Proietti v. Levi

• Decision Date: 11 February 1976
• Docket Number: No. 74--1399,74--1399
• Citation: 530 F.2d 836
• Parties: Joseph J. PROIETTI, Plaintiff-Appellant, v. Edward H. LEVI, Attorney General of the United States, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 836

530 F.2d 836

Joseph J. PROIETTI, Plaintiff-Appellant, v. Edward H. LEVI, Attorney General of the United States Defendant-Appellee.

No. 74--1399.

United States Court of Appeals Ninth Circuit.

Feb. 11, 1976.

Byron J. Lawler, Los Angeles, Cal., for plaintiff-appellant.

Donald J. Merriman, Asst. U.S. Atty., Los Angeles, Cal., for defendant-appellee.

OPINION

Before HUFSTEDLER and WRIGHT, Circuit Judges, and WOLLENBERG, ^* District Judge.

WOLLENBERG, District Judge:

While stationed at March Air Force Base in California, appellant Proietti, then a Master Sergeant in the Air Force, was involved in a traffic accident with an Air Force officer, Major Nakatani. Pursuant to the Federal Drivers Act, 28 U.S.C. § 2679, Proietti requested representation by the United States Attorney General in a state court action brought against him by Nakatani. ¹ Ater his request was denied, Proietti filed suit seeking review of that decision. The district court held a de novo evidentiary hearing and affirmed the decision of the Attorney General. Because the district court did not employ the proper method for review of the Attorney General's decision, we must vacate and remand for further proceedings.

The district court correctly asserted review jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ² Review is not precluded by 5 U.S.C. § 701(a)(2). Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

The appropriate standard for review is whether the Attorney General's decision was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' 5 U.S.C. § 706(2)(A). In making that analysis, the district court should have focused entirely on the administrative record compiled by the Attorney General. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973).

Instead of following this procedure, the district court held an evidentiary hearing and conducted a de novo inquiry into the circumstances surrounding appellant's traffic accident. The court then filed findings of fact and conclusions of law and decided as a matter of law that plaintiff was not acting within the scope of his employment at the time of the accident and that the Attorney General was not required to represent him in the state court action.

De novo review of administrative decisions under the Administrative Procedure Act is proper only under a limited set of circumstances. In Proietti's case, it would be appropriate only if the 'agency fact-finding procedures are inadequate'. Citizens to Preserve Overton Park v. Volpe,supra, 401 U.S. at 415, 91 S.Ct. 814. Since the procedures employed by the agency in this case were not inadequate, the district court should not have gone beyond the administrative record.

The factual information in the report prepared for the Attorney General was gathered by soliciting a statement from Proietti ³ and an affidavit from his supervisor. Accident reports and answers to interrogatories in the state court action were also considered. There is nothing to indicate that this method produced unreliable information. While the investigation may not have been painstakingly thorough, the same procedures, especially solicitation of affidavits, could have been used to obtain any necessary additional information. Any defects in the investigation were not the result of the agency's 'fact-finding procedures'. If the administrative record could not have sustained the Attorney General's decision, the proper remedy would have been to remand the case for further consideration. Camp v. Pitts, supra, 411 U.S. at 143, 93 S.Ct. 1241.

In the district court, appellant claimed that the lack of an administrative hearing made a de novo court hearing necessary. The terms of28 U.S.C. § 2679, however, do not require an administrative hearing, and, in the absence of such a requirement, neither does the Administrative Procedure Act. Camp v. Pitts, supra, 411 U.S. at 140--141, 93 S.Ct. 1241. ⁴

Further proceedings in the district court might be unnecessary if we could now evaluate the administrative record under the proper standards. However, the record before us is inadequate for that task. While it contains the reports prepared by the Air Force Judge Advocate's offices at March Air Force Base and Washington, it does not contain a copy of the decision of the Attorney General. Upon remand, the district court should conduct further proceedings to supplement the record in that regard. ⁵

The Attorney General contends that the decision of the district court should be upheld even if Proietti was acting within the scope of his employment at the time of the accident. If that is the case, the Attorney General argues that the rule of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), would preclude Nakatani from recovering from the government.

This factor is clearly irrelevant to the decision required by 28 U.S.C. § 2679. The statute requires the Attorney General to base the certification decision solely on the resolution of the scope of employment issue. If Proietti was acting within the scope of his employment, the Feres doctrine could be raised as a defense on his behalf when and if the Attorney General represents him in the Nakatani litigation. ⁶

There is no indication that the Attorney General actually relied on the Feres case as a reason for refusing to represent Proietti. The case is mentioned by the Judge Advocate's office in a discussion of defenses to the state court action in the event that Proietti was acting within the scope of his employment. However, if the district court finds that an irrelevant factor entered into the Attorney General's decision, Proietti would still not be entitled to a de novo hearing. Using an incorrect legal doctrine as the basis for a decision would not be a defect in the agency's fact-finding procedures. Camp v. Pitts, supra, 411 U.S. at 142--143, 93 S.Ct. 1241.

Vacated and remanded for further proceedings consistent with this opinion.

EUGENE A. WRIGHT, Circuit Judge (dissenting):

The accident giving rise to this litigation occurred on October 12, 1970. Now, more than five years later, the majority vacates and remands for further proceedings. I respectfully dissent.

If the agency fact-finding procedures ¹ were inadequate, the de novo review in the district court was appropriate. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). ² If they were adequate, we should simply ignore the evidence presented at the de novo hearing, and review the administrative determination under the arbitrary and capricious test. (5 U.S.C. § 706(2)(A))

Whichever record is used, I am convinced as a matter of law that the Attorney General should defend Proietti in the state action pursuant to the Federal Drivers Act (28 U.S.C. § 2679).

The administrative record shows the following: Master Sergeant Proietti's private automobile collided with that of Major Nakatani, who subsequently brought a personal injury and property damage action against Proietti in California Superior Court. ³ The accident occurred during normal duty hours on the streets of March Air Force Base, California. At the time of the accident, both Proietti and Nakatani were active duty personnel in an 'on duty' status. Proietti was in uniform at the time, and was engaged in transporting directly military documents between buildings located some 1 to 2 miles apart.

Base legal officers recognized that 'Senior NCOs and officers routinely used their POVs (Privately Owned Vehicles) while travelling on base, primarily for their own convenience.' The inference is inescapable that such POVs were not used exclusively for private convenience and that base personnel were aware of this state of affairs.

Proietti was engaged in personal as well as government business at the time of the accident.

There were no regulations either expressly authorizing or expressly prohibiting the use of private vehicles for government business. However, it was unrealistic for Proietti to use government transportation because of the paucity of government vehicles available and the irregularity of service. As a senior non-commissioned officer, he was required to transport the documents within given time constraints, and could not reasonably do so except by using his private automobile. He had used his own car to carry government documents on several occasions prior to the day of the accident as had his predecessor.

The above facts are also apparent from the district court hearing record. In addition, there was testimony at the de novo hearing that base security personnel had been aware for some time that military personnel were using private automobiles on the base for government business.

The facts belie any notion that Proietti was on his own 'frolic.' He was transporting government documents directly from one building to another. 'Deviation' is not at issue. The only issue is whether Proietti's use of his private automobile, without express authority, and in fulfillment of both government and personal purposes, was within or without 'the scope of his office or employment' within the meaning of Section 2679. This issue can be decided as a matter of law. Cf. Chapin v. United States, 258 F.2d 465, 467 (9th Cir. 1958).

In resolving the 'scope of employment' question presented in a suit instituted under the Federal Tort Claims Act (28 U.S.C. §§ 1346(b) & 2674 (1970)), a federal court 'must apply the respondeat superior principles of . . . the state wherein the alleged tort was committed. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) . . ..' United States v. McRoberts, 409 F.2d 195, 197 (9th Cir. 1969).

Since 28 U.S.C. § 2671 provides, 'as used in this chapter (such chapter including §§ 2671--80) and sections 1346(b) and 240...