Harlow v. Fitzgerald, 457 U.S. 800 (1982)

Fundamental Cases in Procedural Law by Adam J. McKee

JUSTICE POWELL delivered the opinion of the Court.

The issue in this case is the scope of the immunity available to the senior aides and advisers of the President of the United States in a suit for damages based upon their official acts.


In this suit for civil damages, petitioners Bryce Harlow and Alexander Butterfield are alleged to have participated in a conspiracy to violate the constitutional and statutory rights of the respondent A. Ernest Fitzgerald.  Respondent avers that petitioners entered the conspiracy in their capacities as senior White House aides to former President Richard M. Nixon. As the alleged conspiracy is the same as that involved in Nixon v. Fitzgerald, the facts need not be repeated in detail.

Respondent claims that Harlow joined the conspiracy in his role as the Presidential aide principally responsible for congressional relations.  At the conclusion of discovery, the supporting evidence remained inferential. As evidence of Harlow’s conspiratorial activity, respondent relies heavily on a series of conversations in which Harlow discussed Fitzgerald’s dismissal with Air Force Secretary Robert Seamans.  The other evidence most supportive of Fitzgerald’s claims consists of a recorded conversation in which the President later voiced a tentative recollection that Harlow was “all for canning” Fitzgerald.

Disputing Fitzgerald’s contentions, Harlow argues that exhaustive discovery has adduced no direct evidence of his involvement in any wrongful activity.  He avers that Secretary Seamans advised him that considerations of efficiency required Fitzgerald’s removal by a reduction in force, despite anticipated adverse congressional reaction.  Harlow asserts he had no reason to believe that a conspiracy existed. He contends that he took all his actions in good faith.

Petitioner Butterfield also is alleged to have entered the conspiracy not later than May, 1969.  Employed as Deputy Assistant to the President and Deputy Chief of Staff to H.R. Haldeman, Butterfield circulated a White House memorandum in that month in which he claimed to have learned that Fitzgerald planned to “blow the whistle” on some “shoddy purchasing practices” by exposing these practices to public view.

Fitzgerald characterizes this memorandum as evidence that Butterfield had commenced efforts to secure Fitzgerald’s retaliatory dismissal. As evidence that Butterfield participated in the conspiracy to conceal his unlawful discharge and prevent his reemployment, Fitzgerald cites communications between Butterfield and Haldeman in December, 1969, and January, 1970.  After the President had promised at a press conference to inquire into Fitzgerald’s dismissal, Haldeman solicited Butterfield’s recommendations. In a subsequent memorandum emphasizing the importance of “loyalty,” Butterfield counseled against offering Fitzgerald another job in the administration at that time.

For his part, Butterfield denies that he was involved in any decision concerning Fitzgerald’s employment status until Haldeman sought his advice in December 1969— more than a month after Fitzgerald’s termination had been scheduled and announced publicly by the Air Force.  Butterfield states that he never communicated his views about Fitzgerald to any official of the Defense Department. He argues generally that nearly eight years of discovery have failed to turn up any evidence that he caused injury to Fitzgerald.

Together with their codefendant Richard Nixon, petitioners Harlow and Butterfield moved for summary judgment on February 12, 1980.  In denying the motion, the District Court upheld the legal sufficiency of Fitzgerald’s Bivens claim under the First Amendment and his “inferred” statutory causes of action under 5 U.S.C. § 7211 (1976 ed., Supp. IV) and 18 U.S.C. § 1505.  The court found that genuine issues of disputed fact remained for resolution at trial. It also ruled that petitioners were not entitled to absolute immunity.

Independently of former President Nixon, petitioners invoked the collateral order doctrine and appealed the denial of their immunity defense to the Court of Appeals for the District of Columbia Circuit.  The Court of Appeals dismissed the appeal without opinion. Never having determined the immunity available to the senior aides and advisers of the President of the United States, we granted certiorari.


As we reiterated today in Nixon v. Fitzgerald, our decisions consistently have held that government officials are entitled to some form of immunity from suits for damages.  As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.

Our decisions have recognized immunity defenses of two kinds.  For officials whose special functions or constitutional status requires complete protection from suit, we have recognized the defense of “absolute immunity.”  The absolute immunity of legislators in their legislative functions, and of judges in their judicial functions, now is well settled. Our decisions also have extended absolute immunity to certain officials of the Executive Branch.  These include prosecutors and similar officials, executive officers engaged in adjudicative functions, and the President of the United States.

For executive officials in general, however, our cases make plain that qualified immunity represents the norm.  In Scheuer v. Rhodes (1974), we acknowledged that high officials require greater protection than those with less complex discretionary responsibilities.  Nonetheless, we held that a governor and his aides could receive the requisite protection from qualified or good faith immunity. In Butz v. Economou, we extended the approach of Scheuer to high federal officials of the Executive Branch.  Discussing in detail the considerations that also had underlain our decision in Scheuer, we explained that the recognition of a qualified immunity defense for high executives reflected an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens, but also “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.”

Without discounting the adverse consequences of denying high officials an absolute immunity from private lawsuits alleging constitutional violations—consequences found sufficient in Spalding v. Vilas (1896), and Barr v. Matteo (1959), to warrant extension to such officials of absolute immunity from suits at common law—we emphasized our expectation that insubstantial suits need not proceed to trial:

“Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading.  Unless the complaint states a compensable claim for relief . . . , it should not survive a motion to dismiss. Moreover, the Court recognized in Scheuer that damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based on the defense of immunity. . . .  In responding to such a motion, plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits.”

Butz continued to acknowledge that the special functions of some officials might require absolute immunity.  But the Court held that

“federal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.”

This we reaffirmed today in Nixon v. Fitzgerald.



Petitioners argue that they are entitled to a blanket protection of absolute immunity as an incident of their offices as Presidential aides.  In deciding this claim, we do not write on an empty page. In Butz v. Economou, the Secretary of Agriculture—a Cabinet official directly accountable to the President—asserted a defense of absolute official immunity from suit for civil damages. We rejected his claim.  In so doing, we did not question the power or the importance of the Secretary’s office. Nor did we doubt the importance to the President of loyal and efficient subordinates in executing his duties of office.  Yet we found these factors, alone, to be insufficient to justify absolute immunity. “[T]he greater power of [high] officials,” we reasoned, “affords a greater potential for a regime of lawless conduct.” Damages actions against high officials were therefore “an important means of vindicating constitutional guarantees.”  Moreover, we concluded that it would be

“untenable to draw a distinction for purposes of immunity law between suits brought against state officials under [42 U.S.C.] § 1983 and suits brought directly under the Constitution against federal officials.”

Having decided in Butz that Members of the Cabinet ordinarily enjoy only qualified immunity from suit, we conclude today that it would be equally untenable to hold absolute immunity an incident of the office of every Presidential subordinate based in the White House.  Members of the Cabinet are direct subordinates of the President, frequently with greater responsibilities, both to the President and to the Nation, than White House staff. The considerations that supported our decision in Butz apply with equal force to this case.  It is no disparagement of the offices held by petitioners to hold that Presidential aides, like Members of the Cabinet, generally are entitled only to a qualified immunity.


In disputing the controlling authority of Butz, petitioners rely on the principles developed in Gravel v. United States (1972).  In Gravel, we endorsed the view that “it is literally impossible . . . for Members of Congress to perform their legislative tasks without the help of aides and assistants,” and that “the day-to-day work of such aides is so critical to the Members’ performance that they must be treated as the latter’s alter egos. . . .”  Having done so, we held the Speech and Debate Clause derivatively applicable to the “legislative acts” of a Senator’s aide that would have been privileged if performed by the Senator himself. 

Petitioners contend that the rationale of Gravel mandates a similar “derivative” immunity for the chief aides of the President of the United States.  Emphasizing that the President must delegate a large measure of authority to execute the duties of his office, they argue that recognition of derivative absolute immunity is made essential by all the considerations that support absolute immunity for the President himself.

Petitioners’ argument is not without force.  Ultimately, however, it sweeps too far. If the President’s aides are derivatively immune because they are essential to the functioning of the Presidency, so should the Members of the Cabinet—Presidential subordinates some of whose essential roles are acknowledged by the Constitution itself—be absolutely immune.  Yet we implicitly rejected such derivative immunity in Butz.  Moreover, in general, our cases have followed a “functional” approach to immunity law.  We have recognized that the judicial, prosecutorial, and legislative functions require absolute immunity.

But this protection has extended no further than its justification would warrant.  In Gravel, for example, we emphasized that Senators and their aides were absolutely immune only when performing “acts legislative in nature,” and not when taking other acts even “in their official capacity.”  Our cases involving judges and prosecutors have followed a similar line. The undifferentiated extension of absolute “derivative” immunity to the President’s aides therefore could not be reconciled with the “functional” approach that has characterized the immunity decisions of this Court, indeed including Gravel itself.


Petitioners also assert an entitlement to immunity based on the “special functions” of White House aides.  This form of argument accords with the analytical approach of our cases. 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.  But a “special functions” rationale does not warrant a blanket recognition of absolute immunity for all Presidential aides in the performance of all their duties. This conclusion too follows from our decision in Butz, which establishes that an executive official’s claim to absolute immunity must be justified by reference to the public interest in the special functions of his office, not the mere fact of high station.

Butz also identifies the location of the burden of proof.  The burden of justifying absolute immunity rests on the official asserting the claim.  We have not, of course, had occasion to identify how a Presidential aide might carry this burden.  But the general requisites are familiar in our cases. In order to establish entitlement to absolute immunity a Presidential aide first must show that the responsibilities of his office embraced a function so sensitive as to require a total shield from liability.  He then must demonstrate that he was discharging the protected function when performing the act for which liability is asserted.

Applying these standards to the claims advanced by petitioners Harlow and Butterfield, we cannot conclude on the record before us that either has shown that “public policy requires [for any of the functions of his office] an exemption of [absolute] scope.”  Nor, assuming that petitioners did have functions for which absolute immunity would be warranted, could we now conclude that the acts charged in this lawsuit—if taken at all—would lie within the protected area.  We do not, however, foreclose the possibility that petitioners, on remand, could satisfy the standards properly applicable to their claims.


Even if they cannot establish that their official functions require absolute immunity, petitioners assert that public policy at least mandates an application of the qualified immunity standard that would permit the defeat of insubstantial claims without resort to trial.  We agree.


The resolution of immunity questions inherently requires a balance between the evils inevitable in any available alternative.  In situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees.  It is this recognition that has required the denial of absolute immunity to most public officers. At the same time, however, it 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, or the most irresponsible [public officials], in the unflinching discharge of their duties.” 

In identifying qualified immunity as the best attainable accommodation of competing values, in Butz, as in Scheuer, we relied on the assumption that this standard would permit “insubstantial lawsuits to be quickly terminated.”  Yet petitioners advance persuasive arguments that the dismissal of insubstantial lawsuits without trial—a factor presupposed in the balance of competing interests struck by our prior cases—requires an adjustment of the “good faith” standard established by our decisions.


Qualified or “good faith” immunity is an affirmative defense that must be pleaded by a defendant official.  Decisions of this Court have established that the “good faith” defense has both an “objective” and a “subjective” aspect.  The objective element involves a presumptive knowledge of and respect for “basic, unquestioned constitutional rights.”  The subjective component refers to “permissible intentions.”  Characteristically, the Court has defined these elements by identifying the circumstances in which qualified immunity would not be available.  Referring both to the objective and subjective elements, we have held that qualified immunity would be defeated if an official

knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury. . . .”

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.  Rule 56 of the Federal Rules of Civil Procedure provides that disputed questions of fact ordinarily may not be decided on motions for summary judgment.  And an official’s subjective good faith has been considered to be a question of fact that some courts have regarded as inherently requiring resolution by a jury.

In the context of Butz’ attempted balancing of competing values, it 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 able people from public service.  There are special costs to “subjective” inquiries of this kind. Immunity generally is available only to officials performing discretionary functions. In contrast with the thought processes accompanying “ministerial” tasks, the judgments surrounding discretionary action almost inevitably are influenced by the decisionmaker’s experiences, values, and emotions.  These variables explain in part why questions of subjective intent so rarely can be decided by summary judgment. Yet they also frame a background in which there often is no clear end to the relevant evidence. Judicial inquiry into subjective motivation therefore may entail broad-ranging discovery and the deposing of numerous persons, including an official’s professional colleagues.  Inquiries of this kind can be peculiarly disruptive of effective government.

Consistently with the balance at which we aimed in Butz, we conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery.  We therefore hold 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. 

Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.  On summary judgment, the judge appropriately may determine not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful.

Until this threshold immunity question is resolved, discovery should not be allowed.  If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained.  But again, the defense would turn primarily on objective factors.

By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct.  The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official’s acts.  Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action.  But 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.” 


In this case, petitioners have asked us to hold that the respondent’s pretrial showings were insufficient to survive their motion for summary judgment.  We think it appropriate, however, to remand the case to the District Court for its reconsideration of this issue in light of this opinion. The trial court is more familiar with the record so far developed, and also is better situated to make any such further findings as may be necessary.


The judgment of the Court of Appeals is vacated, and the case is remanded for further action consistent with this opinion.

So ordered.

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Last Modified:  08/18/2019


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