JUSTICE WHITE delivered the opinion of the Court.
This is a suit for damages stemming from a warrantless wiretap authorized by petitioner, a former Attorney General of the United States. The case presents three issues: whether the Attorney General is absolutely immune from suit for actions undertaken in the interest of national security; if not, whether the District Court's finding that petitioner is not immune from suit for his actions under the qualified immunity standard of Harlow v. Fitzgerald, 457 U.S. 800 (1982), is appealable; and, if so, whether the District Court's ruling on qualified immunity was correct.
In 1970, the Federal Bureau of Investigation learned that members of an antiwar group known as the East Coast Conspiracy to Save Lives (ECCSL) had made plans to blow up heating tunnels linking federal office buildings in Washington, D. C., and had also discussed the possibility of kidnaping then National Security Adviser Henry Kissinger. On November 6, 1970, acting on the basis of this information, the then Attorney General John Mitchell authorized a warrantless wiretap on the telephone of William Davidon, a Haverford College physics professor who was a member of the group. According to the Attorney General, the purpose of the wiretap was the gathering of intelligence in the interest of national security.
The FBI installed the tap in late November 1970, and it stayed in place until January 6, 1971. During that time, the Government intercepted three conversations between Davidon and respondent Keith Forsyth. The record before us does not suggest that the intercepted conversations, which appear to be innocuous, were ever used against Forsyth in any way. Forsyth learned of the wiretap in 1972, when, as a criminal defendant facing unrelated charges, he moved under
Shortly thereafter, this Court ruled that the Fourth Amendment does not permit the use of warrantless wiretaps
Discovery and related preliminary proceedings dragged on for the next five-and-a-half years. By early 1978, both Forsyth and Mitchell had submitted motions for summary judgment on which the District Court was prepared to rule. Forsyth contended that the uncontested facts established that the wiretap was illegal and that Mitchell and the other defendants were not immune from liability; Mitchell contended that the decision in Keith should not be applied retroactively to the wiretap authorized in 1970 and that he was entitled either to absolute prosecutorial immunity from suit under the rule of Imbler v. Pachtman, 424 U.S. 409 (1976), or to qualified or "good faith" immunity under the doctrine of Wood v. Strickland, 420 U.S. 308 (1975).
The court found that there was no genuine dispute as to the facts that the FBI had informed Mitchell of the ECCSL's plots, that Mitchell had authorized the warrantless tap on Davidon's phone, and that the ostensible purpose of the tap was the gathering of intelligence in the interest of national security. Such a wiretap, the court concluded, was a clear violation of the Fourth Amendment under Keith, which, in
Mitchell appealed the District Court's denial of absolute immunity to the United States Court of Appeals for the Third Circuit, which remanded for further factfinding on the question whether the wiretap authorization was "necessary to [a]. . . decision to initiate a criminal prosecution" and thus within the scope of the absolute immunity recognized in Imbler v. Pachtman. Forsyth v. Kleindienst, 599 F.2d 1203, 1217 (1979). On remand, the District Court held a hearing on the question whether the wiretap served a prosecutorial purpose. On the basis of the hearing and the evidence in the record, the court concluded that Mitchell's authorization of the wiretap was not intended to facilitate any prosecutorial decision or further a criminal investigation. Mitchell himself had disavowed any such intention and insisted that the only reason for the wiretap was to gather intelligence needed for national security purposes. Taking Mitchell at his word in this regard, the court held to its conclusion that he was not entitled to absolute prosecutorial immunity.
Mitchell again appealed, contending that the District Court had erred in its rulings on both absolute immunity and qualified immunity. Holding that it possessed jurisdiction to decide the denial of absolute immunity issue despite the fact
The question whether the Attorney General is absolutely immune from suit for acts performed in the exercise of his national security functions is an important one that we have hitherto left unanswered. See Halperin v. Kissinger, 196 U. S. App. D. C. 285, 606 F.2d 1192 (1979), aff'd by an equally divided Court, 452 U.S. 713 (1981). Moreover, the issue of the appealability before final judgment of orders denying immunity under the objective standard of Harlow v. Fitzgerald is one that has divided the Courts of Appeals.
We first address Mitchell's claim that the Attorney General's actions in furtherance of the national security should be shielded from scrutiny in civil damages actions by an absolute immunity similar to that afforded the President, see Nixon v. Fitzgerald, 457 U.S. 731 (1982), judges, prosecutors, witnesses, and officials performing "quasi-judicial" functions, see Briscoe v. LaHue, 460 U.S. 325 (1983); Butz v. Economou, 438 U.S. 478, 508-517 (1978); Stump v. Sparkman, 435 U.S. 349 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976), and legislators, see Dombrowski v. Eastland, 387 U.S. 82 (1967); Tenney v. Brandhove, 341 U.S. 367 (1951). We conclude that the Attorney General is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions.
As the Nation's chief law enforcement officer, the Attorney General provides vital assistance to the President in the performance of the latter's constitutional duty to "preserve, protect, and defend the Constitution of the United States." U. S. Const., Art. II, § 1, cl. 8. Mitchell's argument, in essence, is that the national security functions of the Attorney General are so sensitive, so vital to the protection of our Nation's well-being, that we cannot tolerate any risk that in performing those functions he will be chilled by the possibility of personal liability for acts that may be found to impinge on the constitutional rights of citizens. Such arguments, "when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration." Keith, 407 U. S., at 319. Nonetheless, we do not believe that the considerations that have led us to recognize absolute immunities for other officials dictate the same result in this case.
First, in deciding whether officials performing a particular function are entitled to absolute immunity, we have generally looked for a historical or common-law basis for the immunity in question. The legislative immunity recognized in Tenney v. Brandhove, supra, for example, was rooted in the long struggle in both England and America for legislative independence, a presupposition of our scheme of representative government. The immunities for judges, prosecutors, and witnesses established by our cases have firm roots in the common law. See Briscoe v. LaHue, supra, at 330-336. Mitchell points to no analogous historical or common-law basis for an absolute immunity for officers carrying out tasks essential to national security.
Second, the performance of national security functions does not subject an official to the same obvious risks of entanglement in vexatious litigation as does the carrying out of the judicial or "quasi-judicial" tasks that have been the primary wellsprings of absolute immunities. The judicial process is an arena of open conflict, and in virtually every case there is, if not always a winner, at least one loser. It is inevitable
Third, most of the officials who are entitled to absolute immunity from liability for damages are subject to other checks that help to prevent abuses of authority from going unredressed. Legislators are accountable to their constituents, see Tenney v. Brandhove, supra, at 378, and the judicial process is largely self-correcting: procedural rules, appeals, and the possibility of collateral challenges obviate the need
The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity.
Although 28 U. S. C. § 1291 vests the courts of appeals with jurisdiction over appeals only from "final decisions" of the district courts, "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). Thus, a decision of a district court is appealable if it falls within "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
A major characteristic of the denial or granting of a claim appealable under Cohen's "collateral order" doctrine is that "unless it can be reviewed before [the proceedings terminate], it never can be reviewed at all." Stack v. Boyle, 342 U.S. 1, 12 (1952) (opinion of Jackson, J.); see also United States v. Hollywood Motor Car Co., 458 U.S. 263, 266 (1982). When a district court has denied a defendant's claim of right not to stand trial, on double jeopardy grounds, for example, we have consistently held the court's decision appealable, for such a right cannot be effectively vindicated after the trial has occurred. Abney v. United States, 431 U.S. 651 (1977).
At the heart of the issue before us is the question whether qualified immunity shares this essential attribute of absolute immunity — whether qualified immunity is in fact an entitlement not to stand trial under certain circumstances. The conception animating the qualified immunity doctrine as set forth in Harlow v. Fitzgerald, 457 U.S. 800 (1982), is that "where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken `with independence and without fear of consequences.' " Id., at 819, quoting Pierson v. Ray, 386 U.S. 547, 554 (1967). As the citation to
With these concerns in mind, the Harlow Court refashioned the qualified immunity doctrine in such a way as to "permit the resolution of many insubstantial claims on summary judgment" and to avoid "subject[ing] government officials either to the costs of trial or to the burdens of broadreaching discovery" in cases where the legal norms the officials are alleged to have violated were not clearly established at the time. Id., at 817-818. Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. See id., at 818. Even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts. Harlow thus recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute immunity indicates
An appealable interlocutory decision must satisfy two additional criteria: it must "conclusively determine the disputed question," Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978), and that question must involve a "clai[m] of right separable from, and collateral to, rights asserted in the action," Cohen, supra, at 546. The denial of a defendant's motion for dismissal or summary judgment on the ground of qualified immunity easily meets these requirements. Such a decision is "conclusive" in either of two respects. In some cases, it may represent the trial court's conclusion that even if the facts are as asserted by the defendant, the defendant's actions violated clearly established law and are therefore not within the scope of the qualified immunity. In such a case, there will be nothing in the subsequent course of the proceedings in the district court that can alter the court's conclusion that the defendant is not immune. Alternatively, the trial judge may rule only that if the facts are as asserted by the plaintiff, the defendant is not immune. At trial, the plaintiff may not succeed in proving his version of the facts, and the defendant may thus escape liability. Even so, the court's denial of summary judgment finally and conclusively determines the defendant's claim of right not to stand trial on the plaintiff's allegations, and because "[t]here are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred," it is apparent that "Cohen's threshold requirement of a fully consummated decision is satisfied" in such a case. Abney v. United States, 431 U. S., at 659.
Similarly, it follows from the recognition that qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct that a claim of immunity is conceptually distinct from the merits of the plaintiff's claim
The Court of Appeals thus had jurisdiction over Mitchell's claim of qualified immunity, and that question was one of the question presented in the petition for certiorari which we granted without limitation. Moreover, the purely legal question on which Mitchell's claim of immunity turns is "appropriate for our immediate resolution" notwithstanding that it was not addressed by the Court of Appeals. Nixon v. Fitzgerald, supra, at 743, n. 23. We therefore turn our attention to the merits of Mitchell's claim of immunity.
Under Harlow v. Fitzgerald, Mitchell is immune unless his actions violated clearly established law. See 457 U. S., at 818-819; see also Davis v. Scherer, 468 U.S. 183, 197 (1984). Forsythia complains that in November 1970, Mitchell authorized a warrant less wiretap aimed at gathering intelligence regarding a domestic threat to national security — the kind of wiretap that the Court subsequently declared to be illegal. Keith, 407 U.S. 297 (1972). The question of Mitchell's immunity turns on whether it was clearly established in November 1970, well over a year before Keith was decided, that such wiretaps were unconstitutional. We conclude that it was not.
The use of warrantless electronic surveillance to gather intelligence in cases involving threats to the Nation's security can be traced back to 1940, when President Roosevelt instructed Attorney General Robert Jackson that he was authorized to approve wiretaps of persons suspected of subversive
Until 1967, it was anything but clear that these practices violated the Constitution: the Court had ruled in Olmstead v. United States, 277 U.S. 438 (1928), that a wiretap not involving a physical trespass on the property of the person under surveillance was not a search for purposes of the Fourth Amendment, and although the rule in Olmstead had suffered some erosion, see Silverman v. United States, 365 U.S. 505 (1961), the Court had never explicitly disavowed it. Not until 1967 did the Court hold that electronic surveillance unaccompanied by any physical trespass constituted a search subject to the Fourth Amendment's restrictions, including the Warrant Clause. Katz v. United States, 389 U.S. 347. Yet the Katz Court recognized that warrantless searches do not in all circumstances violate the Fourth Amendment; and though the Court held that no recognized exception to the warrant requirement could justify warrantless wiretapping in an ordinary criminal case, the Court was careful to note that "[w]hether 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." Id., at 358, n. 23. In separate concurrences, Members of the Court debated the question whether the President or the Attorney General could constitutionally authorize warrantless wiretapping in the interest of national security. Compare id., at 359-360 (Douglas, J., joined by
In the aftermath of Katz, Executive authority to order warrantless national security wiretaps remained uncertain. This uncertainty found expression in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, in which Congress attempted to fashion rules governing wiretapping and electronic surveillance that would "meet the constitutional requirements for electronic surveillance enunciated by this Court in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967)." Keith, supra, at 302. Although setting detailed standards governing wiretapping by both state and federal law enforcement agencies, the Act disclaimed any intention "to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government." 18 U. S. C. § 2511(3) (1976 ed.). As subsequently interpreted by this Court in Keith, this provision of the Act was an "expression of neutrality," 407 U. S., at 308, reflecting both an awareness on the part of Congress of the uncertain scope of Executive authority to conduct warrantless national security wiretaps and an unwillingness to circumscribe whatever such authority might exist.
So matters stood when Mitchell authorized the Davidon wiretap at issue in this case. Only days after the termination of the Davidon wiretap, however, two District Courts explicit rejected the Justice Department's contention that the Attorney General had the authority to order warrantless wiretaps in domestic national security cases. United States v. Smith, 321 F.Supp. 424 (CD Cal., Jan. 8, 1971); United States v. Sinclair, 321 F.Supp. 1074 (ED Mich., Jan. 26, 1971). The Sixth Circuit affirmed the Sinclair decision in United States v. United States District Court for Eastern Dist. of Mich., 444 F.2d 651 (1971), and our own affirmance followed in 1972. Keith, supra.
Of course, Keith finally laid to rest the notion that warrantless wiretapping is permissible in cases involving domestic threats to the national security. But whatever the agreement
We affirm the Court of Appeals' denial of Mitchell's claim to absolute immunity. The court erred, however, in declining to accept jurisdiction over the question of qualified immunity; and to the extent that the effect of the judgment of the Court of Appeals is to leave standing the District Court's erroneous decision that Mitchell is not entitled to summary judgment on the ground of qualified immunity, the judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE POWELL took no part in the decision of this case.
JUSTICE REHNQUIST took no part in the consideration or decision of this case.
With JUSTICE O'CONNOR, I join Parts I, III, and IV of the Court's opinion and the judgment of the Court. I also agree that the Court's discussion of the absolute immunity issue is unnecessary for the resolution of this case. I write separately to emphasize my agreement with JUSTICE STEVENS that the Court's extended discussion of this issue reaches the wrong conclusion.
In Gravel v. United States, 408 U.S. 606 (1972), we held that aides of Members of Congress who implement the legislative policies and decisions of the Member enjoy the same absolute immunity from suit under the Speech and Debate Clause that the Members themselves enjoy. As I noted in dissent in Harlow v. Fitzgerald, 457 U.S. 800, 822 (1982), the logic underlying Gravel applies equally to top Executive aides. A Cabinet officer — and surely none more than the Attorney General — is an "aide" and arm of the President in
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring in part.
I join Parts I, III, and IV of the majority opinion and the judgment of the Court. Our previous cases concerning the qualified immunity doctrine indicate that a defendant official whose conduct did not violate clearly established legal norms is entitled to avoid trial. Davis v. Scherer, 468 U.S. 183 (1984); Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982). This entitlement is analogous to the right to avoid trial protected by absolute immunity or by the Double Jeopardy Clause. Where the district court rejects claims that official immunity or double jeopardy preclude trial, the special nature of the asserted right justifies immediate review. The very purpose of such immunities is to protect the defendant from the burdens of trial, and the right will be irretrievably lost if its denial is not immediately appealable. See Helstoski v. Meanor, 442 U.S. 500, 506-508 (1979); Abney v. United States, 431 U.S. 651, 660-662 (1977). I agree that the District Court's denial of qualified immunity comes within the small class of interlocutory orders appealable under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
Because I also agree that the District Court erred in holding that petitioner's authorization of the wiretaps in 1970 violated legal rights that were clearly established at the time, I concur in the judgment of the Court. The conclusion that
JUSTICE STEVENS, concurring in the judgment.
Some public officials are "shielded by absolute immunity from civil damages liability." Nixon v. Fitzgerald, 457 U.S. 731, 748 (1982). For Members of Congress that shield is expressly provided by the Constitution.
The practical consequences of a holding that no remedy has been authorized against a public official are essentially the same as those flowing from a conclusion that the official has absolute immunity. Moreover, similar factors are evaluated in deciding whether to recognize an implied cause of action or a claim of immunity. In both situations, when Congress is
In Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
The Court's determination in this case and in Keith that Attorney General Mitchell was exercising the discretionary "power of the President" in the area of national security when he authorized these episodes of surveillance inescapably leads to the conclusion that absolute immunity attached to the special function then being performed by Mitchell. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court explicitly noted that absolute immunity may be justified for Presidential "aides entrusted with discretionary authority in such sensitive areas as national security or foreign policy . . . to protect the unhesitating performance of functions vital to the national interest." Id., at 812. In "such `central' Presidential domains as foreign policy and national security" the President cannot "discharge his singularly vital mandate without delegating functions nearly as sensitive as his own." Id., at 812, n. 19.
Here, the President expressly had delegated the responsibility to approve national security wiretaps to the Attorney General.
When the Attorney General, the Secretary of State, and the Secretary of Defense make erroneous decisions on matters of national security and foreign policy, the primary liabilities are political. Intense scrutiny, by the people, by the press, and by Congress, has been the traditional method for deterring violations of the Constitution by these high officers of the Executive Branch. Unless Congress authorizes other remedies, it presumably intends the retributions for any violations to be undertaken by political action. Congress is in the best position to decide whether the incremental deterrence added by a civil damages remedy outweighs the adverse effect that the exposure to personal liability may have on governmental decisionmaking. However the balance is struck, there surely is a national interest in enabling Cabinet officers with responsibilities in this area to perform their sensitive duties with decisiveness and without potentially ruinous hesitation.
The passions aroused by matters of national security and foreign policy
If the Attorney General had violated the provisions of Title III, as JUSTICE WHITE argued in Keith, he would have no immunity. Congress, however, had expressly refused to enact a civil remedy against Cabinet officials exercising the President's powers described in § 2511(3). In that circumstance, I believe the Cabinet official is entitled to the same absolute immunity as the President of the United States. Indeed, it is highly doubtful whether the rationale of Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), even supports an implied cause of action for damages after Congress has enacted legislation comprehensively regulating the field of electronic surveillance but has specifically declined to impose a remedy for the national security wiretaps described in § 2511(3). See id., at 396-397; Bush v. Lucas, 462 U.S. 367, 378 (1983). Congress' failure to act after careful consideration of the matter is a factor counselling some hesitation.
Accordingly, I concur in the judgment to the extent that it requires an entry of summary judgment in favor of former Attorney General Mitchell.
I join Parts I and II of the Court's opinion, for I agree that qualified immunity sufficiently protects the legitimate needs of public officials, while retaining a remedy for those whose rights have been violated. Because denial of absolute immunity is immediately appealable, Nixon v. Fitzgerald, 457 U.S. 731, 743 (1982), the issue is squarely before us and, in my view, rightly decided.
I disagree, however, with the Court's holding that the qualified immunity issue is properly before us. For the purpose of applying the final judgment rule embodied in 28 U. S. C. § 1291, I see no justification for distinguishing between the denial of Mitchell's claim of qualified immunity and numerous other pretrial motions that may be reviewed only on appeal of the final judgment in the case. I therefore dissent from its holding that denials of qualified immunity, at least where they rest on undisputed facts, are generally appealable.
The Court acknowledges that the trial court's refusal to grant Mitchell qualified immunity was not technically the final order possible in the trial court. If the refusal is to be immediately appealable, therefore, it must come within the narrow confines of the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949), and its progeny. Although the Court has, over the years, varied its statement of the Cohen test slightly, the underlying inquiry has remained relatively constant. "[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
We have always read the Cohen collateral order doctrine narrowly, in part because of the strong policies supporting
In many cases in which a claim of right to immediate appeal is asserted, there is a sympathetic appellant who would undoubtedly gain from an immediate review of his individual claim. But lurking behind such cases is usually a vastly larger number of cases in which relaxation of the final judgment rule would threaten all of the salutory purposes served by the rule. Properly applied, the collateral order doctrine is necessary to protect litigants in certain narrow situations. Given the purposes of the final judgment rule, however, we should not relax its constraints unless we can be certain that all three of the Cohen criteria are satisfied. In this case, I find it unnecessary to address the first criterion — finality — because in my view a trial court's denial of qualified immunity
Although the qualified immunity question in this suit is not identical to the ultimate question on the merits, the two are quite closely related. The question on the merits is whether Mitchell violated the law when he authorized the wiretap of Davidon's phone without a warrant. The immunity question is whether Mitchell violated clearly established law when he authorized the wiretap of Davidon's phone without a warrant. Assuming with the Court that all relevant factual disputes in this case have been resolved, a necessary implication of a holding that Mitchell was not entitled to qualified immunity would be a holding that he is indeed liable. Moreover, a trial court seeking to answer either question would refer to the same or similar cases and statutes, would consult the same treatises and secondary materials, and would undertake a rather similar course of reasoning. At least in the circumstances presented here, the two questions are simply not completely separate.
The close relationship between the immunity and merits questions is not a consequence of the special circumstances of this case. On the Court's view, there were no issues of material fact between the parties concerning the events surrounding the Davidon wiretap.
I thus find the application of the second prong of the Cohen test to result in a straightforward preclusion of interlocutory appeal. Our prior cases confirm this result. In the past, we have found, inter alia, double jeopardy claims, Abney v. United States, 431 U.S. 651 (1977), claims of excessive bail, Stack v. Boyle, 342 U.S. 1 (1951), claims of absolute immunity, Nixon v. Fitzgerald, 457 U. S., at 742-743, and disputes concerning whether a defendant was required to post a security bond in certain circumstances, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), to be separate from the merits of the underlying actions.
In an attempt to avoid the rigors of the second prong of the collateral order doctrine, the Court holds that "a claim of immunity is conceptually distinct from the merits of the plaintiff's claim that his rights have been violated." Ante, at 527-528 (emphasis added). Our previous cases, especially those of recent vintage, have established a more exacting standard. The ordinary formulation is from Coopers & Lybrand; we stated there that an interlocutory order may be considered final for purposes of immediate appeal only if it "resolve[s] an important issue completely separate from the merits of the action." 437 U. S., at 468 (emphasis added). The Court has used this formulation in Richardson-Merrell Inc. v. Koller, ante, p. 424, Flanagan v. United States, 465 U.S. 259, 265 (1984), United States v. Hollywood Motor Car Co., 458 U.S. 263, 265 (1982) (per curiam), and Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375 (1981). In Abney v. United States, supra, we described the same factor by noting that the challenged order "resolved an issue completely
Although the precise outlines of the "conceptual distinction" test are not made clear, the only support the Court has for its conclusion is the argument that "[a]ll [an appellate court] need determine is a question of law." Ante, at 528.
Even if something less than complete separability were required, the Court's toothless standard disserves the important
A second purpose of the separability requirement derives from our recognition that resolution of even the most abstract legal disputes is advanced by the presence of a concrete
In short, the Court's "conceptual distinction" test for separability finds no support in our cases and fails to serve the underlying purposes of the final judgment rule. To the extent it requires that only trial court orders concerning matters of law be appealable, it requires only what I had thought was a condition of any appellate review, interlocutory or otherwise. The additional thrust of the test seems to be that an appealable order must not be identical to the merits of the case. If the test for separability is to be this weak, I see little profit in maintaining the fiction that it remains a prerequisite to interlocutory appeal.
The Court states that "[a]t the heart of the issue before us," ante, at 525, is the third prong of the Cohen test: whether the order is effectively unreviewable upon ultimate termination of the proceedings. The Court holds that, because the right to qualified immunity includes a right not to stand trial unless the plaintiff can make a material issue of fact on the question of whether the defendant violated clearly established law, it cannot be effectively vindicated after trial. Cf. Abney v. United States, 431 U.S. 651 (1977).
If a given defense to liability in fact encompasses a right not to stand trial under the specified circumstances, one's right to that defense is effectively unreviewable on appeal from final judgment. For instance, if one's right to summary judgment under Federal Rule of Civil Procedure 56 were characterized as a right not to stand trial where the opposing
The point, of course, is that the characterization of the right at issue determines the legal result. In each case, therefore, a careful inquiry must be undertaken to determine whether it is necessary to characterize the right at issue as a right not to stand trial. The final judgment rule presupposes that each party must abide by the trial court's judgments until the end of the proceedings before gaining the opportunity for appellate review. To hold that a given legal claim is in fact an immunity from trial is to except a privileged class from undergoing the regrettable cost of a trial. We should not do so lightly.
The Court states that Harlow v. Fitzgerald, 457 U.S. 800 (1982), extended the qualified immunity doctrine in part to avoid imposition of "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 able people from public service." Id., at 816. In Harlow, however, we chose to advance this purpose by modifying the substantive standards governing qualified immunity. By making the defense easier to prove on a summary judgment motion, Harlow did relieve many officials of undergoing the costs of trial. Yet Harlow fails to answer the question before the Court today: Having given extra protection to public officials by adjusting liability standards
The Court advances three grounds in support of its result. First, it notes that a defendant government official is entitled to dismissal if the plaintiff fails to state a claim of violation of clearly established law. Ante, at 526. This, although true, merely restates the standard of liability recognized in Harlow; it fails to justify the additional step taken by the Court today. Second, the Court states that a defendant official is entitled to summary judgment if the plaintiff is unable to create a genuine issue of material fact on this issue. This is also true, but again merely restates the ordinary standard for summary judgment under Rule 56(c).
In my view, a sober assessment of the interests protected by the qualified immunity defense counsels against departing from normal procedural rules when the defense is asserted. The Court claims that subjecting officials to trial may lead to " `distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.' " Ante, at 526, quoting Harlow v. Fitzgerald, supra, at 816. Even if I agreed with the Court that in the post-Harlow environment these evils were all real, I could not possibly agree that they justify the Court's conclusion. These same ill results would flow from an adverse decision on any dispositive preliminary issue in a lawsuit against an official defendant — whether based on a statute of limitations, collateral estoppel, lack of jurisdiction, or the like. A trial court is often able to resolve these issues with considerable finality, and the trial court's decision on such questions may often be far more separable from the merits than is a qualified immunity ruling. Yet I hardly think the Court is prepared to hold that a government official suffering an adverse ruling on any of these issues would be entitled to an immediate appeal.
In any event, I do not think that the evils suggested by the Court pose a significant threat, given the liability standards established in Harlow. We held in Harlow that "government 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." 457 U. S., at 818. I have no doubt that trial judges employing this standard will have little difficulty in achieving Harlow's goal of early dismissal of frivolous
Such cases will predictably be of two types. Some will be cases in which the official did violate a clearly established legal norm. In these cases, nothing is to be gained by permitting interlocutory appeal because they should proceed as expeditiously as possible to trial. The rest will be cases in which the official did not violate a clearly established legal norm. Given the nature of the qualified immunity determination, I would expect that these will tend to be quite close cases, in which the defendant violated a legal norm but in which it is questionable whether that norm was clearly established. Many of these cases may well be appealable as certified interlocutory appeals under 28 U. S. C. § 1292(b) or, less likely, on writ of mandamus. Cf. Firestone Tire & Rubber Co. v. Risjord, 449 U. S., at 378, n. 13; Coopers & Lybrand v. Livesay, 437 U. S., at 474-475. It is only in the remaining cases that the Court's decision today offers the hope of an otherwise unavailable pretrial reversal. Out of this class of cases, interlocutory appeal is beneficial only in that still smaller subclass in which the trial court's judgment is reversed.
The question is thus whether the possibly beneficial effects of avoiding trial in this small subset of cases justify the Court's declaration that the right to qualified immunity is a right not to stand trial at all. The benefits seem to me to be rather small. Most meritless cases will be dismissed at the early stages, thus minimizing the extent to which officials are distracted from their duties. Officials aware of the extensive protection offered by qualified immunity would be deterred only from activities in which there is at least a strong scent of illegality; deterrence from many such activities (those that are clearly unlawful) is precisely one of the goals of official liability. Finally, I cannot take seriously the Court's suggestion that officials who would otherwise be deterred from taking public office will have their confidence
Even if there were some benefits to be gained by granting officials a right to immediate appeal, a rule allowing immediate appeal imposes enormous costs on plaintiffs and on the judicial system as a whole.
Even if I agreed with the Court's conclusion that denials of qualified immunity that rest on undisputed facts were immediately appealable and further agreed with its conclusion that Mitchell was entitled to qualified immunity,
The trial court quite properly took Mitchell "at his word" for purposes of ruling against him on his prosecutorial immunity claim. It would have been quite improper for the court to take Mitchell "at his word" for any other purpose, and the court never made its own finding of fact on the disputed issue.
The Court also attempts to construct an argument that the trial court, as a matter of logic, must have made the finding of fact in question. Otherwise, according to the Court, "the
"Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U. S. C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power" (footnote omitted).
The provision, enacted as part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, was repealed in 1978 by § 201(c) of the Foreign Intelligence Surveillance Act, Pub. L. 95-511, 92 Stat. 1797.
Nor do we see any inconsistency between our ruling here and the handling of the "completely separate from the merits" requirement in Richardson-Merrell Inc. v. Koller, ante, p. 424. Contrary to JUSTICE BRENNAN'S suggestion, the Richardson-Merrell Court's alternative holding that the issue of disqualification of counsel in a civil case is not separate from the merits is not based only on the fact that the issue involves some factual overlap with the merits of the underlying litigation. Rather, the Court in Richardson-Merrell observes that the question whether a district court's disqualification order should be reversed may depend on the effect of disqualification (or nondisqualification) on the success of the parties in litigating the other legal and factual issues that form their underlying dispute. Accordingly, the propriety of a disqualification order — unlike a qualified immunity ruling — is into a legal issue that can be decided with reference only to undisputed facts and in isolation from the remaining issues of the case.
"Nothing contained in this chapter or in section 605 of the Communications Act of 1934 . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power" (emphasis added).
As the Court points out, ante, at 514, n. 1, this section has been repealed.