E. Jean Carroll v. Donald J. Trump, 49 F.4th 759

E. Jean Carroll publicly accused Donald J. Trump of sexual assault from an incident in the mid‑1990s; a June 2019 New York Magazine excerpt publicized the allegation.
Trump, then President, issued multiple public denials and disparaging statements about Carroll’s credibility; Carroll sued Trump in New York State Supreme Court for defamation.
The DOJ intervened, certified under the Westfall Act that Trump acted within the scope of his office, and removed the case to federal court seeking substitution of the United States as defendant.
The District Court denied substitution on two independent grounds: (1) the President is not an “employee of the Government” under the Westfall Act/FTCA definition, and (2) Trump’s statements were outside the scope of employment.
The Second Circuit reversed the first ground (holding the President is an FTCA/Wes tfall Act employee), vacated the district court’s scope determination, and certified the scope‑of‑employment question to the D.C. Court of Appeals; Judge Chin dissented and Judge Calabresi concurred separately.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the President is an “employee of the Government” under the FTCA/Westfall Act	Carroll: §2671’s examples ("executive departments") refer to Cabinet‑level agencies; President is not an officer/employee of an executive department, so not covered	Trump/Govt: §2671 uses "includes" (illustrative); ordinary and statutory usage—plus FTCA purpose—support treating the President as a government employee	Court: Reversed district court; President qualifies as an employee under the Westfall Act/FTCA (statutory "includes" is illustrative; ordinary meaning and context support coverage)
Whether Trump’s denials and disparaging statements were within the scope of his employment as President	Carroll: Statements were personal, defamatory, and unrelated to official presidential duties; outside scope	Trump/Govt: Public responses to allegations are part of presidential duties/public communications and thus within scope	Court: District court’s ruling that statements were outside scope vacated; scope question is uncertain under D.C. law and CERTIFIED to the D.C. Court of Appeals for resolution

Westfall v. Erwin, 484 U.S. 292 (1988) (Supreme Court decision prompting Congress to enact the Westfall Act)
Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995) (Attorney General’s scope certification is judicially reviewable but conclusive for removal)
Osborn v. Haley, 549 U.S. 225 (2007) (Attorney General’s certification is dispositive for removal jurisdiction)
Nixon v. Fitzgerald, 457 U.S. 731 (1982) (President has absolute immunity from damages for official acts)
Levin v. United States, 568 U.S. 503 (2013) (FTCA covers a broad class of federal employees)
Franklin v. Massachusetts, 505 U.S. 788 (1992) (heightened caution before applying statutes to the President without express statement)
Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27 (D.C. 1979) (D.C. Court of Appeals discussion on scope of employment for intentional torts)
Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976) (internalization rationale supporting vicarious liability under D.C. law)
Boykin v. Dist. of Columbia, 484 A.2d 560 (D.C. 1984) (D.C. Court of Appeals limiting vicarious liability where actor’s conduct was solely personal)
Council on Am.-Islamic Rels. v. Ballenger, 444 F.3d 659 (D.C. Cir. 2006) (D.C. Circuit case treating public‑official press statements as within scope of employment)