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> JOHN N. MITCHELL, PETITIONER v. KEITH FORSYTH
>
> No. 84-335
>
> SUPREME COURT OF THE UNITED STATES
>
> *1984 U.S. Briefs 335;* *1984 U.S. S. Ct. Briefs LEXIS 1434*
>
> October Term, 1984
>
> December 19, 1984
>
> **\[\*1\]**
>
> *ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
> THIRD CIRCUIT*
>
> BRIEF FOR THE PETITIONER

REX E. LEE, *Solicitor General,* RICHARD K. WILLARD, *Acting Assistant
Attorney General,* PAUL M. BATOR, *Deputy Solicitor General,* SAMUEL A.
ALITO, JR., *Assistant to the Solicitor General,* BARBARA L. HERWIG,
GORDON W. DAIGER, LARRY L. GREGG, *Attorneys*

QUESTIONS PRESENTED

1\. Whether the collateral order doctrine permits an immediate appeal
from an order denying a claim of qualified immunity in a damages suit
against a public official on the ground that the legal standards
allegedly violated were clearly established at the time in question.

2\. Whether petitioner was entitled to qualified immunity in this case.

3\. Whether the Attorney General is entitled to absolute immunity when
he makes decisions in the area of national security.

PARTIES TO THE PROCEEDINGS

In addition to petitioner, the following parties were defendants in the
district court: Richard G. Kleindienst, L. Patrick Gray III, Albert
Cooper, and E. Davis Porter. Petitioner is the only remaining defendant.
Respondent Keith Forsyth was the only plaintiff.

View **\[\*2\]** Table of Contents

View Table of Authorities

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-29a) is reported at
*729 F.2d 267.* The opinion of the court of appeals on respondent\'s
motion to dismiss the appeal (Pet. App. 31a-42a) is reported at *700
F.2d 104.* The opinion of the district court (Pet. App. 52a-77a) is
reported at *551 F. Supp. 1247.* The opinion of the district court
denying certification of an interlocutory appeal (Pet. App. 44a-50a) is
reported at *551 F. Supp. 1247.* The prior opinion of the court of
appeals (Pet. App. 83a-116a) is reported at *599 F.2d 1203.* The initial
opinion of the district court (Pet. App. 117a-142a) is reported at *447
F. Supp. 192.*

JURISDICTION

The judgment of the court of appeals was entered on March 8, 1984. A
petition for rehearing **\[\*7\]** was denied on April 3, 1984 (Pet.
App. 81a-82a). On June 25, 1984, Justice Brennan extended the time for
filing a petition for a writ of certiorari to and including August 31,
1984. The petition for a writ of certiorari was filed on that date and
was granted on October 29, 1984. The jurisdiction of this Court is
invoked under *28 U.S.C. 1254*(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The pertinent constitutional and statutory provisions are set out in the
petition at page 2.

STATEMENT

1\. In June 1970, the Philadelphia office of the Federal Bureau of
Investigation (FBI) was informed by a member of the East Coast
Conspiracy to Save Lives (ECCSL) that the group was planning to protest
the Vietnam War by destroying the underground utility tunnels serving a
portion of the federal enclave in Washington, D.C. The plan was to be
carried out in February 1971. The FBI also learned that the ECCSL
already had been successful in carrying out several raids on draft board
offices. In August 1970, the FBI received information that three ECCSL
members, including William Davidon, a professor at Haverford College,
had discussed a plan to kidnap **\[\*8\]** Henry A. Kissinger, then
Assistant to the President for National Security Affairs, simultaneously
with the destruction of the utility system. n1 This latter information
was conveyed to the White House in addition to the Attorney General
(Pet. App. 85a, 120a-121a). n2

> n1 The ECCSL\'s plans are discussed in *United States v. Berrigan, 482
> F.2d 171, 177-179 (3d Cir. 1973).*
>
> n2 During his deposition in this case, Attorney General Mitchell
> recalled that Secretary Kissinger was provided Secret Service
> protection in light of the kidnap threat (Mitchell Dep. 60). At that
> time, Secretary Kissinger was engaged in secret peace negotiations
> with the North Vietnamese in Paris (Mitchell Dep. 60-62).

On November 6, 1970, petitioner, serving then as Attorney General of the
United States, approved a request by the Director of the FBI to place a
telephone surveillance on Davidon\'s home telephone. The primary purpose
of this surveillance was to gather intelligence about the ECCSL\'s
plans, although it was anticipated that evidence for use in criminal
proceedings might also be obtained. The wiretap was authorized for a
period of 30 days and later reauthorized for an additional **\[\*9\]**
30-day period. It was discontinued on January 6, 1971. During the
surveillance, conversations between Davidon and respondent Keith Forsyth
were overheard on three occasions (Pet. App. 85a-86a).

At the time of the Davidon surveillance, the only two federal courts
that had considered the question had held that the President was
permitted to order domestic security wiretaps without obtaining a
warrant. *United States* v. *Dellinger,* No. 69 CR 180 (N.D. Ill. Feb.
20, 1970) (J.A. 30); *United States* v. *O\'Neal,* No. KC-CR-1204 (D.
Kan. Sept. 3, 1970) (J.A. 38). In *Katz v. United States, 389 U.S. 347,
358 n.23 (1967),* this Court has expressly reserved decision on the
question whether national security surveillances generally require
warrants, and conflicting views on this question had been expressed by
individual Justices in concurring opinions. Compare *id. at 359-360*
(Douglas, J., joined by Brennan, J., concurring) with *id. at 362-363*
(White, J., concurring). The federal wiretapping statute also provided
no definitive answer to this question. Shortly after *Katz* was decided,
Congress enacted Title III of the Omnibus **\[\*10\]** Crime Control and
Safe Streets Act of 1968, *18 U.S.C. 2510*-2520, to govern the use of
wiretaps. However, a provision of that Act, *18 U.S.C. (1976 ed.)
2511*(3), \"ma\[de\] clear that the Act simply did not legislate with
respect to national security surveillances.\" *United States v. United
States District Court, 407 U.S. 297, 306* (footnote omitted) (1972)
\[hereinafter cited as *Keith*\].

2\. After respondent Forsyth learned of the wiretaps, he instituted this
action in the United States District Court for the Eastern District of
Pennsylvania against petitioner and two FBI employees who had installed
and maintained the electronic surveillance. n3 Respondent sought damages
for the three overhearings of his telephone conversations, claiming that
the warrantless electronic surveillance violated Title III and the
First, Fourth, and Ninth Amendments to the Constitution. n4

> n3 Respondent also named as defendants former Attorney General Richard
> G. Kleindienst and former Acting FBI Director L. Patrick Gray III.
> These defendants\' respective terms of office did not coincide with
> the period of the surveillance, and accordingly the claims against
> them were voluntarily dismissed in the district court.
>
> n4 One other damage action based on the Davidon surveillance is still
> pending against petitioner. That suit, *McAlister* v. *Kleindienst,*
> Civ. Action No. 72-1977 (filed Oct. 10, 1972 E.D. Pa.), which was
> filed by Davidon and another person overheard on the surveillance, has
> been stayed pending disposition of appellate proceedings here. In
> another suit, which was based both upon the Davidon surveillance and
> another wiretap, the district court recently granted summary judgment
> for petitioner, holding that the illegality of the wiretaps was not
> clearly established at the time in question. *Burkhart v. Saxbe, 596
> F. Supp. 96 (E.D. Pa. 1984)* (see Pet. App. 143a-155a).

**\[\*11\]**

After discovery, petitioner filed a motion for summary judgment urging,
inter alia, that the case be dismissed on absolute and qualified
immunity grounds. The district court denied this motion (Pet. App.
117a-142a). The court held ( *id. at 134a-137a)* that petitioner was not
entitled to absolute immunity under *Imbler v. Pachtman, 424 U.S. 409
(1976),* because he was functioning as an administrator rather than as a
prosecutor. The court also held (Pet. App. 140a-142a) that the claim of
qualified immunity could not be resolved on a motion for summary
judgment. Applying the qualified immunity standard articulated in *Wood
v. Strickland, 420 U.S. 308 (1975),* and *Butz v. Economou, 438 U.S. 478
(1978),* the court concluded that there were genuine (but unspecified)
issues of material fact \"in connection with the defendants\'
affirmative defense of good faith\" (Pet. App. 142a).

3\. On appeal from the denial of the motion for summary judgment, the
court of appeals held that it had jurisdiction to review the district
court\'s denial of absolute immunity (Pet. App. 89a-95a). On the merits
of this issue, the court **\[\*12\]** concluded (*id.* at 95a-111a)
that, under *Butz v. Economou, 438 U.S. at 515,* and *Imbler v.
Pachtman, supra,* the Attorney General is absolutely immune from
personal damages liability for his official acts only when performing
functions analogous to those of a prosecutor. The court of appeals
rejected any notion that broader absolute immunity was needed to protect
the Attorney General from harassing lawsuits, stating that \"*Butz* \*
\* \* was unconcerned with this problem\" (Pet. App. 101a). The court of
appeals remanded the case to the district court to consider whether, in
authorizing the electronic surveillance challenged by respondent,
petitioner was exercising a prosecutorial function or was engaged in
\"purely investigative or administrative function\[s\]\" (Pet. App.
111a). A petition for a writ of certiorari was denied *(453 U.S. 913
1981)* after this Court was unable to render an opinion on related
immunity issues in *Kissinger v. Halperin, 452 U.S. 713 (1981).*

On remand, the district court again rejected petitioner\'s claim to
absolute immunity (Pet. App. 54a-60a). The court also rejected
petitioner\'s **\[\*13\]** claim to qualified immunity under the new
qualified immunity standard articulated in *Harlow v. Fitzgerald, 457
U.S. 800 (1982)* (Pet. App. 60a-77a). The district court concluded that
petitioner had violated a warrant requirement that was \"clearly
established\" long before this Court addressed the national security
warrant question \"for the first time\" in *Keith (407 U.S. at 299).* To
support this conclusion, the district court cited (Pet. App. 64a-66a)
this Court\'s holding in *Katz v. United States, supra,* that
nontrespassory surveillances generally require warrants, as well as the
concurring opinion of Justice Douglas, joined by Justice Brennan, which
the district court stated \"should have provided particular guidance to
defendant Mitchell and all other attorneys regarding the
constitutionality of warrantless domestic security wiretaps\" (Pet. App.
65a). The court also concluded that \"the Justice Department had reason
to know that its position regarding the need for a warrant was subject
to both question and attack\" because the constitutionality of the
surveillance involved in *Keith* had been challenged in a motion filed
in **\[\*14\]** the underlying criminal proceedings \"more than one
month prior to the Attorney General\'s authorization of the \[Davidon\]
wiretap\" (Pet. App. 64a). Finally, the court stated (*id.* at 67a) that
\"the Attorney General\'s action was in direct conflict with the
language, legislative history, and purpose of Title III.\"

The district court held that petitioner was liable for the alleged
violations and set the case for an evidentiary hearing \"to determine
whether the plaintiff is entitled to punitive damages and/or
compensatory damages\" (Pet. App. 76a). n5 In a later ruling, the court
declined to certify its order for interlocutory appeal (*id.* at
44a-50a).

> n5 The district court also held that trial was required on the
> question of the liability of the two FBI employees who actually
> intercepted respondent\'s conversations pursuant to the Attorney
> General\'s authorization. Respondent subsequently dismissed his claim
> against the FBI employees.

4\. Petitioner appealed under *28 U.S.C. 1291* and also filed a petition
for mandamus, contending that his claims of absolute and qualified
immunity had been wrongly denied. Respondent moved to dismiss the appeal
for **\[\*15\]** lack of a final, appealable order. A motions panel of
the court of appeals denied this motion in part (Pet. App. 31a-43a). The
panel held (*id.* at 34a, 43a) that denial of a claim of absolute
immunity is immediately appealable and referred the question whether a
denial of qualified immunity is appealable as a collateral order to the
merits panel. The motions panel stayed further proceedings below, noting
that a trial on punitive damages would involve an inquiry into
petitioner\'s motivation and the advice he received from subordinates in
the Department of Justice that might be \"as searching as the trial on
the merits would have been\" (*id.* at 34a). The motions panel further
noted (*id.* at 33a n.2) that the district court\'s ruling on the state
of national security electronic surveillance law in 1970 and 1971
differed from that of the District of Columbia Circuit in *Sinclair v.
Kleindienst, 645 F.2d 1080 (1981).*

In the decision which is now being reviewed, the merits panel first held
(Pet. App. 8a-12a) that petitioner was not entitled to absolute
immunity. This Court\'s intervening decision in *Harlow* v. *Fitzgerald*
had recognized *(457 U.S. at 812)* **\[\*16\]** that absolute immunity
might be justified \"to protect the unhesitating performance\" of vital
functions by government officials responsible for decisions in \"such
sensitive areas as national security or foreign policy.\" However, the
court of appeals declined to address this portion of the *Harlow*
opinion. Instead the court observed (Pet. App. 9a-1ia) that *Harlow* had
not changed the analysis of absolute immunity in *Butz* and that
petitioner\'s claim of absolute immunity under the *Butz* analysis had
been \"\'*sub silentio* rejected\'\" in the court of appeals\' prior
opinion.

The court of appeals then held (Pet. App. 12a-15a) that denial of
petitioner\'s claim of qualified immunity was not appealable under the
collateral order doctrine. The court expressed the fear (*id.* at 15a)
that accepting jurisdiction over this issue would \"subject our
colleagues to unnecessary additional burdens by opening the sluice
gates.\" The court denied petitioner\'s mandamus petition \"for the same
reasons\" (*ibid.*).

Judge Weis dissented (Pet. App. 15a-29a). Agreeing with decisions of the
District of Columbia and Eighth Circuits, he first concluded (*id.* at
16a-20a) that the collateral **\[\*17\]** order doctrine permits an
immediate appeal when a claim of qualified immunity is denied on the
ground that the legal standard allegedly violated was clearly
established at the time in question.

Turning to the merits of the qualified immunity issue, Judge Weis
reviewed at length (Pet. App. 20a-28a) the state of the law in 1970 and
early 1971 regarding warrantless national security wiretaps and
concluded that \"\[u\]nquestionably, a prohibition against warrantless
searches in these circumstances was not \'clearly established\',\" since
\"the law of warrantless electronic surveillance in national security
cases was only beginning to develop in 1970-71\" (*id.* at 27a-28a).

On the issue of absolute immunity, Judge Weis noted (Pet. App 20a) that
the claim then before the court, based on the Attorney Generalhs special
functions in the area of national security, was different from the
claim, based on *Imbler v. Pachtman, supra,* that had been reviewed in
the prior appeal. He wrote that \"*Harlow\'s* discussion of the
\'special functions\' test, as it might apply to the Attorney General in
cases implicating national security, lends a force to the defendant\'s
argument here **\[\*18\]** that was lacking in *Forsyth I*\" (Pet. App.
20a). Judge Weis did not address the absolute immunity issue further,
however, in light of his conclusion that petitioner was entitled to
qualified immunity (*ibid.*).

A petition for rehearing and suggestion for rehearing en banc was
denied, with four of the ten active judges voting to rehear the case en
banc (Pet. App. 81a-82a).

SUMMARY OF ARGUMENT

I.

A. The district court\'s decision denying petitioner\'s claim of
qualified immunity on the ground that he violated a clearly established
legal standard was appealable under *28 U.S.C. 1291,* which permits
appeals from \"final decisions\" of the district courts. In determining
whether Section 1291\'s finality requirement has been met, this Court
adops a \"practical rather than a technical construction\" ( *Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949))* and
evaluates the danger of denying justice by delay compared to the
inconvenience and costs of piecemeal review.

These factors weigh strongly in favor of appeal here. As the Court
explained in *Butz v. Economou, 438 U.S. 478 (1975)* and in *Harlow v.
Fitzgerald, 457 U.S. 800 (1982),* **\[\*19\]** qualified immunity is
intended to protect government officials, not only from adverse money
judgments, but from the burdens and distractions of discovery and trial.
If an official must await final judgment before appealing an erroneous
denial of immunity, this protection will have been irreparably cost. For
precisely this reason, this Court has held that an immediate appeal is
available when various types of absolute immunity from the burdens of
trial are denied. See *Abney v. United States, 431 U.S. 651 (1977)*
(double jeopardy immunity from second trial); *Helstoski v. Meanor, 442
U.S. 447 (1979)* (Congressman\'s immunity from trial for legislative
acts); *Nixon v. Fitzgerald, 457 U.S. 731 (1981)* (President\'s absolute
immunity from trial for damages). The same appellate rights are needed
here.

Allowing an appeal in this situation would not impair the efficient
administration of justice. Under *Harlow\'s* objective test, the
question whether an official violated a \"clearly established\"
constitutional or statutory right will present issues of law not
enmeshed with any disputed facts. Thus, deferring appellate review
**\[\*20\]** until after trial would not aid the courts of appeals in
deciding these questions. In addition, experience in the District of
Columbia Circuit, where such appeals have been allowed for two years,
suggests that the burden of additional appeals will be minimal. Indeed,
overall judicial efficiency will be improved by the prompt appellate
termination of meritless suits against government officials, which often
drag on for many years.

An appeal from the denial of a government official\'s claim of immunity
falls within the collateral order doctrine of *Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. at 546.* This doctrine permits an
immediate appeal if an order (1) definitively determines the disputed
question, (2) is separable from and collateral to the remainder of the
case, and (3) would be effectively unreviewable on appeal. Here, there
can be no doubt that the district court definitvely rejected
petitioner\'s assertion that he violated no \"clearly established\"
legal right. Petitioner\'s claim is also separable from and collateral
to the remainder of the case because it presents a pure question of law
that would not be illuminated by the remaining trial proceedings
**\[\*21\]** and because its purpose is not simply to secure an early
decision on the merits, but to safeguard petitioner\'s immunity against
further burdensome and intrusive trial proceedings. Finally,
petitioner\'s qualified immunity claim would not be effectively
reviewable after final judgment because by that time the very purpose of
immunity \-- to protect petitioner from the burdens of discovery and
trial \-- would have been irrevocably sacrificed.

B. If this Court agrees that the denial of petitioner\'s qualified
immunity claim was appealable, we urge the Court itself to decide now
whether petitioner was entitled to qualified immunity, rather than
remanding for a decision on that issue by the court of appeals. Under
*Harlow,* a government official is immune from liability for damages
unless he violated a \"clearly established\" legal standard, and there
can be no serious dispute that the need for a warrant for national
security wiretaps was not clearly established in late 1970 and early
1971, when the wiretap at issue was installed. *Katz v. United States,
389 U.S. 347, 358 n.23 (1967),* this Court had expressly reserved
decision on this question, and individual members **\[\*22\]** of the
Court had expressed differing views with respect to it. It was not until
June 1972 \-- 15 months after the termination of the wiretap involved in
this case \-- that this Court again addressed the question and held in
*United States v. United States District Court (Keith), 407 U.S. 297
(1972),* that a warrant is needed.

The lower court cases in the post-*Katz,* pre-*Keith* era also did not
establish the need for a warrant to investigate a domestic threat to
national security. At the time of the wiretap involved here, the only
decisions on the question were two district court cases holding that a
warrant was not needed. And when this Court addressed the question in
*Keith,* it noted *(407 U.S. at 299)* that it was deciding the question
for \"the first time\" and that such warrantless wiretaps had been
conducted by Presidents for more than 25 years \"without \* \* \* a
definitive decision of this Court.\"

With the exception of the district court in the present case, every
other court that has examined the state of wiretapping law in 1970 and
1971, including the District of Columbia Circuit, has concluded that the
need for a warrant in domestic **\[\*23\]** national security cases was
not clearly established until this Court\'s decision in *Keith.* And the
Ninth Circuit has held that *Keith* was not even clearly foreshadowed.
The district court\'s contrary conclusion here cannot be defended.

II\.

The Attorney General should be absolutely immune from liability for
damages when he acts to protect the national security. In *Harlow, 456
U.S. at 812,* this Court noted that in sensitive areas such as national
security and foreign policy, \"unhesitating performance of functions
vital to the national interest\" may justify absolute immunity. We
believe that the Attorney General should not be subject to personal
monetary liability when he is acting to prevent acts that endanger
national security, and that absolute immunity is therefore justified.

Protecting the domestic security of the Nation from terrorism, violence,
and espionage is one of the President\'s paramount duties, and the
Attorney General is the Cabinet officer who bears the principal
operational responsibility for these vital matters. When national
security is imperiled, the Attorney General must act promptly,
decisively, and effectively. He should be concerned **\[\*24\]** solely
for the national good and should not have to worry about personal
liability in damages or about the burdens and risks of prolonged
litigation. Decisions concerning national security are too important,
and the price of bad decisions or inaction is too high, to permit such
considerations to distort the decisionmaking process. In this very case,
petitioner was forced to confront a kidnapping plot that threatened
danger to the person of one of the President\'s principal foreign policy
advisors and that could have compromised some of the country\'s most
vital secrets. The need for effective action to block such a threat far
outweighs whatever incremental deterrent effect the possibility of
liability in damages might provide.

Absolute immunity in this restricted area would not render the Attorney
General unaccountable for his actions. Other potent remedies would
remain, including suits for injunctive and declaratory relief, motions
to suppress evidence seized in bad faith, congressional oversight,
dismissal from office, impeachment, and criminal prosecution.

Qualified immunity does not furnish sufficient protection in this area,
just as it does not furnish sufficient protection **\[\*25\]** for
judges, prosecutors, and the President. Not-withstanding *Harlow,*
qualified immunity leaves a decisionmaker, acting without the benefit of
hindsight, in an atmosphere of substantial uncertainty and subject to
serious risk that unhesitating and energetic action will lead to
protracted litigation.

ARGUMENT

I. PETITIONER IS ENTITLED TO QUALIFIED IMMUNITY UNDER *HARLOW* FOR
AUTHORIZING WARRANTLESS DOMESTIC SECURITY WIRETAPS IN 1970 AND 1971

A. Denial of a Qualified Immunity Claim in a *Bivens* Suit Is Appealable
Under the Collateral Order Doctrine

1\. \"The first Judiciary Act of 1789, 1 Stat. 73, established the
general principle that only *final* decisions of the federal district
courts would be reviewable on appeal.\" *Carson v. American Brands,
Inc., 450 U.S. 79, 83 (1981)* (emphasis in original). \"With occasional
modifications, \[this\] requirement has remained a cornerstone of the
structure of appeals in the federal courts.\" *Brown Shoe Co. v. United
States, 370 U.S. 294, 306 (1962)* (footnote omitted). Today, this
principle is embodied in *28 U.S.C. 1291,* under which the courts of
appeals have **\[\*26\]** jurisdiction of all \"final decisions\" of the
district courts except where there is a right of direct appeal to this
Court.

As Justice Jackson noted in *Stack v. Boyle, 342 U.S. 1, 12 (1951)*
(emphasis in original), however, \"it is a final *decision* that
Congress has made reviewable,\" not a final judgment. \"While a final
judgment always is a final decision, there are instances in which a
final decision is not a final judgment.\" *Ibid.* \"\[A\] decision
\'final\' within the meaning of § 1291 does not necessarily mean the
last order possible to be made in a case.\" *Gillespie v. United States
Steel Corp., 379 U.S. 148, 152 (1964).* In determining whether the
requirement of finality is met, this Court adopts a \"practical rather
than a technical construction.\" *Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541, 546 (1949).* In essence, this means that the Court
decides whether allowing an appeal from a particular type of order
comports with the purposes of the final judgment rule. The Court has
observed that \"in deciding the question of finality the most important
competing considerations are \'the inconvenience and costs **\[\*27\]**
of piecemeal review on the one hand and the danger of denying justice by
delay on the other.\'\" *Gillespie v. United States Steel Corp., 379
U.S. at 152-153,* quoting *Dickinson v. Petroleum Conversion Corp., 338
U.S. 507, 511 (1950).* See also *Eisen v. Carlisle & Jacquelin, 417 U.S.
156, 171 (1974).* n6

> n6 In *Flanagan* v. *United States,* No. 82-374 (Feb. 21, 1984), slip
> op. 4, this Court recently elaborated on the considerations underlying
> the finality requirement:
>
> The final judgment rule serves several important interests. It helps
> preserve the respect due trial judges by minimizing appellate-court
> interference with the numerous decisions they must make in the
> pre-judgment stages of litigation. It reduces the ability of litigants
> to harass opponents and to clog the courts through a succession of
> costly and time-consuming appeals. It is crucial to the efficient
> administration of justice.

2\. These considerations weigh strongly in favor of allowing appeal when
a government official\'s qualified immunity is denied before trial,
because \"the danger of denying justice by delay\" is great. This Court
has not addressed **\[\*28\]** the specific issue presented in this case
\-- whether government officials who are sued for damages may appeal the
denial of qualified immunity claims. But the nature of the qualified
immunityright, as explained by this Court, demands such appeal rights if
the official\'s immunity is to be fully protected. In *Butz v. Economou,
supra,* the Court held that Cabinet and other executive officers are not
protected by blanket absolute immunity but instead are generally
entitled to only qualified immunity. However, a corollary of this
holding was that \"\[i\]nsubstantial lawsuits\" should be \"quickly
terminated\" *(438 U.S. at 507).* The Court expressed the expectation
that \"firm application of the Federal Rules of Civil Procedure will
ensure that federal officials are not harassed by frivolous lawsuits\" (
*id. at 508).* See also *Hanrahan v. Hampton, 446 U.S. 754, 765 (1980)*
(Powell, J., concurring in part and dissenting in part).

When this expectation was ot bore out, the Court modified the qualified
immunity standard in *Harlow.* Time and again, the *Harlow* court
emphasized that an executive official\'s qualified immunity **\[\*29\]**
includes the right not to undergo protracted and burdensome trial
proceedings on insubstantial claims:

\[In *Butz,*\] we emphasized our expectation that insubstantial suits
need not proceed to trial\[.\]

*457 U.S. at 808.*

\[P\]etitioners assert that public policy \* \* \* mandates an
application of the qualified immunity standard that would permit *the
defeat of insubstantial claims without resort to trial.*

*Id. at 813* (emphasis added).

\[In *Butz* and *Scheuer*\], we relied on the assumption that this
standard would permit \"\[i\]nsubstantial lawsuits \[to\] be quickly
terminated.\" \* \* \* Yet petitioners advance persuasive arguments that
the *dismissal of insubstantial lawsuits without trial \-- a factor
pressupposed in the balance of competing interests struck by our prior
cases \-- requires an adjustment of the \"good faith\" standard
established by our decisions.*

*Id. at 814-815* (emphasis added).

The subjective element of the good-faith defense frequently has proved
incompatible with our admonition in *Butz* that *insubstantial claims
should not proceed to trial.*

*Id. at 815-816* **\[\*30\]** (emphasis added).

\[I\]t now is clear that substantial costs attend the litigation of the
subjective good faith of government officials. Not only are there *the
general costs of subjecting officials to the risks of trial \--
distraction of officials from their governmental duties, inhibition of
discretionary action, and deterrence of the able people from public
service.* There are special costs to \"subjective\" inquiries of this
kind.

*Id. at 816* (emphasis added).

\[B\]are allegations of malice should not suffice to subject government
officials either to *the costs of trial or to the burdens of
broad-reaching discovery.*

*Id. at 817-818* (emphasis added) (footnote omitted.

Reliance on the objective reasonableness of an official\'s conduct, \*
\* \* should avoid *excessive disruption of government and permit the
resolution of many insubstantial claims on summary judgment.*

*Id. at 818* (emphasis added). See also *Davis* v. *Scherer,* No. 83-490
(June 28, 1984), slip op. 11-12.

*Harlow* could hardly have made it clearer than an executive officer\'s
qualified immunity includes a right not to be tried or **\[\*31\]**
burdened by pretrial procedures unless his alleged conduct violated a
clearly established legal standard. See *Krohn v. United States, 742
F.2d 24, 28 (1st Cir. 1984);* *McSurely v. McClellan, 697 F.2d 309, 316
(D.C. Cir. 1982).* This right is closely analogous to the double
jeopardy \"guarantee against being twice put to trial for the same
offense\" ( *Abney, 431 U.S. at 660-661)* (emphasis in original
deleted), as well as a Congressman\'s immunity under the Speech or
Debate Clause \"not only from the consequences of litigation\'s results
but also from the burden of defending \[himself\].\" *Dombrowski v.
Eastland, 387 U.S. 82, 85 (1967);* see also *Helstoski v. Meanor, 442
U.S. at 508.* The Court has recognized in *Abney* and *Helstoski* v.
*Meanor* that full protection of Double Jeopardy and Speech or Debate
Clause rights requires that pretrial appeals be available.

This Court has also held that an order denying a claim of absolute
immunity from damages liability is immediately appealable. *Nixon v.
Fitzgerald, 457 U.S. 731, 742 (1982).* As the District of Columbia
Circuit **\[\*32\]** stated in a decision on which the *Nixon* court
relied (*ibid.*):

If \[the defendants\] are required to respond to interrogatories, answer
questions put in depositions, and defend themselves in a plenary trial
covering the whole of their activities, they will have been forced to
surrender their claimed privilege regardless of its validity. An appeal
from the final judgment in the action will come too late to give
meaningful review of their claim.

*McSurely v. McClellan, 521 F.2d 1024, 1032 (1975),* aff\'d in pertinent
part en banc, *553 F.id 1277, 1283-1284 & n.18 (D.C. Cir. 1976),* cert.
dismissed, *438 U.S. 189 (1978).* The same appellate rights are needed
to protect the qualified immunity extended under *Butz* and *Harlow.*

\"\'\[T\]he costs of piecemeal review\'\" n7 in the present situation do
not dictate a different result. Under *Harlow\'s* objective test,
qualified immunity appeals will present pure questions of law not
enmeshed with any disputed facts. Consequently, deferring appellate
review until after final judgment would not assist the courts of appeals
in deciding these questions. To be sure, allowing appeal **\[\*33\]**
before final judgment may mean that there will be more appeals, a matter
of legitimate concern for overburdened appellate judges. Experience,
however, suggests that the number of additional appeals will not
approach the level suggested by the court of appeals in this case (Pet.
App. 14a-15a). The denial of qualified immunity has been appealable in
the District of Columbia Circuit for almost exactly two years, since
*McSurely v. McClellan, 697 F.2d 309 (D.C. Cir. 1982),* but we do not
believe that any federal defendant has taken such an appeal in the D.C.
Circuit during that period. Experience has also shown both that the
overwhelming percentage of suits for damages against government
officials lack merit n8 and that such suits frequently linger in the
trial court for inordinate periods. n9 Allowing officials to appeal
denials of qualified immunity will assist in bringing meritless suits to
a speedier and and thus will promote, rather than detract from, \"the
efficient administration of justice\" (*Flanagan* v. *United States,*
No. 82-374 (Feb. 21, 1984), slip op. 4). See Pet. App. 28a (Weis, J.,
dissenting). Moreover, it is not uncommon for defendant officials
**\[\*34\]** to assert claims of both absolute and qualified immunity,
as petitioner did in this case. Since it is already established that the
denial of absolute immunity is appealable, permitting an appeal on the
issue of qualified immunity as well would not result in any additional
appellate proceedings in these cases.

> n7 *Gillespie v. United States Steel Corp., 379 U.S. at 152-153,*
> quoting *Dickinson v. Petroleum Conversion Corp., 338 U.S. at 511.*
>
> n8 See P. Schuck, *Suing Government* 70 (1983) (\"\[A\]pproximately
> 10,000 *Bivens* actions have reportedly produced only thirteen
> judgments for plaintiffs.\")
>
> n9 The reported decisions involving qualified immunity appeals
> illustrate this problem. In this case, 12 years have passed since the
> filing of the complaint (J.A. 1). See also *National Black Police
> Ass\'n v. Velde, 712 F.2d 569, 572 (D.C. Cir. 1983),* cert. denied,
> No. 83-1254 (Pr. 30, 1984) (9 years from filing of complaint to denial
> of certiorari); *McSurely, 697 F.2d at 314* (13 years from complaint
> to decision on qualified immunity); *Krohn v. United States, 578 F.
> Supp. 1441, 1444* (D. Mass.), rev\'d in part, *742 F.2d 24 (1st Cir.
> 1984)* (8 years); *Kenyatta v. Moore, 744 F.2d 1179, 1181 (5th Cir.
> 1984)* (7 years).

**\[\*35\]**

3\. The seminal case of *Cohen v. Beneficial Industrial Loan Corp.,
supra,* involved a situation in which, as in this case, the purposes of
the final judgment rule were served by allowing an appeal from an order
other than the final judgment. In *Cohen,* which was a stockholder\'s
derivative action brought in federal court under diversity jurisdiction,
a state statute entitled the corporation to demand security in advance
for litigation expenses. The district court ruled that the statute was
inapplicable, and this Court held that the order was immediately
appealable. The Court observed *(337 U.S. at 546):*

This decision appears to fall in that small class which finally
determine claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied review and too
independent of the cause itself to require that appellate consideration
be deferred until the whole case is adjudicated.

More recent cases have restated *Cohen\'s* formulation as a three-part
test:

First, \[a trial court order\] \"must conclusively determine the
disputed question\"; second, it must \"resolve an important issue
completely separate **\[\*36\]** from the merits of the action\"; third,
it must \"be effectively unreviewable on appeal from a final judgment.\"

*Flanagan* v. *United States,* slip op. 6, quoting *Coopers & Lybrand v.
Livesay, 437 U.S. 463, 468 (1978);* see also *United States v.
MacDonald, 435 U.S. 850, 855 (1978);* *Abney v. United States, 431 U.S.
651, 658 (1977).*

Despite the utility of *Cohen* as a most important rule of thumb, this
Court has always understood that \"\[n\]o verbal formula yet devised can
explain prior finality decisions with unerring accuracy or provide an
utterly reliable guide for the future.\" *Eisen v. Carlisle & Jacquelin,
417 U.S. at 170.* Many decisions of this Court permitting appeal under
*Cohen* in civil cases cannot easily be fitted into this three-part
test. For example, in *Gillespie v. United States Steel Corp., supra,*
appeal was permitted from an order striking certain wrogful death claims
on the ground that they were precluded by an exclusive statutory remedy.
This order may have \"conclusively determine\[d\]\" this legal question,
but the validity of a plaintiff\'s claims **\[\*37\]** would not appear
to be \"completely separate from the merits of the action\" ( *Coopers &
Lybrand v. Livesay, 437 U.S. at 468).* Likewise, the Court did not find
that the order striking the claims would \"be effectively unreviewable
on appeal from a final judgment\" (*ibid.*) but only that \"it \[did\]
not appear that the inconvenience and cost of trying this case will be
greater because the Court of Appeals decided the issues raised instead
of compelling the parties to go to trial with them unanswered.\" (
*Gillespie v. United States Steel Corp., 379 U.S. at 153).*

*Mercantile National Bank v. Langdeau, 371 U.S. 555 (1963),* similarly,
does not fit neatly into the three-part test. There, the Court held that
an order rejecting a claim of improper venue was final under *28 U.S.C.
1257,* even though there was no suggestion that the question of venue
could not have been reviewed effectively on appeal from the final
judgment. See also *Local No. 433 Construction Laborers v. Curry, 371
U.S. 542 (1963).*

4\. As these cases illustrate, *Cohen* and its progeny have not been
understood to lay **\[\*38\]** down a rigid test for finality; instead,
the *Cohen,* test, like the final order rule itself, must be given a
\"practical rather than a technical construction\" ( *Cohen, 337 U.S. at
546).* Ultimately, the with the purposes of the final judgment rule, and
each prong of the *Cohen* test should be interpreted in light of those
purposes.

The first prong \-- the requirement that the trial court order \"must
conclusively determine the disputed question\" ( *Coopers & Lybrand v.
Livesay, 437 U.S. at 468)* \-- ensures that the matter is ripe for
appeal. It promotes \"the efficient administration of justice\"
(*Flanagan,* slip op. 4) by precluding appellate review until all of the
relevant facts and legal issues ave been fully developed and the trial
court had had an opportunity to complete its consideration of the
matter. Under this prong of the test, the Court has repeatedly
\"rejected immediate appealability \* \* \* of claims that \'may fairly
be assessed\' only after trial \* \* \* and those involving
considerations that are \'enmeshed in the factual and legal issues
comprising the plaintiff\'s cause of action.\'\" *Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 377 (1981).* **\[\*39\]** See also
*Coopers & Lybrand v. Livesay, 437 U.S. at 469;* *United States v.
MacDonald, 435 U.S. at 860.*

The third prong, which requires that the trial court order must \"be
effectively unreviewable on appeal from a final judgment\" ( *Coopers &
Lybrand, 437 U.S. at 468),* ensures that there is a practical reason for
allowing an appeal before entry of the final judgment. It requires that
\"the danger of denying justice by delay\" outweigh \"the inconvenience
and costs of piecemeal review.\" *Gillespie v. United States Steel
Corp., 379 U.S. at 152-153.*

The purposes served by the second prong \-- the requirement that the
order must resolve an issue \"completely separate from the merits of the
action\" ( *Coopers & Lybrand, 437 U.S. at 468)* \-- are somewhat less
obvious. The \"separate\" or \"collateral\" nature of the order is not
demanded for abstract or technical reasons. Instead this prong appears
to promote the same purposes as the first and third prongs. Like the
first prong, it prevents appeal before full development and resolution
at the trial level of all factual and legal issues. If an order
**\[\*40\]** relates to a collateral matter, rather than being closely
connected to the merits of the case, there is much less chance that
subsequent developments at trial will cast new light on the sequent
developments at trial will cast new light on the matter or prompt its
reconsideration. n10

> n10 The relationship between the first and second prongs of the
> three-part test has frequently been noticed by this Court. In
> *MacDonald, 435 U.S. at 859,* the Court remarked:
>
> Closely related to the \"threshold requirement of a fully consummated
> decision,\" *Abney v. United States, 431 U.S. at 659,* is the
> requirement that the order sought to be appealed be \"collateral to,
> and separable from, the principal issue at the accused\'s impending
> criminal trial, *i.e.,* whether or not the accused is guilty of the
> offense charged.\"
>
> In *Flanagan,* which held that an order disqualifying counsel in a
> criminal case is not immediately appealable, the Court at one point
> assumed (slip op. 9) that the defendants\' Sixth Amendment claims
> required \"some specifically demonstrated prejudice to the defense\"
> and explained that \"\[o\]n this assumption, a disqualification order
> \* \* \* is not independent of the issues to be tried\" because
> \"\[its\] validity cannot be adequately reviewed until the trial is
> complete.\" See also *Abney, 431 U.S. at 660* (emphasis added)
> (citation omitted) (\"\[T\]he matters embraced in the trial court\'s
> pretrial order here are truly collateral to the criminal prosecution
> itself *in the sense that they will not affect, or . . . be affected
> by, decision of the merits of this case.*\")

**\[\*41\]**

The second prong, like the third, also ensures that there is a special
reason for allowing an appeal before final judgment. The final order
rule is predicated on the principle that the right to appeal should not
ordinarily be extended simply to prevent a trial on unmeritorious
criminal charges or civil claims. In the criminal context, the Court has
observed that \"\[b\]earing the discomfiture and cost of a prosecution
for crime even by an innocent person is one of the painful obligations
of citizenship.\" *Cobbledick v. United States, 309 U.S. 323, 325
(1940);* see also *Flanagan,* slip op. 8. No doubt the same principle
applies in the civil context. Thus, if an appellant merely seeks an
advance ruling on the merits or on a matter that will merge into the
judgment on the merits (see *Cohen, 337 U.S. at 546),* appeal generally
will not be entertained. In order to qualify under *Cohen,* the appeal
must be \"separate\" from or \"collateral\" to the merits in this sense.
n11

> n11 This function of the second prong of the *Cohen* test has also
> been noted by this Court. For example, in *Abney* the Court explained
> that a double jeopardy claim is \"collateral to, and separable from\"
> the principal issue of the accused\'s guilt or innocence because *(431
> U.S. at 659* (emphasis added)):
>
> \[i\]n arguing that the Double Jeopardy Clause of the Fifth Amendment
> bars his prosecution, the defendant makes no challenge whatsoever to
> the merits of the charge against him. \* \* \* *Rather, he is
> contesting the very authority of the Government to hale him into court
> to face trial on the charge against him.*

**\[\*42\]**

5\. The district court\'s order in this case, which denied petitioner\'s
claim to qualified immunity, satisfies the formulation taken from
*Cohen.* Such orders are therefore appealable. *Krohn v. United States,
742 F.2d 24 (1st Cir. 1984);* *Evans v. Dillahunty, 711 F.2d 828 (8th
Cir. 1983);* *McSurely v. McClellan, 697 F.2d 309 (D.C. Cir. 1982).*
Contra, *Kenyatta v. Moore, 744 F.2d 1179 (5th Cir. 1984).* n12

> n12 For the Fourth Circuit\'s treatment of this issue, see page 26
> note 17, *infra.*

a\. There can be no doubt that the district court\'s decision
\"constitute\[s\] a complete, formal, and, in the trial court, final
rejection\" of petitioner\'s claim. *Abney v. United States, 431 U.S. at
659.* Nearly seven years have passed since Judge Broderick initially
rejected petitioner\'s claim of qualified immunity (Pet. App. 117a), and
during that time, the standard for qualified immunity was significantly
altered by this Court in *Harlow.* Yet Judge Broderisk steadfastly
adhered to his original conclusion that petitioner is not protected by
any form of immunity. \"There are simply **\[\*43\]** no further steps
that can be taken in the District Court to avoid the trial
\[petitioner\] maintains is barred.\" *Abney, 431 U.S. at 659.*

b\. Likewise, the appeal in this case satisfied that third prong of the
*Cohen* test \-- which is \"\[p\]erhaps \[the\] most importantc (
*United States v. Hollywood Motor Car Co., 458 U.S. 263, 266 (1982))*
\-- for it is abundantly clear that the district court\'s decision
involves \"an important right which would be \'lost, probably
irreparably,\' if review had to await final judgment.\" *Abney, 431 U.S.
at 658,* quoting *Cohen, 337 U.S. at 546.* As we have noted, one of the
purposes of qualified immunity is to relieve officials of the burdens of
pretrial and trial unless the alleged conduct violated a clearly
established legal standard (see pages 14-16, *supra*). Unless the denial
of qualified immunity can be appealed before discovery or trial, this
purpose will be irreparably compromised.

In agreeing with the Third Circuit that denial of a qualified immunity
claim cannot be appealed until final judgment, the Fifth Circuit
expressed the sanguine belief ( *Kenyatta v. Moore, 744 F.2d at 1184)*
**\[\*44\]** that \"few if any district judges are likely to mistake
insubstantial claims for violations of clearly established rights.\" The
present case vividly illustrates that this confidence can be misplaced,
particularly in the case of an unpopular defendant. Prior to handing
down its final decision on qualified immunity, the district court ad the
benefit of decisions by two courts of appeals finding that the
illegality of petitioner\'s conduct was not clearly established or even
foreshadowed at the time in question (see page 30-31, *infra*).
Nevertheless, the district court rejected petitioner\'s qualified
immunity claim. Moreover, despite the weighty contrary authority and
despite this Court\'s admonition in *Harlow* that insubstantial *Bivens*
claims should not be allowed to proceed to discovery or trial, the
district court refused to certify the qualified immunity issue for
appeal under *28 U.S.C. 1292*(b). n13 The court of appeals, in turn,
refused to entertain petitioner\'s appeal under the collateral order
doctrine, refused to address the well established rules governing such
appeals, and denied petitioner\'s mandamus petition without explanation,
thereby subjecting **\[\*45\]** petitioner to an unnecessary and
potentially protracted trial on the issue of damages. The prospect of
such treatment will \"\'dampen the ardor of all but the most resolute,
or the most irresponsible \[public officials\], in the unflinching
discharge of their duties\'\" ( *Harlow, 487 U.S. at 814* (citation
omitted)).

> n13 Compare *McSurely v. McClellan, 697 F.2d at 316-317 n.12*
> (certification under Section 1292(b) \"particularly appropriate\" in
> this situation).

c\. Further, petitioner\'s appeal is \"separate\" and \"collateral\' in
the sense that it sought something other than an advance ruling on the
merits or on a matter that will emerge from and merge into the judgment
on the merits. Instead, petitioner\'s appeal sought to vindicate a
special immunity from trial analogous to the immunities asserted in
*Nixon, Abney,* and *Helstoski* v. *Meanor.* n14 The district court\'s
decision here was also \"collateral\" and \"separate\" in the sense that
its correctness not be affected by anything that might occur during the
remaining trial proceedings. n15 Consequently, petitioner\'s appeal
satisfies the second prong of the *Cohen* formulation. n16

> n14 See Pet.App.34a.
>
> n15 See also *Chagnon v. Bell, 642 F.2d 1248, 1261 (D.C. Cir. 1980),*
> cert. denied, *453 U.S. 911 (1981)* (contrasting qualified immunity
> inquiry with merits of Fourth Amendment claim); Pet. App. 34a.
>
> n16 We are not arguing that the denial of summary judgment is
> immediately appealable when resolution of a qualified immunity claim
> turns on disputed facts, but only that an appeal should be allowed
> when the qualified immunity claim turns solely on a question of law.
> This may occur in two contexts. The first and probably the most common
> is exemplified by this case, in which petitioner\'s actions are not
> disputed. In such a situation, if qualified immunity is denied,
> liability will have been established and the only remaining issue will
> be the wholly separable question of damages.
>
> The other situation in which an appeal should be allowed is where the
> facts are contested but the defendant contends that even the conduct
> alleged by the plaintiff did not violate any clearly established rule
> of law. Here too, the pure question of law presented by the summary
> judgment motion will not be affected by any fact brought out at trial.
> The most that a trial might establish is that the plaintiff\'s
> allegations were correct.

**\[\*46\]**

6\. The court of appeals\' reasons for holding that it lacked appellate
jurisdiction are unsound. The court declined to address this Court\'s
precedents under the collateral order doctrine. Instead, the court of
appeals rested (Pet. App. 12a-14a) on its prior, summary treatment of
the issue of appealability (see Pet. App. 94a-95a). But that prior
holding antedated *Harlow\'s* deletion of the subjective element of the
qualified immunity defense, and consequently at that time petitioner and
the other defendants did not \"seriously contend that the denials of
their motions for summary judgment on that issue \[were\] appealable
under the three requirements of *Cohen\"* (Pet.App.95a).

The court of appeals protested (*id.* at 14a-15a) that its docket was
already \"crushing\" and that there was accordingly no room for
qualified immunity appeals. As noted, however, the court\'s fears about
the number of qualified immunity appeals appear exaggerated (see page
17, *supra*).

Finally, the court of appeals advanced the strange argument (Pet. App.
14a) that an appeal could not be taken here because respondent\'s claims
were not \"insubstantial.\" The Fifth Circuit adopted the same argument
**\[\*47\]** in *Kenyatta v. Moore, 744 F.2d at 1184,* and added ( *id.
at 1186)* that orders denying qualified immunity should not be
\"appealable per se\" because many such claims \"involve only the
application of settled principles, not important, unresolved legal
issues.\" The analysis of both circuits is misguided. It is true that
the collateral order doctrine is limited to decisions concerning \"an
important issue\" ( *Coopers & Lybrand v. Livesay, 437 U.S. at 468),*
but this involves a categorical, not a case-by-case determination.
\"Appeal rights cannot depend on the facts of a particular case.\"
*Carroll v. United States, 354 U.S. 394, 405 (1957).* *Harlow* has made
it unmistakably clear that an executive official\'s right not to undergo
discovery and trial if no clearly established constitutional rights were
violated is a matter of important public policy. In the face of that
determination by this Court, it is not for the courts of appeals to
prejudice the vindication of this right by ad hoc prejudgments of the
merits or by disparaging its significance. When a district court
incorrectly denies qualified immunity because **\[\*48\]** it misapplies
clear or settled law \-- as Judge Broderick unquestionably did here \--
the violation of *Harlow* is all the more flagrant, and prompt appellate
correction is especially \"important.\" n17

> n17 Taking a narrower view than the court of appeals below and the
> Fifth Circuit, the Fourth Circuit has held that rejection of a
> qualified immunity claim is not appealable where there are overlapping
> claims for injunctive relief that would require trial in any event.
> *England* v. *Rockefeller,* No. 83-1851(L) (July 16, 1984), and *Bever
> v. Gilbertson, 724 F.2d 1083 (4th Cir. 1984)* (rehearing denied by
> equally divided court), cert. denied, Nos. 84-25 and 83-2139 (Oct. 29,
> 1984). The court reasoned *(724 F.2d at 1087)* that \"\[a\] present
> declaration of immunity from damage claims cannot avoid the diversion
> of their attention from other official duties which the litigation
> will occasion.\" There is some force to this reasoning but we do not
> believe it is sufficient to overcome the strong grounds for protecting
> public officials from trial on insubstantial damages claims. See
> *Tubbesing v. Arnold, 742 F.2d 401, 403-405 (8th Cir. 1984)*
> (rejecting *Bever* distinction). The burden of defending an action for
> injunctive relief in one\'s official capacity is not comparable to the
> burden of defending against a suit for damages. Moreover, disallowing
> appeal in only those cases with overlapping injunctive claims might
> well encourage the filing of injunctive claims, together with claims
> for damages, for the sole purpose of cutting off appeal rights. Such a
> rule would also have the incongruous effect of providing less
> protection for current officials than for former officials. Yet the
> deleterious effect of damages actions on current officials, whose
> performance of public responsibilities may be affected, is probably
> greater than the effect on former officials who are no longer in
> government service.

**\[\*49\]**

B. Petitioner Did Not Violate a Clearly Established Legal Standard

\"\[G\]overnment officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.\" ( *Harlow v.
Fitzgerald, 457 U.S. at 818).* If anything can be clear, it is that no
\"clearly established\" rights of any sort were violated when petitioner
authorized the warrantless domestic security wiretaps at issue in this
case.

1\. In June 1972, this Court held in *Keith* that the Fourth Amendment
requires a warrant for domestic security wiretaps. *But the wiretaps in
this case ended 15 months earlier, in January 1971.* At that time the
constitutional rule adopted in *Keith* cannot be characterized as having
been \"clearly established.\"

Certainly this Court had not decided the question prior to *Keith.* In
*Katz v. United States, 389 U.S. 347 (1967),* the Court had held for the
first time that electronic surveillance, whether or not accompanied by a
physical trespass, constitutes a search and seizure **\[\*50\]** within
the meaning of the Fourth Amendment if it violates a legitimate
expectation of privacy. The Court held *(389 U.S. at 354-359)* that a
warrant was required for the electronic surveillance in that case. But
the Court did not rule out the possibility of exceptions in other
circumstances, and pointedly observed *(389 U.S. at 358 n.23):*

Whether safeguards other than prior authorization by a magistrate would
satisfy the Fourth Amendment in a situation involving the national
security is a question not presented by this case.

In a concurring opinion, Justice White noted this portion of the
Court\'s opinion and wrote ( *id. at 363-364):*

Wiretapping to protect the security of the Nation has been authorized by
successive Presidents. \* \* \* We should not require the warrant
procedure and the magistrate\'s judgment if the President of the United
States or his chief legal officer, the Attorney General, has considered
the requirements of national security and authorized electronic
surveillance as reasonable.

See also *Berger v. New York, 388 U.S. 41, 112-118 (1967)* (White, J.,
dissenting).

In another concurring opinion, **\[\*51\]** Justice Douglas, joined by
Justice Brenann, disagreed, terming Justice White\'s opinion \"a wholly
unwarranted green light for the Executive Branch to resort to electronic
eavesdropping without a warrant in cases which the Executive Branch
itself labels \'national security\' matters\" *(389 U.S. at 359).*

Thus, *Katz* explicitly left open the question of the legality of
warrantless national security wiretaps, with one Justice suggesting that
such wiretaps might be constitutional and two others disagreeing. This
Court did not provide further guidance on the question until *Keith.*

2\. The lower court decisions in the post-*Katz,* pre-*Keith* era also
did not establish the illegality of warrantless domestic security
wiretaps. At the time of the surveillance in this case, the only two
federal courts that had considered the question had held that the
President was permitted to order such wiretaps without obtaining a
warrant. *United States* v. *Dellinger,* No. 69 CR 180 (N.D. Ill. Feb.
20, 1970) (J.A. 30); *United States* v. *O\'Neal,* No. KC-CR-1204 (D.
Kan. Sept. 3, 1970) (J.A. 38). When the Sixth Circuit decided *Keith* in
April 1971 \-- four months after **\[\*52\]** the end of the wiretap in
this case \-- the court noted that the question \"ha\[d\] never been
decided at the appellate level by any court.\" n18 *United States v.
United States District Court, 444 F.2d 651, 656 (6th Cir. 1971)*
(footnote omitted). The Sixth Circuit held that a warrant was necessary
for wiretaps investigating domestic subversion, but Judge Weick filed a
strong dissent *(444 F.2d at 671-677).* And when this Court addressed
the question in *Keith,* the Court wrote *(407 U.S. at 299)* (emphasis
added) (footnote omitted):

The issue before us is an important one for the people of our country
and their Government. It involves the delicate question of the
President\'s power, acting through the Attorney General, to authorize
electronic surveillance in internal security matters without prior
judicial approval. *Successive Presidents for more than one-quarter of a
century have authorized such surveillance in varying degrees, without
guidance from the Congress or a definite decision of this Court. This
case brings the issue here for the first time.* Its resolution is a
matter of national concern \* \* \*.

> n18 At that time, two district courts had held that no warrant was
> required, and two had held to the contrary. Compare *United States* v.
> *Dellinger, supra,* and *United States* v. *O\'Neal, supra,* with
> *United States v. Smith, 321 F. Supp. 424 (C.D. Cal. 1971),* and the
> district court decision in *Keith.*

**\[\*53\]**

This language cannot be reconciled with the district court\'s view that
the issue decided in *Keith* had in fact been \"clearly established\"
years before.

Thus far, we have discussed only those cases dealing with the narrow
issue of wiretaps used to investigate domestic, as opposed to foreign,
threats to national security. n19 Before *Keith,* however, it was not
apparent that the difference between these two situations was
constitutionally significant. For example, Justice White\'s concurring
opinion in *Katz* stated broadly *(389 U.S. at 363)* that warrants
should not be required in \"national security\" cases and drew no
distinction between cases involving domestic and foreign subversion. In
like manner, Judge Weick\'s dissent in *Keith* argued *(444 F.2d at
674)* that warrantless electronic surveillance was equally justified in
both situations because \"\[t\]he risk of injury to the Government is
just as great whether the attacks are from within or without.\" Thus
petitioner was fully justified in relying on the much larger body of
case law supporting the constitutionality of warrantless wiretaps in all
types of national security cases. See *Zweibon v. Mitchell (Zweibon IV),
720 F.2d 162, 171 (D.C. Cir. 1983),* **\[\*54\]** cert. denied, No.
83-2005 (Oct. 9, 1984). n20

> n19 Whether a warrant is constitutionally needed in the latter
> situation is still unresolved (see *Keith, 407 U.S. at 321-322 &
> n.20).*
>
> n20 See, *e.g., United States v. Butenko, 318 F. Supp. 66 (D.N.J.
> 1970),* aff\'d, *494 F.2d 593* (3d Cir.), cert. denied, *419 U.S. 881
> (1974);* *United States v. Brown, 317 F. Supp. 531 (E.D. La. 1970),*
> appeal dismissed, *456 F.2d 1112 (5th Cir. 1972)* (per curiam),
> aff\'d, *484 F.2d 418 (5th Cir. 1973),* cert. denied, *415 U.S. 960
> (1974);* *United States* v. *Clay,* Cr. No. 6711-94 (S.D. Tex. July
> 14, 1969), aff\'d, *430 F.2d 165 (5th Cir. 1970),* rev\'d, *403 U.S.
> 698 (1971).*

3\. With the exception of the district court in the present case, every
court that has addressed the question has concluded that the illegality
of warrantless domestic security wiretaps was not \"clearly establish\"
prior to this Court\'s decision in *Keith.* In *Sinclair v. Kleindienst,
645 F.2d 1080, 1084-1085 (1981),* the District of Columbia Circuit held
that petitioner **\[\*55\]** did not violate a clearly established
standard when he authorized wiretaps that terminated in January 1971,
shortly *after* those at issue here. Similarly, in *Zweibon IV, 720 F.2d
at 170,* the same court held that \"there existed no clearly established
warrant or reasonableness requirements\" during the period from October
1970 to July 1971. More recently, another district judge in the Eastern
District of Pennsylvania has sustained petitioner\'s claim of immunity
in another case involving the Davidon (and one other) wiretap,
concluding that \"by any fair objective test, at the time the wiretaps
in question were authorized by the Attorney General and throughout the
entire time that the wiretaps were in place, the law that domestic
national security wiretaps authorized by the Attorney General required
warrants was not \'clearly established.\'\" *Burkhart v. Saxbe, 596 F.
Supp. 96 (E.D. Pa. 1984)* (Pet. App. 149a). Furthermore, the Ninth
Circuit has held that the decision in *Keith* was not even \"clearly
foreshadowed\" and thus should not be applied retrospectively. *Weinberg
v. Mitchell, 588 F.2d 275 (9th Cir. 1978).* Obviously, if **\[\*56\]**
*Keith* was not \"clearly foreshadowed,\" its holding could not have
been \"clearly established\" law 15 months earlier.

4\. The district court\'s reasons for departing from this body of
precedent are insubstantial and reflect a fundamental misunderstanding
of both the nature of qualified immunity under *Harlow* and the
responsibilities of the Attorney General. First, the court opined (Pet.
App. 62a) that \"\[t\]he *Keith* majority opinion reached \[its\]
conclusion with little difficulty because of the clarity of the existing
precedents, including the 18th Century opinions of Lord Mansfield.\" But
the test for qualified immunity should not depend on a necessarily
impressionistic judgment whether this Court reached its decision in
*Keith* with or without \"difficulty.\" The proper test is whether
petitioner violated a clearly established rule of law.

The district court next relied (Pet. App. 63a) on a decision of the
District of Columbia Circuit holding that *Keith* was \"clearly
foreshadowed\" by earlier cases and should therefore be given
retroactive effect. *Zweibon v. Mitchell (Zweibon III), 606 F.2d 1172
(D.C. Cir. 1979),* cert. denied, *453 U.S. 912 (1981).* **\[\*57\]**
However, as the District of Columbia Circuit itself recognized in a
later opinion in the same case, \"the \'clearly established\' test for
immunity purposes\" is not \"coterminous with the \'clearly
foreshadowed\' test courts employ to determine whether a judicial
decision ought to be given retroactive effect.\" *Zweibon IV, 720 F.2d
at 172;* see also *id. at 172-173;* *Zweibon III, 606 F.2d at 1181
n.49.* Whether or not a decision of this Court should be given normal
retrospective effect is a very different issue than the one governed by
*Harlow:* whether a government official should be subject to personal
monetary liability for policy decisions which when made did not violate
any clearly established rights. *Harlow*\'s objective test was intended
to permit the prompt and sure determination of the issue of qualified
immunity; merging that test with the one governing the general question
of retroactivity would invite the lower courts \"to embrace the
exilarating opportunity of anticipating a doctrine which may be in the
womb of time.\" *Spector Motor Service, Inc. v. Walsh, 139 F.2d 809,
823* (2d Cir.) (L. Hand, J., dissenting), **\[\*58\]** judgment vacated
and remanded to the district court *sub nom. Spector Motor Service, Inc.
v. McLaughlin, 323 U.S. 101 (1944).*

The district court also relied (Pet. App. 64a-65a) on the general
principle enunciated in *Katz* that warrantless searches are
constitutional only if they fall within a few recognized exceptions. In
so doing the court simply overrode the fact that in *Katz* this Court
expressly reserved decision on the question whether national security
wiretaps fell into such an exception, and that individual Justices
expressed differing views on the subject. n21

> n21 Moreover, by the district court\'s reasoning, *Katz* must have
> clearly established that warrantless electronic surveillance is always
> illegal. Yet in *Keith,* the Court left open the question whether a
> warrant is constitutionally required for wiretaps used to investigate
> foreign threats to the national security *(407 U.S. at 321-322 &
> n.20).* The Foreign Intelligence Surveillance Act of 1978, *50 U.S.C.
> 1801*-1811, was enacted to govern such wiretaps, but the
> constitutional question remains unresolved. See *Chagnon v. Bell, 642
> F.2d 1248, 1257-1261 (D.C. Cir. 1980),* cert. denied, *453 U.S. 911
> (1981)* (former Attorney General Bell entitled to qualified immunity
> for authorizing warrantless foreign security wiretap in 1977-1978).

**\[\*59\]**

The district court faulted petitioner because \"more than one month
prior to the Attorney General\'s authorization of the wiretap at issue
in this case\" a defense motion filed in the district court proceedings
that gave rise to *Keith* should have given \"the Justice Department \*
\* \* reason to know that its position regarding the need for a warrant
was subject to both question and attack\" (Pet. App. 64a). And if this
motion was not enough, the district court continued (Pet. App. 64a),
\"\[a\]fter January 25, 1971 \[*i.e.,* several weeks after the wiretap
in this case ended\], the government had overwhelming reason to know
that its conduct was unconstitutional\" as a result of the district
court\'s decision in *United States v. Sinclair, 321 F. Supp. 1074 (E.D.
Mich. 1971),* which granted that motion. The district court also
suggested that petitioner was bound to accept the views expressed in
Justice Douglas\'s concurring opinion in *Katz* (and presumably to
ignore those expressed in Justice White\'s concurring opinion). The
district court wrote (Pet. App. 66a):

\[I\]n 1967, the *Katz* majority opinion and two concurrences should
have clearly alerted defendant **\[\*60\]** Mitchell that electronic
surveillance such as the Davidon tap was subject to the warrant
requirement of the Fourth Amendment. Instead of seeking to obtain a
warrant for the Davidon tap, defendant Mitchell and his aides gambled
that Justice White\'s position would be accepted if the Court were to be
faced with this issue in an actual case rather than a hypothetical
debate. The Justice Department lost that gamble in *Keith.*

We submit that the approach to issues of immunity implicit in this
passage not only cannot be reconciled with the policy concerns that
animated this Court in *Harlow,* but itself vividly illustrates the
mischief that *Harlow* sought to cure. The central *point* of *Harlow*
was that difficult and important decisions made by government officials
in an environment of legal uncertainty should *not* be transformed into
gambling games in which crushing personal liability becomes a cost of
making erroneous guesses about how the courts in the future will resolve
these uncertainties. And it is absurd to suggest that the Attorney
General should require discontinuation of an investigative technique
simply because it has been challenged by a defendant in a criminal
**\[\*61\]** case or rejected by a single district court judge. By that
reasoning, criminal investigations will come to a halt. See *Zweibon IV,
720 F.2d at 171.* Nor should the Attorney General be required, at the
risk of personal liability, to follow individual expressions of views by
a minority of this Court, especially where, as in *Katz,* other members
of the Court express seemingly contrary views and the Court itself
specifically reserves decision on the question. n22 The Attorney General
is the nation\'s chief law enforcement officer. It is his duty to
enforce the law vigorously and aggressively, to \"strike hard blows\"
but fair ones, as this Court once put it. *Berger v. United States, 295
U.S. 78, 88 (1935).* If the Attorney General risks personal liability
whenever he employs an investigative technique that some have brought
into question, he will always have a strong incentive to err on the side
of inaction. But that is exactly what *Harlow* sought to prevent. Unless
it is clearly established that particular conduct is unlawful, the
public interest is \"better served by action taken \'with independence
and without fear of consequences.\'\" *Harlow v. Fitzgerald, 457 U.S. at
819* **\[\*62\]** (citation omitted).

> n22 In *Zweibon IV,* the court of appeals similarly rejected the
> plaintiffs\' attempt to \"\'poll\' the Supreme Court Justices on the
> scope of the national security exemption as of 1970\" *(720 F.2d at
> 172).*

Finally, the district court held (Pet. App. 67a-69a) that Title III of
the Omnibus Crime Control and Safe Streets Act of 1968, *18 U.S.C.
2510*-2520, should have altered petitioner that a warrant was required.
However, *Keith* itself made abundantly clear that Title III \"simply
did not legislate with respect to national security surveillances\"
*(407 U.S. at 306).* After reviewing the language of Title III, the
Court concluded that \"Congress simply left presidential powers where it
found them\" in this field ( *id. at 303).* The Court also found that
the legislative history supported this interpretation ( *id. at
306-308).* The district court simply ignored *Keith\'s* lengthy
discussion of Title III. n23

> n23 The district court relied (Pet. App. 68a) on *Zweibon v. Mitchell
> (Zweibon I), 516 F.2d 594 (D.C. Cir. 1975),* cert. denied, *425 U.S.
> 944 (1976),* in which the D.C. Circuit held that Title III does
> require a warrant for domestic security wiretaps. However, that court
> has since concluded that *Zweibon I* represented such a \"sharp break
> in the law\" that it should be given only prospective effect. *Zweibon
> III, 606 F.2d at 1182.* Thus, *Zweibon I\'s* interpretation of Title
> III, even if correct, would not be binding here.

**\[\*63\]**

5\. If this Court agrees that the denial of qualified immunity is
appealable, we urge the Court to decide the merits of the qualified
immunity question, rather than remanding that question to the court of
appeals. Several factors support such a disposition. Petitioner\'s
entitlement to qualified immunity is, we believe, beyond serious
dispute. \"The immunity question is a pure issue of law, appropriate for
\[this Court\'s\] immediate resolution.\" *Nixon v. Fitzgerald, 457 U.S.
731, 743 n.23 (1982).* The issue is simple and straightforward and has
already been decided by several courts. Requiring still another lower
federal court to address the question is most unlikely to shed any new
light on the problem. In addition, if this Court decides in
petitioner\'s favor on the issue of qualified immunity, there would be
no need to reach the more difficult question of absolute immunity. At
the same time, this meritless litigation, which began more than a decade
ago, would be brought to an end. As Judge Weis stated in dissent below
(Pet. App. 29a): \"This litigation has lasted far too long. It should be
terminated now.\"

II\. PETITIONER IS ENTITLED TO ABSOLUTE IMMUNITY **\[\*64\]** FOR
DECISIONS MADE TO PROTECT NATIONALS SECURITY

In *Harlow v. Fitzgerald, 457 U.S. at 812,* this Court stated:

For aides entrusted with discretionary authority in such sensitive areas
as national security or foreign policy, absolute immunity might well be
justified to protect the unhesitating performance of functions vital to
the national interest.

In this case, our remaining submission is that protection of the
\"unhesitating performance of functions vital to the national interest\"
requires that the Attorney General have absolute immunity from personal
damages liability n24 for decisions \-- such as the one at issue here
\-- made to protect the national security from threats such as violence,
terrorism, subversion, or espionage. n25

> n24 We call to the Court\'s attention that the factors that make this
> case a compelling one for absolute immunity may also create a doubt
> about an antecedent issue: whether a judicially-fashioned cause of
> action for damages under the Constitution should be recognized at all
> with respect to the Attorney General\'s national security decisions.
> \"The Court, in *Bivens* and its progeny, has expressly cautioned \*
> \* \* that such a remedy will not be available when \'special factors
> counselling hesitation\' are present.\" *Chappell* v. *Wallace,* No.
> 82-167 (June 13, 1983), slip op. 2, quoting *Bivens v. Six Unknown
> Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 396
> (1971).* See also *Bush* v. *Lucas,* No. 81-469 (June 13, 1983), slip
> op. 10; *Carlson v. Green, 446 U.S. 14, 18 (1980);* *Davis v. Passman,
> 442 U.S. 228, 245 (1979).* In this case the \"special factors\" are,
> of course, those that in the body of our submission support a claim
> for absolute immunity.
>
> n25 This case involved an intelligence-gathering national security
> wiretap undertaken primarily in order to *prevent* a threat to the
> national security from materializing. Thus, this case does not present
> the question whether a claim of absolute immunity should be recognized
> in connection with the normal criminal-investigation functions of the
> Attorney General when the crime relates to national security.

**\[\*65\]**

1\. We are fully cognizant that claims for absolute immunity come to
this Court with a substantial burden of persuasion. The inevitable
immediate question is: why is qualified immunity insufficient? After
all, by hypothesis absolute immunity seems to come into play only where
qualified immunity leaves off \-- that is, where a government official
has been shown to have violated a *clearly established* constitutional
or statutory right. What reason can there be for exempting government
officials from liability in such a circumstance, where a willful
flouting of the law has, by hypothesis, occurred?

Of course, it is the case that these questions arise whenever absolute
immunity is claimed; nevertheless, this Court has concluded that
absolute immunity should be extended to judge (see *Pierson v. Ray, 386
U.S. 547 (1967)),* prosecutors (see *Imbler v. Pachtman, 424 U.S. 409
(1976)),* administrative law judges and administrative prosecutors (see
*Butz v. Economou, 438 U.S. at 508-517),* and the President (see *Nixon
v. Fitzgerald, supra).* In each of these cases, the Court understood
that in some circumstances **\[\*66\]** qualified immunity may be
insufficient notwithstanding the superficial attractions of the argument
that public officials should always be liable for actions that violate
clearly established rights.

In fact the story of this case casts a dramatic light on why that
argument obscures some fundamental considerations. In this case
respondent seeks to make a former Attorney General of the United States
personally liable for substantial money damages because that officer \--
faced with credible information that there might be terrorist attacks on
federal facilities and on the person of the senior foreign-policy
advisor of the President \-- determined that an immediate
intelligence-gathering telephone tap was in order, and that under the
law as it stood at that time he (the President\'s express designee in
this area) did not need judicial permission to order such surveillance.
Years later, a federal district judge persuades himself that this
difficult question of constitutional law \-- one that had been expressly
reserved by this Court and had divided some of its individual Justices,
that had at that time never been passed on by an appellate court and had
been unanimously decided the other **\[\*67\]** way at the trial level
\-- had, nevertheless, a \"clear\" answer (thus illustrating this
Court\'s warning that \"\[i\]n times of political passion, dishonest or
vindictive motives are readily attributed \* \* \* and as readily
believed\" ( *Tenney v. Brandhove, 341 U.S. 367, 378 (1951)).*
Consequently he rules that the Attorney General violated \"clearly
established\" constitutional rights and should pay compensatory (and
perhaps punitive) damages out of his own pocket. The correctness of this
ruling is, to be sure, subject to further review \-- but only (according
to the court of appeals) after a full trial on the merits and,
thereafter, at the discretion of this Court. In the meantime, according
to the courts below (and notwithstanding *Harlow*), petitioner\'s
thoughts and motives in evaluating the advice he received and taking the
action he took will be subjected to the hindsight of exacting judicial
scrutiny (here in the context of respondent\'s demand for punitive
damages).

The difficulty is clear. From a retrospective viewpoint and in the
abstract, there is an all too easy appeal to the assertion that public
officials who have deliberately flouted clearly established **\[\*68\]**
rights should be liable. But, from the perspective of an official making
a decision at the time he is making it \-- from the prospective
viewpoint \-- things that may seem clear years later, in a wholly
different legal and political climate, may not be clear at all. As this
case shows, qualified immunity \-- which at first glance seems to be so
precise, so \"just\" \-- creates risks and uncertaionties of its own.
And the question before the Court is: what balance of risks should an
official have on his mind *at the time he has to make his decision, in
an environment of uncertainty?* Under a regime of qualified immunity, a
risk-averse official will be well advised to remember that ruinous
personal liability may be the consequence if he guesses wrong, if a
decision that now seems imperatively demanded by public policy and
warranted by law will come later to be characterized by some federal
court as the invasion of what by hindsight is said to be a clearly
established legal right. He must also remember that a prolonged and
agonizing process of litigation (12 years in this case) may in any event
be in prospect before he can be vindicated. n26 He must remember, too,
that with respect to **\[\*69\]** decisions made in the area of national
security, he may be unable in the future to put on a complete defense:
the information on which he is now relying may relate to matters that he
will not be free to disclose in the event of future legal proceedings.
n27 In sum, notwithstanding *Harlow,* the chilling effects of possible
embroilment in litigation and possible personal liability continue to be
substantial features of discretionary decisionmaking even under a regime
of qualified immunity.

> n26 Although *Harlow* sought to avoid this result, we note that some
> lower courts have suggested that inquiries into a defendant
> official\'s subjective motives (which frequently will lead to a trial)
> still are required in \"typical\" qualified immunity cases. *Kenyatta
> v. Moore, 744 F.2d at 1185;* see also *id. at 1185-1186;* *Dandridge
> v. Police Dep\'t, 566 F. Supp. 152, 160-161 (E.D. Va. 1983);* compare
> *Hobson v. Wilson, 737 F.2d 1, 29-31 (D.C. Cir. 1984)* (discussing
> claims of \"unconstitutional motive\" after *Harlow*). While this is
> not the case to address this development, the conclusions reached by
> the courts in these cases certainly show that, even after *Harlow,* it
> continues to be \"difficult, not only for officials to anticipate the
> possible legal consequences of their conduct, but also for trial
> courts to decide even frivolous suits without protracted litigation.\"
> *Davis* v. *Scherer,* No. 83-490 (June 28, 1984), slip op. at 12
> (footnote omitted).
>
> n27 This Court has held that \"\'public policy forbids the maintenance
> of any suit in a court of justice, the trial of which would inevitably
> lead to the disclosure of matters which the law itself regards as
> confidential, and respecting which it will not allow the confidence to
> be violated.\'\" *Weinberger v. Catholic Action, 454 U.S. 139, 146-147
> (1982),* quoting *Totten v. United States, 92 U.S. 105, 107 (1876).*
> Congress too has recognized the grave problems that may be presented
> by litigation involving highly sensitive information. See Foreign
> Intelligence Surveillance Act of 1978, *50 U.S.C. 1801*-1803(a) and
> (b) (creating special court), 1803(c) (creating special security
> measures); Classified Information Procedures Act (CIPA), *18 U.S.C.
> App. at 549* *et seq.* (dealing with problem of \"graymail\"). If the
> Attorney General does not have absolute immunity in this area, he may
> be placed in the position of choosing between a ruinous judgment for
> damages and disclosing confidential information needed for his
> defense.

**\[\*70\]**

2\. This Court\'s cases involving absolute immunity show that the Court
has been sensitive to this ex ante perspective. The Court has concluded
that in many \-- indeed most \-- situations it is desirable for
government officials to err on the side of caution before taking actions
affecting citizens\' constitutional rights, and that the deterrent
effect of exposure to possible liability for official misconduct is
warranted. *Harlow v. Fitzgerald, supra; Butz v. Economou, supra.* But
this has never been an all-encompassing principle: some officials in
some settings should make their decisions without being inhibited and
constrained by *private* financial considerations the outcome of which
depends on a correct guess as to how the federal courts will, in the
distant future, evaluate a past legal environment.

In *Nixon v. Fitzgerald, supra,* for example, the Court wrote *(457 U.S.
at 751-753)* (footnotes omitted):

Because of the singular importance of the President\'s duties, diversion
of his energies by concern with private lawsuits would raise unique
risks to the effective functioning of government. \* \* \* \[The need
**\[\*71\]** for immunity\] is compelling where the officeholder must
make the most sensitive and far-reaching decisions entrusted to any
official under our constitutional system. \* \* \* Cognizance of this
personal vulnerability frequently could distract a President from his
public duties, to the detriment not only of the President and his office
but also the Nation that the Presidency was designed to serve.

In *Harlow* the Court observed *(457 U.S. at 812, 814):*

For aides entrusted with discretionary authority in such sensitive areas
as national security or foreign policy, absolute immunity might well be
justified to protect the unhesitating performance of functions vital to
the national interest.

\* \* \*

\[I\]t cannot be disputed seriously that claims frequently run against
the innocent as well as the guilty \-- at a cost not only to the
defendant officials, but to society as a whole. These social costs
include the expenses of litigation, the diversion of official energy
from pressing public issues, and the deterrence of able citizens from
acceptance of public office. Finally, there is the danger that fear of
being sued will \"dampen the ardor of all but the most resolute,
**\[\*72\]** or the most irresponsible \[public officials\], in the
unflinching discharge of their duties.\" *Gregoire v. Biddle, 177 F.2d
579, 581 (CA2 1949),* cert. denied, *339 U.S. 949 (1950).*

See also *id.* at 812 n.18. Cf. *Chappell* v. *Wallace,* No. 82-167
(June 13, 1983), slip op. 8 (\"\[T\]he need for unhesitating and
decisive action by military officers \* \* \* would be undermined\" by
damages liability); and see *Butz v. Economou, 438 U.S. at 512-513*
(\"\[a\]bsolute immunity is thus necessary to assure that judges,
advocates, and witnesses can perform their respective functions without
harrassment or intimidation\"); *Imbler v. Pachtman, 424 U.S. at 424*
(\"public trust of the prosecutor\'s office would suffer if he were
constrained in making every decision by the consequences in terms of his
own potential liability in a suit for damages\"); *Tenney v. Brandhove,
341 U.S. 367, 377 (1951)* (Frankfurter, J.) (\"Legislators are immune
from deterrents to the uninhibited discharge of their legislative duty,
not for their private indulgence, but for the public good. \* \* \* The
privilege would be of **\[\*73\]** little value if they could be
subjected to the cost and inconvenience and distractions of a trial \*
\* \*.\").

The need to view immunity questions from the perspective of the official
who must make critical decisions with the potential for personal damages
liability inmind was perhaps best expressed by Judge Learned Hand (
*Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949),* cert. denied,
*339 U.S. 949 (1950)):*

It does indeed go without saying that an official, who is in fact guilty
of using his powers to vent his spleen upon others, or for any other
personal motive not connected with the public good, should not escape
liability for the injuries he may so cause; and, if it were possible in
practice to confine such complaints to the guilty, it would be monstrous
to deny recovery. The justification for doing so is that it is
impossible to know whether the claim is well founded until the case has
been tried, and that to submit all officials, the innocent as well as
the guilty, to the burden of a trial and to the inevitable danger of its
outcome, would dampen the ardor of all but the most resolute, or the
most irresponsible, in the unflinching discharge **\[\*74\]** of their
duties. \* \* \* As is so often the case, the answer must be found in a
balance between the evils inevitable in either alternative. In this
instance it has been thought in the end better to leave unredressed the
wrongs done by dishonest officers than to subject those who try to do
their duty to the constant dread of retaliation.

And this Court, in citing Judge Hand\'s reasoning in *Nixon (457 U.S. at
752 n.32)* stated that \"the prospect that damages liability may render
an official unduly cautious in the discharge of his official duties\" is
\"\[a\]mong the most persuasive reasons supporting official immunity.\"
n28

> n28 Surprisingly, the court of appeals in *Forsyth I* concluded that
> this Court was \"unconcerned with this problem\" (Pet. App. 101a) when
> *Butz* v. *Economou* was decided (but see *438 U.S. at 512, 515-516)*
> and found, in *Forsyth II,* that nothing in *Nixon* or *Harlow*
> warranted reconsideration of its earlier immunity decision (Pet. App.
> 12a-13a). See also *Harlow v. Fitzgerald, 457 U.S. at 814 n.23*
> (noting that \"\[t\]he importance of this consideration hardly needs
> emphasis\").

3\. We submit **\[\*75\]** that the need for \"unhesitating\" action by
the Attorney General to protect the national security justifies absolute
immunity in this limited sphere. The compelling public policy that
demands this protection is not based on abstract notions but is grounded
in \"our constitutional heritage and structure\" ( *Harlow v.
Fitzgerald, 457 U.S. at 813 n.20),* n29 which confirm the critical
importance of the President\'s national security responsibilities. \"It
is \'obvious and unarguable\' that no governmental interest is more
compelling than the security of the Nation.\" *Haig v. Agee, 453 U.S.
280, 307 (1981),* quoting *Aptheker v. Secretary of State, 378 U.S. 500,
509 (1964).* The President has \"the fundamental duty, under Art. II, §
1 of the Constitution, to \'preserve, protect and defend the
Constitution of the United States.\' Implicit in that duty is the power
to protect our Government against those who would subvert or overthrow
it by unlawful means.\" *Keith, 407 U.S. at 310.* The Court has stressed
the need for \"the utmost deference to Presidential responsibilities\"
in performing the central duties imposed by Article **\[\*76\]** II (
*United States v. Nixon, 418 U.S. 683, 710 (1974)).* n30 Indeed, in
*Harlow (457 U.S. at 811, 812 n.19)* this Court acknowledged that, while
\"\[t\]he undifferentiated extension of absolute \'derivative\' immunity
to the President\'s aides\" could not be justified, \"a derivative claim
to Presidential immunity would be strongest in such \'central\'
Presidential domains as foreign policy and national security, in which
the President could not discharge his singularly vital mandate without
delegating functions nearly as sensitive as his own.\" n31 And in
suggesting that absolute immunity \"might well be justified\" to protect
the \"unhesitating performance of \[national security\] functions\" (
*id. at 812),* this Court made specific reference to the Attorney
General\'s role in authorizing the national security surveillance that
is involved in this case ( *id. at 812 n.19).*

> n29 See also *Nixon v. Fitzgerald, 457 U.S. at 748 n.26* (\"Although
> the Court in *Butz* v. *Economou, supra,* at 508, described the
> requisite inquiry as one of \'public policy,\' the focus of inquiry
> more accurately may be viewed in terms of the \'inherent\' or
> \'structural\' assumptions of our scheme of government.\").
>
> n30 See, *e.g., Haig v. Agee, 453 U.S. 280* (sustaining Secretary of
> State\'s discretion in revoking a passport on the ground that the
> holder\'s activities threatened serious danger to United States\'
> foreign policy and national security); *Weinberger v. Catholic Action,
> 454 U.S. 139 (1981)* (concluding that Navy was not required to prepare
> an Environmental Impact Statement with regard to the operation of a
> facility capable of storing nuclear weapons because an EIS would
> compromise national security); *United States v. Reynolds, 345 U.S. 1
> (1953)* (recognizing the absolute nature of a governmental claim of
> state secrets privilege); see also *Halkin v. Helms, 598 F.2d 1, 9
> (D.C. Cir. 1978)* (holding that courts should accord the \"utmost
> deference\" to executive claims of state secrets privilege).
>
> n31 It might be noted that President Nixon\'s immunity from suits
> seeking damages for warrantless wiretapping has been recognized.
> *Halperin v. Kissinger, 578 F. Supp. 231, 233 (D.D.C. 1984)* (an
> appeal in this case has been filed but does not challenge the
> Presidential immunity holding).

**\[\*77\]**

The Attorney General is the Cabinet officer principally responsible for
taking preventive action to protect the national security against
terrorism and other threats within our borders. He must approve any
procedures for the collection, retention, or dissemination of
intelligence information on United States citizens, resident aliens,
groups, or companies. Exec. Order No. 12,333, para. 2.3, 3 C.F.R. 211
(1981). He has been delegated the sole power to approve warrantless
arrests, searches, or seizures directed against a foreign power or its
agents in situations where a warrant would normally be required for law
enforcement purposes (*id.* para. 2.5), and was the President\'s express
designee for authorizing national security wiretaps. See Memorandum for
the Heads of Executive Departments and Agencies, dated June 30, 1965,
*reprinted in United States v. United States District Court, 444 F.2d at
670-671.* The Federal Bureau of Investigation, an agency of the
Department of Justice *(28 U.S.C. 531),* is the agency that has been
designated \"to take charge of investigative work in matters relating to
espionage, sabotage, subversive activiities, **\[\*78\]** and related
matters\" (28 C.F.R. 0.85(d)). In addition, with a few limited
exceptions, the FBI is also the only agency authorized to gather
intelligence information within this country (Exec. Order No. 12,333,
para. 2.3(e)), 3 C.F.R. 211 (1981). Finally, the Attorney General, alone
among cabinet officers, has the added responsibility of deciding, as the
President\'s chief legal representative, which of the responses
available to combat a national security threat fall within the
President\'s powers under the Constitution (see *28 U.S.C. 511*-513).
n32

> n32 This responsibility is itself grounded in the Constitution and
> reflects the historically central role of the Attorney General, dating
> from the creation of that office in the First Judiciary Act of 1789
> (Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 92). This role of the
> Attorney General is highly important, particularly where the scope of
> the President\'s constitutional obligations is unclear, because the
> President cannot look to the Judicial Branch for advice. This
> principle was established early on, when Chief Justice Jay declined a
> request of President Washington. Citing the President\'s power under
> Article II to \"require the Opinion, in writing, of the principal
> Officer in each of the executive Departments\" (U.S. Const. Art. II, §
> 2, Cl. 1), the Chief Justice explained:
>
> \[The lines of separation drawn by the Constitution between the three
> departments of government\] being in certain respects checks upon each
> other, and our being judges of a court in the last resort, are
> considerations which afford strong arguments against the propriety of
> our extra-judicially deciding the questions alluded to, especially as
> the power given by the Constitution to the President, of calling on
> the heads of departments for opinions, seems to have been *purposely*
> as well as expressly united to the *executive* departments.
>
> 3 H. Johnston, *The Correspondence and Public Papers of John Jay*
> 488-489 (1891).

**\[\*79\]**

In the critically important and sensitive field of national security,
the balance of competing considerations weighs in favor of absolute
immunity from damages liability for the Attorney General. n33 The day is
long past when the possibility of acts of violence and terrorism
directed at the nation\'s government and leadership can be easily
dismissed; and the potential consequences of inaction are too great to
permit personal financial considerations (and other consequences of
protracted litigation) to interfere with the vigorous and unhesitating
performance of the Attorney General\'s duties. The factors that led this
Court to conclude that Cabinet and other executive officers do not enjoy
blanket absolute immunity simply do not apply in this specialized area.
It is one thing for an executive officer to pause and assess his
potential liability when performing the routine functions of his agency
\-- *e.g.,* revoking the registration of a commodities futures trading
company ( *Butz v. Economou, supra)* or discharging a subordinate
government employee ( *Harlow v. Fitzgerald, supra).* It is quite
another thing for the Attorney General to dwell **\[\*80\]** on such
personal considerations when dealing with a national security threat.

> n33 It is our submission that the Attorney General is entitled to
> absolute immunity for actions taken to protect national security
> because he acts on behalf of the President in exercising a wide
> discretionary authority in this field. We are not contending that the
> same considerations would necessarily support absolute immunity for
> lower level officials with more restricted and less important
> responsibilities in this field.

In the present case petitioner was confronted with a plot to blow up
important federal facilities. More ominously, he was faced with a threat
to kidnap Henry Kissinger, who, as Assistant to the President for
National Security Affairs, was a principal advisor to the President on
defense and foreign affairs matters, and who was then conducting secret
negotiations to end the war in Vietnam. (What was in question was both
Mr. Kissinger\'s safety and also the possible compromising of highly
sensitive security and diplomatic information.) The need for prompt and
decisive preventive action was clear. Petitioner concluded that a
warrantless telephone tap would be lawful. Our contention **\[\*81\]**
is that, in such a context, to subject him to the incremental deterrent
effects of possible burdensome litigation and potential heavy personal
liability would be undesirable and counterproductive.

4\. Is it a serious objection to absolute immunity in this context that
it would make the Attorney General unaccountable even for actions that
are wholly egregious? Would a rule of absolute immunity in the national
security area encourage our Attorneys General to rush to do violence to
our citizens\' constitutional rights? We do not believe so.

First, immunity from personal damages actions is not the equivalent of
immunity from all legal, political and personal consequences; liability
for damages is not the only (or even most effective) deterrent to
willful official misconduct. n34 Injunctive and declaratory judgment
actions may be brought; evidence seized illegally and in bad faith may
be suppressed or excluded from evidence. Congressional inquiry and
oversight, dismissal from office, impeachment, and criminal prosecution
are all available, and, in the case of an officer such as the Attorney
General, not to be lightly discounted. Public and press criticism and
political retribution **\[\*82\]** are also powerful deterrents against
flagrant abuses. n35

> n34 See T. Madden & N. Allard, *Advice on Official Liability and
> Immunity, reprinted in* 2 Administrative Conference of the United
> States, *Recommendations and Report \-- 1982,* at 209 (\"\[M\]ost
> observers today agree that \[the existing system of civil sanctions
> for official misconduct\] fails to serve two of its primary goals \--
> measured deterrence of official misconduct, and adequate compensation
> of the victims of such misconduct.\")
>
> n35 Moreover, the Attorney General, like the prosecutor in *Imbler v.
> Pachtman, 424 U.S. 409 (1976)* and the agency attorney in *Butz v.
> Economou, 438 U.S. at 515-517,* \"stands perhaps unique, among
> officials whose acts could deprive persons of constitutional rights,
> in his amendability to professional discipline by an association of
> his peers\" *(424 U.S. at 429).*

More important, even, are the many personal, psychological and ethical
constraints that animate the vast majority of our public officers. Most
of our executive officials are no more minded to engage in purposeful
violations of the Constitution and egregious invasions of **\[\*83\]**
our citizens\' privacies than are our legislators or judges. Deterring
the occasional malevolent official is important; but to create systems
of deterrence that in turn will constrain and hamper our conscientious
and law abiding ones when they are acting in a context that involves the
safety and security of our country\'s leaders and institutions would be
tragic.

5\. The Court has already held that the Attorney General is absolutely
immune from damages liability when he performs the function of a
prosecutor. *Imbler v. Pachtman, 424 U.S. 409 (1976).* The Court
observed ( *id. at 424-425)* that \"\[t\]he public trust of the
prosecutor\'s office would suffer if he were constrained in making every
decision by the consequences in terms of his own potential liability in
a suit for damages\" ( *Imbler v. Pachtman, 424 U.S. 409, 424-425
(1976)).* The Court also noted ( *id. at 430-431 & n.33)* the difficulty
of drawing the line between prosecutorial responsibilities, for which
absolute immunity is extended, and \"those aspects of the prosecutor\'s
responsibility that cast him in the role of an administrator or
investigative **\[\*84\]** officer,\" for which only qualified immunity
may be available.

We submit that the Attorney General\'s vital responsibilities in
connection with intelligence gathering and prevention in the field of
national security are at least as deserving of absolute immunity as
routine prosecutorial actions taken either by the Attorney General
himself or by subordinate officials. n36 When the Attorney General is
called upon to take action to protect the security of the Nation, he
should think only of the national good and not about his pocketbook.
Accordingly, absolute immunity is appropriate in this limited area.

> n36 We note that this court has recognized the different interests
> that inhere in national security intelligence gathering (as
> distinguished from criminal investigations), where \"the emphasis \*
> \* \* is on the prevention of unlawful activity or the enhancement of
> the Government\'s preparedness for some possible future crisis or
> emergency\" ( *Keith, 407 U.S. at 322).*

CONCLUSION

The judgment of the court of appeals should be reversed and the case
should be dismissed.

Respectfully submitted.

REX E. LEE, *Solicitor General,* RICHARD K. WILLARD, *Acting*
**\[\*85\]** *Assistant Attorney General,* PAUL M. BATOR, *Deputy
Solicitor General,* SAMUEL A. ALITO, JR., *Assistant to the Solicitor
General,* BARBARA L. HERWIG, GORDON W. DAIGER, LARRY L. GREGG,
*Attorneys*

DECEMBER 1984