united states district court for the district...

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

MELODI NAVAB-SAFAVI ))

Plaintiff, ))

v. ) Civil Action No. 08-1225(ESH))

BROADCASTING BOARD OF ) GOVENORS, ET AL. )

)Defendants. )

)

MOTION TO DISMISS

Defendants James K. Glassman, Joaquin F. Blaya, Blanquita W. Cullum, D. Jeffrey

Hirschsberg, Edward E. Kaufman, Mark McKinnon, Steven J. Simmons, Condoleezza Rice,

Janice H. Brambilla, Mary Poggioli, Wayne D. Greene, Gary C. Hosford, and Sheila Gandji)

(“the Bivens defendants”), through undersigned counsel, hereby move that the claims filed

against them in their individual capacity be dismissed pursuant to Federal Rule of Civil

Procedure 12(b)(1), (2) and (6) and on qualified immunity grounds, for the reasons set forth in

the attached memorandum of law.

Respectfully submitted,

/s/ JEFFREY A. TAYLOR, D.C. BAR #498610United States Attorney

/s/ RUDOLPH CONTRERAS, D.C. BAR #434122Assistant United States Attorney

Case 1:08-cv-01225-ESH Document 12 Filed 02/04/09 of 29

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____/s/ Robin M. Meriweather________________ROBIN M. MERIWEATHERDC BAR # 490114Assistant United States AttorneyCivil Division555 4th Street, N.W.Washington, D.C. 20530(202) 514-7198 (202) 514-8780 (fax)[email protected]




Plaintiff, ))



)Defendants. )

)

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

INTRODUCTION AND SUMMARY

This case arises from the Broadcasting Board of Governors’ (“BBG”) termination of an

at-will contract with Plaintiff Melodi Navab-Safavi for the provision of translation services to

the BBG’s Voice of America network. Plaintiff appeared in and published a music video, titled

Demokracy, which protested the Iraq war and spoofed a Voice of America broadcast. Her

contract was subsequently terminated, and she alleges that her participation in the music video,

her race, and her national origin and ethnicity motivated that decision.

Plaintiff’s claims against current and former BBG governors should be dismissed for

several reasons. First, the comprehensiveness of the potential remedies that Plaintiff can seek

against the agency through the Administrative Procedure Act is a special factor which precludes

the expansion of the Bivens remedy to this context. Second, even if Bivens applied, all of the

individually-sued defendants (the “Bivens defendants”) would be entitled to qualified immunity,

because their alleged actions did not violate clearly established constitutional law. Broadcasters

may restrict their contractors’ and employees’ participation in conduct that threatens the


1The Board of the BBG is also responsible for the broadcasting done by Radio FreeEurope/Radio Liberty (RFE/FL), Radio Free Asia (RFA), and the Middle East BroadcastingNetworks (MBN), which are private, non-profit grantee organizations.

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credibility, integrity, and perceived impartiality of their news source, or take corrective action

against contractors or employees who act in that manner. Accordingly, even if the video were

the sole reason that the BBG terminated Plaintiff’s contract, that would not be unconstitutional.

Further, the BBG did not treat any similarly situated contractor differently than it treated

Plaintiff; her conduct was unique and there are no similarly situated employees.

Several of the Bivens defendants have other defenses which require the dismissal of the

claims against them: the Court lacks personal jurisdiction over the non-resident defendants; some

of the defendants were not properly served; and others had no personal involvement in the

decision to terminate Plaintiff’s contract. Finally, the Bivens defendants request that the Court

stay discovery pending resolution of their qualified immunity defense.

BACKGROUND

The BBG is responsible for all non-military international broadcasting for the federal

government.1 See Exh. 1, Declaration of Edward Kaufman, ¶ 1. This is achieved through the

International Broadcasting Bureau (IBB), which comprises the Voice of America and the Office

of Cuba Broadcasting (OCB). The Persian News Network (PNN), which is under the Voice of

America, provides TV and radio news and information programming to an audience in Iran.

International broadcasting produced by the BBG and other entities must be “consistent with the

broad policy objectives of the United States” and “conducted in accordance with the highest

professional standards of broadcast journalism.” 22 U.S.C. § 6202(a)(5). The Voice of America


2The term of the contract was from September 1, 2005 through September 30, 2006 with theoption to extend the contract for two (2) additional one-year periods. Pursuant to the terms of theID/IQ contract, the agency was obligated to order only a minimum of two assignments during theeffective term. The contract expressly stated that “[t]he Contractor shall perform the servicesspecified herein as an independent contractor, not as an agent or employee of the Government . . .. ” See Exh. 2.

3 Defendants will file a copy of the video with the Clerk’s office. The video is availableonline at: http://www.youtube.com/watch?v=xC-q3houri4 .

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must “serve as a consistently reliable and authoritative source of news,” id. § 6202(c)(1), which

requires that Voice of America news broadcasts be “accurate, objective, and comprehensive.”

Id. Plaintiff Melodi Navab-Safavi worked as an independent contractor providing

translation, voice-over and production services to the Voice of America’s PNN for

approximately three years. Compl. ¶ 2. Plaintiff provided those services under an indefinite

delivery/indefinite quantity (ID/IQ) contract, which would have expired on September 30, 2007.2

See Exh. 2, Contract. However, the agency terminated Plaintiff’s contract for the convenience of

the government on July 19, 2007. Compl. ¶ 2. The lawfulness of that termination, and the

factors that motivated the agency’s decision, are the central issue in this lawsuit.

Plaintiff is the lead singer of a rock band named “Abjeez,” which produces music videos

in Farsi. Compl. ¶ 10. Her husband, Saman Arbabi, who is a BBG employee and also works in

PNN, helps produce Abjeez’s music videos. Compl. ¶ 22. On or around July 9, 2007, Plaintiff

and her husband posted a music video they had produced called “Demokracy” on the

YouTube.com website. Id. ¶ 13.

The Demokracy video protests the Iraq war. Id. In the video, Plaintiff sings while sitting

at a mock news studio and acting as a “news anchor” during a newscast. See Exh. 3, Demokracy

Video.3 That studio resembles a Voice of America studio used for the PNN. Compare Exh. 3


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with Exh. 4 (photographs of studio). The video also shows footage and images of the Iraq war,

including images of coffins of U.S. soldiers and of “brutal injuries and deaths suffered by Iraq’s

civilian population during the war,” including wounded children. Compl. ¶ 13; see also Exh. 2.

The video attracted attention from public officials and other individuals, including federal

legislators. Compl. ¶ 21 (alleging that Senator Coburn inquired about the video); id. ¶ 14

(referencing correspondence between the BBG and Senator Mikulski regarding the video).

Plaintiff alleges that the BBG terminated the contract “solely because of the video.” Id. ¶

19. She also alleges that she was terminated because of her race and national origin. She seeks

equitable relief against the BBG in its official capacity, and seeks damages from several former

and current members of the BBG’s Board of Governors and current and former BBG employees

in their individual capacity.

STANDARD OF REVIEWA. 12(b)(1) Motion

When reviewing a 12(b)(1) motion to dismiss, Athe court must accept the complaint=s

well-pled factual allegations as true and draw all reasonable inferences in the plaintiff=s favor.@

Thompson v. Capitol Police Bd., 120 F. Supp.2d 78, 81 (D.D.C. 2000) (citations omitted); see

also Vanover v. Hantman, 77 F. Supp.2d 91, 98 (D.D.C. 1999), aff’d mem., 39 Fed. Appx. 4

(D.C. Cir. 2002). “The court is not required, however, to accept inferences unsupported by the

facts alleged or legal conclusions that are cast as factual allegations.@ Rann v. Chao, 154 F.

Supp. 2d 61, 64 (D.D.C. 2001), aff=d, 346 F.3d 192 (D.C. Cir. 2003), cert. denied, 534 U.S. 809

(2004). In addition, plaintiff bears the burden of persuasion, and must establish subject-matter


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jurisdiction Aby a preponderance of the evidence.@ Thompson, 120 F.Supp.2d at 81; Vanover, 77

F.Supp.2d at 98. To determine the existence of jurisdiction, a court may look beyond the

allegations of the complaint, consider affidavits and other extrinsic information, and ultimately

weigh the conflicting evidence. See Herbert v. Nat=l Academy of Sciences, 974 F.2d 192, 197

(D.C. Cir. 1992); Rann, 54 F. Supp. at 64.

B. 12(b)(6) Motion

Defendants also move for dismissal under Rule 12(b)(6), for failure to state a claim upon

which relief can be granted. Rule 12(b)(6) requires dismissal if a plaintiff fails to plead “enough

facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 127

S.Ct. 1955, 1974 (2007) (abrogating prior standard which required the moving party to show that

plaintiff can prove no set of facts in support of its claim which would entitle it to relief). The

Court must resolve all factual doubts in favor of the plaintiff, and allow the plaintiff the benefit

of all inferences. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.

1997).

C. 12(b)(2) and 12(b)(5) Motion

“On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), the plaintiff bears the

burden of establishing a factual basis for the court’s exercise of personal jurisdiction over the

defendant.” Zakiya v. United States, 267 F. Supp. 2d 47, 51 (D.D.C. 2003) (citations omitted).

Furthermore, the plaintiff “has the burden of ‘alleging specific acts connecting the defendant

with the forum . . . .’” Id. at 51-52 (citation omitted). Plaintiffs in a civil action also bear the

burden of establishing the validity of service of process, and Rule 12(b)(5) requires the dismissal


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of an action if Plaintiff fails to effect service in a timely manner. Light v. Wolf, 816 F.2d 746,

751 (D.C. Cir. 1987).

ARGUMENT

I. NO BIVENS REMEDY SHOULD BE CREATED FOR PLAINTIFF’S CLAIMS.

Plaintiff seeks monetary damages from the individual defendants pursuant to Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Compl. ¶ 4.

However, those claims should be dismissed for failure to state a claim, because special factors

counsel against the creation of a Bivens remedy in these circumstances. The special factors

analysis involves prudential concerns, and therefore can be considered before jurisdictional

defenses or any other defense raised infra. Wilson v. Libby, 498 F. Supp. 2d 74, 83 n.10 (D.D.C.

2007), aff’d 535 F.3d 697 (D.C. Cir. 2008).

As recently summarized by the D.C. Circuit, courts generally should not be quick to

recognize a Bivens remedy, but especially not where Congress has enacted some form of

statutory scheme related to the conduct at issue:

We have discretion in some circumstances to create a remedy against federal officials forconstitutional violations, but we must decline to exercise that discretion where “specialfactors counsel[ ] hesitation” in doing so. See Bivens, 403 U.S. at 396, 91 S. C. 1999;Spagnola v. Mathis, 859 F.2d 223, 226 (D.C. Cir.1988) (en banc). In Bivens, the Courtimplied a remedy where there were no “‘special factors counseling hesitation in theabsence of affirmative action by Congress’” that required “the judiciary [to] decline toexercise its discretion in favor of creating damages remedies against federal officials.”Spagnola, 859 F.2d at 226 (quoting Bivens, 403 U.S. at 396, 91 S. C. 1999). SinceBivens, the Supreme Court has “recognized two more nonstatutory damages remedies,the first for employment discrimination in violation of the Due Process Clause, Davis v.Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979), and the second for anEighth Amendment violation by prison officials, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L. Ed. 2d 15 (1980),” but “in most instances[, the Court has] found a Bivensremedy unjustified.” Wilkie v. Robbins, --- U.S. ---, 127 S. Ct. 2588, 2597, 168 L. Ed. 2d389 (2007). Indeed, in its “more recent decisions[, the Supreme Court has] responded


4 In Munsell v. Department of Agriculture, 509 F.3d 572, (D.C. Cir. 2007), the D.C.Circuit noted that the government had argued that the APA foreclosed plaintiffs’ Bivens claims, butfound it unnecessary to resolve that issue on the facts of the case. Id. at 590-91. In an earlier case,the Court also declined to resolve the issue, but noted that a prior case“suggested that a Bivens actionmay be foreclosed where the possibility of judicial review under the APA, along with other statutes,executive orders and regulations, provides a meaningful remedy.” Sloan v. Department of Housing& Urban Development, 231 F.3d 10, 19 (D.C. Cir. 2000).

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cautiously to suggestions that Bivens remedies be extended into new contexts.” Chilicky,487 U.S. at 421, 108 S. Ct. 2460.

Wilson v. Libby, 535 F.3d 697, 705-06 (D.C. Cir. 2008). One such “special factor” is the extent

to which Congress has created alternative remedies or “indications that congressional inaction

has not been inadvertent,” id. at 706, typically in the form of statutory relief for related conduct,

regardless of whether the relief provided appears likely to satisfy the plaintiff’s demands in the

given case.

Although the D.C. Circuit has not yet ruled on the issue,4 courts in this jurisdiction and

elsewhere have concluded that the Administrative Procedure Act (“APA”) is a comprehensive

statutory scheme and alternative remedy which may preclude the creation of a Bivens remedy.

See, e.g., GasPlus, LLC v. Dep’t of Interior, 466 F. Supp. 2d 43, 49-50 (D.D.C. 2006); Moore v.

Glickman, 113 F.3d 988, 991 (9th Cir. 1997); Gleason v. Malcomb, 718 F.2d 1044, 1048 (11th

Cir. 1983) (special factors counsel against a Bivens remedy where plaintiff could have sought

equitable relief pursuant to the Administrative Procedure Act); Sky-Ad v. McClure, 951 F.2d

1146, 1148 (9th Cir. 1991) (finding special factors against creating Bivens cause of action where

APA provided a means to remedy unconstitutional rulemaking); Western Radio Co. v. United

States Forest Service, 2008 WL 427787, at *4-*5 (D. Or. Feb. 12, 2008) (“Bivens liability is not

appropriate where adequate remedies under the APA are available to contest the Forest Service’s


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delay or inaction.”); Custodio v. United States, 866 F. Supp. 479, 48 (D. Col. 1994) (declining to

create a Bivens remedy for termination of staff privileges at hospital because APA could have

provided meaningful relief). The D.C. Circuit applies a three-step test to determine whether a

Bivens remedy should be created, asking: (1) whether “Congress has put in place a

comprehensive system to administer public rights;” (2) whether Congress “has not inadvertently

omitted damages remedies for certain claimants;” and (3) whether Congress has “plainly

expressed an intention that the Court preserve Bivens remedies.” Wilson, 535 F.3d at 706.

When conducting that analysis, the court exercises its judgment and “weigh[s] the reasons for

and against the creation of a new cause of action.” Id. at 710.

The APA is a comprehensive statutory system which counsels against the creation of a

Bivens remedy in this case. The APA allows individuals to obtain judicial review of a final

agency decision that is arbitrary, capricious, or contrary to the Constitution or other laws, and

allows courts to award equitable relief if the challenged decision was unlawful. 5 U.S.C. §§ 702,

706. Thus, the APA allows Plaintiff to raise claims against the BBG regarding the allegedly

unconstitutional grounds on which the BBG terminated her contract. Plaintiff has, in fact, raised

such claims, and seeks equitable relief against the BBG for its alleged violation of her First and

Fifth Amendment rights. See Compl. ¶¶ 1, 5-31. Plaintiff’s APA claims are premised upon the

same incident(s) and the same facts as the Bivens claim. Id. Although the complaint does not

cite the APA, and instead invokes the general federal jurisdictional statute, Compl. ¶ 1, the APA

is the statute that waives the agency’s sovereign immunity and gives Plaintiff a cause of action.

Thus the APA is the comprehensive statutory mechanism that Congress intended for Plaintiff to


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use to seek redress for the BBG’s allegedly unconstitutional decision to terminate her contract.

See GasPlus, LLC, 466 F. Supp. 2d at 49-50 (finding APA remedy foreclosed Bivens remedy).

The remaining two factors also counsel against the creation of a Bivens cause of action.

Congress deliberately chose not to include a damages remedy in the APA. See 5 U.S.C. § 702

(authorizing a person injured by an agency action to file “an action seeking relief other than

money damages”). And Congress has not expressly requested that a Bivens remedy be preserved

for individuals who raise claims like the Plaintiff’s.

The fact that the APA does not allow Plaintiff to obtain damages does not make the

Bivens remedy appropriate. “[A] remedial statute need not provide full relief to the plaintiff to

qualify as a ‘special factor.’” Wilson, 535 F.3d at 705 (quoting Schweiker v. Chilicky, 487 U.S.

412 (1988)). The comprehensiveness of the statutory scheme, and not the availability of a

particular form of remedy (or any remedy at all), controls the special factors analysis. Id. at 706,

709. Here, the comprehensiveness of the APA remedy precludes the creation of a Bivens

damages remedy.

II. THE DOCTRINE OF QUALIFIED IMMUNITY BARS ANY BIVENS CLAIMAGAINST THE BBG OFFICIALS.

Absent the special factors discussed supra, a plaintiff may bring a civil action for money

damages against a federal official in his or her individual capacity for violation of the plaintiff's

constitutional rights. Bivens, 403 U.S. at 389. Federal officials, however, may be entitled to a

defense of qualified immunity. Wilson v. Layne, 526 U.S. 603, 618 (1999) (citing Harlow, 357

U.S. at 818). Qualified immunity “shields government officials from liability for civil damages

‘insofar as their conduct does not violate clearly established statutory or constitutional rights of


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which a reasonable person would have known.’” Farmer v. Moritsugu, 163 F.3d 610, 613 (D.C.

Cir. 1998) (citing Harlow, 357 U.S. at 818). The qualified immunity doctrine “gives ample room

for mistaken judgments by protecting all but the plainly incompetent and those who knowingly

violate the law.” Hunter v. Bryant, 475 U.S. 335, 341 (1986). If reasonable officials can

disagree regarding the legality of the challenged conduct, the official is entitled to qualified

immunity. Olaniyi v. District of Columbia, 416 F. Supp. 2d 43, 52 (D.D.C. 2006).

In adjudicating a defense of qualified immunity, the court conducts a two-part inquiry

which asks “whether the plaintiff has asserted a violation of a constitutional right at all.” Siegert

v. Gilley, 500 U.S. 226, 231 (1991), and assesses the “objective legal reasonableness” of the

defendants' conduct in light of clearly established law. Harlow, 457 U.S. at 818-19. Courts may

“exercise their sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first” in a given case. Pearson v. Callahan, __ S. Ct. __, 2009 WL

128768, *9 (Jan. 21, 2009). The qualified immunity analysis “must be undertaken in light of the

specific context of the case, not as a broad general proposition.” Brosseau v. Haugen, 543 U.S.

194, 198 (2004).

A. Qualified Immunity Protects the Officials Against Suit On the FirstAmendment Claims.

1. The Defendants Did Not Violate Plaintiff’s First Amendment Rights.

The first step of the qualified immunity analysis asks whether the complaint alleges facts

which establish that the officer’s conduct violated the plaintiff’s constitutional or statutory rights.

Siegert, 500 U.S. at 231. Plaintiff cannot satisfy that burden by pointing to a generalized right,

such as the First Amendment right to be free from unlawful restrictions upon one’s speech and


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expression. Saucier, 533 U.S. at 201-02. Instead, the Court must determine whether the specific

facts Plaintiff has alleged constitute a violation of the Constitution or a federal statute. See

Butera v. District of Columbia, 235 F.3d 637, 646 (D.C. Cir. 2001) (noting that defining the right

in overly broad terms would “strip the qualified immunity defense of all meaning”); Cotton v.

District of Columbia, 541 F. Supp. 2d 195 (D.D.C. 2008).

Although the First Amendment affords some protections to government contractors who

provide service under at-will contracts, contractors’ right to free speech is not absolute. See

Board of County Commissioners v. Umbehr, 518 U.S. 668, 675, 678-79 (1996); see also Wilburn

v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007) (“The speech of public employees enjoys

considerable but not unlimited, First Amendment protection.”). “The government . . . has the

authority to subject its employees to such special restrictions on free expression as are

reasonably necessary to promote effective government,” and to do the same with its contractors.

Weaver v. United States Information Agency, 87 F.3d 1429, 1440 (D.C. Cir. 1996) (internal

quotation marks and citation omitted). Contractors’ First Amendment retaliation claims are

governed by the balancing test set forth in Pickering v. Board of Education of Township High

School District 205, 391 U.S. 563, 568 (1968), which weighs the government interests against

the contractor’s First Amendment rights. See Umbehr, 518 U.S. at 677-78. First, the contractor

must show that (s)he “spoke as a citizen on a matter of public concern.” Garcetti v. Ceballos,

547 U.S. 410, 418 (2006). If (s)he did, then “[t]he question becomes whether the relevant

government entity had an adequate justification for treating the employee differently from any

other member of the general public.” Id. To make that judgment, courts ask:


5 The Bivens defendants do not concede that the video motivated the termination decision,and expressly reserve the right to contest that issue in the event that the Court denies this motion todismiss.

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whether the governmental interest in promoting the efficiency of public services itperforms through its employees . . . outweighs the employee’s interest, as acitizen, in commenting upon matters of public concern.. . . Third the employeemust show that her speech was a substantial or motivating factor in prompting theretaliatory act. Finally, the employee must refute the government employer’sshowing, if made, that it would have reached the same decision in the absence ofthe protected speech.

Pickering, 391 U.S. at 568; see also Winder v. Erste, 511 F Supp. 2d 160, 171 (quoting same).

Plaintiff’s appearance in the Demokracy music video appears to have involved speech as

private citizen on a matter of public concern, as appearing in music videos was not within the

scope of plaintiff’s contractual duties. See Garcetti, 547 U.S. at 422-23; Compl. ¶¶ 5-6; Exh. 2.

The individual defendants will assume for purposes of this motion that the video was a

motivating factor in the decision to terminate plaintiff’s contract.5 However, even assuming all

of those facts to be true, the termination of Plaintiff’s contract did not infringe her First

Amendment rights, because the BBG’s legitimate interest in protecting the journalistic integrity

and credibility of Voice of America programming outweighed Plaintiff’s interest in appearing in

the video.

“Credibility is central to [news publications’] ultimate product and to the conduct of the

enterprise.” Newspaper Guild of Greater Philadelphia, Local 10 v. NLRB, 636 F.2d 550, 559

(D.C. Cir. 1980). As a result, most news papers have an ethics code or conflict of interest policy

which prohibits “active involvement in any partisan causes — politics, community affairs, social

action, [or] demonstrations that could compromise or seem to compromise [their] ability to

report and edit fairly.” Nelson v. McClatchy Newspapers, Inc., 936 P.2d 1123, 1125 (Wash.


11

1997) (quoting Washington Post policy and discussing similar codes at other newspapers and the

Associated Press). Those principles apply with equal force to broadcast journalism.

Congress has mandated that international broadcasting produced by the BBG and other

agencies be “consistent with the broad policy objectives of the United States” and that it be

“conducted in accordance with the highest professional standards of broadcast journalism.” 22

U.S.C. § 6202(a)(5). Congress envisioned that the Voice of America would “serve as a

consistently reliable and authoritative source of news,” id. § 6202(c)(1), which requires that

Voice of America news broadcast be “accurate, objective, and comprehensive.” Id. Those

principles are consistent with the policies and ethical codes of other news organizations. See

McClatchy Newspapers, Inc. , 936 P.2d at 1125.

Allowing Plaintiff to continue to provide translation services after appearing in the

Demokracy video would have compromised the journalistic integrity and credibility of Voice of

America, and conflicted with the journalistic principles codified in Section 6202(c). As a

translator for Voice of America, Plaintiff had to provide accurate and objective translations of

the statements made by reporters, interviewees, and other speakers. If she was biased, or had a

conflict of interest, neither the audience nor her supervisors could trust the accuracy and

impartiality of her translation of those statements. Therefore, this is a case in which “the

potential disruptiveness was enough to outweigh whatever First Amendment value the speech

may have had.” Waters v. Churchill, 511 U.S. 661, 681 (1994) (concluding that company could

terminate employee for allegedly negative and critical statements because her speech

undermined the authority of management and could cause them to doubt the plaintiff’s future

effectiveness).


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The Demokracy video was particularly disruptive because it included footage which

mimicked the Voice of America studio. The video contained scenes staged on a set which

exactly replicated a Voice of America studio set, Studio 50 of the Persian News Network,

thereby creating the appearance that portions of the video were shot at a Voice of America

studio. Compare Exh. 3 with Exh. 4. In those scenes, Plaintiff sings while sitting in that mock

news studio and acting as if she were a news anchor during a Voice of America newscast. See

Exh. 3. The video also protests the Iraq war, and includes footage and images of that war such

as coffins of U.S. soldiers and brutally injured and dead Iraqis. See id.; Compl. ¶ 13 (describing

video). It was reasonable for the BBG to question the objectivity and future effectiveness of a

translator who had appeared in and disseminated a video which spoofs the Voice of America and

comments upon the United States’ foreign policy and the Iraq war. That conduct violated the

journalistic standards and principles that govern international government broadcasting, was

contrary to the interests and mission of Voice of America, and raised serious questions about

Plaintiff’s objectivity and impartiality. See 22 U.S.C. § 6202. The First Amendment allowed

defendants to respond by terminating Plaintiff’s contract to provide translation services.

Indeed, requiring the BBG to retain a translator who has engaged in such conduct would

compromise the freedom of the press. Private news publications retain discretion to take

disciplinary actions or terminate journalists whose conduct suggests a lack of objectivity and/or a

conflict of interest. For example, newspapers have the constitutional right to, and routinely do,

enforce codes of conduct that prohibit journalists from participating in political demonstrations

or rallies, because such activities suggest that a journalist may be biased. See McClatchy

Newspapers, Inc., 936 P.2d at 1128-31 (restricting newspapers’ ability to enforce conflict of


13

interest and ethical provisions that limited employees’ private conduct would violate free press

rights because the policies preserved the newspapers’ editorial integrity and credibility). By

making and disseminating the video, Plaintiff took a side in a matter of current world news

interest. BBG, like private news entities, should be allowed to take remedial actions and/or sever

its ties with journalists whose neutrality and objectivity has been compromised in that manner.

2. An Objectively Reasonable Official Would Have Believed That TerminatingPlaintiff’s Contract Was Consistent With the First Amendment.

A government official is entitled to qualified immunity “unless ‘[t]he contours of the

right [were] sufficiently clear that a reasonable official would [have] under[stood] that what he

[was] doing violate[d] that right.” Farmer, 163 F.3d at 613 (citation omitted). The unlawfulness

must be “apparent” in light of pre-existing law. Anderson v. Creighton, 483 U.S. 635, 640

(1987). If, at the time of the alleged unlawful conduct, “officers of reasonable competence”

could disagree on whether the alleged conduct violated the plaintiff’s rights, “immunity should

be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986); see also Pearson, 2009 WL

128768, *14; Wilson v. Layne, 526 U.S. 603, 618 (1999) (noting that if courts “disagree on a

constitutional question, it is unfair to subject police to money damages for picking the losing side

of the controversy”).

An objectively reasonable official would have no reason to believe or know that

terminating Plaintiff’s contract would violate her constitutional rights. As discussed supra, the

First Amendment does not give federal contractors an unfettered right to be free from

government restrictions upon their speech. Instead, retaliation claims are reviewed under the

Pickering balancing test, which requires a fact-intensive assessment of the relative weight of the


14

government’s interests and efficiency concerns and the plaintiff’s desire to express herself.

Given the fact-intensive nature of the Pickering test, plaintiffs rarely can establish that an

official’s conduct violated “clearly established” law; absent precedent finding similar restrictions

unconstitutional, it will not be “apparent” that the challenged conduct violates the Constitution.

See, e.g., Guercio v. Brody, 911 F.2d 1179, 1183-85 (6th Cir. 1990); Melton v. Oklahoma City,

879 F.2d 706, 728-29 (10th Cir. 1989); Dartland v. Metro. Dade County, 866 F.2d 1321, 1323

(11th Cir. 1989); Noyola v. Texas Dept. of Human Res., 846 F.2d 1021, 1024 (5th Cir. 1988);

Benson v. Allphin, 786 F.2d 268, 276 (7th Cir. 1986). Here, the BBG’s interest in protecting its

journalistic integrity clearly outweighs Plaintiff’s interest in appearing in and disseminating the

Demokracy video. And even if this Court disagrees, it would be unreasonable to expect a

government employee to anticipate how the Court would resolve that complex legal issue.

Pearson, 2009 WL 128768, at *14.

Constitutional law, as it existed when Plaintiff’s contract was terminated, simply would

not put a reasonable BBG employee on notice that terminating Plaintiff’s contract would violate

the First Amendment. We are aware of no precedent in which a court has applied the Pickering

test in this context, let alone a case which finds that the contractor or employee’s interests

outweigh the broadcaster’s interest in protecting its reputation for impartial and credible

journalism. Indeed, at least one state court has held that news publications have a constitutional

right to restrict journalists’ speech activities and other private conduct, because those activities

affect the credibility and reliability of the news source. See McClatchy Newspapers, Inc., 936

P.2d at 543 (affirming newspapers’ right to transfer a journalist for her participation in an

abortion rights protest). Thus, the Bivens defendants had no reasonable basis to believe that this


15

constitutional issue of first impression would be resolved against them. In sum, each of the

individual defendants is entitled to qualified immunity because a reasonable official would not

have recognized that terminating Plaintiff’s contract violated clearly established law.

B. Qualified Immunity Protects the Officials Against Suit On the EqualProtection Claims.

The termination of Plaintiff’s contract did not violate any equal protection rights that she

may have had. To prevail on an equal protection claim, Plaintiff “must show that she was singled

out from among others similarly situated on the basis of race and/or national origin.” Munoz v.

Board of Trustees of University of District of Columbia, __ F. Supp. 2d __, 2008 WL 5101025,

* 5 (dismissing Section 1983 claim alleging that university officials took adverse actions against

plaintiff because of her race and national origin); Fernandors v. District of Columbia, 382 F.

Supp. 2d 63, 69 (D.D.C. 2005). She also must show that the defendants acted with

discriminatory intent, and that each decision-maker was motivated by a discriminatory purpose.

Fernandors, 382 F. Supp. 2d at 69.

Plaintiff will be unable to show that “similarly situated” individuals who were not

Persian or Iranian were treated differently than she was. Plaintiff’s participation in the

Demokracy video was a unique and unusual situation which, by Plaintiff’s own admission,

attracted the attention of several public officials including Senators. Compl. ¶ 21. Defendants

are aware of no other contractors who appeared in and disseminated a similar video, and

subsequently were allowed to continue to provide translation or other journalistic services to

Voice of America’s Persian News Network. There simply are no “similarly situated”


6 Ms. Gandji denies that she made those statements. See Answer ¶ 20.

16

individuals, let alone any who were treated more favorably than Plaintiff. The equal protection

claim is a non-starter.

Plaintiff also will be unable to prove that any individual defendant acted with a

discriminatory motive. Although the complaint discusses the Demokracy video at length, it is

strikingly short on allegations that would support Plaintiff’s conclusory statement that her

contract was terminated because she was Persian and Iranian. Compl. ¶ 5. In fact, Plaintiff

contends that the BBG terminated her contract “solely because of the video,” Compl. ¶ 19, which

rules out any racial motive. She also alleges that Senator Coburn lobbied BBG officials to

punish anyone “affiliated with the video.” Id. ¶ 21. That, too, contradicts any assumption that

Plaintiff’s race and national origin was the reason that her contract was terminated. Defendant

Gandji’s alleged speculation that the video was a disproportional problem for Plaintiff because

she was an Iranian who worked for Persian News Network6 does not cure those deficiencies.

III. PLAINTIFF HAS NO VIABLE CLAIM AGAINST DEFENDANTS RICE,KAUFMAN, CULLUM, HIRSCHBERG, AND BLAYA BECAUSE THEY WERENOT PERSONALLY INVOLVED IN THE DECISION TO TERMINATE HERCONTRACT.

A Bivens plaintiff must“allege and prove” that each defendant was directly and

personally involved in the conduct that she is challenging. Dacey v. Clapp, 1993 WL 547467

(D.D.C. Oct. 23, 1993). The complaint alleges that all of the Bivens defendants “participat[ed]

in, and/or condon[ed,]” the termination of Plaintiff’s contract. Compl. ¶ 4. However, defendants

Rice, Kaufman, Cullum, Hirschberg, and Blaya had no direct or personal involvement in that

decision.


17

A. Former Secretary Of State Rice Had No Involvement In The Decision ToTerminate Plaintiff’s Contract.

As Plaintiff acknowledges, as Secretary of State, Ms. Rice was a board member “ex

officio.” Compl. ¶ 4. As such, she did not attend meetings or participate in Board business or

decisions. See Exh. 1, Kaufman Decl. ¶ 2. The Under Secretary for Public Diplomacy and

Public Affairs — James K. Glassman at the relevant time — attended meetings on her behalf.

See id. Therefore, there is no plausible basis to infer that Ms. Rice knew Plaintiff’s name, knew

that she performed services as an independent contractor for the Voice of America, was aware of

her video, or had any personal involvement in the termination decision.

The fact that other BBG governors or employees may have decided to terminate

Plaintiff’s contract does not expose Ms. Rice to liability. It is well settled that federal employees

cannot be held personally liable for constitutional torts of employees they supervise under the

doctrine of respondeat superior. See Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C. Cir.

1993); Haynesworth v. Miller, 820 F.2d 1245, 1259 (D.C. Cir.1987) (fellow government

employees cannot be held liable under the theory of respondeat superior for either constitutional

or common law torts); Epps v. United States Attorney General, 575 U.S. 232, 239 (D.D.C. 2008)

(same); Majhor v. Kempthorne, 318 F. Supp. 2d 221, 247 (D.D.C. 2007).

B. Defendants Kaufman, Cullum, Hirschberg, and Blaya Had No InvolvementIn the Decision to Terminate Plaintiff’s Contract.

Plaintiff also alleges that the other defendants “participat[ed] in and/or condon[ed]” the

the termination of her contract. Those allegations appear to be based on the mistaken premise

that the board convened a meeting attended by all of the governors, at which the governors


18

discussed Plaintiff’s contract and the Demokracy video. See Compl. ¶ 16 (“When the Board of

Governors of the BBG learned of the existence of the DemoKracy video, they convened a

meeting to view and discuss it.”). However, there was no such meeting. See Exh. 1, Kaufman

Decl. ¶ 3; Exh. 5, Cullum Decl. ¶ 3; Exh. 6, Hirschberg Decl. ¶ 3; Exh. 7, Blaya Decl. ¶ 3. Mr.

Kaufman, Ms. Cullum, Mr. Hirschberg, and Mr. Blaya have never seen the “Demokracy” video.

Exh. 1, Kaufman Decl. ¶ 3; Exh. 5, Cullum Decl. ¶ 3; Exh. 6, Hirschberg Decl. ¶ 3; Exh. 7,

Blaya Decl. ¶ 3. They did not know Plaintiff. See id. They neither attended nor participated in

any meetings in which Plaintiff’s contract, its termination, or the “Demokracy” video were

discussed. See id. They did not terminate Plaintiff’s contract, and were not involved in any

decision to terminate that contract. See id. Therefore, they lacked the requisite personal

involvement, and the claims against them should proceed no further.

IV. THE COURT LACKS PERSONAL JURISDICTION OVER DEFENDANTSPOGGIOLI, BLAYA, SIMMONS, CULLUM, GLASSMAN, AND MCKINNON.

Defendants Mary Poggioli, Joaquin Blaya, Steven Simmons, Blanquita Cullum, James

Glassman, and Mark McKinnon seek dismissal pursuant to Rule 12(b)(1) because this Court

lacks personal jurisdiction over them. Personal jurisdiction “is an essential element of the

jurisdiction of a district court, without which the court is powerless to proceed to an

adjudication.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999). Further, “[b]ecause

Bivens suits are suits against government officials in their individual, rather than their official,

capacities, personal jurisdiction over the individual defendants is necessary to maintain a Bivens

claim.” Islamic American Relief Agency v. Unidentified FBI Agents, 394 F. Supp. 2d 34, 56

(D.D.C. 2005). Actions that a Bivens defendant took in his or her official capacity do not confer


19

personal jurisdiction for individual-capacity claims. Id.; see also Ali v. District of Columbia,

278 F.3d 1, (D.C. Cir. 2000).

Personal jurisdiction over defendants who do not reside in the District of Columbia, and

whose principal place of business is not located in the District, may only be exercised pursuant

to the District of Columbia’s long-arm statute, D.C. Code § 13-423(a). Zakiya, 267 F. Supp. 2d

at 52. To determine whether personal jurisdiction exists under the long-arm statute, the Court

“must conduct a two part inquiry which entails (1) ‘examin[ing] whether jurisdiction is

applicable under the state’s long-arm statute [and (2)] . . . determin[ing] whether a finding of

jurisdiction satisfies the constitutional requirements of due process.’” Zakiya, 267 F. Supp. 2d at

52 (citations omitted).

The District of Columbia long-arm statute provides, in pertinent part:

(a) A District of Columbia Court may exercise personal jurisdiction over aperson, who acts directly or by an agent, as to a claim for relief arising from theperson’s –

(1) transacting any business in the District of Columbia;

(2) contracting to supply services in the District of Columbia;

(3) causing tortious injury in the District of Columbia by an act oromission in the District of Columbia;

(4) causing tortious injury in the District of Columbia by an act oromission outside the District of Columbia if he regularly does or solicitsbusiness, engages in any other persistent course of conduct, or derivessubstantial revenue from goods used or consumed, or services rendered inthe District of Columbia; . . . .

D.C. Code § 13-423(a). The fact that a Bivens defendant may have conducted official agency

business within the District of Columbia does not satisfy the long-arm statute for an individual-


20

capacity claim. See Cornell v. Kellner, 539 F. Supp. 2d 311, 315 (D.D.C. 2008); Islamic Am.

Relief Agency, 394 F. Supp. 2d at 58. Nor does the fact that the agency itself has offices within

the District of Columbia. See id.

The complaint does not allege any facts that would establish the Court’s personal

jurisdiction over non-resident individual defendants. Board members are special government

employees who typically work less than 130 days per year. See Exh. 1, Kaufman Decl., ¶ 1.

Accordingly, Board members routinely reside outside of the District of Columbia. Defendants

Blaya, Kaufman, Poggioli, Simmons, Cullum, McKinnon, and Glassman all reside outside of the

District of Columbia. Specifically: Mr. Blaya resides in Colorado and Florida; Mr. Kaufman

resides in Delaware; Ms. Poggioli resides in Georgia; Mr. Simmons resides and owns a business

in Connecticut; Ms. Cullum resides in Virginia; Mr. McKinnon resides in Texas; and Mr.

Glassman resides in Maryland.

There is no basis for the Court to exercise long-arm jurisdiction over those non-resident

defendants. Plaintiff’s claims do not arise from any defendant’s transaction of non-government

business or contracts to provide services in the District of Columbia. Instead, they arise from the

defendants’ alleged participation in the BBG’s decision to terminate Plaintiff’s contract. Thus

Sections 1323(a)(1) and (a)(2) do not apply. The complaint does not specify where Plaintiff

allegedly suffered the injury of the loss of her contract, and it is not clear that the loss of an at-

will contract is a “tortious” injury. In any event, the termination of the contract was official

BBG conduct, and therefore cannot provide a basis for personal jurisdiction. See Cornell, 539 F.

Supp. 2d at 315; Islamic Am. Relief Agency, 394 F. Supp. 2d at 58. Therefore, plaintiff cannot

rely on §1323(a)(3) or (a)(4) to confer jurisdiction.


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V. THE COURT ALSO LACKS JURISDICTION AGAINST DEFENDANTSGLASSMAN, RICE, AND POGGIOLI BECAUSE PLAINTIFF HAS NOTPROPERLY SERVED THEM.

Plaintiffs in a civil action bear the burden of establishing the validity of service of

process. Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987). Rule 4(i) governs service upon

federal officials, and federal district courts lack personal jurisdiction over federal officials, until

the provisions of that Rule have been met. Thomas v. Nicholson, 561 F. Supp. 2d 1, 2 (D.D.C.

2008). Actual notice will not, of course, substitute for technically proper service under Rule 4

and will not permit the Court to render a personal judgment against an individually-sued

defendant. Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 3 (D.D.C. 2004); see also Stafford v.

Briggs, 444 U.S. 527 (1980).

Although most of the Bivens defendants waived service of process after receiving Rule

4(d) waiver requests from Plaintiff’s counsel, Ms. Rice and Mr. Glassman did not waive service,

and Ms. Poggioli never received or signed a waiver request. Plaintiff will be unable to establish

that this Court has jurisdiction over those three defendants, because she has not perfected service

of process upon them.

When a plaintiff attempts to pursue a federal district court action against a federal

employee in his or her individual capacity, the individually-sued defendant must be served with

process in accordance with Fed. R. Civ. P. 4(e). See Fed. R. Civ. P. 4(i) (requiring service of the

officer or employee “under Rule 4(e), (f), or (g).”); Simpkins v. District of Columbia

Government, 108 F.3d 366, 369 (D.C. Cir. 1997); Toms v. Hantman, 530 F. Supp. 2d 188, 190

(D.D.C. 2008). Rule 4(e) provides that service is effectuated by delivering a copy of the

summons and complaint to the defendant (or his appointed agent) personally, by leaving copies


22

thereof at the defendant dwelling house or usual place of abode with some person of suitable age

and discretion who resides there, or by complying with the laws governing service in the state in

which the district court is located. Fed. R. Civ. P. 4(e). D.C. state rules allow for service upon

individuals by first class, certified or registered mail at their home address. SCR-Civil 4(e)(2).

In this case, Plaintiff attempted to serve all of the defendants by mail at the BBG, a place

at which the current governors work fewer than 130 days per year. See Exh. 8 (Oct. 8, 2008

letter from R. Meriweather to C. Lerner). Mary Poggioli has retired, and therefore the BBG is

not her place of business. Upon information and belief, Plaintiff has not attempted to serve Ms.

Poggioli by mail at her home in Georgia. Therefore, Plaintiff has not effected proper service

upon Ms. Poggioli.

The packages mailed to the BBG also were insufficient to serve Ms. Rice and Mr.

Glassman. Service by certified mail at a defendant’s place of employment is not proper service

for an individual-capacity claim under federal or state procedural rules. See Keller v. Embassy

of the United States, 522 F. Supp. 2d 213, (D.D.C. 2007). Rule 4(e) does not provide for service

by mail. See Fed. R. Civ. P. 4(e). Although D.C. Superior Court rules allow individuals to be

served by certified or registered mail at a home address, those rules do not permit service by mail

at an individual’s business address unless the complaint and summons are left with and signed

by an agent authorized to receive service of process in the defendant’s individual capacity.

Jackson v. Telford, 2006 WL 2559486, at *3 (D.D.C. Sept. 5, 2006). Because the record in this

action is devoid of any evidence of proper personal service upon Ms. Rice and Mr. Glassman in

their individual capacities, this action cannot proceed against them and all claims against them

should be dismissed pursuant to Fed. R. Civ. P. 12(b)(5).


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VI. THRESHOLD QUALIFIED IMMUNITY ISSUES SHOULD BE RESOLVEDPRIOR TO DISCOVERY.

“[Q]ualified immunity provides not simply a defense to liability, but also ‘an entitlement

not to stand trial or face the other burdens of litigation, conditioned on the resolution of the

essentially legal question whether the conduct of which plaintiff complains violated clearly

established law.’” Farmer,163 F.3d at 613 (citation omitted). That immunity from suit “is

effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S.

511, 526 (1985). The Supreme Court recently reaffirmed that “the driving force behind creation

of the qualified immunity doctrine was a desire to ensure that insubstantial claims against

government officials will be resolved prior to discovery.” Pearson, 2009 WL 128768, at *6.

Accordingly, until the “threshold immunity question is resolved, discovery should not be

allowed.” Harlow, 457 U.S. at 818; accord Mitchell, 472 U.S. at 526 ("Unless the plaintiff’s

allegations state a violation of clearly established law, a defendant pleading qualified immunity

is entitled to dismissal before the commencement of discovery.”). Indeed, the Supreme Court

has long admonished that the question of qualified immunity “should be resolved at the earliest

possible stage of a litigation.” Anderson v. Creighton, 483 U.S. 635, 646 n. 6 (1987).

In light of those well-settled principles, discovery should be deferred pending the Court’s

resolution of the qualified immunity defenses discussed supra. The Bivens defendants therefore

respectfully request that the Court grant their motion to stay discovery pending resolution of this

motion.


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CONCLUSION

For the foregoing reasons, the Bivens defendants respectfully request that the Court

dismiss the claims in which Plaintiff seeks damages from them in their individual capacity.

Respectfully submitted,

/s/ JEFFREY A. TAYLOR, D.C. BAR # 498610United States Attorney

/s/ RUDOLPH CONTRERAS, D.C. BAR #434122Assistant United States Attorney

/s/ ___ ROBIN M. MERIWEATHER, DC BAR # 490114Assistant United States Attorney555 4th Street, N.W.Washington, D.C. 20530(202) 514-7198; (202) 514-8780 (fax)[email protected]

Of Counsel:

Elizabeth ParrishKataryna BaldwinPatricia HargraveAssistant General Counsel Broadcasting Board of GovernorsOffice of General Counsel330 Independence Ave., S.W.Suite 3349Washington, D.C. 20037




Plaintiff, ))



)Defendants. )

)

Upon consideration of the Motion to Dismiss filed by the individually-named defendants,

it is this ________ day of ___________________________,

ORDERED that the Motion to Dismiss be and hereby is GRANTED;

It is further ORDERED that the claims against, in their individual capacity, be and

hereby are DISMISSED with prejudice.

SO ORDERED.

__________________________________United States District Judge


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