In the United States Court of Appeals For the Second Circuit

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

E. JEAN CARROLL, Plaintiff-Appellee,

v.

DONALD J. TRUMP, IN HIS PERSONAL CAPACITY, Defendant-Appellant,

UNITED STATES OF AMERICA Movant-Appellant.

On Appeal from the United States District Court for the Southern District of New York.

ARGUED: DECEMBER 3, 2021 DECIDED: APRIL 21, 2023

Before: CALABRESI, CHIN, and NARDINI, Circuit Judges. Defendant-Appellant Donald J. Trump and Movant- Appellant the United States of America appeal from a judgment of the United States District Court for the Southern District of New York (Kaplan, Judge) denying their motion to substitute the United States in this action pursuant to the Westfall Act of 1988. In our prior opinion, we vacated the district court’s judgment that Trump did not act within the scope of his employment, and we certified to the D.C. Court of Appeals the following question: Under the laws of the District, were the allegedly libelous public statements made, during his term in office, by the President of the United States, denying allegations of misconduct, with regards to events prior to that term of office, within the scope of his employment as President of the United States? The D.C. Court of Appeals reformulated our certified question in two parts, asking (1) whether the D.C. Court of Appeals should opine on the scope of the President of the United States’ employment, and (2) how the court might clarify or modify the District of Columbia’s law of respondeat superior to resolve the issue in this appeal. The D.C. Court of Appeals answered the former part in the negative and provided additional guidance in response to the latter. Having vacated the district court’s judgment in our prior opinion, we REMAND for further proceedings consistent with the guidance provided in the D.C. Court of Appeals’ opinion.

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,

2 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.

3 PER CURIAM:

As explained more fully in our prior opinion, see Carroll v. Trump, 49 F.4th 759 (2d Cir. 2022) (“Carroll I”), familiarity with which we assume, this case requires us to determine whether, under the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the “Westfall Act”), 28 U.S.C. § 2679 et seq., the President of the United States is eligible for absolute immunity from persona