RHESA HAWKINS BARKSDALE, Circuit Judge:
On remand from our en banc court, 62 F.3d 126 (1995), under the Westfall Act we must first decide whether, under Texas law, a federal employee acted within the scope of his employment, as so certified by the Attorney General; and second, if the employee was not within the scope, resulting in his being reinstated as defendant, we must decide whether the action remains in federal court. Whether the action so remains involves not only the pertinent provisions of the Westfall Act, but also jurisdictional concerns under Article III of the Constitution. Holding that the agent was not within the scope and that the action must remain in district court, we REVERSE and REMAND.
I.
In early 1991, the Environmental Protection Agency dispatched one of its special agents from its Dallas office to Austin to assist for several days in a criminal investigation. While there, having had several drinks after 10:00 p.m., the agent was involved in an automobile accident with Robert Garcia.
Garcia brought this action in state court against the agent. But, pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100-694, 28 U.S.C. §§ 2671-80 (the Westfall Act), the Attorney General certified that the agent was acting within the scope of his employment at the time of the accident, resulting in substitution of the United States as defendant and removal to federal court, § 2679(d)(2). (As discussed infra, removal was also under, inter alia, 28 U.S.C. § 1442.)
The United States moved to dismiss for failure to exhaust administrative remedies, as required by the Federal Tort Claims Act, 28 U.S.C. § 2675(a). Garcia countered by seeking remand to state court, asserting that, at the time of the accident, the agent was not acting within the scope of his employment and, accordingly, was not entitled to FTCA protection. The district court held that it could review the certification; that federal, not state, law controlled the scope question; and that, under either, the agent was acting within the scope. As a result, the action was dismissed for failure to exhaust.
On appeal, 22 F.3d 609 (1994), this panel held that the certification was not subject to judicial review, based upon a statement to that effect in Mitchell v. Carlson, 896 F.2d 128, 131 (5th Cir.1990), and a subsequent unpublished opinion which, based on that statement, expressly so held. However, this panel recommended en banc review of this controlling precedent. 22 F.3d at 612.
Our en banc court agreed with the district court that certification is subject to judicial review, pursuant to the intervening holding to that effect in Gutierrez de Martinez v. Lamagno, — U.S. -, -, 115 S.Ct. 2227, 2236, 132 L.Ed.2d 375 (1995). 62 F.3d at 127. But, contrary to the district court, our court held that the scope issue is reviewed under state law. Id. at 128.
II.
We determine first whether, under Texas law, the EPA agent was acting within the scope of his employment. If he was not, he must be reinstated as defendant, and we must decide whether the action remains in federal court.
A.
We review the scope issue de novo. Williams v. United States, 71 F.3d 502, 505 (5th Cir.1995). Under Texas law, an employee is within the scope if acting (1) within the general authority given by the employer, (2) in furtherance of the employer’s business, and (3) for the accomplishment of the object for which employed. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354 (Tex.[321]*3211971). There is a presumption that an employee involved in an accident while driving the employer’s vehicle is within the scope. J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 636 (Tex.Ct.App.—San Antonio, 1993, reh’g denied). But, on the other hand, an employee involved in an accident while going to or returning from the place of employment is generally not within the scope. American Gen. Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374 (1957). An exception applies when the employee “undertakes a special mission at the direction of his employer, or performs a service in furtherance of his employer’s business with the express or implied approval of his employer”. Id., 303 S.W.2d 370.
The Government contends that, when the accident occurred, the agent was on a special mission because he was on assignment in Austin. “If found to be on a special mission, the employee will be considered to be in the course and scope of his employment from the time that the employee commences the special mission until its termination, absent any deviation therefrom for personal reasons.” Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d 354, 356 (Tex.Ct.App.—El Paso, 1993) (emphasis added). The deviation exception is consistent with the general rule that “when the servant turns aside, for however short a time, from the prosecution of the master’s work to engage in an affair wholly his own, he ceases to act for the master, and the responsibility for that which he does in pursuing his own business or pleasure is upon him alone”. Texas & Pac. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 241 (1952).
The factual scenario (provided by the agent’s deposition) follows. The agent drove a government-owned vehicle and was provided with a gasoline credit card and per diem for food and lodging; but, the EPA does not reimburse for alcoholic beverages. His work involves irregular, unscheduled hours; during an investigation, his work day is not over until his “head hits the pillow”. The agent could not “really say there was a time when [he] was through” with investigative activities on the day of the accident. On the other hand, there was “a point where you might have said or thought well, let’s call it a day, go get something to eat”. He did not know the time when he reached that point, “but it was late. It was late in the evening. 10:00.” Because the agent was still pursuing investigative activities, he stopped at a restaurant in close proximity; once there, he considered eating, but did not. Next, he stopped at a second restaurant and again did not eat, but had several drinks. It is common for him to not eat if his stomach “doesn’t feel right”. (Although he did not remember how many drinks he had, his blood alcohol level was at least .2 later that night.)
The agent drove from the restaurant to a pharmacy. When he arrived, he became very ill in the parking lot. He then drove away; but, he did not testify as to where he was going. In fact, he did not “recall even leaving the parking lot”; instead, “the first thing I really remember is the EMS attendant telling me ... let me take you to the hospital”. Concerning whether he remembered seeing Garcia’s ear prior to the collision, the agent only “remember[ed] stomping on the brakes and seeing lights”.
Noting that “the concept of ‘special mission’ has escaped full definition in Texas”, Chevron provides: “However, inherent in any applicable definition is the principle that an employee must be under the control of the employer or acting in furtherance of the employer’s business to be on any such ‘special mission’ ”, 847 S.W.2d at 356. Assuming arguendo that the agent’s entire stay in Austin was a special mission, we conclude that this exception would not apply at the time of the accident, because the agent was then engaged in a personal deviation. Id. He apparently had completed work for the day (at the very least, temporarily) and stopped for dinner; he did not eat, but instead consumed alcohol; he then drove to a pharmacy; and his destination when he drove away from the pharmacy and had the collision is unknown.
Therefore, the agent was not within the scope of employment at the time of the accident. As a result, the United States cannot be substituted as defendant; the agent must be reinstated in that capacity.
[322]*322B.
Accordingly, we address whether the action must be remanded to state court. This turns, in part, on whether district court retention of the action is outside the jurisdictional boundaries set by Article III of the Constitution. If remand is not required, we are faced also with whether it is discretionary.
The issue at hand turns on § 2679(d)(1) — (3) of the Westfall Act, particularly subparts (2) (Attorney General certifies scope) and (3) (Attorney General refuses to so certify):
(1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his ... employment at the time of the incident out of which the claim arose, any civil action ... commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the ... defendant.
(2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his ... employment at the time of the incident ..., any civil action ... commenced upon such claim in a State court shall be removed ... at any time before trial by the Attorney General to the district court of the United States_ Such action ... shall be deemed to be an action ... brought against the United States ..., and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of ... employment for purposes of removal.
(3) In the event that the Attorney General has refused to certify scope of ... employment under this section, the employee may at any time before trial petition the court to find and certify that, the employee was acting within the scope of his ... employment. Upon such certification by the court, such action ... shall be deemed to be an action ... brought against the United States ..., and the United States shall be substituted as the ... defendant_ In the event the petition is filed in a civil action ... pending in a State court, the action ... may be removed ... by the Attorney General to the district court_ If, in considering the petition, the district court determines that the employee was not acting within the scope of his ... employment, the action ... shall be remanded to the State court.
(Emphasis added.)
1.
Under subpart (d)(2), where, as here, an action is brought in state court against the federal employee and the Attorney General certifies scope, the action “shall be removed”, “the United States shall be substituted”, and the “certification ... shall conclusively establish scope ... for purposes of removal”; there is no whisper of remand. 28 U.S.C. § 2679(d)(2) (emphasis added). On the other hand, when the action is brought in state court and the Attorney General does not certify scope, but the court does so on request by the employee, subpart (d)(3) states that “the United States shall be substituted”, the action “may [not shall ] be removed” by the Attorney General, and “[i]f ... the district court determines that the employee was not acting within the scope ..., the action ... shall be remanded to the state court”. 28 U.S.C. § 2679(d)(3) (emphasis added).
In short, for an action filed in state court: (1) if the Attorney General certifies scope, subpart (d)(2) mandates removal to federal court, while, on the other hand, if the Attorney General does not so certify but the state court does, removal is discretionary; and (2) after removal, if the employee is not found within the scope, subpart (d)(3) expressly requires remand, but subpart (d)(2), which concerns an initial Attorney General certification, is silent on that point. These contrasts are most instructive.
Mitchell has dictum that subpart (d)(3) “does not give any indication that Congress left the court without the power to remand for lack of jurisdiction in cases in which the Attorney General has issued a certification” under subpart (d)(2). 896 F.2d at 131 n. 2 (emphasis in original). Besides this being [323]*323dictum, the earlier discussed indication in Mitchell that an Attorney General’s scope certification is not reviewable was rejected by Lamagno. Accordingly, we write on a clean slate.
Removal was not a factor in Lamagno; it was a diversity action filed in district court. At issue was reviewability vel non of the Attorney General’s certification. As discussed, upon such certification in state court, subpart (d)(2) gives three clear commands: the action “shall be removed”; “the United States shall be substituted”; and the certification “shall conclusively establish scope of ... employment for purposes of removal”. In holding certification reviewable (plurality opinion part III, — U.S. at -, 115 S.Ct. at 2236; that part was joined by Justice O’Connor, id. at -, 115 S.Ct. at 2237), the Court was faced with the third clear command: certification “shall conclusively establish scope ... for purposes of removal”. Therefore, as hereinafter discussed, it reasoned that this command was final, or non-reviewable, but that the “shall be substituted” command was not. It stated in part III:
Because the statute is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review and that mechanical judgments are not the kind federal courts are set up to render. Under our reading, the Attorney General’s certification that a federal employee was acting within the scope of his employment — a certification the executive official, in eases of the kind at issue, has a compelling interest to grant — does not conclusively establish as correct the substitution of the United States as defendant in place of the employee.
Id. at -, 115 S.Ct. at 2236.
Upon concluding that the “shall be substituted” command was reviewable, the plurality was left with the resulting finality, or nonreviewability, accorded the “shall conclusively establish scope ... for purposes of removal” command. Along that line, plurality opinion part IV (which Justice O’Connor did not join) responded to the assertion that, upon rejection of the certification, remand to state court would be precluded, resulting in an action remaining in district court without jurisdiction, where there was no alternative basis for it, such as diversity. Id. For this hypothetical, part IV reasoned that there would be no “grave” Article III problem as a result of the action so remaining because “there was a nonfrivolous federal question, certified by the ... Attorney [General], when the ease was removed to federal court”. Id. (emphasis in original).
The modifier “grave” was used similarly in Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989), which concerned the requirement that “[f]ederal officer removal under ... § 1442(a) must be predicated upon averment of a federal defense.” Id. at 139, 109 S.Ct. at 970. In rejecting “[t]he Government’s view, which would eliminate the federal defense requirement”, id. at 136, 109 S.Ct. at 968, the Mesa Court stated: “Adopting ... [that] view would eliminate the substantive Art. Ill foundation of § 1442(a)(1) and unnecessarily present grave constitutional problems.” Id. at 137, 109 S.Ct. at 969 (emphasis added). The obvious parallels between similar concerns for removal and remand under §§ 1442 and 1447 on the one hand and under the Westfall Act on the other are discussed infra.
As noted, Justice O’Connor joined all but part IV of the Lamagno plurality opinion. — U.S. at -, 115 S.Ct. at 2237-38. One reason given for not joining that part was because it “all but conclusively resolves a difficult question of federal jurisdiction” — the one presented here — that was not at issue in Lamagno. Id. at -, 115 S.Ct. at 2237. The dissent by Justice Souter, joined by the Chief Justice and Justices Sca-lia and Thomas, concluded that the Attorney General’s certification is not reviewable, thus avoiding the Article III issue addressed in part IV. Id. at -, 115 S.Ct. at 2238-43.
Critical, it seems, to Lamagno is the “sound general rule that Congress is deemed to avoid redundant drafting”. Id. at -, 115 S.Ct. at 2241 (Souter, J., dissenting) (citing Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 837, 108 S.Ct. [324]*3242182, 2189-90, 100 L.Ed.2d 836 (1988), and Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 196-97, 105 S.Ct. 658, 662-63, 83 L.Ed.2d 582 (1985)); see — U.S. at -, 115 S.Ct. at 2238 (O’Connor, J., concurring). Under this general rule “a statutory interpretation that would render an express provision redundant was probably unintended and should be rejected”. Id. at -, 115 S.Ct. at 2241 (Souter, J., dissenting).
For an action removed under subpart (d)(3) (state court, not Attorney General, certified scope), upon a federal court rejecting the certification, the last sentence in that subpart — that the action “shall be remanded” — would be rendered redundant if remand was already required. Restated, under this general rule of construction, the “shall be remanded” provision in subpart (d)(3) is necessary in order for remand to be required.
Therefore, because this same provision is not found in subpart (d)(2), remand is not required for the scenario covered by that subpart — Attorney General certification rejected after removal. This conclusion flows from, among other things, a rule of construction parallel to the redundancy rule. “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion”. Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111 S.Ct. 840, 846-47, 112 L.Ed.2d 919 (1991) (internal quotation marks omitted) (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983)). Congress, by requiring remand in subpart (d)(3), obviously knew how to require it for (d)(2); it did not do so. That silence is deafening for purposes of our analysis.
Moreover, we conclude that, in addition to remand not being required for sub-part (d)(2), it is not even permitted; the action must remain in district court. This reading is in harmony with removal being required under subpart (d)(2), when scope is certified by the Attorney General, but optional under subpart (d)(3), when it is not. It comports with Congress’ clear desire that, if the Attorney General certifies scope, the action is to be conducted in federal, not state, court, as reflected in the subpart (d)(2) “shall conclusively establish scope ... for purposes of removal” command.
This reading is consistent also with part IV of Lamagno, as well as with footnote 10 in part III, joined by Justice O’Connor. That note explained that “Congress likely omitted [a] provision ... [in subpart (d)(2) ] to authorize remands, because it had decided to foreclose needless shuttling of a case from one court to another — a decision evident also in the Westfall Act language making certification ‘eonclusiv[e] ... for purposes of removal’ ”. — U.S. at - n. 10, 115 S.Ct. at 2235-36 n. 10 (emphasis added). By retaining the action in federal court, Congress precluded the dilemma of it being sent back and forth between federal and state court if, later during the ease, the scope decision is changed based on additional evidence. Of course, the same situation could develop after a required subpart (d)(3) remand, where the Attorney General did not certify scope. But, to state the obvious, Congress elected to expressly require remand in that subpart; it did not do so in (d)(2). Under the (d)(2) scenario, scope was certified by the Attorney General. The (d)(2) “conclusively establish” command reflects, again, the considerable weight given by the Congress to that certification.
Finally, the Lamagno dissent seems also to be of the view that a federal court must retain the action if, as Lamagno held, the Attorney General’s certification is reviewable, and if it is rejected, because the dissent is concerned that an Article III jurisdiction problem arises in that situation. (As discussed supra, this is the point addressed in part IV of the Lamagno plurality opinion.) Needless to say, this problem would arise only if the action is not remanded to the state court. Furthermore, the dissent notes that
[t]he Court recognizes that there is nothing equivocal about the Act’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 he remanded to the state system: “certification of the Attorney General shall eonclu-[325]*325sively establish scope of office or employment for purposes of removal,” 28 U.S.C. § 2679(d)(2).
Id. at -, 115 S.Ct. at 2239 (Souter, J., dissenting) (emphasis added).
2.
Even though eight, if not all nine, members of the Lamagno Court appear to agree that the Westfall Act requires a district court to retain the action upon rejecting the Attorney General’s certification, Lamagno leaves undecided whether that requirement exceeds Article III jurisdiction. As noted, the plurality finds that this Article III problem is not “a grave one”, id. at -, 115 S.Ct. at 2236 (plurality); but, the concurrence states that the Court “should not resolve that question until it is necessary for us to do so”, id. at -, 115 S.Ct. at 2237 (O’Connor, J., concurring), and the dissent finds that “there is a serious problem ... in requiring a federal district court, after rejecting the Attorney General’s certification, to retain jurisdiction over a claim that does not implicate federal law in any way”, id. at -, 115 S.Ct. at 2239 (Souter, J., dissenting).
We agree with the Lamagno plurality that, because of the Attorney General’s certification, there is an initial colorable federal question. Id. at -, 115 S.Ct. at 2236-37. Accordingly, we agree likewise that there is no “grave” Article III problem in a district court retaining jurisdiction after rejecting the Attorney General’s certification:
Whether the employee was acting within the scope of his federal employment is a significant federal question — and the West-fall Act was designed to assure that this question could be aired in a federal fo-rum_ Because a ease under the West-fall Act thus “raises [a] questio[n] of substantive federal law at the very outset,” it “clearly ‘arises under’ federal law, as that term is used in Art. III.”
Id. at -, 115 S.Ct. at 2236-37 (plurality) (quoting Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493, 103 S.Ct. 1962, 1971, 76 L.Ed.2d 81 (1983)). See Verlinden, 461 U.S. at 491 & 497, 103 S.Ct. at 1970 & 1973 (Foreign Sovereign Immunities Act grant to “federal courts [of] subject-matter jurisdiction over . -.. civil actions by foreign plaintiffs against foreign sovereigns where the rule of decision may be provided by state law” is within bounds of Article III arising under clause).
We agree also with the Lamagno plurality that “considerations of judicial economy, convenience and fairness to litigants make it reasonable and proper for the federal forum to proceed beyond the federal question to final judgment once it has invested time and resources on the initial scope-of-employment contest”. Id. at -, 115 S.Ct. at 2237 (plurality) (internal quotation marks and brackets omitted) (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966)); see 28 U.S.C. § 1367 (supplemental jurisdiction).
Accordingly, we hold that, for subpart (d)(2), upon rejection of the Attorney General’s certification, the district court retains jurisdiction and may not remand the action to state court. While the Lamagno dissent expressed concern that this provision of the Westfall Act “must at the very least approach the limit” of federal jurisdiction, we conclude that it does not “cross the line”. — U.S. -, 115 S.Ct. at 2239 (Souter, J., dissenting).
3.
As was the case before Lamagno, the circuits are split on the issue at hand. Obviously, Lamagno ’s recent construction of the Westfall Act casts new light on most of these decisions. Post-Lamagno, only two circuits have ruled on this issue; they also reach opposite results. (Heuton v. Anderson, 75 F.3d 357, 361 (8th Cir.1996) noted that the issue was left open by Lamagno, but did not reach it.)
In requiring remand to state court, the D.C. Circuit, in a post-Lamagno split decision in Haddon v. United States, 68 F.3d 1420, 1426-27 (D.C.Cir.1995), infers the power under subpart (d)(2) to remand from the express power to do so in subpart (d)(3), and reasons that
[a]llowing federal courts to remand cases to state courts under both [subparts] ... would ... neither erase the differences [326]*326between these two [subparts] nor render Attorney General certifications meaningless. To the contrary, the essential benefit of the certification process — guaranteeing that scope of employment determinations are made in a federal forum — would remain.
Id. at 1426. The Haddon majority found support in the fact that its holding avoided the constitutional question of whether a district court was retaining an action without Article III jurisdiction, the point troubling the Lamagno concurrence and dissent. Id. at 1427. Haddon adopts the pre-Lamagno reasoning of Nasuti v. Scannell, 906 F.2d 802 (1st Cir.1990), which requires remand.
In the Eleventh Circuit, pursuant to pre-Lamagno decisions, remand is discretionary. Nadler v. Mann, 951 F.2d 301, 306 n. 9 (11th Cir.1992), stated that, for an action removed, as here, under § 2679(d)(2) and § 1442, where the employee was not within the scope, “judicial economy would not be compromised if the district court remanded the case to state court”, and held that remand is discretionary. See Green v. Hill, 954 F.2d 694, 698 (11th Cir.1992), withdrawn & superseded in part on reh’g, 968 F.2d 1098 (11th Cir.1992). (Earlier, the Eleventh Circuit required remand, but quickly vacated that requirement. See S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1544, modified, 924 F.2d 1555 (11th Cir.1991), cert. denied, 502 U.S. 813, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991).)
Under a pr e-Lamagno holding, the Third Circuit does not permit remand. Aliota v. Graham, 984 F.2d 1350, 1351 (3d Cir.), cert. denied, 510 U.S. 817, 114 S.Ct. 68, 126 L.Ed.2d 37 (1993), concluded, based on the “plain language” of the subpart (d)(2) “conclusively establish” command, that “the district court has no authority to remand the case on the ground that the ... certification was erroneous”. Id. at 1356.
In several of the pr e-Lamagno cases, also blended into the decisional mix were initial remand orders by the district court and the general prohibition under § 1447(d) against appellate review of such orders. See, e.g., Aliota, 984 F.2d at 1354-57; Nasuti, 906 F.2d at 808-11; Mitchell, 896 F.2d at 130-31. This factor, considered with the remand provision of § 1447(c), was present in the Fourth Circuit’s pr e-Lamagno decision in Jamison v. Wiley, 14 F.3d 222, 237-39 & n. 18 (4th Cir.1994), which held, inter alia, that, for an action properly removed under § 1442(a)(1) as well as under the Westfall Act, a federal court lacks authority under § 1447(c) to remand to state court. Citing the above referenced Mesa v. California, 489 U.S. 121, 139, 109 S.Ct. 959, 970, 103 L.Ed.2d 99 (1989) (§ 1442(a) removal “must be predicated upon averment of a federal defense”), Jamison held that, because the removal petition raised a “colorable federal defense” (immunity under the Westfall Act), the action was “transform[ed from an] otherwise nonremovable state-law action into one that falls within the federal court’s ‘arising under’ jurisdiction.” 14 F.3d at 239.
Post-Lamagno, in Mangold v. Analytic Services, Inc., 77 F.3d 1442, 1450 (4th Cir.1996), in which the district court had ordered remand to state court, the Fourth Circuit held that, because “the effect recognized in Jamison surely must be the same” for actions removed only under the Westfall Act, remand is not permitted. Id. at 1453.
4.
Again, these circuits may soon reach results different from those prior to Lamagno. In any event, the “arising under” basis for jurisdiction in Jamison parallels the later analysis in part IV of Lamagno, which, as noted, did not involve removal and was, instead, a diversity action filed in district court. But, as also discussed, the part IV analysis assumed that the Westfall Act was the only jurisdictional basis.
As also noted, in addition to the Westfall Act, the action at hand, as in Jamison, was removed under, inter alia, § 1442. The Government now relies upon Lamagno in asserting that the Attorney General’s certification raises a federal question, but also now relies upon Jamison (and previously, Mesa as well) in asserting that, if “a federal defense supports removal jurisdiction, the rejection of the defense does not divest a federal court’s jurisdiction over the removed action”.
[327]*327In district court (1991-92), the Government did not present this jurisdictional contention which found support subsequently in Jamison (1994). Be that as it may, because of the plain language and structure of § 2679(d)(1) — (3), especially as read in the light of Lamagno, we need not seek jurisdictional support under the § 1442 scenario. As discussed, the Westfall Act, without more, requires that, upon the Attorney General’s certification being rejected in a removed action, the action nevertheless remains in district court. This results in the same ultimate concerns about crossing the line of Article III jurisdiction that are present under the § 1442(a) scenario. But, the Westfall Act scenario provides a far more sound basis for jurisdiction than does that for § 1442. The Westfall Act basis is grounded in what we read as a clear and constitutional directive by the Congress that removed actions with an Attorney General certification are to remain in federal court.
III.
Because the agent was not acting within the scope of his employment at the time of the accident, he must be reinstated as defendant; and, the district court must retain this action. Accordingly, we REVERSE and REMAND to the district court for further proceedings.
REVERSED and REMANDED.