Second Circuit Leaves Intact: (1) a Pre‑Trial Constraint on Westfall Act Substitution in State‑Filed Cases, and (2) Waiver/Law‑of‑the‑Case Limits on Re‑Litigating Presidential Immunity

I. Introduction

Carroll v. Trump (Second Circuit, Apr. 29, 2026) is an order denying rehearing en banc following two per curiam panel decisions issued in 2025: Carroll v. Trump, 148 F.4th 110 (2d Cir. 2025) (per curiam) ("Carroll 5") (rejecting a post-trial Westfall Act substitution motion) and Carroll v. Trump, 151 F.4th 50 (2d Cir. 2025) (per curiam) ("Carroll 6") (affirming an $83.3 million damages judgment and rejecting renewed presidential-immunity arguments).

The litigation arises from two related actions brought by E. Jean Carroll against Donald Trump: (1) Carroll I (defamation based on June 2019 statements made while Trump was President) and (2) Carroll II (sexual assault and defamation based on October 2022 statements made after Trump left office). The en banc petitions attacked the panel’s handling of (a) substitution under the Westfall Act, (b) presidential immunity in light of Trump v. United States, 603 U.S. 593 (2024), and (c) damages.

The en banc court declined review. Judges Merriam and Kahn (joined by Judges Robinson and Pérez) concurred and “fully adopt[ed]” Judge Chin’s statement supporting denial. Judge Menashi, joined by Judge Park and (in most parts) Chief Judge Livingston, dissented from denial.

II. Summary of the Opinion (En Banc Denial)

The court denied rehearing en banc. The concurring judges endorsed Judge Chin’s view that the petitions failed to show a conflict with binding precedent or an issue of “exceptional importance” warranting en banc review under Fed. R. App. P. 40.

Judge Chin’s statement defends the panel’s holdings, emphasizing: (1) the Westfall Act motion was waived/untimely and inconsistent with the statute’s “before trial” limitation for state-filed cases, and (2) presidential immunity arguments were foreclosed by law-of-the-case (from Carroll v. Trump, 88 F.4th 418 (2d Cir. 2023) ("Carroll 3")) and no intervening change of law on waiver.

The dissent argues the panel wrongly blocked Westfall Act substitution, wrongly refused to engage presidential immunity after Trump v. United States, wrongly approved collateral-estoppel and damages rulings, and that en banc review was needed to align circuit law with separation-of-powers principles.

III. Analysis

A. Precedents Cited (and How They Shaped the Competing Views)

• De Martinez v. Lamagno, 515 U.S. 417 (1995): Both sides invoke it for the Westfall Act’s removal/substitution mechanics—especially the idea that certification is conclusive for removal but substitution is judicially reviewable. The dissent also leverages De Martinez’s discussion of statutory structure to argue removal and substitution are separable in time; Judge Chin reads the “before trial” language as constraining the certification/removal sequence in state-filed cases.
• Osborn v. Haley, 549 U.S. 225 (2007): Cited in Judge Chin’s statement for the Supreme Court’s instruction that immunity-related issues should be resolved “at the earliest opportunity,” supporting skepticism toward post-trial substitution efforts.
• Wasserman v. Rodacker, 557 F.3d 635 (D.C. Cir. 2009): The dissent treats it as evidence of a circuit split (suggesting removed cases can be treated as “commenced” in federal court under § 2679(d)(1), avoiding § 2679(d)(2)’s “before trial” language). Judge Chin distinguishes Wasserman as involving removal under non-Westfall statutes and addressing D.C. Superior Court’s status, and rejects the reading that would make § 2679(d)(2) superfluous.
• Trump v. United States, 603 U.S. 593 (2024): The dissent treats it as a “significant legal development” requiring reconsideration of presidential immunity and its evidentiary consequences. Judge Chin reads Trump as not altering the “waiver” analysis that governed Carroll 3, emphasizing that Trump spoke to scope of immunity (in a criminal context), not waiver standards in a civil case.
• Nixon v. Fitzgerald, 457 U.S. 731 (1982) and United States v. Nixon, 418 U.S. 683 (1974): Central to framing presidential immunity’s constitutional roots; the dissent uses them (and Trump) to argue structural immunities should not be lightly waived and demand fresh analysis. Judge Chin treats them as consistent with the pre-existing understanding that immunity is not jurisdictional and thus can be waived.
• United States v. Helstoski, 442 U.S. 477 (1979): The dissent analogizes legislative immunity’s stringent waiver standard (“explicit and unequivocal renunciation”) to presidential immunity; Judge Chin rejects importing Helstoski into this posture, especially given law-of-the-case and the absence of a Trump-driven change on waiver.
• State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) and BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996): Provide the due process framework for punitive damages (reprehensibility; ratios; comparable penalties). Judge Chin uses these to defend a 3.6:1 ratio as within constitutional bounds given the record; the dissent argues the award is grossly excessive and inconsistent with the circuit’s professed “stringent control.”
• Prozeralik v. Cap. Cities Commc'ns, Inc., 82 N.Y.2d 466 (1993), Liberman v. Gelstein, 80 N.Y.2d 429 (1992), and related New York authorities: The dissent contends New York required a more restrictive punitive-damages instruction (especially where a qualified privilege applies), while Judge Chin emphasizes the panel’s distinction between common-law malice needed for punitive damages and malice standards used to defeat certain qualified privileges.
• Prior Second Circuit decisions in the same litigation: Carroll v. Trump, 49 F.4th 759 (2d Cir. 2022) ("Carroll 1"), Carroll v. Trump, 66 F.4th 91 (2d Cir. 2023) ("Carroll 2"), Carroll v. Trump, 88 F.4th 418 (2d Cir. 2023) ("Carroll 3"), Carroll v. Trump, 124 F.4th 140 (2d Cir. 2024) ("Carroll 4"), Carroll 5, and Carroll 6: Judge Chin treats these as a settled procedural and doctrinal ladder—especially Carroll 3 as binding law-of-the-case on waiver. The dissent treats the sequence as compounding error and urges en banc intervention to correct course.

B. Legal Reasoning

1. Westfall Act substitution: timing, waiver, and the meaning of “before trial”

The panel decision defended by Judge Chin reads 28 U.S.C. § 2679(d)(2)—applicable to cases “commenced … in a State court”—to impose a functional constraint: certification (which triggers removal) must occur “at any time before trial,” making a post-trial certification/substitution bid impermissible. In Judge Chin’s account, the Government’s 2025 effort (after a January 2024 trial and after merits briefing) was both waived (not pursued when the district court reopened the issue in 2023) and untimely under the statute’s structure.

The dissent’s core statutory critique is structural: it argues the “before trial” phrase modifies removal only, not substitution, and that substitution language appears in a distinct sentence—so substitution should remain available even after trial (especially when trial occurred in federal court after removal). The dissent also challenges the panel’s reliance on waiver principles against the Government, arguing the Attorney General’s certification is statutory and not subject to typical litigant waiver.

The en banc denial leaves in place the panel’s practical rule for this circuit: in a state-filed case, a late-stage substitution attempt (after trial/judgment) faces strong statutory and waiver barriers.

2. Presidential immunity: law-of-the-case and waiver as the gatekeeping doctrine

The most consequential procedural move in Carroll 6, as defended by Judge Chin, is not a merits holding about whether the President’s statements were “official acts,” but a foreclosure holding: Carroll 3 already held presidential immunity is waivable and was waived on this record; absent an intervening change in controlling law on waiver, later panels must adhere under law-of-the-case principles.

The dissent insists this approach improperly avoids post-Trump v. United States analysis and underestimates how Trump reframed immunity (including limits on evidentiary use of official acts). Judge Chin’s answer is doctrinally narrow: Trump may be momentous on scope of immunity, but it did not change the separate question of whether immunity can be waived or the standards for finding waiver in this civil litigation.

3. Collateral estoppel and damages: appellate deference versus “miscarriage of justice”

Judge Chin’s statement emphasizes that certain objections were not preserved (or were waived on appeal), and defends the district court’s partial summary judgment rulings: falsity and actual malice were treated as established (via collateral estoppel from Carroll II and/or alternative grounds at summary judgment). On damages, he relies on the reprehensibility record (continued attacks, threats, and trial conduct) to justify punitive damages under Gore and State Farm.

The dissent argues the liability phase was improperly truncated, Rule 49(a) was misused to produce issue-preclusive “findings,” actual malice was improperly carried backward in time, New York punitive-damages instructions were wrong, compensatory damages were duplicative, and punitive damages were constitutionally and doctrinally excessive. The en banc denial does not resolve these debates on the merits; it signals that a majority of active judges did not view them as meeting Rule 40’s en banc triggers (conflict/exceptional importance) in this procedural posture.

C. Impact

• Westfall Act practice in the Second Circuit: The denial entrenches the practical necessity of litigating certification/substitution early—especially in state-origin cases under § 2679(d)(2). Defendants and the Government are on notice that post-trial substitution efforts are unlikely to be entertained.
• Presidential immunity in civil damages litigation: The order reinforces that in this circuit, presidential immunity can be treated as a waivable affirmative defense, and that law-of-the-case can bar relitigation even after high-profile Supreme Court decisions—unless the intervening decision changes the controlling law on the specific gatekeeping issue (here, waiver).
• Punitive damages review: By leaving Carroll 6 intact, the Second Circuit continues to apply the Supreme Court’s ratio/reprehensibility guideposts with substantial attention to the factual record of ongoing misconduct, not just the initial defamation.
• Strategic litigation lessons: The opinions highlight preservation/waiver as outcome-determinative: late-raised immunity theories, unpursued statutory pathways (like § 2679(d)(3)), and unchallenged alternative holdings can be decisive regardless of the underlying constitutional or tort merits.

IV. Complex Concepts Simplified

En banc rehearing

A rare procedure where all active judges rehear a case, usually to resolve conflicts in precedent or exceptionally important questions. Denial generally means the panel decision remains binding circuit law.

Westfall Act substitution (28 U.S.C. § 2679)

A mechanism allowing the United States to replace a federal employee as defendant for certain torts if the employee acted within the scope of employment—often converting the case into an FTCA action (and sometimes eliminating claims, such as defamation, due to FTCA exceptions).

Certification

The Attorney General’s formal statement that the employee acted within the scope of employment. It is conclusive for removal in certain contexts but substitution can be reviewed by a court.

Law of the case

A doctrine that generally prevents later panels in the same case from re-deciding issues already decided, unless there is a qualifying change (new controlling law, new evidence, clear error/manifest injustice).

Collateral estoppel (issue preclusion)

A rule that can prevent relitigation of an issue that was actually litigated and necessarily decided in a prior proceeding.

Actual malice (defamation)

A First Amendment standard requiring proof (typically by clear and convincing evidence) that the defendant knew a statement was false or recklessly disregarded whether it was false.

Punitive damages due process limits

Constitutional constraints (from cases like Gore and State Farm) that require punitive awards to be reasonable in light of reprehensibility, the ratio to compensatory damages, and comparable sanctions.

V. Conclusion

The April 29, 2026 en banc denial does not re-decide the merits; it cements the operative precedents established by Carroll 5 and Carroll 6. As a practical matter, the Second Circuit has now repeatedly declined to revisit (i) a restrictive approach to late Westfall Act substitution in state-filed actions, (ii) the waiver/law-of-the-case framework that foreclosed renewed presidential-immunity litigation in this case, and (iii) the affirmed compensatory and punitive damages judgment. The dissent’s separation-of-powers-centered critique remains available as persuasive argument—most plausibly for Supreme Court review or for future cases that present preserved issues without the same waiver and law-of-the-case barriers.