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2nd Circ. Trump Ruling Is A Tale Of 2 Statutory Interpretations

By David McTaggart and Kevin Savarese
October 03, 2022

2nd Circ. Trump Ruling Is A Tale Of 2 Statutory Interpretations

By David McTaggart and Kevin Savarese
October 03, 2022

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The Federal Employees Liability Reform and Tort Compensation Act, or Westfall Act, amended the Federal Tort Claims Act to extend absolute immunity from personal tort liability to "any employee of the Government while acting within the scope of his office or employment."[1]

Until recently, no federal court had squarely addressed whether the U.S. president is an employee of the government for purposes of the Westfall Act. This question of statutory interpretation controlled the U.S. Court of Appeals for the Second Circuit's recent split decision in Carroll v. Trump.[2]

The majority opinion in Carroll answered the question affirmatively, while the dissent disagreed. Remarkably, both opinions purported to apply the same tools of statutory interpretation to reach these disparate conclusions.

Carroll v. Trump

In 2019, E. Jean Carroll sued former President Donald Trump in the New York Supreme Court alleging defamation following his June 2019 public statements responding to Carroll's allegations of sexual assault and rape.

UndeAlmost a year later, the U.S. attorney general intervened and removed the case to the U.S. District Court for the Southern District of New York, certifying that Trump was entitled to immunity under the Westfall Act as a government employee acting within the scope of his employment when he made the public statements at issue.[3]

The district court found that Trump was not entitled to the immunity afforded by the Westfall Act for two reasons: First, he was not "an employee of the Government" and second, he was not "acting within the scope of his office or employment" when he allegedly defamed Carroll.[4]

On Sept. 27, the Second Circuit vacated the district court's decision on the first issue and certified the second question of District of Columbia law to the District of Columbia Court of Appeals.

In addressing the first issue, the majority and dissenting opinions applied the same interpretive methodologies to arrive at opposite conclusions concerning whether the president is an employee of the government.

The Plain Text of the Statute

The operative statutory definitions in Title 28 of the U.S. Code, Section 2671, provide that "'employee of the government' includes ... officers or employees of any federal agency," and that "the term 'Federal agency' includes the executive departments."

The majority and dissenting opinions disagreed over whether the president is an officer or employee of the executive departments of the U.S.

The majority opinion rejected Carroll's argument that the phrase "executive departments" broadly covers the entirety of the executive branch.[5] The majority reasoned that the statute's use of the word "includes" means it is "illustrative, not exhaustive," and that the president could still be included under a broader interpretation insofar as the president is undoubtedly part of the executive branch of the U.S. government.[6]

In dissent, U.S. Circuit Judge Denny Chin agreed that the Section 2671 definition was illustrative rather than exhaustive, but disagreed that this determination ends the interpretative analysis.[7] Rather, Judge Chin reasoned that the scope of the illustrative term is best measured by the other words accompanying "executive departments," as well as by other statutes employing that term.[8]

In particular, Judge Chin drew a contrast between the term "executive departments" in Section 2671 and the term "judicial and legislative branches," to conclude the majority was too hasty in interpreting the former as coextensive with executive branch.[9]

For one, Judge Chin noted that Congress had defined the term "executive departments" elsewhere to mean just cabinet-level agencies, of which the president is not an employee.

Further, Judge Chin noted that the statute's inclusion of other executive branch employees — such as the military — was rendered superfluous by the majority opinion's broad interpretation including the entire executive branch.[10]

The Dictionary Definition of "Employee"

Having concluded that the examples in Section 2671 do not limit the definition of "employee of the government," the majority opinion turned its inquiry to the ordinary meaning of "employee" in 1946, when Congress enacted the FTCA.[11]

The majority opinion noted that hallmarks of an employee relationship at the time of the FTCA's enactment was payment of consideration to the employee in exchange for services performed for the employer.[12]

From that proposition, the majority opinion noted that Section 2671 defines an employee to include even individuals who are not compensated, thereby deducing that Congress intended to broaden the 1946 understanding of employee in its statutory definition.[13] 

The majority opinion thus concluded that the president — who renders services to the U.S. government in exchange for a salary — readily fits within the broad scope of employee as defined by Congress.[14]

Judge Chin once again agreed with the majority opinion's resort to the 1946 understanding of the term "employee," but disagreed that the question is determined by the consideration of compensation.[15] Rather, Judge Chin considered well-established agency principles to examine whether the president and the U.S. government can be considered, respectively, servant and master.[16]

Judge Chin did not believe this to be the case, noting that, as chief executive, the president is not subject to the control or supervision of any superior officer or employer.

Even impeachment is available only in the case of high crimes and misdemeanors.[17] Given the absence of a real master and servant relationship, Judge Chin concluded the president is not an employee.[18]

Supporting Case Law and Legislative History

The majority opinion bolstered its interpretation with case law from other circuit courts that interpreted the term "employee" broadly, and applied the term to high ranking officials of the other branches of the federal government, including members of Congress.[19]

The majority opinion also reasoned that the FTCA's legislative history supported this interpretation, insofar as Congress intended to provide a remedy to private litigants who previously had nowhere else to turn, without particular concern for the specific role or position of the responsible government employee.[20]

Once again agreeing with the majority opinion's approach, Judge Chin drew the opposite conclusion from the case law and legislative history. Noting that the text of the FTCA is far from clear, Judge Chin reasoned that Congress needed to explicitly name the president under the definition of "employee" for the president to be included.[21]

He then determined that the legislative history of the Westfall Act indicated that that immunity was only intended to apply to lower-level or rank-and-file workers, rather than high-ranking officials.[22]

Practical Implications

The Second Circuit's competing statutory interpretations in Carroll demonstrates that, even while ostensibly employing the same interpretive methodologies, reasonable minds can reach opposite conclusions concerning the meaning of a statute.

The majority and dissenting opinions both employed tried-and-true methods of statutory interpretation to support opposite conclusions, starting with a textualist approach, assessing contemporary understandings of the relevant terms and buttressing their divergent interpretations with legislative history.

As Bryan A. Garner and former U.S. Supreme Court Justice Antonin Scalia remarked in their 2012 book "Reading Law: The Interpretation of Legal Texts," interpretative canons alone are never dispositive, but "must be applied with judgment and discretion, and with careful regard to context."[23]

As such, a lesson from Carroll is that even a professed textualist is well-served to avoid rigidity in advocating for an interpretation on a clean slate.

Rather, the practitioner should present an interpretative argument based on grammar, common definitional understanding, historical context and policy considerations. And, importantly, the practitioner should bring humility to the process, recognizing that great minds ultimately may draw different conclusions from the textual evidence.


[1] 28 U.S.C. § 2679(b)(1).

[2] Docket Nos. 20-3977-cv (L), 20-3978-cv (Con) (2d Cir. Sept. 27, 2022) ("Second Circuit Opinion" or "Second Circuit Dissent") (

[3] Second Circuit Opinion at 9˗10.

[4] Carroll v. Trump , 498 F. Supp. 3d 422 (S.D.N.Y. 2020).

[5] Second Circuit Opinion at 22.

[6] Id. at 23˗26 (internal citation and quotation marks omitted).

[7] Second Circuit Dissent at 8.

[8] Id. (internal citation and quotation marks omitted).

[9] Id. at 9-10.

[10] Id. at 10-11.

[11] Second Circuit Opinion at 26.

[12] Id. at 27.v[13] Id.

[14] Id. at 28.

[15] See Second Circuit Dissent at 12.

[16] Id. at 12˗13.

[17] Id. at 13.

[18] Id. at 14.

[19] Second Circuit Opinion at 29˗30.

[20] Id. at 31˗32.

[21] Second Circuit Dissent at 17.

[22] Id. at 16.

[23] Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 176 (2012)

Reprinted with permission of Law360.