Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995)

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certiorari to the united states court of appeals for the fourth circuit

No. 94-167. Argued March 22, 1995—Decided June 14, 1995

Invoking the federal court's jurisdiction based on diversity of citizenship, petitioners alleged in their complaint that they had suffered physical injuries and property damage as a result of an accident in Colombia caused by the negligence of respondent Lamagno, a federal employee. The United States Attorney, acting pursuant to the statute commonly known as the Westfall Act, 28 U. S. C. 2679(d)(1), certified on behalf of the Attorney General that Lamagno was acting within the scope of his employment at the time of the episode. Ordinarily, upon such certification, the employee is dismissed from the action, the United States is substituted as defendant, and the case proceeds under the Federal Tort Claims Act (FTCA). But in this case, substitution would cause the action's demise: petitioners' claims arose abroad, and thus fell within an exception to the FTCA's waiver of the United States' sovereign immunity. And the United States' immunity would afford petitioners no legal ground to bring Lamagno back into the action. See United States v. Smith, 499 U. S. 160. Endeavoring to redeem their lawsuit, petitioners sought court review of the Attorney General's scope-of-employment certification, for if Lamagno was acting outside the scope of his employment, the action could proceed against him. However, the District Court held the certification unreviewable, substituted the United States for Lamagno, and dismissed the suit. The Fourth Circuit affirmed. Held: The judgment is reversed, and the case is remanded. 23 F. 3d 402, reversed and remanded. Justice Ginsburg delivered the opinion of the Court with respect to Parts I, II, and III, concluding that the Attorney General's scope-of-employment certification is reviewable in court. Pp. 423-434. (a) As shown by the division in the lower courts and in this case, the Westfall Act is open to divergent interpretation on the question at issue. Two considerations weigh heavily in the Court's analysis. First, the Attorney General herself urges review, mindful that in cases of the kind petitioners present, the incentive of her delegate to certify is marked. Second, when a Government official's determination of a fact or circumstance—for example, "scope of employment"—is dispositive of a court controversy, federal judges traditionally proceed from the strong pre-


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