Nixon v. Fitzgerald, 79-1738

• Citation: 457 U.S. 731,73 L.Ed.2d 349,102 S.Ct. 2690
• Decision Date: 24 June 1982
• Docket Number: No. 79-1738,79-1738
• Parties: Richard NIXON, Petitioner v. A. Ernest FITZGERALD
• Court: United States Supreme Court

457 U.S. 731 102 S.Ct. 2690 73 L.Ed.2d 349 Richard NIXON, Petitioner

v.

A. Ernest FITZGERALD.

No. 79-1738. Argued Nov. 30, 1981. Decided June 24, 1982. Syllabus

During the waning months of the Presidency of Lyndon B. Johnson in 1968, respondent, a management analyst with the Department of the Air Force, testified before a congressional Subcommittee about cost overruns and unexpected technical difficulties concerning the development of a particular airplane. In January 1970, during the Presidency of petitioner Richard M. Nixon, respondent was dismissed from his job during a departmental reorganization and reduction in force, in which his job was eliminated. Respondent complained to the Civil Service Commission, alleging that his separation represented unlawful retaliation for his congressional testimony. The Commission rejected this claim, but concluded that respondent's dismissal offended applicable regulations because it was motivated by "reasons purely personal to" respondent. Respondent thereafter filed suit for damages in Federal District Court against various Defense Department officials and White House aides allegedly responsible for his dismissal. An amended complaint later named petitioner as a defendant. After earlier judicial rulings and extensive pretrial discovery, only three defendants were involved: petitioner and two White House aides (petitioners in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396). Denying the defendants' motion for summary judgment, the court held that respondent had stated triable causes of action under two federal statutes and the First Amendment, and that petitioner was not entitled to claim absolute Presidential immunity. Petitioner took a collateral appeal of the immunity decision to the Court of Appeals, which dismissed summarily.

Held:

1. This Court has jurisdiction to determine the immunity question. Pp. 741-744.

(a) The case was "in" the Court of Appeals for purposes of 28 U.S.C. § 1254, which authorizes this Court's review of "[c]ases in" the courts of appeals. The Court of Appeals here dismissed the appeal for lack of jurisdiction. However, petitioner's appeal to the Court of Appeals falls within the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, as raising a "serious and unsettled

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question" of law. Although the Court of Appeals had previously ruled in another case that the President was not entitled to absolute immunity, this Court had never so held. Pp. 741-743.

(b) Nor was the controversy mooted by an agreement to liquidate damages entered into between the parties after the petition for certiorari was filed and respondent had entered his opposition. Under the terms of the agreement, petitioner paid respondent $142,000; respondent agreed to accept liquidated damages of $28,000 if this Court ruled that petitioner was not entitled to absolute immunity; and no further payments would be made if the decision upheld petitioner's immunity claim. The limited agreement left both parties with a considerable financial stake in the resolution of the question presented in this Court. Cf. Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214. Pp. 743-744.

2. Petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts. Pp. 744-758

(a) Although there is no blanket recognition of absolute immunity for all federal executive officials from liability for civil damages resulting from constitutional violations, certain officials—such as judges and prosecutors—because of the special nature of their responsibilities, require absolute exemption from liability. Cf. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895. Determination of the immunity of particular officials is guided by the Constitution, federal statutes, history, and public policy. Pp. 744-748

(b) The President's absolute immunity is a functionally mandated incident of his unique office, rooted in the constitutional tradition of the separation of powers and supported by the Nation's history. 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. While the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President, a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. The exercise of jurisdiction is not warranted in the case of merely private suits for damages based on a President's official acts. Pp. 748-754.

(c) The President's absolute immunity extends to all acts within the "outer perimeter" of his duties of office. Pp.755-757

(d) A rule of absolute immunity for the President does not leave the Nation without sufficient protection against his misconduct. There remains the constitutional remedy of impeachment, as well as the deterrent effects of constant scrutiny by the press and vigilant oversight by Congress. Other incentives to avoid misconduct may include a desire to

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earn reelection, the need to maintain prestige as an element of Presidential influence, and a President's traditional concern for his historical stature. Pp. 757-758.

Reversed and remanded.

Herbert J. Miller, Jr., Washington, D. C., for petitioner Nixon.

Elliot L. Richardson, Washington, D. C., for petitioners Harlow and Butterfield.

John E. Nolan, Jr., Washington, D. C., for respondent.

Justice POWELL delivered the opinion of the Court.

The plaintiff in this lawsuit seeks relief in civil damages from a former President of the United States. The claim rests on actions allegedly taken in the former President's official capacity during his tenure in office. The issue before us is the scope of the immunity possessed by the President of the United States.

I

In January 1970 the respondent A. Ernest Fitzgerald lost his job as a management analyst with the Department of the Air Force. Fitzgerald's dismissal occurred in the context of a departmental reorganization and reduction in force, in

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which his job was eliminated. In announcing the reorganization, the Air Force characterized the action as taken to promote economy and efficiency in the Armed Forces.

Respondent's discharge attracted unusual attention in Congress and in the press. Fitzgerald had attained national prominence approximately one year earlier, during the waning months of the Presidency of Lyndon B. Johnson. On November 13, 1968, Fitzgerald appeared before the Subcommittee on Economy in Government of the Joint Economic Committee of the United States Congress. To the evident embarrassment of his superiors in the Department of Defense, Fitzgerald testified that cost-overruns on the C-5A transport plane could approximate $2 billion.¹ He also revealed that unexpected technical difficulties had arisen during the development of the aircraft.

Concerned that Fitzgerald might have suffered retaliation for his congressional testimony, the Subcommittee on Economy in Government convened public hearings on Fitzgerald's dismissal.² The press reported those hearings prominently,

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as it had the earlier announcement that his job was being eliminated by the Department of Defense. At a news conference on December 8, 1969, President Richard Nixon was queried about Fitzgerald's impending separation from Government service.³ The President responded by promising to look into the matter.⁴ Shortly after the news conference the petitioner asked White House Chief of Staff H. R. Haldeman to arrange for Fitzgerald's assignment to another job within the administration.⁵ It also appears that the President suggested to Budget Director Robert Mayo that Fitzgerald might be offered a position in the Bureau of the Budget.⁶

Fitzgerald's proposed reassignment encountered resistance within the administration.⁷ In an internal memorandum of January 20, 1970, White House aide Alexander Butterfield reported to Haldeman that " 'Fitzgerald is no doubt a top-notch cost expert, but he must be given very low

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marks in loyalty; and after all, loyalty is the name of the game.' " ⁸ Butterfield therefore recommended that " '[W]e should let him bleed, for a while at least.' " ⁹ There is no evidence of White House efforts to reemploy Fitzgerald subsequent to the Butterfield memorandum.

Absent any offer of alternative federal employment, Fitzgerald complained to the Civil Service Commission. In a letter of January 20, 1970, he alleged that his separation represented unlawful retaliation for his truthful testimony before a congressional Committee.¹⁰ The Commission convened a closed hearing on Fitzgerald's allegations on May 4, 1971. Fitzgerald, however, preferred to present his grievances in public. After he had brought suit and won an injunction, Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 467 F.2d 755 (1972), public hearings commenced on January 26, 1973. The hearings again generated publicity, much of it devoted to the testimony of Air Force Secretary Robert Seamans. Although he denied that Fitzgerald had lost his position in retaliation for congressional testimony, Seamans testified that he had received "some advice" from the White House before

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Fitzgerald's job was abolished.¹¹ But the Secretary declined to be more specific. He responded to several questions by invoking "executive privilege." ¹²

At a news conference on January 31, 1973, the President was asked about Mr. Seamans' testimony. Mr. Nixon took the opportunity to assume personal responsibility for Fitzgerald's dismissal:

"I was totally aware that Mr. Fitzgerald would be fired or discharged or asked to resign. I approved it and Mr. Seamans must have been talking to...