dissenting:
I believe the district court erred when it granted summary judgment for the United States because Tilden R. Wilkinson’s admin*1003istrative claim was presented two years and twenty-one days after he was struck by a car operated by Richard E. Gray, a government employee. A brief chronology places the issues raised by this appeal in perspective. Wilkinson was injured about 10:00 p. m. on October 3, 1978. His attorney filed an action in state court on September 17, 1980, after unsuccessful attempts to settle with the insurance carrier for the rental car that Gray was operating. In a pleading filed October 10, 1980, Gray’s attorney asserted that Gray was a government employee acting in the scope of his employment. On October 20, 1980, Wilkinson’s attorney mailed an administrative claim to the Navy, which was filed on October 24, 1980. The procedures then followed by the government are outlined in the government’s brief, which I accept as accurate. After noting the filing of the administrative claim on October 24, 1980, the brief, page 7, continues:
There followed a period of approximately four months of discovery in the state court on the question of scope of employment while, simultaneously, the Navy claims attorney investigated the circumstances to determine whether Gray had indeed been acting within the scope of his employment at the time of the accident.
After the claims attorney for the Navy determined to his satisfaction that Gray was acting within the scope of his employment at the time of the accident, he requested representation by the United States Attorney who thereupon removed the case from state to federal court and moved for dismissal on the grounds that plaintiff had failed to file an administrative claim as a jurisdictional prerequisite to suit and the statute of limitations had expired.
On April 6, 1981, the United States District Attorney certified to the state court that Gray was a government employee acting in the scope of his employment and petitioned for removal pursuant to the Federal Drivers’ Act, Pub.L.No. 87-258, 75 Stat. 539 (1961) [28 U.S.C. § 2679(bHe) ]. The district court subsequently dismissed the action because Wilkinson had not filed an administrative claim within two years from the date of his injury.1
The statute on which the district court relied, 28 U.S.C. § 2401(b), does not by its terms expressly require the administrative claim to be presented within two years of the date of injury. Instead, Congress specified that the claim must be presented “within two years after such claim accrues . . . . ” To determine when “such claim accrues,” I would adopt for the purposes of the Drivers’ Act, the principles expressed in United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). There the Court accepted the government’s construction of § 2401(b) to the effect that a medical malpractice claim accrues “when the plaintiff knows both the existence and the cause of his injury ...” 444 U.S. at 113, 100 S.Ct. at 355.2 Here Wilkinson knew of the existence of the injury on the night he was struck. But it is uncontroverted that he did not then know the critical fact that is essential for a claim against the United States- — namely, that his injury was caused by a government employee acting within the scope of his employment. Nor was there immediately available to him information about Gray’s mission. By October 9, 1978, when Wilkinson consulted an attorney, Gray had left Virginia without disclosing to the local naval claims officer that he had been involved in an accident. Wilkinson’s attorney wrote the rental car agency, which had furnished the car Gray was driving, on October 16, 1978, but he received no reply until the following December. Moreover, not until after suit was filed did Gray come forward and reveal that he was acting within the scope of his government employment.
*1004In the district court, Wilkinson raised the issue which he presses on appeal. The district court’s opinion states it in the following terms:
The plaintiff’s administrative claim was filed with the Naval Legal Service Office more than two years after the accident occurred. The plaintiff argues, however, that the Government is precluded from asserting this defense because the plaintiff was not aware that Gray was acting within the scope of his employment until the defendant’s attorney filed a Motion to Dismiss in the state court after the two-year limitation period of 28 U.S.C. § 2401(b) had expired. See 523 F.Supp. at 375.
Thus, in the district court, the question was squarely presented: Did Wilkinson’s cause of action accrue within the meaning of § 2401(b) when he was injured or when he became aware that Gray was acting within the scope of his employment? The district court held that it accrued on the date of the accident, stating: “[Tjhere is no basis for a categorical exception to Rule 2401(b) where the plaintiff is not at the outset aware that the defendant was acting within the scope of his employment.” 523 F.Supp. at 375-76.
I cannot join in approving the rationale of the district court that the claim accrued on the date of injury. Instead, I would hold that Wilkinson’s claim accrued within the meaning of § 2401(b) in the context of the Drivers’ Act when he or his attorney knew, or in the exercise of reasonable care should have known, that his injury was caused by a government employee acting within the scope of his employment. See Kubrick, 444 U.S. at 113 and 122, 100 S.Ct. at 355 and 360.
Ordinarily a claim accrues on the date of injury. Sometimes, as here and as in Kubrick, the issue of accrual presents a mixed question of law and fact. In this case, however, remand for the development of the facts appears unnecessary. The administrative notice of claim was only 21 days beyond the two year period. Although Wilkinson’s attorney learned soon after the accident that Gray was a government employee, the district court did not find that Wilkinson or his attorney knew, or should have known, within 21 days after the accident that Gray, driving a rental vehicle after normal working hours, was acting in the scope of his authority. Moreover, the government’s brief indicates that although the Navy began its investigation shortly after October 24, 1980, several months elapsed before the naval claims attorney “determined to his satisfaction that Gray was acting within the scope of his employment at the time of the accident . . . . ” Consequently, following Kubrick, it is logical to conclude that the claim did not accrue within 21 days after the accident, and Wilkinson’s administrative claim was timely.
Having stated what I believe to be the proper construction of § 2401(b) when read with the Drivers’ Act, I now explain my reasons for concluding that application of the Kubrick principle — the claim accrues when the plaintiff knows both the existence and cause of his injury — is appropriate for claims subject to the Drivers’ Act. This Act, § 2679(b), provides that the Federal Tort Claims Act shall be the exclusive remedy for injury resulting from the “operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment . . . . ” Thus, Congress did not apply the Tort Claims Act to every injury resulting from the operation of a vehicle by a government employee. Moreover, the Drivers’ Act does not create any presumption that the employee was acting in the scope of his employment. Unless the government concedes this essential element of the Tort Claims Act, the burden is on the claimant to prove by a preponderance of the evidence that the accident was caused by an employee acting within the scope of his employment. Often this essential fact will be self-evident — for example, when the driver of a United States mail truck causes the injury. But when, as here, a government employee is driving a non-government vehicle after normal working hours in an area where many government employees regularly drive on private business, the nature of the employee’s activity *1005is not readily apparent.3 Furthermore, the facts necessary for the claimant to determine whether the employee is acting in the scope of his employment are frequently known, as here, only to the government employee or his superior officers. Indeed, by the government’s own reckoning its investigation to determine the true nature of Gray’s mission at ten o’clock on the night of the accident took several months, and the government does not suggest that the investigation was in any way prolonged because the administrative claim was filed within two years and twenty-one days rather than two years.
Furthermore, the Drivers’ Act serves a dual purpose. It not only confers a cause of action against the government in an appropriate case, it also grants immunity to the government employee who is engaged in the government’s business. In this respect, the Act drastically alters the common law rule governing an injured person’s claim against a principal and agent, which permits the claimant to recover from the agent even if he cannot establish the principal’s vicarious liability. The Act’s departure from the common law suggests an additional reason why the common law concept of accrual of a cause of action on the day of injury is inappropriate.
Although Kubrick was a medical malpractice case, the Court’s analysis of the concept of accrual in § 2401(b) is pertinent to the Drivers’ Act. In Kubrick, 444 U.S. at 122, 100 S.Ct. at 360, the Court accepted as the time of accrual the date the plaintiff possesses “the critical facts that he has been hurt and who has inflicted the injury.” The second critical fact — “who has inflicted the injury” — has two components: (1) the name of the person and (2) his identity as a government employee acting in the scope of his employment. Until the plaintiff has had a reasonable opportunity to ascertain this critical fact, he cannot determine whether he has a claim against an individual or the government. Until then, he cannot determine who, in the eyes of the law, inflicted his injury. Obviously, by the terms of the Drivers’ Act he cannot have a claim against both the principal and the agent as he otherwise would have at common law.
Therefore, the claim against the government should not accrue until the claimant in the exercise of reasonable diligence has an opportunity to ascertain whether he can establish an essential element of a cause of action under the Tort Claims Act — that is, whether the injury was caused by an employee acting within the scope of his employment. To hold, as the district court did, that the claim accrues on the date of the injury is contrary to the plain language of § 2401(b) and the sensible construction of this section accepted by the Supreme Court in Kubrick. The vice of the district court’s decision is its determination that a claim against the government accrues before even a diligent claimant learns the critical fact that the driver who injured him has given cause for such a claim. Thus, the district court’s decision effectively reduces the two year limitation period from the time the claim accrues that Congress expressly provided in § 2401(b).
Other judges, though approaching the issue from a somewhat different perspective, have perceived the inequity of the result reached by the district court. See Wollman v. Gross, 637 F.2d 544, 550-55 (8th Cir. 1980) (Adams, J., dissenting); 646 F.2d 1306 (1981) (Lay, Bright, McMillian and Arnold, JJ., dissenting from denial of rehearing en banc). Indeed, the result reached by the district court is so unjust and so contrary to congressional intent that a similar case would not be dismissed in the Second and Tenth Circuits.4 In Kelley v. United States, 568 F.2d 259 (2d Cir. 1978), the court held that when a claimant institutes suit against *1006a government employee in a state court within .the time limited by state law, it is unnecessary .to determine whether the action accrued at a date later than the accident. Timely institution of the suit in a state court precludes dismissal even though the administrative claim is filed more than two years after the accident. 568 F.2d at 262 — 68.5 See also Henderson v. United States, 429 F.2d 588 (10th Cir. 1970). Kelley and Henderson reach the proper result on the basis of logical reasoning that is consistent with the legislative history. In some respects, their rationale is preferable to the reasons assigned in this dissent. Nevertheless, I believe that Kubrick, which was decided after Kelley and Henderson, provides adequate, authoritative precedent for reversing the district court and reinstating Wilkinson’s action.6
. Wilkinson v. Gray, 523 F.Supp. 372 (E.D.Va.1981).
. In Kubrick, the Court went on to hold that accrual is not postponed until the claimant learns that the injury was negligently inflicted. 444 U.S. at 123, 100 S.Ct. at 360. Adhering to Kubrick, I do not suggest that accrual should be deferred until Wilkinson knew or in the exercise of reasonable care should have known that Gray acted negligently while engaged in the government’s business.
. The cities and counties adjacent to Hampton Roads have an exceptionally large number of naval and other government personnel.
. It also appears that a similar case would not be dismissed in the Seventh Circuit. See McGowan v. Williams, 623 F.2d 1239 (7th Cir. 1980), which approves Whistler v. United States, 252 F.Supp. 913 (N.D.Ind.1966). McGowan also cautions that Steele v. United States, 599 F.2d 823 (7th Cir. 1979), on which the Wollman majority and the district court relied, does not pertain to actions governed by the Drivers’ Act. See 623 F.2d at 1243.
. In the district court and on appeal, Wilkinson relied on Kelley. The district court mistakenly, I believe, considered that Kelley was inapposite on the ground that there the government had lulled the plaintiff into a false sense of security. See 523 F.Supp. at 376. Kelley, however, was not decided on the basis that the government lulled the claimant into a false sense of security. Although the court of appeals referred to this description of the government’s conduct by the district court, see 568 F.2d at 262, it did not predicate its decision on this theory of estoppel. See 568 F.2d at 262-68.
. Kubrick, it should also be noted, was decided three years after Miller v. United States, 418 F.Supp. 373 (D.Minn.1976), which is the single authority cited in opposition to the concept of “accrual” that Kubrick explains. Lacking the benefit of Kubrick, the Miller court quite understandably erred, and its ruling, I believe, is no longer acceptable as sound precedent.