(dissenting).
While I concur in the general proposition of the majority opinion holding that the decision of the Attorney General under the Federal Drivers Act is reviewable by the United States District Court, I hesitate to join in the conclusion that review under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. is an available remedy while mandamus is not.
The jurisdiction of a District Court in mandamus is ordinarily limited to nondiscretionary ministerial duties. Armstrong v. United States, 233 F.Supp. 188, aff’d, 354 F.2d 648 (9th Cir. 1965), cert. denied, 384 U.S. 946, 86 S.Ct. 1472, 16 L.Ed.2d 543 (1966); Switzerland Co. v. Udall, D.C.N.C., 225 F.Supp. 812, aff’d, 337 F.2d 56 (4th Cir. 1964), cert. denied, 380 U.S. 914, 85 S.Ct. 900, 13 L.Ed.2d 800 (1965).
In another context it has been held that mandamus will not lie to control the discretion of the Attorney General:
Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1868); Moses v. Katzenbach, 119 U.S.App.D.C. 352, 342 F.2d 931 (1965), affirming sub nom. Moses v. Kennedy, 219 F.Supp. 762 (D.D.C.1963); Goldberg v. Hoffman, 225 F.2d 463 (7th Cir. 1955); Pugach v. Klein, 193 F.Supp. 630 (S.D.N.Y.1961); United States v. Brokaw, 60 F.Supp. 100 (S.D.Ill. 1945).1
Assuming the determination of the Attorney General under 28 U.S.C. § 2679 is discretionary, recourse to the Administrative Procedures Act is not all that clear. Section 701(a)(2) excepts from the Administrative Procedures Act, “agency action . committed to agency discretion by law”. Proietti v. Levi, 9 Cir., 530 F.2d 836, declares this limitation inapplicable by reference only to Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136.2 Citizens, however, does not *871deal with the Attorney General and states only that: “The Secretary’s [of Transportation] decision here does not fall within the exception for action ‘committed to agency discretion” . . . supra at page 410, 91 S.Ct. at page 820.
I have difficulty visualizing an act discretionary which renders mandamus inapplicable but the Administrative Procedure Act not.
Is recourse to the state courts at plaintiff-appellant’s own expense the only remedy? This, I suggest, defeats the essential purpose of 28 U.S.C. § 2679. It was precisely to avoid subjecting government employees to the expense of defending personal injury suits that this section was adopted.3
Were I convinced that the Administrative Procedure Act does in fact provide a remedy, I would agree with the majority. Believing, however, that a determination of the Attorney General should be reviewable in the first instance by the United States District Court, I am unwilling to assign to future plaintiffs a remedy which may be no remedy at all. For these reasons I do respectfully dissent.
. Cited and followed in Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970).
. “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).” Proietti v. Levi, supra at 838.
. Section 2679 was added to Title 28 in 1961. It had its origin in a bill entitled HR 2883. The following excerpts from debate on Section 2679 are particularly significant:
Without such protection [Section 2679] Government employees driving motor vehicles in the course of their official duties must make a personal investment in insurance to protect themselves against damage suits. This imposes a heavy burden on a group of employees who must incur this expenditure only because of their government duties [emphasis added]. Senator Kenneth B. Keating.
Senator Keating was joined by Senator Sam Ervin, Jr., who made the following observation:
The second interest with which we are concerned is that of the federal employee, be he Postal employee or an employee in some other federal activity who cause injury unintentionally in the performance of his duties as an employee of the federal government . and he is entitled to have his cause defended by the Attorney General. [Emphasis Added]
107 Congressional Record pp. 18499-500, 87th Congress, First Session.