Pennsylvania Railroad Company v. Day/Dissent Stewart

Mr. Justice STEWART, dissenting.

My brother HARLAN'S opinion contains, it seems to me, a lucid and persuasive analysis of the principles that should guide decision in this troublesome area of law. Where I part company is in the application of these principles to the facts of the present case.

I cannot agree that the issuance by the petitioner of this press release was 'action in the line of duty.' The statement to the press (set out in note 5 of Mr. Justice HARLAN'S opinion) did not serve to further any agency function. Instead, it represented a personally motivated effort on the petitioner's part to disassociate himself from the alleged chicanery with which the agency had been charged.

By publicizing the action which he intended to take when he became permanent Acting Director, and his past attitude as a lesser functionary, the petitioner was seeking only to defend his own individual reputation. This was not within, but beyond 'the outer perimeter of petitioner's line of duty.'

For dissenting opinion of Mr. Justice BRENNAN, see 360 U.S. 564, 79 S.Ct. 1347.