GUTIERREZ DE MARTINEZ ET AL. v. LAMAGNO ET AL.
No. 94-167
Supreme Court of the United States
Argued March 22, 1995—Decided June 14, 1995
515 U.S. 417
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 IV.
When a federal employee is sued for a wrongful or negligent act, the Federal Employees Liability Reform and Tort
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.”
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
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
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.”
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,
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
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 thе line. See
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:
“It 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
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 Westfall Act‘s statutory predecessor, the Federal Drivers Act, Pub. L. 87-258, § 1, 75 Stat. 539 (previously codified at
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
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-of-employment inquiry—that is, it wanted the employee‘s personal immunity to turn on that question alone. See
C
Construction of the Westfall Act as Lamagno urges—to deny to federal courts authority to review thе 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.
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
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 (O. Wight transl. 1859) (“It is not permitted to the most equitable of men to be а
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.
Congress may be free to establish a compensation scheme that operates without court participation. Cf.
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,
Notes
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.
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
Lamagno‘s construction does not draw on thе “certification ... shall [be conclusive] ... for purposes of removal” language of
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,10 Lamagno underscores, but the Act prominently provides for court review of
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-of-employment 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 сertification 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-
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 Stаtes 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. III.” 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
If, in preserving judicial review of scope-of-employment certifications, Congress “approach[ed] the limit” of federal-court 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-
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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
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.”
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
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
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 434-435. Whether the employee was within the scope of his federal employment, the principal opinion reasons, is itself a suf-
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 depеndant 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, alwаys require some evidence to show what the acts were. Accordingly, there will always 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
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
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 adjudicаtion about the limits of Article
The Court raises three counterpoints to a straightforward reading of the Act. First, it suggests that language in
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
Sometimes, however, there is an explanation for redundancy, rendering any asserted inference from it too shaky to
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-of-employment determination, it will still have plenty of work to do in the likely event that either liability or amount of
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, 670-673 (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 аpply 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.
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.
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 аction 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.”