292 A.3d 220
D.C.2023Background
- In June–July 2019 E. Jean Carroll publicly alleged that Donald J. Trump sexually assaulted her in the 1990s; Trump issued several public denials and critical statements.
- Carroll sued for defamation; the U.S. (via the Attorney General) invoked the Westfall Act, certifying that Trump was acting within the scope of his federal employment and moving to substitute the United States as sole defendant.
- Substitution would bar recovery for defamation because the FTCA preserves sovereign immunity for libel/slander. Carroll opposed certification, arguing (1) the President is not an employee under the Westfall Act and (2) Trump’s statements were outside the scope of employment.
- The Southern District of New York denied substitution; the Second Circuit held Trump was an employee for Westfall purposes and certified a question to the D.C. Court of Appeals about D.C. respondeat superior law and whether the President’s statements were within the scope of employment.
- The D.C. Court of Appeals (en banc) clarified that D.C. follows the Restatement (Second) of Agency § 228 framework (with some expansions), explained how its precedents treat foreseeability, motive, timing, and “too little actuated,” and declined to decide on the record whether the President’s statements were within the scope of employment (leaving that factbound question to the Second Circuit/trier of fact).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable test for scope of employment | D.C. law should not adopt a broad internalization rule; use Restatement §228 traditional test | Broad allocation of employer liability may be justified for some torts | D.C. adopts Restatement (Second) §228(1)(a)-(d) and §228(2) as its framework, but applies some concepts more expansively (not an internalization jurisdiction) |
| Whether President’s public denials were within scope of employment | Carroll: statements denying alleged pre-term misconduct were personal, not within scope | U.S./Trump: statements were made in official capacity and served presidential duties; thus within scope | Whether the President acted within scope is a fact question for the factfinder; court declines to resolve it on the record before it |
| Whether Ballenger creates a categorical rule that elected officials’ press statements are per se within scope | Carroll: Ballenger should not make press statements automatically within scope | U.S.: Ballenger supports broader protection for elected officials in communications with press | Court rejects a categorical reading of Ballenger; Ballenger turned on undisputed record evidence of an official purpose and is not a per se rule |
| How to assess motive, foreseeability, timing, and quantum of employer purpose | Carroll: limit scope—require the tortious act itself be intended to benefit employer; contest expansive readings | U.S.: favor broader inferences that employee’s duties and context can bring statements within scope | Court clarifies: foreseeability may be used for intentional torts; employer liability requires employee was actuated "at least in part" to serve employer, but factfinder may find conduct "too little actuated" to impose liability; timing is broad—factfinder may consider moments before/after the act; these are fact-intensive inquiries |
Key Cases Cited
- Moseley v. Second New St. Paul Baptist Church, 534 A.2d 346 (D.C. 1987) (adopted Restatement §228’s definition of scope of employment)
- District of Columbia v. Davis, 386 A.2d 1195 (D.C. 1978) (early endorsement of Restatement scope-of-employment approach)
- Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27 (D.C. 1979) (foreseeability and "outgrowth of a job-related controversy" analysis)
- Johnson v. Weinberg, 434 A.2d 404 (D.C. 1981) (quoting §228 and discussing scope elements)
- Blair v. District of Columbia, 190 A.3d 212 (D.C. 2018) (recent articulation of the "at least in part" motive standard and factbound scope inquiry)
- Council on American-Islamic Relations v. Ballenger, 444 F.3d 659 (D.C. Cir. 2006) (Congressman’s press statements found within scope based on undisputed record of official purpose; not a categorical rule)
- Carroll v. Trump, 49 F.4th 759 (2d Cir. 2022) (Second Circuit certified question to D.C. Court of Appeals)
- Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995) (Attorney General’s Westfall certification is judicially reviewable)