66 F.4th 91
2d Cir.2023Background:
- E. Jean Carroll sued Donald J. Trump in New York for defamation based on public statements he made as President denying her 1990s sexual-assault allegations and attacking her credibility and appearance.
- The U.S. Attorney General certified under the Westfall Act that Trump acted within the scope of his office; the government sought substitution of the United States as defendant and removal to federal court.
- The Southern District of New York denied substitution, holding the President is not an "employee" under the Westfall Act and alternatively that the statements were not within the scope of employment.
- On appeal, a Second Circuit panel (Carroll I) held the President is an "employee" under the Westfall Act but expressed uncertainty about the applicable District of Columbia respondeat superior standard for scope-of-employment determinations and certified a question to the D.C. Court of Appeals.
- The D.C. Court of Appeals declined to decide whether the President was acting within the scope of his employment (a factbound question) but clarified that D.C. adheres to Restatement (Second) of Agency §228 framework, is not an "internalization" jurisdiction, and rejects a categorical rule that elected officials’ press statements are always within scope.
- The Second Circuit remanded to the district court for further proceedings consistent with the D.C. Court of Appeals’ guidance.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the President is an "employee" under the Westfall Act | Carroll: Westfall substitution inappropriate; President not treated as an "employee" for absolute federal immunity | Trump/U.S.: President qualifies as a federal "employee" under the Westfall Act, enabling substitution | Second Circuit (Carroll I): President is an "employee" under the Westfall Act |
| Which respondeat superior standard governs under D.C. law | Carroll: Apply narrower traditional test requiring intent to benefit employer or similar limiting principle | Trump/U.S.: Broader standard could cover risks of official activity, including public denials | D.C. Court of Appeals: D.C. follows Restatement (Second) §228 (factbound §228(1)(a)-(d) and §228(2)); not an "internalization" jurisdiction |
| Whether elected officials’ public statements to press are categorically within scope | Carroll: Statements denying past misconduct are personal and outside scope | Trump/U.S.: Statements in official capacity or on matters implicating office could be within scope | D.C. Court of Appeals: Rejects categorical rule (e.g., Ballenger overbroad); scope is factbound |
| Whether the D.C. Court of Appeals should decide if Trump’s statements were within scope | Carroll: Court should resolve legal standard and apply it to these facts | Trump/U.S.: Court should resolve both standard and application to protect federal interests | D.C. Court of Appeals: Declined to resolve factual scope question; left factual determination to factfinder; Second Circuit remanded for proceedings consistent with guidance |
Key Cases Cited
- Carroll v. Trump, 49 F.4th 759 (2d Cir. 2022) (prior panel holding President is an employee under the Westfall Act)
- Carroll v. Trump, 498 F. Supp. 3d 422 (S.D.N.Y. 2020) (district court denied substitution and found statements outside scope)
- Companhia Brasileira Carbureto de Calicio v. Applied Indus. Materials Corp., 640 F.3d 369 (D.C. Cir. 2011) (circuit may certify unsettled D.C. law questions of public importance)
- Council on American-Islamic Relations v. Ballenger, 444 F.3d 659 (D.C. Cir. 2006) (discussed in relation to whether officials’ public statements are categorically within scope)