472 U.S. 511 (1985), 84-335, Mitchell v. Forsyth

Docket NºNo. 84-335
Citation472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411, 53 U.S.L.W. 4798
Party NameMitchell v. Forsyth
Case DateJune 19, 1985
CourtUnited States Supreme Court

Page 511

472 U.S. 511 (1985)

105 S.Ct. 2806, 86 L.Ed.2d 411, 53 U.S.L.W. 4798




No. 84-335

United States Supreme Court

June 19, 1985

Argued February 27, 1985



In 1970, petitioner, who was then the Attorney General, authorized a warrantless wiretap for the purpose of gathering intelligence regarding the activities of a radical group that had made tentative plans to take actions threatening the Nation's security. During the time the wiretap was installed, the Government intercepted three conversations between a member of the group and respondent. Thereafter, this Court in United States v. United States District Court, 407 U.S. 297 (Keith), ruled that the Fourth Amendment does not permit warrantless wiretaps in cases involving domestic threats to the national security. Respondent then filed a damages action in Federal District Court against petitioner and others, alleging that the surveillance to which he had been subjected violated the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act. Ultimately, the District Court, granting respondent's motion for summary judgment on the issue of liability, held that petitioner was not entitled to either absolute or qualified immunity. The Court of Appeals agreed with the denial of absolute immunity, but held, with respect to the denial of qualified immunity, that the District Court's order was not appealable under the collateral order doctrine.


1. Petitioner is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions. [105 S.Ct. 2808] His status as a Cabinet officer is not in itself sufficient to invest him with absolute immunity. The considerations of separation of powers that call for absolute immunity for state and federal legislators and for the President do not demand a similar immunity for Cabinet officers or other high executive officials. Nor does the nature of the Attorney General's national security functions -- as opposed to his prosecutorial functions -- warrant absolute immunity. Petitioner points to no historical or common law basis for absolute immunity for officers carrying out tasks essential to national security, such as pertains to absolute immunity for judges, prosecutors, and witnesses. The performance of national security functions does not subject an official to the same risks of entanglement in vexatious litigation as does the carrying out of the judicial or "quasijudicial" tasks that have been the primary wellsprings of absolute immunities. And the danger that high federal officials will disregard constitutional rights in their zeal to protect the

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national security is sufficiently real to counsel against affording such officials an absolute immunity. Pp. 520-524.

2. The District Court's denial of qualified immunity, to the extent it turned on a question of law, is an appealable "final decision" within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment. Qualified immunity, similar to absolute immunity, is an entitlement not to stand trial under certain circumstances. Such entitlement is an immunity from suit rather than a mere defense to liability; and like absolute immunity, it is effectively lot if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of the denial of absolute immunity indicates that the denial of qualified immunity should be similarly appealable under the "collateral order" doctrine; in each case, the district court's decision is effectively unreviewable on appeal from a final judgment. The denial of qualified immunity also meets the additional criteria for an appealable interlocutory order: it conclusively determines the disputed question, and it involves a claim of rights separable from, and collateral to, rights asserted in the action. Pp. 524-530.

3. Petitioner is entitled to qualified immunity from suit for his authorization of the wiretap in question notwithstanding his actions violated the Fourth Amendment. Under Harlow v. Fitzgerald, 457 U.S. 800, petitioner is immune unless his actions violated clearly established law. In 1970, when the wiretap took place, well over a year before Keith, supra, was decided, it was not clearly established that such a wiretap was unconstitutional. Pp. 530-535.

729 F.2d 267, affirmed in part and reversed in part.

WHITE, J., delivered the opinion of the Court, in which BLACKMUN, J., joined; in Parts I, III, and IV of which BURGER, C.J., and O'CONNOR, J., joined; and in Parts I and II of which BRENNAN and MARSHALL, JJ., joined. BURGER, C.J., filed an opinion concurring in part, post, p. 536. O'CONNOR, J., filed an opinion concurring in part, in which BURGER, C.J., joined, post, p. 537. STEVENS, J., filed an opinion concurring in the judgment, post p. 538. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 543. POWELL, J., took no part in the decision of the case. REHNQUIST, J., took no part in the consideration or decision of the case.

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WHITE, J., lead opinion

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 anti-war 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 [105 S.Ct. 2809] 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

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18 U.S.C. § 3504 for disclosure by the Government of any electronic surveillance to which he had been subjected. The Government's response to Forsyth's motion revealed that although he had never been the actual target of electronic surveillance, he

did participate in conversations that are unrelated to this case and which were overheard by the Federal Government during the course of electronic surveillance expressly authorized by the President acting through the Attorney General.

App. 20-21. The Government's response was accompanied by an affidavit, sworn to by then Attorney General Richard Kleindienst, averring that the surveillance to which Forsyth had been subjected was authorized "in the exercise of [the President's] authority relating to the national security as set forth in 18 U.S.C. 2511(3)." Id. at 23.1

Shortly thereafter, this Court ruled that the Fourth Amendment does not permit the use of warrantless wiretaps

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in cases involving domestic threats to the national security. United States v. United States District Court, 407 U.S. 297 (1972) (Keith). In the wake of the Keith decision, Forsyth filed this lawsuit against John Mitchell and several other defendants in the United States District Court for the Eastern District of Pennsylvania. Forsyth alleged that the surveillance to which he had been subjected violated both the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, which sets forth comprehensive standards governing the use of wiretaps and electronic surveillance by both governmental and private agents. He asserted that both the constitutional and statutory provisions provided him with a private right of action; he sought compensatory, statutory, and punitive damages.

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 [105 S.Ct. 2810] 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...

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