E. JEAN CARROLL v. DONALD J. TRUMP, IN HIS PERSONAL CAPACITY; UNITED STATES OF AMERICA
Docket Nos. 20-3977-cv (L), 20-3978-cv (Con)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
September 27, 2022
August Term 2021
(Argued: December 3, 2021)
Before: CALABRESI, CHIN, and NARDINI, Circuit Judges.
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, J.) denying their motion to substitute the United States in this action pursuant to the Westfall Act of 1988. On appeal, appellants argue that substitution is warranted because the President of the United States is a covered government employee under the Westfall Act, and because Trump had acted within the scope of his employment when he made the allegedly defamatory statements denying Plaintiff-Appellee E. Jean Carroll‘s 2019 sexual assault allegations.
We REVERSE the District Court‘s holding that the President of the United States is not an employee of the government under the Westfall Act. And we VACATE the District Court‘s judgment that Trump did not act within the scope of his employment, and CERTIFY that question to the D.C. Court of Appeals.
Judge Calabresi concurs in a separate opinion, and Judge Chin dissents in a separate opinion.
MARK R. FREEMAN, 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, Acting Assistant Attorney General, for Movant-Appellant United States of America.
ALINA HABBA, 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.
When an employee of the federal government is sued for tortious conduct that happens on the job, the employee is generally entitled to absolute immunity from personal liability under the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the “Westfall Act“). See
This case requires us to determine whether the President of the United States is eligible for this form of absolute immunity. In 2019, Plaintiff-Appellee E. Jean Carroll publicly accused Defendant-Appellant Donald J. Trump of sexual assault and rape, which, on her account, occurred at some point in the mid-1990s. At the time these allegations were made, Trump was President of the United States. In response to the accusations, Trump made a series of public statements, which not only denied the allegations but also questioned Carroll‘s credibility and assertedly demeaned her personal appearance.
Carroll then filed a tort suit against Trump in New York State Supreme Court, alleging that his public statements were defamatory under New York law. After some proceedings, the Attorney General of the United States, through his delegate, intervened in the suit and certified that Trump was entitled to substitution under the Westfall Act because he was a government employee acting within the scope of his employment when he made the public statements at issue. On the basis of this certification, the case was removed to the United States District Court for the Southern District of New York.
In due course, the District Court (Kaplan, J.) denied the motion to substitute the United States for Trump. It held that the President is not an employee of the government as that term is used in the Westfall Act. In the alternative, it held that even if the President were a Westfall Act covered employee, Trump had not acted within the scope of his employment when he allegedly defamed Carroll. For these reasons, the District Court denied the substitution motion. The Government and Trump appealed.
We reverse the District Court‘s holding that the President of the United States is not an employee of the government under the Westfall Act. And we vacate the District Court‘s judgment that Trump did not act within the scope of his employment, and certify that question to the D.C. Court of Appeals.
I
A
According to the complaint, the events precipitating this lawsuit occurred one evening nearly thirty years ago (between the fall of 1995 and spring of 1996) when Carroll unexpectedly encountered Trump at a department store in Manhattan. During this time, Carroll had worked as an advice columnist who regularly appeared on television. As a result, Trump immediately recognized and greeted Carroll. He then requested her assistance in picking out a gift for another woman who was not with him that evening. Carroll agreed to help, and accordingly, the two began to look for an appropriate gift. Their search led them to the lingerie section of the department store.
At the lingerie section, Trump picked out a bodysuit and proceeded to engage in banter with Carroll about trying it on. This exchange continued for a short while until, suddenly, Trump “maneuvered” her to a nearby dressing room under the pretext of making her try on the bodysuit. Once inside the dressing room, still according to the complaint, Trump sexually assaulted and raped Carroll. According to Carroll, the assault lasted for several minutes, before she was able to repel Trump and flee the department store. Immediately following these events, Carroll purportedly told two close friends of the assault. But she did not otherwise disclose the incident, nor
B
Some 24 years later, Carroll decided to go public with her allegations. For several years, she had been working on a book about 21 men who had left ugly marks on her life. One of the men featured in the book was Trump. On June 21, 2019, before the book‘s official release, New York Magazine published a pre-publication excerpt which detailed Carroll‘s sexual assault allegations against Trump.
At the time of this disclosure, Trump was President of the United States. In response to the allegations, Trump issued a series of public statements, which this action claims were defamatory.
First, hours after Carroll‘s allegations had been released, Trump issued the following statement denying the incident:
Statement from President Donald J. Trump:
Regarding the ‘story’ by E. Jean Carroll, claiming she once encountered me at Bergdorf Goodman 23 years ago. I‘ve never met this person in my life. She is trying to sell a new book—that should indicate her motivation. It should be sold in the fiction section.
Shame on those who make up false stories of assault to try to get publicity for themselves, or sell a book, or carry out a political agenda—like Julie Swetnick who falsely accused Justice Brett Kavanaugh. It‘s just as bad for people to believe it, particularly when there is zero evidence. Worse still for a dying publication to try to prop itself up by peddling fake news—it‘s an epidemic.
Ms. Carroll & New York Magazine: No pictures? No surveillance? No video? No reports? No sales attendants around?? I would like to thank Bergdorf Goodman for confirming they have no video footage of any such incident, because it never happened.
False accusations diminish the severity of real assault. All should condemn false accusations and any actual assault in the strongest possible terms.
If anyone has information that the Democratic Party is working with Ms. Carroll or New York Magazine, please notify us as soon as possible. The world should know what‘s really going on. It is a disgrace and people should pay dearly for such false accusations.
Special App‘x at 12-13.
Second, on June 22, 2019, as he was departing for Camp David, Trump again publicly denied the allegations during a press gaggle on the White House lawn:
Trump: I have no idea who this woman is. This is a woman who has also accused other men of things, as you know. It is a totally false accusation. I think she was married—as I read; I have no idea who she is—but she was married to a, actually, nice guy, Johnson—a newscaster.
Reporter: You were in a photograph with her.
Trump: Standing with [my] coat on in a line—give me a break—with my back to the camera. I have no idea who she is. What she did is—it‘s terrible, what‘s going on. So it‘s a total false accusation and I don‘t know anything about her. And she‘s made this charge against others.
And, you know, people have to be careful because they‘re playing with very dangerous territory. And when they do that—and it‘s happening more and more. When you look at what happened to Justice Kavanaugh and you look at what‘s happening to others, you can‘t do that for the sake of publicity.
New York Magazine is a failing magazine. It‘s ready to go out of business, from what I hear. They‘ll do anything they can. But this was about many men, and I was one of the many men that she wrote about. It‘s a totally false accusation. I have absolutely no idea who she is. There‘s some picture where we‘re shaking hands. It looks like at some kind of event. I have my coat on. I have my wife standing next to me. And I didn‘t know her husband, but he was a newscaster. But I have no idea who she is—none whatsoever. It‘s a false accusation and it‘s a disgrace that a magazine like New York—which is one of the reasons it‘s failing. People don‘t read it anymore, so they‘re trying to get readership by using me. It‘s not good.
You know, there were cases that the mainstream media didn‘t pick up. And I don‘t know if you‘ve seen them. And they were put on Fox. But there were numerous cases where women were paid money to say bad things about me. You can‘t do that. You can‘t do that. And those women did wrong things—that women were actually paid money to say bad things about me.
But here‘s a case, it‘s an absolute disgrace that she‘s allowed to do that.
Id. at 13-14.
Finally, on June 24, 2019, the online newspaper publication, The Hill, released an interview with Trump, in which he stated: “I‘ll say it with great respect: Number one, she‘s not my type. Number two, it never happened. It never happened, OK?” Id. at 14.
C
In November 2019, Carroll filed the present lawsuit in New York State Supreme Court against Trump in his individual capacity, alleging that his public statements denying her sexual assault allegations were defamatory under New York law. In September 2020, Director James G. Touhey, Jr. of the Torts Branch of the U.S. Department of Justice‘s Civil Division intervened in the suit and certified on behalf of the Attorney General that Trump had acted “within the scope of his office as President of the United States” when he made the public statements denying Carroll‘s allegations. Based on this certification, the Government removed the case to Federal District Court. See Osborn v. Haley, 549 U.S. 225, 242 (2007) (holding that the Attorney General‘s certification is “dispositive” for purposes of removal). And shortly thereafter, the Government moved, pursuant to the Westfall Act, to substitute the United States as the sole defendant in this case.
The District Court denied the Government‘s motion to substitute and did so on two independent grounds. Carroll v. Trump, 498 F. Supp. 3d 422 (S.D.N.Y. 2020).
First, it held that substitution was not warranted because, at the time the allegedly defamatory statements had been made, Trump was President of the United States, and the President is not an “employee of the Government” for purposes of the Westfall Act. Id. at 443.
The Westfall Act, the District Court explained, incorporates the FTCA‘s definitional provision at
Second, and in the alternative, the District Court held that even if the President were an employee of the government for purposes of the Westfall Act, substitution of the United States as defendant was still inappropriate because Trump had not acted within the scope of his employment when he publicly denied Carroll‘s sexual assault allegations. Carroll, 498 F. Supp. 3d at 457. After identifying either New York or District of Columbia respondeat superior law as governing this inquiry, the District Court, discerning no conflict between the laws of the two jurisdictions, declined to resolve the choice of law issue. Id. at 446-47. The District Court then held that, under either New York or District law, Trump had exceeded the scope of his employment. Id. at 447-57. Therefore, even if the President were a covered employee under the statute, Trump could not be substituted under the Westfall Act.
This meant that Carroll‘s suit could proceed against Trump in his personal capacity. The Government and Trump timely appealed the denial of substitution.1 See Osborn, 549 U.S. at 238 (holding that denial of substitution under the Westfall Act is, pursuant to the collateral order doctrine, “a reviewable final decision within the compass of
II
A
A short history of the Westfall Act is useful to understanding the issues in this case.
In Westfall v. Erwin, 484 U.S. 292 (1988),2 the Supreme Court held that federal employees were entitled to absolute immunity against individual tort liability only if their conduct occurred “within the scope of their official duties and the conduct [was] discretionary in nature,” id. at 297-98 (emphasis in original). In adopting a “discretionary in nature” requirement, for immunity, the Court attempted to strike a balance between the following policy considerations: a) placing an unfortunate risk of individual liability on government employees and b) compensating those who “had the misfortune to be injured by a federal official.” Id. at 295-97. Under Westfall‘s test, the Court explained that “official immunity would have to be determined on a case-by-case basis, according to whether the contribution to effective government in particular contexts from granting immunity outweighs the potential harm to individual citizens.” United States v. Smith, 499 U.S. 160, 163 (1991) (discussing Westfall, 484 U.S. at 299).
Apparently troubled by the personal tort liability the Westfall decision was likely to impose on federal employees, but not wishing to leave injured victims uncompensated,
The Westfall Act was a monumental act of legislation. Among other things, it eliminated Westfall‘s “discretionary in nature” requirement, 484 U.S. at 297-98, and replaced it with a single factor test for absolute federal employee immunity, see Smith, 499 U.S. at 163. Under the Westfall Act, qualifying government employees were entitled to absolute immunity from personal tort liability for any conduct occurring within the scope of their employment—even if the tortious conduct was not a discretionary function of their employment. See
But in enacting this law, Congress did not intend to preclude tort victims from redress as a result of torts committed by government employees. Quite the contrary, Congress sought to shift such liability costs away from the individual employees and place them on their employer: the United States. And it did so by waiving sovereign immunity for certain categories of torts, and by using the common law doctrine of respondeat superior—which generally made private employers liable for the torts of their employees.
Thus, when a federal employee is now sued for tortious conduct committed in the course of employment, the Westfall Act confers immunity by substituting the defendant with the United States, and, in turn, making the action against the United States under the FTCA the exclusive means of recovery for the injured individual in tort, see
In order for substitution to take place, the Westfall Act first “empowers the Attorney General to certify that the employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose.” See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995) (quoting
Substitution in Westfall Act cases generally raises no serious issues because, once it occurs, “such cases unfold much as cases do against other employers who concede respondeat superior liability.” Lamagno, 515 U.S. at 420. As Justice Ginsburg aptly noted, however, the issue of substitution presents a totally different and frequently troubling issue in those cases where “an exception to the FTCA shields the United States from suit, [since] the plaintiff may be left without a tort action against any party.” Id.; see Smith, 499 U.S. at 165 (holding that the Westfall Act “immunizes Government employees from suit even when an FTCA exception precludes recovery against the Government“). In such situations, the Westfall Act results in the victims of wrongful action by a government employee being left to bear the loss.5
And that is what lies at the core of this case. The FTCA, expressly, does not waive the sovereign immunity of the United States for the tort of defamation, see
B
In disputing whether substitution is appropriate here, the parties raise two issues on appeal: (1) whether the President of the United States is an employee of the federal government for purposes of the Westfall Act and (2) whether Trump had acted within the scope of his employment when he made the public statements denying Carroll‘s sexual assault allegations.
The parties all agree that the second issue presented (scope of employment) is governed by the District of Columbia‘s respondeat superior law.6 As we understand it, the District‘s law regarding vicarious liability is sufficiently unclear that we are unable to predict with any confidence
We are, however, sensitive to the fact that the District‘s certification statute appears to favor certification of legal issues “which may be determinative of the cause pending” before the “certifying court.”
In light of that local policy, we find it prudent to answer the antecedent question: Is the President of the United States an employee of the federal government under the Westfall Act? See
We therefore turn to that federal question.
III
A
The Westfall Act provides immunity against individual tort liability to “any employee of the Government while acting within the scope of his office or employment.”
Like any other statutory interpretation case, our inquiry begins with the text of the statute. See Hui v. Castaneda, 559 U.S. 799, 805 (2010). The parties agree that the Westfall Act‘s reference to “employee of the Government” incorporates the FTCA‘s definitional provision at
We thus turn to
Employee of the government includes (1) officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty . . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation, and (2) any officer or employee of a Federal public defender organization, except when such officer or employee performs professional services in the course of providing representation under section 3006A of title 18.
The parties do not dispute that, under
Given this statutory definition, Carroll principally argues that the President does not come within the scope of the FTCA and the Westfall Act because he is not an officer or employee of any “executive departments.” Appellee Br. at 20. The term “executive departments,” Carroll contends, has been understood since the Nation‘s founding to refer to “Cabinet-level agencies, and perhaps a small number of additional freestanding components within the executive branch, but not to the executive branch in its entirety.”
We, however, disagree. Even if we were to accept these arguments on their own terms, Carroll‘s interpretive theory fails for it rests on the flawed assumption that
And, given the plain language and structure of
To begin with,
Significantly, Federal Courts of Appeals have applied this interpretive rule to the precise statutory language at issue, including recently the Seventh Circuit, which cogently noted: ”
The significance of the word “includes,” moreover, is underscored by the statutory context in which it appears. Specifically, while
“Acting within the scope of his office or employment,” in the case of a member of the military or naval forces of the United States or a member of the National Guard as defined in section 101(3) of title 32, means acting in line of duty.
B
1
Because we conclude that the examples listed in
In the original 1946 law it had enacted, Congress did not, however, make the payment of wages or a salary the dispositive criterion for whether an individual was a covered government employee under the FTCA. See
We are, therefore, convinced that
It follows that the President of the United States fits comfortably within the statutory description‘s plain language. For, as Trump points out in his brief, the President is a government employee in the most basic sense of the term: He renders service to his employer, the United States government, in exchange for a salary and other job-related benefits. Cf. United States v. Hatter, 532 U.S. 557, 563 (2001) (recognizing the President as a federal employee for purposes of a social security program).8
2
Precedent and historical practice, together with the mischief the statute sought to remedy, reinforce this conclusion.
Given these interpretations of the “employee” definition in the legislative and judicial branch contexts, it coheres to apply the same language to the President, see, e.g., Operation Rescue, 147 F.3d at 70-71 (stating in dictum that
The legislative context behind the FTCA‘s passage, moreover, lends further support for this interpretation. Specifically, the mischief that the FTCA purported to fix was the private claims bills procedure. Because of sovereign immunity, until the FTCA‘s enactment in 1946, private citizens who were injured by tortious conduct at the hands of government employees were left without a judicial remedy against the federal government. See Feres v. United States, 340 U.S. 135, 139-40 (1950) (detailing history of private claims bills). As a result, persons seeking compensation from the federal government regularly resorted to submitting private claims to their elected representatives—who then were responsible for drafting and pushing bills that would provide compensation to their injured constituents. See United States v. Muniz, 374 U.S. 150, 154 (1963) (“Private claim bills introduced in the Sixty-eighth through the Seventy-eighth Congresses averaged 2,000 or more per Congress, roughly 20% of which were enacted.“).
For decades, this practice was widely criticized as being a costly administrative burden on the work of Congress. See Alexander Holtzoff, The Handling of Tort Claims Against the Federal Government, 9 Law & Contemp. Probs. 311, 311–12 (1942). And during the joint committee hearings that led to the FTCA‘s enactment, various members of Congress expressed their collective displeasure at the private claims bills system, criticizing it as a poor use of time and resources, as well as an unjust remedy for injured victims. See, e.g., Legislative Reorganization Act: Hearings Before the Joint Comm. on the Org. of Congress, 79th Cong. 68-69 (1945) (remarks of Sen. Kefauver); id. at 95 (remarks of Rep. Wadsworth).
The FTCA was the solution to this long-running problem. By waiving sovereign immunity for certain torts, it sought to delegate to the federal courts the resolution of such claims brought by private citizens against government officials. See Muniz, 374 U.S. at 154. And significantly, the FTCA delegated this burden en masse, without particular concern for the specific role or position of the government employee responsible for committing the tort. See S. Rep. No. 1400, at 31-32 (1946) (stating that the FTCA‘s provisions
In light of this contextual evidence, there is no reason to assume that Congress in enacting the FTCA meant to exclude the President from the process that would avoid serious administrative burdens while providing comprehensive redress to private individuals “having meritorious claims hitherto barred by sovereign immunity,” Muniz, 374 U.S. at 154.9 Or as the Eighth Circuit convincingly explained in the course of interpreting
Tort Claims Act would ultimately impede Congress’ statutory design: efficient redress for victims of governmental torts.” LePatourel, 571 F.2d at 409.
For all these reasons, we hold that the President is an employee of the government under the Westfall Act.
IV
The remaining question on appeal is whether Trump‘s public statements denying Carroll‘s sexual assault allegations occurred within the scope of his employment, see
The scope of employment inquiry is governed by the respondeat superior law of the state in which the alleged tort occurred. See Williams v. United States, 350 U.S. 857 (1955) (per curiam); Fountain v. Karim, 838 F.3d 129, 135 (2d Cir. 2016). Here, as noted earlier, the parties agree that District of Columbia law applies.
But applying that law is easier said than done since the District‘s application of respondeat superior in contexts like the instant one is anything but clear. In light of this uncertainty, and the apparent significance of this case, we conclude that it is advisable to certify this question to the D.C. Court of Appeals. To explain our uncertainty, however, we must review both the historical origins of respondeat superior in tort law and how that doctrine has been applied in the District.
A
The liability of an employer for the negligent torts of the employee has deep roots in the common law. Indeed, Holmes wrote that virtually every legal system has an analogical doctrine. See generally O. W. Holmes, Jr., Agency, 4 Harv. L. Rev. 345 (1891). In Anglo-American law, it was an essential part of the form of action—Trespass on the Case (“Case“)—from which much of modern tort law derives. Case held the master (employer) liable for the
When the employee‘s tortious acts were intentionally wrongful, however, the history was quite different. Case did not cover intentional torts, and an action in Trespass (“Trespass“), the other form of action from which much of modern tort law derives, covered only direct wrongs. See Guido Calabresi, Toward A Unified Theory of Torts, 1 J. Tort L. 1, 3-4 (2007). Trespass gave rise to liability on the doer—regardless of whether the injury was intentional, faultless, or negligent—but not on the doer‘s employer. Id. This left a gap that troubled courts increasingly from the late eighteenth century on, as the reasons for the peculiar rules governing Trespass and Case faded and were forgotten. See, e.g., Scott v. Shepherd, 96 Eng. Rep. 525 (K.B. 1773).
What to do about employer liability where the employee‘s acts were intentionally wrongful? Liability in some cases seemed clearly warranted, and yet there were no precedents and, so, courts made up new rules to deal with such cases. Cf. William O. Douglas, Vicarious Liability and Administration of Risk I, 38 Yale L.J. 584, 584 (1929) (“From whence came the rule and a complete exposition of its pedigree are problems as yet unanswered.“).
As a result, until the mid-twentieth century, the prevailing approach to respondeat superior for intentional torts of the employee focused on whether the employer had enjoyed a benefit as a result of the employee‘s tortious conduct. Although no cogent explanation for the theory was provided, this view of the doctrine “required a close link between the acts of the agent and profit accruing to the master before vicarious liability” could attach to the latter. Taber v. Maine, 67 F.3d 1029, 1036 (2d Cir. 1995); see also Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167, 170 (2d Cir. 1968) (discussing traditional approach). As the Restatement (Second) of Agency put it, an employee‘s tortious conduct would be deemed within the scope of employment if “it is actuated, at least in part, by a purpose to serve the master.” Restatement (Second) of Agency § 228 (1958).
In the second half of the twentieth century, however, the traditional view of respondeat superior for intentional torts began to recede. See Taber, 67 F.3d at 1036 (“But today, this position is in hasty retreat, if not rout.“). The legal academy and the courts in turn started to treat vicarious liability in intentional tort cases consistently with the longstanding approach to respondeat superior in negligent torts. In both instances, liability of the employer was viewed by courts as a means of internalizing the liability costs of running a business enterprise on that business. See, e.g., Taber, 67 F.3d at 1037 (Calabresi, J.)
At bottom, the “integrating principle” of this view was that “the employer should be liable for those faults that may fairly be regarded as risks of his business, whether they are committed in furthering it or not.” 5 FOWLER V. HARPER, FLEMING JAMES, JR. & OSCAR S. GRAY, THE LAW OF TORTS § 26.7, 40-41 (2d ed. 1986) (hereinafter “HARPER & JAMES“). Or as Judge Friendly most elegantly put it, the doctrine of respondeat superior is based on “a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.” Ira S. Bushey, 398 F.2d at 171.
B
Some states, though, remained wedded to the narrower approach to intentional torts which emphasized employer benefit or profit. See, e.g., A-G Foods, Inc. v. Pepperidge Farm, Inc., 579 A.2d 69, 208 (Conn. 1990) (“We have long adhered to the principle that in order to hold an employer liable for the intentional torts of his employee, the employee must be acting . . . in furtherance of the employer‘s business.“); Catherine M. Sharkey, Institutional Liability for Employees’ Intentional Torts: Vicarious Liability as a Quasi-Substitute for Punitive Damages, 53 Val. U. L. Rev. 1, 12-14 (2018) (analyzing split among jurisdictions). And, the District of Columbia, at least as a formal matter, has endorsed this more traditional view. Specifically, when analyzing intentional tort respondeat superior cases, the D.C. Court of Appeals has stated that it applies the analytical framework set forth in the Restatement (Second) of Agency. See Dist. of Columbia v. Bamidele, 103 A.3d 516, 525 n.6 (D.C. 2014).11
Importantly, however, while the District has adopted the Restatement as part of its law, this does not conclusively establish that internalization of costs—that is, the placement of costs that are a part of doing a business on that business—has little or no role to play in the District‘s vicarious liability jurisprudence. Indeed, despite the District‘s formal emphasis on discerning benefit to the employer, several of its major precedents regarding respondeat superior appear, in fact, to be all about internalizing costs within the business enterprise. See Oral Arg. Tr. at 36-40 (discussing the District‘s case law).
In such cases, the D.C. Court of Appeals may seem to be conducting a mixed type of
It is in considerable part because of the oscillation between these two conceptions of respondeat superior that we are left with insufficient guidance as to which doctrinal framework might apply to this case. And it is with this background in mind that we review the law of the District.
1
Although the District‘s respondeat superior law is determined by the jurisdiction‘s highest court, the D.C. Court of Appeals, some—but not all—decisions of the Federal U.S. Court of Appeals for the D.C. Circuit have, over the years, been accepted by the D.C. Court of Appeals as a part of its law. To avoid confusion between these courts, we will hereafter refer to the District‘s highest court as the “Court of Appeals” and the Federal Appeals court as the “D.C. Circuit.”
The foundational decisions underlying the District‘s respondeat superior doctrine involving intentional torts originated in the late 1970s to early 1980s. In the earliest of these decisions, Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976), the D.C. Circuit, purporting to apply District law, addressed a case in which a young man who had been employed as a deliveryman by a trucking company assaulted and raped a woman while delivering a mattress. Id. at 652. The incident had been spurred by an argument between the employee and the woman over whether the mattress should be brought upstairs to the apartment, and whether payment was to be made by check or cash. Id. at 651–52. In upholding the jury‘s finding of vicarious liability on the part of the trucking company, the Lyon court held that the employee‘s conduct fell within the scope of employment under District law since “[t]he dispute arose out of the very transaction which had brought [the employee] to the premises, and . . . out of the employer‘s instructions to get cash only before delivery.” Id. at 652.
Notably, the D.C. Circuit applied internalization theory in reaching this conclusion, stating in no uncertain terms:
It is within the enterprise liability of vendors like furniture stores and those who deliver for them that deliverymen, endeavoring to serve their masters, are likely to be in situations of friction with customers, and that when they secure entry into a customer‘s premises by means of a badge of employment, these foreseeable altercations may precipitate violence for which recovery may be had, even though the particular type of violence was not in itself anticipated or foreseeable.
And notably, also, the Court of Appeals has treated Lyon as accurately applying District law. See, e.g., Weinberg v. Johnson, 518 A.2d 985, 990-92 (D.C. 1986); Boykin v. Dist. of Columbia, 484 A.2d 560, 563-64 (D.C. 1984); Howard Univ. v. Best, 484 A.2d 958, 987 (D.C. 1984).
Three years later, the Court of Appeals handed down arguably its most significant respondeat superior decision in Penn Central Transportation Company v. Reddick, 398 A.2d 27 (D.C. 1979). In Penn Central, the court held that a railroad company employee‘s assault on a taxi driver exceeded the scope of his employment because the “conduct was in no sense, either wholly or partially in furtherance of [the railroad‘s] business.” Id. at 32. The employee in that case had returned to the District after working an overnight shift on a train ride that had crossed state lines. Id. at 28. On arriving at the District‘s Union Station, the employee hailed a taxi cab in the vicinity to obtain a ride home, but, in the course of doing so, became embroiled in a heated argument with the taxi driver. Id. at 28-29. In a fit of outrage, the employee kicked the driver with his steel-toed railman boots, causing the driver to fall on the floor; the employee then continued kicking the driver “as he lay on the floor, shattering [the driver‘s] right leg.” Id. at 29.
In holding that these actions exceeded the scope of employment, the Court of Appeals began its analysis by acknowledging the two competing views of respondeat superior with respect to intentional torts, see id. at 30 (traditional view); id. at 31 (internalization view). The court then rejected the view that it was desirable to internalize every liability risk that might arise in the ordinary course of running a business.12 Id. Specifically, it noted that employee conduct that is “wholly unprovoked, highly unusual, and outrageous” might justify treating it outside the scope of employment, see id. at 31 (“The outrageous quality of an employe[e]‘s act may well be persuasive in considering whether his motivation was purely personal.“). According to the court, the employee‘s motive in this sense provided one way of discerning whether it would be fair to internalize the liability cost at issue. Id.
In then applying these principles, the Penn Central court concluded that the railroad employee‘s assault was too attenuated from his employment duties given the “violent and unprovoked” nature of the assault. Id. at 32. The court explained that, given these circumstances, the assault did not “further” the employer‘s business, nor could the assault be reasonably considered “more or less [an] inevitable toll of a lawful enterprise.” Id. (“There is nothing in the business of running a railroad that makes it likely that an assault will occur between a railroad brakeman and a taxicab driver over the celerity with which the latter will provide a taxicab ride to the former.“).
Two years later, the Court of Appeals decided Johnson v. Weinberg, 434 A.2d 404 (D.C. 1981). In Johnson, the plaintiff “visited a laundromat near his home at midday to launder some shirts.” Id. at 406. While his clothes were being washed, the plaintiff left the laundromat for a short while and returned later in the day to retrieve them. Id. When he returned, however, the plaintiff discovered his clothes were missing, and, as a result, questioned a laundromat employee intermittently throughout the course of that day about his missing clothes. Id. After the last of these exchanges, as the plaintiff looked to be giving up and exiting the store, the laundromat employee called out and shot the plaintiff in the face. Id.
On appeal from summary judgment entered against the plaintiff, the Court of Appeals held that a reasonable jury could find the laundromat vicariously liable in
To round out the circle, in Boykin v. District of Columbia, 484 A.2d 560 (D.C. 1984), the Court of Appeals stated that Johnson had defined the outer limits of its respondeat superior jurisprudence with respect to intentional torts. In Boykin, the court held that a sexual assault committed by a public school employee upon a disabled student did not occur within the scope of his employment. Id. at 561. The employee there had been a Field Coordinator with the District‘s public schools, and was responsible for coordinating services and planning educational programs for deaf and blind children. Id. While still on school grounds, the employee sexually assaulted a blind, deaf, and mute 12-year old student under his supervision. Id. The student died shortly thereafter, and her mother pursued a lawsuit against the District, seeking to hold it vicariously liable. Id.
Based on this factual record, the Court of Appeals held that the employee had not acted within the scope of his employment because the sexual assault was not “committed to serve the school‘s interest, but rather appear[ed] to have been done solely for the accomplishment of [his] independent, malicious, mischievous and selfish purposes.” Id. at 562.
Needing, however, to distinguish its prior decisions, the court characterized those cases as “approach[ing] the outer limits” of its respondeat superior case law, id. at 563, and accordingly cabined them to their underlying facts. Moreover, as the court saw it, Lyon and Johnson involved situations where the employment environment created the very risk of the tortious conduct occurring, whereas in Boykin, the employee‘s job merely “afforded him the opportunity to pursue his adventure,” id. (emphasis in original). In drawing this supposed distinction, the Boykin court concluded that respondeat superior could not be invoked since the employee‘s conduct “was utterly without relation to the service which he was employed to render.” Id. at 564.
Having examined the seminal respondeat superior decisions of the District, we find it unclear whether, today, the doctrine‘s origins rest on internationalization or the more traditional view premised on employer benefit. All of these decisions use language and reasoning drawn from both approaches; but in Lyon, Johnson, and Penn Central, the driving force behind their rulings seems to be whether internalizing costs was a desirable outcome based on the particular context of the case. In Boykin, instead, the focus seems to be on whether the employee‘s behavior in some way serves the employer. 484 A.2d at 562.
2
Subsequent respondeat superior decisions in the District‘s case law have done little to clarify this doctrinal uncertainty.
Based on this record, the court held that a reasonable jury could find the university vicariously liable since the alleged harassment “occurred during faculty, administrative or other professional meetings[.]” Id. at 987. Citing the internalization rationale set forth in Penn Central, the court explained that: “Liability may be extended to situations where the employment provides a peculiar opportunity and incentive for the tortious activity.” Id. (quoting Penn Central, 398 A.2d at 31).
But two years later, in District of Columbia v. Coron, 515 A.2d 435 (D.C. 1986), the Court of Appeals issued an opinion in which the pendulum swung the other way. In Coron, an off-duty police officer, who had been drinking on the evening in question, assaulted a pedestrian on the sidewalk following a confrontation at a traffic light. Id. at 437. As a result of the incident, the injured victim sued the District on a vicarious liability theory, and alleged that the officer was acting within the scope of his employment because the police department‘s regulations required its officers “always to be on duty.” Id. at 438. At trial, the jury agreed and found the District vicariously liable. Id. at 437.
The Court of Appeals, however, reversed this determination on appeal, and concluded that the violent and vengeful nature of the assault demonstrated that the officer‘s actions could not have possibly served the District‘s interests. Id. at 438 (“[I]t is of particular importance that at no time was Guidotti‘s conduct in furtherance of the District‘s interests.“). And rather than engage in an internalization analysis, the court applied the employer benefit view of respondeat superior, and concluded that the officer‘s conduct was outside the scope because it was “solely for the accomplishment of his independent malicious or mischievous purposes.” Id. at 438-39.
The schisms in the doctrine were further made apparent in Haddon v. United States, 68 F.3d 1420 (D.C. Cir. 1995), abrogated on other grounds by Osborn, 549 U.S. 225. In Haddon, the D.C. Circuit, purporting to apply District law, held that a White House electrician had not acted within the scope of his employment “when he allegedly threatened to beat up the [White House] chef.” Id. at 1423. After undertaking a comprehensive review of the District‘s respondeat superior law, Judge Tatel, in writing for the majority, explained the integrating principle of the doctrine as:
According to the D.C. Court of Appeals, conduct is incidental to an employee‘s legitimate duties if it is foreseeable. Foreseeable in this context does not carry the same meaning as it does in negligence cases; rather, it requires the court to determine whether it is fair to charge employers with responsibility for the intentional torts of their employees.
Judge Tatel then concluded that the employee‘s threats of violence fell outside the
In dissent, Judge Sentelle argued that he did “not find the state of D.C. law as clear as [his] colleagues [did].” Id. at 1427. According to Judge Sentelle, while the “D.C. courts . . . have paid lip service to the principles of the Restatement (Second),” the case law appeared to go much further in internalizing faults that would not normally fit under the Restatement‘s framework. Id. at 1427-28 (citing Lyon and Johnson).
Subsequent vicarious liability decisions from the Court of Appeals have turned less on internalization, and more on employer benefit. But some of these have stretched employer benefit very far. Thus, in Hechinger Company v. Johnson, 761 A.2d 15 (D.C. 2000), the court held that a home improvement store was properly found vicariously liable when a store employee, on suspicion of theft, assaulted a customer at the checkout counter. Id. at 25. Applying the traditional view of respondeat superior, the court explained that a reasonable jury could find based on these facts “that the man‘s actions were motivated by a desire” to serve his employer. Id.
Similarly, in Brown v. Argenbright Security, Inc., 782 A.2d 752 (D.C. 2001), the Court of Appeals concluded that a grocery store security guard could be found by a reasonable jury to have acted within the scope of his employment when he allegedly conducted an inappropriate search of a young girl‘s chest and genital area. Id. at 758-59. As the court put it, “[w]hile it is probable that the vast majority of sexual assaults arise from purely personal motives, it is nevertheless possible that an employee‘s conduct may amount to a sexual assault and still be actuated, at least in part, by a desire to serve the employer‘s interests.” Id. at 758 (citing Restatement (Second) of Agency § 228).
Most recently, the Court of Appeals addressed the doctrine of respondeat superior in a pair of cases involving alleged police misconduct. First, in District of Columbia v. Bamidele, 103 A.3d 516 (D.C. 2014), the court held that off-duty police officers who had assaulted a couple at a restaurant did not act within the scope of their employment because they were drawn into the skirmish for “purely personal reasons.” Id. at 525-26. Since the officers had acted out of personal spite, the court explained that their conduct was not intended to further the interests of the police department and, so, declined to impose vicarious liability. Id.
In Blair v. District of Columbia, 190 A.3d 212 (D.C. 2018), however, the court came out the other way in a situation where off-duty police officers had become embroiled in a fight outside a nightclub with a group of unruly civilians, id. at 216-17. In holding that a reasonable jury could find vicarious liability on this factual record, the court emphasized that, unlike Bamidele, the “professional and personal motives” of at least one of the officers “were significantly intertwined,” such that the interests of the police department were being served. Id. at 227.
C
Despite the manifest uncertainty the above cases demonstrate, Trump contends that the D.C. Circuit‘s decision in Council on American Islamic Relations v. Ballenger, 444 F.3d 659 (D.C. Cir. 2006), as well as its progeny, see, e.g., Haaland, 973 F.3d 591; Wuterich v. Murtha, 562 F.3d 375 (D.C. Cir. 2009); Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008), dictate the outcome of this case. We disagree. Ballenger‘s core
D
Under the District‘s certification statute, the Court of Appeals may accept certification on an issue of District law from a Federal Court of Appeals if the certified issue “may be determinative of the cause pending in such certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions” of the Court of Appeals. See
1
As we have just discussed, the District‘s law with respect to respondeat superior is “genuinely uncertain.” Id. The Court of Appeals has oscillated between the traditional, narrower view of respondeat superior and the more modern, broader, internalization view. As a result, it has left us with insufficient guidance as to which controls. Moreover, we think that certain decisions that appeared (on the surface) to apply a traditional analysis, in fact, applied the approach of internalizing costs on the employer. See, e.g., Best, 484 A.2d 958; Johnson, 434 A.2d 404; Lyon, 533 F.2d 649. Thus, it is hard to explain the court‘s treatment of sexual harassment by university professors in Best, that of the laundromat employee‘s discharge of a gun in Johnson, and that of the deliveryman‘s rape of a customer in Lyon under the traditional paradigm of benefit to the employer. We think it is at least as likely that, in those decisions, the Court of Appeals sought to internalize costs.
The District‘s case law has, thus, seemed to vacillate between a narrow view of scope of employment that requires evidence that an intentional tort benefit—or be for the purpose of benefiting—the employer, and a more modern, broader view of scope of employment that would hold that any intentional tort that is a part of the risks of an employer‘s activity falls within the scope of employment.
Under the circumstances, we cannot say what the District would do in this case.
2
Finally, the scope of employment issue presents “a question of extreme public importance.” Sturdza v. United Arab Emirates, 281 F.3d 1287, 1303 (D.C. Cir. 2002). As relevant here, the question touches upon the duties of the President of the United States, and the personal tort liability he and his successors may (or may not) face under the Westfall Act. Getting the law of the local jurisdiction right is, therefore, of crucial importance, and only the highest local court is capable of making such a determination.
In certifying, we wish to emphasize that the issue before us is totally separate from the substantive merits of the claim underlying this defamation action. That is, in evaluating the scope of employment issue, we do not pass judgment or express any view as to whether Trump‘s public statements were indeed defamatory or whether the
The issue that is before us, and which we now certify to the D.C. Court of Appeals, is only: 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 is, of course, free, should it accept certification, to modify the above question as it chooses.
* * *
We, therefore, respectfully request the D.C. Court of Appeals to exercise its discretionary authority to accept and decide this, aforementioned, question of law. The Clerk of this Court is hereby ordered to transmit forthwith to the D.C. Court of Appeals, under official seal of the United States Court of Appeals for the Second Circuit, a copy of this order and request for certification and all relevant briefs and excerpts of record pursuant to
GUIDO CALABRESI, Circuit Judge, concurring:
I write a few words separately, and additionally, because lying behind the certified question there is a question that – as far as I know – has not been answered anywhere, and that raises profound problems as to judicial behavior and tort law.
Many jurisdictions have gone out of their way to broaden what behavior, which is intentionally wrongful, is deemed to be within the scope of the wrongdoer‘s employment. They have done so at times implicitly, see, e.g., Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167, 170 (2d Cir. 1968) (Friendly, J.), and at times explicitly, see, e.g, Taber v. Maine, 67 F.3d 1029, 1031 (2d Cir. 1995),1 in order to place the loss on an employer who is able to pay, thereby assuring that the loss is fully borne by the employee-employer nexus.2 They have done this, as they have said, to “internalize” the loss completely. There are, though, a few rare cases – and the one before us is one – where if the employee misbehavior is deemed to be within the scope of employment, the opposite occurs. This is so when – as in the instant case – the employer is for some reason immune from liability and the employee is shielded from liability because employee‘s actions
I know of no court that has considered expressly whether, in such cases, actions that would normally be deemed to be in the scope of employment should not be so deemed – thereby leaving the employee liable. The effect of that would be that the loss – though perhaps not fully internalized in the wrongdoing employee-employer nexus because the employee is not capable of paying all of it – would, nonetheless, be internalized to some extent. It would not be left totally on the alleged victims.
There are obvious legal process problems with such an approach. The same term “scope of employment” would be given different, inconsistent meanings, solely because of the different liability result of applying a consistent meaning. And that is certainly troublesome. But courts may nonetheless be tempted to do this, if the reason their jurisdiction had broadened the meaning of scope of employment was, in part, to achieve a liability-placing result. And it is not inconceivable (though not necessarily desirable) that courts, in cases that under their scope of employment precedents are close, might be affected by these considerations in deciding what – in a particular case – was within the scope of employment.
Since the law of the District of Columbia is unclear as to how broadly it views scope of employment, we have certified that question to it. It is not for us even to suggest that they should consider the above mentioned difficult underlying tort law question. Hence, I did not raise it in the majority opinion. But since I have, for nearly seventy years, been a torts scholar, and since this case is about Torts and not Trump – its ultimate decision will affect ordinary people, parties who are neither Presidents nor controversial – I have deemed it appropriate to point to the existence of this recurring and troublesome question, which the D.C. Court of Appeals is, of course, totally free to ignore.
DENNY CHIN, Circuit Judge, dissenting:
On June 21, 2019, in a book excerpt published in New York Magazine, plaintiff E. Jean Carroll publicly accused former President Donald Trump of raping her some thirty years ago. Within hours and over the course of the next several days, Trump addressed the accusations publicly, saying, among other things, “[she] is trying to sell a new book -- that should indicate her motivation“; “[s]hame on those who make up false stories of assault to try to get publicity for themselves“; “she‘s made this charge against others“; and “she‘s not my type.”
Carroll sued Trump for defamation in the New York State Supreme Court. About ten months later, the Government intervened in the action, certified that Trump had acted “within the scope of his office as President of the United States” when making the statements about Carroll, and removed the case to the federal court below. The Government thereafter moved to substitute the United States as party defendant and to dismiss Trump from the case under the Federal Employees Liability Reform and Tort Act of 1988 (the “Westfall Act“),
The district court held that, first, the Westfall Act does not apply to the President of the United States because he is not an “employee of the Government” for these purposes and, second, even assuming the President is an employee for these purposes, Trump was not acting within the scope of his employment. The district court therefore denied the Government‘s motion. The majority now reverses as to the statute‘s applicability and holds as a matter of first impression that the FTCA encompasses the President.
The President is “the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity.” Nixon v. Fitzgerald, 457 U.S. 731, 751 (1982). The
Accordingly, in my view, the President is not an “employee of the Government” as the term is used in the FTCA. I would therefore hold that the FTCA does not apply to the President under the plain meaning of the statute and affirm the district court‘s order denying the motion to substitute on that basis alone. Moreover, if we were to reach the second issue, I would hold that at least some of the statements here were not made within the scope of Trump‘s duties as President of the United States. I respectfully dissent.
I.
If Trump is an “employee of the Government” for FTCA purposes, he is not subject to Carroll‘s defamation suit, provided he was acting within the scope of his employment. If he is not an employee, he may be personally answerable. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 423 (1995).
I pay particular heed to the Supreme Court‘s admonition that courts should neither expand nor limit the scope of Congress‘s waiver of immunity. See Smith v. United States, 507 U.S. 197, 203 (1993); Cooke v. United States, 918 F.3d 77, 81 (2d Cir. 2019). A waiver of sovereign immunity must be “unequivocally expressed.” United States v. Nordic Vill. Inc., 503 U.S. 30, 34 (1992); see United States v. Mitchell, 445 U.S. 535, 538 (1980). “[I]f Congress has not spoken or taken a position on a question through the language of the [FTCA], . . . the court should not, for to do so would be to legislate
II.
The FTCA and the Westfall Act are codified in scattered sections in titles 16 and 28 of the U.S. Code.2 Through the FTCA, Congress granted the federal district courts exclusive jurisdiction over civil actions on claims against the United States “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.”
include[] (1) officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty..., and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation, and (2) any officer or employee of a Federal public defender organization, except when such officer or employee performs professional services in the course of providing representation under section 3006A of title 18.
Id.
The provision of the FTCA commonly called the Westfall Act then provides the mechanism by which the United States becomes the party defendant in a tort case brought against a Government employee: the Attorney General may certify “that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose.” Id.
Finally, Congress enumerated claims for which the United States has not waived sovereign immunity. See
The issue before the Court is whether the term “any employee of the Government” encompasses the President. I believe it does not.
“When interpreting a statutory provision, we begin with the language of the statute.” Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013). “We determine whether the statutory language is ambiguous by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Zepeda-Lopez v. Garland, 38 F.4th 315, 320 (2d Cir. 2022) (internal quotation marks omitted). “We consider not only the bare meaning of the critical word or phrase but also its placement and purpose in the statutory scheme.” Id. (internal quotation marks omitted).
As an initial matter, the majority gives little weight to the work of the FTCA‘s definitional section, § 2671, which has been amended no fewer than six times since its enactment in 1948. See Pub. L. No. 81-72, ch. 139, sec. 124, § 2671, 63 Stat. 89, 106 (1949); Pub. L. No. 89-506, sec. 8, § 2671, 80 Stat. 306, 307 (1966); Pub. L. No. 97-124, § 2671, 95 Stat. 166, 1666 (1981); Pub. L. No. 100-694, 102 Stat. 4563, 4563-67 (1988); Pub. L. No. 106-398, sec. 665(b), § 2671, 114 Stat. 1654, 1654A-169 (2000); Pub. L. No. 106-518, sec. 401, § 2671, 114 Stat. 2410, 2421 (2000). The majority opines that § 2671 sets out an illustrative list of examples of people covered by the statute because the list is preceded by the word “includes.” Maj. Op. at 23. It apparently then concludes that the examples have little bearing on the statute‘s compass, because it focuses next on the ordinary meaning of the term “employee” without further analyzing the detailed definitions set out in § 2671, save for one small point, discussed below. Maj. Op. at 26.
In my view, the FTCA‘s definitional section bears some meaning. I agree that the examples are illustrative rather than exhaustive. In other words, the meaning of “employee of the Government” includes, but is not limited to, federal agency officers or employees, members of the armed forces, and public defenders. See
A.
The President is not to be found in any of the detailed definitions provided by § 2671, which, as the majority observes, we are bound to follow. Maj. Op. at 20 (citing Tanzin v. Tanvir, 141 S. Ct. 486, 490 (2020)).
The President is not an officer or employee of “any federal agency” as that term is defined in the statute. The majority correctly notes that the “one category of covered employees under § 2671 that may apply to the President” is “officers or employees” of “the executive departments.” Maj. Op. at 22. But the President is not an officer or employee of “the executive departments.” In title 28, “department”
Trump and the Government argue that “executive departments” means, simply, the “executive branch.” But this interpretation does not withstand scrutiny. First, the FTCA defines “Federal agency” as including, among other things, “the executive departments” and “the judicial and legislative branches.”
For these reasons, none of the definitions detailed in § 2671 encompasses the President.
B.
Failing to find the President within § 2671‘s ambit, I turn to whether the President is “any employee of the Government.” See
I start with the statute‘s text. See Zepeda-Lopez, 38 F.4th at 320. As the majority observed, the word “employee” had roughly the same meaning when the FTCA was enacted as it does today: “one who works for wages or salary in the service of an employer.” Employee, Webster‘s New International Dictionary of the English Language (2d ed. 1943); see Maj. Op. at 26-27. Here, because the President works and receives a salary, the decisive element is whether he does so “in the service of an employer.”
I would look to well-established agency principles to determine whether the United States and the President have an employer-employee relationship. See United States v. Orleans, 425 U.S. 807, 815 (1976). In Orleans, to assess whether a community action agency was an employee or a contractor for FTCA purposes, the Supreme Court asked not whether the agency “receive[d] federal money and must comply with federal standards and regulations, but whether its day-to-day operations [were] supervised by the Federal Government.” Id. To use the archaic language of the Restatements, “the presence of those characteristics that traditionally determine the existence of the common-law relationship of master and servant will generally determine whether the wrongdoer is an employee of the Government for whose torts the United States must respond.” 1 Jayson & Longstreth, supra, § 8.04. The Restatement (Second) of Agency defines a servant as follows: “A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other‘s control or right of control.” Restatement (Second) of Agency § 220(1); see also Restatement (Third) of Agency § 1.01 (“[T]he agent shall act on the principal‘s behalf and subject to the principal‘s control.“).
Applying these principles, I conclude that the President is not an employee for FTCA purposes. To be clear, I would not hold that the President is a contractor instead of an employee -- rather, agency principles tell us that the nature of the President‘s constitutional role means that it does not “fit[] comfortably” within the FTCA‘s term “employee.” But see Maj. Op. at 28.
The President is in no respect the “servant” of a “master.” Although he earns a salary, that point is extinguished by the FTCA‘s “with or without compensation” clause.
The majority examines the ordinary meaning of “employee” as the word was used in 1946. It consults contemporaneous dictionaries and finds that they suggest “payment of consideration and formal service to an employer were the hallmarks of an employee relationship at the time of the FTCA‘s enactment.” Maj. Op. at 27. But it then finds that Congress must have intended the term “employee” to sweep more broadly because § 2671 includes “persons acting on behalf of a Federal agency . . . whether with or without compensation.” Id. Accordingly, the majority holds, the President “fits comfortably” within the statute‘s plain language. Maj. Op. at 28. To me, the inferential step between “employee should be broadly construed” to “employee includes the President” is too great a leap.
This interpretation is also supported by “the broader context of the statute as a whole.” Zepeda-Lopez, 38 F.4th at 322. In 1988, the Supreme Court held that “federal employees” do not enjoy “absolute immunity from state-law tort actions.” Westfall v. Erwin, 484 U.S. 292, 300 (1988). That same year, Congress enacted the Westfall Act “to address the potential liability of Federal employees” resulting from that decision. H.R. Rep. No. 100-700, at 2. In other words, Congress sought to restore federal employees to the status they had before the Westfall decision. But the Westfall decision had no effect on the potential liability of the President, who, as the Supreme Court held in 1981, is shielded by “absolute Presidential immunity from damages liability” for official acts. Nixon, 457 U.S. at 756. Accordingly, Congress had nothing to restore with respect to the President. There was no need for the Westfall Act to cover the President, for the President already had absolute immunity for actions taken within the scope of the presidency.
The legislative history also reveals that the House of Representatives was particularly concerned with the Westfall decision‘s “severe” potential impact on “lower-level,” “rank and file workers,” who might face claims related to filing errors or misplaced electrical cords. H.R. Rep. No. 100-700, at 3. This highly specific purpose strongly suggests Congress did not have the President in mind.
Finally, to the extent the FTCA is silent as to whether the President is covered, I would not interpret that silence to cover the President. The Supreme Court determined that the Administrative Procedure Act did not apply to the President because “textual silence [was] not enough to subject the President” to the statute. Franklin v. Massachusetts, 505 U.S. 788, 801 (1992). Instead, the Court “would require an express statement by Congress” before applying the statute to the President. Id.; cf. Nixon, 457 U.S. at 748 & n.27 (noting that Court would require “express legislative action” by Congress before assuming it meant to include President in certain federal statutes). I would require the same here.
IV.
Because I would hold that the FTCA does not apply to the President, I would not certify the scope-of-employment question to the D.C. Court of Appeals. Nevertheless, the issue merits a few words, in case the Court of Appeals chooses to answer the majority‘s call.
I agree with the majority and the parties that the law of the District of Columbia applies. The majority thoroughly details the lack of clarity in the District‘s law with respect to whether it follows “the traditional, narrower, view of respondeat superior [or] the more modern, broader, internalization view.” Maj. Op. at 54-55. See generally id. at 38-55. All that may be true but, assuming the President is an employee for FTCA purposes, there is no question that Trump was acting outside the scope of his employment when he made at least some of the alleged defamatory remarks about Carroll‘s accusations.
The D.C. Court of Appeals applies agency principles to determine scope of employment. See, e.g., FDS Rest., Inc. v. All Plumbing Inc., 241 A.3d 222, 236-38 (D.C. 2020). In 2020, the court applied the Third Restatement to “clarify principles of agency law,” see id., and so that is what I reference here. The Restatement (Third) of Agency provides, in pertinent part, that “[a]n employee‘s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.” Restatement (Third) of Agency § 7.07.
Trump was not acting in the scope of his employment when he made comments about Carroll and her accusations because he was not serving any purpose of the federal government. Carroll alleges that Trump knew who she was when he raped her; knew in June 2019 that he had assaulted her and that his denials were false; deliberately lied, or spoke with no concern for the truth, in accusing her of fabricating the accusation as part of a political conspiracy, a plot to increase book sales, or in exchange for payment; deliberately lied, or spoke with no concern for the truth, in charging that Carroll had falsely accused other men of sexual assault; and made these comments because they were part of his “playbook” of public response to credible reports that he had assaulted women. In the context of an accusation of rape, the comment “she‘s not my type” surely is not something one would expect the President of the United States to say in the course of his duties. Carroll‘s allegations plausibly paint a picture of a man pursuing a personal vendetta against an accuser, not the United States’ “chief constitutional officer” engaging in “supervisory and policy responsibilities of utmost discretion and sensitivity.” Nixon, 457 U.S. at 751.
Despite its denial at oral argument, see Tr. at 3:9-11, the Government essentially urges adoption of a categorical rule: the President acts within the scope of employment whenever he “respond[s] to questions from the media on matters of public concern” and “to public critics.” Gov‘t Brief at
* * * * *
The district court correctly denied the Government‘s motion to substitute because the President is not covered by the FTCA. I dissent.
DENNY CHIN
Circuit Judge
Notes
Specifically, the Westfall Act provides:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
- it is of the kind he is employed to perform;
- it occurs substantially within the authorized time and space limits;
- it is actuated, at least in part, by a purpose to serve the master, and
- if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.