Cite as: 515 U. S. 417 (1995)
Souter, J., dissenting
damages is disputed, or the United States's claim to immunity under 28 U. S. C. § 2680 turns on disputed facts. Only in those rare cases presenting a claim to federal immunity too airtight for the plaintiff to challenge will the circumstance identified by the Court even occur. It is hard to find any significance in the fact that now and then a certification will relieve a federal court of further work, given the straightforward and amply confirmed provision for conclusiveness.
The Court's final counterpoint to plain reading relies heavily on "the strong presumption that Congress intends judicial review of administrative action," citing a line of cases involving judicial challenges to regulations claimed to be outside the statutory authority of the administrative agencies that promulgated them. See ante, at 424-425, citing Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 670- 673 (1986); Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967). It is, however, a fair question whether this presumption, usually applied to permit review of agency regulations carrying the force and effect of law, should apply with equal force to a Westfall Act certification. The very narrow factual determination committed to the Attorney General's discretion is related only tangentially, if at all, to her primary executive duties; she determines only whether a federal employee, who will probably not even be affiliated with the Justice Department, acted within the scope of his employment on a particular occasion. This function is far removed from the agency action that gave rise to the presumption of reviewability in Bowen, supra, at 668-669, in which the Court considered whether Congress provided the Secretary of Health and Human Services with nonreviewable authority to promulgate certain Medicare distribution regulations, and in Abbott Laboratories, supra, at 138-139, in which the Court considered whether Congress provided the Secretary of Health, Education and Welfare with nonreviewable authority to promulgate certain prescription drug labeling regulations.
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