OSBORN v. HALEY et al.

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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 federal
employees absolute immunity from tort claims arising out of acts under
taken in the course of their official duties, 28 U. S. C. § 2679(b)(1), and
empowers the Attorney General to certify that a federal employee sued
for wrongful or negligent conduct “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 such certification, 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 com
menced in state court, the Westfall Act calls for its removal to a federal
district court, and renders the Attorney General’s certification “conclu
siv[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 discharge
were outside the scope of his employment. The United States Attor
ney, 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 alleged wrongdoing
never occurred. The District Court, relying on 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 order, holding that a Westfall Act
certification is not improper simply 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 com

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petence to adjudicate the case resides in the federal court, and that
court may not remand the suit to the state court. Pp. 237–245.
(a) The Sixth Circuit had jurisdiction to review the order rejecting
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 District
Court’s ruling, which effectively denied Haley Westfall Act protection,
qualifies as a reviewable final decision under 28 U. S. C. § 1291. Meet
ing 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 action, and the District
Court’s disposition would be effectively unreviewable later in the litiga
tion. 337 U. S., at 546. Pp. 238–239.
(b) The Sixth Circuit also had jurisdiction to review the District
Court’s remand order. Pp. 239–245.
(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) con
fines § 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 ac
tions 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 re
moved” 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 Gen
eral shall conclusively establish scope of office or employment for pur
poses of removal.” (Emphasis added.) This directive markedly differs
from Congress’ instruction for cases in which the Attorney General “re
fuse[s] to certify scope of office or employment.” § 2679(d)(3). In that
event, the defendant-employee may petition the court in which the ac
tion 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, remove the action to federal court. If
removal has occurred, and thereafter “the district court determines that

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the employee was not acting within the scope of his office or employ
ment, the action . . . shall be remanded to the State court.” Ibid. (em
phasis 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 At
torney 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 determines, postremoval,
that the Attorney General’s scope-of-employment certification was in
correct. For purposes of establishing a forum for adjudication, how
ever, § 2679(d)(2) renders the Attorney General’s certification disposi
tive. Were it open to a district court to remand a removed action on
the ground that the Attorney General’s certification was erroneous,
§ 2679(d)(2)’s final instruction would be weightless. Congress adopted
the “conclusiv[e] . . . for the purposes of removal” 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 en
sures 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
together with the later enacted § 2679(d)(2). Both § 1447(d) and
§ 2679(d)(2) are antishuttling provisions that aim 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. Once the
Attorney General certifies scope of employment, triggering removal of
the case to a federal forum, § 2679(d)(2) renders the federal court exclu
sively competent and categorically precludes a remand 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 disagreement with the Attorney
General’s scope-of-employment determination. Of the two antishut
tling commands, § 1447(d) and § 2679(d)(2), only one can prevail and the
Court holds that the latter controls. Tailor-made for Westfall Act
cases, § 2679(d)(2) “conclusively” determines that the action shall be ad
judicated in the federal forum, and may not be returned to the state
system. Pp. 239–244.
(2) The Westfall Act’s command that a district court retain juris
diction 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,

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after full consideration, the District Court determined that Haley en
gaged in tortious conduct outside the scope of his employment. Be
cause, 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 re
tain jurisdiction. Pp. 244–245.
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. 245–253.
(a) Because the Westfall Act’s purpose is to shield covered employ
ees not only from liability but from suit, it is appropriate to afford pro
tection to an employee on duty at the time and place of an “incident”
alleged in a complaint who denies that the incident occurred. Just as
the Government’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 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 Willingham v. Morgan, 395 U. S. 402,
which concerned 28 U. S. C. § 1442, the federal officer removal statute.
Section 1442 allows a federal 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. 247–251.
(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
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 certi
fication, the plaintiff has no right to a jury trial. The Westfall Act’s

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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 essential to certification.
Immunity-related issues should be decided at the earliest opportu
nity. See, e. g., Hunter v. Bryant, 502 U. S. 224, 228 (per curiam).
Pp. 251–253.
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., post, p. 253, and Breyer, J., post, p. 255,
filed opinions concurring in part and dissenting in part. Scalia, J., filed
a dissenting opinion, in which Thomas, J., joined, post, p. 262.
Eric Grant argued the cause for petitioner. With him on
the briefs was Andrea M. Miller.
Douglas Hallward-Driemeier argued the cause for re
spondents. With him on the brief for the federal respondent
were Solicitor General Clement, Assistant Attorney Gen
eral Keisler, Deputy Solicitor General Kneedler, Barbara L.
Herwig, and Mark W. Pennak. C. Thomas Miller, J. Dun
can Pitchford, and Richard C. Roberts filed a brief for
respondents Gaye Verdi, fka Gaye Luber, et al.*
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
*A brief of amici curiae urging reversal was filed for the State of
California et al. by Bill Lockyer, Attorney General of California, Manuel
Medeiros, State Solicitor General, and Marc A. Le Forestier, Deputy At
torney General, and by the Attorneys General for their respective States
as follows: Tom Miller of Iowa, Jim Hood of Mississippi, and Darrell V.
McGraw, Jr., of West Virginia.

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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 Gener
al’s certification, the employee is dismissed from the action,
and the United States is substituted 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 “conclu
siv[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 re
view. Today, we address three further questions regarding
the Westfall Act’s operation: (1) Is Attorney General certi
fication proper when a federal officer denies the occurrence
of the tortious conduct alleged by the plaintiff; (2) does
§ 2679(d)(2), by rendering the Attorney General’s certifica
tion “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 override § 2679(d)(2)’s direction
that, for purposes of removal, the Attorney General’s certifi
cation is conclusive. The first two questions were advanced
in the petition for certiorari; 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 be
fore the Court, sued federal employee Barry Haley in a Ken
tucky state court. She alleged that Haley tortiously inter
fered 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,

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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. Accepting
Osborn’s allegations as true, the District Court entered an
order that rejected the Attorney General’s Westfall Act cer
tification, denied the Government’s motion to substitute 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 instructed that court
to retain jurisdiction over the case.
We affirm the Court of Appeals’ judgment. On the mer
its, 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 At
torney 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 District Court determines
that the employee, in fact, and not simply as alleged by the
plaintiff, engaged in conduct beyond the scope of his employ
ment. On the jurisdictional issues, we hold that the At
torney General’s certification is conclusive for purposes of
removal, i. e., once certification and removal are effected, ex
clusive competence to adjudicate the case resides in the fed
eral 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

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shields from remand an action removed pursuant to the At
torney 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 ap
plied for a trainee position with the Forest Service. Re
spondent Barry Haley, a Forest Service officer, was responsi
ble for the Service’s hiring process. At a meeting with
LBLA employees, Haley announced that he had hired some
one 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 su
pervisor 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 Department
to investigate whether the Forest Service, in its hiring deci
sion, had given appropriate consideration to the veterans’
preference points to which she was entitled. The Depart
ment’s investigator, Robert Kuenzli, after interviewing
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, summoned Osborn and de
manded 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 in
terfered with her employment relationship with LBLA and
1 We draw this account of the facts from the District Court’s opinion and
order denying reconsideration, supplemented by the allegations in Os
born’s complaint.

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conspired to cause her wrongful discharge. Specifically, 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, id., at 7. In response the local United
States Attorney, invoking the Westfall Act, certified on be
half 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.”
Id., at 23. As is customary, the certification stated no rea
sons for the 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 ac
tion 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 de
fendant. This certification of the Attorney General
2 The certification read:
“I, Monica Wheatley, Acting United States Attorney, Western District
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 Appendix 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 infor
mation now available to me with respect to the allegations in the com
plaint, 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 complaint.” Luber App. 23.

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shall conclusively establish scope of office or employ
ment 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
United States District Court for the Western District of
Kentucky. The United States Attorney notified the District
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 im
munity. As support for her opposition, Osborn submitted
a memorandum of understanding between LBLA and the
Forest Service, which cautioned Forest Service employees
against involvement in LBLA employment 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 eviden
tiary 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 Haley, and Luber’s
demand for an apology justified an inference 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 cer
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 place
wherein it is pending.” § 1442(a), (a)(1).

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tification and denied substitution. Under this ruling, the
United States was no longer before the court. Further
more, the parties were not of diverse citizenship and no fed
eral law was at issue. The District Court therefore held
that it lacked subject-matter jurisdiction over the case.4 In
voking § 1447(c),5 the court concluded 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 Government
did contest Osborn’s factual allegations. Recalling that it
had denied Osborn’s allegations in its answer to her com
plaint, the United States submitted sworn declarations from
Haley and Luber. Haley’s stated that he was not in commu
nication with Luber between the time of Kuenzli’s investiga
tion and Osborn’s firing. Luber’s declaration stated that
Osborn’s request for an investigation regarding her veterans’
preference points could not have had any bearing on Os
born’s termination, for Luber was unaware of the request at
the relevant time. Absent contrary evidence, the Govern
ment maintained, these declarations sufficed to support the
certification and the continuance of the United States as de
fendant in place of Haley. In the alternative, the Govern
ment sought discovery.6
4 The District Court did not address the propriety of removal under
§ 1442. See infra, at 249, n. 13.
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 jurisdic
tion, the case shall be remanded. An order remanding the case may re
quire 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 declared, under oath,

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The District Court denied the Government’s reconsidera
tion 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 sug
gested, had the United States admitted a Haley-Luber com
munication but defended its content as within the scope of
Haley’s employment. Westfall Act certification was im
proper, the court concluded, because the United States did
not admit, but instead denied, the occurrence of the event
central to proof of Osborn’s claim. The District Court ac
knowledged disagreement among the Circuits on the avail
ability 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 Ver
mont, 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 certi
fication 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,
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.

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Kimbro, and Melo, held that a Westfall Act certification 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 incident, 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, substitution 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) (holding 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. 1126 (2006).
II
We consider first the Court of Appeals’ jurisdiction to re
view the District Court’s disposition of this case. We ad
dress in turn the questions whether the appellate court had
jurisdiction to review (1) the order rejecting the Attorney

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General’s certification and denying substitution of the United
States as defendant, and (2) the order remanding the case to
the state court.
A
The District Court’s rejection of certification and substitu
tion effectively denied Haley the protection afforded by the
Westfall Act, a measure designed to immunize covered fed
eral 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 collateral
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 decided a
contested issue, the issue decided is important and separate
from the merits of the action, and the District Court’s dispo
sition would be effectively unreviewable later in the litiga
tion. 337 U. S., at 546. See Mitchell v. Forsyth, 472 U. S.
511, 525–527 (1985) (holding that district court rejection of a
defendant’s qualified immunity plea is immediately appeal
able under the Cohen doctrine because suit immunity “is ef
fectively 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. Carlson, 896 F. 2d 128, 133 (1990),
retaining the federal employee 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 certifies
that the federal employee acted within the scope of [his]
employment, the plaintiff properly can proceed only
against the United States as defendant. The federal
employee remains immune from suit. By [rejecting the
Attorney General’s certification], the district court sub
7 Section 1291 provides that “[t]he courts of appeals . . . shall have juris
diction of appeals from all final decisions of the district courts.”

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ject[s] [the employee] to the burden of defending a
suit . . . , a burden from which [the Westfall Act spares
him].”
Tellingly, the Courts of Appeals are unanimous in holding
that orders denying Westfall Act certification and substitu
tion 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); Borne
man, 213 F. 3d, at 826 (CA4); Lyons v. Brown, 158 F. 3d 605,
607 (CA1 1998); Taboas v. Mlynczak, 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. Federal Home Loan Bank of San Fran
cisco, 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, notwith
standing 28 U. S. C. § 1447(d)’s declaration that “[a]n order
remanding a case to the State court from which it was re
moved is not reviewable on appeal or otherwise”? In an
swering this question, we also resolve the second question
presented in the petition for certiorari—whether the West
fall 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 substituted 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 ad
dress: § 1447(d). That provision states in relevant part: “An
order remanding a case to the State court from which it was

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removed is not reviewable on appeal or otherwise . . . .”
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 ex
plained, “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 review
able, observing that § 1447(c) could not sensibly be read to
confer on the district courts “carte blanche authority . . . to
revise the federal statutes governing 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 Tele
phone Co., 430 U. S. 723 (1977) (per curiam) (holding unre
viewable 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 deter
mine whether Thermtron controls, we must start with an
examination of the Westfall Act’s design, particularly its pre
scriptions regarding the removal and remand of actions filed
in state court.
As earlier noted, see supra, at 229–230, the Act grants the
Attorney General authority to certify that a federal em
ployee named defendant in a tort action was acting within
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 improvi
dently 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.”

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the scope of his or her employment at the time in question.
§ 2679(d)(1), (2). If the action is commenced in a federal
court, and the Attorney General certifies that the employee
“was acting within the scope of his office or employment 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 cer
tification, the action “shall be removed” to the appropriate
federal district court, and again the United States must be
substituted as the defendant. § 2679(d)(2). Of prime im
portance to our decision, § 2679(d)(2) concludes with the
command: “Th[e] certification of the Attorney General shall
conclusively establish scope of office or employment for
purposes of removal.” (Emphasis added.)
This directive markedly differs from Congress’ instruction
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 certi
fication. If the complaint was filed in a state court, the At
torney General may remove the case to the appropriate fed
eral court, but he is not obliged to do so. Ibid. If the court,
state or federal, issues the certification, “the United States
shall be substituted as the party defendant.” Ibid. If re
moval has occurred, and thereafter “the district court deter
mines 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 certifica
tion, and those in which he does not, leads us to conclude
that Congress gave district courts no authority to return
cases to state courts on the ground that the Attorney Gen
eral’s certification was unwarranted. Absent certification,
§ 2679(d)(3) directs that the case must be remanded to the

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state court in which the action commenced. In contrast,
when the Attorney General certifies scope of employment,
his certificate “conclusively establish[es] scope of office or
employment for purposes of removal.” § 2679(d)(2) (empha
sis 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 General’s scope-of-employment certification
was incorrect. For purposes of establishing a forum to adju
dicate the case, however, § 2679(d)(2) renders the Attorney
General’s certification dispositive.9
Were it open to a district court to remand a removed ac
tion 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 employment” for
either trial or removal. Instead, the Attorney 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 unambigu
ously 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 Attorney General, it may never be re
manded to the state system.”).
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 Congress’ 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).

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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 certified
Westfall Act cases from the typical case remanded for want
of subject-matter jurisdiction. Ordinarily, when the plain
tiff moves to remand a removed case for lack of subject
matter jurisdiction, the federal district court undertakes a
threshold inquiry; typically the court determines whether
complete diversity exists or whether the complaint raises a
federal question. In Attorney General certified Westfall
Act cases, however, no threshold determination is called for;
the Attorney General’s certificate forecloses any jurisdic
tional inquiry. By declaring the Attorney General’s certifi
cation “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.
Our decision that § 2679(d)(2) leaves the district court
without authority to send a certified case back to the state

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court scarcely means that whenever the district court mis
construes a jurisdictional statute, appellate review of the re
mand is in order. Such an exception would, of course, collide
head on with § 1447(d), and with our precedent. 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 “conclusive,” beyond
the ken of district courts to revise. See Thermtron, 423
U. S., at 351.
C
In Lamagno, the Court considered, but did not definitively
resolve, the question whether Article III permits “[t]reating
the Attorney General’s certification as conclusive for pur
poses of removal but not for purposes of substitution.” 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 outside the scope of
his employment, and if the tort plaintiff and the [defendant
employee] are not of diverse citizenship, . . . 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
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

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(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 remained after resolution of the
federal question, the District 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 character of removed case is eliminated
while the case is sub judice, court has discretion to retain
jurisdiction, to remand, 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 nu
cleus 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]onsidera
tions of judicial economy, convenience and fairness to liti
gants,” 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 prin
cipal question raised by petitioner Osborn: whether the
United States Attorney validly certified that Haley “was act
ing within the scope of his employment . . . at the 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 employment at the
time of the incident out of which the claim arose”). In

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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, correlatively, whether the
United States is properly substituted 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 234, the District Court
initially accepted Osborn’s allegations as true because it be
lieved that the United States did not dispute them. Apply
ing Kentucky law, that court determined that “Haley’s al
leged 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 occurrence of the harm
causing conduct Osborn alleged. In support of the motion,
the Government submitted affidavits 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 al
leged never happened.
The Government’s reconsideration motion asked the Dis
trict Court to resolve the factual dispute, i. e., to determine
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 re
quest for resolution of the factual dispute. Instead, it held
the Westfall Act certification invalid precisely because the
Government denied that Haley engaged in harm-causing
conduct.
Two Courts of Appeals have held that Westfall Act certi
fication is improper when the Government denies the occur
rence of the alleged injury-causing action or episode. See
Wood, 995 F. 2d, at 1123 (CA1); McHugh, 966 F. 2d, at 74–75

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(CA2). The Sixth Circuit, in this case, and several other
Courts of Appeals have held that a plaintiff ’s allegation of
conduct beyond the scope of a federal official’s employment
does not block certification where the Government 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 immunity,
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 formulation, we are
persuaded, encompasses an employee on duty at the time
and place of an “incident” alleged in a complaint 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 Government’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 complaint’s charge of conduct outside the scope
of employment, when contested, warrants immediate judicial
investigation. 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
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 “as
sume some kind of incident” in order to certify. Post, at 256 (opinion

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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 “neg
ligent . . . 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 intentional
tort 11 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 Heuton, 75 F. 3d, at 360 (“[I]t is illogical to assume
that Congress intended to protect guilty employees but de
sert innocent ones.”).12
Willingham v. Morgan, 395 U. S. 402 (1969), in which the
Court construed the federal officer removal statute, 28
concurring in part and dissenting in part). 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’ ap
praisal of Justice Breyer’s distinction between incident-denying and
incident-recharacterizing certifications: That approach would require dis
trict 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 Kim
bro 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 avail
able.” Post, at 261. He thinks this “is just as it should be.” Ibid. We
disagree. Congress did not, and sensibly should not, command that inno
cent 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).

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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 fed
eral 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 quotation 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 added).
We see 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. In Will
ingham, the federal officer’s “relationship to [the plaintiff]
derived solely from their official duties.” Ibid. Similarly
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 sepa
rate ground for reversing the District Court.

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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 truth of the plaintiff ’s allega
tions that they were “on a frolic of their own,” id., at 407
(internal quotation marks omitted), and had tortured plain
tiff “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 plain
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) (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 avail
able in fanciful situations like the one Justice Breyer hypothesizes, post,
at 256, in which the plaintiff ’s allegations are wholly unrelated to the de
fendant’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 certification—
even if the ranger’s “presen[ce] on Coney Island must have been . . . on a
frolic of his own.” Ibid. If Justice Breyer is imagining a case in which
the ranger was in fact on a frolic at Coney Island, but the Attorney Gen
eral 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, Jus
tice 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 require
ment similar to the one that limits removal under § 1442.

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Opinion of the Court
tiff filing a veterans’ preference inquiry.” Complaint ¶ 29,
Luber App. 7. Haley, like the defendant in Willingham,
may have been on a frolic of his own as Osborn alleged, and
therefore may not be entitled to immunity. But like the of
ficers 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 recog
nize, is a “who decides” concern. If the Westfall Act certifi
cation must be respected unless and until the District 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 in
stead 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 “that goes to the heart of
the merits, as well as to the validity of the certificate,” will
likely turn on the credibility of Osborn, Haley, and Luber,
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 plain
tiff 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 simultaneously 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 deciding the merits of the
claim. If a plaintiff charges a federal employee 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.

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252 OSBORN v. HALEY
Opinion of the Court
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 certifi
cation, the action is “deemed to be . . . brought against the
United States,” ibid., unless and until the district court de
termines that the federal officer originally named as defend
ant 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
The Westfall Act’s core purpose also bears on the appro
priate trier of any facts essential to certification. That pur
pose 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 238–239.
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 government is substi
tuted 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. Be
cause 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 Attorney
General declines to remove, the Seventh Amendment would not figure in
the case, for it is inapplicable to proceedings in state court. Minneapo
lis & St. Louis R. Co. v. Bombolis, 241 U. S. 211, 217 (1916).

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Opinion of Souter, J.
Immunity-related issues, the Court has several times in
structed, 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 ear
liest possible stage of litigation.”).18
* * *
For the reasons stated, the judgment of the United States
Court of Appeals for the Sixth Circuit is
Affirmed.
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 notwith
standing § 1447(d), the Court relies on its determination that
18 Justice Breyer suggests that, with respect to immunity defenses,
our “reading of the Westfall Act works a major change in th[e] [ordinary]
fact/law relationship.” Post, at 259. 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 West
fall Act cases than they traditionally have in other immunity contexts.
The Act makes that inevitable. When Westfall Act immunity is in dis
pute, 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.

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254 OSBORN v. HALEY
Opinion of Souter, J.
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.
633, 642 (2006) (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 employee’s) efforts to give the intended effect to the cer
tification prior to any remand that might be ordered.
I agree with the Court, therefore, that the Court of Ap
peals 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 substan
tive 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 sub
stituting the Government as defendant in costly litigation
arising out of the employee’s federal service.2 The circum
1 The exception to § 1447(d) created in Thermtron Products, Inc. v. Her
mansdorfer, 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 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. 633, 645, n. 13 (2006). A contrary rule would pre
clude appellate review not only of the remand order itself, but also of the
refusal to substitute the Government as defendant.

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Opinion of Breyer, J.
stances 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 pre
viously available 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 le
gitimacy of removal before any remand is effected, making
it very unlikely that a mistakenly premised remand order
will be carried out. If a district court resisted edification,
however, the remand order would be conclusive against ap
peal, in accord with § 1447(d). See Kircher, supra, at 642.
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 certifica
tion 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 pro
ceedings consistent with this understanding.
Justice Breyer, concurring in part and dissenting in
part.
I agree with the Court’s jurisdictional analysis and its dis
position 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 permits
the Attorney General to certify only when accepting, at least
conditionally, the existence of some kind of “incident.” 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).

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256 OSBORN v. HALEY
Opinion of Breyer, J.
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 235–236,
n. 6 (majority opinion). 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 em
ployment 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.
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 act
ing 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) deter
mines whether immunity attaches. By way of contrast, per
mitting purely incident-denying certifications, as the major
ity 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 fall

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257 Cite as: 549 U. S. 225 (2007)
Opinion of Breyer, J.
ing 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 consid
ered 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 con
duct was discretionary.
The Westfall Act basically seeks to overturn this holding.
As this Court has said, “[w]hen Congress wrote the Westfall
Act . . . , the legislators had one purpose firmly in mind
[namely] to override Westfall v. Erwin.” Gutierrez de Mar
tinez v. Lamagno, 515 U. S. 417, 425 (1995). The House Judi
ciary Committee wrote that the Act’s “functional 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 “of
fice 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 ex
tension 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 anomalies.
As the Court recognizes, its interpretation may limit the
plaintiff ’s ability to obtain jury consideration of factual mat
ters critical to his or her case. Indeed, any Government

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258 OSBORN v. HALEY
Opinion of Breyer, J.
employee defendant, including a defendant whom the Attor
ney 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 de
clines to address the effect of its analysis on § 2679(d)(3).
Ante, at 252, n. 17. But the relevant language in this provi
sion is virtually identical to the 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 certification 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 factfinding, but
upon the proper legal characterization of the facts as given.
Where the parties’ immunity-related disagreement 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 ordinar
ily entitle the defendant to special procedural treatment.
Rather, the defendant must take the facts as the plaintiff

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Opinion of Breyer, J.
asserts them. Like any other defendant, he can move for
summary 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 pro
cedural 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) (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 reading 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 determine the facts, i. e., to determine whether
the events plaintiff 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 be
tween him and the plaintiff, that at the relevant 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).

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260 OSBORN v. HALEY
Opinion of Breyer, J.
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 fed
eral officer’s right to remove a case to federal court (via
§ 1442(a)(1)). Id., at 403. Once there, the officer could pur
sue traditional immunity defenses, i. e., based on the facts as
alleged by the plaintiff or as they survived summary judg
ment; 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, 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 immu
nity defense” to the charges against them, removal was im
proper 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 prob
lem of clever pleading with which the majority is rightly con
cerned, ante, at 248. 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

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Opinion of Breyer, J.
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 (outside
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 on Coney Is
land, 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 respects
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 be
tween 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 de
fendant was “acting within the scope of his office or employ
ment,” including, when necessary, 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 al
leged incident that would bring the defendant’s actions
within the scope of his federal office or employment.

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262 OSBORN v. HALEY
Scalia, J., dissenting
The majority’s approach, absent some undefined constraint
that might be imposed in future cases, ante, at 250, n. 14,
would permit factfinding by a judge (and, where the Attor
ney 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 prop
erty, or personal injury or death,” for which the plaintiff
seeks recovery might have “aris[en] or result[ed] from the
negligent or wrongful act or omission of [the federal em
ployee] while acting within the scope of his office or employ
ment”—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 248, but only in the class of lawsuits 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.
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 venerable one, dating back
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.”

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Scalia, J., dissenting
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
remained 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 forth in
§ 1447(c)—namely, that “ ‘the case was removed improvi
dently and without jurisdiction.’ ” 2 423 U. S., at 342. That
result followed, the Court said, because subsections (c) and
(d) are “in pari materia” and “must be construed together.”
Id., at 345. Thus, the unlimited phrase “[a]n order remand
ing 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 Thermtron 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. All
state Ins. Co., 517 U. S. 706, 710–712 (1996) (reviewing a re
mand order predicated on abstention under Burford v. Sun
Oil Co., 319 U. S. 315 (1943)).3
2 Section 1447(c) has since been amended, specifying as grounds for man
datory remand that “the district court lacks subject matter jurisdiction.”
3 The Thermtron Products limitation upon the § 1447(d) bar to appellate
review does not affect this case. As the Court recognizes, ante, at 235,
the District Court was perfectly clear that its remand to state court was
based on its lack of jurisdiction.

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264 OSBORN v. HALEY
Scalia, J., dissenting
The next phase in § 1447(d)’s erosion came just last Term,
in Kircher v. Putnam Funds Trust, 547 U. S. 633 (2006).
There, as here, the District Court had remanded to state
court “on the ground that [it] lacked subject-matter jurisdic
tion on removal.” Id., at 638. That should have been the
end of the matter, but it was not. The Kircher majority
embarked on a searching inquiry into whether the District
Court’s real reason for remand was lack of jurisdiction. See
id., at 641–644. 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 re
manded cases by protracted litigation of jurisdictional is
sues.’ ” Id., at 650 (quoting Thermtron 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 basis
was correct . . . . Whether the District Court was right
or wrong—even if it was so badly mistaken that it mis
understood the true basis for its orders—it purported to
remand for lack of jurisdiction, and § 1447(d) bars any
further review.” Kircher, 547 U. S., at 649–650.
Today’s opinion goes even further than Kircher. Whereas
that case at least claimed to be applying our precedents, see,
e. g., id., at 641–642 (majority opinion) (citing Briscoe v. Bell,
432 U. S. 404, 413–414, n. 13 (1977)), today’s opinion makes
no such pretense. Having recognized, as it must, that the
District Court in this case invoked § 1447(c) and remanded
for lack of subject-matter jurisdiction, ante, at 235, the Court
nevertheless reaches the amazing conclusion that § 1447(d)
does not “contro[l]” whether the remand order is reviewable
on appeal, ante, at 244.
How can that be? How can a statute explicitly eliminat
ing appellate jurisdiction to review a remand order not “con
tro[l]” whether an appellate court has jurisdiction to review

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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 “conclusiv[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 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 unappealable.” Kircher, supra, at 642. See
also Thermtron Products, supra, at 343 (“If a trial judge
purports to remand a case on the ground that it was removed
‘improvidently and without jurisdiction,’ his order is not sub
ject to challenge in the court of appeals by appeal, by manda
mus, or otherwise” (quoting § 1447(c) (1970 ed.); emphasis
added); Briscoe, supra, at 414, n. 13 (where a remand order
is based on one of the grounds enumerated in § 1447(c), “re
view 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 proposi
tion, that a remand order can be set aside when it is contrary
to law, leaves nothing remaining of § 1447(d). Determina
tion 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
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 defend
ant would create an Article III problem. Unlike the Court, however,
I choose not to address the point in dicta. See ante, at 244 (noting that
“the question would arise only if ” certain events take place, yet answering
the question anyway).

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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 Con
gress is aware of the universality of th[e] practice of denying
appellate review of remand 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 641, 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 un
reviewable 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
254 (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 645–646, 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 re
manded the case for lack of jurisdiction. We found the dis
missal order to be reviewable on appeal, even though the
remand order was not. 293 U. S., at 143. But there is a

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crucial distinction between that case and this one: In Waco,
reversal of the dismissal would not have subverted the re
mand. 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 much as hint that the District Court might need to
reexamine 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 erro
neous, 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 re
mand order and the dismissal order were truly “separate or
ders,” id., at 142; we could review—even reverse—the dis
missal 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 fed
eral courts lacked jurisdiction. The District Court re
manded 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 forward in any
court, state or federal. 15 U. S. C. § 77p(b). We therefore
determined that neither the remand itself nor the determi
nation of SLUSA inapplicability was reviewable on appeal:
“The District Court’s remand order here cannot be disaggre
gated 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 646, n. 13. That is

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precisely the situation in this case: The remand here is predi
cated 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 substitute the
United States as a defendant, while at the same time recog
nizing (as § 1447(d) requires) that there is nothing 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 230, 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 Dis
trict Court’s decision on the preliminary matter—here,
Westfall Act certification; in Kircher, SLUSA applica
bility—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) ef
fectuated a tradeoff of sorts: Even though Congress undoubt
edly 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 remanded case to
endless rounds of forum disputes. “[B]y denying any form
of review of an order of remand,” “Congress . . . established
the policy of not permitting interruption 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

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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 entirety,
since that court, like this one, plainly lacked jurisdiction.