Proietti v. Civiletti, 76-3129

Citation603 F.2d 88
Decision Date23 August 1979
Docket NumberNo. 76-3129,76-3129
PartiesJoseph J. PROIETTI, Appellant, v. Benjamin R. CIVILETTI, * Attorney General of the United States, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Byron J. Lawler, Stockdale, Peckham, Estes, Ramsey, Lawler & Iorillio, Los Angeles, Cal., for appellant.

Dzintra I. Janavs, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Appeal from the United States District Court for the Central District of California.

Before ELY and TRASK, Circuit Judges, and EAST, ** District Judge.

ELY, Circuit Judge:

The appellant Proietti appeals from an adverse judgment entered by the District Court, based upon the court's conclusion that Edward H. Levi, the then Attorney General of the United States, did not abuse his discretion in finding that Proietti, a serviceman with the rank of sergeant, was acting outside the scope of his Air Force employment and was, therefore, not entitled to United States Government representation in defending an action for personal injury and property damages in a California State Court. We reverse.

This litigation arose out of an automobile accident that occurred on October 12, 1970, on March Air Force Base in San Bernardino, California. While driving his personally owned automobile within the confines of the Base, Proietti was involved in a two-car accident. Lilly A. Nakatani, an occupant of the second car, suffered damages from the collision.

At the time of the accident, Proietti was in uniform, and he asserts that he was engaged in his official duties. Proietti's duties included the completion of Air Force examination forms, and a part of this job involved the obtaining of information from the Base hospital, located about one mile from Proietti's duty office. The accident occurred while Proietti was coming from the hospital and returning to his office with laboratory slips. Thus, it is not disputed that Proietti was using his vehicle in the furtherance of government business at the time of the accident.

Sergeant Proietti admitted that he did not often use his personal vehicle for government business, and that when he did, he usually also included some personal errand. He never requested nor received any reimbursement for the use of his automobile on government business. Proietti's supervisor stated in an affidavit that no one with authority had directed or authorized Proietti to use his automobile in the performance of his military duties. The supervisor also stated that Proietti used his car "for said Sergeant's sole convenience and . . . not of necessity", since a base bus service operated between the hospital and Proietti's duty office. He concluded by noting that the distance between the locations did not preclude walking.

On June 21, 1971, Nakatani instituted a California state court action to recover her alleged damages. On January 7, 1972, Proietti requested that the United States defend him in that action pursuant to 28 U.S.C. § 2679. The Attorney General, however, refused to certify that Proietti was acting within the scope of his employment at the time of the accident; thus, the Government refused to defend him.

On February 9, 1973, Proietti filed the present action. The District Court held an evidentiary hearing on September 11, 1973, on the issue of whether Proietti was in the scope of his employment at the time of the accident. The District Court decided the issue De novo. On September 21, 1973, judgment was entered for the Attorney General. On appeal, our court held that the Attorney General's decision was reviewable under the Administrative Procedures Act, 5 U.S.C. §§ 701 Et seq., and that the District Court erred in conducting a De novo hearing. Proietti v. Levi, 530 F.2d 836 (9th Cir. 1976). Over the strong dissent of Judge Wright, our court found that the administrative record was inadequate for purposes of review and remanded the matter with instructions that the Attorney General be required to supplement the record with a copy of his decision. Id.

On remand, the attorney General was apparently unable to produce any additional evidence to support the critical conclusion that Proietti was acting outside the scope of his employment at the time in question. He did submit, however, what he characterized as "memoranda representing the decision of the Attorney General not to certify that Sgt. Proietti was acting in the scope and course of employment." Proietti moved for summary judgment, which the Attorney General opposed. The Attorney General contended that on the basis of the record before the court, judgment should be entered in his favor. The District Court agreed with this contention and entered judgment accordingly. This second appeal followed.

The applicable standard of review is whether the decision of the Attorney General was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Again, we look to the administrative record for purposes of this review. While the "memoranda representing the decision of the Attorney General" are clearly not models of thoroughness, they are not so inadequate when coupled with the remainder of the record, that we should now, for a second time, remand the matter for further proceedings. A fully detailed decision is not required from an agency "so long as its conclusions and underlying reasons may be discerned with confidence." O-J Transport Co. v. United States, 536 F.2d 126, 130 (6th Cir. 1976), Cert. denied, 429 U.S. 960, 97 S.Ct. 386, 50 L.Ed.2d 328 (1976). See also Bowman...

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11 cases
  • Doggett v. U.S., 86-6109
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 8, 1989
    ...612, 617 (1987) (citing Alma v. Oakland Unified School Dist., 123 Cal.App.3d 133, 139, 176 Cal.Rptr. 287 (1981)); Proietti v. Civiletti, 603 F.2d 88, 90 (9th Cir.1979). An employee need not be engaged in the ultimate object of his employment at the time of the wrongful act for liability to ......
  • Doggett v. U.S., 86-6109
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 3, 1988
    ...612, 617 (1987) (citing Alma v. Oakland Unified School Dist., 123 Cal.App.3d 133, 139, 176 Cal.Rptr. 287 (1981)); Proietti v. Civiletti, 603 F.2d 88, 90 (9th Cir.1979). An employee need not be engaged in the ultimate object of his employment at the time of the wrongful act for liability to ......
  • Pelletier v. Federal Home Loan Bank of San Francisco
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 29, 1992
    ...is to be answered according to the principles of respondeat superior of the state in which the alleged tort occurred. Proietti v. Civiletti, 603 F.2d 88, 90 (9th Cir.1979) (citing Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam)); see also Nasuti v. S......
  • Flohr v. Mackovjak
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 31, 1996
    ...Cal.2d 600, 145 P.2d 1, 3 (1944). Given that "California's rule as to course and scope of employment is broad," see Proietti v. Civiletti, 603 F.2d 88, 90 (9th Cir.1979), we believe that a California court with this case before it would hold that Mackovjak's conduct was within the scope of ......
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