The 2nd Circuit's en banc denial in Carroll v. Trump clears the path for a Supreme Court petition on whether the Westfall Act shields a president from personal defamation liability.
The U.S. Court of Appeals for the 2nd Circuit has denied en banc rehearing of Trump's Westfall Act argument in E. Jean Carroll's defamation suit, leaving intact a panel ruling that refused to substitute the federal government as the defendant in the case [1]. Trump's legal team responded the same day by moving to stay the ruling pending the filing of a certiorari petition to the Supreme Court [1]. The split vote on rehearing signals that at least some judges on the court found the legal question substantial enough to contest, even as the majority declined to revisit it.
The Westfall Act dispute has run as a parallel track inside Carroll v. Trump for years. Carroll originally sued Trump for defamation based on statements he made denying her account of sexual assault. Trump's lawyers argued that those statements, made while he was president, qualified as conduct within the scope of his federal employment, which would trigger the Westfall Act's substitution mechanism, replace Trump with the United States as defendant, and effectively extinguish the suit because the government cannot be sued for defamation under the Federal Tort Claims Act. The panel rejected that theory, and the 2nd Circuit's refusal to reconsider it en banc now exhausts Trump's options at that court [1].
The significance of the ruling extends beyond the Carroll litigation. If the Supreme Court grants certiorari, the justices would be asked to define the outer boundary of "scope of employment" for a sitting president, specifically whether public denials of personal misconduct, delivered through official channels, can be characterized as official acts for Westfall Act purposes. That question sits adjacent to, but is analytically distinct from, the immunity doctrine the Court addressed in Trump v. United States in 2024. A ruling for Trump on the Westfall Act theory would not establish criminal immunity but would effectively immunize a president from personal civil liability for defamatory speech by routing such claims into a jurisdictional dead end.
Trump's stay motion asks the 2nd Circuit to hold the mandate while the cert petition is prepared and filed [1]. If the court denies the stay, Trump could seek an emergency application before the Supreme Court. The timeline for a cert petition would ordinarily run 90 days from the en banc denial, though the Court can extend that period on motion. Carroll's legal team has not yet responded publicly to the stay request.