Suzal v. Director, U.S. Information Agency
| Decision Date | 12 August 1994 |
| Docket Number | No. 92-5258,92-5258 |
| Citation | 32 F.3d 574 |
| Parties | 147 L.R.R.M. (BNA) 2103, 308 U.S.App.D.C. 184 Savas SUZAL, Appellant, v. DIRECTOR, UNITED STATES INFORMATION AGENCY, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (91cv00957).
Zona F. Hostetler, Washington, DC, argued the cause and filed the briefs for appellant.
R. Craig Lawrence, Asst. U.S. Atty., Washington, DC, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., U.S. Atty., John D. Bates, Asst. U.S. Atty., and Carol B. Epstein, Asst. Gen. Counsel, U.S. Information Agency, Washington, DC.
On the brief for amicus American Federation of Government Employees, Local 1812, were Katherine Sciacchitano, Walter A. Smith, Jr., Denise P. Lindberg and Roderic V.O. Boggs, Washington, DC.
Before: WALD, BUCKLEY and WILLIAMS, Circuit Judges.
Opinion for the court filed by Circuit Judge WILLIAMS.
Part II.C. of opinion for the court filed by Circuit Judge BUCKLEY.
Separate concurrence as to Part II.C. filed by Circuit Judge WILLIAMS.
Savas Suzal has appealed the district court's dismissal of his lawsuit against his former employer, the Voice of America. We do not review the district court's decision that Suzal's claims fail on the merits, for we conclude that the district court should not have exercised jurisdiction over the case. Accordingly, we vacate the district court's orders and remand the case with instructions to dismiss.
The Smith-Mundt Act permits the United States Information Agency ("USIA") to "employ, without regard to the civil service and classification laws, aliens within the United States and abroad for service in the United States related to the translation or narration of colloquial speech in foreign languages or the preparation and production of foreign language programs...." 22 U.S.C. Sec. 1474(1). In 1980, under this authority, the Voice of America--a component of USIA--hired Suzal as an International Radio Broadcaster for its Turkish Service. Suzal resigned his job as a news anchorman for Turkish Radio and Television, Turkey's state-operated network, and moved to America with his family. After successfully completing a probationary period of 90 days under a personal services contract with the Voice of America, Suzal began a series of one-year appointments.
In 1987, the Voice of America decided not to renew Suzal's appointment when it expired on April 30. Suzal's union, Local 1812 of the American Federation of Government Employees, filed a grievance on his behalf seeking his reinstatement and other relief. When the Voice of America asserted that Suzal's nonrenewal was not subject to the grievance procedure, the parties submitted to arbitration, as required by their collective bargaining agreement. The arbitrator decided that the nonrenewal of Suzal's appointment was indeed subject to the grievance procedure, and hence to arbitration. On the merits, he found that the Voice of America would have renewed Suzal's appointment if he had not helped a colleague pursue a grievance against the agency in 1986. The arbitrator ordered Suzal's reinstatement with back pay, and the agency complied.
Soon thereafter, Suzal sought permission from the Voice of America to moonlight as a paid stringer for Sabah, an Istanbul daily. Subject to some conditions, the Voice gave its approval. Suzal served as a stringer for a while and then became Sabah's Washington correspondent.
In July 1990 Suzal heard a Voice of America program about Turkey on his home shortwave radio. During the program, which could be heard in Turkey in both English and Uzbek (though not in Turkish), Voice of America employee Ed Warner said that the thawing of the Cold War had put Turkey's role in NATO "in question", since the country no longer was "the vital southern flank bordering a threatening Soviet Union". Joint Appendix ("J.A.") 73. Suzal summarized this program in an article for Sabah. As translated from the Turkish in an affidavit filed on Suzal's behalf in the district court, the article's lead sentence said: "The U.S. government controlled VOA broadcast that, with the ending of the cold war, and the transformation of NATO into a political organization, Turkey has lost its one time importance." Affidavit of Yildiz Agnello (filed May 8, 1991). Sabah's editors gave the article a headline declaring, "The Voice of America broadcasts: 'Turkey is no longer important!' " According to a smaller teaser, also written by the editors, "The Bush administration-controlled Voice of America said in its news commentary, 'Turkey's importance in NATO is ending as NATO ends.' "
Suzal's bosses apparently did not object to the spin that Suzal himself put on the Warner broadcast; in an electronic-mail message transmitted on the day that the article was published, Turkish Service Chief Dinjer Aktug expressed concern about the headlines but declared that the body of the article "remains true to Warner's piece". J.A. 77. Nonetheless, on August 15, 1990, the Chief of the Voice's Office of External Affairs sent Suzal a memo raising the possibility that Suzal had violated the conditions under which the Voice of America had approved his outside writing. The memo rescinded Suzal's authorization to work for Sabah "pending outcome of further investigation into this matter". J.A. 79. Despite this directive, Suzal continued to write his twice-weekly stories for Sabah.
After Suzal had an unsuccessful meeting with Voice of America officials, Zona Hostetler--Suzal's current counsel--was named his union representative for purposes of the grievance process. Suzal and Hostetler had extensive discussions with Voice of America officials on two separate days near the beginning of 1991, at a time when the Voice apparently was considering firing Suzal outright. Eventually, however, the agency decided simply not to renew Suzal's appointment when it expired on April 30, 1991.
The day before his appointment was scheduled to expire, Suzal filed suit in federal district court. His complaint alleged that his prospective nonrenewal sprang from the Voice of America's continuing effort to retaliate against him for his involvement in the 1986 grievance and for his success in the subsequent arbitration. J.A. 14. In the alternative, it alleged that the cause of his nonrenewal was his failure to submit his Sabah articles to the Voice of America for prepublication clearance, and that the Voice of America's alleged insistence that he do so violated the First Amendment. J.A. 22. Suzal further claimed that he had been denied procedural rights guaranteed by the civil service laws, the collective bargaining agreement, and the Constitution. J.A. 23.
At Suzal's request, the district court granted a temporary restraining order, and then a preliminary injunction, preventing the Voice of America from terminating his employment. Though the court concluded that Suzal had no procedural rights under the civil service laws because he had been hired "without regard to" those laws under the Smith-Mundt Act, 22 U.S.C. Sec. 1474(1), it did find a substantial likelihood that Suzal would prevail on his First Amendment theory. J.A. 26-47.
But the court soon changed its mind. Though it had initially focused on indications that Suzal's nonrenewal stemmed from his refusal to submit his articles to the Voice of America for prepublication clearance, the court decided that this claim was a red herring; instead, the reason the agency allowed Suzal's appointment to expire was his disobedience of the August 15 memo rescinding his permission to write for Sabah. The court decided that the August 15 directive had been issued because Suzal had violated the conditions originally placed on his ability to publish with Sabah, and that those conditions did not violate the First Amendment. Concluding that Suzal's First Amendment theory was unlikely to succeed, the court dissolved the preliminary injunction on June 28, 1991. J.A. 48-58.
A week later the Voice of America notified Suzal that his appointment would not be renewed, and he ceased working for the agency. A meeting with Voice of America officials proved fruitless, and in January 1992 the agency notified Hostetler that it had reached a "final decision" against reinstating Suzal. J.A. 169-77.
In May 1992, finding that the "essential facts" were no different than they had been when it dissolved the preliminary injunction, the district court rejected Suzal's First Amendment theory. It also reiterated its earlier conclusion that the Smith-Mundt Act excluded Suzal from the protections of the civil service laws. The court accordingly granted the defendants' motion to dismiss. Leaving open the possibility that Suzal could persuade the Merit Systems Protection Board ("MSPB") to take a different view of the applicability of the civil service laws, however, it ordered that the dismissal be without prejudice to Suzal's ability to seek relief from the MSPB. J.A. 64-71.
On appeal to this court, Suzal takes issue with the district court's First Amendment analysis. Either his Sabah articles did not violate the conditions under which he received permission to moonlight, Suzal argues, or those conditions were unconstitutional as applied to him. Suzal adds that the Voice of America violated the Fifth Amendment by depriving him of a property interest--his interest in continued employment--without due process of law. Finally, he continues to assert rights to relief along other avenues--both through arbitration under the collective bargaining agreement and through the MSPB under the civil service laws.
Though the government does not contest our jurisdiction (or that of the district court), we are obliged to examine the issue for ourselves. Here, possible want of jurisdiction turns on the...
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