that, if in error, invades the defendant's “entitlement not to stand trial or face the other burdens of litigation.” Id. at 525, 530, 105 S.Ct. 2806. Obviously, such a breach of entitlement could not be effectively reviewed after final judgment. Id. at 527, 105 S.Ct. 2806.

While appellants contended in the district court and continue to contend before us that the allegations of the complaint do not set forth a violation of appellee's First Amendment rights, they further contend that even if the complaint otherwise states a claim for relief, the appellants are entitled to qualified immunity. Before we determine the viability of the qualified immunity defense, we first note that our interlocutory jurisdiction extends to the question of the sufficiency of the allegations of the complaint as a necessary antecedent to the qualified immunity question. See id. at 529–30 & n. 10, 105 S.Ct. 2806. We will first review the legal sufficiency of the allegations of violations of appellee's First Amendment rights, after which we will proceed to determine directly the qualified immunity question. We will then address her equal protection claim under the Fifth Amendment.

II. The First Amendment Claim

Even at the motion stage, this question is not an easy one. It is true that individuals do not “relinquish the First Amendment rights they would otherwise enjoy as citizens” when they accept employment with the government. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). It would also seem fairly evident that if the government took retaliatory action against a private citizen for the production of a video similar to the one before the court, that person's First Amendment rights would be violated. However, “the State has interests as an employer in regulating the speech of its...