Joseph J. Proietti v. Edward H. Levi, Attorney General of the United States , 530 F.2d 836 ( 1976 )

OPINION

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 After 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 Proietti³ 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 of 28 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.

1 . That section reads:

§ 2679. Exclusiveness of remedy (a) The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.

(b) The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property or personal injury or death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.

(c) The Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any such damage or injury. The employee against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon him or an attested true copy thereof to his immediate superior or to whomever was designated by the head of his department to receive such papers and such person shall promptly furnish copies of the pleadings and process therein to the United States attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the head of his employing Federal agency.

(d) Upon a 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 suit arose, any such civil action or proceeding commenced 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 wherein it is pending and the proceedings deemed a tort action brought against the United States under the provisions of this title and all references thereto. Should a United States district court determine on a hearing on a motion to remand held before a trial on the merits that the case so removed is one in which a remedy by suit within the meaning of subsection (b) of this section is not available against the United States, the case shall be remanded to the State court.

(e) The Attorney General may compromise or settle any claim asserted in such civil

action or proceeding in the manner provided in section 2677, and with the same effect.

In the state action, Proietti’s insurer paid $25,000, the policy limit, to avoid a possible bad faith claim, although Nakatani claimed in excess of that amount. No signed release has been executed, and the action is still pending in the state court.

2 . Rothman v. Hospital Service of Southern California, 510 F.2d 956 (9th Cir. 1975); State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969).

3 . Appellant’s response was submitted through his attorney.

4 . Consequently, the Administrative Procedure Act’s requirement of formal findings by the agency is not relevant to this case.

5 . As part of its findings of fact and conclusions of law, the district court also concluded that the decision of the Attorney General was not arbitrary and capricious. It is impossible to determine if this conclusion was based solely upon an examination of the administrative record since it was made after the evidentiary hearing. In any event, it cannot stand because the decision of the Attorney General was not included in the record before the court.

6 . Similarly, the argument that Nakatani has failed to timely file an administrative claim must be rejected as irrelevant to the necessary decision under 28 U.S.C. § 2679.