That quote actually seems to be lifted from p.2 the 29-page response opposing the petition to substitute the US as defendant, namely
THE UNITED STATES’ RESPONSE TO DEFENDANT MO BROOKS’S PETITION TO CERTIFY
HE WAS ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT
Case 1:21-cv-00586-APM Document 33 Filed 07/27/21
The full para where that appears (and the next two ones):
The record indicates that Brooks’s appearance at the January 6 rally was campaign
activity, and it is no part of the business of the United States to pick sides among candidates in
federal elections. Members of Congress are subject to a host of restrictions that carefully
distinguish between their official functions, on the one hand, and campaign functions, on the
other. The conduct at issue here thus is not the kind a Member of Congress holds office to
perform, or substantially within the authorized time and space limits, as required by governing
law. See Restatement (Second) of Agency § 228(1)(a), (b). Indeed, although the scope of
employment related to the duties of a Member of Congress is undoubtedly broad and there are
some activities that cannot be neatly cleaved into official and personal categories, Brooks’s
request for certification and substitution of the United States for campaign-related conduct
appears to be unprecedented. And in a variety of contexts involving state and local elected
officials, courts have routinely rejected claims that campaigning and electioneering activities fall
within the scope of official employment. Brooks thus has not sustained his burden of
demonstrating that his conduct at the January 6 rally was undertaken in his official capacity.
In addition, the Complaint alleges that Brooks engaged in conduct that, if proven, would
plainly fall outside the scope of employment for an officer or employee of the United States:
conspiring to prevent the lawful certification of the 2020 election and to injure Members of Congress and inciting the riot at the Capitol. Alleged action to attack Congress and disrupt its
official functions is not conduct a Member of Congress is employed to perform and is not
“actuated . . . by a purpose to serve” the employer, as required by District of Columbia law to fall
within the scope of employment. Restatement (Second) of Agency § 228(1)(c). Thus, if the
Court were to reject our argument that the campaign nature of the January 6 rally resolves the
certification question, the Court should not certify that Brooks was acting within the scope of his
office or employment unless it concludes that he did not engage in the conspiracy and incitement
alleged in the Complaint.
Finally, the Court should deny the petition as to Counts 1 and 2 of the Complaint because
they are not subject to the Westfall Act at all. Those claims seek to recover for alleged violations
of 42 U.S.C. §§ 1985 and 1986, and the Westfall Act does not reach claims based on “a violation
of a statute of the United States.” 28 U.S.C. § 2679(b)(2)(B).
That's basically the summary; after that it moves to "background" of the events. Regarding the meat of the legal basis for denying the petition they further say:
District of Columbia scope-of-employment law.
In considering scope-of-employment issues under the Westfall Act, the D.C. Circuit
applies the respondeat superior principles of the jurisdiction “where the employment
relationship exists.” Allaithi v. Rumsfeld, 753 F.3d 1327, 1330 (D.C. Cir. 2014) (quoting Majano
v. United States, 469 F.3d 138, 141 (D.C. Cir. 2006)). Here, Brooks’s employment relationship
with the United States exists in the District of Columbia (which is also where the alleged tortious conduct occurred, see Compl. ¶¶ 105-09). The District of Columbia follows § 228 of the
Restatement (Second) of Agency, which provides:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not
unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind
from that authorized, far beyond the authorized time or space limits, or too little
actuated by a purpose to serve the master.
Restatement (Second) of Agency § 228 (1958) (“Restatement”); see Wilson, 535 F.3d at 711;
Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 663 (D.C. Cir. 2006).
The District of Columbia scope test is an “an objective one, based on all the facts and
circumstances.” Wilson, 535 F.3d at 711 (quotation omitted). Because the test under § 228(1) is
framed in the conjunctive, all four elements of § 228(1) must be satisfied for a court to conclude
that an employee acted within the scope of his office or employment. See Ballenger, 444 F.3d at 663.
And on the facts, the quoted bit actually appears again, in slightly different wording, followed by a lot of caselaw and some House manuals:
Members of Congress are subject to extensive restrictions that carefully distinguish
between official functions and unofficial activity, including electioneering and campaign efforts.
It is undisputed that Brooks addressed the crowd at the January 6 rally. See Brooks Aff. 18–21.
And Brooks does not dispute Plaintiff’s allegations that the rally “was funded and organized by
[the Trump] campaign and groups supporting [then-President Trump’s] candidacy.” Compl.
¶ 14. Nor does he dispute Plaintiff’s allegations that the purpose of the rally was to advocate that Donald Trump should be declared the winner of the 2020 election. Indeed, Brooks states in his
petition that his conduct was “primarily motivated by” his “desire to represent the will of” his
constituents “who overwhelmingly preferred that Donald J. Trump serve as President.” Pet. 7.
And he further describes his actions as intended to influence the 2022 and 2024 elections. See,
e.g., Brooks Aff. 13 (“I am talking about ‘kicking ass’ in the 2022 and 2024 ELECTIONS!”).
Brooks thus has not met his burden to show that his activities at the January 6 rally were within a
Representative’s scope of employment related to his official duties. [...]
This understanding that the scope of federal office excludes campaign activity is broadly
reflected in numerous authorities. This Court, for example, emphasized “the basic principle that
government funds should not be spent to help incumbents gain reelection” in holding that House
or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v.
Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges
for official communications but not unofficial communications).
The current House Ethics Manual confirms that the official business of Members of the
House does not include seeking election or reelection for themselves or others. House resources generally cannot be used for campaign purposes, and Members’ staff may engage in campaign
work only “on their own time and outside the congressional office.” House Ethics Manual,
Committee on Standards of Official Conduct, 110th Cong., 2d Sess., at 121 (2008). For instance,
Representatives cannot conduct campaign activities from House buildings or offices or use
official letterhead or insignia, and congressional staff on official time should terminate
interviews that focus on campaign issues. See id. at 127–29, 133. Of direct relevance here, a
Member of Congress also cannot use official resources to engage in presidential campaigns:
“[T]he general prohibition against campaign or political use of official resources applies not only
to any Member campaign for re-election, but rather to any campaign or political undertaking,”
and this “prohibition applies to, for example, campaigns for the Presidency.” Id. at 124; see
Lofgren Letter 2.
Chairperson Lofgren states that the House adheres to this distinction in setting forth
ethics rules that distinguish between a Member’s official duties and conduct that must instead be
deemed unofficial. Thus, she explains, “standards of conduct that apply to Members and
precedents of the House are clear that campaign activity is outside the scope of official duties
and not a permissible use of official resources.” Lofgren Letter 4; id. at 2 (campaign activity is
“not permissible official activity” for Members). And “[o]fficial resources of the House must, as
a general rule, be used for the performance of official business of the House, and hence those
resources may not be used for campaign or political purposes.” Id. at 2 (quoting H. Comm. on
Ethics, General Prohibition Against Using Official Resources for Campaign or Political
Purposes, https://ethics.house.gov/campaign/general-prohibition-against-using-officialresources-campaign-or-political-purposes).
The House requires Members to determine whether their activities are official or
campaign-related. In using House funds, Members must distinguish their functions: “Is the
primary purpose for the expenditure official and representational? Or is it primarily related to
personal, campaign-related political party, campaign or committee activities?” Members’
Congressional Handbook, 116th Cong. (Nov. 6, 2020). Members have in the past been
admonished that political campaign speeches were not within their official duties. For instance,
when a Member delivered two speeches regarding winning over women voters for the benefit of
Republican candidates in future elections, the House Committee on Ethics found those speeches
to be unofficial “campaign and political activities” notwithstanding the Member’s view that the
speeches were “official.” House Comm. on Ethics, In the Matter of Allegations Relating To
Representative Cathy McMorris Rodgers 28–29, 43 (Dec. 19, 2019) (Rodgers Report). The
Committee reached that conclusion even though those two speeches were not delivered at
campaign events favoring a particular candidate.
These distinctions “are based largely on a common sense understanding of the political
and official activities” of federal officials, grounded in longstanding democratic norms. Payment
of Expenses Associated with Travel by the President and Vice President, 6 Op. O.L.C. 4 (1984)
(“Payment of Travel Expenses”). Thus, “[a]ppearing at party functions, fundraising, and
campaigning for specific candidates are the principal examples . . . which should be considered
political,” and not part of “official duties.” Id. at 4; see Gallant v. NLRB, 26 F.3d 168, 172 (D.C.
Cir. 1994) (holding that creating letters for purpose of “retaining [official’s] job” rested on
“purely personal objective” and were personal, not agency, records).
The same fundamental distinction between official duties and electioneering activity is
also reflected in decisions applying state respondeat superior law. In cases involving state and
local officials, courts around the country have repeatedly rejected claims that campaign activities
fall within the scope of employment. The Supreme Court of Hawaii, for example, held that a
city employee was not acting within the scope of his office or employment when he “delivered
[a] speech as a political candidate” because “[h]is candidacy was not part of his job” and he was
required “to conduct his campaign separate from his [official] duties.” Mehau v. Reed, 869 P.2d
1320, 1332–33 (Haw. 1994); see Williams v. Gorton, 529 F.2d 668, 672 (9th Cir. 1976) (holding
in absolute-immunity context that even speech relating to “official activity” could be “shown to
be purely electioneering in a private capacity” due to the campaign context). Other decisions
likewise recognize that the scope of an elected official’s employment does not extend to
“personal ventures such as electioneering, campaigning or fund raising meetings to pay off
campaign debts,” because “[t]hose activities are undertaken for the sole benefit of the elected
official.” Ennis v. Crenca, 587 A.2d 485, 490 (Md. 1991) (concluding that local legislator’s
actions were “similar to electioneering activities and not to those activities of a legislator
furthering the county’s business”); see, e.g., Glacken v. Incorporated Vill. of Freeport, 2014 WL
1836143, at *6 (E.D.N.Y. May 8, 2014) (finding incumbent mayor’s conduct outside scope as to
“speech [that] occurred while he was campaigning for re-election at a Candidates Forum”); Dean
v. American Fed’n of Gov’t Emps., Loc. 476, 509 F. Supp. 2d 39, 58–59 (D.D.C. 2007) (applying D.C. respondeat superior law and finding incumbent union president acted outside scope
because his “allegedly defamatory e-mail in response to an email from a Local member
specifically opposing his re-election in the upcoming Local election” was sent “in his capacity as
an individual candidate for re-election” to a union office); Anderson v. City of Inkster, 2014 WL
3747545, at *2 (Mich Ct. App. July 29, 2014) (holding that “the campaign activities of an
incumbent judge” running for reelection are “not within the scope of employment” because the
effort “to further her reelection campaign” had to be characterized as “an individual interest, not
an interest of the court”).
To be sure, the rally on January 6 differed from a typical campaign rally because it
occurred two months after Election Day. But participating at a post-election rally that is paid for
by a political campaign or its supporters, and that is concededly directed toward affecting the
electoral outcome of a presidential election on behalf of a specific candidate or garnering support
for the next election, is no less an electioneering or campaign activity. See Rodgers Report 28–29. Just like pre-Election Day efforts to affect the voting outcome of an election in favor of a
particular candidate, post-Election Day efforts on behalf of a candidate to affect the outcome of
an election in favor of that candidate are electioneering or campaign activities and thus not
within the scope of a Member’s office or employment.
[...] Brooks offers only one reason
why his participation at the January 6 rally would fall within scope. In his view, his conduct
occurred “in the context of and in preparation for Congressional votes on January 6, 2021,”
which concerned the certification of the Electoral College votes cast for the presidential
candidates. Pet. 41. Brooks asserts that his conduct during the incidents alleged in the
Complaint was related to his duty to vote on “whether to accept or reject the electoral college
vote submittals of various states.” Pet. 41; see, e.g., Brooks Aff. ¶¶ 9, 11–12, 16–17, 21, 24–26,
28, 34–35, 37, 39–45, 47–49, 53-55. That is, Brooks argues that he participated in the January 6
rally in connection with his duty to participate in the certification of the presidential election.
But Brooks has not established that he was acting within the scope of his office or
employment relating to participation in the certification of the electoral votes when participating
in the January 6 rally. The Constitution requires the counting of votes for presidential candidates
before the Senate and the House of Representatives, U.S. Const. amend. XII, and a federal
statute prescribes a procedure for those bodies to assemble in the House Chamber to certify the
votes (and to lodge objections), 3 U.S.C. § 15. This is no doubt a solemn duty of a member of
Congress.
Brooks’s contentions, however, do not establish that his electioneering or campaign
activities were within the scope of his office or employment relating to that role. Political
campaigns and electioneering activity routinely address actions that candidates have taken or will
take in their official capacities, such as voting on legislation. But the fact that such partisan
campaign activities discuss a candidate’s official duties does not mean that those activities
themselves are official duties or are within the scope of his office or employment that are
properly regarded as incidental to those duties. See, e.g., Mehau, 869 P.2d at 1333 (observing
that city employee’s “speech pertained to organized crime,” but concluding that it fell outside the
scope of his employment in the prosecutor’s office because he “delivered the speech as a
political candidate”); Glacken, 2014 WL 1836143, at *6 (holding that incumbent’s speech in
response to question about pending legal action against the Village where he was mayor was
outside the scope of his employment because it occurred while he was “campaigning for reelection”). So too here.
Brooks asserts that his conduct was within the scope of his office or employment because
his vote was based on the fact that his “constituents overwhelmingly supported Donald Trump in
the 2020 General Election.” Pet. 4; see also Brooks Aff. ¶ 9. It may be presumed that Members are representing their constituents when they vote. But Brooks’s logic goes too far. Under his
view, it is not clear what limit there would be to his legislative functions; so long as he could
point to some desire on some part of his constituency, any purely electioneering or campaign
activity would fall within the scope of his office or employment and require the United States to
bear responsibility for any alleged tortious conduct. Activities incidental to the duty to vote,
such as garnering support from colleagues or the public, do not include expressive activity at a
campaign rally in support of a particular candidate, “however deeply [the legislator] felt that his
vote was the right thing to do,” and however deeply the legislator felt that his constituents
supported the vote. Nevada Comm’n on Ethics v. Carrigan, 564 U.S. 117, 127 (2011). And
addressing an electioneering rally is not a “direct outgrowth” or “an integral part” of the
certification process established in 3 U.S.C. § 15. Penn Cent. Transp. Co. v. Reddick, 398 A.2d
27, 32 (D.C. 1979).
Brooks also cites a number of decisions of the D.C. Circuit and other courts that have
found defamatory comments by Members of Congress to be within the scope of those Members’
employment. See Pet. 35-41. But none of those decisions involved a Member’s direct
involvement in electioneering or campaign activity at a campaign event organized to affect an
electoral outcome. Instead, each case involved some incidental political purpose that arose out
of the kind of conduct the Member was employed to perform. See, e.g., Ballenger, 444 F.3d at
664 (finding within scope remarks about personal life during press interview); Does 1-10 v Haaland, 973 F.3d 591, 602 (6th Cir. 2020) (finding within scope social-media posts that sought
to “oppose the President and his legislative goals by putting on record their opposition”);
Wuterich v. Murtha, 562 F.3d 375, 379 (D.C. Cir. 2009) (finding within scope congressman’s
allegedly defamatory comments made in media interviews, and noting that a declaration had
been provided by the defendant’s office confirming that the “interviews were not campaign
related”); Williams v. United States, 71 F.3d 502 (5th Cir. 1995) (finding in scope remarks about
another individual’s lobbying fees during press interview regarding naval warship).
Indeed, Brooks’s reliance on Operation Rescue underscores the relevant distinctions. In
that case, the district court held that Senator Ted Kennedy had acted within the scope of his
office or employment when he made comments to the media about a bill he was supporting in
the Senate. 975 F. Supp. at 108. Although the plaintiff had argued that the comments fell
outside the scope of employment of a Senator because they were made during a fundraising
event, the court found as a matter of undisputed fact that the comments “were not made
gratuitously in Senator Kennedy’s speech at the fundraising event” but rather occurred only after
that event. Id. (emphasis added). Brooks’s conduct at candidate Trump’s political rally bears no
similarity to the facts at issue in the cases Brooks cites.
So, if I'm allowed my own commentary, it appears that the DOJ is trying to walk the fine line between statements to the press, which generally were covered by Westfall caselaw and speeches at campaign [type] rallies.
Regarding "the other leg" of the denial (that the court should first decide whether Brooks was acting against his employer's interests when he allegedly directed the crowd to the Capitol) they only cite one case basically:
Cf. Osborn v. Haley, 549 U.S. 225, 252 (2007) (recognizing that scope-of employment questions may overlap substantially with the merits of a tort claim).
Now since you also mentioned "representation", the Office of General Counsel of the House of Representatives has refused to be involved... because the lawsuit opposes two members of the House (in their individual capacity).
Further case files here: https://www.courtlistener.com/docket/59707490/swalwell-v-trump/
