Robert Garcia v. United States

EMILIO M. GARZA, Circuit Judge,

specially concurring:

Because I agree that the EPA agent was not acting within the scope of his employment at the time of the accident, I concur in Part II.A of the majority’s opinion.

I concur, however, only in the judgment of Part II.B. I agree that remand is not permitted under subpart (d)(2), and that the action must therefore remain in district court. 28 U.S.C. § 2679 (d)(2). I do so, however, not for the tortuous reasoning set out in Part II.B, but because I believe that Congress, by the plain wording of § 2679 (entitled “Exclusiveness of remedy”), mandated that actions against an employee of the federal government, when certified by the attorney general, be brought in the United States courts, with the United States as the proper defendant. Conversely, Congress never intended to create jurisdiction in a federal court for a state action against an employee of the United States. See § 2679(d)(3). We are thus squarely presented in this case with the “difficult question of federal jurisdiction” that was not decided by the Supreme Court in Lamagno. Gutierrez de Martinez v. Lamagno, — U.S. -, -, 115 S.Ct. 2227, 2237 , 132 L.Ed.2d 375 (1995) (O’Connor, J., concurring in part).

Unlike Lamagno , where the parties’ diverse citizenship provided an independent basis for maintaining the case in federal court, there is no remaining basis for federal jurisdiction in this case once we have rejected the scope certification. The majority is apparently comfortable to conclude, with the plurality in Lamagno , that because there is an “initial colorable federal question” at the time of removal and substitution, there is no “grave” Article III problem in having the district court retain the case. Maj. op. at 321-25; see also Lamagno, — U.S. at -, 115 S.Ct. at 2236-37 (plurality opinion). I am not as comfortable. As the dissent in Lamagno put it, this line of reasoning is “tantamount to saying the authority to determine whether a Court has jurisdiction over the cause of action supplies the very jurisdiction that is subject to challenge. It simply obliterates the distinction between the authority to determine jurisdiction and the jurisdiction that is the subject of the challenge_” Lamagno , — U.S. at -, 115 S.Ct. at 2240 (Souter, J., dissenting). A challenge to the scope certification is necessarily a challenge to the court’s jurisdiction. See id.

Despite the majority’s arguments to the contrary, I remain convinced that the result we have reached today “at the very least must approach the limit, if it does not cross the line” in defining the breadth of federal court jurisdiction authorized by the “arising under” Clause of Article III of the Constitution. 1 Id. at -, 115 S.Ct. at 2239 (Souter, *328 J., dissenting). I refuse to believe that Congress intended this troubling result; I must instead conclude that Congress, in making the attorney general’s certification conclusive for purposes of removal, intended that the scope certification, which provides the basis for federal jurisdiction, would remain unreviewable — thus also conferring exclusive jurisdiction under § 1346(b). These § 2679 issues — certification and jurisdiction — are inherently symbiotic.

Accordingly, I write to express my concern regarding the Article III issue raised by this ease, and to respectfully urge the Supreme Court to revisit its determination of Congressional intent allowing review of the attorney general’s scope certification under the West-fall Act in light of the troubling result the Lamagno opinion has produced in this case.

I

Despite Lamagno’s holding, I continue to believe that Congress did not intend for the attorney general’s certification of scope of employment to be reviewable by the courts. I begin with the premise that there is “no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.” United States v. Sosa, 997 F.2d 1130, 1132 (5th Cir.1993) (quoting United States v. American Trucking Ass’ns, 310 U.S. 534, 543 , 60 S.Ct. 1059, 1063 , 84 L.Ed. 1345 (1940)). It is also “incumbent upon us to read the statute to eliminate [serious constitutional doubts] so long as such a reading is not plainly contrary to the intent of Congress.” United States v. X-Citement Video, Inc., 513 U.S. -, -, 115 S.Ct. 464, 472 , 130 L.Ed.2d 372 (1994); Mesa v. California, 489 U.S. 121, 137 , 109 S.Ct. 959, 969 , 103 L.Ed.2d 99 (1989).

The plain language of each of the five subsections of § 2679(d) confirms the unre-viewability of the scope certification. Section 2679(d)(1) states that after certification by the attorney general: (1) the United States shall be substituted for the defendant employee in any litigation arising out of the alleged incident and commenced in federal court, and (2) any such litigation shall be treated as a suit originally brought against the United States. 2 Section 2679(d)(2) provides that after certification by the attorney general: (1) any litigation arising out of the alleged incident and commenced in state court shall be removed to the federal district court before the United States is substituted as defendant, and (2) the scope of employment issue shall be conclusively resolved for the purposes of removal. 3 Section 2679(d)(3) provides that if the attorney general denies certification: (1) the federal district court may review that determination and certify the employee if it chooses, (2) any litigation commenced in state court shall be removed to the federal district court if a petition for court certification is filed, and (3) any litigation so removed will be remanded to state court if the petition is denied. 4 Section *329 2679(d)(4) states that any suit brought against the United States pursuant to § 2679(d) shall be subject to 28 U.S.C. § 1346 (b), 5 and § 2679(d)(6) concerns the timeliness of claims brought under § 2679(d). 6 Nowhere in the statute is judicial review of the attorney general’s certification mentioned.

A

The language of §§ 2679(d)(1) and (d)(4) 7 plainly states that after certification by the attorney general, courts are required to substitute the United States as defendant and proceed with the ease as if it had originally been filed against the United States. Section 2679(d)(1) provides that: “Upon certification by the Attorney General ... any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States_” 8 Similarly, § 2679(d)(4) provides that: “Upon certification, any action or proceeding ... shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title....” 9 I read the word “shah” as mandatory language, placing the substitution of the United States as defendant outside the district court’s discretion.

B

The remaining provisions of § 2679(d), if read in accordance with the rules of statutory construction, similarly reveal that Congress did not intend the attorney general’s certification to be reviewable by the courts.

First, the language in § 2679(d)(2) that makes the attorney general’s certification nonreviewable for purposes of removal is the logical extension of the language in § 2679(d)(1) and § 2679(d)(4) that precludes federal court review of the attorney general’s certification. Significantly, the two subsections concern different courts and procedural stages, and the different roles certification plays in each. While § 2679(d)(1) applies exclusively to suits commenced “in a United States district court,” 10 § 2679(d)(2) applies only to suits commenced “in a State court.” 11 Consequently, § 2679(d)(1) governs litigation “commenced” in a federal court, 12 while § 2679(d)(2) governs the procedure by which suits reach a federal court — namely, remov *330 al. 13 Finally, under § 2679(d)(1), certification causes the substitution of the United States as defendant; while under § 2679(d)(2), in addition to that substitution, certification also causes the state court to lose jurisdiction over the suit. Because neither § 2679(d)(1) nor (d)(4) addresses removal, Congress found it necessary in § 2679(d)(2) to extend expressly and explicitly the eonelusiveness of the attorney general’s certification to removal. Thus, § 2679(d)(2) states that certification by the attorney general “shall conclusively establish scope of office or employment for purposes of removal.” 14

Some pre-Lamagno opinions made the argument that the plain language in § 2679(d)(2) renders the plain language of § 2679(d)(1) ambiguous. 15 The reasoning of this argument is flawed because the two subsections can and should be read in agreement. See Gallenstein v. United States, 975 F.2d 286, 290 (6th Cir.1992). When construing separate provisions of a statute, one general and one more particular, the more specific provision should only be given exclusive effect if the two provisions cannot be reconciled. Id. The language in § 2679(d)(1) is limited to “any civil action or proceeding commenced upon such claim in a United States district court;” 16 accordingly, § 2679(d)(2), the subsection governing those procedural determinations made before a claim reaches the district court, expressly and logically extends the nonreviewability of the attorney general’s certification to the removal process. 17 Sections 2679(d)(1) and (d)(2), instead of being ambiguous, are rather consistent and complementary, given the different courts in which suits governed by § 2679(d) may be filed.

Second, § 2679(d)(3)’s provision for district court determination of scope demonstrates that if Congress had intended for the district court to consider scope after the attorney general’s certification, it knew how to do so. 18 Section 2679(d)(3) provides for limited judicial review of the attorney general’s determination of scope by allowing the defendant employee to “petition the court to find and certify that the employee was acting within the scope of his office or employment” if “the Attorney General has refused.” 28 U.S.C. § 2679 (d)(3). Accordingly, it provides that if “the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court.” Id. § 2679(d)(3). The fact that Congress included instructions for the district court to remand should it determine an employee was not within the scope of employment in § 2679(d)(3), but not in § 2679(d)(1), further evidences Congress’s intent that the attorney general’s certification be conclusive. See United States v. Lamere, 980 F.2d 506, 513 (8th Cir.1992) (holding that where language is included in one section of a statute but not another, it is presumed that exclusion was purposeful). 19

Section 2679(d) provides a clear, cohesive, consistent, and comprehensive account of the reviewability of the attorney general’s determinations of scope; and whether the plain language of § 2679(d)(1) is taken alone or in conjunction with that of §§ 2679(d)(2), (d)(3), and (d)(4), the statute does not in my opinion permit judicial review of the attorney general’s decision to grant certification.

*331 II

Although essentially unaddressed by the Court in Lamagno , I believe that the statute’s legislative history fully supports the determination that the attorney general’s certification is unreviewable. I make this assertion even though prior to Lamagno , a number of circuits reached the opposite conclusion based on their reading of the statute’s legislative history. However, these circuit opinions based their conclusions primarily on the views of a single legislator, as expressed in his questions to witnesses testifying at a House subcommittee hearing on a bill that was never enacted. 20

A

The subcommittee hearings that these courts relied as a foundation for their interpretation of § 2679(d) do not authoritatively support the proposition that the attorney general’s certification is reviewable by the federal district court for two reasons. 21 The testimony from the hearings on H.R. 4358, 22 the bill that preceded H.R. 4612, 23 is both ambiguous and contradictory. Representative Barney Frank, the sponsor of H.R. 4358, seemed to believe that under that bill, plaintiffs would have some method of “contesting certification” that was not available to defendant employees:

It seems to me the certification is a weapon against the employee, not against the plaintiff, because the plaintiff would, still have the right to contest the certification if they thought the Attorney General were certifying without justification.

Hearings, supra note 20, at 128 (statement of Rep. Frank) (emphasis added). Although Representative Frank’s comment has been frequently cited as support for judicial re *332 view, 24 it demonstrates more than anything else that he was not yet clear on the procedural complexities of the bill’s provisions. The bill under consideration at the time of the hearings contained no provisions for court review of the attorney general’s determinations of scope, 25 not even those that appear in the current § 2679(d)(3), 26 and thus could not provide for disparate treatment of plaintiffs’ and defendants’ challenges to those determinations.

Robert Willmore, the Department of Justice representative who has been cited as “understanding that the certification issue would be subject to judicial review,” Lehti-nen, 913 F.2d at 1541, gave the following testimony:

I think the certification is the easiest way to get the scope issue resolved without having potentially years of litigation over whether an act was within scope.

Hearings, supra note 20, at 128 (testimony of Robert Willmore) (emphasis added). At least in this statement, Willmore appears to be under the impression that the attorney general’s determinations of scope would not be subject to review. 27

Lois Williams, a union representative who has also been cited as “understanding that the certification issue would be subject to review,” Lehtinen, 913 F.2d at 1541, testified:

But let me just say that there is something about the Attorney General’s having certified. It is formal. It is a determination. The question of deference to the Attorney General comes in.

Hearings, supra note 20, at 197 (testimony of Lois Williams) (emphasis added). Williams believed that “this proposal purports to make [the attorney general’s] certification conclu sive,” 28 as is evidenced by her statement:

The proposed amendments are said to be similar to a certification procedure employed in the Federal Driver’s Act [the old § 2679], an amendment to the FTCA. There is, however, a critical difference. The Attorney General’s certification under the Federal Drivers Act, is, at least in some degree, reviewable by a court. The proposed legislation, however, purports to remove any review. It states: “This certification of the Attorney General shall conclusively establish scope of office or employment for the purposes of removal.” 29

It is clear that the hearings on H.R. 4358 do not support the contention that its participants understood the attorney general’s certification to be subject to district court review. See Patterson v. Shumate, 504 U.S. 753 , 760-62 & n. 4, 112 S.Ct. 2242 , 2248 & n. 4, 119 L.Ed.2d 519 (1992) (stating that where the language of a statute is clear, that language, rather than “isolated excerpts from the legislative history,” should be followed).

B

Moreover, these scattered statements from congressional subcommittee hearings are not the most authoritative non-statutory evidence of legislative intent. In an analysis of legislative history, a court should begin with the most recent statement of authority and work backwards through the legislative record. In re Timbers of Inwood Forest Assocs., Ltd., 793 F.2d 1380 , 1396 (5th Cir.1986) (ranking text of the enacted bill as most authoritative, followed by post-hearing amendments and committee reports), modified on reh’g on other grounds, 808 F.2d 363 (5th Cir.1987), aff'd, United Sav. Ass’n v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365 , 108 S.Ct. 626 , 98 L.Ed.2d 740 *333 (1988). A proper examination of the legislative history, beginning with H.R. 4612’s amendments to § 2679(d) in 1988, demonstrates that Congress intended the attorney general’s certification to be conclusive.

The 1988 amendments deleted from § 2679(d) language that expressly provided for district court review of the attorney general’s certification. 30 Prior to its amendment in 1988, § 2679(d) was not divided into subsections and dealt only with certification by the attorney general. 31 The pre-1988 § 2679(d) (the “old § 2679(d)”) consisted of just two sentences. 32 The first provided that after certification, the attorney general could remove to a federal district court any litigation on the incident being conducted before a state court, and that the United States should then be substituted as defendant. 33 In its second sentence, the old § 2679(d) provided for federal district court review of the attorney general’s certification and for remand to the state court if the certification was found baseless. 34

In 1988, legislation in the House of Representatives proposed amending the old § 2679(d). 35 Under H.R. 4612, § 2679(d) was to be divided into four subsections. 36 The first subsection provided that after certification by the attorney general, the United States shall replace the employee as defendant in all litigation on the incident commenced in a federal court. 37 The second subsection provided that after certification by the attorney general, any litigation being conducted on the incident shall be removed to the federal district court. 38 The third subsection provided that the attorney general’s refusal to certify was reviewable by a federal district court. 39 Finally, the fourth subsection provided that upon certification, any action subject to the first three paragraphs would proceed in the same manner as any action against the United States filed pursuant to 28 U.S.C. § 1346 (b). 40

Thus, H.R. 4612 proposed several important amendments to the old § 2679(d). First, it proposed making certification conclusive for litigation commenced in, as opposed to removed to, federal court. Second, H.R. 4612 proposed deleting language that explicitly provided for federal district court review of the attorney general’s certifiea *334 tion. 41 The first half of the third subseetion provided that a defendant employee could petition for court certification if the attorney general refused to certify. 42 Upon the filing of such a petition in state court, however, the subseetion provided that the attorney general could remove the state action to the federal district court 43 If the federal court denied the employee’s petition for court certification, the subsection provided that the action would be remanded to the state court. 44 Finally, subsection four made clear that upon certification, the federal district would have exclusive subject matter jurisdiction under § 1346(b).

We can presume that Congress purposefully deleted the old § 2679(d)’s reference to district court review of the attorney general’s certification from the statute. Congress must be presumed to have knowledge of its previous legislation when making new laws. Hellon & Assocs., Inc. v. Phoenix Resort Corp., 958 F.2d 295 , 297 (9th Cir.1992). Thus, Congress must have been familiar with each of the old § 2679(d)’s provisions, including its provision for district court review of that certification. 45 While the other provisions were retained by the 1988 amendments almost verbatim in § 2679(d)(2), the language expressly empowering the federal district court to review the attorney general’s certification was deleted entirely. 46 ‘When legislators delete language, we may assume that they intended to eliminate the effect of the previous wording.” Stewart v. Ragland, 934 F.2d 1033 , 1037 n. 6 (9th Cir.1991).

C

The subcommittee report that accompanied H.R. 4612, like the 1988 post-hearing amendments, is strong evidence of Congress’ intent that the attorney general’s certification not be subject to district court review. See In re Timbers, 793 F.2d at 1396 (ranking text of the enacted bill as most authoritative, followed by post-hearing amendments and committee reports). The report’s summary of § 2679(d) emphasizes § 2679(d)(l)’s mandate that the United States be substituted as defendant after the attorney general’s certification and discusses district court determination of scope only as an alternative route to certification, not as a means of decertification:

Section 6 [of the Westfall Act] would amend section 2679(d) of title 28 to require the United States to be substituted for a Federal employee as the sole defendant in a civil lawsuit whenever the Attorney General determines that the act or omission alleged to have caused the claimant’s injuries was within the scope of the employee’s office or employment. Once made, this determination also would require that any case filed in State court be removed to a Federal district court. If the Attorney General refuses to certify that an employee was acting within the scope of his office or employment, the employee is authorized to petition the Court for a ruling on this determination. 47

The committee report also reveals that legislators enacted H.R. 4612, at least in part, precisely because they wanted to minimize the amount of fact finding required in scope of employment cases. This is evident from the report’s discussion of why the Supreme Court’s decision in Westfall v. Er win 48 necessitated the proposed legislation:

*335 [B]efore Westfall, most actions brought against Federal employees in their personal capacity were resolved through a summary judgment or dismissal early in the case. This early resolution of the ease was possible because the employee could be shown to have been acting within the scope of employment, and therefore absolute immunity precluded recovery. Under West-fall, summary judgments and dismissals will no longer be readily available because the additional determination as to whether the employee exercised governmental “discretion” will always be a fact-based determination. Thus the transaction costs (i.e. litigation costs) and length of time needed to resolve the issue of discretion in these cases will be substantially increased, as will the uncertainty for the individual employee who is sued.

Committee Report, supra note 47, at 2.

These dual concerns, avoiding litigation costs and protecting employees from the possibility of being held personally liable for torts that they rationally believed they committed within the scope of their employment, are expressed throughout the committee report. 49 Taken together, they account for the legislature’s decision to make court determination of scope available only to the defendant employee who has been refused certification. While allowing employees to challenge such refusals in court might result in additional litigation costs, employees would enjoy greater protection against personal liability. To allow judicial review of certifications that are granted would frustrate the legislature’s attempt both to protect employees and to decrease litigation time and expense.

Thus, the committee report on H.R. 4612, the bill that amended § 2679(d), also strongly suggests that Congress intended the attorney general’s certification to be unreviewable.

Ill

The Court in Lamagno rejected what it termed “a plausible construction” of the statute in favor of unreviewability because of policy considerations favoring judicial reviewability. “Because the statute is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review and that mechanical judgments are not the kind that federal courts are set up to render.” Lamagno , — U.S. at -, 115 S.Ct. at 2236. While this traditional understanding may apply to executive determinations generally, I do not believe that it necessarily applies to the attorney general’s certification determination under the Westfall Act. The attorney general’s determination will, in almost every instance, constitute a waiver of sovereign immunity, a determination which was delegated by Congress to the executive branch. There is nothing necessarily disturbing about Congress’s intention to make this type of determination unreviewable by the judiciary. A waiver of sovereign immunity by Congress is reviewed merely to determine that it is “unequivocal,” and we will construe the waiver “strictly in favor of the sovereign.” United States Dep’t of Energy v. Ohio, 503 U.S. 607, 615 , 112 S.Ct. 1627, 1633 , 118 L.Ed.2d 255 (1992). The sole function of such a review is to make certain that Congress in fact intended to waive sovereign immunity, not that it was proper or well advised. Accordingly, the normal presumption in favor of reviewability should *336 not necessarily apply to the attorney general, who, in exercising his delegated authority, decides to waive sovereign immunity.

The Court’s opinion in Lamagno , however, identifies an instance where the attorney general’s determination may be made in circumstances at least arguably constituting a conflict of interest. 50 In other words, there may be instances where the scope certification under the Westfall Act will effectively not constitute a waiver of sovereign immunity because it results in the case being dismissed. 51 This anomalous situation should not, however, cause us to reject the controlling effect of unambiguous language in the statute. ‘Where the language of a statute is clear and unambiguous, courts should not undertake to add or to detract from its provisions. Any such revision should be effected by legislative, not juridical powers.” Birdwell v. Skeen, 983 F.2d 1332, 1338 (5th Cir.1993).

As discussed above, I believe that the statute’s unambiguous language, as well as its relevant legislative history, strongly suggest that Congress intended the attorney general’s scope certification to be unreviewable. This conclusion also dictates my understanding as to why Congress could safely mandate exclusive jurisdiction in the federal courts under § 1346(b) upon certification. 28 U.S.C. § 2679 (d)(4). The question of certification in this case is a mere prelude to the issue of jurisdiction, assuming that certification is not reviewable. It is clear that § 2679(d)(4) takes its cue from the previous three sections. Each presupposes that the United States is the proper defendant under the FTCA (not state law) and that jurisdiction would be exclusive under § 1346(d). Conversely, § 2679(d)(3) addresses the situation before us where there is no federal jurisdiction because the employee was found not to have been within the scope of his employment, requiring remand to the state court. In other words, the arguments supporting non-reviewability of the attorney general’s scope certification necessarily supports exclusive jurisdiction under § 1346(b).

I believe that today’s result, which indeed raises “grave” Article III concerns, supports this reading of the statute in favor of unre-viewability. Once the scope certification is rejected, there can be no federal jurisdiction based on the substitution of the United States as party defendant. In this case there is also no jurisdiction based on diversity of citizenship. What then constitutes the basis for federal jurisdiction in this case? As stated above, I am not as comfortable as the majority to conclude that federal jurisdiction may properly rest on the fact that there is an “initial colorable federal question” at the time of removal. The Supreme Court has not yet fully addressed the implications of adopting a reading in favor of reviewability of the scope certification in light of these Article III concerns. I therefore respectfully urge the Court to revisit the issue of reviewability in light of the statute’s clear language, relevant legislative history, and today’s troubling result.

. “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitu *328 tion, the Laws of the United States, and Treaties made, or which shall be made, under their Authority....” U.S. Const., Art. Ill, §2, cl. 1.

. Section 2679(d)(1) provides in full that:

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 United States district court shall be deemed an action 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.

28 U.S.C. § 2679 (d)(1) (emphasis added).

. Section 2679(d)(2) provides in full that:

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 a 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 action 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).

.Section 2679(d)(3) provides in full that:

In the event that the Attorney General has refused to certify scope of office or employment *329 under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action or proceeding shall be deemed to be an action 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 parly defendant. A copy of the petition shall be served upon the United States in accordance with the provisions of Rule 4(d)(4) of the Federal Rules of Civil Procedure. In the event the petition is filed in a civil action or proceeding pending in a State court, the action or proceeding may be removed without bond by the Attorney General to the district court of the United States for the district and division embracing the place in which it is pending. If, in considering the petition, the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court.

28 U.S.C. § 2679 (d)(3) (emphasis added).

.Section 2679(d)(4) provides in full that:

Upon certification, any action or proceeding subject to paragraph (1), (2), or (3) shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions.

28 U.S.C. § 2679 (d)(4).

. Section 2679(d)(5) provides in full that:

Whenever an action or proceeding in which the United States is substituted as the party defendant under this subsection is dismissed for failure first to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented under section 2401(b) of this title if — (A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and (B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.

28 U.S.C. § 2679 (d)(5).

. See supra notes 2 & 5.

. 28 U.S.C. § 2679 (d)(1) (emphasis added).

. Id. § 2679(d)(4) (emphasis added).

. 28 U.S.C. § 2679 (d)(1). See supra note 2.

. 28 U.S.C. § 2679 (d)(2). See supra note 3.

. 28 U.S.C. § 2679 (d)(1). See supra note 2.

. 28 U.S.C. § 2679 (d)(2) (requiring suits commenced in state courts "be removed without bond at any time before trial by the Attorney General to the district court of the United States"). See supra note 3.

. 28 U.S.C. § 2679 (d)(2). See supra note 3.

. For example, the Second Circuit suggested that the mandatory removal language in § 2679(d)(2) demonstrated that: "Had Congress intended to render the certification conclusive for purposes other than removal, it knew how to do so." McHugh v. University of Vermont, 966 F.2d 67, 72 (2d Cir.1992).

. 28 U.S.C. § 2679 (d)(1) (emphasis added). See supra note 2.

. See supra note 3.

. See supra note 4.

. Congress would not explicitly provide in § 2679(d)(3) for district court review of the attorney general's failure to certify if it believed that federal district court review of the attorney general’s determination of scope would be assumed, if not explicitly stated.

. See Legislation to Amend the Federal Tort Claims Act: Hearing on H.R. 4358, H.R. 3872, and H.R. 3083 Before the Subcomm. on Admin. Law and Governmental Relations of the House Comm, on the Judiciary, 100th Cong., 2d Sess. (1988) [hereinafterHearings].

. The Second, Third, Sixth, Seventh, Ninth, and Eleventh Circuits relied upon the same hearings in determining whether or not the attorney general's certification is reviewable. See McHugh v. University of Vt., 966 F.2d 67 (2d Cir.1992); Melo v. Hafer, 912 F.2d 628 (3d Cir.1990), aff'd, 502 U.S. 21 , 112 S.Ct. 358 , 116 L.Ed.2d 301 (1991); Arbour v. Jenkins, 903 F.2d 416 (6th Cir.1990); Hamrick v. Franklin, 931 F.2d 1209 (7th Cir.), cert. denied, 502 U.S. 869 , 112 S.Ct. 200 , 116 L.Ed.2d 159 (1991); Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740 (9th Cir.1991); S.J. & W. Ranch, Inc. v. Jiehtinen, 913 F.2d 1538 (11th Cir.1990), cert. denied, 502 U.S. 813 , 112 S.Ct. 62 , 116 L.Ed.2d37(1991).

. The section of H.R. 4358 that contained proposed revisions to § 2679(d) read:

Section 2679(d) of title 28, United States Code, is amended to read as follows:

(d)(1) 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 heretofore or hereafter commenced upon such claim in a United States district court shall be deemed an action 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.

12) 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 wherein it is pending. Such action shall be deemed an action 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 for purposes of removal.

(3) Upon certification, any actions subject to paragraph (1) or (2) shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions.

(4) Whenever an action in which the United States is substituted as the party defendant under this subsection is dismissed for failure to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented under section 2401(b) of this title if (A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and (B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.

H.R. 4358, 100th Cong., 2d Sess. § 6 (1988).

.H.R. 4612 was the bill that ultimately amended § 2679(d). See infra note 35.

. See, e.g., Melo, 912 F.2d at 642 ; Arbour, 903 F.2d at 421 ; Hamrick, 931 F.2d at 1209 ; Meridian Int’l Logistics, Inc., 939 F.2d at 744 ; Lehtinen, 913 F.2d at 1541 .

. See H.R. 4358, supra note 22.

. See supra note 4.

. To the extent that Willmore’s testimony indicates that he believed that the certification could be contested, Willmore’s belief was also premised on the erroneous assumption, held by Representative Frank, that plaintiffs could bring a special challenge to the scope determination. See Hearings, supra note 20, at 128 (testimony of Robert Willmore).

. Hearings, supra note 20, at 177 (statement of Lois Williams) (emphasis added).

. Id. at 184 (statement of Lois Williams) (emphasis added).

. Compare 28 U.S.C. § 2679 (d) (1982) (amended 1988), infra note 31, with 28 U.S.C. § 2679 (d) (1988), supra notes 2-6.

. Before the 1988 amendments, the entire text of § 2679(d) read as follows:

Upon certification by the Attorney General that the defendant employee was acting within the scope of his employment at the time of the incident out of which the suit arose, any such civil action or proceeding commenced 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 wherein it is pending and the proceedings deemed a tort action brought against the United States under the provisions of this title and all references thereto. Should a United States district court determine on a hearing on a motion to remand held before a trial on the merits that the case so removed is one in which a remedy by suit within the meaning of subsection (b) of this section [the subsection that makes a suit against the United States the exclusive remedy for a tort committed by a governmental employee within the scope of his employment] is not available against the United States, the case shall be remanded to the State court.

28 U.S.C. § 2679 (d) (1982) (amended 1988) (emphasis added).

. See id.

. See id.

. See id.

. After the hearings on H.R. 4358, the bill was amended and retitled H.R. 4612. H.R.Rep. No. 700, 100th Cong., 2d Sess. 9 (1988), reprinted in 1988 U.S.C.C.A.N. 5945. The amended bill retained all of the substantive changes to § 2679(d) proposed in H.R. 4358 but included a new and significantly different subsection that would become the current § 2679(d)(3). Congress passed the amended bill, H.R. 4612, and 28 U.S.C. § 2679 (d) was revised accordingly.

. H.R. 4612, 100th Cong., 2d Sess. (1988).

. Id. at § 6. See also 28 U.S.C. § 2679 (d)(1), supra note 2.

. H.R. 4612 at § 6; 28 U.S.C. § 2679 (d)(2), supra note 3.

. H.R. 4612 at § 6; 28 U.S.C. § 2679 (d)(3), supra note 4.

. See 28 U.S.C. § 2679 (d)(4), supra note 5.

. Compare 28 U.S.C. § 2679 (d) (1982), supra note 31, with 28 U.S.C. § 2679 (d) (1988), supra notes 2-6.

. See 28 U.S.C. § 2679 (d)(3), supra note 4.

. See id.

. “If, in considering the petition, the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court.” See id.

. See § 2679(d) (1982) (amended 1988), supra note 31.

. Compare 28 U.S.C. § 2679 (d) (1982) (amended 1988), supra note 31, with 28 U.S.C. § 2679 (d) (1988), supra notes 2-6.

. H.R.Rep. No. 100-700, 100th Cong., 2d Sess. 1, 9 (1988), reprinted in 1988 U.S.C.C.A.N. pp. 5945, 5952 [hereinafter Committee Report ] (emphasis added).

. Westfall v. Erwin, 484 U.S. 292 , 108 S.Ct. 580 , 98 L.Ed.2d 619 (1988).

. See, e.g., Committee Report, supra note 47, at 2 ("H.R. 4612 would provide immunity for Federal employees from personal liability for common law torts committed within the scope of their employment.”). Later in the report, the following statement appears:

Currently, in most cases, the federal government defends federal workers who are sued for common law torts committed within the scope of their employment. With such suits against federal workers foreclosed by the bill, there could be an increase in suits under the FTCA against the U.S. government. Nevertheless, we expect that total costs to the federal government would decline, because FTCA defenses usually cost less than personal liability defenses, and FTCA cases are almost always easier to settle than personal liability cases_ In addition, the immunity provided by H.R. 4612 could have a positive effect on worker performance and productivity to the extent that workers would not be worried about potential lawsuits.

Id. at 11.

. See Lamagno, - U.S. at -, 115 S.Ct. at 2237 (stating that the attorney general's "conflict of interest is apparent” where the certification would result in dismissal) (plurality opinion); id. at -, 115 S.Ct. at 2238 (agreeing with the principle that prohibits anyone "to be a judge in his own cause”) (internal quotation marks omitted) (O'Connor, J., concurring in part); but see id. at - & n. 5, 115 S.Ct. at 2242-43 & n. 5 (questioning whether this situation presents a genuine conflict of interest).

. See id. at -, 115 S.Ct. at 2230; 28 U.S.C. § 2680 (k) (exception to FTCA's waiver of the United States’ sovereign immunity for "[a]ny claim arising in a foreign country”).