United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 2010 Decided March 1, 2011
No. 09-5388
MELODI NAVAB-SAFAVI,
APPELLEE
v.
JAMES K. GLASSMAN, ET AL.,
APPELLANTS
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.
2
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
3
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 narrarated 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.
4
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-Savabi’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.
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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 (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 (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 (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. Obviously, such a
breach of entitlement could not be effectively reviewed after
final judgment. Id. at 527.
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
6
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. 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 (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 employees that differ significantly from those
it possesses in connection with regulation of the speech of the
citizenry in general.” Id. Therefore, in cases, such as the
present one, involving government restrictions on the free
speech rights of its employees (here, contractor), we apply a
balancing process dictated by the Supreme Court in Pickering v.
Board of Education, 391 U.S. 563 (1968). See also Bd. of Cty.
Comm’rs v. Umbehr, 518 U.S. 668, 673 (1996) (extending
Pickering’s applicability to include government contractors as
well as employees “adjusted to weigh the government’s interest
as contractor rather than employer”).
7
We summarized the Pickering balancing process in
O’Donnell v. Barry, 148 F.3d 1126 (D.C. Cir. 1998), as follows:
A public official seeking to make out a claim of retaliation
in violation of her First Amendment rights must meet a
four-factor test. First, the public employee must have been
speaking on a matter of public concern. If the speech is not
of public concern, it is unnecessary to scrutinize the basis
for the adverse action absent the most unusual
circumstances. Second, the court must consider whether
the governmental interest in promoting the efficiency of the
public services it performs through its employees without
disruption, outweighs the employee’s interest, as a citizen,
in commenting upon matters of public concern, and the
interest of potential audiences in hearing what the employee
has to say. Third, the employee must show that her speech
was a substantial or motivating factor in prompting the
retaliatory or punitive act of which she complains. And
finally, the employer should have an opportunity to show
by a preponderance of the evidence that it would have
reached the same decision even in the absence of the
protected conduct.
Id. at 1133 (quotations and citations omitted).
The first two of the four questions set forth above are
questions of law for the court to resolve. Id. No one disputes
that the appellee’s video addresses a matter of public concern.
Likewise, it is undisputed that her participation was a but-for
cause of the BBG’s decision to terminate her contract.
However, appellants continue to contend, as they did in the
district court, that the Board’s interest in promoting the
efficiency of its provision of public services, and more
specifically, in providing the level and sort of service dictated by
statute, outweighs appellee’s interest in speaking through the
8
video and the public’s interest in hearing that speech.
In support of this weighty interest, appellants point to 22
U.S.C. §§ 1464a and 6202, which together set forth the duties
and responsibilities of the Board and the VOA. In its
authorization of the BBG, Congress made findings that the
“long-term interests of the United States are served by
communicating directly with the peoples of the world by
television. To be effective, the Broadcasting Board of
Governors must win the attention and respect of viewers.” 22
U.S.C. § 1464a(b). In furtherance of the interests recognized in
those legislative findings, Congress set forth principles to
govern television broadcasts presented by Board-governed
entities. These principles dictate that, inter alia, the VOA “will
serve as a consistently reliable and authoritative source of
news,” 22 U.S.C. § 6202(c)(1); that its “news will be accurate,
objective, and comprehensive,” id.; and that it will “present the
policies of the United States clearly and effectively” and provide
“responsible discussions and opinion on these policies,” §
6202(c)(3). See also 22 U.S.C. § 1464a(b)(1) (requiring the
BBG to follow the principles that it will “serve as a consistently
reliable and authoritative source of news” and produce news that
is “accurate and objective”). Furthermore, all international
broadcasting that VOA and the BBG produce must be
“consistent with the broad foreign policy objectives of the
United States,” 22 U.S.C. § 6202(a)(1), and “in accordance with
the highest professional standards of broadcast journalism,” 22
U.S.C. § 6202(a)(5).
Briefly put, appellants maintain that Navab-Safavi’s
appearance in the DemoKracy music video had the potential to
damage the government’s strong interest in presenting through
an organ with the highest journalistic credibility a clear message
of United States policy. By participating in the DemoKracy
video, Navab-Safavi took a public position on one of the
9
subjects of VOA’s broadcasting, the United States’ involvement
in Iraq. She thereby raised two potential threats to VOA’s
journalistic credibility: first, that she would cause VOA to
produce biased work and second, that, even if she did not, the
public could perceive VOA’s broadcasting to be biased because
of her editorial role in the agency. If VOA’s credibility were
compromised in this way, appellants argue, this could hinder the
BBG’s ability to advance foreign policy. Highlighting that
foreign policy is an area in which the government has
traditionally received special deference, appellants conclude that
they were justified in terminating Navab-Safavi’s contract,
despite her interest in making the video and the public’s interest
in viewing it.
It is clear by now that under Pickering, its precedents and
progeny, the district court correctly ruled that appellee’s
allegations do state a claim for relief. Continuing to take the
allegations of the complaint in the light most favorable to the
plaintiff, it is indisputable that she spoke on a matter of public
concern and received retaliatory consequence for that exercise
of her First Amendment rights. It is further inarguable that the
government has presented a weighty interest in support of its
authority to take action against that exercise. It is our duty, then,
to determine whether the district court erred in holding that
plaintiff had stated a claim for relief, and finally, to determine
whether the court erred in not affording the protection of
qualified immunity to the appellants against the litigation of
such claim. We hold that at least at the pleading stage, the
district court correctly ruled that the complaint survived the
motion.
Taking the allegations of plaintiff’s complaint to be true and
construing them in the light most favorable to her, as the district
court and this court are required to do, her interest in her First
Amendment rights was weighed against little government
10
interest in the protection of its journalistic integrity or reputation
for such integrity in the Pickering balance. Construing the
complaint in the light most favorable to appellee, she exercised
no editorial judgment, did not appear on camera, and never
purported to speak on behalf of the Board or the United States.
It is not likely that the Board would argue that, for example, a
janitor or messenger could be discharged for making an anti-
American video. In contrast, it might well be that an on-the-air
editorialist for VOA or a top executive could be discharged for
the same conduct. On the allegations of the complaint, the
district court did not err in concluding that appellee fell on the
side nearer the role of the janitor than the editorialist or the
executive. Will this same view prevail after full discovery and
perhaps augmentation by affidavits at the summary judgment
stage, or at trial? That remains to be seen. What must be
determined now is whether the district court correctly kept the
appellants in the litigation until that determination.
As is apparent in the very terminology employed, qualified
immunity is not absolute. It protects government officials in
civil litigation arising from their official conduct “insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow, 457 U.S. at 818. In other words, the
immunity protects public officials from civil consequences for
their official acts unless the contours of the constitutional right
that they are accused of violating are “sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). Appellants argue that appellee has not alleged the
violation of such a clearly established right. As they put it,
“neither Mrs. Navab-Safavi nor the District Court has identified
a single case in which a Court has held that a contractor’s or
employee’s interests in criticizing U.S. foreign policy outweigh
the broadcaster’s interest in protecting its reputation for
11
impartial and credible journalism, and maintaining the trust of
its audience.” While undoubtedly true, that is not sufficient.
Even though “in the light of pre-existing law the unlawfulness
[of the officer’s conduct] must be apparent,” id., there is no need
that “the very action in question [have] previously been held
unlawful,” Wilson v. Layne, 526 U.S. 603, 615 (1999). It cannot
be gainsaid that a person expressing her viewpoint is exercising
an established constitutional right. While in this case it may
ultimately be established that the governmental interest involved
was sufficient to outweigh that right and allow the officials to
take action, it is not sufficiently established at this stage to have
required the district court to uphold the assertion of qualified
immunity and dismiss the action.
Having established that the complaint set forth a violation
of right requiring a Pickering balancing against the appellants’
assertion of qualified immunity, we now face a question similar
to that determined by the Fifth Circuit in Kinney v. Weaver, 367
F.3d 337 (5th Cir. 2004): That is, given the function of qualified
immunity in protecting government officials against not only
civil liability, but the burden of litigation, did its assertion by the
appellants require the district court to terminate the litigation at
the motion stage without further resolution of the factual
questions underlying the determination of the Pickering
balance? Upon review of the record, we conclude as did the
district court that it is not possible to determine at this stage as
a matter of law that Navab-Safavi has not alleged a violation of
clearly established law. All the district court had before it and
all we have of record is the Board’s assertion that its interest in
performing its governmental functions and carrying out its
statutory mandates was sufficiently implicated by plaintiff’s
conduct to warrant the protection of qualified immunity. As
another of our fellow circuits has held, “qualified immunity
cannot be based on a ‘simple assertion by [appellants] without
supporting evidence’ of the adverse effect of the speech on [the
12
governmental function].” Shockency v. Ramsey Cnty., 493 F.3d
941, 949-50 (8th Cir. 2007) (quoting with modification
Grantham v. Trickey, 21 F.3d 289, 295 n.4 (8th Cir. 1994)). We
agree. We face the same circumstance here. Granted, the
Eighth Circuit in Shockency was reviewing a summary judgment
decision, while we review a 12(b)(6) ruling. Ordinarily,
evidentiary demands do not become evident until the summary
judgment stage. However, where the interests underlying the
Pickering balancing are as fact-dependent as those in this case,
the district court appeared to correctly determine that this
decision could not be made at the 12(b)(6) stage and should
properly await some evidentiary development. We do not
suggest that the determination can never be made on
allegations—the relative weight of governmental interest and
established constitutional rights on other facts may often be
quite evident from the pleadings—but only that it cannot be
done on the record before the court in this case.
Neither the district court nor this court has evidence in the
record that appellee’s conduct interfered with the performance
of the governmental function, including the carrying out of the
statutory mandates. We have only allegations, and the
allegations of the parties are in conflict. At summary judgment
or at trial, these conflicts may be resolved on an evidentiary
record. At the stage of the motion to dismiss, they cannot. We
must take the allegations in the light most favorable to the
plaintiff. She stated a claim for violation of her First
Amendment rights. The Board asserts its qualified immunity,
but we are unable to determine without an evidentiary record
whether any act it committed in defense of those functions
constituted a violation of clearly established rights, or even in
general terms, where the Pickering balancing tips.
We therefore conclude that the district court did not err in
denying the motion to dismiss, and we remand the claim for
13
further proceedings consistent with this opinion.
III. The Fifth Amendment Claim
As to the alleged Fifth Amendment claim, a similar analysis
applies. The sufficiency of the allegations of the complaint is
perhaps not as clear as was the case with the First Amendment
claim. It is true that the Due Process Clause of the Fifth
Amendment forbids the federal government from denying equal
protection of the laws. See, e.g., Davis v. Passman, 442 U.S.
228 (1979); Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).
If the retaliatory action against appellee was based upon her
ethnicity or national origin, then she has stated a claim. The
question then becomes: Has she adequately alleged such a
claim? Arguably, she has not. She has not in precise terms
alleged that her contract would not have been terminated had she
not been Iranian. She has alleged only that one supervisor, not
alleged to be a decisionmaker, told her that had she not been “an
Iranian, working at the Persian Service during these sensitive
political times,” nothing would have happened. It is thus not
apparent that even the single supervisor was stating that her
ethnicity or national origin, as opposed to the service in which
she worked, was the basis of the termination. However, taking
the allegation in the light most favorable to the plaintiff, her
complaint is susceptible to the interpretation that her contract
was terminated “because of” her ethnicity or national origin.
Whether this is more than a mere allegation can be tested at
further stages of the litigation when an evidentiary record will
support a definitive resolution of the open questions.
We further note that in addition to the weakness of this
claim on the “because of” element, the complaint alleges no acts
by the individual appellants. We recall that in actions against
public officials for violation of constitutional rights, “officials
may not be held liable for the unconstitutional conduct of their
14
subordinates under a theory of respondeat superior.” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1948 (2009). We suggest that on
remand, if the case is to proceed against the individual
appellants, as opposed to the Board of Governors, the district
court may wish to permit amendment to the complaint or
reconsider the individual appellants’ motions to dismiss. With
that proviso, we affirm the district court’s order denying the
motion under Rule 12(b)(6) and remand for further proceedings.
Conclusion
For the reasons set forth above, the order of the district
court is
Affirmed.