20-3977 (L) 

E. Jean Carroll v. Donald J. Trump 

In the

United States Court of Appeals

For the Second Circuit

August Term, 2021

Docket Nos. 20-3977-cv (L), 20-3978-cv (Con)

E. JEAN CARROLL,

Plaintiff-Appellee,

v.

DONALD J. TRUMP, IN HIS PERSONAL CAPACITY,

Defendant-Appellant,

UNITED STATES OF AMERICA

Movant-Appellant.

On Appeal from the United States District Court for the Southern

District of New York.

ARGUED: DECEMBER 3, 2021

DECIDED: APRIL 21, 2023

Before: CALABRESI, CHIN, and NARDINI, Circuit Judges.
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Defendant-Appellant Donald J. Trump and MovantAppellant the United States of America appeal from a 

judgment of the United States District Court for the Southern 

District of New York (Kaplan, Judge) denying their motion to 

substitute the United States in this action pursuant to the 

Westfall Act of 1988. In our prior opinion, we vacated the 

district court’s judgment that Trump did not act within the 

scope of his employment, and we certified to the D.C. Court of 

Appeals the following question: 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 reformulated 

our certified question in two parts, asking (1) whether the D.C. 

Court of Appeals should opine on the scope of the President of 

the United States’ employment, and (2) how the court might

clarify or modify the District of Columbia’s law of respondeat 

superior to resolve the issue in this appeal. The D.C. Court of 

Appeals answered the former part in the negative and 

provided additional guidance in response to the latter. Having 

vacated the district court’s judgment in our prior opinion, we 

REMAND for further proceedings consistent with the guidance 

provided in the D.C. Court of Appeals’ 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, 
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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 PlaintiffAppellee 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.
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PER CURIAM:

As explained more fully in our prior opinion, see Carroll v. 

Trump, 49 F.4th 759 (2d Cir. 2022) (“Carroll I”), familiarity with which 

we assume, this case requires us to determine whether, under the 

Federal Employees Liability Reform and Tort Compensation Act of 

1988 (the “Westfall Act”), 28 U.S.C. § 2679 et seq., the President of the 

United States is eligible for absolute immunity from personal liability 

for alleged tortious conduct while on the job. In 2019, when 

Defendant-Appellant Donald J. Trump was President of the United 

States, Plaintiff-Appellee E. Jean Carroll publicly accused him of 

sexual assault and rape, which she alleged occurred in the mid-1990s. 

Trump responded to Carroll’s accusations with a series of public 

statements, which, per Carroll’s complaint, not only denied her 

allegations but also accused her of making false statements about him 

and insulted her personal appearance. Carroll sued Trump in New 
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York State Supreme Court, alleging that his public statements were 

defamatory under New York law. 

The Attorney General of the United States, through a delegate, 

intervened in the suit and certified that Trump acted “within the 

scope of his office as President of the United States” when he made 

the public statements denying Carroll’s allegations. App’x at 15. 

Pursuant to the Westfall Act, that certification meant that Carroll’s 

claim would be “deemed an action against the United States” and that 

the United States would be “substituted as the party defendant.” 28 

U.S.C. § 2679(d)(1). Accordingly, the government removed the case 

to the United States District Court for the Southern District of New 

York and moved to substitute the United States for Trump. The 

District Court (Kaplan, Judge) denied the motion to substitute, 

holding that the President is not an “employee of the Government” 

under the Westfall Act, and, in the alternative, that Trump did not act 

within the scope of his employment when he allegedly defamed 
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Carroll. Carroll v. Trump, 498 F. Supp. 3d 422, 443, 457 (S.D.N.Y. 2020). 

The government and Trump appealed from that judgment.

Under the Westfall Act and the circumstances of this case, 

substitution by the United States is warranted and absolute immunity

for the President applies only if (1) the President is an “employee of 

the Government” and (2) the tortious conduct alleged was within the 

scope of the President’s employment. 28 U.S.C. § 2679(b)(1). As to 

the first prong, we held in our prior opinion, with one member of the 

panel dissenting, that the President is an employee of the government 

under the Westfall Act. Carroll I, 49 F.4th at 772; see id. at 789 (Chin, 

J., dissenting). But we expressed our uncertainty on the second prong 

because the law governing the scope of employment inquiry—

District of Columbia respondeat superior law—seemed to oscillate 

between two different doctrinal frameworks: a narrow, more 

traditional view, requiring evidence that an intentional tort benefit, or 

be for the purpose of benefiting, the employer, and a broader, more 
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modern view, which would treat any intentional tort fairly 

considered to be a part of the risks of an employer’s activity as falling 

within the scope of employment. Id. at 774-75, 780.

Because of our uncertainty and the public significance of the 

underlying issue, see, e.g., Companhia Brasileira Carbureto de Calicio v. 

Applied Indus. Materials Corp., 640 F.3d 369, 373 (D.C. Cir. 2011) (noting 

that the D.C. Circuit has certified questions to the D.C. Court of 

Appeals “when District of Columbia law is genuinely uncertain and 

the question is of extreme public importance” (internal quotation 

marks omitted)), we certified the following question to the D.C. Court 

of Appeals, subject to the recognition that the court could reformulate 

the question as it deemed appropriate: 

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? 
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Carroll I, 49 F.4th at 781. The D.C. Court of Appeals graciously 

accepted our certified question and reframed the inquiry into two 

parts. The first part asked whether the D.C. Court of Appeals “should 

opine” on “the scope of the President of the United States’ 

employment.” Trump v. Carroll, — A.3d —, 2023 WL 2920882, at *1 

(D.C. Apr. 13, 2023) (quoting Order Accepting Certified Question at 

2, Trump v. Carroll, No. 22-SP-745 (Oct. 25, 2022)). The second part 

considered how the D.C. Court of Appeals might “clarify or modify” 

District of Columbia respondeat superior law “to help resolve the 

present dispute.” Id.

We will allow the D.C. Court of Appeals’ detailed and 

thorough response to our certified question to speak for itself, but, in 

short, that court answered the first part of its reformulated question—

whether it should opine on the President’s scope of employment—in 

the negative. It reasoned that “whether the President of the United 

States was acting within the scope of his employment is a question for 
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the factfinder,” id. at *2, and declined to address such a “factbound 

question” at this stage of the proceedings, id. at *1. The D.C. Court of 

Appeals provided further guidance in response to the second part of 

its reformulated question. Specifically, it clarified that the District of 

Columbia “generally adheres to the Restatement (Second) of 

Agency’s statement of respondeat superior law as expressed in § 228” 

and “has adopted the framework as set forth in § 228(1)(a)-(d) and 

§ 228(2).” Id. The court also stated that the District of Columbia “is 

not an ‘internalization’ jurisdiction,” id.—that is, a jurisdiction that 

“hold[s] employers liable for all torts fairly regarded as risks of their 

business,” id. at *5. Additionally, it declined to adopt a categorical 

reading of Council on American Islamic Relations v. Ballenger, 444 F.3d 

659 (D.C. Cir. 2006). Id. at *1. Such a reading “would hold that the 

conduct of elected officials speaking to the press is always within the 

scope of that official’s employment,” but the District of Columbia 

instead “adhere[s] to a fact-bound inquiry to determine whether the 
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conduct of an employee is within the scope of employment.” Id. at 

*14.

Having vacated in our prior opinion the District Court’s 

judgment that Trump did not act within the scope of his employment, 

Carroll I, 49 F.4th at 761, we now REMAND to the district court for 

further proceedings consistent with the detailed guidance provided 

by the D.C. Court of Appeals. The Clerk is directed to issue the 

mandate forthwith.