(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 oc *840 curred 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 Proiet-ti 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 2401(b) of this title,” and then proceeds to define, inter alia, “ ‘Acting within the scope of his office or employment,’ ” it is reasonable to conclude that the rule of Williams, supra, applies whether the action is brought under section 1346, 2674, or 2679. 4 The Attorney General so concluded and proceeded to apply the law of California.

Our inquiry is whether the California courts would hold, if this case were before them, that Proietti was acting within the scope of employment despite the absence of express authorization. Chapin, 258 F.2d at 467 . The answer is yes.

Loper v. Morrisson, 23 Cal.2d 600 , 145 P.2d 1, 4 (1944). See also Johnson v. *841 Banducci, 212 Cal.App.2d 254 , 27 Cal. Rptr. 764 (1963).

The mere fact that an employee uses his private vehicle to pursue the business of his employer does not relieve the employer of liability, so long as the employee is acting with the express or implied consent of the employer. Boynton v. McKales, 139 Cal.App.2d 777 , 294 P.2d 733, 741 (1956).

An employee, particularly one of such significant rank as Master Sergeant, has implied authority to use any means “reasonably proper in the performance of an assigned task.” Garber v. Prudential Insurance Co. of America, 203 Cal.App.2d 693 , 22 Cal.Rptr. 123, 128 (1962). See also Espinoza v. Rossini, 247 Cal.App.2d 40 , 55 Cal.Rptr. 205, 211 (1966).

Even where an employee combines his own business with that of his employer, “the master will be held responsible unless it clearly appears that the servant could not have been directly or indirectly serving his master.” Ryan v. Farrell, 208 Cal. 200, 204 , 280 P.2d 945 , 946 (1929), followed in Wiseman v. Industrial Accident Commission, 46 Cal.2d 570 , 297 P.2d 649, 651 (1956).

Finally, where an employee has used his own automobile repeatedly in his employer’s business with the employer’s knowledge and assent, implied authority is often found. 60A C.J.S. Motor Vehicles § 453 at p. 1115 & n. 49 (1969).

Although we have not been directed to a case construing California law in the light of facts such as those before us, 5 I would conclude as a matter of law that a California court would find on these facts that Proietti was acting within the scope of his employment. 6

. While the administrative record includes only the recommendation of Air Force counsel, the United States Attorney in defending this case has presented that determination as being that of the Attorney General. There is no contention by either party that the administrative action is not final.

. In Camp v. Pitts, supra, the Supreme Court was faced with the question whether a de novo hearing, which had not yet been held, should be. In the case before us, the district court has already held such a hearing.

. 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.

. The result is not different merely because the accident occurred on U.S. Government property. In Canon v. United States, 111 F.Supp. 162, 165 (N.D.Cal.1953), aff’d 217 F.2d 70 (9th Cir. 1954), the district court applied California law to decide the “scope of employment” issue, even though the accident occurred in a federal government hospital.

. In Boynton v. McKales, supra, the California Court of Appeal held that an employer was liable for injuries caused by a private automobile being driven by an employee en route home from a company social function if the employee’s attendance there was expected by the employer and the employee lived such a distance away that use of an automobile was reasonably necessary. The employer expectation and reasonable necessity factors have similar bearing in the case before us, although the factual situation is quite different.

. In Boynton v. McKales, supra, 294 P.2d at 741 , the court stated:

While I can find no California decision post- Boynton which has turned this prognosis into holding, and can therefore only speculate as to whether a California court would do so in this case, the above language nevertheless adds weight to my conclusion.