Dissenting:

Erlinda Clamor was injured on a military base in a minor car accident caused by another government employee. Her state court lawsuit was removed to federal district court by the United States. The district court dismissed the case because Mrs. Clamor failed to exhaust her FTCA remedies before bringing suit. I would affirm. I am unable to join the Court’s opinion because it ignores the overwhelming evidence and case law supporting the U.S. Attorney’s certification that the government employee was within the scope of his employment at the time of the accident.

I

Evangelos J. Karagiorgis drove the car that rear-ended the Clamor vehicle. Mr. Karagiorgis is a civilian employee of the Department of Defense who had been ordered to travel from his regular duty station in Washington, D.C., to Hawaii’s Pearl Harbor Naval Base on temporary duty. There, Karagiorgis worked aboard the USS LOS ANGELES while she was undergoing an engineering retrofit. Because Pearl Harbor lacked adequate on-base housing, the Government ordered Kara-giorgis to stay in a nearby hotel for this short-term assignment. Government counsel represented at oral argument that arrangements for Karagiorgis’s lodging were made by a Government travel agent. Karagiorgis’s orders specifically authorized him to drive to and from the submarine berth in a car rented from an agency which furnished vehicles to DOD employees pursuant to a Government contract. 1

II

The accident occurred on January 24, 1996, just minutes after Mr. Karagiorgis finished working on the submarine, and while Karagiorgis drove his Government rental vehicle to his hotel. It occurred on base, near an exit gate. Base police were summoned to the scene and took a report. Karagiorgis cooperated with police and identified himself to Mr. Clamor, the driver of the car in which Mrs. Clamor had been a passenger.

Mrs. Clamor declined medical assistance at the scene of the accident but visited the Pearl Harbor dispensary shortly thereafter. Karagiorgis accompanied Mrs. Clam- or and her husband to the dispensary, and while there he had another conversation with Mr. Clamor during which he again identified himself as a Government employee on temporary duty in Hawaii.

*1219 III

Mrs. Clamor filed a state claim under Hawaii’s “no-fault” statute and by May 8, 1997, she had received the maximum $20,000 in benefits for medical bills and lost wages arising from the accident. Clamor filed a complaint against Karagior-gis in Hawaii circuit court on April 3, 1998. The complaint was not served on Kara-giorgis until May 13, 1999. Clamor explains that the delay was the result of confusion caused by an inaccuracy in the Navy’s accident report regarding Kara-giorgis’s name. 2

Karagiorgis turned the complaint over to his personal insurance carrier, State Farm Insurance Company, which in turn tendered the defense to the United States. On June 25, 1999, the United States Attorney for the District of Hawaii certified that Karagiorgis acted within the scope of his employment at the time his rental car struck the Clamor vehicle. The case was removed from state to federal court. The United States was then substituted in the place of Karagiorgis as the only defendant in this action. The Government moved to dismiss for lack of subject matter jurisdiction based on Clamor’s failure to exhaust her federal administrative remedies. The district court granted the motion.

IV

The Federal Employees Liability Reform and Tort Compensation Act (“West-fall Act”) amended the Federal Tort Claims Act by immunizing Government employees for negligent and wrongful acts committed within the scope of their employment. 28 U.S.C. § 2679 (2000). Under the Westfall Act, the Attorney General may certify that a federal employee was acting within the scope of his employment at the time of the incident giving rise to liability. Id. at § 2679(d)(1). Upon such certification, the action then becomes one against the United States under the FTCA, and the Government is substituted as the party defendant in place of the individual employee. See Ward v. Gordon, 999 F.2d 1399, 1401 (9th Cir.1993).

We have held that the U.S. Attorney’s certification is considered prima facie evidence that a federal employee was acting within the scope of employment at the time of the accident. See Billings v. United States, 57 F.3d 797, 800 (9th Cir.1995). Scope of employment is determined by the law of the state where the claim arises. Pelletier v. Fed. Home Loan Bank of San Francisco, 968 F.2d 865, 876 (9th Cir.1992). While a scope of employment certification is subject to judicial review, the party seeking review bears the burden of refuting the certification by a preponderance of the evidence. Id. In other words, where the United States has assumed the benefits and burdens of defending its employee, we will not disturb that decision unless presented with substantial evidence requiring us to do so. The Hawaii district court properly found that Clamor failed to meet this high threshold.

Hawaii courts follow the Restatement (Second) of Agency § 228 on respondeat superior liability. Section 228 provides, in relevant part:

RESTATEMENT (SECOND) Of AGENCY § 228 (1958).

The Hawaii Supreme Court has explained that “the applicable test is whether the employee’s conduct was related to the employment enterprise or if the enterprise derived any benefit from the activity.” Wong-Leong v. Hawaiian Indep. Refinery, Inc., 76 Hawaii 433 , 879 P.2d 538, 546 (1994). In the past few decades, Hawaii law has trended toward a more liberal view of scope of employment. See, e.g., Nordmark v. Hagadone, 1 Haw.App. 487 , 620 P.2d 763, 765 (19811) (employer hable for accident caused by intoxicated employee who was driver of vehicle leased to employer).

The district court determined, under both the Restatement and the clarification articulated in Wong-Leong , that Karagior-gis was within the scope of his federal employment under Hawaii law. First, in driving from his temporary duty station to his temporary lodging (arranged by his employer), Karagiorgis was engaged in the type of conduct he was employed to perform on orders of the Department of Defense. His orders authorized his use of a rental car to permit him to travel in and around his temporary duty area, which included the Pearl Harbor N-aval Base and the Honolulu hotel where he was staying. This was no vacation or personal frolic. Karagiorgis’s orders authorized reimbursement for his Government travel, including the cost of the Government rental car under federal contract with Alamo Rent A Car. He was also reimbursed for his subsistence lodging expenses incurred during his month-long assignment at Pearl Harbor.

Second, Karagiorgis’s conduct was substantially within authorized time and space limits. Karagiorgis was still on the naval base at the time of the accident and just minutes earlier he was performing his assigned tasks aboard the USS LOS ANGE-LES. He was driving his authorized rental car in the authorized duty area in order to return directly to his authorized lodging.

Third, use of the rental car was necessary to serve the needs of the Government. There was no lodging available for Kara-giorgis on the naval base. The Government was in need of his technical expertise in nuclear submarine work. To obtain his assistance, it was necessary to temporarily house Karagiorgis (while on this remote assignment 6,000 miles from his normal duty station) by arranging lodging at a nearby hotel and by providing him a car with which to commute. This arrangement was related directly to Karagiorgis’s federal employment and it benefitted the Government because it allowed him to work on the submarine even though there was no room for him to stay on the Pearl Harbor base.

The opinion of the Court relies on Kang v. Charles Pankow Associates, 675 P.2d at 808-09 (Haw.App.1984). Kang recognized that the mere fact that an employee was translocated to Hawaii for an indefinite period by his employer is not sufficient (by itself) to impose respondeat superior liability. But in Kang, the employee had moved his belongings (including shipping at personal expense his own car) to the island of Kauai, had consumed several beers after work, and, hours later, was involved in a serious car accident while driving his own vehicle to a non-work-related dinner. The conduct in Kang did not satisfy any element of the Restatement test, whereas Karagiorgis’s conduct satisfies all three.

Our case law clearly favors a finding of Government liability for accidents occurring on military installations. See, e.g., Lutz v. United States, 685 F.2d 1178 (9th Cir.1982) (Government liable for child’s injuries resulting from failure of airman to control pet dog housed on air force base); Washington v. United States, 868 F.2d 332 (9th Cir.1989) (navy servicemen on liberty status were within scope of employment *1221 while fixing personal automobile located in • naval housing).

I am persuaded by Wilkinson v. United States, 677 F.2d 998 (4th Cir.1982). 3 There, a Navy serviceman on per diem allowance and driving a rental car was in an accident while returning to his hotel room for the night. The Fourth Circuit observed that the case was not a close one. The court easily determined that the serviceman’s conduct was within the scope of his employment. Summary dismissal was held to be proper because the plaintiff had failed to exhaust administrative remedies under the FTCA before the statute of limitation expired. Id. at 998-1001 . In this case, Mrs. Clamor also failed to exhaust her FTCA remedies.

Even if the U.S. Attorney’s certification for scope of employment is erroneous, the district court need not remand to state court. The Ninth Circuit has recognized that, pursuant to the plain language of 28 U.S.C. § 2679 (d)(2), certification for purposes of removal is conclusive. Meridian Int’l Logistics, Inc. v. United States, 939 F.2d 740, 744-45 (9th Cir.1991).

There is an issue the Supreme Court needs to resolve regarding the effect of overturning certification. Several of our sister circuits have held that a federal district court must retain jurisdiction over claims like Clamor’s even after the federal court has rejected the U.S. Attorney’s certification regarding seope-of-employment. See Borneman v. United States, 213 F.3d 819, 829 (4th Cir.2000) (once removed, federal court cannot remand case to state court even after holding that certification was erroneous); Garcia v. United States, 88 F.3d 318, 325 (5th Cir.1996) (same); Aliota v. Graham, 984 F.2d 1350, 1356 (3d Cir.1993) (same); but see Haddon v. United States, 68 F.3d 1420, 1427 (D.C.Cir.1995) (after finding certification erroneous district court must remand case to state court); Nasuti v. Seannell, 906 F.2d 802, 814 (1st Cir.1990) (same). 4

There is no “grave” Article III problem with a district court retaining jurisdiction after it has rejected certification, even if no other ground for federal jurisdiction exists. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 435 , 115 S.Ct. 2227 , 132 L.Ed.2d 375 (1995) (plurality) (declining to decide the issue because in that case an alternate basis for jurisdiction — diversity — existed). The federal court retains jurisdiction because certification under the Westfall Act “raises [a] questio[n] of substantive federal law at the very outset” and thus “clearly ‘arises under’ federal law, as that term is used in Art. III.” Id. (quoting Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493 , 103 S.Ct. 1962 , 76 L.Ed.2d 81 (1983)). The better approach requires that this case remain in federal district court for adjudication of the remaining state law claims. The district court should conduct an evidentiary hearing to develop the necessary factual record to clarify the basis for retaining jurisdiction in this case.

The opinion of the Court fails to recognize that Karagiorgis was within the scope of his Government employment at the time of the car accident. It overlooks the fact *1222 that the accident occurred on a naval base and was therefore within the special maritime and territorial jurisdiction of the United States. Clamor failed to establish by a preponderance of the evidence that the scope of employment certification was improper under Hawaii law. I would affirm the dismissal of Clamor’s tort claim for lack of subject matter jurisdiction because she failed to first exhaust her administrative remedies.

I respectfully dissent.

. At the time he rented the car Karagiorgis declined additional auto insurance. This makes sense because the Government contract with the car rental agency specified that it was unnecessary for a federal employee to obtain insurance since the rental company was contractually obligated to provide full coverage for any damages occurring during official travel. Also, 41 C.F.R. § 301-10.451 states that no such insurance is needed because the employee is indemnified by the United States and the rental car company provides insurance by contract with the Government. This regulation denies Government employees reimbursement for the cost of collision insurance on rental cars because it is unnecessary. On these facts, it makes no difference whether the Federal employee was driving a Government rental car or an official Government vehicle when the accident occurred.

. The police report identified Karagiorgis as "Evangelos, James Karagiorgis.” Based on this report Clamor first named “Angelo Kara-giorgis” and later "James Karagiorgis Evangelos” as a defendant. The complaint was not properly served until the correct name, Evangelos James Karagiorgis, was used. I would reject Clamor's argument that this establishes entitlement to equitable tolling excusing her failure to timely comply with the jurisdictional notice provisions of the FTCA. The record shows Mrs. Clamor knew Karagiorgis was also a federal employee and she could have easily located him through their common employer, the Department of Defense.

. As the majority notes, Wilkinson was not decided under Hawaii law, which controls this case. In the absence of any Hawaii case directly on point, however, Wilkinson is persuasive because it dealt with facts very similar to those presented here.

. The Sixth and Eighth Circuits have noted the split in authority and have declined to address this issue. See Coleman v. United States, 91 F.3d 820 , 822 n. 2 (6th Cir.1996); Heuton v. Anderson, 75 F.3d 357, 361 (8th Cir.1996). The Eleventh Circuit has decided that it is up to the discretion of the district court to decide whether to retain jurisdiction or to remand the case to state court. Green v. Hill, 954 F.2d 694, 698 (11th Cir.1992), withdrawn and superseded in part on reh’g, 968 F.2d 1098 (11th Cir.1992) (originally requiring remand to state court but then vacating in favor of an optional approach). The Second Circuit, like the Ninth, has held that certification for purposes of removal is conclusive but has not elaborated on this statement. McHugh v. Univ. of Vermont, 966 F.2d 67, 72 (2d Cir.1992).