Carroll v. Trump

• Decision Date: 26 October 2020
• Docket Number: 20-cv-7311 (LAK)
• Citation: 498 F.Supp.3d 422
• Parties: E. Jean CARROLL, Plaintiff, v. Donald J. TRUMP, in his personal capacity, Defendant.
• Court: U.S. District Court — Southern District of New York

498 F.Supp.3d 422

E. Jean CARROLL, Plaintiff,

v.Donald J. TRUMP, in his personal capacity, Defendant.

20-cv-7311 (LAK)

United States District Court, S.D. New York.

Signed October 26, 2020

Filed October 27, 2020

Roberta A. Kaplan, Joshua A. Matz, Kaplan Hecker & Fink LLP, Attorneys for Plaintiff.

Stephen R. Terrell, William K. Lane III, James G. Touhey, Jr., Director, Torts Branch, Civil Division, Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, Attorneys for Movant.

John A. Kolar, Attorney for Amicus Curiae Government Accountability Project, Inc.

Lewis A. Kaplan, District Judge.

Table of Contents

Facts...428

Statutory Context – The FTCA and the Westfall Act...428

The Events Giving Rise to This Lawsuit...430

Procedural Background...432

Discussion...432

I. Whether the President Is an "Employee" Under the Westfall Act...433

A. The Plain Language...434

B. The Legislative History – The Westfall Decision and the Westfall Act...438

C. Franklin v. Massachusetts and Lack of Clear Statement to Include the President...439

D. Decisions of Other Courts...442

II. Scope of Employment...443

A. Choice of Law...443

B. Scope of Employment Under D.C. Law...447

1. Master-Servant Relationship...447

2. Scope of Employment Test...450

C. Scope of Employment Under New York Law...456

Conclusion...457

The plaintiff in this case, E. Jean Carroll, published a book excerpt in 2019 in which she wrote that, in the 1990s, businessman Donald J. Trump, as he then was, raped her in a dressing room of a New York City department store. Almost immediately after publication of Ms. Carroll's excerpt, Mr. Trump – who by then was president – told the press that Ms. Carroll had made up the rape story. In substance, he called Ms. Carroll a liar and stated that he never met her. So Ms. Carroll sued him in New York State court. She claims that his statements accusing her of lying about the alleged rape were false, that they injured her reputation, and that she is entitled to damages from him. The legal terms are that Ms. Carroll asserts that President Trump's statements were defamatory – libelous and slanderous.

The question whether Mr. Trump in fact raped Ms. Carroll appears to be at the heart of her lawsuit. That is so because the truth or falsity of a defendant's alleged defamatory statements can be dispositive of any defamation case. Although the Court eventually may need to resolve this issue, this opinion concerns a threshold question. To make the significance of that question clear, we must digress into some technical detail.

Ms. Carroll sued the president in his individual (or personal) capacity, as distinguished from suing him as the president (i.e. , in his official capacity). In other words, she claims that the president personally harmed her and that he, not the U.S. government, should pay any damages to which she may be entitled.

For nearly a year, this lawsuit proceeded in state court as an ordinary defamation case between Ms. Carroll and President Trump. The president defended the case as a private individual. He was represented by his personal lawyers, not by the U.S. Department of Justice ("DOJ") or other government lawyers. And although he claimed that he could not be sued because he currently is president, the state court rejected that argument and denied a stay of further proceedings, which would have included pretrial discovery.¹

It was at that point that the U.S. government inserted itself into the case. It "removed" the case from the state court to this one – that is, it filed a paper certifying that a designee of the Attorney General had determined that the president's statements to the press were part of his job as president and that this case therefore could be moved into federal court. For reasons that will appear, that certificate – whether it is right or wrong – conclusively authorized the removal of the case, and no one claims otherwise. But the DOJ did something else too, and that is what now is before the Court.

The government moves to substitute the United States for President Trump as the defendant. It does so in essence on the theory that this is not truly a lawsuit against President Trump as a private individual. Instead, the government argues, this is really a lawsuit against the United States because Ms. Carroll has sued an "employee" of the United States of America for actions within the scope of his employment. The government thus asserts that this case is virtually identical in principle to a lawsuit against a Postal Service driver for causing a car accident while delivering the mail. But the word "virtually" in the last sentence is necessary because there is an important difference between this case and the case of the hypothetical mail driver. Here is the catch.

The United States of America is a sovereign nation. It therefore shares with other nations what is called sovereign immunity. This means that it cannot be sued for money damages except to the extent that it explicitly has agreed to being sued.²

Within certain limits, the United States has so agreed in a statute called the Federal Tort Claims Act (the "FTCA"). The FTCA authorizes damages claims for negligence and certain other civil wrongs committed by government employees within the scope of their employment. The postal driver hypothetical is a classic example of a case that generally would be covered by the statute. But the FTCA specifically excepts libel and slander cases from the United States's consent to be sued. Thus, if this really is a suit against the United States, it is one to which the United States seemingly has not waived its sovereign immunity. So if President Trump is an "employee of the Government" within the meaning of the FTCA, and if his statements about Ms. Carroll were within "the scope of his employment," it could well be argued that this case must be dismissed because the United States has sovereign immunity.³ In that event, Ms. Carroll would be left with no remedy, even if the president's statements were false and defamatory.

This is the nutshell version of this case. But for the present purpose of deciding the government's motion to substitute, the dispositive questions are two:

• Is the president an "employee of the Government" within the meaning of the FTCA?

• Even if the president is an "employee of the Government" as the FTCA defines that term, were his statements concerning Ms. Carroll within the scope of his "employment" under the law of the relevant jurisdiction?

The answer to both questions is "no." While the president possesses all of the executive power of the United States, he is not an "employee" within the meaning of the FTCA. The FTCA's definition of that term does not include presidents. And even if the president were an employee under that statute, his statements concerning Ms. Carroll were not within the scope of his employment under the law of the relevant jurisdiction, which for reasons explained below is Washington, D.C.

Facts

Before turning to the details of this dispute, the Court places them in context by reviewing the constitutional and statutory framework in which this motion is situated.

Statutory Context – The FTCA and the Westfall Act

We already have introduced the principle of sovereign immunity. It remains to mention a closely related principle, namely that federal employees and the president long enjoyed absolute official immunity with respect to lawsuits in federal courts charging them with liability for performance of their official functions.⁴

In 1946, Congress enacted the FTCA. The statute was a major step to provide compensation to victims of certain torts – i.e. , civil wrongs such as negligence – committed by federal employees. As relevant here, the FTCA provides that the district courts of the United States

"have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."⁵

Although the FTCA's precise workings are complicated, its basic function is simple. With numerous qualifications and exceptions, the statute allows a person injured by an "employee of the Government" who is "acting within the scope of his office or employment" to sue the United States for tort damages, notwithstanding its sovereign immunity, if the United States would be liable as an employer under the law of the state where the act or omission occurred. Thus, Congress adopted the view that (1) a suit for damages against a federal employee acting within the scope of his or her employment in substance is a suit against the United States, (2) in such a case the United States would be substituted as the defendant for the individual employee, and (3) the United States is responsible for defending such lawsuits in the name of the United States and for paying any damages awarded. The individual employee sued in his or her official capacity is not a proper defendant in such a case.

The FTCA does not authorize suits against government employees in their individual or personal capacities. But state law often does. Thus, even after the FTCA was enacted, federal employees were exposed to tort actions against them in their individual capacities in some states.

In 1988, the Supreme Court held in Westfall v. Erwin⁶ that federal government employees are not absolutely immune from state tort claims based on conduct performed within the scope of their employment except in certain circumstances. ⁷

This decision opened the door to individual liability for federal employees wider than previously had been understood.

Congress moved promptly to close that door. In 1988, it enacted the Federal Employees...