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SUPREME COURT OF THE UNITED STATES
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No. 94-167
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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 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 West-
fall 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 examina-
tion today are perfectly straightforward.  -Upon certifica-
tion 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) (-[u]pon 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
word -shall- a bit slippery, ante, at 15, 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, 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 6, 8).  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 uncompro-
mising 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 (1961), 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.)), makes the
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 review-
able.  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
office or employment for purposes of removal,-  28
U. S. C. 2679(d)(2).  As the Court concedes, then, ante,
at 17, its reading supposes that Congress intended
federal courts to retain jurisdiction over state-law tort
claims between nondiverse parties even after determin-
ing 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, 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 Court 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 17-18.  Whether the
employee was within the scope of his federal employ-
ment, the Court reasons, is itself a sufficient federal
question to bring the case into federal court, and
-`considerations of judicial economy, convenience and
fairness to litigants,'- ante, at 18, 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 certifica-
tion is thus the equivalent of a challenge to the essen-
tial jurisdictional fact that the United States is a party,
and the federal court's jurisdiction to review scope of
employment (on the Court's theory) is merely an exam-
ple of any court's necessary authority to rule on a
challenge to its own jurisdiction to try a particular
action.  To argue, as the Court 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 jurisdic-
tion over the cause of action supplies the very jurisdic-
tion 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 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 jurisdic-
tional 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 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 straightfor-
ward reading of the Act.  First, it suggests that lan-
guage in 2679(d)(2) negatively implies that Congress
intended to authorize judicial review of scope-of-employ-
ment 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 substi-
tution purposes, then there is no need for the final
sentence in 2679(d)(2), that certification -shall conclu-
sively 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 14, 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 substitu-
tion.  Ante, at 14.
  Sometimes, however, there is an explanation for
redundancy, rendering any asserted inference from it too
shaky to be trusted.  Cf.  United States Nat. Bank of
Ore. v. Independent Ins. Agents of America, Inc., 508
U. S. ___, ___ (1993) (slip op., at 19-20).  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 predeces-
sor, 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 employ-
ment.  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.  28 U. S. C. 2679(d) (1982 ed.).  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 post-removal
challenge to certification under the Drivers Act, when
the old Act was superseded, and challenges to certifica-
tion were eliminated, Congress could sensibly have seen
some practical value in the redundancy of making it
clear beyond question that the old practice of considering
scope of employment on motions to remand was over.
  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
11-12.  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 determi-
nation, it will still have plenty of work to do in the
likely event that either liability or amount of 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 immu-
nity too air-tight 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 regula-
tions claimed to be outside the statutory authority of the
administrative agencies that promulgated them.  See
ante, at 5-6, 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
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 non-reviewable
authority to promulgate certain Medicare distribution
regulations, and in Abbott Laboratories, supra, at
138-139, in which the Court considered whether Con-
gress provided the Secretary of Health, Education and
Welfare with non-reviewable authority to promulgate
certain prescription drug labeling regulations.
  The Court's answer that the presumption of review-
ability 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 8-11.  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, and the likelihood of
improper influence has become too attenuated to analo-
gize 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 estab-
lished legal process.  Although the Court quotes at
length from the traditional condemnations of self-
interested judgments, ante, at 10-11, 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] integ-
rity. . . .'-  Ante, at 10, quoting The Federalist No. 10,
p. 79 (C. Rossiter ed. 1961) (J. Madison).
  In any event, even when this presumption is applica-
ble, 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.