Cite as: 515 U. S. 417 (1995)
Opinion of the Court
pelled 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,10 Lamagno underscores, but the Act prominently provides for court review of
ing depends on context); B. Garner, Dictionary of Modern Legal Usage 939 (2d ed. 1995) ("[C]ourts in virtually every English-speaking jurisdiction have held—by necessity—that shall means may in some contexts, and vice versa."). For example, certain of the Federal Rules use the word "shall" to authorize, but not to require, judicial action. See, e. g., Fed. Rule Civ. Proc. 16(e) ("The order following a final pretrial conference shall be modified only to prevent manifest injustice.") (emphasis added); Fed. Rule Crim. Proc. 11(b) (A nolo contendere plea "shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice.") (emphasis added).
10 The dissent argues that Congress must have meant to foreclose judicial review of substitution when it omitted from the Westfall Act the Drivers Act language authorizing such review. See post, at 439-440, 443. But this language likely was omitted for another reason. It appeared in the Drivers Act provision authorizing the return of removed cases to state court: "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 . . . is not available against the United States, the case shall be remanded to the State court." 75 Stat. 539 (previously codified at 28 U. S. C. § 2679(d) (1982 ed.)). Congress likely omitted this provision, the thrust of which was to authorize remands, because it had decided to foreclose needless shuttling of a case from one court to another—a decision evident also in the Westfall Act language making certification "conclusiv[e] . . . for purposes of removal." See § 2679(d)(2). The omission thus tells us little about Congress' will concerning review of substitution.
The dissent, moreover, draws inconsistent inferences from congressional silence. Omission of language authorizing review of substitution, the dissent argues, forecloses review. See post, at 439-440, 443. But omission of language authorizing review of removal is not sufficient to foreclose review; rather, to achieve this purpose, the dissent says, Congress took the further step of adding language in § 2679(d)(2) making review "conclusiv[e] . . . for purposes of removal." See post, at 444-445.
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