| In Carroll v
Trump Case 2d Circuit Reverses on Westfall
Act and Certifies to DC Circuit
By Matthew
Russell Lee, Patreon
BBC
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UK - Honduras
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SDNY COURTHOUSE,
Sept 27 – In case of E. Jean
Carroll, argument on making
the US a defendant seemed set
to begin, back on October 21,
2020. DOJ lawyer Stephen
Terrell, who asked to adjourn
it since he was barred
from U.S. District Court
for the Southern District of
New York courthouse due to
Virginia being on quarantine
list, called in. Inner City
Press live tweeted it, below.
On September 27,
2022, a three-judge panel of
the Second Circuit Court of
Appeals ruled: "6 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, J.) denying
their motion to substitute the
United States in this action
pursuant to the Westfall Act
of 1988. On appeal, appellants
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
Plaintiff-Appellee E. Jean
Carroll’s 2019 sexual assault
allegations. We REVERSE
the District Court’s holding
that the President of the
United States is not an
employee of the government
under the Westfall Act. And we
VACATE the District Court’s
judgment that Trump did not
act within the scope of his
employment, and CERTIFY that
question to the D.C. Court of
Appeals. Judge Calabresi
concurs in a separate opinion,
and Judge Chin dissents in a
separate opinion." Full
decision(s) here.
Watch this site.
Back on February
22, 2022, Trump's lawyers
argued to amend their
complaint to include new
provisions of NYS' anti-SLAPP
law. Judge Kaplan heard and
spoke to the arguments; Inner
City Press live tweeted here
and below.
Now on
September 20, suddenly
docketed in the case are
letters from Carroll's counsel
dated August 8, stating that
she wants to depose Trump as
well as sue under NYS' Adult
Survivors Act as soon as
possible (November 24,
2022). Letter on Patreon
here.
Trump's lawyer
Alina Habba on August 11, 2022
said Carroll's "request must
be disregarded in its
entirety." Whether the delayed
docketing means Judge Kaplan
is soon is rule is not known.
Watch this site.
Back on March 11,
after a New York State
decision, Judge Kaplan dropped
the hammer on Trump's
arguments, see below.
On July 19
Judge Kaplan issued a new
schedule: "The existing
scheduling order (Dkt 76) is
supplemented as follows: 1.
All discovery shall be
completed on or before
November 16, 2022. 2. Any
summary judgment motions and a
joint pretrial order in the
form attached as Annex A to
the individual practices of
the undersigned (which are
posted on the Court's web
site) shall be filed on or
before December 1, 2022. 3.
Absent prior disposition of
the case by motion or
otherwise, the trial will
commence on February 6, 2023
at 9:30 a.m. 4. The parties
shall exchange premarked trial
exhibits no later than
December 8, 2022. 5. Any
motions in limine and
oppositions thereto shall be
filed no later than December 8
and December 15, 2022,
respectively. SO
ORDERED.(Signed by Judge Lewis
A. Kaplan on 7/19/2022)."
From the March 11
docket: "ENDORSED LETTER
addressed to Judge Lewis A.
Kaplan from Roberta A. Kaplan
dated 3/10/22 re: notify the
Court of the attached decision
issued by a unanimous panel of
the Appellate Division, First
Department this afternoon.
ENDORSEMENT: The Appellate
Division of the New York
Supreme Court yesterday held
the 2020 amendment to N.Y.
Civ. Rts. L. § 76-a has only
prospective effect. Gottwald
v. Sebert, _ A.D. 3d _, Index
No. 653118/2014 (1st Dep't
filed Mar. 10, 2021). Its
logic applies equally to the
all of the 2020 amendments to
the anti-SLAPP law. In the
absence of compelling reasons
to believe that the New York
Court of Appeals would reach a
different result, this Court
is obliged under Erie to
follow it. E.g., Hicks on
Behalf of Feiockv. Feiock, 485
U.S. 624, 629-30 & n.3
(1988) (quoting West v. Am.
Tel. & Tel. Co., 311 U.S.
223, 237 (1940)); AEI Life LLC
v. Lincoln Benfit Life Co.,
892 F.3d 126, 138-39 &
n.15 (2d Cir. 2018) (quoting
Pahuta v. Massey-Ferguson,
Inc., 170 F.3d 125, 134 (2d
Cir. 1999); Pentech Int'l,
Inc. v. Wall Street Clearing
Co., 983 F.2d 441, 445 (2d
Cir.1993); Deeper Life
Christian Fellowship, Inc. v.
Sobol, 948 F.2d 79, 84 (2d
Cir.1991). Nevertheless,
contrary to plaintiff's
suggestion, this does not moot
the issues addressed in the
opinion dated March 10, 2021
(Dkt. 73), as N.Y. Civ. Rts.
L. § 70-a applies not only to
the commencement of a covered
action, but also to its
continuation. SO ORDERED.
(Signed by Judge Lewis A.
Kaplan on 3/11/22)." We'll
have more on this.
From Feb 22:
Judge Kaplan says courts have
found it doesn't apply in
Federal court, so might be
futile.
Judge Kaplan:
Where is that case you are
citing from?
Trump's lawyer:
The Eastern District.
Judge Kaplan:
Last I checked, what I have on
my wall gives me just as much
say as that judge over there,
doesn't it?
Trump's lawyer: I
suppose it does, Your Honor.
Judge Kaplan: And
why can't Ms. Carroll cite
this anti-SLAPP law against
Mr. Trump's counter-claim?
Trump's
lawyer: She could. That's what
litigation is all about. I'm
not trying to get into the
merits --
Judge Kaplan: Oh,
I understand you're not trying
to get into the merits....
This is a he said - she said
case. Mr Trump says it didn't
happen, and some other things.
If Ms. Carroll prevails that
it did happen, obviously there
was a substantial basis. But
she could lose and that could
still be the case...
Trump's 2d
lawyer: We're seeking to
preserve our rights for our
client. On attorneys' fees, it
can't be futile if our client
would be entitled to
attorney's fees if wins at
trial. Judge Kaplan: But it
would be futile if the statute
doesn't apply in Federal court
Judge
Kaplan: Thank you I have your
points [and will issue a
ruling at a later date]. I
have a deliberating jury and
have to get back to them.
[Inner City Press is covering
that case too, US v. Johnson
for Instagram threats to Sen
Manchin, here
OBack on
October 27, 2020 Judge Lewis
A. Kaplan ruled, "the
allegations have no
relationship to the official
business of the United States.
To conclude otherwise would
require the Court to adopt a
view that virtually everything
the president does is within
the public interest by virtue
of his office. The government
has provided no support for
that theory, and the Court
rejects it as too
expansive. The
President of the United States
is not an "employee of the
Government" within the meaning
of the relevant statutes....
Accordingly, the motion to
substitute the United States
in place of President Trump
[Dkt. 3] is denied."
On December 10,
2020 Marc Kasowitz for Trump
asked for a stay of all
proceedings, arguing that the
District Court is divested of
jurisdiction during the
appeals to the Second Circuit.
"Moreover, the district court
is divested of jurisdiction
even '[w]hen qualified
immunity is in issue' on
appeal," citing Garcia v.
Bloomberg, 11-cv-6957
(Rakoff).
Back on October
21, Judge Kaplan denied any
postponement, and noted he "is
not authorized to vary the
existing restrictions on entry
into the courtroom."
Judge Kaplan
begins: I had an application
to adjourn and I denied it.
What do you want to do?
US: We elect to
submit on the briefs, with no
argument.
Ms. Kaplan: Jean
drove some distance to be in
court today. This is
essentially a dispositive
motion....
Ms Kaplan:
There is no exception to
sovereign immunity for
intentional torts. We'd like a
chance to further brief.
Judge Kaplan: I
invoke the principle that new
arguments in a reply brief
will not be considered. Does
the US agree? US: Yes.
Judge Kaplan:
Matter is taken under
submission. I'm sorry so many
people were inconvenienced.
Adjourned.
The case is
(still) named Carroll
v. Trump, 20-cv-7311
(Kaplan).
Then:
***
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