United States District Court, District of Columbia
N. MCFADDEN, U.S.D.J.
Soheila Jangjoo, a former vendor for the Broadcasting Board
of Governors (“BBG”), seeks injunctive and
monetary relief from Setareh Sieg, Director of the BBG
component Persian News Network (“PNN”). Am.
Compl. ¶¶ 13, 16, 141-50. Ms. Jangjoo alleges that
Ms. Sieg abridged her First Amendment right to free speech by
retaliatorily reducing Ms. Jangjoo's work assignments
after Ms. Jangjoo signed a petition protesting the removal of
the host of a popular television program on PNN. Id.
¶¶ 19-23, 39-40, 117-18. Ms. Jangjoo also alleges
that Ms. Sieg barred her from entering the BBG building in
violation of the Fifth Amendment's due process clause.
Id. ¶ 130. Ms. Sieg, who is being sued in her
individual capacity, seeks summary judgment for the First
Amendment claim on the bases that relief is unavailable to
Ms. Jangjoo under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
that even if it were, Ms. Jangjoo's speech is not
protected by the First Amendment, is foreclosed by qualified
immunity, and is unrelated to the reduction of her
assignments. Mem. of P. & A. in Supp. of Def.'s Mot.
for Summ. J. (“Mot. for Summ. J.”) 1-2, ECF No.
35-1. As to Ms. Jangjoo's Fifth Amendment claim, Ms. Sieg
argues that, in addition to her legal arguments, she was not
involved in barring Ms. Jangjoo from the premises.
Id. 40-42. I find that Bivens provides no
remedy for Ms. Sieg's alleged constitutional violations
and that no genuine issue of material fact exists about
whether the reduction in work assignments related to the
petition and whether Ms. Sieg improperly barred Ms Jangjoo
from the BBG premises. Ms. Sieg's motion will be granted.
The BBG and Ms. Jangjoo's Professional
is a federal agency that oversees the U.S. Government's
non-military international broadcasting with a mission to
engage a global audience to support freedom and democracy.
Am. Compl. ¶¶ 15, 17. One of its networks,
Voice of America (“VOA”), produces news,
information, and cultural programs in more than 45 languages,
including Persian. Id. ¶ 17. The Voice of
America Persian Service (“PNN”), focuses on the
people of Iran and on Persian speakers. Id. One of
PNN's television shows, which Ms. Jangjoo describes as
one of PNN's most popular programs, is a talk show called
Ofogh, whose host and managing editor was Siamak
Dehghanpour. Id. ¶¶ 19-20.
Jangjoo was a contracted Chyron/Teleprompter Operator for PNN
between April 2012 and November 2015 and provided services
for shows such as Rooye Khat and Khiabane
Zendegi. Id. ¶¶ 30-31, 35; Def.'s
Statement of Material Facts (“SOMF”) ¶ 1,
ECF No. 35-2. The parties disagree over whether she was a
contractor or an employee, but all agree that she had a
contract with BBG, was retained on an “as needed”
basis, and was not guaranteed any minimum number of hours or
assignments in any particular period. Id. ¶ 2;
Pl.'s Resp. to Def.'s SOMF ¶ 2, ECF No. 36-2
(disputing only the description of Ms. Jangjoo as a
contractor). Ms. Jangjoo alleges that for most of her tenure
at PNN, she received 18 assignments a month, each lasting
about an eight-hour workday. Am. Compl. ¶ 34.
parties disagree over how well Ms. Jangjoo performed in both
of her roles at PNN. Nicholas Kalhor, an Executive Producer
and Ms. Jangjoo's first-line supervisor, testified that
he found her “unwilling to perform the essential duties
of her job, ” could not “operate the chyron and
teleprompter properly, ” was “frequently
insubordinate and unprofessional, ” and that her
“attendance was unreliable” and she
“consistently displayed a poor work ethic and an
inability to take direction and constructive feedback.”
Mot. for Summ. J. Ex. 23 (“Decl. of Nicholas
Kalhor”) ¶¶ 6-7, ECF No. 35-5. After speaking
to Ms. Jangjoo several times about her performance and seeing
no improvement, Mr. Kahlor recommended in late February 2015
to the Agency Contract Officer, Cheryl Nixon that Ms. Jangjoo
be placed on a two-week probationary period. Id.
¶ 7. Ms. Jangjoo's former first-line supervisor,
Kaveh Adib, also agreed with the recommendation “as he
experienced the same issues when she was under his
supervision.” Id. at 4.
these recommendations, the Office of Contracts reportedly
spoke with Ms. Jangjoo, who agreed to improve her
performance. Id. ¶ 8. Ms. Jangjoo disputes
these characterizations because “there was a group of
employees who wanted to get rid of [Ms.] Jangjoo at that
time, ” and clarifies that Ms. Sieg denied the
recommendation for probation and extended her contract for
another year. Pl.'s Resp. to Def.'s SOMF ¶¶
March 2015, Ms. Jangjoo's contract was modified to add
services as a Writer/Researcher/Reporter/Producer. Am. Compl.
¶ 32. PNN supervisors were unimpressed with her work;
Mr. Kalhor stated that Ms. Jangjoo had “poor TV
production skills” and an Executive Editor described
one report produced by Ms. Jangjoo as “follow[ing] no
logic and was put together with total anarchy.”
Def.'s SOMF ¶¶ 13-14. Ms. Jangjoo does not
dispute that she was responsible for putting together the
report, but claims that others, who she does not name, were
also involved. Pl.'s Resp. to Def.'s SOMF ¶ 13.
Events Leading to the Online Petition About Mr.
Dehghanpour's Removal from Hosting
April 2015, an incident occurred between PNN and the host of
Ofogh. Def.'s SOMF ¶¶ 19-21; Opp. to
Mot. for Summ. J. (“Pl.'s Opp.”) Ex. 8
(“Statement of Siamak Dehghanpour”) at 10, ECF
No. 36-10. PNN claims that Mr. Dehghanpour refused at the
last minute, despite orders from the Executive Editor and Ms.
Sieg, to go on air to report on the breaking news of the
Iranian nuclear deal. Def.'s SOMF ¶ 19. PNN's
impression was that the refusal related to not wanting to
work with a would-be co-anchor. Id. ¶ 20. Mr.
Dehghanpour's version of events was that he wanted to
proceed with his show as scripted (also about the Iran
nuclear deal), and did not feel comfortable interrupting the
scheduled line-up of speakers to deliver breaking news that
had not yet been confirmed by the Associated Press or the
White House. See Statement of Siamak Dehghanpour at
1, 5. With respect to the co-host, he stated that he had
“never co-hosted a show in the middle of a program on
air” and that “there was no clear order nor a
clear mission” for him to follow. Id. at 8.
Following this incident, Mr. Dehghanpour was removed from the
air. Def.'s SOMF ¶ 22.
summer 2015, a petition was posted on the website change.org
to reinstate Mr. Dehghanpour. Def.'s SOMF ¶ 24. Ms.
Jangjoo signed the petition in July 2015. Id. ¶
25. On July 18, 2015, Ms. Sieg received an email with a link
to the petition, but claims that she did not click on the
link. Id. ¶¶ 26, 28. A search of Ms.
Sieg's browsing history on her work a showed that she did
not visit any change.org site in July or August 2015.
Id. ¶ 28. The facts that Ms. Jangjoo signed the
petition and that Ms. Sieg received an email with a link to
the petition, but did not check any change.org website from
her work computer in July or August 2015, are all undisputed.
Pl.'s Resp. to Def.'s SOMF ¶¶ 25-29. It is
also undisputed that Ms. Sieg receives around 300 emails a
day and does not open all of them, and Ms. Jangjoo does not
claim to have shown the petition to Ms. Sieg. Id.
¶¶ 27, 29.
VOA's Ongoing Budgetary Difficulties and Ms.
Jangjoo's Reduction of Work
to these events were VOA's budgetary difficulties. Ms.
Sieg claims that in early 2015, she was instructed to begin
identifying contracts to reduce or eliminate; by mid-May
2015, she was told that VOA would “likely have to make
some reductions in contractors due to budget cuts.”
Def.'s SOMF ¶¶ 31, 33-34. On July 22, 2015, it
was again reiterated to Ms. Sieg by email that the “VOA
budget is tight this year” and to “ensure that
you are only funding or purchasing items that are ‘must
haves' and not wish list items.” Id.
¶ 35. A memorandum circulated to prepare for an
anticipated $1.5 million budgetary shortfall explained that
PNN would have to reduce contractor costs by 30%, either by
“reducing the average number of days per month that
each contractor can work from 18 to 11” or by
“eliminating approximately 25 contract positions (out
of 81).” Id. ¶ 36.
September 2015, an analysis determined that reducing Ms.
Jangjoo's assignments from 18 to 10 per month would
enable the budget for her position to last until early
February 2016, a few weeks before her contract was scheduled
to end. Mot. for Summ. J. Ex. 15, ECF No. 35-4. PNN
management also determined that Ms. Jangjoo's services
could be cut to four hours a day since she only worked on a
particular show. Def.'s SOMF ¶ 42. Mr. Kalhor made
both recommendations to Ms. Nixon based on Ms. Jangjoo's
performance and PNN's “reduced need for her
services.” Id. ¶ 43.
November 10, 2015, Mr. Kalhor emailed Ms. Jangjoo that she
would have 10 assignments totaling 80 hours that month. Mot.
for Summ. J. Ex. 16. Two days later, Messrs. Kalhor and Adib
told her in person that her assignments would only be for
four hours a day. Id. Ex. 17. Mr. Adib reported to
Ms. Sieg that Ms. Jangjoo's response was to “[take]
the conversations to a personal level” and that she
threatened to “set herself on fire” in front of
the building. Id. Mr. Adib also wrote that Ms.
Jangjoo thought “this decision [was] on a personal
level and some people including [Mr. Adib] have been planning
to terminate her contract for a long time.”
Id. Ms. Sieg forwarded Mr. Adib's email to Human
Resources, the Office of Security, and the Office of
Ms. Jangjoo's Removal and Bar from the Building
November 13, 2015, the Office of Security and the Insider
Threat Manager interviewed Ms. Jangjoo and reported that she
was “still upset” about her hours being reduced
but that she claimed not to be serious about the earlier
threat of self-immolation. Id. Ex. 18. The Insider
Threat Manager also reported that Ms. Jangjoo was transported
to D.C. Psychiatric Services by the police for further
evaluation. Id. While BBG asserts that they called
the police after Ms. Jangjoo agreed to receive medical
attention, Ms. Jangjoo claims that she only asked for
assistance and not a medical evaluation. Def.'s SOMF
¶ 63; Pl.'s Response to Def.'s SOMF ¶ 63.
the incident, BBG's security team recommended that Ms.
Jangjoo be barred from returning to the building, and a group
representing Human Resources, Contracts, and Ms.
Jangjoo's supervisors accepted this recommendation. Mot.
for Summ. J. Ex. 27, ECF No. 35-5. The group also agreed that
the remainder of the funds on Ms. Jangjoo's contract
would be paid to her and that her contract would be
terminated. Id.; cf. Pl.'s Opp. Ex. 15,
ECF No. 36-12 (email from Contract Specialist stating that no
termination letter was executed). It is undisputed that Ms.
Sieg did not participate in the meeting between Ms. Jangjoo
and BBG's security team and that Ms. Sieg had no role in
having Ms. Jangjoo escorted from the building or being barred
from it afterwards. Def.'s SOMF ¶¶ 66-67.
Procedural History of this Lawsuit
Jangjoo began this lawsuit in May 2016 and, with leave of
court, filed an amended complaint in late August 2016.
Compl., ECF No. 1; Am. Compl., ECF No. 14. The original
lawsuit was brought by Ms. Jangjoo and another plaintiff
against the BBG and Ms. Sieg. See id. The Defendants
moved to dismiss all claims except for two brought by Ms.
Jangjoo against Ms. Sieg in her personal capacity, which
another judge of this District granted. Mem. Op. 2, ECF No.
23. The two remaining claims are Ms. Jangjoo's First
Amendment claim that Ms. Sieg infringed on her right to free
speech by reducing Ms. Jangjoo's assignments in
retaliation for signing the petition, and her Fifth Amendment
claim that Ms. Sieg's “prohibition of Plaintiff
Jangjoo's entry into the BBG Headquarters violated her
due process rights.” See Am. Compl.
¶¶ 117-18, 130. Ms. Sieg now seeks summary judgment
on these claims.
prevail on summary judgment, the movant must show an absence
of a genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A genuine issue of material fact is one
that would change the outcome of the litigation.
Anderson, 477 U.S. at 248. The Court views the
evidence in the light most favorable to the non-moving party.
Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir.
ANALYSIS OF FIRST AMENDMENT CLAIM
Jangjoo's First Amendment claim fails as a matter of law
because the First Amendment has not been recognized as a
basis for a Bivens action, nor does controlling
precedent dictate that one should now be judicially created
to cover Ms. Jangjoo's cause of action. Second, even if a
Bivens remedy existed, which it does not, Ms. Sieg
is entitled to qualified immunity. Last, although these bases
independently preclude review of the merits, there is no
genuine issue of ...