John Does v. Debra Haaland

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0293p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JOHN DOES 1–10, ┐
Plaintiffs-Appellants, │
│
> No. 19-6347
v. │
│
│
DEBRA HAALAND; ELIZABETH WARREN, │
Defendants-Appellees. │
┘

Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 2:19-cv-00117—William O. Bertelsman, District Judge.

Argued: June 11, 2020
Decided and Filed: September 3, 2020

Before: CLAY, WHITE, and READLER, Circuit Judges.
_________________

COUNSEL

ARGUED: Robert E. Barnes, BARNES LAW, LLP, Los Angeles, California, for Appellants.
Brooks M. Hanner, OFFICE OF GENERAL COUNSEL UNITED STATES HOUSE OF
REPRESENTATIVES, Washington, D.C., for Appellee Haaland. Uzoma N. Nkwonta,
PERKINS COIE LLP, Washington, D.C., for Appellee Warren. ON BRIEF: Robert E. Barnes,
Derek A. Jordan, BARNES LAW, LLP, Los Angeles, California, for Appellants. Brooks M.
Hanner, Douglas N. Letter, Todd B. Tatelman, Sarah Clouse, OFFICE OF GENERAL
COUNSEL UNITED STATES HOUSE OF REPRESENTATIVES, Washington, D.C., for
Appellee Haaland. Uzoma N. Nkwonta, Marc E. Elias, Christina A. Ford, PERKINS COIE LLP,
Washington, D.C., Daniel J. Canon, Indianapolis, Indiana, for Appellee Warren.
 No. 19-6347 Does v. Haaland, et al. Page 2

_________________

OPINION
_________________

CLAY, Circuit Judge. Plaintiffs, ten unidentified minors, appeal the district court’s order
dismissing two Defendants, Senator Elizabeth Warren and Representative Debra Haaland, from
this defamation suit. Plaintiffs claim that Senator Warren and Representative Haaland
committed libel against them by issuing a series of tweets in response to a widely publicized
incident on the National Mall in which Plaintiffs were involved. The district court found that
Plaintiffs’ defamation claims were barred by sovereign immunity. For the reasons provided in
this opinion, we AFFIRM the district court’s order.

BACKGROUND

Plaintiffs are ten unnamed minors who, at the time of the events in question, attended
Covington Catholic High School, a private school in Park Hills, Kentucky. According to
Plaintiffs’ complaint, on January 18, 2019, Plaintiffs joined a larger group of classmates on a trip
to Washington, D.C. to attend the anti-abortion March for Life. After attending the
demonstration, Plaintiffs gathered near the Lincoln Memorial to await buses to return to
Kentucky. While there, members of the religious sect known as the Black Hebrew Israelites
allegedly taunted the students with profane insults. Some of the students purportedly sought
permission from chaperones to recite school cheers to drown out the taunts.

After this interaction, Native American activist Nathan Phillips approached Plaintiffs.
Phillips had participated in the Indigenous People’s March—a political rally near the Lincoln
Memorial—earlier in the day. According to Plaintiffs, Phillips “joined the students as they
engaged in school cheers.” R. 34-3, First Am. Compl., PageID # 429. These cheers included
renditions of the Haka—a traditional Maori dance—and the “sports chant of the Florida State
Seminoles and the Atlanta Braves, with their famous tomahawk chop.” Id. at PageID # 429–30.
Plaintiffs claim that in doing so they “joined with Phillips”—who was beating a drum and
chanting a traditional Native American song. Id. at PageID # 429.
 No. 19-6347 Does v. Haaland, et al. Page 3

A video of Plaintiffs’ interaction with Phillips was posted online and it swiftly spread. It
depicts Phillips beating his drum and chanting while backed by a small number of Native
American activists who are in turn surrounded by a larger circle of Covington students
(identifiable by their Covington apparel), some of whom are also wearing clothing and hats
displaying President Trump’s “Make America Great Again” campaign slogan. A number of
students are performing the “tomahawk” chop and one student is standing close to Phillips and
staring at him.

Several politicians, journalists, and others with large social media followings shared
versions of the video as well as articles that discussed it, many with commentary disapproving of
Plaintiffs’ actions. Numerous other individuals and media outlets also publicized the video.
Plaintiffs complained of severe online harassment in response to the video’s dissemination,
including calls for their physical harm, expulsion, and for the public disclosure of their identities.

The public statements regarding the video that are relevant on appeal are those sent by
Representative Debra Haaland and Senator Elizabeth Warren. On January 19, 2019,
Representative Haaland sent a tweet from her official Congressional Twitter account that read:
“This Veteran [Nathan Phillips] put his life on the line for our country. The students’ display of
blatant hate, disrespect, and intolerance is a signal of how common decency has decayed under
this administration. Heartbreaking.” Id. at PageID # 465. She later sent a tweet from her
campaign Twitter account that linked to a Huffington Post article about the incident that included
a video interview with Phillips following his interaction with the students, in which he stated that
they were chanting “build that wall.” Id. at PageID # 471. Her tweet stated: “A Native
American Vietnam War veteran was seen being harassed and mocked by a group of MAGA hat-
wearing teens.” Id. Elected in 2018, Representative Haaland was one of the first Native
American women elected to Congress. According to public reports, she attended the Indigenous
People’s March earlier in the day on January 18.

On January 19, Senator Elizabeth Warren sent a tweet from her official Senate Twitter
account that stated “Omaha elder and Vietnam War veteran Nathan Phillips endured hateful
taunts with dignity and strength, then urged us all to do better. Listen to his words.” Id. at
PageID # 473. This was followed by a link to a Splinter News article about the incident. The
 No. 19-6347 Does v. Haaland, et al. Page 4

article shared by Senator Warren also included a version of the video interview with Phillips in
which he stated that he heard chants of “[b]uild that wall” from the crowd of Covington students.
Sen. Warren’s Br. at 9 (citing @splinter_news, Twitter (Jan. 19, 2019, 6:18 PM),
https://twitter.com/splinter_news/status/1086764784706560001?lang=en).

On August 1, 2019, eight of the unnamed Plaintiffs filed suit in Kentucky court against
Defendants, twelve individuals who sent tweets regarding the incident and Plaintiffs’
participation therein. On August 14, 2019, Plaintiffs filed an amended complaint to add two
more unnamed students as Plaintiffs. Each Defendant was accused of defamation, intrusion
upon seclusion, and negligent infliction of emotional distress; while one (Kathy Griffin) was
further accused of harassment via her online messages. Plaintiffs alleged that each Defendant
made their statements:

[K]nowing they both omitted true facts and implied false facts, including the false
factual claim the Covington Boys interrupted an indigenous people’s march,
stopped, blocked and surrounded a native American elder war veteran for the
purposes of taunting, harassing, and mocking him with chants of build the wall,
aggregating these lies into public denunciations, calls for public doxing, and
public demands of school expulsion, to induce public contempt upon the
plaintiffs.

R. 34-3, First Am. Compl., PageID # 439. Plaintiffs asked for damages “in an amount not less
than $15,000 but not more than $50,000” per Defendant. Id. at PageID # 463.

On August 28, 2019, Senator Warren removed the case to federal district court, citing the
Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), as the basis for removal. Then on
September 4, 2019, Senator Warren filed a motion to dismiss for lack of jurisdiction and for
failure to state a claim on which relief could be granted. Representative Haaland subsequently
filed her own motion to dismiss. On September 26, 2019, Plaintiffs filed a motion to remand to
state court.

The district court issued an opinion and order in which it found that removal was proper
under the Federal Officer Removal Statute, denied Plaintiffs’ motion to remand, and granted
Senator Warren’s and Representative Haaland’s motions to dismiss. It concluded that regardless
of whether one agrees with Warren’s and Haaland’s communications, they were “intended to
 No. 19-6347 Does v. Haaland, et al. Page 5

convey the politicians’ views on matters of public interest to their constituents.” R. 80, Dist. Ct.
Order, PageID # 1081. Therefore, “the statements were made within the scope of defendants’
employment as elected representatives” and they were entitled to the benefit of sovereign
immunity pursuant to 28 U.S.C. § 2679(b)(1). Id. This meant that the United States was
substituted as Defendant in their place. However, because the United States has not waived its
immunity to libel and slander suits, id. § 2680(h), the defamation claim could not proceed against
the United States either. With no federal defendants left before it, the court lacked subject matter
jurisdiction over the action. It then declined to exercise supplemental jurisdiction over Plaintiffs’
state law claims against the remaining Defendants because those claims involved “unique issues
of state law.” Id. at PageID # 1082 (citing 28 U.S.C. § 1367(c)). It thus remanded the remaining
claims to state court. This timely appeal followed.1

DISCUSSION

We review a district court’s order dismissing an action for lack of subject matter
jurisdiction de novo. See, e.g., Am. Landfill, Inc. v. Stark/Tuscarawas/Wayne Joint Solid Waste
Mgmt. Dist., 166 F.3d 835, 837 (6th Cir. 1999).

I. Sovereign Immunity

Plaintiffs mistakenly frame Defendants’ claim for immunity from libel suits as one
premised on the Speech and Debate Clause, which states “for any Speech or Debate in either
House, [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const.
art. I, § 6, cl. 1. This clause provides Congressmembers a limited form of legislative immunity
from suit. See Gravel v. United States, 408 U.S. 606, 616 (1972) (“It . . . protects Members
against prosecutions that directly impinge upon or threaten the legislative process.”). However,
the clause only protects speech made in the context of “legislative activities” and the “legislative
process.” See, e.g., Hutchinson v. Proxmire, 443 U.S. 111, 127 (1979) (holding that the Speech

1
On appeal, Plaintiffs do not challenge the district court’s dismissal of their intrusion upon seclusion and
negligent infliction of emotional distress claims against Defendants. Plaintiffs also fail to argue that the district
court erred in denying their motion to remand. Consequently, those claims have been forfeited on appeal. See, e.g.,
Enertech Elec., Inc. v. Mahoning Cnty. Comm’rs, 85 F.3d 257, 259 (6th Cir. 1996) (holding that issues not raised in
an appellant’s opening brief will not be considered on appeal).
 No. 19-6347 Does v. Haaland, et al. Page 6

and Debate Clause’s protection “does not extend beyond what is necessary to preserve the
integrity of the legislative process” (quoting United States v. Brewster, 408 U.S. 501, 517
(1972))). This provides meaningful limits on an otherwise broad grant of immunity.

In the present case, Plaintiffs contend that “[r]esponding to questions about their job
[as Congressmembers] has been the only category of claims found immune from tortious libels
outside of legislative duties or the legislative chamber,” and so Defendants’ tweets are not
protected by the Speech and Debate Clause. Appellants’ Br. at 15. Whatever the merits of
Plaintiffs’ argument, neither Senator Warren nor Representative Haaland have cited the Speech
and Debate Clause—in either their motions to dismiss below or in their filings before this
Court—to demonstrate the lack of federal subject matter jurisdiction over this action.
Consequently, Plaintiffs’ arguments on this point are irrelevant to the issue presented in this case.

Instead, Defendants rely on the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346,
2671 et seq., as amended by the Westfall Act, 28 U.S.C. § 2679(b)(1), to undergird their
immunity claim. “The United States, as sovereign, is immune from suit save as it consents to be
sued, and the terms of its consent to be sued in any court define that court’s jurisdiction to
entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omitted).
The FTCA waives the United States’ sovereign immunity for certain torts committed by federal
employees while acting in the scope of their employment. 28 U.S.C. §§ 1346, 2671 et seq. In
general, the FTCA provides federal district courts exclusive jurisdiction over claims against the
United States for “injury or loss of property, or personal injury or death caused by the negligent
or wrongful act or omission” by federal employees acting within the scope of their employment.
Id. § 1346(b)(1). It does not, however, waive sovereign immunity for claims “arising out of . . .
libel [and] slander.” Id. § 2680(h).

Prior to 1988 litigants could sue federal tortfeasors in their individual capacity, subject to
specific exceptions created by Congress to protect certain classes of employees from personal
liability. See United States v. Smith, 499 U.S. 160, 170 & n.11 (1991). In 1988, Congress
abandoned this piecemeal approach and passed broad legislation to extend the benefit of
sovereign immunity to all federal employees. This law, the Federal Employees Liability Reform
and Tort Compensation Act (i.e., the Westfall Act), amended the FTCA to provide that “[t]he
 No. 19-6347 Does v. Haaland, et al. Page 7

remedy against the United States provided [in the FTCA] . . . is exclusive of any other civil
action or proceeding for money damages by reason of the same subject matter against the
employee whose act or omission gave rise to the claim or against the estate of such employee.”
28 U.S.C. § 2679(b)(1) (emphasis added); see also Levin v. United States, 568 U.S. 503, 509
(2013) (holding that the Westfall Act “makes the remedy against the United States under the
FTCA exclusive for torts committed by federal employees acting within the scope of their
employment”).

“Under the Act, the United States shall be substituted for the employee as a defendant in
any common law tort action initiated against an employee if the employee was acting within the
scope of employment.” Henson v. Nat’l Aeronautics & Space Admin., 14 F.3d 1143, 1147 (6th
Cir. 1994). Moreover, as interpreted by the Supreme Court, the Westfall Act immunizes
individual federal employees even where the FTCA bars a suit against the United States as well.
Smith, 499 U.S. at 166; see also Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995)
(“If . . . an exception to the FTCA shields the United States from suit, the plaintiff may be left
without a tort action against any party.”).

A. Applicability of the Westfall Act to Members of Congress

To prevail, Defendants must demonstrate that members of Congress are protected by the
Westfall Act. They must first show that Congressmembers are “employee[s] of the
Government.” 28 U.S.C. § 2679(b)(1). Plaintiffs contend that “there is zero evidence the
Westfall Act was about Congressmembers at all.” Appellants’ Reply Br. at 6–7.

Although we have not yet considered this issue, the First Circuit has squarely held that
members of Congress are government employees for purposes of the FTCA. Operation Rescue
Nat’l v. United States, 147 F.3d 68, 70–71 (1st Cir. 1998). The Fifth Circuit has reached the
same conclusion. See Williams v. United States, 71 F.3d 502, 505 (5th Cir. 1995) (“A Member of
Congress who holds an office in the U.S. House of Representatives is clearly an employee or
officer of the legislative branch of the federal government.”). We agree with our sister circuits.

The plain text of the FTCA, as amended by the Westfall Act, compels this interpretation.
The statute provides that “‘[e]mployee of the government’ includes . . . officers or employees of
 No. 19-6347 Does v. Haaland, et al. Page 8

any federal agency.” 28 U.S.C. § 2671. “[T]he term ‘Federal agency’ includes the executive
departments, the judicial and legislative branches,” and other governmental entities. Id. And the
Supreme Court held in Lamar v. United States, 241 U.S. 103, 111–12 (1916), that a
Representative is “an officer acting under the authority of the United States” for purposes of a
criminal statute that punishes individuals who “falsely assume or pretend to be an officer or
employee acting under the authority of the United States.” This was based on several factors,
including common dictionary definitions of the term “officer,” historical evidence that
Representatives have been consistently considered “legislative officers” or “civil officer[s],” and
prior state and federal precedent indicating as much. Id. at 113; see also, e.g., The Ku Klux
Cases, 110 U.S. 651, 664 (1884) (“[T]he constitution . . . created the office of member of
congress.”). We see no reason why the term “officers” in the Westfall Act should be construed
more narrowly than the same term in the statute at issue in Lamar, especially because the
Westfall Act specifically expands sovereign immunity to the entire legislative branch.

Moreover, while contemporary legislative history from the passage of the Westfall Act
does not directly address this question, as the First Circuit queried “[w]hy would Congressmen
vote to exclude themselves from a universal grant of immunity given to all others; to all
employees below them; to all officers, up to the president, above them?” Operation Rescue
Nat’l, 147 F.3d at 70–71; see also id. at 71 (“If the Westfall Act clearly and carefully intended to
exclude Congressmen from the FTCA’s otherwise universal benefits, would there not have been,
at the least, some Congressmen who would have remonstrated?”); Williams, 71 F.3d at 505
(“If Congress intended to exclude Members of Congress from the protection of the FTCA, it
could have expressly done so within the language of the Act.”). We agree that it is highly
unlikely that Congress would exclude itself, sub silentio, from such a broad grant of immunity.
This conclusion, coupled with the unambiguous text of the statute, makes clear that members of
Congress—Representatives and Senators alike—enjoy the benefits of the FTCA as amended by
the Westfall Act.

B. Scope of Employment

We turn now to the central question presented by this appeal: whether Senator Warren
and Representative Haaland were acting within the “scope of [their] office or employment” when
 No. 19-6347 Does v. Haaland, et al. Page 9

they sent the allegedly defamatory tweets. 28 U.S.C. § 2679(b)(1). If they were, then they are
entitled to the protections of the Westfall Act.2

For purposes of the Westfall Act, “whether the federal employee was acting within the
scope of his or her employment, is governed by the agency law of the forum state.” Dolan v.
United States, 514 F.3d 587, 593 (6th Cir. 2008); see also Henson, 14 F.3d at 1147
(“A determination of whether an employee was acting within the scope of employment is a
question of law, not fact, made in accordance with the law of the state where the conduct
occurred.”)

In the present case, the forum state is Kentucky and the conduct—i.e., the allegedly
defamatory tweets—occurred in Kentucky because Plaintiffs live in Kentucky and the tweets
were accessible in that state. See Williams, 71 F.3d at 506 (finding Texas law governed scope-
of-employment inquiry even though allegedly defamatory interview occurred in Washington,
D.C., because plaintiff was domiciled in Texas and because the interview broadcast occurred in
Texas, “[t]hus, the alleged defamation . . . and any resulting harm essentially took place in the
State of Texas”); Shrader v. Biddinger, 633 F.3d 1235, 1240 (10th Cir. 2011) (observing that “in
a sense, the internet operates ‘in’ every state regardless of where the user is physically located”).
We therefore apply Kentucky law to determine whether Defendants were acting within the scope
of their employment.3 Additionally, Plaintiffs only contend that Kentucky law applies.

2
Plaintiffs emphasize that neither Senator Warren nor Representative Haaland have received certification
from the Attorney General (“AG”) that their conduct was within the scope of their employment. See Gutierrez de
Martinez v. Lamagno, 515 U.S. 417, 420 (1995) (observing that the Westfall Act “empowers the Attorney General
to certify that the employee ‘was acting within the scope of his office or employment at the time of the incident out
of which the claim arose’” and that “[u]pon certification, the employee is dismissed from the action and the United
States is substituted as defendant” (quoting 28 U.S.C. § 2679(d)(1))).
It does not appear from the record that either Defendant sought AG certification prior to filing their motion
to dismiss under the Westfall Act. Regardless, Plaintiffs do not suggest that this failure to seek AG certification
precludes Defendants from prevailing on their theory of sovereign immunity. Instead, all Plaintiffs request is that
we not defer to the district court’s independent finding that Defendants were within the scope of their employment.
See 28 U.S.C. § 2679(d)(3) (empowering district courts to “to find and certify that the employee was acting within
the scope of his office or employment” upon motion of the employee). But Plaintiffs are already receiving the most
favorable standard of review they can ask for on appeal because our review of the district court’s order to dismiss
for lack of subject matter jurisdiction is de novo.
3
This conclusion of course has no bearing on whether Defendants have sufficient contacts with Kentucky
to confer personal jurisdiction on the court. In the context of electronic communications that inquiry examines
factors beyond where, strictly speaking, the communication is accessible. See Shrader, 633 F.3d at 1240 (“[I]t is
 No. 19-6347 Does v. Haaland, et al. Page 10

If Plaintiffs cannot demonstrate that Defendants’ conduct was outside their scope of employment
as understood by Kentucky law, then Plaintiffs cannot prevail in this appeal.

Kentucky law focuses on an employee’s motive to determine whether she was acting
within the scope of her employment when committing intentional torts, including libel. The
Kentucky Supreme Court has held that an employee acts within the scope of his employment
when his “purpose, however misguided, is wholly or in part to further the master’s business.”
Patterson v. Blair, 172 S.W.3d 361, 369 (Ky. 2005) (quoting W. Page Keeton et al., Prosser and
Keeton on the Law of Torts 500, 505 (5th ed. 1984)). In Patterson v. Blair, the court concluded
that an employee who shot the tires on the plaintiff’s truck while attempting to repossess it for
his employer was acting within the scope of his employment. Id. at 372 (“Clearly, in
confronting [plaintiff] and shooting out the truck’s tires, [the employee] was acting to further the
business interests of [his employer]. At the very least, his conduct was at least incidental to the
conduct that was authorized by [the employer].”); see also Osborne v. Payne, 31 S.W.3d 911,
915 (Ky. 2000) (“[T]o be within the scope of its employment, the conduct must be of the same
general nature as that authorized or incidental to the conduct authorized.”). In Osborne v. Payne,
the Kentucky Supreme Court found that a priest who engaged in adultery with a married woman
whom he was counseling was not acting within the scope of his employment. 31 S.W.3d at 915.
This “abuse by the priest of his position . . . exceeds the scope of his employment” because it
was “beyond question that Osborne was not advancing any cause of the diocese or engaging in
behavior appropriate to the normal scope of his employment.” Id.

Neither Kentucky courts nor this Court have decided whether statements such as those at
issue—unsolicited comments by elected officials on an event of widespread public interest—are
within the “scope of employment” of members of Congress. However, out-of-circuit precedent
involving situations closely aligned to the facts of this case strongly supports finding that these
tweets were within the scope of Defendants’ employment as officers of the United States.

necessary to adapt the analysis of personal jurisdiction to this unique circumstance [of electronic communications]
by placing emphasis on the internet user or site intentionally directing his/her/its activity or operation at the forum
state rather than just having the activity or operation accessible there.”). We do not reach the question of personal
jurisdiction in this case, however, because “expedition and sensitivity to state courts’ coequal stature should impel
the federal court to dispose of [subject matter jurisdiction] first.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
587–88 (1999).
 No. 19-6347 Does v. Haaland, et al. Page 11

In Operation Rescue National v. United States, the First Circuit found that Senator Ted
Kennedy was protected by the Westfall Act when, in the course of responding to a reporter’s
question pertaining to a bill he was sponsoring that addressed access to women’s health clinics,
he said that anti-abortion organizations like the plaintiff had a “national policy [of] firebombing
and even murder.” 147 F.3d at 69 (alteration in original). Although the plaintiff did not appeal
the district court’s finding that Senator Kennedy was acting within the scope of his employment
when he made the remarks, the First Circuit affirmed the district court’s reasoning “[i]n all
respects.” Id. at 71. The district court applied Massachusetts law, as the comments were made
in Senator Kennedy’s home state. Operation Rescue Nat’l v. United States, 975 F. Supp. 92, 106
(D. Mass. 1997). Similar to Kentucky, Massachusetts law looks to see if the employee was
authorized to engage in the conduct complained of and whether she was acting in the interests of
her employer to determine whether the employee was acting in the scope of her employment. Id.
The district court found, in relevant part, that because “Senator Kennedy was providing political
leadership and a basis for voters to judge his performance in office—two activities that public
officials are expected, and should be encouraged, to perform,” his comments were within the
scope of employment. Id. at 108. In this sense, the Senator’s employer was his constituents and
he served them by fully informing them of his views and working to pass legislation he believed
would benefit them.

Moreover, in Williams v. United States, the Fifth Circuit determined whether
Congressman Jack Brooks’ allegedly defamatory statements about a lobbyist and his firm were
within the scope of his employment under Texas’ vicarious liability regime, which, like
Kentucky’s, focuses on whether the employee was authorized to perform the action complained
of and whether it furthered her employer’s interests. 71 F.3d at 506. Congressman Brooks made
the statements in a press interview about Congress’ appropriation of certain federal monies,
including funding for the restoration of a battleship in Texas which the lobbyist had advocated
for. Id. at 504 & n.1. The court held that the statements were made in the scope of Congressman
Brooks’ employment because “a primary obligation of a Member of Congress in a representative
democracy is to serve and respond to his or her constituents.” Id. at 507. His statements,
including the allegedly defamatory ones, were made in performance of his duty to “inform[]
constituents and the public at large of issues being considered by Congress.” Id. Consequently,
 No. 19-6347 Does v. Haaland, et al. Page 12

the court held that the Westfall Act granted Congressman Brooks immunity from the lobbyist’s
defamation suit. Id.

Additionally, in Council on American Islamic Relations v. Ballenger, the D.C. Circuit
found that a Congressman’s comments to the press on his pending separation from his wife were
within the scope of his employment because “[a] Member’s ability to do his job as a legislator
effectively is tied, as in this case, to the Member’s relationship with the public and in particular
his constituents and colleagues in the Congress.” 444 F.3d 659, 665 (D.C. Cir. 2006). By
commenting on his private life, the Congressman was seeking to maintain his constituents’ trust
in him and thereby discharge his legislative responsibilities more effectively. Id. at 665–66.

In the present case, the articles shared by Senator Warren and Representative Haaland
discussed an interview in which Nathan Phillips recollected hearing chants of “[b]uild that wall”
emanating from the crowd of students. This reasonably relates the political subtext of the
incident to President Trump’s well-known campaign promise to build a border wall with Mexico.
As Senator Warren observes, the border wall was at the time of the incident—January 2019—the
“subject of extensive debate” in Congress, surrounding both the partial government shutdown
and pending legislation. Sen. Warren’s Br. at 23 (citing Fund and Complete the Border Wall
Act, H.R. 85, 116th Cong. (introduced Jan. 3, 2019); Border Wall Trust Fund Act, H.R. 200,
116th Cong. (introduced Jan. 3, 2019)).

This context aligns their tweets with Senator Kennedy’s comments in Operation Rescue
and Congressman Brooks’ statements in Williams: each comment constituted a condemnation of
a political adversary’s public acts. Senator Warren and Representative Haaland were criticizing
supporters of President Trump, in part, for their alleged deployment of a topical and polarizing
political issue (i.e., the border wall) in their purported harassment of Phillips. Senator Kennedy
was criticizing an organization at odds with the goals of his bill and Congressman Brooks was
criticizing a lobbyist in connection with Congressional appropriations. In each case, the
allegedly defamatory statements were made in the context of informing constituents of the
Congressmembers’ views and as part of their advocacy—whether for or against—current
legislation. If anything, Senator Kennedy’s allegations of domestic terrorism and murder were
closer to the outer bounds of his scope of employment than Senator Warren’s and Representative
 No. 19-6347 Does v. Haaland, et al. Page 13

Haaland’s less inflammatory tweets. Defendants were reasonably connecting Plaintiffs’ rhetoric
and clothing to President Trump in order to comment on an event that had received widespread
press attention and that resonated with the pressing issue of funding for the border wall.

Plaintiffs respond that the Operation Rescue National, Williams, and Ballenger cases
hinged on the statements at issue being “in response to press inquiries, and notably not ‘made
gratuitously’ to serve personal political interests.” See Appellants’ Br. at 28 (citing Operation
Rescue Nat’l, 975 F. Supp. at 108). However, it is the act of communicating one’s views to
constituents and not the manner of communication that justifies application of the Westfall Act.
That is, Defendants’ statements are protected whether they are freestanding or made in response
to a press inquiry. Indeed, Plaintiffs cannot point to language in the case law that suggests
speech is only within the scope of a Congressmember’s employment when that speech is in
response to an interview question. Instead, the statements at issue in Operation Rescue National,
Williams, and Ballenger were protected because the media interviews facilitated the kind of
communication with constituents and the general public that the courts held to be within the
scope of employment.

Far from being gratuitous, these tweets fit within the “wide range of legitimate ‘errands’
performed for constituents,” which includes “preparing so-called ‘news letters’ to constituents,
news releases, and speeches delivered outside the Congress.” Brewster, 408 U.S. at 512.4
Senator Warren and Representative Haaland sought to oppose the President and his legislative
goals by putting on record their opposition to Plaintiffs’ actions. Although the foregoing cases
examining whether similar statements were protected by the Westfall Act largely preceded the
advent of Twitter, social media websites are the “modern public square,” Packingham v. North
Carolina, 137 S. Ct. 1730, 1737 (2017). There is no meaningful difference between tweets and
the other kinds of public communications between an elected official and their constituents that
have been held to be within the scope-of-employment under the Westfall Act.

4
Although the Supreme Court held that these “errands” are not protected by the Speech and Debate Clause
because “they are political in nature rather than legislative,” Brewster, 408 U.S. at 512, the Westfall Act protects
more conduct than the Speech and Debate Clause. Cases like Williams and Ballenger illustrate that the Westfall Act
extends to these sorts of “political” activities because they are integral to a Congressmember’s duties to
communicate with their constituents and publicly discuss political matters.
 No. 19-6347 Does v. Haaland, et al. Page 14

With this understanding of the scope of a Congressmember’s employment and how
tweets can fit into her duties, we return to Kentucky law. Applying that law, it is clear that the
tweets were made in furtherance of the interests of Defendants’ employers. See Patterson,
172 S.W.3d at 369. They were calculated to serve the interests of Defendants’ constituents (i.e.,
employers) by informing them of Defendants’ views regarding a topical issue and related
legislation. This was accomplished through considerably more appropriate and commonplace
means—messages sent via Twitter—than the attempted repossession via handgun in Patterson.
Yet the Patterson court still found that firing a gun at a delinquent purchaser’s car was within the
scope of his employment because the violent conduct was at least incidental to his authorized
work. Id. at 372. The nexus between Defendants’ tweets and their constituents’ interests in
understanding their views is considerably greater than that.

Moreover, unlike the priest in Osborne, Plaintiffs were “engaging in behavior appropriate
to the normal scope of [their] employment.” 31 S.W.3d at 915. Congressmembers routinely
broadcast their views on pending legislation and related current events through press releases,
televised speeches, interviews, and, as in the present case, through social media postings.
Defendants’ statements were made within the scope of their employment. Therefore, the United
States was properly substituted as Defendant in this case and the district court correctly
dismissed Senator Warren and Representative Haaland from the suit. That the United States has
not waived its immunity to libel suits is of no moment. See Gutierrez de Martinez, 515 U.S. at
420 (“If . . . an exception to the FTCA shields the United States from suit, the plaintiff may be
left without a tort action against any party.”). Plaintiffs may wish to pursue their claims for relief
against the remaining Defendants in state court.

CONCLUSION

For the reasons provided above, we AFFIRM the district court’s order.