951 F.3d 503
D.C. Cir.2020Background
- Cork Wine Bar (K&D, LLC) sued President Donald J. Trump and Trump International Hotel in D.C. Superior Court alleging unfair competition under D.C. common law, claiming the Hotel gained an unfair advantage after Trump became President.
- Cork alleged customers (lobbyists, advocates, diplomats) preferred the Hotel because of a perception that patronage would yield favorable treatment from the Trump Administration.
- Cork sought declaratory and injunctive relief and conceded at argument that its claim depends entirely on Trump’s status as President.
- Trump removed the case to federal court under 28 U.S.C. § 1442(a)(1) (federal officer removal); the district court denied remand and dismissed Cork’s complaint under Rule 12(b)(6).
- On appeal the D.C. Circuit held removal was proper (President raised a colorable federal defense and the suit related to acts under color of office) but affirmed dismissal because D.C. common law does not recognize Cork’s prominence-based unfair-competition theory.
- The D.C. Circuit declined to certify the novel question to the D.C. Court of Appeals, finding controlling D.C. precedents provided a discernible path.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was removal under 28 U.S.C. § 1442(a)(1) proper? | Removal improper; state-law tort, no federal officer removal. | Removal proper because suit implicates acts tied to President's federal office and raises federal defenses. | Removal proper: defendant met colorable-defense and nexus requirements. |
| Did President raise a colorable federal defense? | No federal defense presented. | Supremacy Clause bars local rules that condition lawful federal officeholding; also asserted presidential immunity. | Yes: Supremacy-Clause/Johnson-based defense is colorable; court did not decide immunity. |
| Did the suit “relate to” acts under color of office (nexus)? | The complaint targets private business conduct, not an official act. | The claim depends on Trump’s status as President; that status caused the alleged competitive advantage. | Nexus satisfied: liability derives from officer’s official status, so removal statute applies. |
| Does Cork state a D.C. common-law unfair-competition claim? | Hotel’s advantage from presidential association is actionable unfair competition. | District law does not treat prominence-aided business success as unlawful unfair competition. | Dismissed: D.C. common law does not recognize Cork’s theory; dismissal affirmed. |
Key Cases Cited
- Jefferson Cty. v. Acker, 527 U.S. 423 (Supreme Court) (tests for federal-officer removal and nexus inquiry)
- Willingham v. Morgan, 395 U.S. 402 (Supreme Court) (federal defense need only be colorable for removal)
- Watson v. Philip Morris Cos., 551 U.S. 142 (Supreme Court) (statute construed liberally in favor of removal)
- Johnson v. Maryland, 254 U.S. 51 (Supreme Court) (state regulation cannot control federal officers acting under federal law)
- Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826 (Supreme Court) (well-pleaded-complaint rule)
- Ray v. Proxmire, 581 F.2d 998 (D.C. Cir.) (prominence-aided success is not unlawful unfair competition)
- B & W Mgmt., Inc. v. Tasea Inv. Co., 451 A.2d 879 (D.C. Ct. App.) (examples of recognized unfair-competition species under D.C. law)
- Tidler v. Eli Lilly & Co., 851 F.2d 418 (D.C. Cir.) (federal courts must apply forum common law as it presently stands)