in this particular context several facts are pertinent at this pleading stage of the case i represent a group of minor children kids from can having to in kentucky who were defamed by the two defendants leading to their doctoring leading to threats to dismissal from their school the nile admissions to college and ultimately death threats that require them to take extraordinary private security action the senator warren major did not make  statements in the senate to the senate or at the senate nor were statements concerning any matter pending before the senate either legislation or hearing or investigation nor were senator warner's comments in response to any press inquiry or about herself personally in the same capacity congresswoman howland also like senator warren sued in her personal capacity not her official capacity also made did not make her statements about the plaine either in the house of representatives to the house of representatives or at the house of representatives nor was it not a speech and debate clause case why would it be unusual for congress to exempt itself from any that's what i believe is unique here is that the scope and scale of the immunity determined by the district court was not limited to official duties or legislative duties it basically made it so that congress was saying we're now personally immune from are sort of part of their aardvark or their of their duties minutes kind of hard to draw the line and when where where would you draw the line of when those those duties and and something is no longer covered by the a yes you legislative process and it was noted was that informing the public is not part of the legislative process so they said the end particular this related to the decision they had made in the gravel case that's that's that's hard to believe i mean certainly members of congress and this is what they do have social media so they do it more frequently but that that's a pretty fair critical feature of their job i suppose there's maybe there's not much public or legislative interest in them and the matter that happened in washington and living with lincoln memorial i could see drawing the line there that that that this this matter really has nothing to do policy or legislative business or election honor in fact the only decision cited by the defendants for interpreting the westfall act as expanding immunity involves a usually response to a press inquiry about a matter of either proposed legislation pending legislation  a investigative hearing concerning legislation or something about the congressman personally that related to their reelection and was concerned of concerns of their constituents in this particular context that is not what happened the statement wasn't limited to constituents it wasn't concerning pending or proposed legislation it was it concerning the congress person personally and even the operation rescue case which was the st case to make the sort of expansive interpretation of these being out of circuit cases  related to this circuit noted that if if if the statements by senator kennedy had been were too is that there was not a response or press inquiry and make purely for or had a personal motivation for personal enhanced than the statement like would not have been subject to it here that's where i think there has to be some limits if there's no limits that essentially election the congress gives a degree of personal immunity that no act has previously done in addition in that capacity or in that context we have also the kentucky law that the district court did not fully address which a deal which dealt with it which was consistent to this court's decision in coleman which outlined the scope of  relating to where the statement was made when the statement was made whether it furthered the purpose of the employer in this context in kentucky of particular aside from generally saying that should be a scope of duty should be a jury question and it noted that if it was to advance a personal interest if the statements had a motive that deviated from the official interest of the employer then it was and it was an intentional tort then there was no longer within the scope of the duty for those purposes that corresponds to the logic  court as well as to the operation rescue decision which says we have to evaluate motive that's often going to be a jury question at least a discovery question and that was the other reason we believe that the case should some people may have been wearing hats that had a political affiliation to them is a discussion of public policy matters so why isn't that sweet this into something that touches upon legislative legislative issues or something of something touching public policy that you'd expect a member of congress to be about well two parts there your honor one is i see that more as a summary judgment question and other words if they could show that the issue concerned some matter of pending legislation or proposed legislation and that was their nexus was to tie them to the wall and that's was the motivation for the person's statements and then they might be able to prevail the summary judgment stage on the immunity question the scope question but not at this preliminary stage where our allegation is that it totally concerns private matters of private citizens and this case might have children from kentucky that was about attacking them personally and denying them the benefits of things like public the ago is to deny them actively college admissions and terms of the social media lynch mob summary judgment state but it's our contention that they were making statements about his private citizens concern to people in touch with the purpose the motive not to impact any degree of legislation but rather to hurt these individuals and to elevate themselves personally in terms of celebrity reputation presidential campaign maybe in the case of a senator warner but not for the purpose of any proposed or pending  quanta behalf of senator elizabeth warren i will address the grounds for dismissal below including sovereign immunity and the federal tort claims act and counsel for congressman holland can or will address the highlights a fundamental flaw and the john tows argument the question was whether this is a speech or a cause case and the answer is of course it is not the case in the district court's order was driven by the statutory language it's clear st of all that the act applies to members of congress even before looking at the definition of employer i'll point out that of all of the courts that have actually considered the application of are cases speaks to the facts i think a number of cases and the fact although the cases obviously involve different factual scenarios right thing all of the cases demonstrate that the that the nex between the allegedly defamatory statement and the scope of employment is not necessarily one that has to arise from legislative duties on the house or senate floor so so if we look at regarding marital separation and in discussing his marital separation he allegedly made the family heard statements about counsel for american islamic relations now the nexus that the district c circuit through in that case was that his ability to explain his mental separation allowed him to become more effective or allow him to preserve them as affective in that at the legislator because those are issues that situates would be concerned about and if we look at the spectrum of cases in which courts have found members of congress are acting within their scope of employment this case actually comes much closer native american elder of course the phrase build a wall implicates a specific policy relating to the construction of a border wall along the southern border of the united states and that's the sick policy had been before congress and had been disputed have been a source of the paper quite a while specifically with respect to the funding of the wall so it's not unexpected nor is it unusual that a member of congress will weigh in on on individual video in which native native american elders acute the students of chance to build a wall and then the two senator warren street stated that the elder nathan phillips endured hateful seen their ability to remain effective notwithstanding that we fully accept that at some point the court is going to have to define the boundary between what's within the scope of employment and what's not and and the immunity cannot be limitless we set that however this is not the case to defined a boundary because the conduct alleged here even within the scope of plants allocation the john those allegations squarely within the sphere of conduct and the scope employment of a member of congress you not only have the bill the wall references which implicate all these you also have the alleged harassment of a native american elder and it's no secret that congressman holland and senator elizabeth warren have been intimately and deeply involved in issues relating to native american records and have legislation sponsored legislation on those issues as well so we have issues that are directly related to the interests of their constituents and that are directly acting in his personal interests what if what plainness obligation is here is to identify or present allegations to show that this is outside the scope of their employment and they are not under their being different i mean to the point you made about and and if if the plaintiffs cannot demonstrate based on their allegation that they are their claims fall within an exception to the f c c a or their claims are not covered by the westfall i and the don't necessarily think it always goes that far i think i think what would be missing from from such a hypothetical is the nexus between communication and the and  legislators scope employment so i don't think it's necessarily the case that every single tweet about an issue that maybe if interest to the public is covered i'm unique but i think it's a case that when if you say so this bill the wall is this is that the sec to your position is it dependent on the fact that they supposedly said that i think you also have the native american elder and the harassment native american element which also implicates their legislative agenda as well but if you take out those two issues and  you and you simply take out the the making in america great again hats you take out the bill to all take out the harappan of the native american elder i think you have a different taste and that would require a different analysis of the surrounding facts in the nexus there but it's difficult as we sit here to see what would be left of that tweet if you take out all of those different elements so if to let's say legislators were tweeting about what happened in buffalo or what's happening anywhere is that protected i think it can be i think and it depends on the nature of the tweet and it depends on which letters which officials are are posting so you know without additional facts for the hypothetical i'll give alg added an example if there was a tweet that the gentleman in buffalo was a was planted there for instance what that by itself constitutes a communication it's protected by the westfall act based on those facts alone i don't necessarily think it would i think what's missing what would be missing from that hypothetical is the nex again tween the claim against that individual and and the scope of employment and in this case i think what we have done is we have demonstrated that nexus because it is clear from the this even from plaintiffs complaint even from the john doe's complaint that there is a nexus between the scope of employment of legislators and the acts that were that were at issue here now again there is a fine line to be drawn so that this immunity does not become limitless and that is something that a court and this court even may be called upon to do it but this case is not as many to draw that line because especially building a wall in the southern border the harassment of native american elder that is formed the basis of this report and that's evident from the from the face of the complaint and draw in that order and that distinction between limitless immunity and the scope of employment is an issue that that is not just not drive and lastly before i turn it over to to mr hanna i just want to also point out that the fact that there may have been some personal motivation here matthew numerous courts of recognize that their personal motivations and the scope of employment of a legislator are not subject and the separation such that it is not unusual for a legislator member of congress to believe that congresswoman deborah holland of the st congressional district of new mexico briefly to piggyback on mr unwanted arguments congressman honda agrees with senator warner legal arguments on sovereign immunity which apply equally to congresswoman hahn one of the k i've been having problems throughout so please jump in if i'm choppy as i was saying is an indicator in our brief she made these comments within the scope of her office as an elected member of congress and she is therefore immune from john doe's suit and i would like to pick up on a question that just regular asked about the difference between qualified immunity and absolute immunity under the westfall act this was discussed by the d c circuit in merthyr at page three hundred and eighty six and supreme court in more important for a court to deal with immunity issues as soon as possible lest the protections of the immunity dissipate without courts considering the issue unless the court has further questions about that topic i'd like to briefly acts because congresswoman holmes tweets which do not mention kentucky name any kentucky resident referred to conduct that took place in kentucky or call on kentucky instigate any action are her only relevant connection to the in the long term statute and if the answer is yes nd whether the exercising jurisdiction would offend the defendant's better all due process rights this nd step is not necessary if a plane of cannot st show that the long arm statute has been satisfied the long arm statute imposes a stricter jurisdictional limitation than the federal due process clause here john doe's of filler step one of the celsius their complaint includes no allegations that congresswoman holland has traveled to kentucky operate a business in kentucky drive revenue from business activity in kentucky own property there are undertakes any regular activity there nor does the complaint alleged correct your honor which might be sufficient under the long arm statute if she also conducted business in kentucky or undertook regular activity there but if in a situation like this where a defendant has no other connection than the allegedly injurious act that's not enough to satisfy kentucky's  allegation here is consistent with the calder case but it goes beyond that the allegation is that each of the defendants made statements directed at kentucky and two can were sent to kentucky and your twitter page you can limit who you communicate to if you want they chose not to they had many kentucky followers of them communicated about kentucky and directing in a kentucky noting that the where they were from is referenced in the article the attachment of the tweet and call for bad things to happen to them is relevant right directly in kentucky so it's not just a matter causing back to kentucky it's according to allegations of the like it's intending to cause those effects and under both in the hockey law and and that's consistent with also if you cross your roads that's way to think of it as a come across the state line and i take iraq and i throw it across the state line and i hurt somebody in that process i don't get to say well no i was standing on the tennessee border when i said that  in kentucky or secondly as to the issues the big core issues of the the big question that as the westfall act applies and an almost a limitless manner and the way the district court effectively forced it there th at page three hundred and nine they discuss this in detail that when there's a question about personal motives when the whether a person deviated from their legacy and their official purpose in this case the legislative purpose in any level then that is that and it's an senator kennedy was not made gratuitously it was made in response to a press inquiry for people who are going to report back as constituents and it did concern a matter of proposed legislation the key question is so i want to see the same question so if it's  legislators were tweeting about what's going on all over the country or those tweets covered or not know your our position is just because it's a matter of public interest that they may be discussed and we're here we're alleging that just was not a matter of public interest but even if it was a matter of public interest that is not sufficient to give them immunity it still needs to be have a nexus to a legislative purpose so for if it's about pending legislation proposed legislation so for example aspects of the george floyd case are those federal pending legislation concerns so their commentary makes sense the buffalo case i think would be trickier i think if they introducing a bill and conquerors well my view your honor is that the proxmire gravel set of decisions for determining scope of duty in the speech and debate clause context provides our best guidance and so i would i would go further than that i would not say that just introducing legislation would be sufficient and then if if the statement did not have a nexus to true legislative purpose so it's my own view now i think as a practical matter under the current interpretation of the statute that they they likely could immune immunize themselves simply by proposing legislation that's why i believe the proxmire set of decisions by the u s supreme court with the gravel decision and that's consistent with how they interpret the west all they interpret the westfall as just restoring the immunity that previously existed not expanded and they go to that question that it would raise constitutional questions here by for example we don't even have the attorney general certifying this was within the scope of the duty that's a unique factor about this case they didn't even request it they didn't even ask the court to determine it as a rule because they knew the attorney general would say it's not within the scope of the duty but that particular decorative check on the process was not employed here and i think is also part of a factor but in the proposed legislation concerning my bribery on june nd two thousand and nine i think not i think that the proxmire line of logic that really needs to be related to a legitimate legislative purpose is the meaningful limit we have to have for scope of if no other state supreme court applying it scope of duty in a legislative context like the laser to succeed in montana they similarly said it needs to be connected to a legislative duty statement made on the legislative floor a statement made in the capacity of true legislation if there was a personal motive going back to the blair supreme court decision like the facts narrow your honour's describing they would not be immune because they have a personal motive that deviates from the legislative purpose and as an