Joseph J. Proietti v. Edward H. Levi, Attorney General of the United States

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. 1 Byron J. Lawler, Los Angeles, Cal., for plaintiff-appellant. 2 Donald J. Merriman, Asst. U.S. Atty., Los Angeles, Cal., for defendant-appellee. OPINION 3 Before HUFSTEDLER and WRIGHT, Circuit Judges, and WOLLENBERG, * District Judge. WOLLENBERG, District Judge: 4 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…

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 re *838 quest 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…

(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…