Osborn v. Haley

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

OSBORN v. HALEY ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 05–593. Argued October 30, 2006—Decided January 22, 2007

The federal statute commonly known as the Westfall Act accords fed

eral employees absolute immunity from tort claims arising out of acts

undertaken in the course of their official duties, 28 U. S. C.

§2679(b)(1), and empowers the Attorney General to certify that a fed

eral employee sued for wrongful or negligent conduct “was acting

within the scope of his office or employment at the time of the inci

dent out of which the claim arose,” §2679(d)(1), (2). Upon such certi

fication, the United States is substituted as defendant in place of the

employee, and the action is thereafter governed by the Federal Tort

Claims Act. If the action commenced in state court, the Westfall Act

calls for its removal to a federal district court, and renders the Attor

ney General’s certification “conclusiv[e] . . . for purposes of removal.”

§2679(d)(2).

Plaintiff-petitioner Pat Osborn sued federal employee Barry Haley

in state court. Osborn alleged that Haley tortiously interfered with

her employment with a private contractor, that he conspired to cause

her wrongful discharge, and that his efforts to bring about her dis

charge were outside the scope of his employment. The United States

Attorney, serving as the Attorney General’s delegate, certified that

Haley was acting within the scope of his employment at the time of

the conduct alleged in Osborn’s complaint. She thereupon removed

the case to a federal district court, where she asserted that the al

leged wrongdoing never occurred. The District Court, relying in

Osborn’s allegations, entered an order that rejected the Westfall Act

certification, denied the Government’s motion to substitute the

United States as defendant in Haley’s place, and remanded the case

to the state court. The Sixth Circuit vacated the District Court’s or

der, holding that a Westfall Act certification is not improper simply

2 OSBORN v. HALEY

Syllabus

because the United States denies the occurrence of the incident on

which the plaintiff centrally relies. Based on §2679(d)(2)’s direction

that certification is “conclusiv[e] . . . for purposes of removal,” the

Court of Appeals instructed the District Court to retain jurisdiction

over the case.

Held:

1. The Attorney General’s certification is conclusive for purposes of

removal, i.e., once certification and removal are effected, exclusive

competence to adjudicate the case resides in the federal court, and

that court may not remand the suit to the state court. Pp. 9–17.

(a) The Sixth Circuit had jurisdiction to review the order reject

ing the Attorney General’s certification and denying substitution of

the United States as defendant. Under the collateral order doctrine

of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, the Dis

trict Court’s ruling, which effectively denied Haley Westfall Act pro

tection, qualifies as a reviewable final decision under 28 U. S. C.

§1291. Meeting Cohen’s three criteria, the District Court’s denial of

certification and substitution conclusively decided a contested issue,

the issue decided is important and separate from the merits of the ac

tion, and the District Court’s disposition would be effectively unre

viewable later in the litigation. 337 U. S., at 546. Pp. 9–11.

(b) The Sixth Circuit also had jurisdiction to review the District

Court’s remand order. Pp. 11–17.

(1) The Sixth Circuit had jurisdiction to review the District

Court’s remand order, notwithstanding 28 U. S. C. §1447(d), which

states that “[a]n order remanding a case to the State court . . . is not

reviewable on appeal or otherwise . . . .” This Court held, in Therm

tron Products, Inc. v. Hermansdorfer, 423 U. S. 336, that §1447(c)

confines §1447(d)’s scope. Section §1447(c) provides that a case must

be remanded “if . . . it appears that the district court lacks subject

matter jurisdiction.” Under Thermtron, “only remand orders issued

under §1447(c) and invoking the [mandatory ground] specified

therein . . . are immune from review” under §1447(d). Id., at 346. To

determine whether Thermtron’s reasoning controls here, the Westfall

Act’s design, particularly its prescriptions regarding the removal and

remand of actions filed in state court, must be examined.

When the Attorney General certifies that a federal employee

named defendant in a state-court tort action was acting within the

scope of his or her employment at the time in question, the action

“shall be removed” to federal court and the United States must be

substituted as the defendant. §2679(d)(2). Of prime importance

here, §2679(d)(2) concludes with the command that the “certification

of the Attorney General shall conclusively establish scope of office or

employment for purposes of removal.” (Emphasis added.) This direc

Cite as: 549 U. S. ____ (2007) 3

Syllabus

tive markedly differs from Congress’ instruction for cases in which

the Attorney General “refuse[s] to certify scope of office or employ

ment.” §2679(d)(3). In that event, the defendant-employee may peti

tion the court in which the action is instituted to make the scope-of

employment certification. If the employee so petitions in an action

filed in state court, the Attorney General may, at his discretion, re

move the action to federal court. If removal has occurred, and there

after “the district court determines that the employee was not acting

within the scope of his office or employment, the action . . . shall be

remanded to the State court.” Ibid. (emphasis added).

The Act’s distinction between removed cases in which the Attorney

General issues a scope-of-employment certification and those in

which he does not leads to the conclusion that Congress gave district

courts no authority to return cases to state courts on the ground that

the Attorney General’s certification was unwarranted. Section

2679(d)(2) does not preclude a district court from resubstituting the

federal official as defendant for purposes of trial if the court deter

mines, postremoval, that the Attorney General’s scope-of-employment

certification was incorrect. For purposes of establishing a forum for

adjudication, however, §2679(d)(2) renders the Attorney General’s

certification dispositive. Were it open to a district court to remand a

removed action on the ground that the Attorney General’s certifica

tion was erroneous, §2679(d)(2)’s final instruction would be weight

less. Congress adopted the “conclusiv[e] . . . for the purposes of re

moval” language to “foreclose needless shuttling of a case from one

court to another,” Gutierrez de Martinez v. Lamagno, 515 U. S. 417,

433, n. 10. The provision assures that “once a state tort action has

been removed to a federal court after a certification by the Attorney

General, it may never be remanded to the state system.” Id., at 440

(SOUTER, J., dissenting).

Thermtron held that §1447(d) must be read together with §1447(c).

There is stronger cause to hold that §1447(c) and (d) must be read to

gether with the later enacted §2679(d)(2). Both §1447(d) and

§2679(d)(2) are antishuttling provisions that aim to prevent “pro

longed litigation of questions of jurisdiction of the district court to

which the cause is removed.” United States v. Rice, 327 U. S. 742,

751. Once the Attorney General certifies scope of employment, trig

gering removal of the case to a federal forum, §2679(d)(2) renders the

federal court exclusively competent and categorically precludes a re

mand to the state court. By declaring certification conclusive as to

the federal forum’s jurisdiction, Congress has barred a district court

from passing the case back to state court based on the court’s dis

agreement with the Attorney General’s scope-of-employment deter

mination. Of the two antishuttling commands, §1447(d) and

4 OSBORN v. HALEY

Syllabus

§2679(d)(2), only one can prevail and the Court holds that the latter

controls. Tailor-made for Westfall Act cases, §2679(d)(2) “conclu

sively” determines that the action shall be adjudicated in the federal

forum, and may not be returned to the state system. Pp. 11–16.

(2) The Westfall Act’s command that a district court retain ju

risdiction over a case removed pursuant to §2679(d)(2) does not run

afoul of Article III. An Article III question could arise in this case

only if, after full consideration, the District Court determined that

Haley engaged in tortious conduct outside the scope of his employ

ment. Because, at that point, little would be left to adjudicate as to

his liability, and because a significant federal question (whether he

has Westfall Act immunity) would have been raised at the outset, the

case would “aris[e] under” federal law as that term is used in Article

III. Even if only state-law claims remained after resolution of the

federal question, the District Court would have authority, consistent

with Article III, to retain jurisdiction. Pp. 16–17.

2. Westfall Act certification is proper when a federal officer charged

with misconduct asserts, and the Attorney General concludes, that

the incident or episode in suit never occurred. Pp. 17–24.

(a) Because the Westfall Act’s purpose is to shield covered em

ployees not only from liability but from suit, it is appropriate to af

ford protection to an employee on duty at the time and place of an

“incident” alleged in a complaint who denies that the incident oc

curred. Just as the Government’s certification that an employee “was

acting within the scope of his employment” is subject to threshold ju

dicial review, Lamagno, 515 U. S., at 434, so a complaint’s charge of

conduct outside the scope of employment, when contested, warrants

immediate judicial investigation. Otherwise, a federal employee

would be stripped of suit immunity not by what the court finds, but

by what the complaint alleges. This position is supported by Wil

lingham v. Morgan, 395 U. S. 402, which concerned 28 U. S. C.

§1442, the federal officer removal statute. Section 1442 allows a fed

eral officer to remove a civil action from state court if the officer is

“sued in an official or individual capacity for any act under color of

such office.” The Court held in Willingham that the language of

§1442 is “broad enough to cover all cases where federal officers can

raise a colorable defense arising out of the duty to enforce federal

law.” 395 U. S., at 406–407. There is no reason to conclude that the

Attorney General’s ability to remove a suit to federal court under

§2679(d)(2), unlike a federal officer’s ability to remove under §1442,

should be controlled by the plaintiff’s allegations. Pp. 19–21.

(b) Tugging against this reading is a “who decides” concern. If

the Westfall Act certification must be respected unless and until the

District Court determines that Haley, in fact, engaged in conduct be

Cite as: 549 U. S. ____ (2007) 5

Syllabus

yond the scope of his employment, then Osborn may be denied a jury

trial. Upon the Attorney General’s certification, however, the action

is “deemed to be . . . brought against the United States,” §2679(d)(2),

and the Seventh Amendment, which preserves the right to a jury

trial in common-law suits, does not apply to proceedings against the

sovereign. Thus, at the time the district court reviews the Attorney

General’s certification, the plaintiff has no right to a jury trial. The

Westfall Act’s core purpose—to relieve covered employees from the

cost and effort of defending the lawsuit and to place those burdens on

the Government—also bears on the appropriate trier of any facts es

sential to certification. Immunity-related issues should be decided at

the earliest opportunity. See, e.g., Hunter v. Bryant, 502 U. S. 224,

228 (per curiam). Pp. 22–24.

422 F. 3d 359, affirmed.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and STEVENS, KENNEDY, and ALITO, JJ., joined, in which SOUTER,

J., joined except for Parts II–B and II–C, and in which BREYER, J.,

joined as to Parts I and II. SOUTER, J., and BREYER, J., filed opinions

concurring in part and dissenting in part. SCALIA, J., filed a dissenting

opinion, in which THOMAS, J., joined.

Cite as: 549 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–593

_________________

PAT OSBORN, PETITIONER v. BARRY HALEY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[January 22, 2007]

JUSTICE GINSBURG delivered the opinion of the Court.

The Federal Employees Liability Reform and Tort Com

pensation Act of 1988, commonly known as the Westfall

Act, accords federal employees absolute immunity from

common-law tort claims arising out of acts they undertake

in the course of their official duties. See 28 U. S. C.

§2679(b)(1). When a federal employee is sued for wrongful

or negligent conduct, the Act empowers the Attorney

General to certify that the employee “was acting within

the scope of his office or employment at the time of the

incident out of which the claim arose.” §2679(d)(1), (2).

Upon the Attorney General’s certification, the employee is

dismissed from the action, and the United States is substi

tuted as defendant in place of the employee. The litigation

is thereafter governed by the Federal Tort Claims Act

(FTCA), 60 Stat. 842. If the action commenced in state

court, the case is to be removed to a federal district court,

and the certification remains “conclusiv[e] . . . for purposes

of removal.” §2679(d)(2).

In Gutierrez de Martinez v. Lamagno, 515 U. S. 417, 420

(1995), we held that the Attorney General’s Westfall Act

scope-of-employment certification is subject to judicial

2 OSBORN v. HALEY

Opinion of the Court

review. Today, we address three further questions regard

ing the Westfall Act’s operation: (1) Is Attorney General

certification proper when a federal officer denies the oc

currence of the tortious conduct alleged by the plaintiff; (2)

does §2679(d)(2), by rendering the Attorney General’s

certification “conclusiv[e] . . . for purposes of removal,” bar

remand even if the federal court determines that the

United States should not be substituted as defendant in

place of the federal employee; and (3) does 28 U. S. C.

§1447(d)’s bar on appellate review of remand orders over

ride §2679(d)(2)’s direction that, for purposes of removal,

the Attorney General’s certification is conclusive. The

first two questions were advanced in the petition for cer

tiorari; in our order granting review, we asked the parties

to address the impact of §1447(d) on this case.

Pat Osborn, plaintiff-petitioner in the civil action now

before the Court, sued federal employee Barry Haley in a

Kentucky state court. She alleged that Haley tortiously

interfered with her employment with a private contractor

and conspired to cause her wrongful discharge. Osborn

further alleged that Haley’s efforts to bring about her

discharge were outside the scope of his employment. The

United States Attorney, serving as the Attorney General’s

delegate, countered Osborn’s allegations by certifying that

Haley “was acting within the scope of his employment . . .

at the time of the conduct alleged in [Osborn’s] complaint.”

App. to Brief in Opposition 23 (hereinafter Luber App.).

Based on this certification, the case was removed to the

United States District Court for the Western District of

Kentucky, as §2679(d)(2) instructs.

In the federal forum, the United States Attorney denied

the tortious conduct Osborn attributed to Haley, asserting

that the wrongdoing she alleged never occurred. Accept

ing Osborn’s allegations as true, the District Court entered

an order that rejected the Attorney General’s Westfall Act

certification, denied the Government’s motion to substi

Cite as: 549 U. S. ____ (2007) 3

Opinion of the Court

tute the United States as defendant in place of Haley, and

remanded the case to the state court. On appeal, the

Sixth Circuit vacated the District Court’s order, and in

structed that court to retain jurisdiction over the case.

We affirm the Court of Appeals’ judgment. On the

merits, we agree with the Sixth Circuit that the District

Court, in denying substitution of the United States as

defendant in lieu of Haley, misconstrued the Westfall Act.

Substitution of the United States is not improper simply

because the Attorney General’s certification rests on an

understanding of the facts that differs from the plaintiff’s

allegations. The United States, we hold, must remain the

federal defendant in the action unless and until the Dis

trict Court determines that the employee, in fact, and not

simply as alleged by the plaintiff, engaged in conduct

beyond the scope of his employment. On the jurisdictional

issues, we hold that the Attorney General’s certification is

conclusive for purposes of removal, i.e., once certification

and removal are effected, exclusive competence to adjudi

cate the case resides in the federal court, and that court

may not remand the suit to the state court. We also hold

that §1447(d)’s bar on appellate review of remand orders

does not displace §2679(d)(2), which shields from remand

an action removed pursuant to the Attorney General’s

certification.

I

Petitioner Pat Osborn worked for Land Between the

Lakes Association (LBLA), a private company that con

tracted with the United States Forest Service to provide

staff for the Land Between the Lakes National Recreation

Area in Kentucky.1 While employed by LBLA, Osborn

applied for a trainee position with the Forest Service.

——————

1 We draw this account of the facts from the District Court’s opinion

and order denying reconsideration, supplemented by the allegations in

Osborn’s complaint.

4 OSBORN v. HALEY

Opinion of the Court

Respondent Barry Haley, a Forest Service officer, was

responsible for the Service’s hiring process. At a meeting

with LBLA employees, Haley announced that he had hired

someone else for the job Osborn sought. Osborn asked

why Haley did not inform her before the meeting, and she

made a joke at Haley’s expense. After the meeting,

Osborn’s supervisor told her to apologize to Haley; she

refused.

A few weeks later, Osborn filed a complaint with the

United States Department of Labor, asking the Depart

ment to investigate whether the Forest Service, in its

hiring decision, had given appropriate consideration to the

veterans’ preference points to which she was entitled. The

Department’s investigator, Robert Kuenzli, after inter

viewing Haley, concluded that the hiring procedure had

been handled correctly. Kuenzli so informed Osborn, who

then asked him to close her complaint. On the same day

LBLA’s executive director, respondent Gaye Luber, sum

moned Osborn and demanded that she apologize to Haley

for “not being a good Forest Service partner.” Complaint

¶18, Luber App. 4. Osborn again refused. Two days later,

she was fired.

Osborn filed suit against Haley, Luber, and LBLA in a

Kentucky state court. She alleged that Haley tortiously

interfered with her employment relationship with LBLA

and conspired to cause her wrongful discharge. Specifi

cally, she charged that Haley maliciously induced Luber to

fire her, and that Haley did so in retaliation for Osborn’s

Department of Labor complaint requesting a veterans’

preference inquiry. Complaint ¶29, Luber App. 7. In

response the local United States Attorney, invoking the

Westfall Act, certified on behalf of the Attorney General

that Haley “was acting within the scope of his employment

with the U. S. Forest Service at the time of the conduct

alleged in [Osborn’s] complaint.” Luber App. 23. As is

customary, the certification stated no reasons for the

Cite as: 549 U. S. ____ (2007) 5

Opinion of the Court

determination.2

In the Westfall Act, Congress instructed:

“Upon certification by the Attorney General that the

defendant employee was acting within the scope of his

office or employment at the time of the incident out of

which the claim arose, any civil action or proceeding

commenced upon such claim in a State court shall be

removed without bond at any time before trial by the

Attorney General to the district court of the United

States for the district and division embracing the

place in which the action or proceeding is pending.

Such action or proceeding shall be deemed to be an ac

tion or proceeding brought against the United States

under the provisions of this title and all references

thereto, and the United States shall be substituted as

the party defendant. This certification of the Attorney

General shall conclusively establish scope of office or

employment for purposes of removal.” 28 U. S. C.

§2679(d)(2) (emphasis added).

Citing this provision, as well as the federal officer removal

statute, §1442,3 the United States removed the case to the

——————

2 The certification read:

“I, Monica Wheatley, Acting United States Attorney, Western Dis

trict of Kentucky, acting pursuant to the provisions of 28 U. S. C.

§2679(d)(2), and by virtue of the authority vested in me by the Appen

dix to 28 C.F.R. §15.3 (1990), hereby certify that the Office of the

United States Attorney has reviewed the available facts in this matter.

On the basis of the information now available to me with respect to the

allegations in the complaint, I find that the named federal defendant,

Barry Haley, was acting within the scope of his employment with the

U. S. Forest Service, at the time of the conduct alleged in the com

plaint.” Luber App. 23.

3 The federal officer removal statute provides that “[a] civil action or

criminal prosecution commenced in a State court against” “any officer

. . . of the United States . . . sued in an official or individual capacity for

any act under color of such office” “may be removed . . . to the district

court of the United States for the district and division embracing the

6 OSBORN v. HALEY

Opinion of the Court

United States District Court for the Western District of

Kentucky. The United States Attorney notified the Dis

trict Court that the United States should be substituted

for Haley as defendant, and filed a motion to dismiss on

the ground that Osborn had not exhausted administrative

remedies, as required by the FTCA.

Osborn opposed the substitution and the motion to

dismiss. She argued that Haley’s conduct was outside the

scope of his employment, hence the Westfall Act afforded

him no immunity. As support for her opposition, Osborn

submitted a memorandum of understanding between the

LBLA and the Forest Service, which cautioned Forest

Service employees against involvement in LBLA employ

ment decisions.

Apparently under the impression that the United

States, at that preliminary stage, did not dispute Osborn’s

factual allegations, the District Court declined to conduct

an evidentiary hearing. Under Kentucky law, the court

observed, if Osborn’s allegations were true, Haley had

acted outside the scope of his employment. In the District

Court’s view the closeness in time of Osborn’s request for a

Department of Labor investigation, Kuenzli’s call to Ha

ley, and Luber’s demand for an apology justified an infer

ence that Haley interfered with Osborn’s employment in

violation of the LBLA-Forest Service memorandum of

understanding. So reasoning, the District Court overruled

the Westfall Act certification and denied substitution.

Under this ruling, the United States was no longer before

the court. Furthermore, the parties were not of diverse

citizenship and no federal law was at issue. The District

Court therefore held that it lacked subject-matter jurisdic

tion over the case.4 Invoking §1447(c),5 the court con

——————

place wherein it is pending.” §1442(a), (a)(1), (b).

4 The District Court did not address the propriety of removal under

§1442. See infra, at 20, n. 11.

Cite as: 549 U. S. ____ (2007) 7

Opinion of the Court

cluded that the case must be remanded to the state court.

The United States moved for reconsideration, urging

that, contrary to the District Court’s impression, the Gov

ernment did contest Osborn’s factual allegations. Recall

ing that it had denied Osborn’s allegations in its answer to

her complaint, the United States submitted sworn decla

rations from Haley and Luber. Haley’s stated that he was

not in communication with Luber between the time of

Kuenzli’s investigation and Osborn’s firing. Luber’s decla

ration stated that Osborn’s request for an investigation

regarding her veterans’ preference points could not have

had any bearing on Osborn’s termination, for Luber was

unaware of the request at the relevant time. Absent

contrary evidence, the Government maintained, these

declarations sufficed to support the certification and the

continuance of the United States as defendant in place

of Haley. In the alternative, the Government sought

discovery. 6

——————

5 Section 1447(c) provides:

“A motion to remand the case on the basis of any defect other than

lack of subject matter jurisdiction must be made within 30 days after

the filing of the notice of removal under section 1446(a). If at any time

before final judgment it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded. An order remanding

the case may require payment of just costs and any actual expenses,

including attorney fees, incurred as a result of the removal. A certified

copy of the order of remand shall be mailed by the clerk to the clerk of

the State court. The State court may thereupon proceed with such

case.”

6 The District Court refused to entertain the alternative argument

that, if a relevant Haley-Luber conversation did occur, Haley was

acting within the scope of his employment. Because Haley had de

clared, under oath, that he did not communicate with Luber, the court

was unwilling to allow discovery on the question whether, if Haley did

contact Luber, he was acting within the scope of his employment. But

cf. Fed. Rule Civ. Proc. 8(e)(2) (subject to Rule 11 obligations, parties

may plead claims or defense “alternately or hypothetically”). We

express no opinion on the propriety of the District Court’s refusal to

consider the Government’s alternative pleading.

8 OSBORN v. HALEY

Opinion of the Court

The District Court denied the Government’s reconsid

eration motion. The Haley and Luber declarations, the

court said, clarified that the controversy centered on

whether there had been any communication between

Haley and Luber influencing Luber’s decision to fire

Osborn. The Westfall Act would have shielded Haley, the

Court suggested, had the United States admitted a Haley-

Luber communication but defended its content as within

the scope of Haley’s employment. Westfall Act certifica

tion was improper, the court concluded, because the

United States did not admit, but instead denied, the oc

currence of the event central to proof of Osborn’s claim.

The District Court acknowledged disagreement among the

Circuits on the availability of a Westfall Act certification

when the United States “den[ies] the occurrence of the

basic incident charged.” Wood v. United States, 995 F. 2d

1122, 1124 (CA1 1993) (en banc). Compare ibid. and

McHugh v. University of Vermont, 966 F. 2d 67, 74–75

(CA2 1992) (prohibiting incident-denying certifications),

with Heuton v. Anderson, 75 F. 3d 357, 360 (CA8 1996);

Kimbro v. Velten, 30 F. 3d 1501, 1508 (CADC 1994); and

Melo v. Hafer, 13 F. 3d 736, 746–747 (CA3 1994) (allowing

incident-denying certifications). Choosing to follow the

First Circuit’s opinion in Wood, the District Court adhered

to its prior ruling that the Westfall Act certification in this

case was invalid.

On appeal, the Sixth Circuit vacated the District Court’s

order denying certification and substitution. 422 F. 3d

359, 365 (2005). The Court of Appeals, in accord with

Heuton, Kimbro, and Melo, held that a Westfall Act certifi

cation is not improper simply because the United States

denies the occurrence of the incident on which the plaintiff

centrally relies. 422 F. 3d, at 364. Rather, the court held,

where “the Attorney General’s certification is based on a

different understanding of the facts than is reflected in the

complaint, including a denial of the harm-causing inci

Cite as: 549 U. S. ____ (2007) 9

Opinion of the Court

dent, the district court must resolve the factual dispute.”

Ibid. (quoting Melo, 13 F. 3d, at 747).

The Sixth Circuit also vacated the District Court’s order

remanding the case to the state court. Section 2679(d)(2),

the Court of Appeals stressed, instructs that the “certifica

tion of the Attorney General shall conclusively establish

scope of office or employment for purposes of removal.”

The court read that instruction to proscribe shuttling

cases back to state courts and, instead, to require district

court adjudication of the controversy even when a Westfall

Act certification is rejected and, correspondingly, substitu

tion of the United States as defendant is denied. 422

F. 3d, at 365. On that issue too, the Court of Appeals

noted a division among the Circuits. Compare Borneman

v. United States, 213 F. 3d 819, 826 (CA4 2000); Garcia v.

United States, 88 F. 3d 318, 325–327 (CA5 1996); and

Aliota v. Graham, 984 F. 2d 1350, 1356 (CA3 1993) (hold

ing that a district court lacks authority to remand a case

removed under §2679(d)(2)), with Haddon v. United

States, 68 F. 3d 1420, 1427 (CADC 1995); and Nasuti v.

Scannell, 906 F. 2d 802, 814, n. 17 (CA1 1990) (holding

remand proper when district court rejects the Attorney

General’s certification). We granted certiorari. 547 U. S.

__ (2006).

II

We consider first the Court of Appeals’ jurisdiction to

review the District Court’s disposition of this case. We

address in turn the questions whether the appellate court

had jurisdiction to review (1) the order rejecting the At

torney General’s certification and denying substitution of

the United States as defendant, and (2) the order remand

ing the case to the state court.

A

The District Court’s rejection of certification and substi

tution effectively denied Haley the protection afforded by

10 OSBORN v. HALEY

Opinion of the Court

the Westfall Act, a measure designed to immunize covered

federal employees not simply from liability, but from suit.

See §2(a)(5), 102 Stat. 4563; Lamagno, 515 U. S., at 425–

426; H. R. Rep. No. 100–700, p. 4 (1988). Under the col

lateral order doctrine of Cohen v. Beneficial Industrial

Loan Corp., 337 U. S. 541 (1949), this ruling qualifies as a

reviewable final decision within the compass of 28 U. S. C.

§1291.7

Meeting the three criteria of Cohen, the District Court’s

denial of certification and substitution conclusively de

cided a contested issue, the issue decided is important and

separate from the merits of the action, and the District

Court’s disposition would be effectively unreviewable later

in the litigation. 337 U. S., at 546. See Mitchell v. For

syth, 472 U. S. 511, 525–527 (1985) (holding that district

court rejection of a defendant’s qualified immunity plea is

immediately appealable under the Cohen doctrine because

suit immunity “is effectively lost if a case is erroneously

permitted to go to trial” against the immune official). As

cogently explained by the Fifth Circuit in Mitchell v. Carl

son, 896 F. 2d 128, 133 (1990), retaining the federal em

ployee as a party defendant

“effectively denie[s] [him] immunity from suit if [he]

was entitled to such immunity under the Westfall Act.

Under the Act, once the United States Attorney certi

fies that the federal employee acted within the scope

of [his] employment, the plaintiff properly can proceed

only against the United States as defendant. The fed

eral employee remains immune from suit. By [reject

ing the Attorney Genera’s certification], the district

court subject[s] [the employee] to the burden of de

fending a suit . . ., a burden from which [the Westfall

Act spares him].”

——————

7 Section 1291 provides that “[t]he courts of appeals . . . shall have

jurisdiction of appeals from all final decisions of the district courts.”

Cite as: 549 U. S. ____ (2007) 11

Opinion of the Court

Tellingly, the Courts of Appeals are unanimous in hold

ing that orders denying Westfall Act certification and

substitution are amenable to immediate review under

Cohen. See Woodruff v. Covington, 389 F. 3d 1117, 1124

(CA10 2004); Mathis v. Henderson, 243 F. 3d 446, 448

(CA8 2001); Borneman, 213 F. 3d, at 826 (CA4); Lyons v.

Brown, 158 F. 3d 605, 607 (CA1 1998); Taboas v. Mlync

zak, 149 F. 3d 576, 579 (CA7 1998); Coleman v. United

States, 91 F. 3d 820, 823 (CA6 1996); Flohr v. Mackovjak,

84 F. 3d 386, 390 (CA11 1996); Kimbro, 30 F. 3d, at 1503

(CADC); Aliota, 984 F. 2d, at 1354 (CA3); Pelletier v. Fed

eral Home Loan Bank, 968 F. 2d 865, 873 (CA9 1992);

McHugh, 966 F. 2d, at 69 (CA2); Carlson, 896 F. 2d, at 133

(CA5). We confirm that the Courts of Appeals have ruled

correctly on this matter.

B

In our order granting certiorari we asked the parties to

address, in addition to the issues presented in the petition,

this further question: Did the Court of Appeals have juris

diction to review the District Court’s remand order, not

withstanding 28 U. S. C. §1447(d)’s declaration that “[a]n

order remanding a case to the State court from which it

was removed is not reviewable on appeal or otherwise”?

In answering this question, we also resolve the second

question presented in the petition for certiorari—whether

the Westfall Act’s rule against remanding actions removed

pursuant to §2679(d)(2) applies when the federal court

determines that the United States should not be substi

tuted as defendant in place of the federal employee. Our

disposition is informed by, and tracks, the Third Circuit’s

reasoning in Aliota, 984 F. 2d, at 1354–1357.

We begin with the provision we asked the parties to

address: §1447(d). That provision states in relevant part:

“An order remanding a case to the State court from which

it was removed is not reviewable on appeal or otherwise

12 OSBORN v. HALEY

Opinion of the Court

. . . .” In Thermtron Products, Inc. v. Hermansdorfer, 423

U. S. 336 (1976), we held that the preceding subsection,

§1447(c), confined §1447(d)’s scope. Under §1447(d), the

Court explained, “only remand orders issued under

§1447(c) and invoking the [mandatory] grounds specified

therein—that removal was improvident and without

jurisdiction—are immune from review.” Id., at 346.8

Thermtron had been properly removed to the federal court.

The sole reason the District Court gave for remanding it

was that court’s crowded docket. This Court held the

remand order reviewable, observing that §1447(c) could

not sensibly be read to confer on the district courts “carte

blanche authority . . . to revise the federal statutes govern

ing removal.” Id., at 351. See also Quackenbush v.

Allstate Ins. Co., 517 U. S. 706 (1996) (holding abstention-

based remand order immediately appealable). But see

Gravitt v. Southwestern Bell Telephone Co., 430 U. S. 723

(1977) (per curiam) (holding unreviewable a remand order

purporting to rest on a ground within the scope of

§1447(c)).

The United States urges us to apply Thermtron and hold

the remand order in this case reviewable because that

order was not based on a ground specified in §1447(c). To

determine whether Thermtron controls, we must start

with an examination of the Westfall Act’s design, particu

larly its prescriptions regarding the removal and remand

of actions filed in state court.

As earlier noted, see supra, at 1, the Act grants the

Attorney General authority to certify that a federal em

ployee named defendant in a tort action was acting within

the scope of his or her employment at the time in question.

——————

8 At the time Thermtron was decided, §1447(c) required a district

court to remand a case if it appeared that the case had been “removed

improvidently and without jurisdiction.” 28 U. S. C. §1447(c) (1970

ed.). Section 1447(c) now provides that a case must be remanded if “it

appears that the district court lacks subject matter jurisdiction.”

Cite as: 549 U. S. ____ (2007) 13

Opinion of the Court

§2679(d)(1), (2). If the action is commenced in a federal

court, and the Attorney General certifies that the em

ployee “was acting within the scope of his office or em

ployment at the [relevant] time,” the United States must

be substituted as the defendant. §2679(d)(1). If the action

is launched in a state court, and the Attorney General

makes the same certification, the action “shall be re

moved” to the appropriate federal district court, and again

the United States must be substituted as the defendant.

§2679(d)(2). Of prime importance to our decision,

§2679(d)(2) concludes with the command: “Th[e] certifica

tion of the Attorney General shall conclusively establish

scope of office or employment for purposes of removal.”

(Emphasis added.)

This directive markedly differs from Congress’ instruc

tion for cases in which the Attorney General “refuse[s] to

certify scope of office or employment.” §2679(d)(3). In that

event, the defendant employee may petition the court in

which the action was instituted to make the scope-of

employment certification. If the complaint was filed in a

state court, the Attorney General may remove the case to

the appropriate federal court, but he is not obliged to do

so. Ibid. If the court, state or federal, issues the certifica

tion, “the United States shall be substituted as the party

defendant.” Ibid. If removal has occurred, and thereafter

“the district court determines that the employee was not

acting within the scope of his office or employment, the

action . . . shall be remanded to the State court.” Ibid.

(emphasis added).

The Act’s distinction between removed cases in which

the Attorney General issues a scope-of-employment certifi

cation, and those in which he does not, leads us to con

clude that Congress gave district courts no authority to

return cases to state courts on the ground that the Attor

ney General’s certification was unwarranted. Absent

certification, §2679(d)(3) directs that the case must be

14 OSBORN v. HALEY

Opinion of the Court

remanded to the state court in which the action com

menced. In contrast, when the Attorney General certifies

scope of employment, his certificate “conclusively estab

lish[es] scope of office or employment for purposes of re

moval.” §2679(d)(2) (emphasis added). Section 2679(d)(2)

does not preclude a district court from resubstituting the

federal official as defendant for purposes of trial if the

court determines, postremoval, that the Attorney Gen

eral’s scope-of-employment certification was incorrect. For

purposes of establishing a forum to adjudicate the case,

however, §2679(d)(2) renders the Attorney General’s certi

fication dispositive.9

Were it open to a district court to remand a removed

action on the ground that the Attorney General’s certifica

tion was erroneous, the final instruction in §2679(d)(2)

would be weightless. The Attorney General’s certification

would not “conclusively establish scope of office or em

ployment” for either trial or removal. Instead, the Attor

ney General’s scope certification would supply only a

tentative basis for removal, rather than a conclusive one.

In Lamagno, the Court unanimously agreed that Congress

spoke unambiguously on this matter: Congress adopted

the “conclusiv[e] . . . for purposes of removal” language to

“foreclose needless shuttling of a case from one court to

another.” 515 U. S., at 433, n. 10; see id., at 440 (SOUTER,

J., dissenting) (“[T]here is nothing equivocal about

[§2679(d)(2)’s] provision that once a state tort action has

been removed to a federal court after a certification by the

——————

9 As explained by the Third Circuit in Melo v. Hafer, 912 F. 2d 628,

641 (1990), “[t]here are significant policy reasons why Congress would

choose to give the government an unchallengeable right to have a

federal forum for tort suits brought against its employees.” But Con

gress’ endeavor to secure that right does not mean that Congress also

intended to render unreviewable substitution of the United States as

defendant in place of the employee. See ibid.; cf. Gutierrez de Martinez

v. Lamagno, 515 U. S. 417, 430–434 (1995).

Cite as: 549 U. S. ____ (2007) 15

Opinion of the Court

Attorney General, it may never be remanded to the state

system.”).

With the Westfall Act’s provisions on removal of actions

filed in state court in clear view, we return to the question

whether an order remanding a case removed pursuant to

§2679(d)(2) is reviewable. Thermtron held that §1447(d)

must be read together with §1447(c). There is stronger

cause, we conclude, to hold that §1447(c) and (d) must be

read together with the later enacted §2679(d)(2). Both

§1447(d) and §2679(d)(2) are antishuttling provisions.

Each aims to prevent “prolonged litigation of questions of

jurisdiction of the district court to which the cause is

removed.” United States v. Rice, 327 U. S. 742, 751 (1946).

Section 2679(d)(2) is operative when the Attorney General

certifies scope of employment, triggering removal of the

case to a federal forum. At that point, §2679(d)(2) renders

the federal court exclusively competent and categorically

precludes a remand to the state court.

The command that the Attorney General’s certification

“shall conclusively establish scope of office or employment

for purposes of removal,” §2679(d)(2), differentiates certi

fied Westfall Act cases from the typical case remanded for

want of subject-matter jurisdiction. Ordinarily, when the

plaintiff moves to remand a removed case for lack of sub

ject-matter jurisdiction, the federal district court under

takes a threshold inquiry; typically the court determines

whether complete diversity exists or whether the com

plaint raises a federal question. In Attorney General

certified Westfall Act cases, however, no threshold deter

mination is called for; the Attorney General’s certificate

forecloses any jurisdictional inquiry. By declaring the

Attorney General’s certification “conclusive” as to the

federal forum’s jurisdiction, Congress has barred a district

court from passing the case back to the state court where

it originated based on the court’s disagreement with the

Attorney General’s scope-of-employment determination.

16 OSBORN v. HALEY

Opinion of the Court

Our decision that §2679(d)(2) leaves the district court

without authority to send a certified case back to the state

court scarcely means that whenever the district court

misconstrues a jurisdictional statute, appellate review of

the remand is in order. Such an exception would, of

course, collide head on with §1447(d), and with our prece

dent. See, e.g., Things Remembered, Inc. v. Petrarca, 516

U. S. 124, 127–128 (1995). Only in the extraordinary case

in which Congress has ordered the intercourt shuttle to

travel just one way—from state to federal court—does

today’s decision hold sway.

In short, of the two antishuttling commands, §1447(d)

and §2679(d)(2), only one can prevail. We hold that

§2679(d)(2) controls. Tailor-made for Westfall Act cases,

§2679(d)(2) is a forum-selecting rule Congress made “con

clusive,” beyond the ken of district courts to revise. See

Thermtron, 423 U. S., at 351.

C

In Lamagno, the Court considered, but did not defini

tively resolve, the question whether Article III permits

“[t]reating the Attorney General’s certification as conclu

sive for purposes of removal but not for purposes of substi

tution.” 515 U. S., at 434. It was argued in that case that

if certification is rejected and substitution denied “because

the federal court concludes that the employee acted out

side the scope of his employment, and if the tort plaintiff

and the [defendant-employee] are not of diverse citizen

ship, . . . then the federal court will be left with a case

without a federal question to support the court’s subject-

matter jurisdiction.” Id., at 434–435. Lamagno was an

action commenced in federal court on the basis of diversity

of citizenship, so there was in that case “not even the

specter of an Article III problem.” Id., at 435.

In the case before us, the question would arise only if,

after full consideration, the District Court determines that

Cite as: 549 U. S. ____ (2007) 17

Opinion of the Court

Haley in fact engaged in the tortious conduct outside the

scope of his employment charged in Osborn’s complaint.

At that point, however, little would be left to adjudicate, at

least as to Haley’s liability. Because a significant federal

question (whether Haley has Westfall Act immunity)

would have been raised at the outset, the case would

“aris[e] under” federal law, as that term is used in Article

III. See Verlinden B. V. v. Central Bank of Nigeria, 461

U. S. 480, 493 (1983). Even if only state-law claims re

mained after resolution of the federal question, the Dis

trict Court would have discretion, consistent with Article

III, to retain jurisdiction. See Carnegie-Mellon Univ. v.

Cohill, 484 U. S. 343, 350–351 (1988) (when federal char

acter of removed case is eliminated while the case is sub

judice, court has discretion to retain jurisdiction, to re

mand, or to dismiss); cf. Mine Workers v. Gibbs, 383 U. S.

715, 725 (1966) (pendent jurisdiction may be exercised

when federal and state claims have a “common nucleus of

operative fact” and would “ordinarily be expected to [be

tried] all in one judicial proceeding”). See also 28 U. S. C.

§1367 (“Supplemental jurisdiction”). “[C]onsiderations of

judicial economy, convenience and fairness to litigants,”

Gibbs, 383 U. S., at 726, make it reasonable and proper for

a federal court to proceed to final judgment, once it has

invested time and resources to resolve the pivotal scope-of

employment contest. Thus, under the precedent that

guides us, the Westfall Act’s command that a district court

retain jurisdiction over a case removed pursuant to

§2679(d)(2) does not run afoul of Article III.

III

With the jurisdictional issues resolved, we reach the

principal question raised by petitioner Osborn: whether

the United States Attorney validly certified that Haley

“was acting within the scope of his employment . . . at the

18 OSBORN v. HALEY

Opinion of the Court

time of the conduct alleged in the complaint.” Luber App.

23. We note first that the certificate is formally in order;

it closely tracks the language of the Westfall Act. See

§2679(d)(2) (authorizing certification “that the defendant

employee was acting within the scope of his office or em

ployment at the time of the incident out of which the claim

arose”). In Lamagno, we held that the Attorney General’s

certification is “the first, but not the final word” on

whether the federal officer is immune from suit and, cor

relatively, whether the United States is properly substi

tuted as defendant. 515 U. S., at 432. A plaintiff may

request judicial review of the Attorney General’s scope-of

employment determination, as Osborn did here.

As earlier recounted, see supra, at 6, the District Court

initially accepted Osborn’s allegations as true because it

believed that the United States did not dispute them.

Applying Kentucky law, that court determined that “Ha

ley’s alleged actions occurred outside the scope of his

employment.” App. to Pet. for Cert. 24a. In a motion for

reconsideration, the Government clarified that, far from

admitting Osborn’s allegations, it disputed the very occur

rence of the harm-causing conduct Osborn alleged. In

support of the motion, the Government submitted affida

vits from Haley and Luber denying that they engaged in

the conduct ascribed to them in Osborn’s complaint. The

Government contended that Haley remained within the

proper bounds of his employment at the relevant time

and place because the wrongdoing Osborn alleged never

happened.

The Government’s reconsideration motion asked the

District Court to resolve the factual dispute, i.e., to deter

mine whether, as the complaint alleged, Haley prevailed

upon Luber to discharge Osborn, or whether, as Haley

asserted, he never communicated with Luber about

Osborn’s LBLA employment. The court did not grant the

Government’s request for resolution of the factual dispute.

Cite as: 549 U. S. ____ (2007) 19

Opinion of the Court

Instead, it held the Westfall Act certification invalid pre

cisely because the Government denied that Haley engaged

in harm-causing conduct.

Two Courts of Appeals have held that Westfall Act

certification is improper when the Government denies the

occurrence of the alleged injury-causing action or episode.

See Wood, 995 F. 2d, at 1123 (CA1); McHugh, 966 F. 2d, at

74–75 (CA2). The Sixth Circuit, in this case, and several

other Courts of Appeals have held that a plaintiff’s allega

tion of conduct beyond the scope of a federal official’s

employment does not block certification where the Gov

ernment contends that the alleged tortious conduct did not

occur. See Heuton, 75 F. 3d, at 360 (CA8); Kimbro, 30

F. 3d, at 1508 (CADC); Melo, 13 F. 3d, at 746–747 (CA3).

We agree that Westfall Act certification is proper when a

federal officer charged with misconduct asserts, and the

Government determines, that the incident or episode in

suit never occurred.

A

The Westfall Act grants a federal employee suit immu

nity, we reiterate, when “acting within the scope of his

office or employment at the time of the incident out of

which the claim arose.” §2679(d)(1), (2). That formula

tion, we are persuaded, encompasses an employee on duty

at the time and place of an “incident” alleged in a com

plaint who denies that the incident occurred. See Wood,

995 F. 2d, at 1134 (joint opinion of Coffin, Selya, and

Boudin, JJ., dissenting) (“[S]urely the statute applies with

the same force whether a postal service driver says that he

did not hit the plaintiff's car or that he did so but was not

at fault.”); Melo, 13 F. 3d, at 747. And just as the Gov

ernment’s certification that an employee “was acting

within the scope of his employment” is subject to threshold

judicial review, Lamagno, 515 U. S., at 434, so a com

plaint’s charge of conduct outside the scope of employ

20 OSBORN v. HALEY

Opinion of the Court

ment, when contested, warrants immediate judicial inves

tigation. Were it otherwise, a federal employee would be

stripped of suit immunity not by what the court finds, but

by what the complaint alleges.10

In sum, given the purpose of the Westfall Act to shield

covered employees not only from liability but from suit, it

is altogether appropriate to afford protection to a “negli

gent . . . employee . . . as a matter of course.” Wood, 995

F. 2d, at 1135 (joint opinion of Coffin, Selya, and Boudin,

JJ., dissenting). But it would make scant sense to read

the Act as leaving an employee charged with an inten

tional tort11 to fend for himself when he denies wrongdoing

and asserts he “engaged only in proper behavior occurring

wholly within the scope of his office or employment.” Ibid.

See also Hueton, 75 F. 3d, at 360 (“[I]t is illogical to as

sume that Congress intended to protect guilty employees

but desert innocent ones.”).12

——————

10 In an opinion resembling his majority opinion in Wood v. United

States, 995 F. 2d 1122 (CA1 1993) (en banc), JUSTICE BREYER takes the

view that the Attorney General may issue a Westfall Act certification if

he contests the plaintiff’s account of the episode-in-suit, but he must

“assume some kind of incident” in order to certify. Post, at 2. Thus he

would not permit “purely incident-denying certifications,” and he places

the certification here in that category. Ibid. We agree with the Wood

dissenters’ appraisal of JUSTICE BREYER’s distinction between incident-

denying and incident-recharacterizing certifications: That approach

would require district courts “to engage in difficult, time-wasting

controversies . . . about precisely which facts pertaining to the scope of

employment issue are for the district judge and which are for the jury.”

995 F. 2d, at 1136, and n. 7 (joint opinion of Coffin, Selya, and Boudin,

JJ., dissenting). Accord Kimbro v. Velten, 30 F. 3d 1501, 1507 (CADC

1994) (“[I]t would be impossible . . . to draw a distinction between a

characterization of an incident and whether or not it actually

occurred.”).

11 See id., at 1505 (observing that the question here presented

“tend[s] to arise in cases of alleged intentional torts”).

12 Under JUSTICE BREYER’s view, when, in fact, “nothing involving the

employee happened at all . . . no Westfall Act immunity would be

available.” Post, at 6–7. He thinks this “is just as it should be. ” Post,

Cite as: 549 U. S. ____ (2007) 21

Opinion of the Court

Willingham v. Morgan, 395 U. S. 402 (1969), in which

the Court construed the federal officer removal statute, 28

U. S. C. §1442, supports our reading of the Westfall Act.13

Section 1442(a)(1) allows an officer of the United States to

remove a civil action commenced in state court if the

officer is “sued in an official or individual capacity for any

act under color of such office.” In Willingham, a federal

inmate sued two federal prison officials in state court,

alleging that they had assaulted, beaten, and tortured

him. 395 U. S., at 403. The defendants removed pursuant

to §1442(a)(1), and the District Court upheld their defense

of official immunity. The Tenth Circuit reversed, reading

§1442(a)(1) to permit removal only when a defendant

“exclude[s] the possibility that the suit is based on acts or

conduct not justified by his federal duty.” Morgan v.

Willingham, 383 F. 2d 139, 141 (1967). We rejected that

narrow construction of the statute and held §1442 “broad

enough to cover all cases where federal officers can raise a

colorable defense arising out of the duty to enforce federal

law.” 395 U. S., at 406–407.

The plaintiff in Willingham disputed that the defendant

federal officials had acted under color of office. He alleged

that they “had been acting on a frolic of their own which

had no relevancy to their official duties as employees or

officers of the United States.” Id., at 407 (internal quota

tion marks omitted). The Court held that the officers

“should have the opportunity to present their version of the

facts to a federal, not a state, court.” Id., at 409 (emphasis

——————

at 7. We disagree. Congress did not, and sensibly should not, com

mand that innocent employees be left outside the Westfall Act’s grant

of suit immunity. “Congress’ statute and its policy,” we agree, “both

look in the opposite direction.” Wood, 995 F. 2d, at 1136 (joint opinion

of Coffin, Selya, and Boudin, JJ., dissenting).

13 The notice of removal in this case invoked §1442 as well as §2679.

In the Sixth Circuit, however, the Government did not urge §1442 as a

separate ground for reversing the District Court.

22 OSBORN v. HALEY

Opinion of the Court

added).

We see no reason to conclude that the Attorney Gen

eral’s ability to remove a suit to federal court under

§2679(d)(2), unlike a federal officer’s ability to remove

under §1442, should be controlled by the plaintiff’s allega

tions. In Willingham, the federal officer’s “relationship to

[the plaintiff] derived solely from their official duties.”

Ibid. Similarly here, Haley interacted with Osborn and

Luber only through his employment as a Forest Service

officer.14 For purposes of removal under §1442(a), the

defendants in Willingham were not required to accept the

——————

14 In the context of §1442, we have held that, to qualify for removal, a

federal official must show “a nexus . . . between the charged conduct

and asserted official authority.” Jefferson County v. Acker, 527 U. S.

423, 431 (1999) (citations and internal quotation marks omitted). We

need not today decide whether qualification for Westfall Act immunity

is similarly limited, for in this case, a nexus plainly exists connecting

the incident Osborn alleged and Haley’s federal employment. We note,

however, that nothing in our opinion commits the Court to the view

that Westfall Act immunity is available in fanciful situations like the

one JUSTICE BREYER hypothesizes, post, at 1–2, in which the plaintiff’s

allegations are wholly unrelated to the defendant’s federal employment.

JUSTICE BREYER posits the case of a Yellowstone Park forest ranger

accused of misdeeds at Coney Island. He says we would find Westfall

Act immunity—more accurately, we would uphold Westfall Act certifi

cation—even if the ranger’s “presen[ce] on Coney Island must have

been . . . on a frolic of his own.” Post, at 1. If JUSTICE BREYER is imagin

ing a case in which the ranger was in fact on a frolic at Coney Island,

but the Attorney General nevertheless issued a Westfall Act certificate,

we would not approve the certification. In that imaginary case, there

would be no sense in which the ranger was acting within the scope of

his employment at the time of the incident charged in the plaintiff’s

complaint. If, instead, JUSTICE BREYER has in mind a ranger accused of

frolicking at Coney Island, when all the while he stayed close to his

desk at Yellowstone Park, then JUSTICE BREYER is correct: Westfall Act

immunity might be available under our approach. If such a case ever

shows up in a federal court, however, the district judge might be called

upon to determine whether removal and substitution under §2679(d)(2)

are limited by a nexus requirement similar to the one that limits

removal under §1442.

Cite as: 549 U. S. ____ (2007) 23

Opinion of the Court

truth of the plaintiff’s allegations that they were “on a

frolic of their own,” id., at 407 (internal quotation marks

omitted), and had tortured plaintiff “out of malice,” 383

F. 2d, at 140 (internal quotation marks omitted). So here,

for purposes of removal under §2679(d)(2), Haley and the

Government were not required to accept as true Osborn’s

allegations that Haley “maliciously induced” her dismissal

from LBLA “in retaliation for plaintiff filing a veterans’

preference inquiry.” Complaint ¶29, Luber App. 7. Haley,

like the defendant in Willingham, may have been on frolic

of his own as Osborn alleged, and therefore may not be

entitled to immunity. But like the officers in Willingham,

he should have the opportunity to “present [his] version of

the facts to a federal . . . court.” 395 U. S., at 409.

B

Tugging against our reading of the Westfall Act, we

recognize, is a “who decides” concern. If the Westfall Act

certification must be respected unless and until the Dis

trict Court determines that Haley, in fact, engaged in

conduct beyond the scope of his employment, then Osborn

may be denied a jury trial. Compare Wood, 995 F. 2d, at

1126, 1130, with id., at 1134–1138 (joint opinion of Coffin,

Selya, and Boudin, JJ., dissenting). Should the District

Court find that Haley did not maliciously induce Luber to

discharge Osborn, but instead interacted with Luber and

Osborn only within the proper bounds of his employment,

Osborn will lose on the merits with no access to a jury of

her peers.15 “This is not a small objection,” for the issue

——————

15 The overlap of certification validity and the merits of the plaintiff’s

claim, evident here, is uncommon. It is unlikely to occur when the

plaintiff alleges negligent conduct. The question whether a federal

driver was acting within the scope of his employment at the time of an

accident, for example, can generally be answered without simultane

ously determining whether the federal employee drove negligently or

carefully. And even when the plaintiff alleges an intentional tort, it

may be possible to resolve the scope-of-employment question without

24 OSBORN v. HALEY

Opinion of the Court

“that goes to the heart of the merits, as well as to the

validity of the certificate,” will likely turn on the credibil

ity of Osborn, Haley, and Luber, and credibility “may be

well suited for jury resolution.” See id., at 1136–1137.16

Under the Westfall Act, however, Congress supplanted

the jury in covered cases. See §2679(d)(1)–(3). Upon

certification, the action is “deemed to be . . . brought

against the United States,” ibid., unless and until the

district court determines that the federal officer originally

named as defendant was acting outside the scope of his

employment. The Seventh Amendment, which preserves

the right to a jury trial in suits at common law, we have

held, does not apply to proceedings against the sovereign.

Lehman v. Nakshian, 453 U. S. 156 (1981). See also §2402

(actions against the United States ordinarily “shall be

tried by the court without a jury”). Thus, at the time the

district court reviews the Attorney General’s certification,

the plaintiff has no right to a jury trial. See Kimbro, 30

F. 3d, at 1509, n. 4.17

——————

deciding the merits of the claim. If a plaintiff charges a federal em

ployee with sexual assault, for example, upon determining that there

was sexual contact, a district court could find that the employee acted

outside the scope of his duties, leaving the question whether the contact

was consensual for jury resolution.

16 But cf. 995 F. 2d, at 1137 (observing that “[i]n the ordinary tort

claim arising when a government driver negligently runs into another

car, jury trial is precisely what is lost to a plaintiff when the govern

ment is substituted for the employee”).

17 We do not address the case in which the Attorney General refuses

certification. In that event, §2679(d)(3) allows the named defendant to

“petition the court to find and certify that [he] was acting within the

scope of his . . . employment.” However, the Westfall Act gives the

named defendant no right to remove an uncertified case. But see 28

U. S. C. §1442(a)(1). That right is accorded to the Attorney General

only. Because the scope determination would be made in such a case

before any substitution of the United States as defendant takes place, it

is arguable that a jury trial of that issue would be required if the case is

before a federal court. If the case was brought in a state court and the

Cite as: 549 U. S. ____ (2007) 25

Opinion of the Court

The Westfall Act’s core purpose also bears on the appro

priate trier of any facts essential to certification. That

purpose is to relieve covered employees from the cost and

effort of defending the lawsuit, and to place those burdens

on the Government’s shoulders. See supra, at 9–10.

Immunity-related issues, the Court has several times

instructed, should be decided at the earliest opportunity.

See, e.g., Hunter v. Bryant, 502 U. S. 224, 228 (1991) (per

curiam) (“Immunity ordinarily should be decided by the

court long before trial.”); Anderson v. Creighton, 483 U. S.

635, 646, n. 6 (1987) (“[I]mmunity questions should be

resolved at the earliest possible stage of litigation.”).18

* * *

For the reasons stated, the judgment of the United

States Court of Appeals for the Sixth Circuit is

Affirmed.

——————

Attorney General declines to remove, the Seventh Amendment would

not figure in the case, for it is inapplicable to proceedings in state court.

Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211, 217 (1916).

18 JUSTICE BREYER suggests that, with respect to immunity defenses,

our “reading of the Westfall Act works a major change in th[e] [ordi

nary] fact/law relationship.” Post, at 5. Nothing in our opinion touches

on that relationship in the typical case in which a defendant official

raises a defense of absolute or qualified immunity. We simply observe

that the Westfall Act grants federal employees a species of immunity,

and that, under our jurisprudence, immunity-related questions should

be resolved at the earliest opportunity. JUSTICE BREYER is right,

however, to this extent. We recognize that judges have a greater

factfinding role in Westfall Act cases than they traditionally have in

other immunity contexts. The Act makes that inevitable. When

Westfall Act immunity is in dispute, a district court is called upon to

decide who the proper defendant is: the named federal employee, or the

United States. That decision cannot be left for jury resolution late in

proceedings without undermining the Westfall Act’s very purpose: to

shift the burden of defending the suit to the United States whenever

the defendant-employee was, at the relevant time, acting within the

scope of his employment.

Cite as: 549 U. S. ____ (2007) 1

Opinion of SOUTER, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–593

_________________

PAT OSBORN, PETITIONER v. BARRY HALEY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[January 22, 2007]

JUSTICE SOUTER, concurring in part and dissenting in

part.

I join the Court’s opinion except for Parts II–B and II–C.

Title 28 U. S. C. §1447(d) provides, with one exception not

relevant here, that “[a]n order remanding a case to the

State court from which it was removed is not reviewable

on appeal or otherwise.” In sanctioning appellate review

notwithstanding §1447(d), the Court relies on its determi

nation that Congress, through §2679(d)(2), has prohibited

remand in cases like this one, in order to give effect to the

conclusive character of the Attorney General’s certification

on the issue of removal jurisdiction. But as we recently

held, “ ‘review is unavailable no matter how plain the legal

error in ordering the remand.’ ” Kircher v. Putnam Funds

Trust, 547 U. S. ___, ___ (2006) (slip op., at 7) (quoting

Briscoe v. Bell, 432 U. S. 404, 414, n. 13 (1977)). Thus,

rather than allowing §2679(d)(2) to trump §1447(d), I

would reaffirm the rule that a district court’s remand

order is unreviewable even if it is based on an erroneous

understanding of the district court’s jurisdiction.1 But I

would not otherwise limit the Attorney General’s (or the

——————

1 The exception to §1447(d) created in Thermtron Products, Inc. v.

Hermansdorfer, 423 U. S. 336 (1976), for remands not authorized by

§1447(c) does not apply here because the District Court remanded the

case for lack of subject matter jurisdiction, a ground enumerated in

§1447(c).

2 OSBORN v. HALEY

Opinion of SOUTER, J.

employee’s) efforts to give the intended effect to the certifi

cation prior to any remand that might be ordered.

I agree with the Court, therefore, that the Court of

Appeals had jurisdiction to review the District Court’s

order resubstituting Haley as defendant. That order was

not “[a]n order remanding a case to the State court from

which it was removed,” so by its own terms §1447(d) does

not apply to review of that decision. Allowing review of a

resubstitution order makes good on the promise of the

Westfall Act: by permitting disaggregation of a remand

order from a substantive determination about substitution

that preceded it (in the manner exemplified by Waco v.

United States Fidelity & Guaranty Co., 293 U. S. 140

(1934)), it gives an employee-defendant a right to appeal

any denial of the benefit of substituting the Government

as defendant in costly litigation arising out of the em

ployee’s federal service.2 The circumstances in which the

Westfall Act was adopted, responding as it did to a series

of our decisions that Congress saw as having “seriously

eroded the common law tort immunity previously avail

able to Federal employees,” 102 Stat. 4563, note following

28 U. S. C. §2671, point to the importance Congress placed

on giving a federal employee a full opportunity to seek this

protection. Incidentally, of course, my reading of the

statutes can give an appellate court the opportunity to

correct a district court’s erroneous understanding of the

legitimacy of removal before any remand is effected, mak

ing it very unlikely that a mistakenly premised remand

order will be carried out. If a district court resisted edifi

cation, however, the remand order would be conclusive

——————

2 The circumstances of this case make it clear that Waco ought to

endure as an exception to §1447(d), a question left open in Kircher v.

Putnam Funds Trust, 547 U. S. ___, ___ (2006) (slip op., at 11, n. 13). A

contrary rule would preclude appellate review not only of the remand

order itself, but also of the refusal to substitute the Government as

defendant.

Cite as: 549 U. S. ____ (2007) 3

Opinion of SOUTER, J.

against appeal, in accord with §1447(d). See Kircher,

supra, at ___ (slip op., at 7).

In sum, my resolution of this case is a pair of half-

loaves. The policy of avoiding litigation over remands is

tempered by allowing appeals on the important matter of

substitution. The policy behind making the Attorney

General’s certification conclusive is qualified by insulating

a remand order from review, no matter how erroneous its

jurisdictional premise. Neither policy has it all, but each

gets something.

I would remand this case to the Court of Appeals for

proceedings consistent with this understanding.

Cite as: 549 U. S. ____ (2007) 1

Opinion of BREYER, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–593

_________________

PAT OSBORN, PETITIONER v. BARRY HALEY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[January 22, 2007]

JUSTICE BREYER, concurring in part and dissenting in

part.

I agree with the Court’s jurisdictional analysis and its

disposition of the District Court’s remand order and so join

Parts I and II of the Court’s opinion. But I dissent from

Part III. I continue to believe that the Westfall Act per

mits the Attorney General to certify only when accepting,

at least conditionally, the existence of some kind of “inci

dent.” But where the incident, if it took place at all, must

have fallen outside the scope of employment, the Act does

not permit certification. See Wood v. United States, 995

F. 2d 1122 (CA1 1993) (en banc).

Here, the Attorney General did claim, in the alternative,

that if an incident took place (i.e., if the federal employee

Haley spoke to Osborn’s employer with respect to Osborn’s

employment), any such incident would have fallen within

the scope of Haley’s employment. But, for procedural

reasons, that alternative claim is not before us. Ante, at 7,

n. 6. Hence I must consider this case as if it were quite a

different kind of case, one in which what took place was

either an incident outside the scope of employment or no

incident at all. Consider, for example, an aggravated

sexual assault, a theft of personal property, or an auto

accident on Coney Island where the Government em

ployee, say a Yellowstone Park forest ranger, if present on

Coney Island must have been there on a frolic of his own.

2 OSBORN v. HALEY

Opinion of BREYER, J.

The majority’s approach finds Westfall Act immunity in

cases of this kind. I would not.

For one thing, the Act’s language suggests that it does

not apply in such circumstances. The statute says that

the Attorney General must certify that the employee “was

acting within the scope of his office or employment at the

time of the incident out of which the claim arose.” 28

U. S. C. §2679(d)(2) (emphasis added). The italicized

words, read naturally, assume some kind of incident, the

characterization of which (e.g., as within the scope of

employment) determines whether immunity attaches. By

way of contrast, permitting purely incident-denying certi

fications, as the majority does, can only be squared with

the Act’s text if the Attorney General is required to supply

the reviewing court with proof of what the employee was

doing (and that such activities were within the scope of

employment) “at the time of the incident”—a showing that

would prove quite difficult in a case such as this, where

the plaintiff has alleged that the tort was committed at

some unknown time over a period of days, or weeks, or

even longer.

For another, there is nothing to suggest the Westfall Act

sought to provide immunity for tort claims necessarily

falling outside the scope of federal employment. As its

popular name suggests, the Act focused upon Westfall v.

Erwin, 484 U. S. 292 (1988), an earlier case in which the

Court considered whether, to obtain immunity from state-

law tort suits, a federal official had to show not just that

his conduct was “within the scope of [his] employment,”

but also that it was “discretionary in nature.” Id., at 295

(emphasis added). The Court answered “yes.” It held that

a federal employee was not immune from a state-law tort

suit, even for simple negligence, unless the employee could

also show that his conduct was discretionary.

The Westfall Act basically seeks to overturn this hold

ing. As this Court has said, “[w]hen Congress wrote the

Cite as: 549 U. S. ____ (2007) 3

Opinion of BREYER, J.

Westfall Act . . . , the legislators had one purpose firmly in

mind [namely] to override Westfall v. Erwin.” Gutierrez de

Martinez v. Lamagno, 515 U. S. 417, 425 (1995). The

House Judiciary Committee wrote that the Act’s “func

tional effect . . . is to return Federal employees to the

status they held prior to the Westfall decision.” H. R. Rep.

No. 100–700, p. 4 (1988). And that “status,” many thought,

was an immunity that applied to nondiscretionary, as well

as discretionary, actions that fell “within the scope” of the

employee’s “office or employment.” 28 U. S. C. §2679(b)(1);

H. R. Rep. No. 100–700, at 4.

In a word, the Act seeks to maintain the scope of pre-

Westfall immunity minus Westfall’s “discretionary func

tion” limitation. That purpose does not encompass an

extension of immunity to all-or-nothing conduct, i.e., those

serious assaults or personal “frolics” that, if they took place

at all, could not possibly have fallen within the scope of

the employee’s “office or employment.”

Further, to try to bring the latter type of conduct within

the scope of the Act’s immunity creates a series of anoma

lies. As the Court recognizes, its interpretation may limit

the plaintiff’s ability to obtain jury consideration of factual

matters critical to his or her case. Indeed, any Govern

ment employee defendant, including a defendant whom

the Attorney General does not want to defend, can ask the

judge to issue a certificate. §2679(d)(3). On the Court’s

view of the statute, the issuance of the certificate could

depend upon whether, for example, the aggravated sexual

assault took place at all or whether the defendant was at

Yellowstone or Coney Island at the relevant times. And,

in deciding these questions (as the judge would have to do

to determine whether the certificate should issue), the

judge, not the jury, would decide the main issue in the

case. (The Court declines to address the effect of its

analysis on §2679(d)(3). Ante, at 24, n. 17. But the rele

vant language in this provision is virtually identical to the

4 OSBORN v. HALEY

Opinion of BREYER, J.

language at issue in this case, see §2679(d)(2), so one

cannot seriously suggest that the Act by its own terms

affords employees any narrower a basis for seeking certifi

cation than it affords the Attorney General.)

It is highly unusual to permit special, speedy judge fact-

finding where immunity is at issue. Ordinarily, when a

party asserts an immunity defense, i.e., an “entitlement

not to stand trial under certain circumstances,” Mitchell v.

Forsyth, 472 U. S. 511, 525 (1985) (emphasis added),

special immunity-related procedures focus, not upon fact-

finding, but upon the proper legal characterization of the

facts as given. Where the parties’ immunity-related dis

agreement amounts to a dispute about the law, namely

whether the particular set of facts alleged by the plaintiff

does, or does not, fall within the immunity’s legal scope,

the defendant is entitled to a quick determination of the

legal question by the trial judge and, if necessary, an

immediate interlocutory appeal. Id., at 526, 530. See

Nixon v. Fitzgerald, 457 U. S. 731, 742–743 (1982); see

also Helstoski v. Meanor, 442 U. S. 500, 507–508 (1979).

But where that disagreement amounts to a dispute about

the facts, immunity law does not ordinarily entitle the

defendant to special procedural treatment. Rather, the

defendant must take the facts as the plaintiff asserts

them. Like any other defendant, he can move for sum

mary judgment. Mitchell, supra, at 526; Anderson v.

Creighton, 483 U. S. 635, 646–647, n. 6 (1987). But if the

plaintiff provides sufficient evidence to survive summary

judgment, the defendant must win the case at trial.

Thus ordinarily an immunity defense provides special

procedural treatment only for a defendant’s legal claim

that the facts taken as the plaintiff asserts them (or taken

as the assertions have survived a motion for summary

judgment) fall within the scope of the immunity. It does

not provide special treatment for disputes about the facts.

See, e.g., Johnson v. Jones, 515 U. S. 304, 319–320 (1995)

Cite as: 549 U. S. ____ (2007) 5

Opinion of BREYER, J.

(defendant raising immunity defense “may not appeal a

district court’s summary judgment order insofar as that

order determines whether or not the pretrial record sets

forth a ‘genuine’ issue of fact for trial”). The Court’s read

ing of the Westfall Act works a major change in this

fact/law relationship. Under the Court’s reading, the

defendant will have the right to ask the judge to deter

mine the facts, i.e., to determine whether the events plain

tiff says occurred did in fact happen. And that is so even

where the plaintiff has enough evidence to bring the case to

the jury.

The Court’s reading of the Act proves even more anoma

lous in the case of a federal employee claiming an assault

that violates both (a) state tort law and (b) federal civil

rights law. Suppose that the defendant’s sole defense is

“mistaken identity.” The defendant argues that nothing

took place between him and the plaintiff, that at the rele

vant time he was working peacefully at his desk. Under

the Court’s reading, the defendant is entitled to have the

judge decide the factual question; and, should the judge

decide in his favor (in respect to the state-law tort claim),

collateral estoppel likely means an end of the matter in

respect to the federal civil rights claim, as well. Yet the

Westfall Act explicitly exempts from its scope any claim of

“violation of a federal statute” or the Federal Constitution.

28 U. S. C. §2679(b)(2).

The Court rests much of its analysis on Willingham v.

Morgan, 395 U. S. 402 (1969), but I do not think that case

offers much support. Willingham addressed only a federal

officer’s right to remove a case to federal court (via

§1442(a)(1)). Id., at 403. Once there, the officer could

pursue traditional immunity defenses, i.e., based on the

facts as alleged by the plaintiff or as they survived sum

mary judgment; that is all the Court could have meant

when it said that officers “should have the opportunity to

present their version of the facts to a federal, not a state,

6 OSBORN v. HALEY

Opinion of BREYER, J.

court,” id., at 409. Moreover, in Mesa v. California, 489

U. S. 121, 139 (1989), this Court held that “[f]ederal officer

removal under 28 U. S. C. §1442(a) must be predicated

upon averment of a federal defense.” Because the federal

employee defendants in Mesa “ha[d] not and could not

present an official immunity defense” to the charges

against them, removal was improper under §1442(a)(1).

Id., at 133. The majority reads the Westfall Act much

more broadly than this Court read §1442(a) in Mesa,

permitting removal in cases where there is unquestionably

no official immunity defense available (at least as such

defenses have been understood by this Court until today).

And in so doing, the majority opens wide the door not just

to removal, which was all that was at issue in Willingham

and Mesa, but, much more consequentially, to substituting

a judge’s factfinding for a plaintiff’s jury trial right.

I do not claim that my own reading of the Westfall Act

will totally eliminate the difficulties I have mentioned.

But an interpretation that reads the Act’s language more

literally will minimize them, while also largely mitigating

the problem of clever pleading with which the majority is

rightly concerned, ante, at 20. The Act says the “Attorney

General” must certify that the “employee was acting

within the scope of his office or employment at the time of

the incident out of which the claim arose.” §2679(d)(2)

(emphasis added). As I have said, that language prevents

the Attorney General from denying that any “incident” at

all occurred without at least adding in the alternative that

any incident the plaintiff might be able to show falls

within the employee’s scope of employment regardless.

Thus, if a plaintiff claims an intentional touching (out

side the scope of employment), the Attorney General is

free to claim (a) there was no touching but (b) were the

evidence to show a touching, it was accidental (within the

scope of employment). Yet if the plaintiff accuses the

employee, a Yellowstone Park ranger, of negligent driving

Cite as: 549 U. S. ____ (2007) 7

Opinion of BREYER, J.

on Coney Island, the Attorney General could not make a

similar claim. (Nor could he likely do so in respect to an

employee whom the plaintiff claims committed a serious

sexual assault.) That is because if these latter incidents

did happen, they must have fallen outside the scope of

employment, while if they did not happen, then nothing

involving the employee happened at all. In such cases no

Westfall Act immunity would be available. And that is

just as it should be.

This approach resembles, but differs in important re

spects from that of the First Circuit in Wood. In Wood, the

First Circuit held that a judge reviewing a Westfall Act

certificate could resolve factual conflicts as to “incident

describing and incident-characterizing facts,” but must

leave for the jury (if it came to that) disputes over whether

any incident occurred at all. 995 F. 2d, at 1129. Here, I

offer a compromise between Wood and the majority’s more

extreme approach. I would permit a judge reviewing a

Westfall Act certificate to resolve any factual disputes

relevant to whether the defendant was “acting within the

scope of his office or employment,” including, when neces

sary, determining whether the incident occurred at all.

But I would only permit the judge to fulfill this factfinding

function in those cases where the Attorney General (or the

defendant employee, under §2679(d)(3)) can offer some

plausible explanation of the alleged incident that would

bring the defendant’s actions within the scope of his fed

eral office or employment.

The majority’s approach, absent some undefined con

straint that might be imposed in future cases, ante, at 22,

n. 14, would permit factfinding by a judge (and, where the

Attorney General requests, removal to federal court) in

any state-law tort case involving a federal employee. I

would permit judges to fulfill this rather extraordinary

factfinding function only in those cases where the “injury

or loss of property, or personal injury or death” for which

8 OSBORN v. HALEY

Opinion of BREYER, J.

the plaintiff seeks recovery might have “aris[en] or re

sult[ed] from the negligent or wrongful act or omission of

[the federal employee] while acting within the scope of his

office or employment”—i.e., where there is some chance

the injury (if any) was caused by the kinds of actions for

which the Act expressly grants employees immunity,

under §2679(b)(1). This approach protects the innocent

employee as well as the guilty, ante, at 20, but only in the

class of law suits the Act can plausibly be read to cover.

Because the Court of Appeals interpreted the Act as

does the Court, I would vacate its judgment. I would,

however, permit the Court of Appeals to consider the

Government’s alternative assertion of immunity (including

whether it was properly barred by the trial court), and to

determine whether Westfall Act immunity applies on that

basis.

For these reasons, I dissent from Part III of the Court’s

opinion.

Cite as: 549 U. S. ____ (2007) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–593

_________________

PAT OSBORN, PETITIONER v. BARRY HALEY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[January 22, 2007]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,

dissenting.

Few statutes read more clearly than 28 U. S. C.

§1447(d): “An order remanding a case to the State court

from which it was removed is not reviewable on appeal or

otherwise . . . .” 1 That bar to appellate review is a vener

able one, dating back to 1887, see Thermtron Products,

Inc. v. Hermansdorfer, 423 U. S. 336, 343 (1976). It is,

moreover, not just hortatory; it is jurisdictional. Things

Remembered, Inc. v. Petrarca, 516 U. S. 124, 127–128

(1995). Yet beginning in 1976, this Court has repeatedly

eroded §1447(d)’s mandate and expanded the Court’s

jurisdiction. Today’s opinion eviscerates what little re

mained of Congress’s Court-limiting command.

I

The first narrowing of §1447(d) occurred in Thermtron

Products, over the dissent of Justice Rehnquist joined by

Chief Justice Burger and Justice Stewart (only eight

Justices sat in the case). Thermtron Products held that

remand orders are reviewable if they are based on any

grounds other than the mandatory ground for remand set

——————

1 The remaining clause of §1447(d) provides an exception that is not

applicable here: “except that an order remanding a case to the State

court from which it was removed pursuant to section 1443 of this title

shall be reviewable by appeal or otherwise.”

2 OSBORN v. HALEY

SCALIA, J., dissenting

forth in §1447(c)—namely, that “ ‘the case was removed

improvidently and without jurisdiction.’ ” 2 423 U. S., at

342. That result followed, the Court said, because subsec

tions (c) and (d) are “in pari materia” and “must be con

strued together.” Id., at 345. Thus, the unlimited phrase

“[a]n order remanding a case” magically became “an order

remanding a case under this section”—changing prior law,

under which the Court had held that the predecessors of

§1447(d) prohibited review of all remand orders. See id.,

at 354–356 (Rehnquist, J., dissenting). Since, in Therm

tron Products, the District Court had remanded solely

because of its crowded docket, we accepted review and

issued a writ of mandamus compelling reconsideration of

the order. See also Quackenbush v. Allstate Ins. Co., 517

U. S. 706, 710–712 (1996) (reviewing a remand order

predicated on abstention under Burford v. Sun Oil Co.,

319 U. S. 315 (1943)).3

The next phase in §1447(d)’s erosion came just last

Term, in Kircher v. Putnam Funds Trust, 547 U. S. ___

(2006). There, as here, the District Court had remanded

to state court “on the ground that [it] lacked subject mat

ter jurisdiction on removal.” Id., at ___ (slip op., at 3).

That should have been the end of the matter, but it was

not. The Kircher majority embarked on a searching in

quiry into whether the District Court’s real reason for

remand was lack of jurisdiction. See id., at ___ (slip op., at

7–11). In my concurrence, I warned that “[r]eview of the

sort engaged in . . . threatens to defeat the purpose of

§1447(d),” which was “ ‘to prevent delay in the trial of

——————

2 Section 1447(c) has since been amended, specifying as grounds for

mandatory remand that “the district court lacks subject matter

jurisdiction.”

3 The Thermtron Products limitation upon the §1447(d) bar to appel

late review does not affect this case. As the Court recognizes, ante, at

6, the District Court was perfectly clear that its remand to state court

was based on its lack of jurisdiction.

Cite as: 549 U. S. ____ (2007) 3

SCALIA, J., dissenting

remanded cases by protracted litigation of jurisdictional

issues.’ ” Id., at ___–___ (slip op., at 2–3) (quoting Therm

tron Products, supra, at 351).

“Such delay can be created just as easily by asking

whether the district court correctly characterized the

basis for its order as it can by asking whether that ba

sis was correct . . . . Whether the District Court was

right or wrong—even if it was so badly mistaken that

it misunderstood the true basis for its orders—it pur

ported to remand for lack of jurisdiction, and §1447(d)

bars any further review.” Kircher, 547 U. S., at ___–

___ (slip op., at 2–3).

Today’s opinion goes even further than Kircher.

Whereas that case at least claimed to be applying our

precedents, see, e.g., id., at ___–___ (slip op., at 7–8) (citing

Briscoe v. Bell, 432 U. S. 404, 413–414, n. 13 (1977)),

today’s opinion makes no such pretense. Having recog

nized, as it must, that the District Court in this case in

voked §1447(c) and remanded for lack of subject-matter

jurisdiction, ante, at 6, the Court nevertheless reaches the

amazing conclusion that §1447(d) does not “contro[l]”

whether the remand order is reviewable on appeal. Ante,

at 16.

How can that be? How can a statute explicitly eliminat

ing appellate jurisdiction to review a remand order not

“contro[l]” whether an appellate court has jurisdiction to

review a remand order? The Court says the answer to this

riddle lies in 28 U. S. C. §2679(d)(2). But that section says

only that the Attorney General’s certification is “conclu

siv[e] . . . for purposes of removal” (emphasis added); it

says absolutely nothing about the reviewability of remand

orders. Thus, the most §2679(d)(2) can prove is that the

District Court should not have remanded the case; that its

remand order was erroneous. But our precedents make

abundantly clear that §1447(d)’s appellate-review bar

4 OSBORN v. HALEY

SCALIA, J., dissenting

applies with full force to erroneous remand orders. Just

last Term we acknowledged that “a remand premised on

an erroneous conclusion of no jurisdiction is unappeal

able.” Kircher, supra, at ___ (slip op., at 8). See also

Thermtron Products, supra, at 343 (“If a trial judge pur

ports to remand a case on the ground that it was removed

‘improvidently and without jurisdiction,’ his order is not

subject to challenge in the court of appeals by appeal, by

mandamus, or otherwise” (quoting §1447(c) (1975 ed.)

(emphasis added)); Briscoe, supra, at 414, n. 13 (where a

remand order is based on one of the grounds enumerated

in §1447(c), “review is unavailable no matter how plain

the legal error in ordering the remand”). Today’s opinion

repudiates that principle. The only basis for its holding is

that §2679(d)(2) renders the remand erroneous. This

utterly novel proposition, that a remand order can be set

aside when it is contrary to law, leaves nothing remaining

of §1447(d). Determination of an order’s lawfulness can

only be made upon review—and it is precisely review that

§1447(d) forbids.4

Congress knows how to make remand orders reviewable

when it wishes to do so. See, e.g., 12 U. S. C.

§1441a(l)(3)(C) (“The Corporation may appeal any order of

remand entered by a United States district court”);

§1819(b)(2)(C) (same); 25 U. S. C. §487(d) (“[T]he United

States shall have the right to appeal from any order of

remand in the case”). Even §1447(d) itself exempts certain

remand orders from its own appellate-review bar. See

n. 1, supra. “Absent a clear statutory command to the

contrary, we assume that Congress is aware of the univer

——————

4 Like the Court, I need not address whether allowing the case to

remain in federal court after declining to substitute the United States

as defendant would create an Article III problem. Unlike the Court,

however, I choose not to address the point in dicta. See ante, at 16–17

(noting that “the question would only arise if” certain events take place,

yet answering the question anyway).

Cite as: 549 U. S. ____ (2007) 5

SCALIA, J., dissenting

sality of th[e] practice of denying appellate review of re

mand orders when Congress creates a new ground for

removal.” Things Remembered, 516 U. S., at 128 (internal

quotation marks omitted). As the Court recognized in

Kircher, “[t]here is no such ‘clear statutory command’ here,

and that silence tells us we must look to 28 U. S. C.

§1447(d) to determine the reviewability of remand orders

under the Act.” 547 U. S., at ___, n. 8 (slip op., at 7, n. 8).

Were the Court in this case to look to §1447(d), instead of

looking for a way around §1447(d), the answer would be

abundantly clear.

II

Respondents argued that, even if the remand order is

unreviewable on appeal, the District Court’s rejection of

the Attorney General’s certification should be reviewable

as a logically distinct determination, citing Waco v. United

States Fidelity & Guaranty Co., 293 U. S. 140 (1934). See

ante, at 1–2 (SOUTER, J., concurring in part and dissenting

in part) (adopting this argument).

The continuing vitality of Waco is dubious in light of

more recent precedents, see Kircher, supra, at ___, n. 13

(slip op., at 11, n. 13). We need not address that question

here, however, since Waco is patently inapposite. There,

removal had been premised on diversity jurisdiction. The

District Court dismissed the party whose citizenship was

alleged to supply the requisite diversity, finding that

party’s joinder improper, and thus remanded the case for

lack of jurisdiction. We found the dismissal order to be

reviewable on appeal, even though the remand order was

not. 293 U. S., at 143. But there is a crucial distinction

between that case and this one: In Waco, reversal of the

dismissal would not have subverted the remand. There

was no question that the suit would proceed in state court

regardless of whether the diverse party was rightfully or

wrongfully dismissed. Nowhere did the Waco Court so

6 OSBORN v. HALEY

SCALIA, J., dissenting

much as hint that the District Court might need to reex

amine its remand order; to the contrary, it was clear that

the remand would occur, no matter what: “If the District

Court’s [dismissal] order stands, the cross-action will be no

part of the case which is remanded to the state court. . . . A

reversal cannot affect the order of remand, but it will at

least, if the dismissal of the petitioner’s complaint was

erroneous, remit the entire controversy, with the [diverse

party] still a party, to the state court for such further

proceedings.” Id., at 143–144 (emphasis added). In other

words, the remand order and the dismissal order were

truly “separate orders,” id., at 142; we could review—even

reverse—the dismissal order without affecting the remand

or its impact on the case.

Today’s case far more closely resembles Kircher. There,

the remand order had been predicated upon a finding that

the cause of action was not a “covered” class-action suit as

defined by the Securities Litigation Uniform Standards

Act of 1998 (SLUSA), 112 Stat. 3227, and therefore that

the federal courts lacked jurisdiction. The District Court

remanded so the suit could continue in state court, outside

the confines of SLUSA. If the suit had been “covered,”

SLUSA would have precluded the action from going for

ward in any court, state or federal. 15 U. S. C. §77p(b).

We therefore determined that neither the remand itself

nor the determination of SLUSA inapplicability was re

viewable on appeal: “The District Court’s remand order

here cannot be disaggregated as the Waco orders could,

and if [we were to find the suit to be covered by SLUSA],

there [would be] nothing to remand to state court.” 547

U. S., at ___–___, n. 13 (slip op., at 11–12, n. 13). That is

precisely the situation in this case: The remand here is

predicated upon a finding that the United States should

not be substituted as a defendant under the Westfall Act.

If we were to disagree with the District Court and substi

tute the United States as a defendant, while at the same

Cite as: 549 U. S. ____ (2007) 7

SCALIA, J., dissenting

time recognizing (as §1447(d) requires) that there is noth

ing we can do about the remand order, the case would go

back to state court as an action under the Federal Tort

Claims Act (FTCA), see ante, at 1, and the remanded case

would be styled Osborn v. United States. But the state

court would have to dismiss such a case at once, since

federal courts have exclusive jurisdiction over FTCA suits.

28 U. S. C. §1346(b)(1). Thus, as in Kircher, but unlike

Waco, the District Court’s decision on the preliminary

matter—here, Westfall Act certification; in Kircher,

SLUSA applicability—is inextricably intertwined with the

remand order. Since that is so, there is no jurisdiction to

review either determination.

* * *

In an all-too-rare effort to reduce the high cost of litiga

tion, Congress provided that remand orders are completely

unreviewable “on appeal or otherwise.” Section 1447(d)

effectuated a tradeoff of sorts: Even though Congress

undoubtedly recognized that some remand orders would

be entered in error, it thought that, all in all, justice would

better be served by allowing that small minority of cases

to proceed in state courts than by subjecting every re

manded case to endless rounds of forum disputes. “[B]y

denying any form of review of an order of remand,” “Con

gress . . . established the policy of not permitting inter

rupting of the litigation of the merits of a removed cause

by prolonged litigation of questions of jurisdiction of the

district court to which the cause is removed.” United

States v. Rice, 327 U. S. 742, 751 (1946). Today, in its

uncompromising pursuit of technical perfection at all

costs, this Court has repealed the tradeoff. One might

suggest that Congress should restore it, but it is hard to

imagine new statutory language accomplishing the desired

result any more clearly than §1447(d) already does.

I would vacate the Sixth Circuit’s judgment in its en

8 OSBORN v. HALEY

SCALIA, J., dissenting

tirety, since that court, like this one, plainly lacked

jurisdiction.