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

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U.S. Supreme Court

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

Harlow v. Fitzgerald

No. 80-945

Argued November 30, 1981

Decided June 24, 1982

457 U.S. 800


In respondent's civil damages action in Federal District Court based on his alleged unlawful discharge from employment in the Department of the Air Force, petitioners, White House aides to former President Nixon, were codefendants with him and were claimed to have participated in the same alleged conspiracy to violate respondent's constitutional and statutory rights as was involved in Nixon v. Fitzgerald, ante p. 457 U. S. 731. After extensive pretrial discovery, the District Court denied the motions of petitioners and the former President for summary judgment, holding, inter alia, that petitioners were not entitled to absolute immunity from suit. Independently of the former President, petitioners appealed the denial of their immunity defense, but the Court of Appeals dismissed the appeal.


1. Government officials whose special functions or constitutional status requires complete protection from suits for damages -- including certain officials of the Executive Branch, such as prosecutors and similar officials, see Butz v. Economou, 438 U. S. 478, and the President, Nixon v. Fitzgerald, ante p. 457 U. S. 731 -- are entitled to the defense of absolute immunity. However, executive officials in general are usually entitled to only qualified or good faith immunity. The recognition of a qualified immunity defense for high executives reflects 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 discretion and the related public interest in encouraging the vigorous exercise of official authority. Scheuer v. Rhodes, 416 U. S. 232. Federal officials seeking absolute immunity from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope. Pp. 457 U. S. 806-808.

2. Public policy does not require a blanket recognition of absolute immunity for Presidential aides. Cf. Butz, supra. Pp. 457 U. S. 808-813.

(a) The rationale of Gravel v. United States, 408 U. S. 606 -- which 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 -- does not mandate "derivative" absolute

Page 457 U. S. 801

immunity for the President's chief aides. Under the "functional" approach to immunity law, immunity protection extends no further than its justification warrants. Pp. 457 U. S. 809-811.

(b) While absolute immunity might be justified for aides entrusted with discretionary authority in such sensitive areas as national security or foreign policy, a "special functions" rationale does not warrant a blanket recognition of absolute immunity for all Presidential aides in the performance of all their duties. 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. Under the record in this case, neither petitioner has made the requisite showing for absolute immunity. However, the possibility that petitioners, on remand, can satisfy the proper standards is not foreclosed. Pp. 457 U. S. 811-813.

3. Petitioners are entitled to application of the qualified immunity standard that permits the defeat of insubstantial claims without resort to trial. Pp. 457 U. S. 813-820.

(a) The previously recognized "subjective" aspect of qualified or "good faith" immunity -- whereby such immunity is not available if the official asserting the defense "took the action with the malicious intention to cause a deprivation of constitutional rights or other injury," Wood v. Strickland, 420 U. S. 308, 420 U. S. 322 -- frequently has proved incompatible with the principle that insubstantial claims should not proceed to trial. Henceforth, 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. Pp. 457 U. S. 815-819.

(b) The case is remanded for the District Court's reconsideration of the question whether respondent's pretrial showings were insufficient to withstand petitioners' motion for summary judgment. Pp. 457 U. S. 819-820.

Vacated and remanded.

POWELL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 457 U. S. 820. BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., filed a separate concurring statement, post, p. 457 U. S. 821. REHNQUIST, J., filed a concurring opinion, post, p. 457 U. S. 822. BURGER, C.J., filed a dissenting opinion, post, p. 457 U. S. 822.

Page 457 U. S. 802

Primary Holding

Qualified immunity applies to presidential aides regarding their official actions, and it can be penetrated only when they have violated clearly established statutory or constitutional rights.


Fitzgerald sued Harlow and Butterfield, who were aides to President Nixon, on the grounds that they had conspired to violate his rights. He alleged that he had been fired from his federal job because of his whistleblowing activities. Harlow and Butterfield sought summary judgment on the basis of official immunity for actions that they had taken during their service as presidential aides. After the lower court dismissed their motion, the intermediate appellate court dismissed their interlocutory appeal.



  • Lewis Franklin Powell, Jr. (Author)
  • William Joseph Brennan, Jr.
  • Byron Raymond White
  • Thurgood Marshall
  • Harry Andrew Blackmun
  • William Hubbs Rehnquist
  • John Paul Stevens
  • Sandra Day O'Connor

Government officials may be protected by either absolute or qualified immunity. Absolute immunity generally applies to legislators who are conducting their legislative functions as well as prosecutors and executive officers who are conducting adjudicative functions. Qualified immunity applies in a broader range of situations and is a more appropriate balance between the need of government officials to exercise their discretion and the importance of protecting individual rights. Cabinet members receive only qualified immunity, so presidential aides should not receive a higher degree of immunity. Their job is not so sensitive that it requires absolute immunity. This does not affect the ability of courts to dismiss meritless claims against government officials.

To establish a defense of good-faith immunity, a government official must prove both objective and subjective elements. The official must not have actually known and also should not have been able to know that his actions were illegal. Accordingly, many claims will be resolved on summary judgment, and officials will have the freedom to use their discretion in carrying out their tasks. The record thus far does not show whether this standard is met.


  • William Joseph Brennan, Jr. (Author)
  • Thurgood Marshall
  • Harry Andrew Blackmun

The extent of a government official's knowledge may often require some degree of discovery.


  • Warren Earl Burger (Author)

Presidential aides should receive absolute immunity because legislative aides also receive it. The executive branch should not be subject to greater intrusion than the legislative branch.


  • William Joseph Brennan, Jr. (Author)
  • Byron Raymond White
  • Thurgood Marshall
  • Harry Andrew Blackmun


  • William Hubbs Rehnquist (Author)

Case Commentary

The doctrine of qualified immunity has evolved from an original understanding that public officials could be sued as easily as private parties in tort claims seeking damages. A statute promulgated six years after this case created the exclusive remedy for these types of torts.

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