Cite as: 515 U. S. 417 (1995)
Souter, J., dissenting
the very notion of jurisdictional limitation. The Court's cure for the jurisdictional disease is thus to kill the concept of federal-question jurisdiction as a limit on what federal courts may entertain.
It would never be sound to attribute such an aberrant concept of federal-question jurisdiction to Congress; it is impossible to do so when we realize that Congress expressly provided that when a federal court considers a challenge to the Attorney General's refusal to certify (raised by an employee-defendant) and finds the act outside the scope of employment, a case that originated in a state court must be remanded back to the state court. See 28 U. S. C. § 2679(d) (3). In such a case, there will have been just as much overlap of jurisdictional evidence and liability evidence as there will be when the jurisdictional issue is litigated at the behest of a plaintiff (as here) who contests a scope-of-employment certification. If Congress thought the federal court should retain jurisdiction when it is revealed that none exists in this latter case, it should have thought so in the former. But it did not, and the reason it did not is obvious beyond any doubt. It assumed a federal court would never be in the position to retain jurisdiction over an action for which a tort plaintiff has shown there is no federal-question basis, and Congress was entitled to assume this, because it had provided that a certification was conclusive.
In sum, the congressional decision to make the Attorney General's certification conclusive was couched in plain terms, whose plain meaning is confirmed by contrasting the absence of any provision for review with just such a provision in the predecessor statute, and with an express provision for review of a refusal to certify, contained in the Westfall Act itself. The Court's contrary view implies a jurisdictional tenacity that Congress expressly declined to assert elsewhere in the Act, and invites a difficult and wholly unnecessary constitutional adjudication about the limits of Article
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