OCTOBER TERM, 1994
Syllabus
GUTIERREZ DE MARTINEZ ET AL.
v.
LAMAGNO ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 94-167. Argued March 22, 1995-Decided June 14, 1995
Invoking the federal court's jurisdiction based on diversity of
citizenship, petitioners alleged in their complaint that they had
suffered physical injuries and property damage as a result of an
accident in Colombia caused by the negligence of respondent
Lamagno, a federal employee. The United States Attorney, acting
pursuant to the statute commonly known as the Westfall Act, 28 U.
S. C. § 2679(d)(1), certified on behalf of the Attorney General
that Lamagno was acting within the scope of his employment at the
time of the episode. Ordinarily, upon such certification, the
employee is dismissed from the action, the United States is
substituted as defendant, and the case proceeds under the Federal
Tort Claims Act (FTCA). But in this case, substitution would cause
the action's demise: petitioners' claims arose abroad, and thus
fell within an exception to the FTCA's waiver of the United States'
sovereign immunity. And the United States' immunity would afford
petitioners no legal ground to bring Lamagno back into the action.
See
United States v.
Smith, 499 U. S. 160.
Endeavoring to redeem their lawsuit, petitioners sought court
review of the Attorney General's scope-of-employment certification,
for if Lamagno was acting outside the scope of his employment, the
action could proceed against him. However, the District Court held
the certification unreviewable, substituted the United States for
Lamagno, and dismissed the suit. The Fourth Circuit affirmed.
Held: The judgment is reversed, and the case is remanded.
23 F.3d
402, reversed and remanded.
JUSTICE GINSBURG delivered the opinion of the Court with respect
to Parts I, II, and III, concluding that the Attorney General's
scope-ofemployment certification is reviewable in court. Pp.
423-434.
(a) As shown by the division in the lower courts and in this
case, the Westfall Act is open to divergent interpretation on the
question at issue. Two considerations weigh heavily in the Court's
analysis. First, the Attorney General herself urges review, mindful
that in cases of the kind petitioners present, the incentive of her
delegate to certify is marked. Second, when a Government official's
determination of a fact or circumstance-for example, "scope of
employment"-is dispositive of a court controversy, federal judges
traditionally proceed from the strong pre-
418
Syllabus
sumption that Congress intends judicial review. Review will not
be cut off absent persuasive reason to believe that Congress so
intended. No such reason is discernible here. Pp. 423-425.
(b) Congress, when it composed the Westfall Act, legislated
against a backdrop of judicial review: courts routinely reviewed
the local United States Attorney's scope-of-employment
certification under the Act's statutory predecessor. The plain
purpose of the Westfall Act was to override
Westfall v.
Erwin, 484 U.
S. 292, which had added a "discretionary function" requirement,
discrete from the scope-of-employment test, as a criterion for a
federal officer's personal immunity. Although Congress thus wanted
the employee's personal immunity to turn solely on the critical
scope-of-employment inquiry, nothing tied to the Act's purpose
shows an intent to commit that inquiry to the unreviewable judgment
of the Attorney General or her delegate. Pp. 425-426.
(c) Construction of the Westfall Act as Lamagno urges-to deny to
federal courts authority to review the Attorney General's
scope-ofemployment certification-would oblige this Court to
attribute to Congress two highly anomalous commands. First, the
Court would have to accept that, whenever the case falls within an
exception to the FTCA, Congress has authorized the Attorney General
to sit as an unreviewable judge in her own cause-able to block
petitioners' way to a tort action in court, at no cost to the
federal treasury, while avoiding litigation in which the United
States has no incentive to engage, and incidentally enhancing the
morale-or at least sparing the purse-offederal employees. This
conspicuously self-serving interpretation runs counter to the
fundamental principle that no one should be a judge in his own
cause, and has been disavowed by the United States. pp.
426-429.
(d) Second, and at least equally perplexing, Lamagno's proposed
reading would cast Article III judges in the role of petty
functionaries, persons required to rubber-stamp the decision of a
scarcely disinterested executive officer, but stripped of capacity
to evaluate independently whether that decision is correct. This
strange course becomes all the more surreal when one adds to the
scene the absence of any obligation on the part of the Attorney
General's delegate to conduct proceedings, to give the plaintiff an
opportunity to speak to the scope-of-employment question, to give
notice that she is considering the question, or to give any
explanation for her action. This Court resists ascribing to
Congress an intention to place courts in the untenable position of
having automatically to enter judgments pursuant to decisions they
have no authority to evaluate. Pp. 429-430.
(e) The Westfall Act's language is far from clear. Section
2679(d)(2) provides for removal of the case from state to federal
court and for substitution of the United States as defendant upon
the Attorney Gener-
419
aI's certification. Section 2679(d)(2) states explicitly that
"certification of the Attorney General shall conclusively establish
scope of office or employment
for purposes of removal."
(Emphasis added.) Notably, § 2679(d)(2) contains no such statement
with regard to substitution. The § 2679(d)(2) prescription thus
tends in favor of judicial review. Counseling against review,
however, is the commanding force of the word "shall": "Upon
certification by the Attorney General ... , any civil action or
proceeding ...
shall be deemed an action against the United
States ... , and the United States
shall be substituted as
the party defendant." § 2679(d)(1) (emphasis added). As the
statutory language is reasonably susceptible to divergent
interpretations, the Court adopts the reading that accords with the
presumption favoring judicial review and the tradition of court
review of scope certifications, while avoiding the anomalies that
attend foreclosure of review. Pp. 430-434.
GINSBURG, J., delivered the opinion of the Court with respect to
Parts I, II, and III, in which STEVENS, O'CONNOR, KENNEDY, and
BREYER, JJ., joined, and an opinion with respect to Part IV, in
which STEVENS, KENNEDY, and BREYER, JJ., joined. O'CONNOR, J.,
filed an opinion concurring in part and concurring in the judgment,
post, p. 437. SOUTER, J., filed a dissenting opinion, in
which REHNQUIST, C. J., and SCALIA and THOMAS, JJ., joined,
post, p. 438.
Isidoro Rodriguez argued the cause and filed a brief for
petitioners. Malcolm L. Stewart argued the cause for the federal
respondents in support of petitioners pursuant to this Court's Rule
12.4. On the briefs were Solicitor General Days, Assistant Attorney
General Hunger, Deputy Solicitor General Bender, Jeffrey P. Minear,
Barbara L. Herwig, and Peter R. Maier.
Andrew J.
Maloney III argued the cause and filed a
brief for respondent Lamagno.
Michael K. Kellogg, by invitation of the Court, 513 U. s.
1010, argued the cause and filed a brief as
amicus curiae
urging affirmance.
JUSTICE GINSBURG delivered the opinion of the Court, except as
to Part 1\1.
When a federal employee is sued for a wrongful or negligent act,
the Federal Employees Liability Reform and Tort
420
Compensation Act of 1988 (commonly known as the Westfall Act)
empowers the Attorney General to certify that the employee "was
acting within the scope of his office or employment at the time of
the incident out of which the claim arose .... " 28 U. S. C. §
2679(d)(1). Upon certification, the employee is dismissed from the
action and the United States is substituted as defendant. The case
then falls under the governance of the Federal Tort Claims Act
(FTCA), ch. 753, 60 Stat. 812, 842. Generally, such cases unfold
much as cases do against other employers who concede
respondeat
superior liability. If, however, an exception to the FTCA
shields the United States from suit, the plaintiff may be left
without a tort action against any party.
This case is illustrative. The Attorney General certified that
an allegedly negligent employee "was acting within the scope of his
... employment" at the time of the episode in suit. Once brought
into the case as a defendant, however, the United States asserted
immunity, because the incident giving rise to the claim occurred
abroad and the FTCA excepts "[a]ny claim arising in a foreign
country." 28 U. S. C. § 2680(k). Endeavoring to redeem their
lawsuit, plaintiffs (petitioners here) sought court review of the
Attorney General's scope-of-employment certification, for if the
employee was acting outside the scope of his employment, the
plaintiffs' tort action could proceed against him. The lower courts
held the certification unreviewable. We reverse that determination
and hold that the scope-of-employment certification is reviewable
in court.
I
Shortly before midnight on January 18, 1991, in Barranquilla,
Colombia, a car driven by respondent Dirk A. Lamagno, a special
agent of the United States Drug Enforcement Administration (DEA),
collided with petitioners' car. Petitioners, who are citizens of
Colombia, allege that La-
421
magno was intoxicated and that his passenger, an unidentified
woman, was not a federal employee.
Informed that diplomatic immunity shielded Lamagno from suit in
Colombia, petitioners filed a diversity action against him in the
United States District Court for the Eastern District of Virginia,
the district where Lamagno resided. Alleging that Lamagno's
negligent driving caused the accident, petitioners sought
compensation for physical injuries and property damage.1 In
response, the local United States Attorney, acting pursuant to the
Westfall Act, certified on behalf of the Attorney General that
Lamagno was acting within the scope of his employment at the time
of the accident. The certification, as is customary, stated no
reasons for the U. S. Attorney's scope-of-employment
determination.2
In the Westfall Act, Congress instructed:
"Upon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employment at
the time of the incident out of which the claim arose, any civil
action or proceeding
1 Petitioners also filed an administrative claim with the DEA
pursuant to 84 Stat. 1284, as amended, 21 U. S. C. § 904, which
authorizes settlement of tort claims that "arise in a foreign
country in connection with the operations of the [DEA] abroad." The
DEA referred the claim to the Department of Justice, which has not
yet made a final administrative decision on that claim. As read by
the Fourth Circuit, § 904 contains no express or implied provision
for judicial review. App. 15.
2 The certification read:
"I, Richard Cullen, United States Attorney for the Eastern
District of Virginia, acting pursuant to the provisions of 28 U. S.
C. § 2679, and by virtue of the authority vested in me by the
Appendix to 28 C.F.R. § 15.3 (1991), hereby certify that I have
investigated the circumstances of the incident upon which the
plaintiff[s'] claim is based. On the basis of the information now
available with respect to the allegations of the complaint, I
hereby certify that defendant Dirk A. Lamagno was acting within the
scope of his employment as an employee of the United States of
America at the time of the incident giving rise to the above
entitled action." App.I-2.
422
commenced upon such claim in a United States district court
shall be deemed an action against the United States under the
provisions of this title and all references thereto, and the United
States shall be substituted as the party defendant." §
2679(d)(1).
Thus, absent judicial review and court rejection of the
certification, Lamagno would be released from the litigation;
furthermore, he could not again be pursued in any damages action
arising from the "same subject matter." § 2679(b)(1). Replacing
Lamagno, the United States would become sole defendant.
Ordinarily, scope-of-employment certifications occasion no
contest. While the certification relieves the employee of
responsibility, plaintiffs will confront instead a financially
reliable defendant. But in this case, substitution of the United
States would cause the demise of the action: Petitioners' claims
"ar[ose] in a foreign country," FTCA, 28 U. S. C. § 2680(k), and
thus fell within an exception to the FTCA's waiver of the United
States' sovereign immunity. See § 2679(d)(4) (upon certification,
the action "shall proceed in the same manner as any action against
the United States ... and shall be subject to the limitations and
exceptions applicable to those actions"). Nor would the immunity of
the United States allow petitioners to bring Lamagno back into the
action. See
United States v.
Smith, 499 U. S. 160 (1991).
To keep their action against Lamagno alive, and to avoid the
fatal consequences of unrecallable substitution of the United
States as the party defendant, petitioners asked the District Court
to review the certification. Petitioners maintained that Lamagno
was acting outside the scope of his employment at the time of the
accident; certification to the contrary, they argued, was
groundless and untrustworthy. Following Circuit precedent,
Johnson v.
Carter, 983 F.2d
1316 (CA4) (en banc), cert. denied, 510 U. S. 812 (1993), the
District Court held the certification unreviewable, substituted the
United States for Lamagno, and dismissed peti-
423
tioners' suit. App. 7-9. In an unadorned order, the Fourth
Circuit affirmed.
23 F.3d
402 (1994).
The Circuits divide sharply on this issue. Parting from the
Fourth Circuit, most of the Courts of Appeals have held
certification by the Attorney General or her delegate amenable to
court review.3 We granted certiorari to resolve the conflict, 513
U. S. 998 (1994),4 and we now reverse the Fourth Circuit's
judgment.
II A
We encounter in this case the familiar questions: where is the
line to be drawn; and who decides. Congress has firmly answered the
first question. "Scope of employment" sets the line. See §
2679(b)(1);
United States v.
Smith, 499 U. S. 160 (1991). If
Lamagno is inside that line, he is not subject to petitioners'
suit; if he is outside the line, he is personally answerable. The
sole question, then, is
who decides on which side of the
line the case falls: the local United
3 Compare
Johnson v.
Carter, 983
F.2d 1316 (CA4) (en bane), cert. denied, 510 U. S. 812 (1993);
Garcia v.
United States, 22 F.3d
609, suggestion for rehearing en bane granted,
22 F.3d
612 (CA5 1994);
Aviles v.
Lutz, 887 F. 2d
1046, 1048-1049 (CAlO 1989) (certification not reviewable), with
Nasuti v.
Scannell, 906 F.2d
802, 812-814 (CAl1990);
McHugh v.
University of
Vermont, 966 F.2d
67, 71-75 (CA2 1992);
Melo v.
Hafer, 912 F.2d
628, 639-642 (CA3 1990), aff'd on other grounds,
502 U. S. 21 (1991);
Arbour v.
Jenkins, 903 F.2d
416, 421 (CA6 1990);
Hamrick v.
Franklin,
931 F.2d
1209 (CA7), cert. denied, 502 U. S. 869 (1991);
Brown v.
Armstrong, 949 F.2d
1007, 1010-1011
(CA8 1991);
Meridian Int'l Logistics,
Inc. v.
United States, 939 F.2d
740, 744-745 (CA9 1991); S. J. &
W Ranch, Inc. v.
Lehtinen, 913 F.2d
1538, 1543 (1990), modified,
924 F.2d
1555 (CAll), cert. denied, 502 U. S. 813 (1991);
Kimbro
v.
Velten, 30 F.3d
1501 (CADC 1994), cert. pending, No. 94-6703 (certification
reviewable).
4 The United States, in accord with petitioners, reads the
Westfall Act to allow a plaintiff to challenge the Attorney
General's scope-of-employment certification. We therefore invited
Michael K. Kellogg to brief and argue this case, as
amicus
curiae, in support of the judgment below. 513 U. S. 1010
(1994). Mr. Kellogg accepted the appointment and has well fulfilled
his assigned responsibility.
424
States Attorney, unreviewably or, when that official's decision
is contested, the court. Congress did not address this precise
issue unambiguously, if at all. As the division in the lower courts
and in this Court shows, the Westfall Act is, on the "who decides"
question we confront, open to divergent interpretation.
Two considerations weigh heavily in our analysis, and we state
them at the outset. First, the Attorney General herself urges
review, mindful that in cases of the kind petitioners present, the
incentive of her delegate to certify is marked. Second, when a
Government official's determination of a fact or circumstance-for
example, "scope of employment"-is dispositive of a court
controversy, federal courts generally do not hold the determination
unreviewable. Instead, federal judges traditionally proceed from
the "strong presumption that Congress intends judicial review."
Bowen v.
Michigan Academy of Family Physicians, 476
U. S. 667, 670 (1986); see
id., at 670-673;
Abbott
Laboratories v.
Gardner, 387 U. S. 136, 140
(1967). Chief Justice Marshall long ago captured the essential
idea:
"I t would excite some surprise if, in a government of laws and
of principle, furnished with a department whose appropriate duty it
is to decide questions of right, not only between individuals, but
between the government and individuals; a ministerial officer
might, at his discretion, issue this powerful process ... leaving
to [the claimant] no remedy, no appeal to the laws of his country,
if he should believe the claim to be unjust. But this anomaly does
not exist; this imputation cannot be cast on the legislature of the
United States." United States v. Nourse, 9 Pet. 8,
28-29 (1835).
Accordingly, we have stated time and again that judicial review
of executive action "will not be cut off unless there is persuasive
reason to believe that such was the purpose of Congress."
Abbott
Laboratories, 387 U. S., at 140 (citing
425
cases). No persuasive reason for restricting access to judicial
review is discernible from the statutory fog we confront here.
B
Congress, when it composed the Westfall Act, legislated against
a backdrop of judicial review. Courts routinely reviewed the local
United States Attorney's scope-ofemployment certification under the
Westfall Act's statutory predecessor, the Federal Drivers Act, Pub.
L. 87-258, § 1, 75 Stat. 539 (previously codified as 28 U. S. C. §
2679(d) (1982 ed.)). Similar to the Westfall Act but narrower in
scope, the Drivers Act made the FTCA the exclusive remedy for motor
vehicle accidents involving federal employees acting within the
scope of their employment. 75 Stat. 539 (previously codified at 28
U. S. C. § 2679(b) (1982 ed.)). The Drivers Act, like the Westfall
Act, had a certification scheme, though it applied only to cases
brought in state court. Once the Attorney General or his delegate
certified that the defendant driver was acting within the scope of
employment, the case was removed to federal court and the United
States was substituted as defendant. But the removal and
substitution were subject to the federal court's control; a court
determination that the driver was acting outside the scope of his
employment would restore the case to its original status. See,
e. g.,
McGowan v.
Williams, 623 F.2d
1239, 1242 (CA7
1980); Seiden v.
United States,
537 F.2d
867, 870 (CA6 1976);
Levin v.
Taylor, 464 F.2d
770, 771 (CADC 1972).
When Congress wrote the Westfall Act, which covers federal
employees generally and not just federal drivers, the legislators
had one purpose firmly in mind. That purpose surely was not to make
the Attorney General's delegate the final arbiter of
"scope-of-employment" contests. Instead, Congress sought to
override
Westfall v.
Erwin, 484 U. S. 292 (1988). In
Westfall, we held that, to gain immunity from suit for a
common-law tort, a federal employee would have
426
to show (1) that he was acting within the scope of his
employment, and (2) that he was performing a discretionary
function.
Id., at 299. Congress reacted quickly to delete
the "discretionary function" requirement, finding it an unwarranted
judicial imposition, one that had "created an immediate crisis
involving the prospect of personal liability and the threat of
protracted personal tort litigation for the entire Federal
workforce." § 2(a)(5), 102 Stat. 4563.
The Westfall Act trained on this objective: to "return Federal
employees to the status they held prior to the
Westfall
decision." H. R. Rep. No. 100-700, p. 4 (1988). Congress was
notably concerned with the
significance of the
scope-ofemployment inquiry-that is, it wanted the employee's
personal immunity to turn on that question alone. See § 2(b), 102
Stat. 4564 (purpose of Westfall Act is to "protect Federal
employees from personal liability for common law torts committed
within the scope of their employment"). But nothing tied to the
purpose of the legislation shows that Congress meant the Westfall
Act to commit the critical "scope-ofemployment" inquiry to the
unreviewable judgment of the Attorney General or her delegate, and
thus to alter fundamentally the answer to the "who decides"
question.
C
Construction of the Westfall Act as Lamagno urges-to deny to
federal courts authority to review the Attorney General's
scope-of-employment certification-would oblige us to attribute to
Congress two highly anomalous commands. Not only would we have to
accept that Congress, by its silence, authorized the Attorney
General's delegate to make determinations of the kind at issue
without any judicial check. At least equally perplexing, the
proposed reading would cast Article III judges in the role of petty
functionaries, persons required to enter as a court judgment an
executive officer's decision, but stripped of capacity to evaluate
independently whether the executive's decision is correct.
427
1
In the typical case, by certifying that an employee was acting
within the scope of his employment, the Attorney General enables
the tort plaintiff to maintain a claim for relief under the FTCA, a
claim against the financially reliable United States. In such a
case, the United States, by certifying, is acting
against
its financial interest, exposing itself to liability as would any
other employer at common law who admits that an employee acted
within the scope of his employment. See Restatement (Second) of
Agency § 219 (1958).
The situation alters radically, however, in the unusual
case-like the one before us-that involves an exception to the
FTCA.5 When the United States retains immunity from suit,
certification disarms plaintiffs. They may not proceed against the
United States, nor may they pursue the employee shielded by the
certification. Smith, 499 U. S., at 166-167. In such a case, the
certification surely does not qualify as a declaration against the
Government's interest: it does not expose the United States to
liability, and it shields a federal employee from liability.
But that is not all. The impetus to certify becomes overwhelming
in a case like this one, as the Attorney General, in siding with
petitioners, no doubt comprehends. If the local
5 Several of the FTCA's 13 exceptions are for cases in which
other compensatory regimes afford relief.
Kosak v.
United
States, 465 U. S.
848, 858 (1984) (one rationale for exceptions is "not extending
the coverage of the [FTCA] to suits for which adequate remedies
were already available"). See,
e. g., § 2680(c) (excluding
"[a]ny claim arising in respect of the assessment or collection of
any tax or customs duty"); § 2680(d) (excluding "[a]ny claim for
which a remedy is provided by" the Public Vessels Act, "relating to
claims or suits in admiralty against the United States"); § 2680(e)
(excluding "[a]ny claim arising out of an act or omission of any
employee of the Government in administering the provisions of" the
Trading with the Enemy Act); 2 L. Jayson, Handling Federal Tort
Claims: Administrative and Judicial Remedies 13-8, 13-25, 13-43 to
13-44 (1995) (explaining these exclusions as cases in which other
remedies are available).
428
United States Attorney, to whom the Attorney General has
delegated responsibility, refuses certification, the employee can
make a federal case of the matter by alleging a wrongful failure to
certify. See § 2679(d)(3). The federal employee's claim is one the
United States Attorney has no incentive to oppose for the very
reason the dissent suggests, see
post, at 448-449: Win or
lose, the United States retains its immunity; hence, were the
United States to litigate "scope of employment" against its own
employee-thereby consuming the local United States Attorney's
precious litigation resourcesit would be litigating solely for the
benefit of the plaintiff. Inevitably, the United States Attorney
will feel a strong tug to certify, even when the merits are cloudy,
and thereby "do a favor,"
post, at 448, both for the
employee and for the United States as well, at a cost borne solely,
and perhaps quite unfairly, by the plaintiff.
The argument for unreviewability in such an instance runs up
against a mainstay of our system of government. Madison spoke
precisely to the point:
"No man is allowed to be a judge in his own cause, because his
interest would certainly bias his judgment, and, not improbably,
corrupt his integrity. With equal, nay with greater reason, a body
of men are unfit to be both judges and parties at the same time
.... " The Federalist No. 10, p. 79 (C. Rossiter ed. 1961).
See
In re Murchison, 349 U. S. 133, 136 (1955)
("[O]ur system of law has always endeavored to prevent even the
probability of unfairness. To this end no man can be a judge in his
own case and no man is permitted to try cases where he has an
interest in the outcome.");
Spencer v.
Lapsley, 20
How. 264, 266 (1858) (recognizing statute accords with this maxim);
see also Publius Syrus, Moral Sayings 51 (D. Lyman transl. 1856)
("No one should be judge in his own cause."); B. Pascal, Thoughts,
Letters and Opuscules 182 (0. Wight transl. 1859) ("It is not
permitted to the most equitable of men to be a
429
judge in his own cause."); 1 W. Blackstone, Commentaries *91
("[I]t is unreasonable that any man should determine his own
quarrel.").
In sum, under Lamagno's reading of the congressional product at
issue, whenever the case falls within an exception to the FTCA, the
Attorney General sits as an unreviewable "judge in her own cause";
she can block petitioners' way to a tort action in court, at no
cost to the federal treasury, while avoiding litigation in which
the United States has no incentive to engage, and incidentally
enhancing the morale-or at least sparing the purse-of federal
employees. The United States, as we have noted, disavows this
extraordinary, conspicuously self-serving interpretation. See
supra, at 424, and n. 4. Recognizing that a United States
Attorney, in cases of this order, is hardly positioned to act
impartially, the Attorney General reads the law to allow judicial
review.
2
If Congress made the Attorney General's delegate sole judge,
despite the apparent conflict of interest, then Congress
correspondingly assigned to the federal court only rubber-stamp
work. Upon certification in a case such as this one, the United
States would automatically become the defendant and, just as
automatically, the case would be dismissed. The key question
presented-scope of employment-however contestable in fact, would
receive no judicial audience. The court could do no more, and no
less, than convert the executive's scarcely disinterested decision
into a court judgment. This strange course becomes all the more
surreal when one adds to the scene the absence of an obligation on
the part of the Attorney General's delegate to conduct a fair
proceeding, indeed, any proceeding. She need not give the plaintiff
an opportunity to speak to the "scope" question, or even notice
that she is considering the question. Nor need she give any
explanation for her action.
430
Congress may be free to establish a compensation scheme that
operates without court participation. Cf. 21 U. s. C. § 904
(authorizing executive settlement of tort claims that "arise in a
foreign country in connection with the operations of the [DEA]
abroad"). But that is a matter quite different from instructing a
court automatically to enter a judgment pursuant to a decision the
court has no authority to evaluate. Cf.
United States v.
Klein, 13 Wall. 128, 146 (1872) (Congress may not "prescribe
rules of decision to the Judicial Department of the government in
cases pending before it"). We resist ascribing to Congress an
intention to place courts in this untenable position.6
III
We return now, in more detail, to the statutory language to
determine whether it overcomes the presumption favoring judicial
review, the tradition of court review of scope certifications, and
the anomalies attending foreclosure of review.
The certification, removal, and substitution provisions of the
Westfall Act, 28 U. s. C. §§ 2679(d)(1)-(3),7 work together
6 To the reality of an executive decisionmaker with scant
incentive to act impartially, and a court used to rubber-stamp that
decisionmaker's judgment, the dissent can only reply that these are
"rare cases."
Post, at 447. But this dispute centers solely
on cases fitting the description "rare." See supra, at 422. It is
hardly an answer to say that, in other cases, indeed in the great
bulk of cases, court offices are not misused.
7 Section 2679(d) provides in pertinent part:
"(1) Upon certification by the Attorney General that the
defendant employee was acting within the scope of his office or
employment at the time of the incident out of which the claim
arose, any civil action or proceeding commenced upon such claim in
a United States district court shall be deemed an action against
the United States under the provisions of this title and all
references thereto, and the United States shall be substituted as
the party defendant.
"(2) Upon certification by the Attorney General that the
defendant employee was acting within the scope of his office or
employment at the time of the incident out of which the claim
arose, any civil action or proceeding commenced upon such claim in
a State court shall be removed without bond at any time before
trial by the Attorney General to the district court
431
to assure that, when scope of employment is in controversy, that
matter, key to the application of the FTCA, may be resolved in
federal court. To that end, the Act specifically allows employees
whose certification requests have been denied by the Attorney
General, to contest the denial in court. § 2679(d)(3). If the
action was initiated by the tort plaintiff in state court, the
Attorney General, on the defendantemployee's petition, is to enter
the case and may remove it to the federal court so that the scope
determination can be made in the federal forum.
Ibid.
When the Attorney General has granted certification, if the case
is already in federal court (as is this case, because of the
parties' diverse citizenship), the United States will be
substituted as the party defendant. § 2679(d)(1). If the case was
initiated by the tort plaintiff in state court,
of the United States for the district and division embracing the
place in which the action or proceeding is pending. Such action or
proceeding shall be deemed to be an action or proceeding brought
against the United States under the provisions of this title and
all references thereto, and the United States shall be substituted
as the party defendant. This certification of the Attorney General
shall conclusively establish scope of office or employment for
purposes of removal.
"(3) In the event that the Attorney General has refused to
certify scope of office or employment under this section, the
employee may at any time before trial petition the court to find
and certify that the employee was acting within the scope of his
office or employment. Upon such certification by the court, such
action or proceeding shall be deemed to be an action or proceeding
brought against the United States under the provisions of this
title and all references thereto, and the United States shall be
substituted as the party defendant. A copy of the petition shall be
served upon the United States in accordance with the provisions of
Rule 4(d)(4) of the Federal Rules of Civil Procedure. In the event
the petition is filed in a civil action or proceeding pending in a
State court, the action or proceeding may be removed without bond
by the Attorney General to the district court of the United States
for the district and division embracing the place in which it is
pending. If, in considering the petition, the district court
determines that the employee was not acting within the scope of his
office or employment, the action or proceeding shall be remanded to
the State court."
432
the Attorney General is to remove it to the federal court,
where, as in a case that originated in the federal forum, the
United States will be substituted as the party defendant. §
2679(d)(2).
The statute next instructs that the "certification of the
Attorney General shall conclusively establish scope of office or
employment
for purposes of removal." Ibid. (emphasis added).
The meaning of that instruction, in the view of petitioners and the
Attorney General, is just what the emphasized words import.
Congress spoke in discrete sentences in § 2679(d)(2) first of
removal, then of substitution. Next, Congress made the Attorney
General's certificate conclusive solely for purposes of removal,
and notably not for purposes of substitution. It follows,
petitioners and the Attorney General conclude, that the
scope-of-employment judgment determinative of substitution can and
properly should be checked by the court, i.
e., the Attorney
General's scarcely disinterested certification on that matter is by
statute made the first, but not the final word.
Lamagno's construction does not draw on the "certification ...
shall [be conclusive] ... for purposes of removal" language of §
2679(d)(2).8 Instead, Lamagno emphasizes the word "shall" in the
statement: "Upon certification by the Attorney General ... any
civil action or proceeding ...
shall be deemed an action
against the United States ... , and the United States
shall
be substituted as the party defendant." § 2679(d)(1) (emphasis
added). Any doubt as to the commanding force of the word "shall," 9
Lamagno urges, is dis-
8 In fact, under Lamagno's construction, this provision has no
work to do, because Congress would have had no cause to insulate
removal from challenge. If certification cannot be overturned, as
Lamagno urges, then a firm basis for federal jurisdiction is ever
present-the United States is a party, and the FTCA governs the
case.
9Though "shall" generally means "must," legal writers sometimes
use, or misuse, "shall" to mean "should," "will," or even "may."
See D. Mellinkoff, Mellinkoff's Dictionary of American Legal Usage
402-403 (1992) ("shall" and "may" are "frequently treated as
synonyms" and their mean-
433
pelled by this further feature: the Westfall Act's predecessor,
the Federal Drivers Act, provided for court review of
"scope-of-employment" certifications at the tort plaintiff's
behest. Not only does the Westfall Act fail to provide for
certification challenges by tort plaintiffs,lO Lamagno underscores,
but the Act prominently provides for court review of
ing depends on context); B. Garner, Dictionary of Modern Legal
Usage 939 (2d ed. 1995) ("[C]ourts in virtually every
English-speaking jurisdiction have held-by necessity-that
shall means
may in some contexts, and vice versa.").
For example, certain of the Federal Rules use the word "shall" to
authorize, but not to require, judicial action. See,
e. g.,
Fed. Rule Civ. Proc. 16(e) ("The order following a final pretrial
conference
shall be modified only to prevent manifest
injustice.") (emphasis added); Fed. Rule Crim. Proc. l1(b) (A
nolo contendere plea
"shall be accepted by the court
only after due consideration of the views of the parties and the
interest of the public in the effective administration of
justice.") (emphasis added).
10 The dissent argues that Congress must have meant to foreclose
judicial review of substitution when it omitted from the Westfall
Act the Drivers Act language authorizing such review. See
post, at 439-440, 443. But this language likely was omitted
for another reason. It appeared in the Drivers Act provision
authorizing the return of removed cases to state court: "Should a
United States district court determine on a hearing on a motion to
remand held before a trial on the merits that the case so removed
is one in which a remedy by suit ... is not available against the
United States, the case shall be remanded to the State court." 75
Stat. 539 (previously codified at 28 U. S. C. § 2679(d) (1982
ed.)). Congress likely omitted this provision, the thrust of which
was to authorize remands, because it had decided to foreclose
needless shuttling of a case from one court to another-a decision
evident also in the Westfall Act language making certification
"conclusiv[e] ... for purposes of removal." See § 2679(d)(2). The
omission thus tells us little about Congress' will concerning
review of substitution.
The dissent, moreover, draws inconsistent inferences from
congressional silence. Omission of language authorizing review of
substitution, the dissent argues, forecloses review. See
post, at 439-440, 443. But omission of language authorizing
review of
removal is not sufficient to foreclose review;
rather, to achieve this purpose, the dissent says, Congress took
the further step of adding language in § 2679(d)(2) making review
"conclusiv[e] ... for purposes of removal." See
post, at
444-445.
434
refusals to certify at the behest of defending employees. See §
2679(d)(3). Congress, in Lamagno's view, thus plainly intended the
one-sided review, i.
e., a court check at the call of the
defending employee, but no check at the tort plaintiff's call.
We recognize that both sides have tendered plausible
constructions of a text most interpreters have found far from
clear. See,
e. g., McHugh v.
University of Vermont,
966 F. 2d 67, 72 (CA2 1992) ("[T]he text of the Westfall Act,
viewed as a whole, is ambiguous.");
Arbour v.
Jenkins,
903 F. 2d 416, 421 (CA6 1990) ("[T]he scope certification
provisions of the Westfall Act as a whole ... [are] ambiguous
regarding the reviewability of the Attorney General's scope
certification."). Indeed, the United States initially took the
position that the local United States Attorney's scope-ofemployment
certifications are conclusive and unreviewable but, on further
consideration, changed its position. See Brief for United States
14, n. 4. Because the statute is reasonably susceptible to
divergent interpretation, we adopt the reading that accords with
traditional understandings and basic principles: that executive
determinations generally are subject to judicial review and that
mechanical judgments are not the kind federal courts are set up to
render. Under our reading, the Attorney General's certification
that a federal employee was acting within the scope of his
employment-a certification the executive official, in cases of the
kind at issue, has a compelling interest to grant-does not
conclusively establish as correct the substitution of the United
States as defendant in place of the employee.
IV
Treating the Attorney General's certification as conclusive for
purposes of removal but not for purposes of substitution,
amicus ultimately argues, "raise[s] a potentially serious
Article III problem." Brief for Michael K. Kellogg as
Amicus
Curiae 29. If the certification is rejected, because the
fed-
435
eral court concludes that the employee acted outside the scope
of his employment, and if the tort plaintiff and the employee
resubstituted as defendant are not of diverse citizenship,
amicus urges, then the federal court will be left with a
case without a federal question to support the court's
subject-matter jurisdiction. This last-pressed argument by
amicus largely drives the dissent. See
post, at
440-443.
This case itself, we note, presents not even the specter of an
Article III problem. The case was initially instituted in federal
court; it was not removed from a state court. The parties' diverse
citizenship gave petitioners an entirely secure basis for filing in
federal court.
In any event, we do not think the Article III problem
amicus describes is a grave one. There may no longer be a
federal question once the federal employee is resubstituted as
defendant, but in the category of cases
amicus hypothesizes,
there
was a nonfrivolous federal question, certified by the
local United States Attorney, when the case was removed to federal
court. At that time, the United States was the defendant, and the
action was thus under the FTCA. Whether the employee was acting
within the scope of his federal employment is a significant federal
question-and the Westfall Act was designed to assure that this
question could be aired in a federal forum. See
supra, at
430-432. Because a case under the Westfall Act thus "raises [a]
questio[n] of substantive federal law at the very outset," it
"clearly 'arises under' federal law, as that term is used in Art.
IlL"
Verlinden B. v: v.
Central Bank of Nigeria,
461 U. S. 480,
493 (1983).
In adjudicating the scope-of-federal-employment question "at the
very outset," the court inevitably will confront facts relevant to
the alleged misconduct, matters that bear on the state tort claims
against the employee. Cf.
Mine Workers v.
Gibbs,
383 U. S. 715,
725 (1966) (approving exercise of pendent jurisdiction when federal
and state claims have "a common nucleus of operative fact" and
would "ordinarily be
436
expected to [be tried] all in one judicial proceeding").
"[C]onsiderations of judicial economy, convenience and fairness to
litigants," id., at 726, make it reasonable and proper for the
federal forum to proceed beyond the federal question to final
judgment once it has invested time and resources on the initial
scope-of-employment contest.ll
If, in preserving judicial review of scope-of-employment
certifications, Congress "approach[ed] the limit" of federalcourt
jurisdiction, see
post, at 441-and we do not believe it
did-we find the exercise of federal-court authority involved here
less ominous than the consequences of declaring certifications of
the kind at issue uncontestable: The local United States Attorney,
whose conflict of interest is apparent, would be authorized to make
final and binding decisions insulating both the United States and
federal employees like Lamagno from liability while depriving
plaintiffs of potentially meritorious tort claims. The Attorney
General, having weighed the competing considerations, does not read
the statute to confer on her such extraordinary authority. Nor
should we assume that Congress meant federal courts to accept cases
only to stamp them "Dismissed" on an interested executive
official's unchallengeable representation. The statute is fairly
construed to allow petitioners to present to the Dis-
11 The dissent charges that for Congress to allow cases like
this one to open and finish in federal court, when brought there by
the local United States Attorney, "implies a jurisdictional
tenacity,"
post, at 443, and allows losers always to win,
post, at 442. Under the dissent's abstract and unrelenting
logic, it is a jurisdictional flight for Congress to assign to
federal courts tort actions in which there is a genuine issue of
fact whether a federal employee acted within the scope of his
federal employment. The dissent's solution for this discrete class
of cases: plaintiffs always lose. For the above-stated reasons, we
disagree. See also Goldberg-Ambrose, Protective Jurisdiction of the
Federal Courts, 30 UCLA L. Rev. 542, 549 (1983) ("If [the legal
relationships on which the plaintiff necessarily relies] are
federally created, even in small part, the claim should be treated
as one that arises under federal law within the meaning of article
III, independent of any protective jurisdiction theory.").
437
trict Court their objections to the Attorney General's
scopeof-employment certification, and we hold that construction the
more persuasive one.
***
For the reasons stated, the judgment of the United States Court
of Appeals for the Fourth Circuit is reversed, and the case is
remanded for proceedings consistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring in part and concurring in the
judgment.
For the reasons given in Parts I-III of the Court's opinion,
which I join, I agree with the Court (and the Attorney General)
that the Attorney General's scope-of-employment certifications in
Westfall Act cases should be judicially reviewable. I do not join
Part IV of the opinion, however. That discussion all but
conclusively resolves a difficult question of federal jurisdiction
that, as JUSTICE GINSBURG notes, is not presented in this case.
Ante, at 435. In my view, we should not resolve that
question until it is necessary for us to do so.
Of course, I agree with the dissent,
post, at 441, that
we ordinarily should construe statutes to avoid serious
constitutional questions, such as that discussed in Part IV of the
Court's opinion, when it is fairly possible to do so. See
United
States v.
X-Citement Video, Inc., 513 U. S. 64, 78
(1994); Rust v.
Sullivan, 500 U. S. 173, 223-225
(1991) (O'CONNOR, J., dissenting). And I recognize that reversing
the Court of Appeals' judgment in this case may make it impossible
to avoid deciding that question in a future case. But even such an
important canon of statutory construction as that favoring the
avoidance of serious constitutional questions does not
always carry the day. In this case, as described in detail
by the Court,
ante, at 423-434, several other important
legal principles, including the presumption in
438
favor of judicial review of executive action,
ante, at
424, the prohibition against allowing anyone "'to be a judge in his
own cause,'"
ante, at 428 (quoting The Federalist No. 10, p.
79 (C. Rossiter ed. 1961) (J. Madison)), the peculiarity inherent
in concluding that Congress has "assigned to the federal court only
rubber-stamp work,"
ante, at 429, and the "sound general
rule that Congress is deemed to avoid redundant drafting,"
post, at 444 (SOUTER, J., dissenting);
ante, at 432,
and n. 8, point in the other direction. The highly unusual
confluence of those principles in this case persuades me that,
despite the fact that the dissent's reading has the virtue of
avoiding the possibility that a difficult constitutional question
will arise in a future case, reversal is nonetheless the proper
course.
JUSTICE SOUTER, with whom THE CHIEF JUSTICE, JUSTICE SCALIA, and
JUSTICE THOMAS join, dissenting.
One does not instinctively except to a statutory construction
that opens the door of judicial review to an individual who
complains of a decision of the Attorney General, when the Attorney
General herself is ready to open the door. But however much the
Court and the Attorney General may claim their reading of the
Westfall Act to be within the bounds of reasonable policy, the
great weight of interpretive evidence shows that they misread
Congress's policy. And so I respectfully dissent.
The two principal textual statements under examination today are
perfectly straightforward. "Upon certification by the Attorney
General ... any civil action or proceeding ... . shall be deemed an
action against the United States ... , and the United States shall
be substituted as the party defendant." 28 U. S. C. § 2679(d)(1);
see also § 2679(d)(4) ("Upon certification, any action or
proceeding ... shall proceed in the same manner as any action
against the United States filed pursuant to [the FTCA] ... ").
Notwithstanding the Court's observation that some contexts can
leave the
439
word "shall" a bit slippery,
ante, at 432-433, n. 9, we
have repeatedly recognized the normally uncompromising directive
that it carries. See
United States v.
Monsanto,
491 U. S. 600,
607 (1989);
Anderson v.
Yungkau, 329 U. S. 482, 485
(1947); see also
Griggs v.
Provident Consumer Discount
Co., 459 U. S.
56, 61 (1982)
(per curiam); Association of Civilian
Technicians v.
FLRA, 22 F.3d
1150, 1153 (CADC 1994) ("The word 'shall' generally indicates a
command that admits of no discretion on the part of the person
instructed to carry out the directive"); Black's Law Dictionary
1375 (6th ed. 1990) ("As used in statutes ... this word is
generally imperative or mandatory"). There is no hint of wobbling
in the quoted language,l and the normal meaning of its plain
provisions that substitution is mandatory on certification is the
best evidence of the congressional intent that the Court finds
elusive
(ante, at 425, 426). That normal meaning and
manifest intent is confirmed by additional textual evidence and by
its consonance with normal jurisdictional assumptions.
We would not, of course, read "shall" as so uncompromising if
the Act also included some express provision for review at the
behest of the tort plaintiff when the Attorney General certifies
that the acts charged were inside the scope of a defendant
employee's official duties. But the Westfall Act has no provision
to that effect, and the very fact that its predecessor, the Federal
Drivers Act, Pub. L. 87-258, 75 Stat. 539, combined "shall" with
just such authorization for review at the will of a disappointed
tort plaintiff,
ibid. (previously codified at 28 U. S. C. §
2679(d) (1982 ed.)),2 makes the
1 The Court provides two examples from the Federal Rules in
which the circumstances under which action "shall" be taken are
limited by use of the word "only."
Ante, at 432-433, n. 9.
There is, of course, no similar language of limitation in §
2679(d)(1). The only prerequisite for substitution under the
Westfall Act is certification.
2 The Drivers Act provided for certification only in cases
originating in state court, and judicial review was perforce
limited to those cases. See 75 Stat. 539 (previously codified at 28
U. S. C. § 2679(d) (1982 ed.)).
440
absence of a like provision from the Westfall Act especially
good evidence that Congress meant to drop this feature from the
system, leaving "shall" to carry its usual unconditional message.
See
Brewster v.
Gage, 280 U. S. 327, 337 (1930)
("The deliberate selection of language so differing from that used
in ... earlier Acts indicates that a change of law was intended");
2A N. Singer, Sutherland on Statutory Construction § 51.02, p. 454
(4th ed. 1984). That conclusion gains further force from the
presence in the Westfall Act of an express provision for judicial
review at the behest of a defending employee, when the Attorney
General refuses to certify that the acts fell within the scope of
Government employment. See 28 U. S. C. § 2679(d)(3) ("[i]n the
event that the Attorney General has refused to certify scope of
office or employment under this section, the employee may at any
time before trial petition the court to find and certify that the
employee was acting within the scope of his office or employment").
Providing authority in one circumstance but not another implies an
absence of authority in the statute's silence. See
Russello
v.
United States, 464 U. S. 16, 23 (1983)
("Where Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion"); see also
United
States v.
Naftalin, 441 U. S. 768, 773-774
(1979).
Even if these textually grounded implications were not enough to
confirm a plain reading of the text and decide the case, an
anomalous jurisdictional consequence of the Court's position should
be enough to warn us away from treating the Attorney General's
certification as reviewable. The Court recognizes that there is
nothing equivocal about the Act's provision that once a state tort
action has been removed to a federal court after a certification by
the Attorney General, it may never be remanded to the state system:
"certification of the Attorney General shall conclusively establish
scope of
441
office or employment for purposes of removal," 28 U. S. C. §
2679(d)(2). As the principal opinion concedes, then,
ante,
at 435, its reading supposes that Congress intended federal courts
to retain jurisdiction over state-law tort claims between
nondiverse parties even after determining that the Attorney
General's certification (and thus the United States's presence as
the defendant) was improper. But there is a serious problem, on the
Court's reasoning, in requiring a federal district court, after
rejecting the Attorney General's certification, to retain
jurisdiction over a claim that does not implicate federal law in
any way. Although we have declined recent invitations to define the
outermost limit of federal-court jurisdiction authorized by the
"Arising Under" Clause of Article III of the Constitution,3 see
Mesa v.
California, 489 U. S. 121, 136-137
(1989);
Verlinden B. v: v.
Central Bank of Nigeria,
461 U. S. 480
(1983), on the Court's reading this statute must at the very least
approach the limit, if it does not cross the line. This, then, is
just the case for adhering to the Court's practice of declining to
construe a statute as testing this limit when presented with a
sound alternative.
Mesa v.
California, supra, at 137,
citing
Califano v.
Yamasaki, 442 U. S. 682, 693
(1979).
The principal opinion departs from this practice, however.
Instead, it looks for jurisdictional solace in the theory that
once the Attorney General has issued a scope-of-employment
certification, the United States's (temporary) appearance as the
sole defendant suffices forever to support jurisdiction in federal
court, even if the district court later rejects the Attorney
General's certification and resubstitutes as defendant the federal
employee first sued in state court.
Ante, at 434435. Whether
the employee was within the scope of his federal employment, the
principal opinion reasons, is itself a suf-
3 "The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their
Authority .... " u. S. Const., Art. III, § 2, cl. 1.
442
ficient federal question to bring the case into federal court,
and "'considerations of judicial economy, convenience and fairness
to litigants,'"
ante, at 436, quoting
Mine Workers v.
Gibbs, 383 U.
S. 715, 726 (1966), are sufficient to keep it there even after
a judicial determination that the United States is not the proper
defendant.
But the fallacy of this conclusion appears as soon as one
recalls the fact that substitution of the United States as
defendant (which establishes federal-question jurisdiction) is
exclusively dependant on the scope-of-employment certification. The
challenge to the certification is thus the equivalent of a
challenge to the essential jurisdictional fact that the United
States is a party, and the federal court's jurisdiction to review
scope of employment (on the principal opinion's theory) is merely
an example of any court's necessary authority to rule on a
challenge to its own jurisdiction to try a particular action. To
argue, as the principal opinion does, that authority to determine
scope of employment justifies retention of jurisdiction whenever
evidence bearing on jurisdiction and liability overlaps, is
therefore tantamount to saying the authority to determine whether a
court has jurisdiction over the cause of action supplies the very
jurisdiction that is subject to challenge. It simply obliterates
the distinction between the authority to determine jurisdiction and
the jurisdiction that is the subject of the challenge, and the
party whose jurisdictional claim was challenged will never lose:
litigating the question whether an employee's allegedly tortious
acts fall within the scope of employment will, of course, always
require some evidence to show what the acts were. Accordingly,
there will always be overlap between evidence going to the
scope-of-employment determination and evidence bearing on the
underlying liability claimed by the plaintiff, and for this reason
federal-question jurisdiction in these cases becomes inevitable on
the Court's view. The right to challenge it therefore becomes
meaningless, as does
443
the very notion of jurisdictional limitation. The Court's cure
for the jurisdictional disease is thus to kill the concept of
federal-question jurisdiction as a limit on what federal courts may
entertain.
It would never be sound to attribute such an aberrant concept of
federal-question jurisdiction to Congress; it is impossible to do
so when we realize that Congress expressly provided that when a
federal court considers a challenge to the Attorney General's
refusal to certify (raised by an employee-defendant) and finds the
act outside the scope of employment, a case that originated in a
state court must be remanded back to the state court. See 28 U. S.
C. § 2679(d) (3). In such a case, there will have been just as much
overlap of jurisdictional evidence and liability evidence as there
will be when the jurisdictional issue is litigated at the behest of
a plaintiff (as here) who contests a scope-of-employment
certification. If Congress thought the federal court should retain
jurisdiction when it is revealed that none exists in this latter
case, it should have thought so in the former. But it did not, and
the reason it did not is obvious beyond any doubt. It assumed a
federal court would never be in the position to retain jurisdiction
over an action for which a tort plaintiff has shown there is no
federal-question basis, and Congress was entitled to assume this,
because it had provided that a certification was conclusive.
In sum, the congressional decision to make the Attorney
General's certification conclusive was couched in plain terms,
whose plain meaning is confirmed by contrasting the absence of any
provision for review with just such a provision in the predecessor
statute, and with an express provision for review of a refusal to
certify, contained in the Westfall Act itself. The Court's contrary
view implies a jurisdictional tenacity that Congress expressly
declined to assert elsewhere in the Act, and invites a difficult
and wholly unnecessary constitutional adjudication about the limits
of Article
444
III jurisdiction. These are powerful reasons to recognize the
unreviewability of certification, and the Court's contrary
arguments fail to measure up to them.
The Court raises three counterpoints to a straightforward
reading of the Act. First, it suggests that language in §
2679(d)(2) negatively implies that Congress intended to authorize
judicial review of scope-of-employment certifications, and that, in
fact, the straightforward reading of the statute results in a
drafting redundancy. Second, the Court claims that the
straightforward reading creates an oddity by limiting the role of
federal courts in certain cases. Finally, the Court invokes the
presumption against judging one's self.
The redundancy argument, it must be said, is facially plausible.
It begins with the sound general rule that Congress is deemed to
avoid redundant drafting,
Mackey v.
Lanier Collection
Agency &
Service, Inc., 486 U. S. 825, 837
(1988); see
Park 'N
Fly, Inc. v.
Dollar Park
&
Fly, Inc., 469 U. S. 189, 196-197
(1985), from which it follows that a statutory interpretation that
would render an express provision redundant was probably unintended
and should be rejected. Applying that rule here, the argument is
that if certification by the Attorney General conclusively
establishes scope of employment for substitution purposes, then
there is no need for the final sentence in § 2679(d)(2), that
certification "shall conclusively establish scope of office or
employment for purposes of removal" in cases brought against
federal employees in state court. If certification is conclusive as
to substitution it will be equally conclusive as to removal, since
the federal defendant will necessarily be entitled to claim
jurisdiction of a federal court under 28 U. S. C. § 1346(b). See
ante, at 432, n. 8. Accordingly, the Court suggests the
provision making certification conclusive for purposes of removal
must have greater meaning; it must carry the negative implication
that certification is not conclusive for purposes of substitution.
Ante, at 432.
Sometimes, however, there is an explanation for redundancy,
rendering any asserted inference from it too shaky to
445
be trusted. Cf.
United States Nat. Bank of Ore. v.
Independent Ins. Agents of America, Inc., 508 U. S. 439, 459
(1993). That is the case with the provision that certification is
conclusive on the issue of removal from state to federal court. The
explanation takes us back to the Westfall Act's predecessor, the
Federal Drivers Act, 75 Stat. 539, which was superseded upon
passage of the current statute, Pub. L. 100-694, 102 Stat.
4563-4567. The Drivers Act made the FTCA the exclusive source of
remedies for injuries resulting from the operation of any motor
vehicle by a federal employee acting within the scope of his
employment. 28 U. S. C. § 2679(b) (1982 ed.). Like the Westfall
Act, the Drivers Act authorized the Attorney General to certify
that a federal employee sued in state court was acting within the
scope of employment during the incident allegedly giving rise to
the claim, and it provided in that event for removal to the federal
system, as well as for substitution of the United States as the
defendant. § 2679(d). Unlike the Westfall Act, however, the Drivers
Act explicitly directed district courts to review, "on a motion to
remand held before a trial on the merits," whether any such case
was "one in which a remedy by suit ... is not available against the
United States."
Ibid. The district courts and the courts of
appeals routinely read this language to permit district courts to
hear motions to remand challenging the Attorney General's
scope-of-employment determination. See
McGowan v.
Williams, 623 F.2d
1239, 1242 (CA7 1980);
Van Houten v.
Ralls,
411 F.2d
940, 942 (CA9), cert. denied, 396 U. S. 962
(1969);
Daugherty v.
United States, 427 F. Supp. 222, 223-224
(WD Pa. 1977); accord,
Seiden v.
United States,
537 F.2d
867, 869 (CA6 1976);
Levin v.
Taylor, 464 F.2d
770, 771 (CADC 1972). Given the express permissibility of a
motion to remand in order to raise a postremoval challenge to
certification under the Drivers Act, when the old Act was
superseded, and challenges to certification were eliminated,
Congress could sensibly have seen some practical value in the
redundancy of making it clear beyond question that the
446
old practice of considering scope of employment on motions to
remand was over.4
How then does one assess the force of the redundancy?
On my plain reading of the statute, one may take it as an
understandable inelegance of drafting. One could, in the
alternative, take it as some confirmation for the Court's view,
even though the Court's view brings with it both a jurisdictional
anomaly and the consequent certainty of a serious constitutional
question. Is it not more likely that Congress would have indulged
in a little redundancy, than have meant to foist such a pointless
need for constitutional litigation onto the federal courts? Given
the choice, inelegance may be forgiven.
The Court's second counterpoint is that we should be reluctant
to read the Westfall Act in a way that leaves a district court
without any real work to do. The Court suggests that my reading
does just that in cases like this one, because the district court's
sole function after the Attorney General has issued a
scope-of-employment certification is to enter an order of
dismissal.
Ante, at 429. Of course, in the bulk of cases
with an Attorney General's certification, the sequence envisioned
by the Court will never materialize. Even though a district court
may not review the scope-ofemployment determination, it will still
have plenty of work to do in the likely event that either liability
or amount of
4 The Court concludes that the provision for review of
certification was omitted because it was joined with the provision
for remand in the Drivers Act.
Ante, at 433, n. 10. On a
matter of this substance, the explanation does not give Congress
credit for much intellectual discrimination. The same footnote also
sells this dissent a bit short: we have no need to argue that
omission of any provision to review scope of employment, in
isolation, would conclusively have foreclosed review, and we have
made the very point that a failure to provide for conclusiveness of
removal would not have left that issue in doubt; on each point, the
various items of interpretive evidence supplied by the text and by
textual comparison with the Drivers Act are to be read together in
pointing to whatever judgment they support.
447
damages is disputed, or the United States's claim to immunity
under 28 U. S. C. § 2680 turns on disputed facts. Only in those
rare cases presenting a claim to federal immunity too airtight for
the plaintiff to challenge will the circumstance identified by the
Court even occur. It is hard to find any significance in the fact
that now and then a certification will relieve a federal court of
further work, given the straightforward and amply confirmed
provision for conclusiveness.
The Court's final counterpoint to plain reading relies heavily
on "the strong presumption that Congress intends judicial review of
administrative action," citing a line of cases involving judicial
challenges to regulations claimed to be outside the statutory
authority of the administrative agencies that promulgated them. See
ante, at 424-425, citing
Bowen v.
Michigan Academy
of Family Physicians, 476 U. S. 667, 670673
(1986);
Abbott Laboratories v.
Gardner, 387 U. S. 136, 140
(1967). It is, however, a fair question whether this presumption,
usually applied to permit review of agency regulations carrying the
force and effect of law, should apply with equal force to a
Westfall Act certification. The very narrow factual determination
committed to the Attorney General's discretion is related only
tangentially, if at all, to her primary executive duties; she
determines only whether a federal employee, who will probably not
even be affiliated with the Justice Department, acted within the
scope of his employment on a particular occasion. This function is
far removed from the agency action that gave rise to the
presumption of reviewability in
Bowen, supra, at 668-669, in
which the Court considered whether Congress provided the Secretary
of Health and Human Services with nonreviewable authority to
promulgate certain Medicare distribution regulations, and in
Abbott Laboratories, supra, at 138-139, in which the Court
considered whether Congress provided the Secretary of Health,
Education and Welfare with nonreviewable authority to promulgate
certain prescription drug labeling regulations.
448
The Court's answer that the presumption of reviewability should
control this case rests on the invocation of a different, but
powerful, principle, that no person may be a judge in his own
cause.
Ante, at 427-429. But this principle is not apt here.
The Attorney General (who has delegated her Westfall Act
responsibilities to the United States Attorneys, 28 CFR § 15.3(a)
(1994)) is authorized to determine when any one of nearly three
million federal employees was acting within the scope of authority
at an allegedly tortious moment. She will characteristically have
no perceptible interest in the effect of her certification
decision, except in the work it may visit on her employees or the
liability it may ultimately place on the National Government (each
of which considerations could only influence her to deny
certification subject to the employee's right to challenge her).
And even where she certifies under circumstances of the
Government's immunity, as here, she does not save her employer, the
United States, from any liability it would face in the absence of
certification; if she refused to certify, the Government would
remain as free of exposure as if she issued a certification. The
most that can be claimed is that when the Government would enjoy
immunity it would be easy to do a favor for a federal employee by
issuing a certification. But at this point the possibility of
institutional self-interest has simply become
de minimis,5
and the likelihood of improper influence
5 The Court tries to convert this minimal influence into a
"conflict of interest,"
ante, at 436, derived from an
"impetus to certify [that is] overwhelming,"
ante, at 427,
said to arise from a United States Attorney's fear that a
Government employee would contest a refusal to certify and force
the United States Attorney to litigate the issue. This suggestion
will appear plausible or not depending on one's view of the frailty
of United States Attorneys. We have to doubt that the Attorney
General sees her United States Attorneys as quite so complaisant,
and if Congress had thought that the Government's lawyers would
certify irresponsibly just to avoid preparing for a hearing it
would surely have retained the Drivers Act's provision for review
of certification.
449
has become too attenuated to analogize to the case in which the
interested party would protect himself by judging his own cause or
otherwise take the law into his own hands in disregard of
established legal process. Although the Court quotes at length from
the traditional condemnations of selfinterested judgments,
ante, at 428-429, its citations would be on point here only
if the employee were issuing the certification. But of course, the
employee is not the one who does it, and the Attorney General
plainly lacks the kind of self-interest that" 'would certainly bias
[her] judgment, and, not improbably, corrupt [her] integrity ....
'"
Ante, at 428, quoting The Federalist No. 10, p. 79 (C.
Rossiter ed. 1961) (J. Madison).
In any event, even when this presumption is applicable, it is
still no more than a presumption, to be given controlling effect
only if reference to "specific language or specific legislative
history" and "inferences of intent drawn from the statutory scheme
as a whole,"
Block v.
Community Nutrition Institute,
467 U. S. 340,
349 (1984), leave the Court with "substantial doubt" as to
Congress's design, id., at 351. There is no substantial doubt here.
The presumption has no work to do.
I would affirm.
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