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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 94-167
- --------
- KATIA GUTIERREZ DE MARTINEZ, EDUARDO
- MARTINEZ PUCCINI and HENNY MARTINEZ
- DE PAPAIANI, PETITIONERS v. DIRK A.
- LAMAGNO et al.
- on writ of certiorari to the united states court
- of appeals for the fourth circuit
- [June 14, 1995]
-
- 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
- Court's opinion, however. That discussion all but
- conclusively resolves a difficult question of federal
- jurisdiction that, as the Court notes, is not presented in
- this case, ante, at 17. 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 4, 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. ___, ___ (1994) (slip op., at 14-15); 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 5-17,
- several other important legal principles, including the
- presumption in favor of judicial review of executive
- action, ante, at 6, the prohibition against allowing
- anyone -`to be a judge in his own cause,'- ante, at 10
- (quoting The Federalist No. 10, p. 79 (C. Rossiter ed.,
- 1961) (J. Madison)), the peculiarity inherent in conclud-
- ing that Congress has -assigned to the federal court only
- rubber-stamp work,- ante, at 11, and the -sound general
- rule that Congress is deemed to avoid redundant
- drafting,- post, at 7 (Souter, J., dissenting); ante, at
- 14-15, and n. 10, 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.
-