Carroll v. Trump

• Decision Date: 27 September 2022
• Docket Number: Docket Nos. 20-3977-cv (L),20-3978-cv (Con),August Term 2021
• Citation: 49 F.4th 759
• Parties: E. Jean CARROLL, Plaintiff-Appellee, v. Donald J. TRUMP, in His Personal Capacity, Defendant-Appellant, United States of America, Movant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

49 F.4th 759

E. Jean CARROLL, Plaintiff-Appellee,
v.
Donald J. TRUMP, in His Personal Capacity, Defendant-Appellant,

United States of America, Movant-Appellant.

Docket Nos. 20-3977-cv (L)
20-3978-cv (Con)
August Term 2021

United States Court of Appeals, Second Circuit.

Argued: December 3, 2021
Decided: September 27, 2022

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.

Before: Calabresi, Chin, and Nardini, Circuit Judges.

Guido Calabresi, Circuit Judge:

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 28 U.S.C. § 2679(b)(1). But in order to claim this immunity, the employees must prove two things: (1) that they are qualifying government officials for purposes of the Westfall Act, and (2) that the tortious conduct they purportedly engaged in was within the scope of their employment. If these requirements are met, the United States is substituted for the employee as the sole defendant in the tort suit. And from there, the action proceeds against the United States in accordance with the rules

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set forth in the Federal Tort Claims Act ("FTCA"). See id. §§ 2679(d)(1), 1346(b)(1).

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

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did she report it to law enforcement authorities.

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.

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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,

...