424
Opinion of the Court
States Attorney, unreviewably 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 divergent 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 Government official's determination of a fact or circumstance—for example, "scope of employment"—is dispositive 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
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