Second Circuit – Westfall Act: E. Jean Carroll v. Donald J. Trump

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United States Court of Appeals for the Second Circuit

Westfall Act

Employee – President of the United States

E. Jean Carroll v. Donald J. Trump

20-3977 (L)

Judges Calabresi, Chin, and Nardini

Background: The defendant-appellant, Donald J. Trump, and movant-appellant, the United States of America, appealed from a judgment denying their motion to substitute the United States in an action pursuant to the Westfall Act. They 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 the plaintiff’s sexual assault allegations.

Ruling: The Second Circuit reversed. The court noted that at issue is whether the president of the United States is eligible for the absolute immunity under the Westfall Act. The Second Circuit certified a question to the D.C. Court of Appeals regarding whether the President of the United States is an employee of the United States government for purposes of the Westfall Act.

Mark R. Freeman, of the U.S. Dept. of Justice, and Alina Habba, of Habba Madaio & Associates, for the defendants-appellants; Joshua A. Matz, of Kaplan Hecker & Fink, for the plaintiff-appellee.