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Navab-Safavi v. Broadcasting Board of Governors

September 3, 2009

MELODI NAVAB-SAFAVI, PLAINTIFF,
v.
BROADCASTING BOARD OF GOVERNORS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Melodi Navab-Safavi worked as a contractor for the Broadcasting Board of Governors ("BBG" or "the Board"), providing translation and other broadcasting support services for the Persian Service and Persian News Network of the Voice of America ("VOA"). Plaintiff brings this action against the BBG and the following past or present BBG officers and employees in their individual capacities: Janice H. Brambilla, Joaquin F. Blaya, Blanquita W. Cullum, James K. Glassman, Wayne D. Greene, D. Jeffrey Hirschberg, Gary C. Hosford, Edward E. Kaufman, Mark McKinnon, Mary Poggioli, Steven J. Simmons, Condoleezza Rice, and Sheila Gandji ("the individual defendants"). Plaintiff alleges that her contract was terminated due to her participation outside of work in an Internet music video protesting the Iraq war, and that this termination violated the First Amendment's Speech Clause and constituted discrimination on the basis of her race/ethnicity and national origin in violation of the Fifth Amendment's Due Process Clause. The individual defendants have moved to dismiss the claims against them pursuant to Federal Rules of Civil Procedure 12(b)(2), (5), and (6).*fn1 For the reasons set forth below, defendants' motion will be granted in part and denied in part.

BACKGROUND

I. FACTUAL ALLEGATIONS

As alleged in the complaint, plaintiff is a U.S. citizen and resident who was born in Iran. (Compl. ¶ 2.) She is fluent in English, Farsi (i.e., Persian), Norwegian, and Swedish. (Id. ¶ 5.) Beginning in July 2004, plaintiff provided services as a contractor for the BBG. (Id. ¶ 2.) The BBG is a federal agency charged with overseeing all U.S. government and government-sponsored non-military international broadcasting services, including VOA. (Id. ¶ 3.) See generally 22 U.S.C. § 6204. The Board is a bipartisan independent body composed of nine voting members: eight Governors appointed by the President (one of whom is appointed as Chairman) and the Secretary of State. See 22 U.S.C. § 6203(b). At all times relevant to this action, defendant Glassman was Chairman of the Board; defendants Blaya, Cullum, Hirschberg, Kaufman, McKinnon and Simmons were Governors who also sat on the Board; defendant Rice was a member of the Board by virtue of her position as Secretary of State; and defendants Brambilla, Gandji, Greene, Hosford, and Poggioli were BBG employees. (Id. ¶ 4.)

A. Plaintiff's Contract with the BBG

Under her contract with BBG, plaintiff agreed to provide translation and other assigned services to VOA's Persian Service. (Compl. ¶ 5.) The Persian Service, of which defendant Gandji was the director, produces news programs, features, and talk shows and, at the time plaintiff worked there, engaged at least twenty independent contractors for VOA productions. (Id. ¶¶ 5, 18.) The "vast majority" of plaintiff's work was to translate material for VOA broadcasts from English into Farsi and to provide voiceover services (i.e., narrating text that has already been approved by an editor). (Id. ¶¶ 5, 17.) From July 2004 through June 2006, plaintiff worked on VOA radio broadcasts; from June 2006 through her termination, plaintiff worked on VOA television broadcasts. (Id. ¶ 5.) For the television productions, plaintiff continued to serve primarily as a translator. (Id.) Although she did provide some technical support for the production of newscasts, plaintiff never appeared on a VOA television broadcast in that capacity. (Id.) All of her work on translations, voiceovers, and other production services was reviewed by a VOA editor or producer. (Id. ¶ 6.)

As a BBG contractor, plaintiff performed in a "consistently outstanding manner," and her contract was repeatedly renewed. (Compl. ¶ 7.) Joy Wagner, a VOA manager who frequently oversaw plaintiff's work as her direct supervisor, described plaintiff as "'by far one of the best translators in the Persian Service,'" whose "'work habits [were] impeccable'" and was, "'above all[,] . . . a team player'" who "'NEVER causes problems, [and] is always cooperative and willing to help.'" (Id. (quoting Wagner's alleged statements); see also id. ¶ 17.) Similarly, Amy Katz, an executive producer for VOA's Persian News Network, stated that plaintiff's "'work and work ethic are excellent on all levels'" and "'[h]er translation and writing won rave reviews from our editors, as did her ability to adapt the printed word for television.'" (Id. ¶ 7 (quoting Katz's alleged statements).) The producer also highlighted how plaintiff's "'upbeat attitude, radiant smile and team spirit make her a pleasure to have around.'" (Id.) Another VOA manager offered praise for plaintiff's "'acumen, intelligence, thoroughness and honesty . . . .'" (Id. (quoting manager's alleged statements).) Many agents of the BBG discussed with plaintiff the possibility of "maintaining a long-term relationship with the agency." (Id. ¶ 9.) At no time prior to her termination did VOA, the Board, or any individual defendant indicate that plaintiff's performance "was less than fully satisfactory, or that her services would no longer be required." (Id.)

B. The Music Video

As a private citizen, plaintiff is a member of a pop band named Abjeez, whose other members reside in Sweden. (Compl. ¶ 10.) Abjeez, which is "banned in Iran," makes "songs and videos regarding, among other things, women's rights and other social problems in Iran." (Id.) Plaintiff never used VOA facilities or resources in any of the band's activities. (Id. ¶ 12.) VOA managers knew of and encouraged plaintiff's participation in Abjeez and broadcasted the band's music videos on occasion. (Id. ¶ 11.) VOA also televised a piece featuring Abjeez, during which plaintiff was interviewed as a guest. (Id. ¶ 5.) This was the only time plaintiff ever appeared on a VOA television broadcast. (Id.)

In early July 2007, Abjeez produced and appeared in a music video entitled "DemoKracy" ("the video"). (Compl. ¶ 13.) The video "protested U.S. involvement in the Iraq War" and contains footage of wounded U.S. soldiers, injured and dead Iraqi civilians, and coffins draped in U.S. flags. (Id.) The song does not mention VOA, and the video does not portray VOA activities or employees, nor does it identify by name or professional affiliation any of the artists involved with the video. (Id. ¶ 14.) The band has not sold or commercially distributed the video. (Id.) Plaintiff used no VOA resources to make the video and participated in its production "only during non-work hours and on her days off." (Id.) Plaintiff's husband, Saman Arbabi, also helped to produce the video; although he is a BBG employee working in VOA's Persian Service, his participation was also "exclusively on his own time using his own resources." (Id. ¶ 22.)

C. The Termination of Plaintiff's Contract

On June 26, 2007, the Board renewed plaintiff's contract and authorized additional funds to be paid pursuant to that contract. (Compl. ¶ 8.) On July 9, plaintiff's music video was posted to the publicly accessible Internet website YouTube. (Id. ¶ 13.) Shortly thereafter, U.S. Senator Tom Coburn learned about the video and, "either directly or through his staff, used his influence as a Senator to lobby BBG officials to punish those people affiliated with the video." (Id. ¶ 21.) When Gandji learned about Arbabi's involvement in the video, she and Poggioli, an official in the BBG's Labor Relations office, investigated the circumstances surrounding the making of the video. (Id. ¶ 22.) They met with Arbabi and pressured him to resign, telling him that "even though they had verified that he had not used any VOA resources to produce the video, BBG management did not want 'a scandal on its hands' because it might affect Congressional funding of the agency." (Id.) A meeting of the Board was also convened to review and discuss the video; during this meeting, members of the Board "expressed their view that the DemoKracy video was 'anti-American.'" (Id. ¶ 16.)

On July 18, 2007, Gandji and Poggioli met again with Arbabi. (Compl. ¶ 22.) During this second meeting, Poggioli informed Arbabi that the Board had met to discuss the video and "judged it to be 'anti-American,'" and that the Board members saw Arbabi "'as a liability.'" (Id.) Gandji also told Arbabi that "Senator Coburn was 'leading the attack' to take action against those people involved in producing it." (Id.) Arbabi refused to resign. (Id.) Around this time, Joy Wagner, plaintiff's direct supervisor, also learned that the Board had concerns about the video, and she wrote to Gandji to clarify plaintiff's "limited job responsibilities." (Id. ¶ 17.) Wagner allegedly explained that plaintiff was not a journalist, and that she only provided translation and narration services, that she never "'appeared on-air as a[] VOA employee,'" and that she specifically asked that VOA "'never use her real name on air,'" a request that had been honored. (Id. (quoting Wagner's alleged writing).)

On July 19, 2007, plaintiff was summoned to a meeting with Benjamin Jones Keeling, Staff Director of the Persian News Network, and Gandji, Greene, and Hosford. (Compl. ¶ 18.) Hosford allegedly told plaintiff, "'[T]oday we are terminating your contract with VOA. We have used your services for the past three years, but from now on we don't need them any longer.'" (Id. (quoting Hosford's alleged statements).) Hosford then pressured plaintiff to sign a form acknowledging that the termination of her contract was to be effective at midnight that night, even though this breached the contract's 30-day written notice provision. (Id. ¶¶ 18-19; see also Defs.' Mem. in Supp. of Mot. to Dismiss ("Mot.") [Dkt. 12], Ex. 2 (plaintiff's contract) at 2 ("Either Party may terminate this contract in whole or in part when it's in that Party's interest, by prior written notice, received at least 30 days before the effective date of termination.").) After packing her belongings and bidding her colleagues farewell, plaintiff returned to Gandji's office to sign termination-related paperwork. (Id. ¶ 20.) Gandji told plaintiff, "'[T]his situation is very unfortunate. If this had happened in another service, like the Mandarin service, nothing would have happened. But since you are Iranian, working at the Persian [S]ervice during these sensitive political times with Iran, this has become a disproportionate problem for you.'" (Id. (quoting Gandji's alleged statements).) Following plaintiff's termination, defendants "repeatedly hired other independent contractors to provide the very same services that plaintiff had performed." (Id. ¶ 24.) On September 12, VOA corresponded with Senator Barbara Mikulski about the DemoKracy video, stating that the video was "'public speaking on a matter of concern to the Agency" and that VOA was "'satisfied that all production was accomplished off-site, and that no VOA resources were utilized.'" (Id. ¶¶ 14, 15 (quoting VOA's alleged writing).)

II. THE INSTANT ACTION

Plaintiff initiated this action on July 17, 2008. Count One of the complaint alleges that defendants' actions violated plaintiff's right to freedom of speech under the First Amendment. (Compl. ¶ 28.) Count Two alleges that their actions violated plaintiff's equal protection rights under the Fifth Amendment's Due Process Clause. (See id. ¶ 31.) The complaint further alleges that defendants acted willfully, maliciously, and with reckless disregard for her rights, and that they intended and caused her significant harm, including loss of income, reputational damage, and emotional distress. (Id. ¶¶ 26, 29, 32.) Plaintiff seeks, inter alia, a declaration that defendants violated her constitutional rights, an injunction against further violations of those rights, and an award of consequential and compensatory damages. (Id. at 11 ¶¶ (1)-(3) (prayer for relief).) On October 31, the agency filed its answer to the complaint, and on February 4, 2009, the individual defendants moved to dismiss, contending that the Court lacks personal jurisdiction over several defendants and that plaintiff cannot state valid claims for relief against the individual defendants because they enjoy qualified immunity from suit and because plaintiff cannot recover monetary damages against them under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

ANALYSIS

I. STANDARD OF REVIEW

A. Rule 12(b)(2)

Although plaintiff has the burden of proving personal jurisdiction, she can satisfy that burden with a prima facie showing. Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005). To establish a prima facie case, plaintiff "may rest [her] argument on [her] pleadings, bolstered by such affidavits and other written materials as [she] can otherwise obtain." Ventura v. BEBO Foods, Inc., 595 F. Supp. 2d 77, 82 (D.D.C. 2009). "[A] plaintiff 'is entitled to reasonable discovery' if the plaintiff requests it. City of Moundridge, Kan. v. Exxon Mobil Corp.,471 F. Supp. 2d 20, 33 n.5 (D.D.C. 2007) (quoting Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 525 (D.C. Cir. 2001)). A plaintiff may make such a request through motion or when defending against a motion to dismiss. Cf. Second Amendment Found., 274 F.3d at 525 (declining to consider argument that district court erroneously denied jurisdictional discovery where plaintiff "neither moved for an opportunity to serve jurisdictional discovery nor defended against the [defendants'] motion to dismiss on the ground that it had not yet taken such discovery").

B. Rule 12(b)(5)

"Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). If a plaintiff does not properly effect service, then the defendant may move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(5). Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003). Upon such a motion, "'[t]he party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of [Federal] Rule [of Civil Procedure] 4 and any other applicable provision of law." Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) (quoting C. Wright & A. Miller, Federal Practice and Procedure § 1083 at 334 (1969)); accord Cruz-Packer v. District of Columbia, 539 F. Supp. 2d 181, 186 (D.D.C. 2008).

C. Rule 12(b)(6)

"In determining whether a complaint fails to state a claim, [courts] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] . . . matters of which [courts] may take judicial notice," E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997), and documents "appended to [a motion to dismiss] and whose authenticity is not disputed" if they are "referred to in the complaint and are integral" to a plaintiff's claim. Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004) (considering content of documents on motion to dismiss where complaint relied on documents' terms and where documents were judicially noticeable); see also Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009) (noting that matters outside the pleadings do not include "documents 'upon which the plaintiff's complaint necessarily relies' even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss" (quoting Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)). When ruling on a motion to dismiss pursuant to Rule 12(b)(6), courts must first assume the veracity of all "well-pleaded factual allegations" contained in the complaint. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009); see also Atherton v. Dist. of Columbia Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). Next, courts must determine whether the allegations "plausibly give rise to an entitlement to relief" by presenting "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face,'" in that "the court [can] draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949-50 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

II. PERSONAL JURISDICTION AND SERVICE OF PROCESS

Defendants argue that the Court lacks personal jurisdiction over defendants Blaya, Cullum, Glassman, McKinnon, Poggioli, and Simmons because they do not reside in the District of Columbia ("the non-resident defendants"), and that the Court also lacks personal jurisdiction over defendants Glassman, Poggioli, and Rice, who are no longer affiliated with the BBG, because plaintiff has failed to properly serve them. (Mot. at 18-22.) The Court will address these arguments in turn.

A. The Court Has Personal Jurisdiction over the Non-Resident Defendants under the D.C. Long-Arm Statute

"If a defendant does not reside within or maintain a principal place of business in the District of Columbia, then the District's long-arm statute, D.C. Code § 13-423, provides the only basis [o]n which a court may exercise personal jurisdiction over the defendant." Quality Air Servs., L.L.C. v. Milwaukee Valve Co., Inc., 567 F. Supp. 2d 96, 99 (D.D.C. 2008) (quoting Savage v. Bioport, 460 F. Supp. 2d 55, 60 (D.D.C. 2006)). Section 13-423 provides in relevant part:

A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's

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

(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia . . . .

D.C. Code §§ 13-423(a)(1) & (3). "Section (a)(1)'s 'transacting any business' clause generally has been interpreted to be coextensive with the Constitution's due process requirements" and therefore they "merge into a single inquiry." GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000) (internal citations omitted). Section (a)(3) "confers jurisdiction only over a defendant who commits an act in the District which causes an injury in the District, without regard to any other contacts." Moncrief v. Lexington Herald-Leader Co., 807 F.2d 217, 221 (D.C. Cir. 1986).

The complaint asserts that the non-resident defendants were all members or employees of the Board of Governors when they allegedly participated in the termination of plaintiff's contract. (See Compl. ¶ 4.) Defendants contend that their presence in D.C. for work purposes cannot provide the basis for the Court to assert personal jurisdiction over them because plaintiff's Bivens action only names them in their individual capacities. (Mot. at 18-19.) However, the cases that defendants cite stand only for the proposition that the Court cannot assert personal jurisdiction over a non-resident defendant (1) who did not work in D.C. at the time of the conduct at issue and (2) whose only other D.C. contacts consist of federal employment or other "official capacity" relationships. See Islamic Am. Relief Agency v. Unidentified FBI Agents, 394 F. Supp. 2d 34, 57-58 (D.D.C. 2005) (finding no personal jurisdiction over defendant who lived and worked in Missouri where his sole contact with D.C. was employment by Internal Revenue Service, which is headquartered here); Cornell v. Kellner, 539 F. Supp. 2d 311, 315 (D.D.C. 2008) (same with respect to IRS employees who were Arizona residents, where plaintiff did not allege "that his claim for relief arises from Defendant's transaction of business in the District of Columbia," nor did he offer evidence that defendants committed any acts in D.C. with a "nexus to [p]laintiff's cause of action"); Ali v. District of Columbia, 278 F.3d 1, 7 (D.C. Cir. 2002) (finding no personal jurisdiction over Virginia officials in action brought under 42 U.S.C. § 1983, where complaint did not allege that "any defendants acting in their individual capacities either transacted business in the District or contracted to do so," officials' only contacts with District were through official relationships with District officials, and tortious acts took place in Virginia).

Unlike these cases, the non-resident defendants transacted business here, and this business had a strong "nexus to [p]laintiff's cause of action" because their alleged involvement in the decision to terminate her contract forms the basis for her retaliation and discrimination claims. Cornell, 539 F. Supp. 2d at 315. Because these defendants transacted business in the District within the meaning of ...


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