President Trump Loses Bid to Have U.S. Substituted in His Place in Carroll v. Trump Libel Case
From Carroll v. Trump, handed down today by Judges Denny Chin, Sarah Merriam, and Maria Araújo Kahn:
On April 11, 2025, after this appeal was fully briefed, defendant-appellant President Donald J. Trump and the government ("the Movants") jointly moved to substitute the United States as a party to this appeal pursuant to the Westfall Act, 28 U.S.C. § 2679(d). Attached to the motion was an April 11, 2025, certification by a delegate of the Attorney General that Trump was acting in the scope of his office or employment at the time he made the statements underlying this defamation action….
On June 18, 2025, this Court denied the motion. We write now to articulate our reasoning for that denial. Specifically, we denied the motion for three independent reasons. First, the motion is statutorily barred by the text of the Westfall Act. Second, even assuming it was not statutorily barred, both Trump and the government waived any right to now move for substitution by failing to request substitution after the case returned to the District Court following earlier appellate proceedings. Finally, and in any event, principles of equity counsel in favor of denying the belated motion….
On November 4, 2019, Carroll filed this action in New York state court, asserting a single count of defamation per se against Trump in his individual capacity, based on statements he made in June 2019 during his first term as President of the United States. The litigation proceeded in state court until September 2020 when then-Attorney General William Barr, through his delegate, certified that Trump had been acting within the scope of his employment when he made the statements, removed the case to the United States District Court, and filed a motion pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(2), seeking to substitute the United States as the defendant. Certification is conclusive for purposes of the removal to federal court, but the question of substitution is subject to judicial review. Upon such review, the District Court denied the motion to substitute.
Trump filed an interlocutory appeal from that ruling, and on September 27, 2022, a divided panel of this Court reversed in part, vacated in part, and certified a question to the D.C. Court of Appeals. Specifically, this Court (1) reversed the District Court's finding that Trump was not an "employee of the Government" under the Westfall Act; (2) vacated the District Court's determination that Trump was not acting within the scope of his employment when he made the statements at issue; and (3) certified the scope-of-employment question to the D.C. Court of Appeals.
On April 13, 2023, the D.C. Court of Appeals clarified the scope of the doctrine of respondeat superior under District of Columbia law but declined to resolve the ultimate question of whether Trump was acting within the scope of his employment when he made the statements underlying Carroll's defamation claim. We then remanded this matter to the District Court with instructions for it to apply the clarified D.C. law to the facts of this case.
On remand, the government filed a letter contending: "[T]he prior certification and motion to substitute have been overtaken by events. The Attorney General should therefore be given the opportunity to decide anew whether to certify that Mr. Trump was acting within the scope of his office as President at the time of the incidents out of which the plaintiff's claim arose, and to do so with respect to the allegations that are set forth in the operative complaint." On June 13, 2023, the District Court granted this request:
In all the circumstances, any further submission by the United States (including any new or amended certification and/or motion to substitute) and/or the defendant with respect to substitution of the United States for the defendant shall be served and filed no later than July 13, 2023.In response, on July 11, 2023, the government notified the District Court:
[I]n light of the D.C. Court of Appeals' clarification of the standard for respondeat superior liability under D.C. law, see Trump v. Carroll, 292 A.3d 220 (D.C. 2023), as well as new factual developments, the Department of Justice is declining to certify under the Westfall Act, 28 U.S.C. § 2679(d), that defendant Donald J. Trump was acting within the scope of his office and employment as President of the United States when he made the statements that form the basis of the defamation claims in plaintiff's Amended Complaint in this action.No further action was taken in the District Court by Trump or the government regarding Westfall Act substitution. The case proceeded to trial, and in January 2024, the jury rendered a verdict in Carroll's favor.
Trump appealed. On January 20, 2025, Trump was sworn into office for his second term as President. On April 11, 2025—when Trump had been President for nearly three months and this appeal had been fully briefed for nearly two months—Trump and the government jointly moved in this Court to substitute the United States as a party under the Westfall Act. We issued an order on June 18, 2025, in advance of oral argument, denying the motion. We write to explain the bases for that decision….
There's a lot more, but here's an excerpt:
But Trump—the "employee" under this language—waived his right to petition for certification under that subsection…. On July 11, 2023, the Attorney General declined to certify that Trump was acting within the scope of his employment at the time the statements were made. Trump could have moved, at that time, under § 2679(d)(3). He declined to do so. Indeed, at no time after the remand did Trump file anything regarding substitution in the District Court. By declining to seek such relief, Trump waived his right to now bring this motion.
Roberta A. Kaplan, D. Brandon Trice, Maximilian T. Crema, Thomas A. Lloyd, and Avita Anand (Kaplan Martin LLP) represent Carroll.