On April 13, 2023, the en banc District of Columbia Court of Appeals issued its decision in response to a certified question from the Second Circuit. Rather than weighing in directly on whether former President Trump’s statements concerning E. Jean Carroll’s sexual assault allegations were within the scope of his employment under the respondeat superior standards in District of Columbia law, the en banc court took the opportunity to restate and clarify the general respondeat superior inquiry. District of Columbia practitioners who watched the oral argument may have breathed a sigh of relief that the court resisted the temptation to tailor a legal standard of great importance to ordinary tort litigation in the District of Columbia to the unique circumstances of a case presented by litigation in New York. The court also declined the Second Circuit’s invitation to adopt an “internalization” standard that places on the employer broad liability for foreseeable harms. In addition, the court declined to adopt a categorical rule “that the conduct of elected officials speaking to the press is always within the scope of that official’s employment.” Trump v. Carroll, D.C. Ct. App. No. 22-SP-745, Slip Op. at 39 (Apr. 13, 2023). Instead, the court explicated a fact-intensive scope of employment inquiry which it concluded was for the factfinder in the case, not something that could be decided as a matter of law on the record before the court. Id. at 41.
The court gave the following brief answer to the question whether the former president had acted within the scope of his employment when he made allegedly defamatory statements denying a sexual assault:
Under the law of the District of Columbia, and on the record before us, whether the President of the United States was acting within the scope of his employment is a question for the factfinder. The record provided to this court would not entitle either party to judgment as a matter of law under any of the standards that govern motions to dismiss, motions for summary judgment, or motions for judgment notwithstanding the verdict. Further, there may also have been additional, critical facts elicited since the certification of the question of law to this court during the completion of discovery, in particular during the deposition of the former President. It is not at all clear to us that the Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly referred to as the “Westfall Act,” 28 U.S.C. § 2679 et seq., requires an answer to this scope-of-employment question as a matter of law at this preliminary stage. To the extent that it does, then we have no special expertise in answering that question and merely clarify our law to aid the Second Circuit or the United States District Court for the Southern District of New York in doing so. Cf., e.g., Lyons v. Brown, 158 F.3d 605, 609 (1st Cir. 1998) (“Federal law determines whether a person is a federal employee and defines the nature and scope of [the person’s] official responsibilities.”).
Id. at 4-5. This response leaves open not only the bottom-line question whether the former president was within the scope of his employment under District of Columbia law, but procedurally how that question should be answered in the context of the Westfall Act, and to what extent the scope of the president’s employment for purposes of the Westfall Act really is a question of “state” law.
I want to offer two further observations in light of the Court’s decision. First, the D.C. Court of Appeals decision seems to envision that the “scope of employment” question is something that would be resolved by a factfinder at trial on a complete evidentiary record. But that is inconsistent with both the structure and the purpose of the Westfall Act. It was apparent from the oral argument that the parties had not briefed and did little to help the court understand the procedural context of the scope of employment question under the Westfall Act. Many questions at the argument seemed to assume that the scope of employment question should be resolved by a jury following instructions consistent with the court’s opinion. But that cannot be. Either the case is against the former president personally, in which event scope of employment doesn’t matter and is not an issue for the jury, or the case is against the United States, which retains sovereign immunity to the defamation claim and wins dismissal as a matter of law. I cannot see any reasonable scenario in which scope of employment would be an issue for trial. Moreover, the whole point of the Westfall Act is to protect federal employees by relieving them of the burden of litigation as well as liability (which could be achieved by indemnification alone). Suspending the question of substitution to the conclusion of a jury trial would largely if not entirely defeat that purpose. Indeed, the House Judiciary Committee report on the legislation lamented that the Supreme Court’s decision hinging the immunity of federal officials on the degree of discretion they had in carrying out their duties would make it harder to resolve cases at an early stage: “Under Westfall, summary judgments and dismissals will no longer be readily available because the additional determination as to whether the employee exercised governmental ‘discretion’ will always be a fact-based determination. Thus, the transaction costs (i.e. litigation costs) and length of time needed to resolve the issue of discretion in these cases will be substantially increased, as will the uncertainty for the individual employee who is sued.” H.R. Rep. No. 100-700 at 3 (June 14, 1988). The same would be true if determining whether the proper party was the employee or the United States remained an open question for the factfinder at trial.
The Act makes the Attorney General’s certification of scope of employment conclusive for purposes of removal, permits the employee to petition for substitution of the United States absent certification, and has been construed to permit judicial review of substitution following removal. But nothing in the Act suggests that the United States, having prevailed as to removal on a representation that the employee was acting within the scope of employment, could turn around and assert as a defense at trial that the employee was not acting within the scope of employment.
Second, the D.C. Court of Appeals’ decision, while clarifying District of Columbia respondeat superior law, makes it harder to determine whether the United States can be substituted as a defendant under the Westfall Act scope of employment standard. The court was right that it has no “special expertise” in the scope of employment of the President of the United States. The difficulty in delineating that scope is what prompted the Supreme Court instead to tie presidential immunity to the “outer perimeter” of the president’s official duties (meaning, of course, that unlike an ordinary federal employee, the president has no need of Westfall Act protection). And the House Judiciary Committee report stresses that the Act preserves recognized federal official immunities, including specifically presidential immunity. H.R. Rep. No. 100-700 at 5. The report says that Congress was worried that the “possible exposure of Federal employees to personal liability could lead to a substantial diminution in the vigor of Federal law enforcement and implementation.” Id. at 3. That surely would not have been a concern about presidential conduct already shielded by immunity within the “outer perimeter” of his official duties. While it is also true that state courts generally have no special expertise in determining the official duties of any federal employee, presidential “outer perimeter” immunity makes it improbable that Congress intended for Westfall Act substitution to be used for the president.
The First Circuit, in the sentence quoted in part in the court’s brief answer to the second question, wrote: “Federal law determines whether a person is a federal employee and defines the nature and contours of his official responsibilities; but the law of the state in which the tortious act allegedly occurred determines whether the employee was acting within the scope of those responsibilities.” Lyons v. Brown, 158 F.3d 605, 609 (1st Cir. 1998). While the interaction of the two parts of the sentence are not clear, one way to understand the First Circuit’s statement and the D.C. Court of Appeals’ decision is that the federal question of “the nature and contours” of a person’s “official responsibilities” is just an input into an analysis of the employer’s vicarious liability (like the District of Columbia’s) that considers additional facts such as the employee’s purpose.1 If so, state law could theoretically play a role in addition to federal law in determining scope of employment under the Westfall Act, but the same threshold question for the same position or even the same employee could then have different answers for the same conduct in different states—answers that would often be unknown when Westfall Act substitution has to be decided. (For example, federal law might establish that the president’s function includes answering questions posed by the press and issuing press releases, but District of Columbia law might also ask whether the president’s purpose in making a particular statement was at least in part to advance the interests of the United States.) And the question state law would be answering would not really be about the scope of employment, but about the standards determining the secondary tort liability of the employer. But that would mean there would be one federal scope of employment standard for certification, and a different standard partially derived from state law to determine whether the United States can substitute itself as a party, which is not consistent with the statutory text. 28 U.S.C. § 2679(d)(2) treats substitution as flowing from the Attorney General’s certification, so the standards must be the same.
The idea behind borrowing state tort law for Federal Tort Claims Act liability was to give injured parties the same redress against the federal government as they would have against a private party where the tort occurred. But that policy doesn’t logically carry over to the question of substituting the United States for the employee with the result (as in the Carroll case) of denying the injured party any redress because of federal sovereign immunity. So it makes no sense to treat the employer liability standard as a separate question of state law. Moreover, that would mean that the Attorney General would have to master and apply the respondeat superior law of each state before making a certification decision. As explained in an earlier post, the question answered by the Attorney General’s certification has to be a federal question to support federal jurisdiction and removal—meaning that the Attorney General must apply a uniform federal scope of employment standard, not a standard that varies from state to state.
Policy, as well as the practical difficulties of making certification decisions based on state law and the need to establish federal jurisdiction for removal, also require a uniform federal standard for the federal government’s substitution as a party. Judge Calabresi’s concurring opinion for the Second Circuit pushes for an internalization approach to employer liability. But whether that is the right policy choice for the federal government would seem to be a question for Congress to consider—what rules most appropriately balance the compensation of injured parties against the protection of federal employees from undue timidity in their official duties because of the threat of liability—not something states can decide differently. The policy choices that states make for private employers vary and adopting them would create inconsistency and incoherence in the administration of the Westfall Act. It only makes sense to read the Westfall Act as contemplating a uniform federal scope of employment standard that reflects the policies of providing compensation for persons injured by federal employees within the scope of their employment and protecting federal employees from the hazards of personal liability and the burdens of litigation.
The Second Circuit now has the chance to fix its earlier mistake and rule that the Westfall Act just doesn’t apply to the president, who has immunity within the outer perimeter of his official duties and therefore had no need of a congressional rescue from Supreme Court abrogation of immunity in 1988. If it doesn’t, it might at least take the hint from the D.C. Court of Appeals and rule that the Attorney General’s certification, in reliance on a categorical approach to an elected official’s statements to the media without regard to whether the official was advancing an official purpose or a personal one, was erroneous given that the United States has taken the position that substitution depends on District of Columbia law.
1 The House Judiciary Committee report refers to the Williams per curiam opinion as establishing that state law governs the scope of employment inquiry for purposes of liability under the FTCA (where the plaintiff must establish scope of employment to prevail). H.R. Rep. No. 100-700 at 5. But the report is unclear about how the scope of employment decision should be made under the Westfall Act for purposes of certifying removal and deciding whether substitution is warranted. The report refers to a complex ten factor analysis, seemingly as a synthesis of disparate state law approaches. Id. at 6 (“Among the factors cited are: whether or not the act is one commonly done by such employee; the time, place, and purpose of the act; whether or not the act is outside the enterprise of the employer, or if within the enterprise, whether or not it has been entrusted to any employee; whether or not the employer has reason to expect that such an act will be done; the similarity in quality of the act done to the act authorized; whether or not the instrumentality by which the harm was done was furnished by the employer to the employee; the extent of departure from the normal method of accomplishing an authorized result; and whether or not the act is seriously criminal.”).
