dissenting:
I respectfully dissent.
I
My strongest disagreement with the majority opinion is with its holding that the Attorney General’s certification of scope of employment for purposes of substituting the United States as the defendant is conclusive, and thus defies judicial review. My view is influenced to a degree by concessions by the Department of Justice on behalf of Admiral Carter that the certification is subject to review by United States district courts. I also find precedent from seven United States courts of appeal to that same effect persuasive.1 Even apart from this overwhelming precedential support, I cannot conclude from an objective analysis that Congress, when enacting 28 U.S.C. § 2679(d)(2), intended to interfere with the judiciary’s prerogative to decide questions of jurisdiction. To me, it is disturbing that the majority opinion denies to courts the authority to review decisions of the executive branch’s legal office — particularly where, as here, its decisions determine litigation in which it is an interested *1325party. Quite apart from possible constitutional problems of separation of powers and due process, which, in my opinion, the majority has too quickly dismissed, all of the traditional interpretive tools point to the conclusion that Congress intended in 28 U.S.C. § 2679(d)(2) to avoid this unsavory appearance of unfairness by subjecting the Attorney General's certification to judicial review.
A
In the first place, the the unambiguous language of the statute should dispose of the question. Section 2679(d)(1) applies to cases filed in federal district courts, while section (d)(2) applies to those filed in state courts. Both sections provide: “Upon certification ... the United States shall be substituted as the party defendant” (emphasis added). In addition, section (d)(2) provides: “Upon certification ... [the claim] shall be removed ... to the district court” (emphasis added). Thus, in federal cases the result of certification is substitution, while in state cases it is substitution plus removal. Notably, the only mention of nonreviewability pertains to removal: “The certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.” 28 U.S.C. § 2679(d)(2) (emphasis added). Clearly, then, only certification for purposes of removal is nonreviewable; certification for purposes of substitution remains subject to judicial review.
There are only two ways to view the majority’s reading of this language. One interpretation is that they have added words to the sentence to make it read: “The certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal and for purposes of substitution.” Alternatively, they have interpreted “shall” in “shall be substituted” and “shall be removed” as meaning “nonreviewable,” thereby rendering the last sentence of (d)(2) superfluous and meaningless.
B
It is apparent from the unambiguous language of the statute that the majority’s interpretation is wrong. Even if the language were equivocal, however, and an examination of legislative history and congressional intent were required, my conclusion would be the same. Congressional rationale in differentiating between the effect of certification as it relates to removal, on the one hand, and its effect on substitution, on the other, was pointed out by the Eighth Circuit in Brown v. Armstrong, 949 F.2d 1007 (8th Cir.1991). The court noted that substitution will often end the plaintiff’s case — as it will here. However, “[t]he same concerns do not exist with automatic removal, which changes only the forum and not the substance of the case.” Id. at 1011. The Third Circuit has explained the significant policy reasons for Congress to give the government an unchallenged right to a federal forum for tort suits brought against its employees (removal), while noting that no similar policy reasons exist for making the Attorney General’s substitution decision unreviewable.
Historically, the government has generally preferred to have litigation which it or its employees are defending in the neutral confines of federal courts. For example, a similarly “absolute” right of removal is provided by 28 U.S.C. § 1442(a)(1) whenever a suit against a United States officer is filed in a state court for any act “under color of [federal] office” because, as the Supreme Court has explained, “Congress has decided that federal officers, and indeed the Federal Government itself, require the protection of a federal forum.” Melo v. Hafer, 912 F.2d 628, 641 (3d Cir.1990) (quoting Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 1816, 23 L.Ed.2d 396 (1969)), aff'd on other grounds, — U.S. -, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).
This reasoning, and other rationale supporting a holding that certification is conclusive for purposes of removal but judicially reviewable for purposes of substitution, are not novel. It has been the position of the Department of Justice at least *1326since early 1990,2 and represents the opinion of seven of the nine federal courts of appeals entertaining the issue. Perhaps the most comprehensive discussion is found in the Eleventh Circuit’s 1990 decision in S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1540-42 (11th Cir.1990), modified, 924 F.2d 1555 (11th Cir.), cert. denied, — U.S. -, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991). Lehtinen exhaustively expresses the rationale of the majority of other circuits:
Our review of this [legislative history of § 2679(d)(2)] persuades us that the district court’s interpretation was in error. During the hearings before the House Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary, Subcommittee Chair Frank, a sponsor of the bill, expressed his understanding that under section 2679(d)(2) a “plaintiff can still contest the certification....” See Arbour v. Jenkins, 903 F.2d 416, 421 (6th Cir.1990). Representative Frank elaborated:
I mean that [this bill] is not going to void the [certification] litigation. It seems to me the certification is a weapon against the employee, not against the plaintiff, because the plaintiff would still have the right to contest the certification if they thought the Attorney General were certifying without justification.
This understanding of the bill was reiterated in a colloquy with Lois Williams, Director of Litigation at the National Treasury Employees Union.
Frank: [Essentially the judge is deciding the case. One of the issues for the judge is going to be to decide [certification] ... because you might have a third route. It is conceivable — I cannot think of too many cases — where the plaintiff might not want the Government in there.
Williams: That is right.
Frank: So the plaintiff might object to the argument and the Government might certify. But that would not be binding on the plaintiff. The plaintiff would, I assume, have the right to go into court and say, baloney, it was not within the scope of employment, either because of some immunity issue or because you really hated that defendant and you wanted to get them.
Williams: Yes. In fact, that is the way it frequently has arisen in the past.
Representative Frank’s understanding that the certification issue would be subject to judicial review was shared not only by Williams, but also by a representative of the Justice Department, Deputy Assistant Attorney General Robert Will-more, as is evidenced by the following exchange:
Frank: Well, but the plaintiff can still contest the certification, could he not? Willmore: Yes.
See Arbour, 903 F.2d at 421. Later during the hearing, Willmore reiterated: “Chairman Frank is correct that a plaintiff can challenge that certification. So that would be reviewable by a court at some point, probably by a Federal District Court.” We agree. The legislative history of the certification provision of the Reform Act coupled with the language of the statute itself persuades us that the Attorney General’s scope certification is pertinent and dispositive only for removal purposes.
Our interpretation of the statute is supported by several additional considerations. First, separation of powers concerns .... As the First Circuit cogently noted, “it is hard to imagine Congress empowering an executive officer, the Attorney General of the United States, to displace the federal court as the final determiner of the scope of employment question, thus forcing a federal court to forego determination of its own jurisdiction, and preventing the plaintiff, by executive fiat, from pursuing a possibly legitimate claim in state court.” Nasuti *1327v. Scannell, 906 F.2d 802, 812 (1st Cir.1990).
Moreover, the statutory interpretation urged by defendant Lehtinen is particularly suspect because it leaves the determination of a dispositive issue in FTCA cases to an interested party.... We do not believe Congress intended to entrust the party responsible for providing the federal employee’s defense with the power to make a scope determination that will have the result of dismissing the plaintiffs suit for lack of jurisdiction. Nasuti, 906 F.2d at 812-13.
We are also cognizant of the due process implications inherent in treating the Attorney General’s scope certification as dispositive. We share the First Circuit’s observation that nothing in the regulations governing scope certifications requires the Attorney General “to conduct a neutral proceeding, open to all parties, before taking a final position on the scope question....”
Finally, whether an employee’s actions are within the scope of his employment for purposes of the Reform Act is an issue governed by the law of the state where the incident occurred. Nasuti, 906 F.2d at 805 n. 3; Arbour, 903 F.2d at 421-22. Because this determination involves a question of law as well as fact, it is reasonable to assume that Congress entrusted the authoritative disposition of this question to the judicial rather than the executive branch.
Lehtinen, 913 F.2d at 1541-42 (some citations omitted) (emphasis added by Lehti-nen court).
As I have indicated, six circuits in addition to the Eleventh, employing similar rationales, have reached the same conclusion. The First Circuit in Nasuti added:
Even without that [legislative history of the Westfall Act], it is hard to imagine Congress empowering an executive officer, the Attorney General of the United States, to displace the federal court as the final determiner of the scope of employment question, thus forcing a federal court to forego determination of its own jurisdiction, and preventing the plaintiff, by executive fiat, from pursuing a possibly legitimate claim in state court. Especially is this unlikely given the Attorney General’s interested relationship to the case. It is his responsibility to represent and protect the interests of the United States and of the defendant employee, see 28 U.S.C. § 2679(c). There is no suggestion that the Attorney General is to conduct a neutral proceeding, open to all parties....
Nasuti v. Scannell, 906 F.2d 802, 812 (1st Cir.1990).
In short, my view is that the unambiguous language of section 2679(d)(2) provides that certification is conclusive for purposes of removal, but reviewable for purposes of substitution. Even if the language were ambiguous, however, I would reach the same result. Congressional intent and legislative history, as explained previously by other circuits and reiterated here, make that conclusion inescapable.
C
As I understand part III of the majority opinion, it would, quite apart from the above analysis, create a subset of cases (such as this one) concerning any high military officer “inquiring into a report to him concerning improper performance of duty.” Op. at 1321. Regardless of whether the executive or the judicial branch is the ultimate judge of the scope of employment question, holding Admiral Carter accountable would not, as the majority suggests, hamstring “one of the principal officers of the United States” in the performance of his duties. Op. at 1324. Carter could be held liable only .if he acted outside of the performance of his duties. Moreover, section 2679(d)(2) is not directed at preserving discipline in the military. It grants protection to all federal employees.3 There is no *1328difference in principle between applying the statute to the improper action of a four-star admiral and applying it to the improper action of a mid-level supervisor of postal employees.
The majority nonetheless expresses concern that permitting judicial review of this military officer’s civil tort might somehow affect national security. They go to some length to point out that Admiral Carter could direct movements of the Atlantic Fleet from his garden while dressed in civilian clothes and be well within the scope of his authority. They conclude that this case involves more than the mere construction of a federal statute and the Virginia law on scope of employment.
It has to do with the ability and obligation of one of the principal officers of the United States to perform his duty unhampered by having to answer for the same in a civil court. No one can seriously contend that Admiral Carter would not have the authority to order the movement of ships and aircraft from the same garden involved here (which is owned by the government) at the Norfolk Naval Base at any hour of the day or night, on any day of the week....
Op. at 1324.
We all fervently hope, of course, that if this country were to fall under surprise nuclear attack or suffer an invasion or other military crisis, the Admiral and all of our other military servants would respond from whatever geographical and physical positions they occupied at the time. In my view, however, this hardly equates with the situation in which an officer, enjoying one of the highest honors and offices that our nation can bestow, uses the prerogatives of his position to vindicate a personal peeve— as the district court concluded. Even viewing the case in a purely military context, as does the majority, I agree that it involves more than merely the construction of federal and state laws. It should demonstrate our most basic principle — that, even recognizing the rare exceptions implicit in critical national emergencies, the law operates on all citizens equally.
D
The majority draws an analogy between the actions of high-ranking military officials and the conduct of judges entertaining petitions for relief while at home or in other nonjudicial locations. I have no quarrel with the thesis that both judicial officers and military officers at times must respond to emergencies while in locations other than their official stations. I think, however, that this analogy misses the mark by a wide margin. None of us would suggest that a judge could summon a litigant on the streets or in a social hall and administer judicially because of some personal whim or caprice. Nor should a judge be immune from liability for sexual harassment, whether it occurs on or off judicial premises, or for unduly chastising a parking lot attendant or custodial employee. There should be no question that a judicial officer would be denied immunity from suit over such nonjudicial derelictions.4 For the same reasons, a military officer should be denied immunity from civil action by a civilian policeman who sues over tortious conduct by the officer, brought on by an allegation from the officer’s wife that the policeman was rude. Although the treatment afforded Officer Johnson was considerably short of a flogging, it was unbecoming to an officer of Admiral Carter’s high rank and, to say the least, was not in the Navy tradition of noblesse oblige.
E
It may be that an authoritative and elitist rule completely immunizing high-ranking military officials for any and all tortious conduct toward subordinates would create *1329a better and more disciplined military. A more egalitarian approach to military discipline in a democratic country is at least equally tenable. Despite the temptation to engage in tangential, philosophical concerns, however, the legal issue we review is not about the military. Nor is it about libel, or whether Mrs. Carter or Officer Johnson is lying. The issue we review is about a federal law enacted to protect the efficiency of federal employees’ performances.
Focused in this fashion, I view the implications of our decision in a perspective different from the majority’s. Even aside from possible constitutional concerns, it is hard for me to fathom that Congress would grant the executive branch the authority to protect from liability under any and all circumstances officials, military or otherwise, who have violated our civil laws. I believe Congress intended that a principal officer of the United States, no matter how high his position, must, in fact, be “hampered” by having to answer for civil transgressions in civil court if he acts outside the scope of his authority, and that the jurisdiction to decide the ultimate question of authority rests with the judiciary.
II
Although review of the Attorney General's certification on substitution is necessary only if certification is reviewable, the majority nonetheless engages in that analysis in part IV of its opinion. Like its holding on the reviewability question, I believe the majority’s conclusion that Admiral Carter’s actions fell within the scope of his employment is also faulty.
The district court held that Admiral Carter acted outside the scope of his military employment when the incident at issue occurred. The majority correctly notes that in FTCA cases the determination whether an employee’s actions are within the scope of employment is to be made under the law of the state in which the tort occurred — in this case, Virginia. Contrary to the majority, however, I think application of Virginia law to the facts here requires affirmance of the district court’s holding that Carter acted outside the scope of his employment. We, of course, consider de novo the district court’s application of the Virginia law. Although the record presents us with significant factual disputes, we must affirm the district court’s factual findings unless they are clearly erroneous.
Only three people witnessed the traffic encounter: Officer Johnson, the plaintiff; Carole Carter, the Admiral’s wife; and Jan-een Carter, the Admiral’s daughter. The two women’s story differed critically from Johnson’s. Admiral Carter, perhaps understandably, chose the version offered by his wife and daughter without investigating or inquiring into the possibility that Johnson was correct. Mrs. Carter stated that her daughter was traveling 23 miles per hour; Johnson clocked her at 40 miles per hour. Mrs. Carter said that Johnson was rude and discourteous; he stated that he was professional and courteous. They also differed in their accounts of the actual words that passed between them.
Relevant is the discrepancy between the view of Admiral Carter concerning his encounter with Johnson at his home and the version offered by independent witnesses. Carter testified in his deposition that he did not send for Johnson but merely for his superiors, and that he did not address Johnson initially but spoke to him only after he was identified. Major Maynard wrote that when he, Navy Lt. Irene Glass (the Naval Station command duty officer), and Johnson reported to Carter, the Admiral
stated that the speeding ... was really not his concern at that moment. He was really concerned about the way the officer treated his daughter. He then stated that when his daughter showed officer Johnson his placard with the stars on it, officer Johnson stated that those stars don’t give you the right to speed or break any other laws on this base. He then continued by stating that when his wife came back and was getting out of her vehicle, officer Johnson yelled at her to get back in her vehicle. He then asked officer Johnson if that was not true? Officer Johnson said “no sir”. Admiral Carter then called officer John*1330son a liar.... He then stated that he had a lot of people working for him including Jimmy Pappas [the base commander], and that he was going to have the whole incident investigated.
Admiral Carter also insisted in his deposition that he was not really angry but only agitated, whereas Lt. Glass testified that the Admiral told Major Maynard “he could have him fired, be replaced.” She then testified that Carter did not ask Johnson if he had been rude to his wife or daughter (as the Admiral testified in deposition); rather, he told Johnson he had been rude: “I recall generally [Carter] telling [Johnson] that he was disrespectful, or rude to [Mrs. Carter]. He didn’t ask him.” Lt. Glass also testified that Admiral Carter told Johnson he was not doing his job and said, in effect, that Johnson had treated his wife and daughter like common criminals. Finally, she testified that Admiral Carter “appeared upset” and that she could tell this from “[t]he tenor of his voice, his posture_ He was using controlled anger.”
In my view, these facts, which the district court interpreted by crediting Johnson’s version, are critical to our review. To invoke Virginia’s law of respondeat superior, the employee’s act must be fairly and naturally incident to the employer’s business, be done while the employee was engaged in the employer’s business, and be done with a view to further the employer's interests. Roughton Pontiac Corp. v. Alston, 236 Va. 152, 372 S.E.2d 147, 149 (1988); United Bhd. of Carpenters v. Humphreys, 203 Va. 781, 127 S.E.2d 98, 102 (1962), cert. denied, 371 U.S. 954, 83 S.Ct. 509, 9 L.Ed.2d 501 (1963). Scope of employment is determined from the surrounding circumstances, including character of the employment, nature of the wrongful deed, time and place of its commission, and the purpose of the act. See, e.g., Abernathy v. Romaczyk, 202 Va. 328, 117 S.E.2d 88, 92 (1960) (declaring scuffle an independent venture to gratify personal feelings); Bryant v. Bare, 192 Va. 238, 64 S.E.2d 741, 747 (1951) (holding within scope an accident occurring when employee had, after earlier detour, proceeded on highway as instructed); Appalachian Power Co. v. Robertson, 142 Va. 454, 129 S.E. 224, 227-28 (1925) (holding outside scope a courtesy performed for third person during meal hour off work premises); Drake v. Norfolk Steam Laundry Corp., 135 Va. 354, 116 S.E. 668, 670 (1923) (holding within scope an employee’s going out of way for own purposes on an errand that began and was to end in service of employer).
Carter cites naval regulations detailing the duties of naval commanders — in particular, the Commander-in-Chief of the United States Atlantic Fleet.5 Specifically, Carter argues that general supervision of base security forces, including the supervision of motor vehicle traffic, is among his responsibilities.6
Johnson also relies on naval regulations to support his contrary contention — that Carter acted outside the scope of his employment. He particularly stresses Navy regulation 721.18, which prohibits a military officer from participating in any action that has the appearance of a conflict of interest.7 Johnson also cites regulations that prohibit tyrannical behavior and abusive language in dealings with subordinates,8 and proscribe the use of insulting *1331or defamatory language in general.9 Johnson contends that when Carter violated these regulations, he did so “upon his own responsibility.” 10
In my view, consideration of the cited naval regulations alone presents a close question whether Carter’s actions were incident to his employer’s business. Assuming, however, that the regulations cited by Carter vested him with authority, and that it was not vitiated by the conflict-of-interest regulations, there remains- the question under Virginia law whether he acted with the purpose of fulfilling these responsibilities as a naval commander, or for personal reasons. In this context, Carter argues that a mixed personal/official motive would show that his actions fell within the scope of his employment, pursuant to a “dual purpose doctrine.” Although Carter cites Kensington Associates v. West, 234 Va. 430, 362 S.E.2d 900 (1987), for this proposition, Kensington does not create such a doctrine.
In Kensington, the Virginia Supreme Court found that conduct prohibited by an employer may be activity outside the scope of employment. Id., 362 S.E.2d at 903-04. At issue was the act of a security guard, who, engaging in horseplay, accidentally shot a construction worker in the foot. The shooting occurred when the guard, standing outside the construction employees’ recreation room, tried to remove a gun from his holster to scare and have “fun” with a different construction worker. The guard’s employer had given him specific instructions not to “bother” the construction workers. The court found that neither the horseplay nor the resulting shooting was done in furtherance of the employer’s interests. Rather, they occurred when the guard “embarked upon an independent venture to satisfy his own personal desire to have ‘fun’ and ‘play’ around.” Id. at 903; see also Abernathy v. Romaczyk, 202 Va. 328, 117 S.E.2d 88, 92 (1960) (holding that employee’s argument and scuffle with plaintiff were “an independent venture of his own, and the relation of master and servant was for the time suspended”). These eases hardly support the creation of a “dual purpose doctrine.”
I would not, therefore, disturb the district court’s finding that Admiral Carter acted outside the scope of his employment. The alleged incident occurred in Carter’s garden where, dressed in casual civilian clothing, he was engaged in a quintessential civilian activity. The court correctly determined that the single traffic incident, even against a backdrop of general complaints, did not pose a grave and immediate problem. Resolution of the issue could easily have been postponed until the next day — a normal working day, during which the Admiral could have determined the facts in his office under normal military procedure and perhaps could have done so dispassionately. It is significant to me, and apparently was also to the district court, that Carter had received previous complaints about the discourtesy of the base’s security officers but waited until the Sunday incident involving his wife and daughter to take action. These circumstances suggest personal and familial concerns, not a concern for furthering the military’s interests.
Ill
In sum, I believe the district court acted according to statutory jurisdiction when it reviewed the Attorney General’s certification for purposes of substitution, and it correctly determined that Admiral Carter acted outside the scope of his authority.
It is important to remember that we are not faced with the question whether the commission of a tort can be within the scope of employment. Wallen v. Domm, 700 F.2d 124, 126 (4th Cir.1983) (per cu-riam), answered that question in the affirmative. We are faced, rather, with the question whether the commission of a tort *1332by a government employee is always within the scope of employment when the Attorney General certifies that it is. I believe it is not, and therefore dissent.
I am authorized to state that Chief Judge ERVIN, and Judges PHILLIPS and MURNAGHAN join in this dissent.. Brown v. Armstrong, 949 F.2d 1007, 1010-11 (8th Cir.1991); Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740, 743-45 (9th Cir.1991); Hamrick v. Franklin, 931 F.2d 1209, 1210-11 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 200, 116 L.Ed.2d 159 (1991); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1540-42 (11th Cir.1990), modified, 924 F.2d 1555 (11th Cir.), cert. denied, - U.S. -, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991); Melo v. Hafer, 912 F.2d 628, 640-42 (3d Cir.1990), aff'd on other grounds,U.S. -, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Nasuti v. Scannell, 906 F.2d 802, 812-13 (1st Cir.1990); Arbour v. Jenkins, 903 F.2d 416, 421 (6th Cir.1990).
Two circuits, which decided the question earliest (one before the Department of Justice acknowledged its current position), have held to the contrary. Mitchell v. Carlson, 896 F.2d 128, 136 (5th Cir.1990); Aviles v. Lutz, 887 F.2d 1046, 1048-49 (10th Cir.1989).
. See Petrousky v. United States, 728 F.Supp. 890, 891 (N.D.N.Y.1990) (discussing new Department of Justice guidelines).
. "Federal agency” includes the executive departments, the judicial and legislative branches, the military departments....
"Employee of the government” includes officers or employees of any federal agency, members of the military or naval forces of the
*1328United States, members of the National Guard while engaged in training or duty ..., and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.
28 U.S.C. § 2671.
. Regrettably, the majority opinion shadows this principle with doubt, since the Westfall Act applies to judicial (and executive and legislative) employees as well as military employees. 28 U.S.C. § 2671.
. 32 C.F.R. §§ 700.309(a), 700.602(a), 700.-602(d).
. OPNAVINST 5530.14B at ¶ 5.c; id. 11200.5C at ¶¶ 1 — 4.b(l), 4.3.a(3). OPNAVINST is the code of instructions promulgated by the Chief of Naval Operations.
. 32 C.F.R. § 721.18(b)(4) and (d) provide that a naval officer must ...
(b) [ajvoid any action, whether or not specifically prohibited, which might result in or reasonably be expected to create the appearance of
(4) [ljosing complete independence or impartiality,
(d) ... not engage in any activity that might result in or reasonably be expected to create the appearance of a conflict of interest.
.Navy regulations, article 0814 provides:
Persons in authority are forbidden to injure their subordinates by tyrannical or capricious conduct, or by abusive language.
. Uniform Code of Military Justice art. 133(a) (codified at 10 U.S.C. § 933); id. art. 133(c)(3).
. 32 C.F.R. § 700.702(b) provides:
A commanding officer who departs from his orders or instructions, or takes official action which is not in accordance with such orders or instructions, does so upon his own responsibility....