Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 29 (1995)

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Cite as: 515 U. S. 417 (1995)

Souter, J., dissenting

be trusted. Cf. United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 459 (1993). That is the case with the provision that certification is conclusive on the issue of removal from state to federal court. The explanation takes us back to the Westfall Act's predecessor, the Federal Drivers Act, 75 Stat. 539, which was superseded upon passage of the current statute, Pub. L. 100-694, 102 Stat. 4563-4567. The Drivers Act made the FTCA the exclusive source of remedies for injuries resulting from the operation of any motor vehicle by a federal employee acting within the scope of his employment. 28 U. S. C. § 2679(b) (1982 ed.). Like the Westfall Act, the Drivers Act authorized the Attorney General to certify that a federal employee sued in state court was acting within the scope of employment during the incident allegedly giving rise to the claim, and it provided in that event for removal to the federal system, as well as for substitution of the United States as the defendant. § 2679(d). Unlike the Westfall Act, however, the Drivers Act explicitly directed district courts to review, "on a motion to remand held before a trial on the merits," whether any such case was "one in which a remedy by suit . . . is not available against the United States." Ibid. The district courts and the courts of appeals routinely read this language to permit district courts to hear motions to remand challenging the Attorney General's scope-of-employment determination. See McGowan v. Williams, 623 F. 2d 1239, 1242 (CA7 1980); Van Houten v. Ralls, 411 F. 2d 940, 942 (CA9), cert. denied, 396 U. S. 962 (1969); Daugherty v. United States, 427 F. Supp. 222, 223-224 (WD Pa. 1977); accord, Seiden v. United States, 537 F. 2d 867, 869 (CA6 1976); Levin v. Taylor, 464 F. 2d 770, 771 (CADC 1972). Given the express permissibility of a motion to remand in order to raise a postremoval challenge to certification under the Drivers Act, when the old Act was superseded, and challenges to certification were eliminated, Congress could sensibly have seen some practical value in the redundancy of making it clear beyond question that the

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