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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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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 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 Compensation Act of 1988 (commonly known as
the Westfall Act) empowers the Attorney General to cer-
tify 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 liabil-
ity.  If, however, an exception to the FTCA shields the
United States from suit, the plaintiff may be left with-
out 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 (petition-
ers 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 Barran-
quilla, Colombia, a car driven by respondent Dirk A. La-
magno, a special agent of the United States Drug Enforce-
ment Administration (DEA), collided with petitioners' car.
Petitioners, who are citizens of Colombia, allege that
Lamagno 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.  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 certifica-
tion, as is customary, stated no reasons for the U. S.
Attorney's scope-of-employment determination.
  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 provi-
sions 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 finan-
cially reliable defendant.  But in this case, substitution
of the United States would cause the demise of the ac-
tion: petitioners' claims -ar[ose] in a foreign country,-
FTCA, 28 U. S. C. 2680(k), and thus fell within an ex-
ception to the FTCA's waiver of the United States' sov-
ereign 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 ac-
tions-).  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. ___ (1993), the District Court held the
certification unreviewable, substituted the United States
for Lamagno, and dismissed petitioners' 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.  We granted certio-
rari to resolve the conflict, 513 U. S. ___ (1994), 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 U. S. Attorney, unreview-
ably 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 diver-
gent 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 govern-
ment official's determination of a fact or circum-
stance-for example, -scope of employment--is disposi-
tive 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 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, legis-
lated against a backdrop of judicial review.  Courts
routinely reviewed the local U. S. 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 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 her delegate certified that the
defendant driver was acting within the scope of employ-
ment, 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 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-of-employment 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-of-employ-
ment- 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 re-
quired to enter as a court judgment an executive officer's
decision, but stripped of capacity to evaluate indepen-
dently 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 Restate-
ment (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.  When the United States retains immun-
ity 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 compre-
hends.  If the local U. S. Attorney, to whom the Attor-
ney 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
U. S. Attorney has no incentive to oppose for the very
reason the dissent suggests, see post, at 11-12: 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
U. S. Attorney's precious litigation resources-it would
be litigating solely for the benefit of the plaintiff.
Inevitably, the U. S. Attorney will feel a strong tug to
certify, even when the merits are cloudy, and thereby
-do a favor,- id., at 12, 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 govern-
ment.  Madison spoke precisely to the point in The
Federalist No. 10:
      -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) (J. Madison).
See In re Murchison, 349 U. S. 133, 136 (1955) (Black,
J.) (-[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 a 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, conspicu-
ously self-serving interpretation.  See supra, at 5, and n.
4.  Recognizing that a U. S. 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. 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 auto-
matically 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 -pre-
scribe 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.

                           III
  We return now, in more detail, to the statutory lan-
guage, to determine whether it overcomes the presump-
tion favoring judicial review, the tradition of court
review of scope certifications, and the anomalies attend-
ing foreclosure of review.
  The certification, removal, and substitution provisions
of the Westfall Act, 28 U. S. C. 2679(d)(1)-(3), work
together 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 defendant-employee'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, 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 -certifi-
cation . . . shall [be conclusive] . . . for purposes of
removal- language of 2679(d)(2).  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) (empha-
sis added).  Any doubt as to the commanding force of
the word -shall,- Lamagno urges, is dispelled 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, Lamagno
underscores, but the Act prominently provides for court
review of 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
U. S. Attorney's scope-of-employment certifications are
conclusive and unreviewable but, on further consider-
ation, 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 conclu-
sive 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 certifi-
cation is rejected, because the federal court concludes
that the employee acted outside the scope of his employ-
ment, 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 3-6.
  This case itself, we note, presents not even the specter
of an Article III problem.  The case was initially insti-
tuted 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 U. S. 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 12-14.  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 ques-
tion -at the very outset,- the court inevitably will con-
front 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 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.
  If, in preserving judicial review of scope-of-employment
certifications, Congress -approach[ed] the limit- of
federal court jurisdiction, see post, at 4-and we do not
believe it did-we find the exercise of federal court
authority involved here less ominous than the conse-
quences of declaring certifications of the kind at issue
uncontestable: The local U. S. 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 District Court their objections to the Attorney
General's scope-of-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.