of removing the threat of common law liability "which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government." Barr, 360 U.S. at 570.
This is clearly not a case which deals with discretionary official conduct or policy-level decisionmaking. Instead, the conduct in the present case might be thought of as discretionary personal conduct -- it was clearly a permitted but certainly not a required element of the defendant's official acts.
In determining the scope of employment for purposes of the respondeat superior doctrine, courts have long considered certain "personal" activities to be so necessary, usual, and closely tied in to the workplace that they are considered to be within the scope of employment. See, e.g., Brown v. Anzalone, 300 F.2d 177 (3rd Cir. 1962) (lighting fire to stay warm); George v. Bekins Van & Storage Co., 33 Cal.2d 834, 205 P.2d 1037 (1949) (smoking); J.C. Penney Co. v. McLaughlin, 137 Fla. 594, 188 So. 785 (1939) (going to restroom). Certainly, obvious distinctions may be made between the immunity policy of Barr and the respondeat superior doctrine. Nevertheless, the Court finds the scope of employment opinions instructive in their recognition of discretionary personal activities as an integral part of the workplace.
The Court is concerned, however, that a holding placing the activities in this case within the realm of absolute immunity will stretch that doctrine out of context and create a gap between the liability of public employees and their private counterparts that the Supreme Court never intended to create. Although the conduct of defendants Gillilland and Burke may be considered lawful, within their discretion, and even within the scope of their employment, it is not the type of activity which requires the blanket protection of the absolute immunity doctrine. The Court recognizes that the language of Barr and its progeny is quite broad but nevertheless believes that a distinction may be drawn between discretionary personal activities and discretionary official duties.
This is so because of the nature of official decisionmaking. At the policy level, many of a government official's actions and decisions have at least the potential to cause some injury to someone. Any such injury -- even in the form of a denial of a benefit -- may be readily pled in the form of a common law tort by a competent attorney. Thus, the absolute immunity afforded by Barr is a necessary shield from a potential onslaught of lawsuits -- "suits which would consume time and energies that would otherwise be devoted to governmental service. . . ." Barr, 360 U.S. at 570.
Any lawsuit against a government employee will consume time and energy, but only a suit involving official acts will "appreciably inhibit the . . . effective administration of policies of government." Id. In short, the doctrine of absolute immunity exists to protect and encourage government officials in making difficult decisions involving the operation of government. Personal decisions and activities, such as the coffee-making in the instant case, do not need the same protection and encouragement.
Finally, the Court notes that Congress has immunized federal employees from tort liability for injuries arising from automobile accidents occurring within the scope of employment. Thomason v. Sanchez, 539 F.2d 955 (3rd Cir. 1976) (limited exclusivity provision of F.T.C.A. immunizes government employee from individual liability). Although the somewhat shopworn maxim expressio unius est exclusio alterius does not compel the Court to the opposite conclusion with respect to other types of job-related conduct, the limited nature of the exception does suggest an intent to treat public employees on the same terms as their private colleagues in the ordinary run of cases. The Court believes that the congressional judgment is not in any way contrary to the holding of Barr, which also provides a narrow exception to the usual rule of individual liability. Thus, although the congressional intent is not controlling on the issue at hand, this Court declines to expand the immunity provided by Barr v. Matteo far beyond its original intent and in a fashion that would effectively override the Congressional judgment evinced in the Federal Tort Claims Act. The motion of the individual federal defendants to dismiss on the grounds of absolute immunity is denied.
An appropriate order will be entered in accordance with the terms of this Opinion.