“The ‘Before-Trial’ Rule” — Second Circuit Declares Post-Verdict Westfall Act Substitution Barred in Carroll v. Trump

Introduction

In Carroll v. Trump, No. 24-644 (2d Cir. Aug. 8, 2025), the United States Court of Appeals for the Second Circuit was asked—after a jury verdict and while the matter sat on appeal—to replace former-and-now-current President Donald J. Trump with the United States as defendant under the Westfall Act, 28 U.S.C. § 2679. The court denied the motion and, in the process, forged a clear, bright-line principle:

Any attempt to invoke Westfall Act substitution in a case that originated in state court (§ 2679(d)(2)) or where the Attorney General has refused certification (§ 2679(d)(3)) must be made before trial. A post-verdict or appellate-stage request is statutorily barred; if not barred, it is nonetheless waived and inequitable.

The holding reshapes strategic calculations for federal employees and the Department of Justice (“DOJ”), especially in high-profile defamation suits brought against government officials. The commentary below unpacks the decision’s reasoning, its reliance on precedent, and its likely ripple effects.

Summary of the Judgment

Statutory Bar: The panel (Judges Chin, Merriam, and Kahn) held that the plain text of § 2679(d)(2) and § 2679(d)(3) contains an explicit “any time before trial” limitation. Because the motion arrived after a full jury trial, substitution was jurisdictionally foreclosed.
Waiver: Even assuming statutory latitude, both Trump and the DOJ intentionally relinquished the right to seek substitution by failing to invoke § 2679(d)(3) when the DOJ withdrew certification in July 2023.
Equity: Five years of litigation, a summary-judgment ruling, and an $83.3 million jury verdict militated against “unwinding” the case in fairness to E. Jean Carroll.
Outcome: Motion to substitute the United States denied; appeal proceeds with Trump as the personal-capacity appellant.

Analysis

1. Precedents Cited and Their Influence

De Martinez v. Lamagno, 515 U.S. 417 (1995) – Established that attorney-general certification is reviewable and does not conclusively decide substitution. The panel relied on De Martinez to underscore judicial involvement and the need for early determination.
Osborn v. Haley, 549 U.S. 225 (2007) – Clarified procedures under subsections (d)(1) and (d)(2); highlighted substitution’s purpose of shifting cases into the FTCA. The Second Circuit referenced Osborn to emphasize that substitution “supplants the jury” and therefore belongs pre-trial.
Celestine v. Mount Vernon Neighborhood Health Center, 403 F.3d 76 (2d Cir. 2005) – Interpreted nearly identical “before trial” language in 42 U.S.C. § 233(c). Because Celestine required pre-trial certification, the court treated the statutory parallel as dispositive.
Brown v. Armstrong, 949 F.2d 1007 (8th Cir. 1991) and other district-court decisions – Cited to show nationwide judicial consensus that Westfall certification must precede trial.
Prior appellate history in Carroll v. Trump, 49 F.4th 759 (2d Cir. 2022) and 66 F.4th 91 (2d Cir. 2023) – Demonstrated that both sides had ample opportunities earlier but did not pursue substitution.

2. The Court’s Legal Reasoning

Textualism: The phrase “at any time before trial” was read literally. The court refused to excise it or treat it as only governing removal, reasoning that certification and removal are statutorily intertwined—no certification, no removal.
Structural Context: Harmonized §§ (d)(1)–(d)(3). Because § 2679(d)(3) (employee petition) applies irrespective of original forum and contains the same timing language, permitting post-trial certification would nullify Congress’s deliberate deadline.
Purpose-Driven Interpretation: Substitution functions like immunity, intended to spare officials the burdens of litigation; immunity “should be decided at the earliest opportunity” (Hunter v. Bryant). Once a case is fully tried, the purpose evaporates.
Waiver Doctrine: Trump “intentionally relinquished” the right when he remained silent after DOJ’s July 2023 declination; likewise, the Government cannot revive a position it affirmatively abandoned.
Equitable Considerations: Allowing substitution now would convert a $83.3 million judgment into automatic dismissal under the FTCA’s defamation exception (§ 2680(h)), producing manifest injustice.

3. Potential Impact

Future Litigation Strategy: Federal employees and DOJ must treat Westfall certification as a front-loaded decision. Waiting to see how litigation unfolds (a “litigation gamble”) is no longer viable in the Second Circuit.
Separation-of-Powers Ramifications: The decision curbs executive flexibility to shield officials retroactively, reinforcing judicial oversight over scope-of-employment determinations.
Forum-Shopping Deterrence: Plaintiffs may prefer state-court filings to trigger the strict § 2679(d)(2) timeline, but defendants now know they must act quickly regardless of forum.
Presidential & High-Profile Defamation Cases: The opinion forecloses a pathway that could otherwise nullify verdicts against a sitting president through late DOJ intervention.
National Persuasive Authority: Although binding only within the Second Circuit, the court’s textual analysis and reliance on parallel statutes furnish a template likely to influence other circuits.

Complex Concepts Simplified

Westfall Act (28 U.S.C. § 2679): A statute that swaps the United States in place of a federal employee sued for a work-related tort, funneling the claim into the FTCA.
Federal Tort Claims Act (FTCA): A limited waiver of the United States’ sovereign immunity. Importantly, it excludes defamation claims (§ 2680(h)).
Attorney-General Certification: A formal statement that the employee acted within the scope of federal employment. It automatically triggers substitution & removal but is reviewable by courts.
Scope-of-Employment: Whether the alleged wrongful act was committed in the line of official duty. Decided under the relevant jurisdiction’s respondeat-superior rules (here, D.C. law).
Waiver vs. Forfeiture: “Waiver” is the intentional abandonment of a right; “forfeiture” is the inadvertent failure to assert it. Waived arguments are normally unreviewable on appeal.

Conclusion

The Second Circuit’s opinion creates a crisp doctrinal benchmark: the “Before-Trial” Rule for Westfall Act substitution. Text, precedent, and policy coalesce to ensure that federal actors and the DOJ must move—if at all—before the jury is empaneled. By marrying strict statutory construction with equitable sensibilities, the court safeguarded both the integrity of jury verdicts and the predictability of immunity doctrines. Practitioners now have unequivocal notice: delay beyond trial is not merely risky—it is fatal.