dissenting.
With full deference to my distinguished colleagues, I respectfully dissent. I do so because I am concerned that once again the law, in hewing rigorously to the written word, may have destroyed its larger spirit and left a harmed and innocent citizen completely remediless.1
I.
In most respects, I agree with the opinion of the court. The district court’s findings that Gross (1) was a federal employee and (2) was acting within the scope of his federal employment were not clearly erroneous. And it cannot be denied that Wollman’s filing of an administrative claim was more than two years after the occurrence of the accident. Nevertheless, in focusing literally on the two-year statute of limitations, the majority appears to have sacrificed two central purposes of the Federal Tort Claims Act (FTCA) — protecting federal employees from the burden of tort claims, and providing the injured public with some recompense. I do not believe the FTCA should be subjected to such a unidimensional reading in which its varying objectives are subordinated to the assertedly paramount goal of preserving the sovereign from stale claims.
What we have before us is an injured plaintiff who for two years diligently sought to settle his claims with defendant’s private insurer. Wollman was immediately reimbursed by the insurer for damages to his car. Gross and his insurer fully acquiesced in the avenue of recovery that plaintiff had pursued. At no point did they indicate in any way that Wollman should be dealing with someone other than themselves. The defendant never reported the accident to his employer and never treated the matter as though it were a job-related casualty. Because the defendant willingly participated in a private resolution of the claims, it appears anomalous that he should benefit from belatedly placing the matter in a governmental perspective. Surely, if the legislative history to the 1966 amendment of sections 2675 and 2401 governing *551federal tort claims contemplated that the administrative filing requirement had “the common purpose of providing for more fair and equitable treatment of private individuals and claimants when they deal with the Government or are involved with litigation with their Government,”2 it cannot have intended the result reached by the majority.
II.
I fully realize that Wollman filed his administrative claim more than two years after the discovery of his injury. But “when a particular claim accrues within the meaning of the FTCA is a question of federal law which must be determined by the court in light of the surrounding circumstances.” United States v. LePatourel, 593 F.2d 827, 830 (8th Cir. 1979); Steele v. United States, 599 F.2d 823, 826 (7th Cir. 1979) (noting unanimity among all courts of appeals except for the First Circuit on this issue). As the Kubrick decision itself declares, while the 1966 amendments to the Act indicated that the time of filing the administrative claim was the critical date for limitations purposes, the legislative reports do not further explicate when a tort claim “accrues” within the meaning of 28 U.S.C. § 2401(b). United States v. Kubrick, 444 U.S. 111, 119 n.6, 100 S.Ct. 352, 358 n.6, 62 L.Ed.2d 259. Thus, to say that a claim accrues upon discovery does not resolve the legal difficulties, for what should be discovered remains to be ascertained.
Prior to Kubrick, several circuits had held, generally in a malpractice context, that a plaintiff’s claim does not accrue until he has a reasonable opportunity to discover all of the essential elements of a possible cause of action — duty, breach, causation and damages. Stoleson v. United States, 629 F.2d 1265 (7th Cir. 1980); United States v. Kubrick, supra, 444 U.S. at 120 n.7, 100 S.Ct. at 358 n.7 (citing cases). Kubrick, however, carefully sought to limit this range of elements to the essential facts of “injury” and “cause” which, once known, would trigger accrual of a claim. Yet precisely because there is a discrepancy between the facts known to Kubrick and those available to Wollman, I find that Kubrick is not controlling here.
In Kubrick the issue was “whether the claim ‘accrues’ within the meaning of the Act when the plaintiff knows both the existence and the cause of his injury or at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice.” 444 U.S. at 113, 100 S.Ct. at 355. To put it another way, the Supreme Court appears to have proceeded on the assumption that Kubrick knew the facts and cause of his injury. What Kubrick did not know were the legal implications of his injury — that it had been negligently inflicted and that a legal duty to him had been breached by the Veterans Administration. In holding that “a plaintiff’s ignorance of his legal rights” and “his ignorance of the fact of his injury or its cause” are not identical for statute of limitations purposes, the Supreme Court was in essence penalizing Kubrick for his failure to seek professional advice, and encouraging future litigants to consult with competent counsel. As the Court explained, “A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.” 444 U.S. at 123, 100 S.Ct. at 360.3
Wollman, quite significantly, did not know a critical fact of his injury. He knew of course that he had been hurt, but he did not know the status of Gross at the time of *552the injury. Indeed, Gross had created the clear impression that at the time of the accident he was acting in his private capacity. Gross’ private insurer reimbursed Wollman for damages to his car and corresponded with Wollman and his lawyer for two years in an attempt to settle his claims for back injuries. In contradistinction, Kubrick knew that “it was highly possible that the hearing loss was the result of the neomycin treatment administered at the [VA] hospital,” 444 U.S. at 114, 100 S.Ct. at 355, and he even applied to the Veterans Administration for an increase in disability benefits.4 Wollman, however, had no idea that he should be complaining to a federal agency rather than bringing claims against the party with whom he had collided. Because no one believed that the accident had occurred within the scope of Gross’ employment, Wollman can hardly be faulted for not deducing the proper legal course from his admitted knowledge of his neighbor’s occupation. Wollman did not fail for want of legal advice to draw an acceptable legal conclusion from the relevant facts; rather no one considered the scope of Gross’ employment as an existing or salient fact.
As the district court found, Gross did not report the accident to his supervisor and did not, when he was finally sued, deliver the process served upon him to whomever his head of department had designated to receive such papers, as 28 U.S.C. § 2679(c) and 28 C.F.R. § 15.1 require. Gross’ insurer retained counsel to defend the original state court suit, and although the first answer denied the main allegations of the complaint there was no reference to federal employment nor recourse to the defense afforded by section 2679(b) to federal drivers whose accidents occur when they are acting within the scope of their employment. The consequence of these extended private negotiations which culminated in a suit that was timely for purposes of the state statute of limitations was that none of the papers in the lawsuit was sent to the U.S. Attorney, the Attorney General or the head of Gross’ employing agency, as envisaged by section 2679(c) and 28 C.F.R. § 15.1, until the filing of Gross’ second amended answer on February 21, 1979. Thus, Wollman only discovered the dispositive identity of the person who caused his injury — for purposes of the FTCA — more than two years after the fact of injury. Whether the claim is deemed to have accrued when Gross asserted, in his answer, his status as a government employee or when Wollman learned of the certification by the U.S. Attorney is unnecessary for us to decide, inasmuch as both occurred within two years of the filing of Wollman’s administrative claim on July 16, 1979.
The factual context present here, in which neither the plaintiff nor the defendant regarded the defendant as a federal employee at the time of the accident, is analogous to the situation in Kelley v. United States, 568 F.2d 259 (2d Cir. 1978). There the Second Circuit found that mutual ignorance of the fact that the defendant was a federal driver operating within the scope of his employment was no basis for visiting harsh statute of limitations consequences on a plaintiff. As that court noted,
[t]he case exemplifies a sub-class of Federal Tort Claims Act cases, a sub-class which draws to it no reprobation and invites no special rigor of treatment. It is, simply, one of the not uncommon cases in which a driver of a motor vehicle who is a federal employee is sued individually because the plaintiff did not know that defendant was a federal employee, or did not understand that the employee was on federal business at the time of the accident. The instances in this sub-class of *553cases are characterized by innocent ignorance or ingenuous blunder. There is nothing here to be discouraged or visited with disaster.
Id. at 262. The same sort of blameless ignorance of the identity aspect of the causal element, which should postpone accrual of a claim, is present in the case at hand.5 And it is more appropriate to characterize such a state of affairs as reflecting ignorance of a crucial fact, rather than doubt about whether a legal duty to one had been breached. Because Wollman was unaware of a critical factual predicate of his claim, and not simply unaware that the defendant’s actions might constitute actionable negligence, the case would appear to be distinguishable from Kubrick. See 444 U.S. at 121 n.8, 100 S.Ct. at 359 n.8.
III.
Further, and perhaps more important for purposes of differentiating this case from Kubrick, Wollman diligently pursued his claims. While the reasoning in the Kubrick opinion is justified insofar as it is invoked against those who sleep on their rights, the very opposite behavior occurred here. Wollman was not oblivious to the legal implications of his complaints. He believed he had suffered a legal wrong, he sought legal advice, and his counsel and Gross’ insurer continuously strove to resolve outstanding issues of negligence and liability. Wollman eventually filed suit well within what he understood to be the applicable limitations period — the three years designated by the state. Therefore, a postponement of the accrual date of Wollman’s claim would not frustrate the purpose of the federal statute: requiring a reasonably diligent presentation of tort claims.6
Nor is the spectre raised in Kubrick —that a plaintiff could bring a claim at any conceivable future date so long as it was “within two years from the time he receives or perhaps forms for himself a reasonable *554opinion that he has been wronged” 7 — transferable to the present context. An injured plaintiff pursuing the operator of a motor vehicle as an individual would still have to commence suit within the state statute of limitations which for such torts is at most three years.8
The ruling by the majority produces an even more paradoxical result: plaintiffs in states with two-year statutes of limitations who are ignorant of the status of the tortfeasor will generally have occasion to repair the deficiency and file a timely administrative claim; in states with three-year statutes of limitations a diligent plaintiff like Wollman, who brings suit after two years but well within three years, will be absolutely barred from redirecting his claim to the appropriate federal agency. Yet as the Report to the 1949 amendment of the original one-year limitations period of the Act indicates, one of the reasons for extending the limitations period to two years was to bring the Act more in line with limitations periods for state tort actions. See Kubrick, 444 U.S. at 119 n.6, 100 S.Ct. at 358 n.6, citing H.R.Rep. No. 276, 81st Cong., 1st Sess., 1 (1949).9 Jurisdictions like South Dakota, which sought to provide added protection to their citizens with three-year statutes of limitations may have instead created a system which leaves injured persons remediless, if the majority’s view of the FTCA is adopted.
Precisely because the judgment which the Supreme Court sought to impose on Kubrick — namely, the determination whether to sue or not within the period of limitations — would occur in any event within three years in the present context, the underlying rationale in Kubrick of protecting the government from stale claims is dissipated. Kubrick understandably was concerned with guarding “defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.” 444 U.S. at 111, 100 S.Ct. at 352. But this purpose would not be subverted by permitting Wollman’s claim to proceed, on the basis that it did not accrue until he was apprised of the governmental identity of the person who caused the injuries, and yet was, as a private action, properly filed within the state statute of limitations. The evidence remains intact, the record is complete with doctors’ reports and insurance claims, the witnesses are available, and there is no indication that the diminution in memory between the second and third year after the event is likely to be significant.
Moreover, as this court reasoned in LePatourel, in attempting to balance the equities of permitting a unique plaintiff subgroup to proceed on claims that accrued more than two years after the event against the right of the government to be free of stale claims: “We * * * agree * * * that the class of claimants similarly situated * * * cannot be so large as to threaten the interests protected by § 2401(b).” 593 F.2d at 832. Similarly, to allow Wollman to assert *555his claim would not markedly prejudice the ability of the government to defend.
The only defensible basis for shortcircuiting Wollman’s dogged pursuit of a remedy would appear to be the formal value of a uniform federal rule.10 Under the principles articulated above, the interaction of the FTCA with the limitation laws of the various states would affect whether claims accrued within two or three years. This would undercut the policy of simple repose for the United States — the undeniable purpose of a two-year limitation — insofar as the government would be subject to slight divergencies resulting from local rules. Cf. Steele v. United States, 599 F.2d 823, 826 (7th Cir. 1979). Yet this vaulting of form over substance contravenes the central compensatory and protective purposes of the Federal Tort Claims Act. As this court has indicated, the dominant purpose of the Act was to end the ancient injustice of tort immunity. “Congress, in waiving the sovereign immunity of the United States, intended that tort victims be compensated for injuries caused by the negligence of governmental employees.” United States v. LePatourel, supra, 593 F.2d at 831. And the specific purpose of the section 2679(b) de^ fense was “to protect the federal drivers from individual liability and from the necessity of carrying liability insurance.” Kelley v. United States, supra, 568 F.2d at 266. Allowing Wollman to pursue his administrative claim would unquestionably further the compensatory purposes of the Act. Not to do so would create a perverse incentive for such a plaintiff to prove that the government erred in certifying that Gross was a federal employee acting within the scope of his employment. Such a result obviously undermines the very purpose of section 2679(b)-(d), which is to insulate federal employees from individual liability. Cf. Kelley v. United States, supra, 568 F.2d at 266.11
IV.
In sum, I cannot agree that the result reached by the majority today accords with the congressional intent embodied in the Federal Tort Claims Act. Accordingly, I dissent.
. O just but severe law! .. .
No ceremony that to great ones (be)’longs, Not the King’s crown, nor the deputed sword, The marshal’s truncheon, nor the judge’s robe,
Become them with one half so good a grace As mercy does.
If he had been as you, and you as he, You would have slipp’d like him; but he, like you
Would not have been so stern.
Measure for Measure
Act II Sc. 2
. S.Rep. No. 1327, 98th Cong. 2nd Sess., reprinted in [1966] U.S.Code Cong, and Ad.News, pp. 2515-16.
. The Court is even more emphatic in a footnote which remarks: “Although he [Kubrick] diligently ascertained the cause of his injury, he sought no advice within two years thereafter as to whether he had been legally wronged. The dissent would excuse the omission. For statute of limitations purposes, we would not.” 444 U.S. at 123 n.10, 100 S.Ct. at 360 n.10.
. As the Supreme Court was careful to note, “the VA Board of Appeals’ reconsideration of Kubrick’s case in 1975 entitled him to an increase in his disability rating as a result of the use of neomycin.” United States v. Kubrick, 444 U.S. at 116 n.5, 100 S.Ct. at 356 n.5. Kubrick, who received more than $50,000 in augmented disability benefits, was surely not remediless.
. This court has rejected the reasoning in Kelley to the extent that it relies upon the third-party practice exception of 28 U.S.C. § 2675(a) to support its holding that the plaintiff’s action, commenced against the individual employee within two years, could be maintained against the United States as substituted defendant even though no timely administrative claim had been made. See West v. United States, 592 F.2d 487, 491 n.3 (8th Cir. 1978). Kelley itself noted that Meeker v. United States, 435 F.2d 1219 (8th Cir. 1970), rejected “the contention that suits commenced as suits against Government employees are not within Section 2675’s requirement that a claim first be filed with the interested federal agency.” 568 F.2d 259 at 267. Yet, Meeker and West do not present a situation that parallels exactly the one before us here. Meeker involved a collision with a United States Post Office vehicle — government ownership and control were patently obvious. Moreover counsel conceded that should the matter proceed to trial, he expected to recover from the United States Government. 435 F.2d 1219, 1220-21 & nn.l, 4. The identity of the tortfeasor was clearly not an undiscovered fact. Similarly, in West, the parents of the injured child learned before the two-year statutory period for filing an administrative claim had expired that the allegedly negligent doctor was a governmental employee and that the U.S. Attorney was appearing on his behalf. West v. United States, 592 F.2d 487 (8th Cir. 1979).
. For the same reason this case cannot be equated with Steele v. United States, 599 F.2d 823 (7th Cir. 1979), in which the plaintiff commenced his suit against the government without first filing an administrative claim with the appropriate agency. The court discredited Steele’s claim about his inability to discover the government’s involvement as conveniently designed to make his tardy administrative claim appear timely:
The bar to the plaintiffs action appears not so much the result of the accrual of his cause of action when he suffered the injury, as his waiting until the last minute to take action and his confusion about the proper means of commencing a tort claim against the United States. The two-year limitations period was intended to afford those injured by torts committed by agents of the government a reasonable time to discover the facts, seek legal advice, and prepare their claims. The reasonable inference to be drawn from the history of the plaintiff’s claim is that he did not use this time diligently.
599 F.2d at 829. Wollman, to the contrary, was exceedingly diligent.
. United States v. Kubrick, 444 U.S. at 118, 100 S.Ct. at 357. As the Court cautioned: “In this case, for example, Kubrick would have been free to sue if Dr. Soma had not told him until 1975, or even 1980, instead of 1972, that the neomycin treatment had been a negligent act.” Id. at 118, 100 S.Ct. at 357.
. The original Statute of Limitations enacted in 1623 imposed limitations of four years for actions of trespass, assault and battery and limited actions of debt, detinue, replevin and actions on the case (predecessors of suits in contract) to six years. Present statutes have by and large retained the same two types of classifications, limiting actions in tort to two or three years and actions in contract to six years. See Developments — Statutes of Limitations, 63 Harv.L.Rev. 1177, 1192 (1950).
. It can be argued that where, as it appears here,' Congress creates a statute of limitations which- simply aims at a legislative redefinition of earlier state statutes limiting tort actions, a construction which relates the statute’s application to the existing traditional tort action is most appropriate. Cf. Developments — Statutes of Limitations, 63 Harv.L.Rev. 1177, 1194 (1950).
. It has been recognized that limitations on private actions against the sovereign, as in the present case, “serve the purpose not so much of fairness as of public convenience.” Wollman’s remediless position would appear to be a high price to pay for convenience. On the other hand, when the legislature limits the sovereign’s right to proceed against private individuals, e. g., in criminal prosecutions, more fundamental values are furthered: “the defendant’s special interest in not being compelled to put his freedom and his reputation at the hazard of what is likely to be parol evidence of imperfectly remembered events,” as well as the minimal “social utility of punishing crimes long past.” See Developments — Statutes of Limitations, 63 Harv.L.Rev. 1177, 1186 (1950).
. Moreover, to the extent that compensating victims and protecting federal employees from liability are objectives of the FTCA, it would appear only fair that if Gross, as an individual, could be sued during a three-year period, then the government, stepping into his shoes, should acknowledge an equivalent vulnerability.