Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 22 (1995)

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438

GUTIERREZ de MARTINEZ v. LAMAGNO

Souter, J., dissenting

favor of judicial review of executive action, ante, at 424, the prohibition against allowing anyone " 'to be a judge in his own cause,' " ante, at 428 (quoting The Federalist No. 10, p. 79 (C. Rossiter ed. 1961) (J. Madison)), the peculiarity inherent in concluding that Congress has "assigned to the federal court only rubber-stamp work," ante, at 429, and the "sound general rule that Congress is deemed to avoid redundant drafting," post, at 444 (Souter, J., dissenting); ante, at 432, and n. 8, point in the other direction. The highly unusual confluence of those principles in this case persuades me that, despite the fact that the dissent's reading has the virtue of avoiding the possibility that a difficult constitutional question will arise in a future case, reversal is nonetheless the proper course.

Justice Souter, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.

One does not instinctively except to a statutory construction that opens the door of judicial review to an individual who complains of a decision of the Attorney General, when the Attorney General herself is ready to open the door. But however much the Court and the Attorney General may claim their reading of the Westfall Act to be within the bounds of reasonable policy, the great weight of interpretive evidence shows that they misread Congress's policy. And so I respectfully dissent.

The two principal textual statements under examination today are perfectly straightforward. "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." 28 U. S. C. § 2679(d)(1); see also § 2679(d)(4) ("Upon certification, any action or proceeding . . . shall proceed in the same manner as any action against the United States filed pursuant to [the FTCA] . . ."). Notwithstanding the Court's observation that some contexts can leave the

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