William H. Rehnquist: We'll hear argument first this morning in number 94-167, Katia Gutierrez de Martinez v. Dirk Lamagno. Mr. Rodriguez.
Isidoro Rodriguez: Thank you, Mr. Chief Justice. May it please the Court: The question for the Court today is to resolve the dispute between the Circuits. That is, whether or not the Attorney General's scope of employment certification issued under the Westfall Act is subject to de novo judicial review by the district court. This action involves a simple automobile accident in Barranquilla, Colombia, where an employee of the Federal Government, driving at night, injured Petitioners. An administrative claim was filed in '91. Subsequently, after two years of filing additional data to the administrative body, told the statute of limitations of the action was filed in '93. Three months subsequent to that, the attorney... the U.S. Attorney for the Eastern District of Virginia issued a one-line paragraph saying that Mr. Lamagno was in fact acting within the scope of his employment. We opposed that motion in the district court, however, based on the Fourth Circuit's ruling in Johnson v. Carter, that held that there was no discretion on the part of the district court but to dismiss the action and substitute the United States. As a result of being... having the United States substitute, the action was dismissed as a result of the Foreign Claims Exemption to the Federal Torts Claims Act. And this action was then filed... a petition before this Court. We hold that... we believe that the Fourth Circuit's decision is in error in two essential ways. First, there is nothing within the Westfall Act to indicate that the... that the presumption of judicial review under the Federal Drivers Act, which was the underpinning of the Westfall Act, was amended. That at all times judicial review was maintained--
William H. Rehnquist: Well, they did change the statutory language, didn't they?
Isidoro Rodriguez: --Yes. Under (d)(1), Mr. Chief Justice, they changed the statutory language to expand what was under the Federal Drivers Act... that is immunity from suit if a Federal driver was acting within the scope of employment at the time of the car accident... to encompass all Federal employees as long as they were acting within the scope of their employment.
William H. Rehnquist: And what did the Federal Drivers Act say about judicial review?
Isidoro Rodriguez: It said nothing, with the exception on the issue of removal from the State court to the Federal court, which permitted a challenge by the individual. With regard to a... an action that was filed in divers, in the Federal court. It was moot. There was... there was a presumption of judicial review, and the courts followed that presumption. And that--
William H. Rehnquist: Well, now, now, wait a minute. There... was the presumption of judicial review contained in the language of the Act?
Isidoro Rodriguez: --I... I... in reviewing the decision--
William H. Rehnquist: No; you can answer that question yes or no, surely.
Isidoro Rodriguez: --Specifically, no... within the Drivers--
William H. Rehnquist: Yes.
Isidoro Rodriguez: --The Federal Drivers Act. It was not specifically black-letter law within the statute.
William H. Rehnquist: Well, was it any other kind of letter law within the statute?
Isidoro Rodriguez: No, Your Honor. Subsequently, the Westfall Act expanded the... the ability of immunity from suit on an individual basis if the Federal employee was acting within the scope of employment. The reason why the... the need for judicial review is threefold. First, without judicial review, there is a question about due process. Here we have individuals who have a right of action as a result of a tort action, having property damage and injuries, having no opportunity to be heard as a result of a... a... a certification... scope of employment by an administrative body, who is acting both as a factfinder and, at the same time, as defense of the Federal employee.
William H. Rehnquist: And what is the argument that that would deny due process... this accident took place in Colombia, right?
Isidoro Rodriguez: Correct.
William H. Rehnquist: And you're perfectly free to sue in the courts of Colombia, I take it?
Isidoro Rodriguez: No, Your Honor. As a result of sovereign immunity, Mr. Lamagno was detailed to the United States Embassy, and so there is sovereign immunity from suit in Colombia.
Ruth Bader Ginsburg: As against him as an individual? I guess the United States I can understand that argument, but suing him as an individual... you can't sue the United States--
Isidoro Rodriguez: Correct.
Ruth Bader Ginsburg: --In the United States either.
Isidoro Rodriguez: Well, you could not under Colombian civil law sue him as an individual as a result of his being in the service of a foreign embassy.
John Paul Stevens: With diplomatic immunity?
Isidoro Rodriguez: Correct. So he has... in that capacity, there is not, within civil law... the Civil Code of Colombia, a scope of employment exception to this diplomatic immunity. And so, we're... we're essentially without recourse under the laws of Colombia.
Antonin Scalia: This... this accident occurred after the Westfall Act was passed?
Isidoro Rodriguez: Correct.
Antonin Scalia: Not before?
Isidoro Rodriguez: It occurred in... in January of '91.
Antonin Scalia: It's not as though the right to sue existed and then the Act took it away. The Act said, when the accident occurred, that this might happen. That... that the Attorney General might, in... in effect, say you can't sue this individual?
Isidoro Rodriguez: Correct.
Antonin Scalia: So why is that a denial of due process?
Isidoro Rodriguez: Well, because essentially, even under the Federal Drivers Act you had a right to challenge the issue of the scope of employment to determine whether in fact at the time--
Antonin Scalia: Yes, but they changed that before this accident--
Isidoro Rodriguez: --That is... that is the issue before this Court... whether in fact it was changed.
Antonin Scalia: --Suppose... suppose the Federal Government says, ex ante, before... before an accident occurs, they... they say you cannot sue personally any Federal employee?
Isidoro Rodriguez: Before the accident occurs?
Antonin Scalia: Yes. They just say, you know, we... we have made the determination that suits against Federal employees are so much trouble, they are so distracting to... to their execution of their duties that one of the perquisites of Federal employment is you are to be immune from civil tort suits, period?
Isidoro Rodriguez: Based on that hypothetical--
Antonin Scalia: Is that a denial of... of equal... of due process?
Isidoro Rodriguez: --Well, it... no, based on that hypothetical. However, that... those facts--
Antonin Scalia: Well, this is just one step short of that. It says not all of them will be, but only those that the Attorney General says shall be, shall be.
Isidoro Rodriguez: --I think... I think there's a large distinction between the hypothetical you presented and the facts with regard to the Westfall Act and the antecedent Federal Drivers Act. The Westfall Act was never designed and never attempted to remove the issue of judicial review. This... there is cursory legislative language in the history of it. But with regard to the specific--
Antonin Scalia: No, wait. I... I'm... I was not speaking to the point of whether the Act removed judicial review. I was speaking to your argument that if it did re... remove judicial review, it would be a denial of due process of law.
Isidoro Rodriguez: --If it did--
Antonin Scalia: And that's all I'm speaking... yes--
Isidoro Rodriguez: --On your hypothetical--
Antonin Scalia: --You said... you said it would be a denial of due process.
Isidoro Rodriguez: --No. Based on your hypothetical, I said that that would be acceptable, because there would be a clear, emphatic statement on the part of Congress, saying that... that for these specific findings and these specific fact situations, we will deny and we will underwrite all Federal employees.
Antonin Scalia: Right.
Isidoro Rodriguez: Now, whether or not that was challenged subsequent--
Antonin Scalia: Leaving it to the Attorney General is what... is what causes it to be a denial of due process?
Isidoro Rodriguez: --Leaving both issues... both the factfinding and the defending of the... of the... of the employee. And then, the third issue, removing all recourses for the injured parties.
William H. Rehnquist: Well, before the Federal Tort Claims Act, you couldn't sue the Government for... for any injury inflicted by a... an employee acting in the course of... of his employment.
Isidoro Rodriguez: But that is the issue. Our challenge is whether or not Mr. Lamagno was in fact acting within the scope of his employment. And what we requested both at the administrative level... where we raised the challenge initially... was some sort of impartial factfinding that... to assure that in fact he was acting within the scope of employment to provide that type of immunity. Neither at the administratively level nor at the judicial level do we have that type of impartial factfinding.
William H. Rehnquist: But you have nothing at all before the Federal Tort Claims Act?
Isidoro Rodriguez: We had this lawsuit against the individual. That... that is... that is a common law tort that occurred in... in Colombia, which we have sued Mr. Lamagno in his individual capacity.
Ruth Bader Ginsburg: And you say the diplomatic immunity is so total that even acting outside the scope of employment, it would... there is no remedy in... in Colombia?
Isidoro Rodriguez: There would be no way of getting into the court because of the diplomatic immunity.
William H. Rehnquist: Well, how can you lay venue against him back here in the United States?
Isidoro Rodriguez: Because... because he is a resident of Virginia. He is a... he works out of the... the Agency that is stationed in Virginia. All indices indicates that this is where his connection was, was in Virginia. Hence, that's why the lawsuit... why otherwise--
William H. Rehnquist: And was... was he served with process in the action?
Isidoro Rodriguez: --We served process both on... on the Agency head and also on... on the Agency in his name, which was accepted.
William H. Rehnquist: Well, was it... yes, but I... this is collateral, but I... I doubt that they could accept service for him personally, could they?
Isidoro Rodriguez: Well, they... we never received it back to our process server, Your Honor.
Ruth Bader Ginsburg: You... you sued him personally based on all-purpose jurisdiction, you sued him where he resided, his all-purpose forum where he resided?
Isidoro Rodriguez: Yes.
Ruth Bader Ginsburg: You said you would be left without a remedy, but isn't there some kind of administrative proceeding ongoing before the DEA?
Isidoro Rodriguez: Theoretically there is an administrative process. But if the... if Lamagno's grandchildren get to a certain age, I'm certain that they will be able to deal with that, because here we are four years down the road, a simple car accident, and DEA has the... has not responded in any fashion other than... I should say... DEA... the Torts Division of the Justice Department, because it was transferred from DEA to the Torts Division. Although they have requested mountains of documentation, both medical reports and other... other information, they never have responded during this four-year course as to what the status of this action would be.
Anthony M. Kennedy: Could you tell me a little bit more about your due process argument? What's... what line of authority... what precedents from this Court do you cite in support of the proposition that there is a denial of due process when the certification by the Government deprives your client of a cause of action?
Isidoro Rodriguez: Well, the... the... the line of reason from this Court starts out that there is a property right in a common law action. That's been supported in Petrousky v. United States in the Second Circuit, and reaffirmed there. And that, once you have that property right, in order to deprive them of the property right, you have to have due process.
Anthony M. Kennedy: And what's your... your closest case in point from this Court?
Isidoro Rodriguez: Okay, one moment, Your Honor. According to Petrousky, they cite Paul v. Davis, 424 U.S. 693.
Antonin Scalia: Well, of course, you're making an argument of a property right. It's a fine argument when the statute is passed after the cause of action arises. But this statute was passed before the cause of action arises. So the... so the point can be made that the... that the cause of action, when it sprung up, was automatically limited by... by the statute.
Isidoro Rodriguez: But--
Antonin Scalia: There was no cause of action expected or anticipated, except one that was subject to this Attorney General's specification.
Isidoro Rodriguez: --But that's only if you abide by the analysis that when the Westfall Act was passed, it was designed to remove judicial review. There is nothing to support that... that assertion.
Antonin Scalia: Let... let me ask one... one more variation about the due process question. Would you have the same due process objection if the statute did not say that the Attorney General would certify that the individual was acting within the course of his employment, but simply said, if the Attorney General says, no cause of action, there shall be no cause of action?
Isidoro Rodriguez: I believe that... that you'd have the same sort of... of problem of having the factfinder--
Antonin Scalia: Well, he's not finding any facts. He's just saying I don't want this guy sued. He's not finding any facts at all. So there are no facts for courts to review.
Isidoro Rodriguez: --Yes. Yes, I... I would find the same problem--
Antonin Scalia: The same problem.
Isidoro Rodriguez: --The issue of bias by the factfinder is one of the key ingredients of... of... of this particular case. Because here you have the person who is the supervisor of the employee, if you will, making the decision that when he makes the decision that in fact scope of employment exists, it ends all litigation.
Antonin Scalia: Are your clients American citizens?
Isidoro Rodriguez: No, they are Colombian citizens.
Antonin Scalia: And the accident occurred in Colombia?
Isidoro Rodriguez: In Barranquilla, Colombia.
Antonin Scalia: And they're protected by the due process clause?
Isidoro Rodriguez: They're... they're--
Antonin Scalia: Is the whole world protected by the due process clause of the American Constitution?
Isidoro Rodriguez: --It's sad to say, no. But in this instance, when they have an action against an employee who lives in... in the United States, and they're filing under State law right of... a tort action under the State law of Virginia, and then if there is affirmative Government action to deprive them of the right to litigate, due process does kick in. They have a right to litigate in Virginia. But for the fact that he was a Federal employee, they would have had this issue resolved three or four years ago.
Antonin Scalia: The whole... the whole world has a right protected by the United States Constitution to litigate in Virginia?
Isidoro Rodriguez: No. If... if... if I, as a tourist, am in France and I crash into someone's car, and I go back and... and the people in France come over to Virginia--
Antonin Scalia: Right. The Frenchman is protected by the United States Constitution?
Isidoro Rodriguez: --To ensure that he has due process within the judicial system to have his case litigated.
Antonin Scalia: That's new to me. Why... why on Earth does the due process clause extend to a citizen of France, who is injured in... who is injured in France?
Isidoro Rodriguez: We're not... we're not extending the due process clause to France. What we're saying is that once the person comes in and seeks access to the... the U.S. courts, he has the same rights as any U.S. citizen to those... to the--
William H. Rehnquist: What's... what's your authority from this Court for that proposition?
Isidoro Rodriguez: --I... I have none, Your Honor.
John Paul Stevens: Mr. Rodriguez, did you make this constitutional argument in your brief?
Isidoro Rodriguez: Not in my brief. But I--
John Paul Stevens: I'm surprised you spent all the time on a constitutional argument. I thought this was a statutory case.
Isidoro Rodriguez: --It is a statutory case, Your Honor. I backed into that somewhat unwanting here.
Antonin Scalia: It was suggested in your brief. I think the argument--
Isidoro Rodriguez: It was suggested--
Antonin Scalia: --It's the point in your brief that most troubles me, as a matter of fact.
Isidoro Rodriguez: --It was suggested in my brief in the sense that it follows the Petrousky argument in the... that... that the Westfall Act assured that there would be judicial review and that--
Antonin Scalia: Your point isn't that it's unconstitutional; your point is that it would be... since it would be unconstitutional if it were interpreted the... the way you don't want it interpreted, we shouldn't interpret it that way. We should avoid the constitutional difficulty. That's your argument; right?
Isidoro Rodriguez: --Correct, Your Honor. If there's no more questions, I'll reserve time. Thank you.
William H. Rehnquist: Very well, Mr. Rodriguez. Mr. Stewart.
Malcolm L. Stewart: Mr. Chief Justice, and may it please the Court: The position of the United States is that under the Westfall Act, the Attorney General's scope certification is subject to review by a court at the behest of a tort plaintiff. The large majority of courts of appeals to have addressed the question have also concluded that the scope certification is subject to judicial review. That view is consistent with the text of the Westfall Act and with the strong presumption that administrative action is judicially reviewable. Moreover, to permit judicial review of the Attorney General's scope certification does not render the Act susceptible to a challenge based on Article III. First, the text of the Act does not definitively resolve the interpretive question that this case presents. Respondent, in his amicus, placed principal reliance on the statute's use of the word "shall". And in Johnson v. Carter, the predecessor Fourth Circuit case to this one, the Fourth Circuit also concluded that the word "shall" reflected an unambiguous congressional intent to preclude review of the certification.
William H. Rehnquist: And where abouts in the statute does the word "shall" that you're referring to--
Malcolm L. Stewart: The word 2679 (d)(1) says, "Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment-- "
William H. Rehnquist: --Oh, you're going a little fast.
Malcolm L. Stewart: --Oh, I'm sorry.
William H. Rehnquist: Would you repeat?
Malcolm L. Stewart: "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 the 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. " And 2679 (d)(2) contains similar language with respect to actions that are commenced in State court.
Antonin Scalia: No, it contains more than similar language, it goes on to say, (2)... which relates to removal... it says, "This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal. "
Malcolm L. Stewart: Right.
Antonin Scalia: Now, what is the position of the United States when... when something is removed? You have to accept the... I mean it's clear from (2) that... that you must accept the... the scope of employment determination for purposes of removal, right?
Malcolm L. Stewart: That's correct, Your Honor. And our position is that if the Attorney General certifies in a case that arises in State court, and the case is removed to Federal District Court, and the district court reviews the certification and determines that the defendant employee was not acting within the scope of employment, the case, nevertheless, remains in Federal court because of the... the conclusive (d)(2).
Antonin Scalia: Well, that's very strange, isn't it?
Malcolm L. Stewart: Well, it's certainly the normal rule in--
Antonin Scalia: What is the basis for jurisdiction then?
Malcolm L. Stewart: --The... the normal rule of Federal jurisdiction, obviously, is that a Federal defense, by itself, won't confer jurisdiction. And that's the well-pleaded complaint rule. But as a constitutional matter, it's certainly clear that Congress may provide a Federal forum when the cause of action arises under State law, but if a viable or colorable Federal defense is asserted... as this Court said in Mesa v. California. And essentially, we read 2679 (d)(2) to reflect a congressional determination that where the Attorney General has certified, the Federal defense at least remains colorable.
Antonin Scalia: Yes, but even... even assuming that it's constitutional to do that... and I think there is some question about it... it is certainly weird to do that. To say it must remain in Federal court, but allow the Federal court to decide... and require the Federal court to decide that in fact this is not a scope of Federal employment case.
Malcolm L. Stewart: Well--
Antonin Scalia: And not allow the Federal court, once having decided that, to send it back to the State court. That's very, very strange.
Malcolm L. Stewart: --Well, I think, as Mr. Kellogg has pointed out in his brief, there is a divergence of opinion among the Circuits as to the factors to be taken into account in certifying and the factors to be taken into account in judicial review. And, in particular, the dispute pertains to the question of whether the plaintiffs' allegations should be taken as true in making the initial certification and in conducting judicial review thereof. And at least on some occasions, the Attorney General will base her... or her designee... will base the scope determination on the view that the acts, as alleged in the complaint, are within the scope. The district court may disagree with that determination... may determine that if the facts, as alleged, were proved to a tee, the defendant employee would be acting with the... outside of his scope of employment. But the possibility still remains that the facts, as proved at trial, would establish tortious conduct, but conduct within the scope of employment. And that--
Sandra Day O'Connor: But could... it could well be that the scheme makes a lot more sense if we just say that it's not reviewable at all, whether it's for removal or anything else... once that certification is filed?
Malcolm L. Stewart: --Well--
Sandra Day O'Connor: And of course I assume that the United States administratively could nevertheless allow the claim in this case even though the United States itself wouldn't be liable.
Malcolm L. Stewart: --It certainly--
Sandra Day O'Connor: Couldn't it?
Malcolm L. Stewart: --In this case there is, 21 U.S.C. 904, the administrative claim procedure to which Mr. Rodriguez referred... doesn't apply across the board. It says that, notwithstanding the foreign tort exception, the Department of Justice may settle administratively a claim based on the actions of one of its employees abroad.
Sandra Day O'Connor: Yes. And presumably the Government is still considering this claim? Is it?
Malcolm L. Stewart: That's correct.
Sandra Day O'Connor: Yes. Mr. Stewart, do you have... I'm sorry... before you get off this point... or the Government could review the Attorney General's determination. Set up some board to review it. I mean it's very strange the Government is coming in and asking us to protect defendants from you.
Malcolm L. Stewart: It's--
Antonin Scalia: Why don't you protect defendants from you?
Malcolm L. Stewart: --There is certainly something unusual about the Department of Justice affirmatively asserting the position that one of its acts is judicially reviewable. And I think there are two reasons that we are here today. The first is that the Court has often stressed that there is a strong presumption in favor of judicial review of executive action; that that presumption is overcome only in very unusual circumstances; and, consequently, we feel an obligation not to assert a non-reviewability argument unless there are compelling reasons for it. The second is that during congressional consideration of the bill that became the Westfall Act, we represented to Congress our view that under the Act, the scope certification would be judicially reviewable. That's not binding us on it, but I think the Department is--
John Paul Stevens: Well, it's also true, isn't it, that the statute does provide that the defendant can get protected from you by appealing an adverse... a refusal to certify?
Malcolm L. Stewart: --That's correct. The statute says specifically that if the Attorney General declines to certify scope, the defendant employee may seek a determination from the... the district court.
Antonin Scalia: I should have said it's the plaintiffs that... that have to be protected from you, right, not the defendants. I misspoke. The defendant can come to court, but the plaintiff can't?
Malcolm L. Stewart: That's correct. And to respond to your question, Justice O'Connor, I think to hold that the... the certification is not judicially reviewable obviously would take the courts out of resolving a lot of questions that the... the courts have found difficult and... and troubling. I don't--
Sandra Day O'Connor: Well, let... let me ask you this. Does the Attorney General sometimes come in and say yes this per... this employee was acting within the scope of his employment, but the accident didn't occur or the events didn't occur?
Malcolm L. Stewart: --That... that has sometimes been the base... basis of the scope certification; that a tort was alleged to have occurred. The Attorney General or her designee investigates the circumstances and concludes that, at the time the wrongful conduct was alleged to have happened, the defendant employee in fact engaged in no tort, but was simply going about his or her--
Sandra Day O'Connor: So, what kind of a certification is entered then? Do you say, I certify the employee was acting within the employment, but it didn't happen, or what do you do?
Malcolm L. Stewart: --Well, typically, the certification itself would be a fairly sparse document. A certification would simply say something to the effect of this on; that I've investigated the circumstances of... of the allegations and have concluded that the defendant employee was acting within the scope of employment at the time of... of the alleged incident. Typically, there would be supporting papers, either a memorandum in support of the notion of notice of substitution or an affidavit that would flesh out the basis for the conclusion. I think here we had something of a truncated proceeding because the scope certification was undertaken immediately after the Fourth Circuit's decision in Johnson v. Carter. And I think it's likely that because the Fourth Circuit had very squarely held there would be no judicial review, there was probably less of a... a sense of a need to make a record, and certain--
John Paul Stevens: But isn't it correct that in Justice O'Connor's hypothetical you would have the case removed, and then you would file an answer denying your liability? I mean you... you defend on the merits that... that the United States would then be the defendant... in her hypothetical she gave, where you said he was in the scope of his employment, but there was no accident. You'd get removal and substitution, and then you'd defend on the merits, wouldn't you?
Malcolm L. Stewart: --That's correct. Although if the plaintiff wanted to seek judicial... again, under the view of most Circuits, and under the view that we believe is the correct one, of the Westfall Act--
John Paul Stevens: Oh, I understand.
Malcolm L. Stewart: --The plaintiff could seek a judicial review of that... that process. I think the proper construction--
Ruth Bader Ginsburg: Why would the plaintiff seek judicial review? I mean ordinarily it's more desirable to have the United States than the employee as the defendant, so the... when... but when there's an exception, as there is here. Otherwise, the certification is more likely than not to please the plaintiff, is it not?
Malcolm L. Stewart: --That's correct. I think the class of cases in which the certification is challenged tends to be an unrepresentative sample of tort suits against Federal employees. Because the... the challenge is generally made when there appears likely to be an exception, barring suit against the Government under the FTCA.
David H. Souter: Well, I... I take-- --Do we know... I mean I suppose one of the considerations to bear in mind in... in trying to infer what Congress had in mind was the risk that it might have been guarding against... and do we know... do you know either in gross figures or in percentage terms how frequently the certification in fact results in a situation like this in which the United States ends up claiming an immunity so that there can be no recovery against anybody?
Malcolm L. Stewart: I... I don't know the answer to that either in gross terms or... or percentage terms. And to some degree it would depend on the perspicuity of plaintiff's lawyer. That is, if all plaintiff's lawyers were fully aware of the ram... of all the ramifications of what they did, presumably they would not name the individual defendant... a employee... as the defendant to begin with unless they suspected there was some bar to suit against the... the United States under the FTCA. So that might affect the calculus.
Antonin Scalia: Mr. Steward, I... I must... I'm really impressed with the generosity of the Government's position in this case. You have a statute that says "shall" categorically. And... and... and you argue to us that that does not mean "shall". I can think of a lot of other areas where there is much less clear language about judicial review... in immigration, in... in review of... of administrative determinations concerning Federal employment matters. Can we take it to be the consistent position of the United States that there should always be judicial review? Is... is that a new... a new approach that the Government is going to take?
Malcolm L. Stewart: I... I guess I'd have... I guess I'd have three responses to that. First, the... the kind of situations in which we would most want to assert a non-reviewability argument would be those in which the administrative decis... determination rested on the exercise of discretion or involved a substantive area that courts were ill-equipped to consider... such as the national security area. Here, as to the question of whether a particular individual was acting within the scope of employment at a particular time, this is the kind of thing that courts resolve all the time.
Antonin Scalia: I can see the Attorney General coming in and saying, DEA agents, you don't know, Your Honor, what the DEA agent is like. I mean the argument here is that he is always on duty. He is always on duty. Always dressed to look like a... like a drug dealer, and even when he walks down the street he's on duty. Your Honor, you can't possibly know what it's like. I, the Attorney General, know that. This is not an expertise area?
Malcolm L. Stewart: Well, clearly there are some... some cases at the margins in which normal scope of employment principles will be more difficult to apply to a particular Government employee. But I think the vast bulk of cases will involve Federal employees who were performing fairly traditional tasks. They will call... judicial review will call upon the courts to perform fairly traditional functions.
Sandra Day O'Connor: Well, you don't think the language is somehow inadequate, do you, when it says "shall be substituted"?
Malcolm L. Stewart: Well, the... I think the proper--
Sandra Day O'Connor: Do they have to say "and we really mean it" or what? [Laughter]
Malcolm L. Stewart: --Well, I... two questions. I think the proper understanding of the word v. Smith, which this Court decided about four terms ago. And in Smith, the... it involved a medical doctor accused of malpractice. The Attorney General certified that that doctor had been acting within the scope of employment. And the plaintiff said, we don't challenge the scope determination, but we nevertheless contend that substitution is improper because an FTCA exemption would bar a suit against the United States. And this Court held, no, when the defendant employee was acting within the scope, that employee is off the hook even if there is no recovery under the FTCA. And I think that's the gist of the word "shall". That if the certification is made and is determined to be valid, a court cannot say for some other reason, we will nevertheless resubstitute the individual defendant for the United States.
Antonin Scalia: Why require the determination to be made at all then? I mean why not just leave it to the... I thought the purpose of the determination was to get this thing done right away, so the employee doesn't have to litigate this matter in court. You know, a quick determination. But you're saying it's going to have to be litigated anyway, even if there is the determination.
Malcolm L. Stewart: Well, as Justice Ginsburg quest... Ginsburg's question points out, without knowing the... the percentages, there will certainly be a large number of cases in which the certification will not be challenged, because it's not in the plaintiff's interest to challenge it... in the plaintiff's interest to sue the United States. So, at least in a large class of cases, the certification will help everybody out... will be of service to the plaintiff--
Anthony M. Kennedy: Well, aren't there instances in which in State courts there is a pleading of malice or assault and battery, and there's an attempt to get a jury trial in the State court?
Malcolm L. Stewart: --That's correct. And courts... the Attorney General and reviewing courts have devised various means of dealing with these situations. And one of them is that traditionally the Attorney General's designee has investigated the circumstances of... of the alleged in... I'm sorry--
Anthony M. Kennedy: Do... do you, in any event, share the Petitioners' view that there are some constitutional concerns if, say, a State cause of action in... before a jury trial, was foreclosed by reason of the certification that's non-reviewable?
Malcolm L. Stewart: --No, we don't.
William H. Rehnquist: Thank you, Mr. Stewart. Mr. Maloney, we'll hear from you.
Andrew J. Maloney, III: Thank you, Mr. Chief Justice, and may it please the Court: With all respect to Petitioners' representation that the Federal... the old Federal Drivers Act did not contain language with respect to judicial review, I'd like to quote subsection (d) from the old Federal Drivers Act, which is 2679, codified in 1982.
William H. Rehnquist: And where are you reading from, so that we might follow you?
Andrew J. Maloney, III: Well, on page 9 of Respondent's brief.
William H. Rehnquist: Thank you.
Andrew J. Maloney, III: "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 within the meaning of subsection (b) of this section is not available against the United States, the case shall be remanded to State court. " That's pretty clear language, I believe, that empowers the courts, as that statute was written, to review scope of the employment issues, to review the Attorney General's certification. That empowered... that gave the courts that power. The new Westfall Act passed in 1980... 88... took that power away.
William H. Rehnquist: But now 2679 (d) just talks about on a motion to remand, doesn't it?
Andrew J. Maloney, III: That's correct, Your Honor. But it clearly articulates that the United States District Court is making a determination on a hearing.
William H. Rehnquist: Yes. But on a motion to remand. And at least the Westfall Act seems to set out several different sections. And it seems to treat a little bit differently a motion to remand and the simple determination of whether a suit shall proceed.
Andrew J. Maloney, III: That's correct, Mr. Chief Justice. But the stat... the subsection here goes on to say, when there's not an available remedy against the United States, which implies that what they're talking about is where the district court found that the certification for some reason was invalid, or that a district court found that the employee was not acting in the scope of his employment, and therefore had the ability to remand that case to the State court. The reading that the Government and the Third Circuit give on the (d)(2) clause in the current Westfall Act, with respect to the language of "conclusive for purposes of removal", is a strange reading.
John Paul Stevens: May I go back to the provision you quote earlier? I had thought that provision would cover case where it was even perfectly clear that the defendant was acting in the scope of his employment, but nevertheless, the United States would have a defense under the Federal Tort Claims Act that the individual would not have... such as willful, more compounded, and things like that. Because even... even if he's in the scope of his employment, there would be cases that would be subject to remand under this provision, I think.
Andrew J. Maloney, III: Well, that's... that's correct, Your Honor. But the design was if he was acting in the scope of his employment, the indi... individual employee would not be sued. It would be the United States that would be... would be held accountable for the employee.
John Paul Stevens: Yes, but when the United States cannot be held accountable, then the individual remains accountable, even though he was acting in the scope of his employment.
Andrew J. Maloney, III: Well, I don't believe that's correct, Justice Stevens. Under the Federal Tort Claims Act, they have a provision that says there's only one suit that can be brought. And that is against the United States Government if this employee was acting in the scope of his employment. So if he was acting in the scope of his employment, they can only bring one lawsuit, and that's against the Government. So if it's barred because of a Federal Tort Claims exception--
Anthony M. Kennedy: You... you mean you can't name the employee as a... as a second party?
Andrew J. Maloney, III: --Well, you can name him--
Anthony M. Kennedy: Suppose the allegation is the employee acted... it was an assault and battery or acted with malice, I assume that's beyond recovery under the Federal Tort Claims Act? You can only bring one suit against the Government? That's not right.
Andrew J. Maloney, III: --Justice Kennedy, if the employee is held to be with... within... acting within the scope of his employment... and albeit there are some intentional torts where the Government would say that employee was not acting in the scope of his employment... but let's assume for a second that he's found to be acting within the scope of his employment. He is then protected under the Act, and he can't be sued personally. It's the United States that has to be sued.
Ruth Bader Ginsburg: In other words, even if he assaulted... if the U.S. employee assaulted the plaintiff, if the United States certified that this was within the scope of employment, your argument is thus unreviewable, and that's an exception to the Tort Claims Act because it's intentional conduct... intentional tort... there is no remedy against anybody? I think that's... that's your--
Andrew J. Maloney, III: That... that's correct, Justice Ginsburg. That is--
Ruth Bader Ginsburg: --Yes. And it isn't either/or... either the United States is liable... if so, it's exclusively liable, and the exceptions apply; or if the United States... if it's outside the scope of the employment, then the employee may be liable, but it can't be both?
Andrew J. Maloney, III: --That's correct. They're mutually exclusive, Justice Ginsburg, in our opinion. The Government pointed out that under the current Westfall Act they give a interpretation for conclusive... for purposes of removal under the (d)(2) subsection that if a court reviewed the scope of employment issue, found the employee not to be acting in the scope of the employment, that they could somehow keep the case in Federal court. Well, the... there is nothing in the legislative history that suggests that Congress intended to create this additional jurisdiction. In fact, subsection (d)(3) under the Act specifically says... and... and I should draw... step back for a second... (d)(3) is the section that provides... the only section under the Westfall Act that provides for judicial review, and that is when an employee is denied certification. He's entitled to petition the court for review. If, upon review, the court finds that he was not acting in the scope of his employment, the statute mandates... it says that the... the court shall remand this case back to the State court. Which is a clear indication that Congress meant to have State cases tried in State court. The only reason they wanted it in Federal court is because they assume that the United States is a party after they have certified.
Sandra Day O'Connor: Well, let me ask you this. Suppose a case gets to the Federal court on the basis that the employee was a Federal employee. And under your theory, if the certification is filed by the Attorney General that the employee was acting within the scope of employment, that ends the matter. And the court then cannot ever inquire into the basis of its jurisdiction?
Andrew J. Maloney, III: That's correct. I believe that's what Congress intended in the legislation.
Sandra Day O'Connor: Which is kind of curious, isn't it?
Andrew J. Maloney, III: Well, it's... it's... it's not for me to speculate. I believe that's... that Congress was pretty clear on that, Justice O'Connor, in making a balancing test between the rights of plaintiffs and the rights of Federal employees. And as this Court noted in the Smith case that was cited by my adversary, Congress gave less solicitude for plaintiffs' rights in passing this Act.
Antonin Scalia: Well, there's no doubt that Congress did just that with respect to removal at least. Because with respect to removal, Congress did say, "and we really mean it", right, with... with that spec... separate provision that says... and the only question is whether they did a similar thing with respect to... to liability at all?
Andrew J. Maloney, III: Well, Justice Scalia, the... the language in (d)(2)... (d)(1), does not undermine the clear and plain language in the (d)(1) clause, which says that upon certification by the Attorney General, this shall be deemed an action against the United States, "and the United States shall be substituted. " That's pretty clear.
Ruth Bader Ginsburg: So once the United States is substituted, even if it's determined that it comes within an exception to the Tort Claims Act, why isn't it just like you have an ordinary diversity suit, and the defendant, two days after the complaint is filed, moves to the same State as plaintiff, so you have no more diversity? It doesn't... doesn't wreck Federal jurisdiction, does it?
Andrew J. Maloney, III: No. If the plaintiff moves after a complaint has been filed, it will not wreck--
Ruth Bader Ginsburg: So then you... then you have Federal courts trying a case between two people of the same citizenship. Why is that any different from the United States having been the real party, and then the United States dropping out because the... the exception applies, but the court finds in... was... was outside the scope of the employment, so the employee gets substituted? Why is... why should that be different?
Andrew J. Maloney, III: --Well, that wouldn't be different. If I understand your... your question, Justice Ginsburg, if the case is in Federal court by virtue of diversity, then it can stay in Federal court. There is a Federal question. There is a Federal subject matter jurisdiction over the diversity action.
Ruth Bader Ginsburg: But the diversity has in fact ended. Here there's a Federal... there's the suit against the United States... certainly a secure basis for Federal jurisdiction, a suit against the United States.
Andrew J. Maloney, III: That's correct. And that was the presumption that Congress was making... if the United States was a party, that they would have Federal jurisdiction... even if there wasn't diversity. And that's what they... that's what they meant by the language--
Ruth Bader Ginsburg: But that once existed, just as diversity once existed in my other case, so once Federal jurisdiction having latched on, the court can continue to hear the case, even if the basis for Federal jurisdiction terminates after the proceeding begins?
Andrew J. Maloney, III: --Well, that's correct, under appendant jurisdiction, a district judge--
Antonin Scalia: You wouldn't acknowledge that it once existed? I mean, surely a proper analog, as I understand your brief, would be a situation in which it was thought that one of the parties was from another State, and then it is discovered in the Federal court that he was never from another State. That's the proper analog. Here it was thought the person was... was within the scope of employment, and it turns out that he wasn't within the scope of employment. So that ex ante, when the suit was filed, the... the predicate of jurisdiction did not exist in this case; isn't... isn't that the proper analog?
Andrew J. Maloney, III: --That... that is absolutely correct, Justice Scalia. I see that my time is up. I thank the Court for its time.
William H. Rehnquist: Thank you, Mr. Maloney. Mr. Kellogg, we'll hear from you.
Michael K. Kellogg: Thank you, Mr. Chief Justice, and may it please the Court: The only part of the language or structure of the Westfall Act that the Government is able to rely on at all to try to undermine the mandatory language of the statute is subsection (d)(2), which says that certification shall be conclusive for purposes of removal. The United States tries to argue that the implication of that provision is that it's not conclusive for purposes of substitution. There are several reasons why that implication doesn't hold. First of all, as Mr. Maloney pointed out, it does not change the mandatory language used in the rest of the statute that says the United States shall be substituted, period. The only condition precedent for substitution listed in the statute is certification. It's the only event that the district court is charged with determining. The second reason the implication doesn't hold is that it's counterbalanced by subsection (d)(3), which says that if the Attorney General does not certify, then the plaintiff can seek a certification from the court that he was in fact acting within the scope of the employment.
John Paul Stevens: You mean the defendant?
Michael K. Kellogg: No, the plaintiff. I mean the defendant... you're right. I apologize. The defendant can seek a ruling from the court--
John Paul Stevens: Is it not correct that in that case he can get the... a State judge to review the United States Attorney General's refusal to certify?
Michael K. Kellogg: --No. Because the statute in, (d)(3), allows the United States to remove it to Federal court.
John Paul Stevens: No, I'm thinking in cases in which the United States refused to certify... the (d)(3) situation.
Michael K. Kellogg: That's correct. Then the defendant petitions for certification. The United States then removes the case to Federal court under (d)(3). And a Federal court judge will make that determination. And then, if he rules against the defendant... says he was acting outside the scope of employment... the case is remanded to State court. But by providing a specific provision that says certification is reviewable at the behest of the defendant, with no corresponding provision saying it's reviewable at the behest of the plaintiff, the implication there cancels out the implication that the Government tries to draw from (d)(3)... that it's only conclusive for purposes of removal. A third reason--
Antonin Scalia: Or you'd say you don't really get down to the... to the implications when you have a "shall"?
Michael K. Kellogg: --Exactly. That's our first argument. The statute repeats "shall" several times.
William H. Rehnquist: Or that each side has an expressio unius argument going for it, so it cancels out?
Michael K. Kellogg: They cancel out, and we're left with the plain language that says "shall", and mandates this result by the district court. If you want an explanation--
John Paul Stevens: But I don't quite understand why that plain language carries you that far. Because it does carry it... there shall be removal... but does that preclude necessarily the judicial review of the determination?
Michael K. Kellogg: --It says there shall be substitution, period.
John Paul Stevens: All right, that there's substitution.
Michael K. Kellogg: Now, I don't think you can go on and say, well, okay, but the district court could resubstitute.
John Paul Stevens: Why can't you? I mean it doesn't foreclose it. It just says there shall be substitution and removal. But having been removed, why does that foreclose treating the defendant just like you treat the plaintiff? Because on one hand it says it is subject to review.
Michael K. Kellogg: Well, if you look at an analogous statute... let's say 24(a) of the Federal--
John Paul Stevens: Yes, but if you have to get outside this statute, then it isn't quite as plain as you were representing it to--
Michael K. Kellogg: --No, I think... I think it is quite plain. But if... I think the analogy will help reveal just why it's so plain. Under 24(a), which is intervention as a right, it says if certain circumstances are met, certain criteria are met, the... the person shall be allowed to intervene. Now, the district court has no discretion there. If those criteria are met, he cannot say, okay, you can intervene, you've met the criteria.
John Paul Stevens: --Correct.
Michael K. Kellogg: Now get out.
John Paul Stevens: But that is always subject to review by the court of appeals and said, well, we took a second look at it and say they weren't... those criteria--
Michael K. Kellogg: But those criteria were not met.
John Paul Stevens: --Right.
Michael K. Kellogg: But the criteria in the statute are the only criteria that the court is charged with determining.
John Paul Stevens: Right.
Michael K. Kellogg: That's why they call it intervention as a right.
John Paul Stevens: The same thing here. The criteria are whether he's in the scope of employment.
Michael K. Kellogg: No, that is not what the statute says. The only criteria listed in the statute is certification.
John Paul Stevens: Well, certainly the Attorney General doesn't have the authority to certify if the man was not in the scope of his employment?
Michael K. Kellogg: The Attorney General is charged with determining whether he's within the scope of employment.
John Paul Stevens: Right.
Michael K. Kellogg: That is correct.
John Paul Stevens: And it's... and it is reviewable in some situations, you admit?
Michael K. Kellogg: At the behest of the defendant.
John Paul Stevens: Right.
Michael K. Kellogg: And the reason for that is that--
Antonin Scalia: By statute?
Michael K. Kellogg: --By statute.
John Paul Stevens: Right.
Michael K. Kellogg: In the ordinary course of events, of course, the admission of the Attorney General that the employee acted within the scope of the employment is going to be contrary to the interest of the United States.
Stephen G. Breyer: But--
Michael K. Kellogg: And there was needed to be some mechanism which the defendant employee could challenge that certification.
Stephen G. Breyer: --Yes, but can you go back for a minute, which I... I thank you very much for your brief, by the way, which was very helpful. And the one thing I found missing in this... because I do think it's ambiguous and I'd like you to address... is what I'd call a page of history. I mean if you go back to Gregoire and Biddle and Learned Hand, people... plaintiffs could sue Government employees, but they couldn't recover if it was within the scope of their employment; right? Then this Court, in Westfall, limited that; right?
Michael K. Kellogg: That's correct.
Stephen G. Breyer: And said, well, sometimes you can. But what they were limiting was a plaintiff's right to recover if it wasn't in the scope of employment, as decided by a judge and a jury. That was the original right. So why in heaven's name would we read this statute not simply to restore scope of employment, but also to say the plaintiff no longer has a right to that decision by a judge and a jury? So that if, to take a case out of the First Circuit, there is an allegation that an employee raped a woman on the job... that wasn't quite the case, but it was a sexual assault... whether or not that occurred will be decided not by a judge or a jury, but by the Attorney General. Why would one read an ambiguous statute to reach a result like that, that is so contrary to the history of this area of the law?
Michael K. Kellogg: There is two reasons. First of all, the statute is not ambiguous. It directs the district court to substitute the United States upon certification. The second reason you read that is because of the policy purposes of having immunity--
Stephen G. Breyer: The policy purposes of having the Attorney General decide whether an assault and battery took place, the policy and purposes for having the Attorney General decide the facts of the case, to decide... the Attorney General should decide if the action is taken away from the plaintiff rather than a judge and a jury... or at least a judge?
Michael K. Kellogg: --The policy purpose is to allow the Attorney General to articulate the circumstances under which the United States is prepared to take responsibility for the action of its employee as taken within the scope of employment. Immunity always erects a barrier which could lead to allegations of--
Stephen G. Breyer: Immunity always is decided after an initial determination, say, by an agency or someone, by the judge or the jury or both.
Michael K. Kellogg: --Immunity--
Stephen G. Breyer: Is there something in the legislative history that says that Congress wanted not only to restore scope of immunity... scope of employment immunity, but also to take the plaintiff's right to have review of that question by a judge and hand it to one of the parties in the case?
Michael K. Kellogg: --It's... it's not handing it to one of the parties. What it is is allowing the Attorney General to make a determination based upon Federal law as to--
Ruth Bader Ginsburg: But in this case, to be the judge of her own case. That's what it comes down to ultimately, does... doesn't it?
Michael K. Kellogg: --No, it's--
Ruth Bader Ginsburg: Here if there is a certification, everybody is off the hook. The employee is off the hook and the United States is off the hook. So you're letting an executive official make the determination that no one is liable to this private party who is allegedly injured as a result of the conduct of a Government agent.
Michael K. Kellogg: --That is correct.
Ruth Bader Ginsburg: It is the Attorney General being judge in her cause, in that sense, is it not?
Michael K. Kellogg: Not... not in her own cause of action, but in the cause of action of her employee. In the vast bulk of cases--
Ruth Bader Ginsburg: And... and of the Government?
Michael K. Kellogg: --In the vast bulk of cases, as you yourself pointed out, the admission of the Attorney General that the employee was acting within the scope of employment will be essentially against interest. It will be something that the plaintiff will want. It's only in the small number of cases where the United States has retained an immunity, so that it is itself not subject to suit, that the Attorney General's certification--
John Paul Stevens: I'm not sure that's correct to say that it's against the Government's interest. Because a government typically protect their employees, even when they're... when they're sued for things that might be outside the scope of the employment. Because there is an interest in the morale of the work force to give them protection of this kind. It's not necessarily entirely against the Government's interest.
Michael K. Kellogg: --No, that's the whole point of immunity, of course. Congress made a judgement that Federal employees were particularly vulnerable to suit, and that they needed this sort of protection. Now, if you breach that barrier--
John Paul Stevens: Or they're willing to have the Federal Government pick up the tab on the liability... is what they're--
Michael K. Kellogg: --That's correct, they... they are. If you breach that barrier--
John Paul Stevens: --If that's in the overall best interest of the work force and the United States.
Michael K. Kellogg: --That's correct.
Antonin Scalia: Mr. Kellogg, could you say something about the... the due process argument? I mean the arguments made that we should interpret "shall" to mean something other than "shall" because of the constitutional problems that arise otherwise. Is there a constitutional due process problem about taking away a cause of action?
Michael K. Kellogg: No, I don't think so. I think your answer, quite frankly, was... was perfectly correct on that point.
Antonin Scalia: Is there--
Michael K. Kellogg: The statute was passed before the acts in question occurred. Congress could have passed a broader statute, cutting off any suits whatsoever against Federal employees. Therefore, it can do the lesser of allowing the Attorney General to--
Antonin Scalia: --Well, the greater doesn't always include the lesser. Here... here they... they said we're going to leave it up to a single Federal official to decide whether you have a cause of action or not. Is it... is that in accord with due process of law? Can you give--
Michael K. Kellogg: --I... I see no problem with that.
Stephen G. Breyer: --What about a--
Michael K. Kellogg: And I certainly have not seen any cases cited by the Petitioner in this case that would indicate that that was a problem.
John Paul Stevens: --May I ask one question about the word "shall"... great emphasis on it? Is it not true that you can leave the statute with all the "shalls" that are in it as it is now and then add a sentence at the end providing, however, the determine shall be subject to judicial review? They don't need the "shalls"... just because you've got them... to get the case moving.
Michael K. Kellogg: No, I don't believe that's correct. I mean you could have added a sentence on there, and it would have negated the natural--
John Paul Stevens: So the point is that the "shalls" don't resolve the question of judicial review. They just resolve the question of initially move... movability and initial substitution. But it wouldn't be "however" to be provided, however, that if the court finds that... that the certification was incorrect, the United States shall not be substituted?
Michael K. Kellogg: --That's correct.
Stephen G. Breyer: I mean you-- --I wondered about a different constitutional problem. Now, I don't know if this really exists or not. And that's why I'd appreciate your view. But there's a line of cases in this Court that talk about a constitutional separation of powers problem that arises when you take a common variety... common, garden variety tort action and you say that common, garden variety tort action is no longer going to be decided by a court; it's going to be decided by an administrator. They go back to Crowell & Benson, Shore, Marathon. Now, here... here, in fact, even in Crowell & Benson, you could take a common variety tort action and give it to an administrator because there was judicial review of that administrator's decision. Now, here, I take it, you would be taking a common, garden variety tort action, handing it not to... really, over to the Attorney General to decide, and there would be no judicial review of that Attorney General's decision on that common, garden variety tort action. Now, what I wonder is, doesn't that raise some kind of constitutional problem under Shore, Crowell & Benson, Marathon, and all those cases that worry about taking tort actions away from judges and juries and giving them to Federal or State administrators?
Michael K. Kellogg: I don't believe so, Justice... Justice Breyer. I think the key point here is that the determination by the Attorney General as to scope of employment is itself under the common law generally regarded as an admission or a ratification of the acts of that employee. I know of no separation of powers or due process problem in allowing an employer to ratify or acknowledge scope of employment on behalf of its employee. Now, ordinarily, of course, under the common law, the plaintiff could then proceed against both the defendant employee and the employer who admits responsibility--
Anthony M. Kennedy: The reason being that the admission was adverse to the dec... declarant's interest.
Michael K. Kellogg: --That's correct.
Anthony M. Kennedy: But here... but here, the... the admission is taken as defeating a cause of action, say, in a State court with a jury trial for a malicious act.
Michael K. Kellogg: That is precisely what this Court, in United States v. Smith acknowledged was the result of the Westfall Act, and the intent of Congress. That even when it cuts off a ordinary, common law tort action against the employee and against the United States, it is still precluded by the Act.
Anthony M. Kennedy: Well, that's... but there was a judicial determination there of the fact of immunity. And that isn't so here.
Michael K. Kellogg: No, there was no judicial determination--
Anthony M. Kennedy: The judicial... the determination here is a unilateral determination by the... by the executive.
Michael K. Kellogg: --There was no determination in Smith. There was merely the certification of the Attorney General. And in Smith this Court indicated that that certification was sufficient to require substitution. The precise issue here--
Ruth Bader Ginsburg: But there was no... there was no issue about the certification. No question was raised about it?
Michael K. Kellogg: --That's correct. The precise issue here was not raised there. But the Court's discussion--
Ruth Bader Ginsburg: Nobody said that he acted outside the scope of his employment, as I understand it?
Michael K. Kellogg: --That's correct. But the Court's discussion certainly indicates an assumption as to how the statutory scheme worked. That upon certification, the United States was required to be substituted.
Antonin Scalia: Do you think a certification is reviewable somehow under the Administrative Procedure Act, the final Agency action?
Michael K. Kellogg: I... I don't think so, Justice Scalia, because this statute really sort of occupies the field, and sets up its own standards for how the determination is made. Besides which, I... I view this decision in the light of a discretionary determination by the Attorney General.
Ruth Bader Ginsburg: What are the standards... you said... you just used the words, set up standards for how the determination is made. As I understand it, the U.S. Attorneys all over make these certifications or not. Are there guidelines for them?
Michael K. Kellogg: I was unable to find any. I looked in the U.S. Attorneys manuals and could not find any.
Ruth Bader Ginsburg: So we don't even know if there's any uniformity in the way these certifications are being handed out, do we?
Michael K. Kellogg: That's correct. But we do know that under the United States' view, scope of employment in this case would be determined under the law of Colombia, which would lead to all sorts of problems as to whether a Federal agent is acting within the scope of his Federal employment. It would make considerably more sense to have that determination made by the Attorney General or delegated to a U.S. Attorney, to try to determine some sort of uniform Federal standards, rather than have the agent subject to the vagaries of whatever law of whatever country he happens to be in.
Antonin Scalia: Is it not conceivable that apart from this procedure, apart from challenging it when... when the... when the certification is made to... to the court that has the tort action, might there not be an action against the... let's suppose an Attorney General who is... or a U.S. Attorney who is making these certifications just randomly, just in order to help both the employee at no expense to the Government, without any investigation whatever... is there a possibility of a separate action under the Administrative Procedure Act to get that... to get that decision overturned?
Michael K. Kellogg: Well, I think--
Antonin Scalia: You'd have a different standard to review. The court wouldn't determine it de nova. It would simply determine whether... whether the... the U.S. Attorney's action was arbitrary or capricious.
Michael K. Kellogg: --I think--
Antonin Scalia: Which would be quite different from what... what... what is... what is asked for here.
Michael K. Kellogg: --True. I think as... as an initial matter, there would be potentially Rule 11 sanctions in the court, where the Attorney General or the U.S. Attorney makes this certification. I mean it is not something that the Attorney General or the U.S. Attorney is likely to take lightly. Because they do have to go into court. They do have to say, we've looked into these circumstances. We are certifying this. It's a representation to the court that puts the credibility of the United States on the line, and subjects them to potential Rule 11 sanctions. Now, whether there also be some potential--
William H. Rehnquist: If it's not... if it's not reviewable by the court, how does the court get into it at all for purposes of Rule 11 sanctions?
Michael K. Kellogg: --Well, in... in many instances, you'll find where a particular side wins the argument, but still could be subject to Rule 11 sanctions for misrepresenting some aspect. The court, for purposes of substitution, cannot look behind it. But if the court had reason to believe that in fact no investigation had been... had been conducted or that it was done randomly or arbitrarily, it is a representation to the court, subject to Rule 11. I'd like to raise a final point about the Article III problems in this case. Because I think they are quite substantial, if one takes the United States' view of the statute. I agree absolutely with Justice Scalia's point that when this case reaches Federal court, it is not necessarily a case against the United States. The question of the proper defendant is precisely the question that the United States says the district court is going to resolve. And until that question is resolved, the identity of the defendant is not determined.
Ruth Bader Ginsburg: I thought the United States "shall be substituted"... so why isn't it a case against the United States?
Michael K. Kellogg: It does say, "shall be substituted", but if it's subject to review by the district court, then--
Antonin Scalia: I didn't understand you either. You mean on the basis of the other side's case--
Michael K. Kellogg: --Right.
Antonin Scalia: --You don't know it's the United States when you get to court?
Michael K. Kellogg: Right.
Antonin Scalia: But on the basis of your case, you do know?
Michael K. Kellogg: You do know. It is a suit against the United States, and therefore there is no jurisdictional problem, because it's a suit against the United States that's clearly covered by Article III. But on the Solicitor General's view, if the defendant is properly identified as the employee because he was acting outside of the scope of employment, then there is no Federal question--
Stephen G. Breyer: Why is it any different from pendant jurisdiction?
Michael K. Kellogg: --Pendant jurisdiction involves two claims generally. One--
Stephen G. Breyer: Yes, but here they came into Federal court on a good basis. There's a suit. It's determined that, hey, this is a simple assault and battery. The attorney... it's not in the scope of employment at all. The Federal forum remains. It came in on a good basis. Why can't it remain pendant, just like a State pendant claim?
Michael K. Kellogg: --Because I don't think it makes sense to say it came in on a good basis if it's the district court that makes the determination, not the Attorney General.
William H. Rehnquist: Thank you, Mr. Kellogg. The case is submitted.