E. Jean Carroll v. Donald J. Trump

20-3977 (L)
E. Jean Carroll v. Donald J. Trump
In the
United States Court of Appeals
For the Second Circuit
August Term, 2021
Docket Nos. 20-3977-cv (L), 20-3978-cv (Con)
E. JEAN CARROLL,
Plaintiff-Appellee,
v.
DONALD J. TRUMP , IN HIS PERSONAL CAPACITY ,
Defendant-Appellant,
U NITED S TATES OF AMERICA
Movant-Appellant.
On Appeal from the United States District Court for the Southern
District of New York.
A RGUED: D ECEMBER 3, 2021
DECIDED: A PRIL 21, 2023
Before: CALABRESI, C HIN, and NARDINI, Circuit Judges.

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Defendant-Appellant Donald J. Trump and Movant-
Appellant the United States of America appeal from a
judgment of the United States District Court for the Southern
District of New York (Kaplan, Judge) denying their motion to
substitute the United States in this action pursuant to the
Westfall Act of 1988. In our prior opinion, we vacated the
district court’s judgment that Trump did not act within the
scope of his employment, and we certified to the D.C. Court of
Appeals the following question: Under the laws of the District,
were the allegedly libelous public statements made, during his
term in office, by the President of the United States, denying
allegations of misconduct, with regards to events prior to that
term of office, within the scope of his employment as President
of the United States? The D.C. Court of Appeals reformulated
our certified question in two parts, asking (1) whether the D.C.
Court of Appeals should opine on the scope of the President of
the United States’ employment, and (2) how the court might
clarify or modify the District of Columbia’s law of respondeat
superior to resolve the issue in this appeal. The D.C. Court of
Appeals answered the former part in the negative and
provided additional guidance in response to the latter. Having
vacated the district court’s judgment in our prior opinion, we
REMAND for further proceedings consistent with the guidance
provided in the D.C. Court of Appeals’ opinion.
MARK R. F REEMAN, Appellate Staff Civil
Division, U.S. Department of Justice (Mark
B. Stern and Joshua M. Salzman, Appellate
Staff Civil Division, U.S. Department of
Justice, on the brief), for Jennifer B. Dickey,

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Acting Assistant Attorney General, for
Movant-Appellant United States of America.
A LINA H ABBA, Habba Madaio & Associates
LLP, Bedminster, NJ (Marc Kasowitz,
Christine A. Montenegro, Paul J. Burgo,
Kasowitz Benson Torres LLP, New York,
NY, on the brief), for Defendant-Appellant
Donald J. Trump.
JOSHUA A. MATZ , Kaplan Hecker & Fink,
LLP, New York, NY (Roberta A. Kaplan,
Raymond P. Tolentino, Kaplan Hecker &
Fink, LLP, New York, NY, Leah Litman,
Ann Arbor, MI, on the brief), for Plaintiff-
Appellee E. Jean Carroll.
Zoe Salzman, Emery Celli Brinckerhoff
Abady Ward & Maazel LLP, New York, NY,
for Amici Curiae The Rape, Abuse & Incest
National Network (RAINN); Time’s Up
Foundation; Legal Momentum, The Women’s
Legal Defense and Education Fund; The
National Alliance to End Sexual Violence; The
National Center for Victims of Crime (NCVC);
The New York City Alliance Against Sexual
Assault; and Safe Horizon.

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PER C URIAM :
As explained more fully in our prior opinion, see Carroll v.
Trump, 49 F.4th 759 (2d Cir. 2022) (“Carroll I”), familiarity with which
we assume, this case requires us to determine whether, under the
Federal Employees Liability Reform and Tort Compensation Act of
1988 (the “Westfall Act”), 28 U.S.C. § 2679 et seq., the President of the
United States is eligible for absolute immunity from personal liability
for alleged tortious conduct while on the job. In 2019, when
Defendant-Appellant Donald J. Trump was President of the United
States, Plaintiff-Appellee E. Jean Carroll publicly accused him of
sexual assault and rape, which she alleged occurred in the mid-1990s.
Trump responded to Carroll’s accusations with a series of public
statements, which, per Carroll’s complaint, not only denied her
allegations but also accused her of making false statements about him
and insulted her personal appearance. Carroll sued Trump in New

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York State Supreme Court, alleging that his public statements were
defamatory under New York law.
The Attorney General of the United States, through a delegate,
intervened in the suit and certified that Trump acted “within the
scope of his office as President of the United States” when he made
the public statements denying Carroll’s allegations. App’x at 15.
Pursuant to the Westfall Act, that certification meant that Carroll’s
claim would be “deemed an action against the United States” and that
the United States would be “substituted as the party defendant.” 28
U.S.C. § 2679(d)(1). Accordingly, the government removed the case
to the United States District Court for the Southern District of New
York and moved to substitute the United States for Trump. The
District Court (Kaplan, Judge) denied the motion to substitute,
holding that the President is not an “employee of the Government”
under the Westfall Act, and, in the alternative, that Trump did not act
within the scope of his employment when he allegedly defamed

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Carroll. Carroll v. Trump, 498 F. Supp. 3d 422, 443, 457 (S.D.N.Y. 2020).
The government and Trump appealed from that judgment.
Under the Westfall Act and the circumstances of this case,
substitution by the United States is warranted and absolute immunity
for the President applies only if (1) the President is an “employee of
the Government” and (2) the tortious conduct alleged was within the
scope of the President’s employment. 28 U.S.C. § 2679(b)(1). As to
the first prong, we held in our prior opinion, with one member of the
panel dissenting, that the President is an employee of the government
under the Westfall Act. Carroll I, 49 F.4th at 772; see id. at 789 (Chin,
J., dissenting). But we expressed our uncertainty on the second prong
because the law governing the scope of employment inquiry—
District of Columbia respondeat superior law—seemed to oscillate
between two different doctrinal frameworks: a narrow, more
traditional view, requiring evidence that an intentional tort benefit, or
be for the purpose of benefiting, the employer, and a broader, more

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modern view, which would treat any intentional tort fairly
considered to be a part of the risks of an employer’s activity as falling
within the scope of employment. Id. at 774-75, 780.
Because of our uncertainty and the public significance of the
underlying issue, see, e.g., Companhia Brasileira Carbureto de Calicio v.
Applied Indus. Materials Corp., 640 F.3d 369, 373 (D.C. Cir. 2011) (noting
that the D.C. Circuit has certified questions to the D.C. Court of
Appeals “when District of Columbia law is genuinely uncertain and
the question is of extreme public importance” (internal quotation
marks omitted)), we certified the following question to the D.C. Court
of Appeals, subject to the recognition that the court could reformulate
the question as it deemed appropriate:
Under the laws of the District, were the allegedly libelous
public statements made, during his term in office, by the
President of the United States, denying allegations of
misconduct, with regards to events prior to that term of
office, within the scope of his employment as President
of the United States?

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Carroll I, 49 F.4th at 781. The D.C. Court of Appeals graciously
accepted our certified question and reframed the inquiry into two
parts. The first part asked whether the D.C. Court of Appeals “should
opine” on “the scope of the President of the United States’
employment.” Trump v. Carroll, — A.3d —, 2023 WL 2920882, at *1
(D.C. Apr. 13, 2023) (quoting Order Accepting Certified Question at
2, Trump v. Carroll, No. 22-SP-745 (Oct. 25, 2022)). The second part
considered how the D.C. Court of Appeals might “clarify or modify”
District of Columbia respondeat superior law “to help resolve the
present dispute.” Id.
We will allow the D.C. Court of Appeals’ detailed and
thorough response to our certified question to speak for itself, but, in
short, that court answered the first part of its reformulated question—
whether it should opine on the President’s scope of employment—in
the negative. It reasoned that “whether the President of the United
States was acting within the scope of his employment is a question for

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the factfinder,” id. at *2, and declined to address such a “factbound
question” at this stage of the proceedings, id. at *1. The D.C. Court of
Appeals provided further guidance in response to the second part of
its reformulated question. Specifically, it clarified that the District of
Columbia “generally adheres to the Restatement (Second) of
Agency’s statement of respondeat superior law as expressed in § 228”
and “has adopted the framework as set forth in § 228(1)(a)-(d) and
§ 228(2).” Id. The court also stated that the District of Columbia “is
not an ‘internalization’ jurisdiction,” id.—that is, a jurisdiction that
“hold[s] employers liable for all torts fairly regarded as risks of their
business,” id. at *5. Additionally, it declined to adopt a categorical
reading of Council on American Islamic Relations v. Ballenger, 444 F.3d
659 (D.C. Cir. 2006). Id. at *1. Such a reading “would hold that the
conduct of elected officials speaking to the press is always within the
scope of that official’s employment,” but the District of Columbia
instead “adhere[s] to a fact-bound inquiry to determine whether the

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conduct of an employee is within the scope of employment.” Id. at
*14.
Having vacated in our prior opinion the District Court’s
judgment that Trump did not act within the scope of his employment,
Carroll I, 49 F.4th at 761, we now REMAND to the district court for
further proceedings consistent with the detailed guidance provided
by the D.C. Court of Appeals. The Clerk is directed to issue the
mandate forthwith.

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