Some confusion has arisen about the standard for determining whether the Westfall Act requires dismissal of Rep. Mo Brooks (R-AL) as a defendant in a civil tort suit brought by Rep. Eric Swalwell (D-CA) for Brooks’ actions relating to the Jan. 6 civil unrest at the Capitol. The standard is simple and direct – was Congressman Brooks acting within the scope of his employment at the time?
The Westfall Act provides that if a federal employee is sued in her individual capacity for a tort committed while acting within the scope of employment, “the United States shall be substituted as the party defendant” and the employee will be dismissed from the case. The question whether a person is a federal employee is a matter of federal law. Many decisions have held that members of Congress are federal employees. The decision whether to certify that an employee was acting within the scope of employment is initially made by the Attorney General but may be reviewed by the courts. The test for that decision is provided by the scope of employment law of the place where the act took place.
Prior to 1988 many federal courts and virtually all federal employees believed that federal employees had absolute immunity from being sued for any tort they committed while doing their jobs – an injured citizen’s remedy was to sue the United States under the Federal Tort Claims Act. In 1988 the Supreme Court upset the applecart when it decided in Westfall v. Erwin that “absolute immunity does not shield official functions from state-law tort liability unless the challenged conduct is  within the outer perimeter of an official’s duties and  is discretionary in nature.” The decision meant that there was no immunity unless the challenged act involved the exercise of discretion. Federal employees suddenly became vulnerable to suit and massive liability if their jobs did not involve exercising governmental discretion – jobs such as flying airplanes, performing surgery, or teaching children. There was a great deal of concern. Perhaps anticipating some outcry, the Westfall opinion noted that, “Congress is in the best position to provide guidance for the complex and often highly empirical inquiry into whether absolute immunity is warranted in a particular context.” Adding an extra nudge, the Court said, “Legislated standards governing the immunity of federal employees involved in state-law tort actions would be useful.”
Federal employees and Congress took the hint. Within a year Congress passed the Westfall Act to cancel the Westfall case. As Justice Ginsburg explained in Gutierrez De Martinez v. Lamagno (1995), “Congress reacted quickly to delete the ‘discretionary function’ requirement, finding it an unwarranted judicial imposition, one that had ‘created an immediate crisis involving the prospect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce’” (quoting a House Report). The issue for determining federal employee immunity narrowed to whether the employee’s negligent or wrongful action was taken within the scope of employment. As Justice Ginsburg put it in Lamagno, Congress “wanted the employee’s personal immunity to turn on that question alone.”
Under the Westfall Act whether a federal employee is acting within the scope of employment is decided by looking to the law of the place where the act took place. Every jurisdiction in the country has a well-developed jurisprudence on scope of employment because this is the issue that determines whether an employer is responsible for paying damages to people injured by the torts of its employees. While the law varies from state to state, generally an employee is acting within scope if the underlying conduct – not the allegedly tortious specific act – was the kind of conduct the employee was hired to perform or incidental to that conduct. An employee whose job requires driving is within the scope if she takes a short detour to buy gas, but not if she goes on a frolic to another city. An employee is not outside the scope of employment simply because she disregards direct orders – otherwise, employers could avoid liability by directing their employees to always act safely. Nor is an employee outside the scope because she commits a heinous or criminal act while on the job – which is why banks are liable if tellers steal from depositors, and universities and athletic federations are liable for sexual abuse committed by physicians hired to treat young athletes.
The decision whether the Westfall Act requires dismissal of Representative Brooks in the Swalwell case turns on one question – was the congressman acting within the scope of his employment when he gave a speech on the Mall on Jan. 6? This is the test Congress set when it passed the Westfall Act. It is a straight-forward legal question that is answered by applying the scope of employment jurisprudence of the District of Columbia. Other considerations — such as protecting governmental discretion, punishing employees for bad behavior, or improving the likelihood of successful prosecutions in related cases — are irrelevant.
While every case must be decided on its own merits, two decisions by the D.C. Circuit applying D.C. scope of employment law in Westfall Act cases involving members of Congress provide some guidance. In both Wuterich v. Murtha (2009) and Council on American Islamic Relations [CAIR] v. Ballenger (2006), the court explained that the proper test is whether the underlying conduct, not the tortious act – “was the kind of conduct [the Congressman] was employed to perform.” In Murtha the court reversed a district court order denying a Westfall Act certification that Congressman Murtha was acting within the scope of employment when he made allegedly defamatory remarks in a series of media interviews about the role of a U.S. Marine’s squad in the deaths of Iraqi civilians. The court explained, “Congressman Murtha’s alleged attempts to discredit Defense Secretary Rumsfeld’s management of the war in Iraq … were directly tied to his congressional political agenda and thus cannot support a claim that the Congressman acted outside the scope of his employment.” In Ballenger, the court affirmed the Westfall Act certification that Representative Ballinger was acting within scope of employment when, in the course of an interview about his marital status, he stated that CAIR was the “fund-raising arm for Hezbollah.” The court recognized a “clear nexus between the congressman answering a reporter’s question about the congressman’s personal life and the congressman’s ability to carry out his representative responsibilities effectively.” It should be noted that the D.C. Circuit’s interpretation of D.C. scope of employment law in Murtha and Ballinger was rejected in Carroll v. Trump (2020), the New York district court decision that held President Trump was not acting within the scope of employment when he told the press that Ms. Carrol had made up the story that he had raped her in the 1990s.
The court deciding Rep. Brook’s certification is likely to follow the Murtha and Ballenger understanding of D.C. scope of employment law.