|Nixon v. Fitzgerald
[ Powell ]
[ Burger ]
[ White ]
[ Blackmun ]
Nixon v. Fitzgerald
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
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.
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 [p734] 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 CA transport plane could approximate $2 billion. [n1] 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. [n2] The press reported those hearings prominently, [p735] 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. [n3] The President responded by promising to look into the matter. [n4] 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. [n5] 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. [n6]
Fitzgerald's proposed reassignment encountered resistance within the administration. [n7] In an internal memorandum of January 20, 1970, White House aide Alexander Butterfield reported to Haldeman that
Butterfield therefore recommended that "‘[w]e should let him bleed, for a while at least.'" [n9] 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. [n10] 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 [p737] Fitzgerald's job was abolished. [n11] But the Secretary declined to be more specific. He responded to several questions by invoking "executive privilege." [n12]
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 someone who had discussed the matter with me. No, this was not a case of some person down the line deciding he should go. It was a decision that was submitted to me. I made it, and I stick by it. [n13]
A day later, however, the White House press office issued a retraction of the President's statement. According to a press spokesman, the President had confused Fitzgerald with another former executive employee. On behalf of the President, the spokesman asserted that Mr. Nixon had not had "put before him the decision regarding Mr. Fitzgerald." [n14]
After hearing over 4,000 pages of testimony, the Chief Examiner for the Civil Service Commission issued his decision [p738] in the Fitzgerald case on September 18, 1973. Decision on the Appeal of A. Ernest Fitzgerald, as reprinted in App. 60a. The Examiner held that Fitzgerald's dismissal had offended applicable civil service regulations. Id. at 86a-87a. [n15] The Examiner based this conclusion on a finding that the departmental reorganization in which Fitzgerald lost his job, though purportedly implemented as an economy measure, was in fact motivated by "reasons purely personal to" respondent. Id. at 86a. As this was an impermissible basis for a reduction in force, [n16] the Examiner recommended Fitzgerald's reappointment to his old position or to a job of comparable authority. [n17] [p739] The Examiner, however, explicitly distinguished this narrow conclusion from a suggested finding that Fitzgerald had suffered retaliation for his testimony to Congress. As found by the Commission,
the evidence of record does not support [Fitzgerald's] allegation that his position was abolished and that he was separated . . . in retaliation for his having revealed the C-5A cost overrun in testimony before the Proxmire Committee on November 13, 1968.
Id. at 81a.
Following the Commission's decision, Fitzgerald filed a suit for damages in the United States District Court. In it, he raised essentially the same claims presented to the Civil Service Commission. [n18] As defendants he named eight officials of the Defense Department, White House aide Alexander Butterfield, and "one or More" unnamed "White House Aides" styled only as "John Does."
The District Court dismissed the action under the District of Columbia's 3-year statute of limitations, Fitzgerald v. Seamans, 384 F.Supp. 688 (DC 1974), and the Court of Appeals affirmed as to all but one defendant, White House aide Alexander Butterfield, Fitzgerald v. Seamans, 180 U.S.App.D.C. 75, 553 F.2d 220 (1977). The Court of Appeals reasoned that Fitzgerald had no reason to suspect White House involvement in his dismissal, at least until 1973. In that year, reasonable grounds for suspicion had arisen, most notably through publication of the internal White House memorandum in which Butterfield had recommended that Fitzgerald at least should be made to "bleed for a while" before being offered another job in the administration. Id. at 80, 84, 553 F.2d at 225, 229. Holding that concealment of illegal activity [p740] would toll the statute of limitations, the Court of Appeals remanded the action against Butterfield for further proceedings in the District Court.
Following the remand and extensive discovery thereafter, Fitzgerald filed a second amended complaint in the District Court on July 5, 1978. It was in this amended complaint -- more than eight years after he had complained of his discharge to the Civil Service Commission -- that Fitzgerald first named the petitioner Nixon as a party defendant. [n19] Also included as defendants were White House aide Bryce Harlow and other officials of the Nixon administration. Additional discovery ensued. By March, 1980, only three defendants remained: the petitioner Richard Nixon and White House aides Harlow and Butterfield. Denying a motion for summary judgment, the District Court ruled that the action must proceed to trial. Its order of March 26 held that Fitzgerald had stated triable causes of action under two federal statutes and the First Amendment to the Constitution. [n20] The court also [p741] ruled that petitioner was not entitled to claim absolute Presidential immunity.
Petitioner took a collateral appeal of the immunity decision to the Court of Appeals for the District of Columbia Circuit. The Court of Appeals dismissed summarily. It apparently did so on the ground that its recent decision in Halpern v. Kissinger, 196 U.S.App.D.C. 285, 606 F.2d 1192 (1979), aff'd in pertinent part by an equally divided Court, 452 U.S. 713 (1981), had rejected this claimed immunity defense.
As this Court has not ruled on the scope of immunity available to a President of the United States, we granted certiorari to decide this important issue. 452 U.S. 959 (1981).
Before addressing the merits of this case, we must consider two challenges to our jurisdiction. In his opposition to the petition for certiorari, respondent argued that this Court is without jurisdiction to review the nonfinal order in which the District Court rejected petitioner's claim to absolute immunity. [n21] We also must consider an argument that an agreement between the parties has mooted the controversy.
Petitioner invokes the jurisdiction of this Court under 28 U.S.C. § 1254 a statute that invests us with authority to review "[c]ases in" the courts of appeals. [n22] When the petitioner [p742] in this case sought review of an interlocutory order denying his claim to absolute immunity, the Court of Appeals dismissed the appeal for lack of jurisdiction. Emphasizing the "jurisdictional" basis for the Court of Appeals' decision, respondent argued that the District Court's order was not an appealable "case" properly "in" the Court of Appeals within the meaning of § 1254. We do not agree.
Under the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), a small class of interlocutory orders are immediately appealable to the courts of appeals. As defined by Cohen, this class embraces orders that
conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment.
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); see Cohen, supra, at 546-547. As an additional requirement, Cohen established that a collateral appeal of an interlocutory order must "presen[t] a serious and unsettled question." 337 U.S. at 547. At least twice before, this Court has held that orders denying claims of absolute immunity are appealable under the Cohen criteria. See Helstoski v. Meanor, 442 U.S. 500 (1979) (claim of immunity under the Speech and Debate Clause); Abney v. United States, 431 U.S. 651 (1977) (claim of immunity under Double Jeopardy Clause). In previous cases the Court of Appeals for the District of Columbia Circuit also has treated orders denying absolute immunity as appealable under Cohen. See Briggs v. Goodwin, 186 U.S.App.D.C. 179, 227-229, 569 F.2d 10, 58-60 (1977) (Wilkey, J., dissenting on the appealability issue); McSurely v. McClellan, 172 U.S.App.D.C. 364, 372, 521 F.2d 1024, 1032 (1975), aff'd in pertinent part en banc, 180 U.S.App.D.C. 101, 107-108, n. 18, 553 F.2d 1277, 1283-1284, n. 18 (1976), cert. dism'd sub nom. McAdams v. McSurely, 438 U.S. 189 (1978).
In "dismissing" the appeal in this case, the Court of Appeals appears to have reasoned that petitioner's appeal lay [p743] outside the Cohen doctrine because it raised no "serious and unsettled question" of law. This argument was pressed by the respondent, who asked the Court of Appeals to dismiss on the basis of that court's "controlling" decision in Halperin v. Kissinger, supra.
Under the circumstances of this case, we cannot agree that petitioner's interlocutory appeal failed to raise a "serious and unsettled" question. Although the Court of Appeals had ruled in Halperin v. Kissinger that the President was not entitled to absolute immunity, this Court never had so held. And a petition for certiorari in Halperin was pending in this Court at the time petitioner's appeal was dismissed. In light of the special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers, see United States v. Nixon, 418 U.S. 683, 691-692 (1974), we conclude that petitioner did present a "serious and unsettled," and therefore appealable, question to the Court of Appeals. It follows that the case was "in" the Court of Appeals under § 1254 and properly within our certiorari jurisdiction. [n23]
Shortly after petitioner had filed his petition for certiorari in this Court and respondent had entered his opposition, the parties reached an agreement to liquidate damages. [n24] Under [p744] its terms, the petitioner Nixon paid the respondent Fitzgerald a sum of $142,000. In consideration, Fitzgerald agreed to accept liquidated damages of $28,000 in the event of a ruling by this Court that petitioner was not entitled to absolute immunity. In case of a decision upholding petitioner's immunity claim, no further payments would be made.
The limited agreement between the parties left both petitioner and respondent with a considerable financial stake in the resolution of the question presented in this Court. As we recently concluded in a case involving a similar contract:
Given respondents' continued active pursuit of monetary relief, this case remains "definite and concrete, touching the legal relations of parties having adverse legal interests."
This Court consistently has recognized that government officials are entitled to some form of immunity from suits for civil damages. In Spalding v. Vilas, 161 U.S. 483 (1896), the Court considered the immunity available to the Postmaster General in a suit for damages based upon his official acts. Drawing upon principles of immunity developed in English cases at common law, the Court concluded that "[t]he interests of the people" required a grant of absolute immunity to public officers. Id. at 498. In the absence of immunity, the Court reasoned, executive officials would hesitate to exercise [p745] their discretion in a way "injuriously affect[ing] the claims of particular individuals," id. at 499, even when the public interest required bold and unhesitating action. Considerations of "public policy and convenience" therefore compelled a judicial recognition of immunity from suits arising from official acts.
In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint.
Id. at 498.
Decisions subsequent to Spalding have extended the defense of immunity to actions besides those at common law. In Tenney v. Brandhove, 341 U.S. 367 (1951), the Court considered whether the passage of 42 U.S.C. § 1983 which made no express provision for immunity for any official, had abrogated the privilege accorded to state legislators at common law. Tenney held that it had not. Examining § 1983 in light of the "presuppositions of our political history" and our heritage of legislative freedom, the Court found it incredible "that Congress . . . would impinge on a tradition so well grounded in history and reason" without some indication of intent more explicit than the general language of the statute. Id. at 376. Similarly, the decision in Pierson v. Ray, 386 U.S. 547 (1967), involving a § 1983 suit against a state judge, recognized the continued validity of the absolute immunity of judges for acts within the judicial role. This was a doctrine
"not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions [p746] with independence and without fear of consequences."
Id. at 554, quoting Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868). See Bradley v. Fisher, 13 Wall. 335 (1872). The Court in Pierson also held that police officers are entitled to a qualified immunity protecting them from suit when their official acts are performed in "good faith." 386 U.S. at 557.
In Scheuer v. Rhodes, 416 U.S. 232 (1974), the Court considered the immunity available to state executive officials in a § 1983 suit alleging the violation of constitutional rights. In that case, we rejected the officials' claim to absolute immunity under the doctrine of Spalding v. Vilas, finding instead that state executive officials possessed a "good faith" immunity from § 1983 suits alleging constitutional violations. Balancing the purposes of § 1983 against the imperatives of public policy, the Court held that,
in varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based.
416 U.S. at 247.
As construed by subsequent cases, Scheuer established a two-tiered division of immunity defenses in § 1983 suits. To most executive officers, Scheuer accorded qualified immunity. For them the scope of the defense varied in proportion to the nature of their official functions and the range of decisions that conceivably might be taken in "good faith." This "functional" approach also defined a second tier, however, at which the especially sensitive duties of certain officials -- notably judges and prosecutors -- required the continued recognition of absolute immunity. See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976) (state prosecutors possess absolute immunity with respect to the initiation and pursuit of prosecutions); Stump v. Sparkman, 435 U.S. 349 (1978) (state judge possesses absolute immunity for all judicial acts).
This approach was reviewed in detail in Butz v. Economou, [p747] 438 U.S. 478 (1978), when we considered for the first time the kind of immunity possessed by federal executive officials who are sued for constitutional violations. [n25] In Butz, the Court rejected an argument, based on decisions involving federal officials charged with common law torts, that all high federal officials have a right to absolute immunity from constitutional damages actions. Concluding that a blanket recognition of absolute immunity would be anomalous in light of the qualified immunity standard applied to state executive officials, id. at 504, we held that federal officials generally have the same qualified immunity possessed by state officials in cases under § 1983. In so doing, we reaffirmed our holdings that some officials, notably judges and prosecutors, "because of the special nature of their responsibilities," id. at 511, "require a full exemption from liability." Id. at 508. In Butz itself, we upheld a claim of absolute immunity for administrative officials engaged in functions analogous to those of judges and prosecutors. Ibid. We also left open the question whether other federal officials could show that "public policy requires an exemption of that scope." Id. at 506.
Our decisions concerning the immunity of government officials from civil damages liability have been guided by the Constitution, federal statutes, and history. Additionally, at least in the absence of explicit constitutional or congressional guidance, our immunity decisions have been informed by the common law. See Butz v. Economou, supra, at 508; Imbler v. Pachtman, supra, at 421. This Court necessarily also has weighed concerns of public policy, especially as illuminated [p748] by our history and the structure of our government. See, e.g., Butz v. Economou, supra, at 508; Imbler v. Pachtman, supra, at 421; Spalding v. Vilas, 161 U.S. at 498. [n26]
This case now presents the claim that the President of the United States is shielded by absolute immunity from civil damages liability. In the case of the President the inquiries into history and policy, though mandated independently by our cases, tend to converge. Because the Presidency did not exist through most of the development of common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges almost at its inception with the kind of "public policy" analysis appropriately undertaken by a federal court. This inquiry involves policies and principles that may be considered implicit in the nature of the President's office in a system structured to achieve effective government under a constitutionally mandated separation of powers.
Here a former President asserts his immunity from civil damages claims of two kinds. He stands named as a defendant in a direct action under the Constitution and in two statutory actions under federal laws of general applicability. In neither case has Congress taken express legislative action to subject the President to civil liability for his official acts. [n27] [p749]
Applying the principles of our cases to claims of this kind, we hold that petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts. We consider this immunity a functionally mandated incident of the President's unique office, rooted in the constitutional tradition of the separation of powers and supported by our history. Justice Story's analysis remains persuasive:
There are . . . incidental powers belonging to the executive department which are necessarily implied from the nature of the functions which are confided to it. Among these must necessarily be included the power to perform them. . . . The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office, and, for this purpose, his person must be deemed, in civil cases at least, to possess an official inviolability.
3 J. Story, Commentaries on the Constitution of the United States § 1563, pp. 418-419 (1st ed. 1833).
The President occupies a unique position in the constitutional scheme. Article II, § 1, of the Constitution provides that "[t]he executive Power shall be vested in a President of [p750] the United States. . . ." This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. These include the enforcement of federal law -- it is the President who is charged constitutionally to "take Care that the Laws be faithfully executed"; [n28] the conduct of foreign affairs -- a realm in which the Court has recognized that
[i]t would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret [n29]
and management of the Executive Branch -- a task for which
imperative reasons requir[e] an unrestricted power [in the President] to remove the most important of his subordinates in their most important duties. [n30]
In arguing that the President is entitled only to qualified immunity, the respondent relies on cases in which we have recognized immunity of this scope for governors and cabinet officers. E.g., Butz v. Economou, 438 U.S. 478 (1978); Scheuer v. Rhodes, 416 U.S. 232 (1974). We find these cases to be inapposite. The President's unique status under the Constitution distinguishes him from other executive officials. [n31] [p751]
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. As is the case with prosecutors and judges -- [p752] for whom absolute immunity now is established -- a President must concern himself with matters likely to "arouse the most intense feelings." Pierson v. Ray, 386 U.S. at 554. Yet, as our decisions have recognized, it is in precisely such cases that there exists the greatest public interest in providing an official "the maximum ability to deal fearlessly and impartially with" the duties of his office. Ferri v. Ackerman, 444 U.S. 193, 203 (1979). This concern is compelling where the officeholder must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system. [n32] Nor can the sheer prominence of the President's [p753] office be ignored. In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages. [n33] Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.
Courts traditionally have recognized the President's constitutional responsibilities and status as factors counseling judicial deference and restraint. [n34] For example, while courts generally have looked to the common law to determine the scope of an official's evidentiary privilege, [n35] we have recognized that the Presidential privilege is "rooted in the separation of powers under the Constitution." United States v. Nixon, 418 U.S. at 708. It is settled law that the separation of powers doctrine does not bar every exercise of jurisdiction [p754] over the President of the United States. See, e.g., United States v. Nixon, supra; United States v. Burr, 25 F.Cas. 187, 191, 196 (No. 14,694) (CC Va. 1807); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). [n36] But our cases also have established that 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. See Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977); United States v. Nixon, supra, at 703-713. When judicial action is needed to serve broad public interests -- as when the Court acts not in derogation of the separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube Co. v. Sawyer, supra, or to vindicate the public interest in an ongoing criminal prosecution, see United States v. Nixon, supra -- the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President's official acts, we hold it is not. [n37] [p755]
In defining the scope of an official's absolute privilege, this Court has recognized that the sphere of protected action must be related closely to the immunity's justifying purposes. Frequently our decisions have held that an official's absolute immunity should extend only to acts in performance of particular functions of his office. See Butz v. Economou, 438 U.S. at 508-517; cf. Imbler v. Pachtman, 424 U.S. at 430-431. But the Court also has refused to draw functional lines finer than history and reason would support. See, e.g., Spalding v. Vilas, 161 U.S. at 498 (privilege extends to all matters "committed by law to [an official's] control or supervision"); Barr v. Matteo, 360 U.S. 564, 575 (1959) (fact "that the action here taken was within the outer perimeter of petitioner's line of duty is enough to render the privilege applicable . . ."); [p756] Stump v. Sparkman, 435 U.S. at 363, and n. 12 (judicial privilege applies even to acts occurring outside "the normal attributes of a judicial proceeding"). In view of the special nature of the President's constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the "outer perimeter" of his official responsibility.
Under the Constitution and laws of the United States, the President has discretionary responsibilities in a broad variety of areas, many of them highly sensitive. In many cases, it would be difficult to determine which of the President's innumerable "functions" encompassed a particular action. In this case, for example, respondent argues that he was dismissed in retaliation for his testimony to Congress -- a violation of 5 U.S.C. § 7211 (1976 ed., Supp. IV) and 18 U.S.C. § 1505. The Air Force, however, has claimed that the underlying reorganization was undertaken to promote efficiency. Assuming that petitioner Nixon ordered the reorganization in which respondent lost his job, an inquiry into the President's motives could not be avoided under the kind of "functional" theory asserted both by respondent and the dissent. Inquiries of this kind could be highly intrusive.
Here, respondent argues that petitioner Nixon would have acted outside the outer perimeter of his duties by ordering the discharge of an employee who was lawfully entitled to retain his job in the absence of "‘such cause as will promote the efficiency of the service.'" Brief for Respondent 39, citing 5 U.S.C. § 7512(a). Because Congress has granted this legislative protection, respondent argues, no federal official could, within the outer perimeter of his duties of office, cause Fitzgerald to be dismissed without satisfying this standard in prescribed statutory proceedings.
This construction would subject the President to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose. Adoption of this construction thus would deprive absolute immunity of its intended effect. [p757] It clearly is within the President's constitutional and statutory authority to prescribe the manner in which the Secretary will conduct the business of the Air Force. See 10 U.S.C. § 8012(b). Because this mandate of office must include the authority to prescribe reorganizations and reductions in force, we conclude that petitioner's alleged wrongful acts lay well within the outer perimeter of his authority.
A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. [n38] There remains the constitutional remedy of impeachment. [n39] In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. [n40] Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President's traditional concern for his historical stature. [p758]
The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President "above the law." [n41] For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.
For the reasons stated in this opinion, the decision of the Court of Appeals is reversed, and the case is remanded for action consistent with this opinion.
1. See Economics of Military Procurement: Hearings before the Subcommittee on Economy in Government of the Joint Economic Committee, 90th Cong., 2d Sess., pt. I, pp.199-201 (1968-1969). It is not disputed that officials in the Department of Defense were both embarrassed and angered by Fitzgerald's testimony. Within less than two months of respondent's congressional appearance, staff had prepared a memorandum for the outgoing Secretary of the Air Force, Harold Brown, listing three ways in which Fitzgerald might be removed from his position. See App. 209a-211a (memorandum of John Lang to Harold Brown, Jan. 6, 1969). Among these was a "reduction in force" -- the means by which Fitzgerald ultimately was removed by Brown's successor in office under the new Nixon administration. The reduction in force was announced publicly on November 4, 1969, and Fitzgerald accordingly was separated from the Air Force upon the elimination of his job on January 5, 1970.
2. See The Dismissal of A. Ernest Fitzgerald by the Department of Defense: Hearings before the Subcommittee on Economy in Government of the Joint Economic Committee, 91st Cong., 1st Sess. (1969). Some 60 Members of Congress also signed a letter to the President protesting the "firing of this dedicated public servant" as a "punitive action." Id. at 115-116.
3. A briefing memorandum on the Fitzgerald matter had been prepared by White House staff in anticipation of a possible inquiry at the forthcoming press conference. Authored by aide Patrick Buchanan, it advanced the view that the Air Force was "firing . . . a good public servant." App. 269a (memorandum of Patrick Buchanan to Richard Nixon, Dec. 5, 1969). The memorandum suggested that the President order Fitzgerald's retention by the Defense Department.
4. Id. at 228a.
5. See id. at 109a-112a (deposition of H.R. Haldeman); id. at 137a-141a (deposition of petitioner Richard Nixon). Haldeman's deposed testimony was based on his handwritten notes of December 12, 1969. Id. at 275a.
6. See id. at 126a (deposition of Robert Mayo); id. at 141a (deposition of Richard Nixon).
7. Both Mayo and his deputy, James Schlesinger, appear to have resisted at least partly due to a suspicion that Fitzgerald lacked institutional loyalty to executive policies and that he spoke too freely in communications with friends on Capitol Hill. Both also stated that high-level positions were presently unavailable within the Bureau of the Budget. See id. at 126a (deposition of Robert Mayo); id. at 146a-147a (deposition of James Schlesinger).
8. Quoted in Decision on the Appeal of A. Ernest Fitzgerald (Sept. 18, 1973) (CSC Decision), reprinted in App. 60a, 84a. (Page citations to the CSC Decision refer to the cited page in the Joint Appendix.)
9. Id. at 85a. The memorandum added that "‘[w]e owe "first choice on Fitzgerald" to [Senator] Proxmire and others who tried so hard to make him a hero [for exposing the cost overruns].'" Suspicion of Fitzgerald's assumed loyalty toward Senator Proxmire was widely shared in the White House and in the Defense Department. According to the CSC Decision, supra:
While Mr. Fitzgerald has denied that he was "Senator Proxmier's [sic] boy in the Air Force," and he may honestly believe it, we find this statement difficult to accept. It is evident that the top officials in the Air Force, without specifically saying so, considered him to be just that. . . . We also note that, upon leaving the Air Force, Mr. Fitzgerald was employed as a consultant by the Proxmire Committee, and that Senator Proxmire appeared at the Commission hearing as a character witness for [Fitzgerald].
10. Id. at 61a.
11. See id. at 83a-84a.
12. See ibid.
13. Id. at 185a. A few hours after the press conference, Mr. Nixon repeated privately to Presidential aide Charles Colson that he had ordered Fitzgerald's firing. Id. at 214a-215a (recorded conversation of Jan. 31, 1973).
14. Id. at 196a (transcription of statement of White House press secretary Ronald Ziegler, Feb. 1, 1973). In a conversation with aide John Ehrlichman, following his conversation with Charles Colson, see n. 13, supra, the President again had claimed responsibility for Fitzgerald's dismissal. When Ehrlichman corrected him on several details, however, the President concluded that he was "thinking of another case." Id. at 21& (recorded conversation of Jan. 31, 1973). See id. at 220a. It was after this conversation that the retraction was ordered.
15. Fitzgerald's position in the Air Force was in the "excepted service," and therefore not covered by civil service rules and regulations for the competitive service. Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 4, 467 F.2d 755, 758 (1972); see CSC Decision, App. 63a-64a. In Hampton, however, the court held that Fitzgerald's employment nonetheless was under "legislative protection," since he was a "preference eligible" veteran entitled to various statutory protections under the Veterans' Preference Act. See 152 U.S.App.D.C. at 4-14, 467 F.2d at 758-768. Among these were the benefits of the reduction-in-force procedures established by civil service regulation. See id. at 4, 467 F.2d at 758.
16. The Examiner found that Fitzgerald in fact was dismissed because of his superiors' dissatisfaction with his job performance. App. 86a-87a. Their attitude was evidenced by "statements that he was not a ‘team player' and ‘not on the Air Force team.'" Id. at 83a. Without deciding whether this would have been an adequate basis for an "adverse action" against Fitzgerald as an "inadequate or unsatisfactory employee," id. at 86a, the Examiner held that the Commission's adverse action procedures, current version codified at 5 CFR pt. 752 (1982), implicitly forbade the Air Force to employ a "reduction in force" as a means of dismissing respondent for reasons "personal to" him. App. 87a.
17. The Commission also ordered that Fitzgerald should receive backpay. Id. at 87a-88a. Following the Commission's order, respondent was offered a new position with the Defense Department, but not one that he regarded as equivalent to his former employment. Fitzgerald accordingly filed an enforcement action in the District Court. This litigation ultimately culminated in a settlement agreement. Under its terms, the United States Air Force agreed to reassign Fitzgerald to his former position as Management Systems Deputy to the Assistant Secretary of the Air Force, effective June 21, 1982. See Settlement Agreement in Fitzgerald v. Hampton et al., Civ. No. 71486 (DC June 15, 1982).
18. The complaint alleged a continuing conspiracy to deprive him of his job, to deny him reemployment, and to besmirch his reputation. Fitzgerald alleged that the conspiracy had continued through the Commission hearings and remained in existence at the initiation of the lawsuit. See Fitzgerald v. Seamans, 384 F.Supp. 688, 690-692 (DC 1974).
19. The general allegations of the complaint remained essentially unchanged. In averring Nixon's participation in the alleged conspiracy against him, the complaint quoted petitioner's press conference statement that he was "totally aware" of, and in fact "approved," Fitzgerald's dismissal. Second Amended Complaint in Fitzgerald v. Butterfield, Civ. No. 74-78 (DC), p. 6.
20. See App. to Pet. for Cert. 1a-2a. The District Court held that respondent was entitled to "infer" a cause of action under 5 U.S.C. § 7211 (1976 ed., Supp. IV) and 18 U.S.C. § 1505. Neither expressly confers a private right to sue for relief in damages. The first, 5 U.S.C. § 7211 (1976 ed., Supp. IV), provides generally that
[t]he right of employees . . . to . . . furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.
The second, 18 U.S.C. § 1505 is a criminal statute making it a crime to obstruct congressional testimony. The correctness of the decision that a cause of action could be "implied" under these statutes is not currently before us. As explained infra, this case is here under the "collateral order" doctrine, for review of the District Court's denial of petitioner's motion to dismiss on the ground that he enjoyed absolute immunity from civil suit. The District Court also held that respondent had stated a claim under the common law of the District of Columbia, but respondent subsequently abandoned his common law cause of action. See Supplemental Brief in Opposition 2.
21. See Brief in Opposition 2. Although Fitzgerald has not continued to urge this argument, the challenge was jurisdictional, and we therefore address it.
22. The statute provides in pertinent part:
Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:
(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree. . . .
23. There can be no serious doubt concerning our power to review a court of appeals' decision to dismiss for lack of jurisdiction -- a power we have exercised routinely. See, e.g., Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478 (1978). If we lacked authority to do so, decisions to dismiss for want of jurisdiction would be insulated entirely from review by this Court.
Nor, now that we have taken jurisdiction of the case, need we remand to the Court of Appeals for a decision on the merits. The immunity question is a pure issue of law, appropriate for our immediate resolution. Especially in light of the Court of Appeals' now-binding decision of the issue presented, concerns of judicial economy fully warrant our decision of the important question presented.
24. Respondent filed a copy of this agreement with the Clerk of this Court on August 24, 1981, as an appendix to his brief in opposition to a motion of Morton, Ina, David, Mark, and Gary Halperin to intervene and for other relief. On June 10, 1980, prior to the Court's action on the petition for certiorari, counsel to the parties had advised the Court that their clients had reached an agreement to liquidate damages, but that there remained a live controversy. Counsel did not include a copy of the agreement in their initial submission.
25. Spalding v. Vilas, 161 U.S. 483 (1896), was distinguished on the ground that the suit against the Postmaster General had asserted a common law -- and not a constitutional -- cause of action. See Butz v. Economou, 438 U.S. at 493-496.
26. Although the Court in Butz v. Economou, supra, at 508, described the requisite inquiry as one of "public policy," the focus of inquiry more accurately may be viewed in terms of the "inherent" or "structural" assumptions of our scheme of government.
27. In the present case, we therefore are presented only with "implied" causes of action, and we need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the President of the United States. This approach accords with this Court's settled policy of avoiding unnecessary decision of constitutional issues. Reviewing this case under the "collateral order" doctrine, see supra at 742, we assume for purposes of this opinion that private causes of action may be inferred both under the First Amendment and the two statutes on which respondent relies. But it does not follow that we must -- in considering a Bivens (Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)) remedy or interpreting a statute in light of the immunity doctrine -- assume that the cause of action runs against the President of the United States. Cf. Tenney v. Brandhove, 341 U.S. 367, 376 (1951) (construing 1983 in light of the immunity doctrine, the Court could not accept "that Congress . . . would impinge on a tradition [of legislative immunity] so well grounded in history and reason by covert inclusion in the general language before us," and therefore would not address issues that would arise if Congress had undertaken to deprive state legislators of absolute immunity). Consequently, our holding today need only be that the President is absolutely immune from civil damages liability for his official acts in the absence of explicit affirmative action by Congress. We decide only this constitutional issue, which is necessary to disposition of the case before us.
28. U.S.Const., Art. II, § 3.
29. Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
30. Myers v. United States, 272 U.S. 52, 134-135 (1926).
31. Noting that the Speech and Debate Clause provides a textual basis for congressional immunity, respondent argues that the Framers must be assumed to have rejected any similar grant of executive immunity. This argument is unpersuasive. First, a specific textual basis has not been considered a prerequisite to the recognition of immunity. No provision expressly confers judicial immunity. Yet the immunity of judges is well settled. See, e.g., Bradley v. Fisher, 13 Wall. 335 (1872); Stump v. Sparkman, 435 U.S. 349 (1978). Second, this Court already has established that absolute immunity may be extended to certain officials of the Executive Branch. Butz v. Economou, 438 U.S. at 511-512; see Imbler v. Pachtman, 424 U.S. 409 (1976) (extending immunity to prosecutorial officials within the Executive Branch). Third, there is historical evidence from which it may be inferred that the Framers assumed the President's immunity from damages liability. At the Constitutional Convention several delegates expressed concern that subjecting the President even to impeachment would impair his capacity to perform his duties of office. See 2 M. Farrand, Records of the Federal Convention of 1787, p. 64 (1911) (remarks of Gouverneur Morris); id. at 66 (remarks of Charles Pinckney). The delegates, of course, did agree to an Impeachment Clause. But nothing in their debates suggests an expectation that the President would be subjected to the distraction of suits by disappointed private citizens. And Senator Maclay has recorded the views of Senator Ellsworth and Vice President John Adams -- both delegates to the Convention -- that
the President, personally, was not the subject to any process whatever. . . . For [that] would . . . put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government.
Journal of William Maclay 167 (E. Maclay ed. 1890). Justice Story, writing in 1833, held it implicit in the separation of powers that the President must be permitted to discharge his duties undistracted by private lawsuits. 3 J. Story, Commentaries on the Constitution of the United States § 1563, pp. 418-419 (1st ed. 1833) (quoted supra at 749). Thomas Jefferson also argued that the President was not intended to be subject to judicial process. When Chief Justice Marshall held in United States v. Burr, 25 F.Cas. 30 (No. 14,692d) (CC Va. 1807), that a subpoena duces tecum can be issued to a President, Jefferson protested strongly, and stated his broader view of the proper relationship between the Judiciary and the President:
The leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties? The intention of the Constitution, that each branch should be independent of the others, is further manifested by the means it has furnished to each to protect itself from enterprises of force attempted on them by the others, and to none has it given more effectual or diversified means than to the executive.
10 The Works of Thomas Jefferson 404 n. (P. Ford ed.1905) (quoting a letter from President Jefferson to a prosecutor at the Burr trial) (emphasis in the original). See also 5 D. Malone, Jefferson and His Time: Jefferson the President 320-325 (1974).
In light of the fragmentary character of the most important materials reflecting the Framers' intent, we do think that the most compelling arguments arise from the Constitution's separation of powers and the Judiciary's historic understanding of that doctrine. See text supra. But our primary reliance on constitutional structure and judicial precedent should not be misunderstood. The best historical evidence clearly supports the Presidential immunity we have upheld. JUSTICE WHITE's dissent cites some other materials, including ambiguous comments made at state ratifying conventions and the remarks of a single publicist. But historical evidence must be weighed, as well as cited. When the weight of evidence is considered, we think we must place our reliance on the contemporary understanding of John Adams, Thomas Jefferson, and Oliver Ellsworth. Other powerful support derives from the actual history of private lawsuits against the President. Prior to the litigation explosion commencing with this Court's 1971 Bivens decision, fewer than a handful of damages actions ever were filed against the President. None appears to have proceeded to judgment on the merits.
32. Among the most persuasive reasons supporting official immunity is the prospect that damages liability may render an official unduly cautious in the discharge of his official duties. As Judge Learned Hand wrote in Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949), cert. denied, 339 U.S. 949 (1950),
[t]he justification for . . . [denying recovery] is that it is impossible to know whether the claim is well-founded until the case has been tried, and to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute. . . .
33. These dangers are significant even though there is no historical record of numerous suits against the President, since a right to sue federal officials for damages for constitutional violations was not even recognized until Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
34. This tradition can be traced far back into our constitutional history. See, e.g., Mississippi v. Johnson, 4 Wall. 475, 501 (1866) ("[W]e are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties, and that no such bill ought to be received by us"); Kendall v. United States, 12 Pet. 524, 610 (1838) ("The executive power is vested in a President; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power").
35. See United States v. Reynolds, 345 U.S. 1, 6-7 (1953) (Secretary of the Air Force); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 323-324 (DC 1966), aff'd sub nom. V.E.B. Carl Zeiss, Jena v. Clark, 128 U.S.App.D.C. 10, 384 F.2d 979, cert. denied, 389 U.S. 952 (1967) (Department of Justice officials).
36. Although the President was not a party, the Court enjoined the Secretary of Commerce from executing a direct Presidential order. See 343 U.S. at 683.
37. The Court has recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions. See United States v. Gillock, 445 U.S. 360, 371-373 (1980); cf. United State v. Nixon, 418 U.S. at 711-712, and n.19 (basing holding on special importance of evidence in a criminal trial and distinguishing civil actions as raising different questions not presented for decision). It never has been denied that absolute immunity may impose a regrettable cost on individuals whose rights have been violated. But, contrary to the suggestion of JUSTICE WHITE's dissent, it is not true that our jurisprudence ordinarily supplies a remedy in civil damages for every legal wrong. The dissent's objections on this ground would weigh equally against absolute immunity for any official. Yet the dissent makes no attack on the absolute immunity recognized for judges and prosecutors.
Our implied rights of action cases identify another area of the law in which there is not a damages remedy for every legal wrong. These cases establish that victims of statutory crimes ordinarily may not sue in federal court in the absence of expressed congressional intent to provide a damages remedy. See, e.g., Merrill Lynch, Pierce, Fenner Smith, Inc. v. Curran, 456 U.S. 353 (1982); Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1 (1981); California v. Sierra Club, 451 U.S. 287 (1981). JUSTICE WHITE does not refer to the jurisprudence of implied rights of action. Moreover, the dissent undertakes no discussion of cases in the Bivens line in which this Court has suggested that there would be no damages relief in circumstances "counseling hesitation" by the judiciary. See Bivens v. Six Unknown Fed. Narcotics Agents, supra, at 396; Carlson v. Green, 446 U.S. 14, 19 (1980) (in direct constitutional actions against officials with "independent status in our constitutional scheme . . . judicially created remedies . . . might be inappropriate").
Even the case on which JUSTICE WHITE places principal reliance, Marbury v. Madison, 1 Cranch 137 (1803), provides dubious support, at best. The dissent cites Marbury for the proposition that
[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.
Id. at 163. Yet Marbury does not establish that the individual's protection must come in the form of a particular remedy. Marbury, it should be remembered, lost his case in the Supreme Court. The Court turned him away with the suggestion that he should have gone elsewhere with his claim. In this case, it was clear at least that Fitzgerald was entitled to seek a remedy before the Civil Service Commission -- a remedy of which he availed himself. See supra at 736-739, and n. 17.
38. The presence of alternative remedies has played an important role in our previous decisions in the area of official immunity. E.g., Imbler v. Pactman, 424 U.S. at 428-429 ("We emphasize that the immunity of prosecutors from liability in suits under § 1983 does not leave the public powerless to deter misconduct or to punish that which occurs").
39. The same remedy plays a central role with respect to the misconduct of federal judges, who also possess absolute immunity. See Kaufman, Chilling Judicial Independence, 88 Yale L.J. 681, 690-706 (1979). Congressmen may be removed from office by a vote of their colleagues. U.S.Const., Art. I, § 5, cl. 2.
40. Prior to petitioner Nixon's resignation from office, the House Judiciary Committee had convened impeachment hearings. See generally Report of the Committee on the Judiciary of the House of Representatives: Impeachment of Richard M. Nixon, President of the United States, H.R.Rep. No. 93-1305 (1974).
41. The dissenting opinions argue that our decision places the President "above the law." This contention is rhetorically chilling, but wholly unjustified. The remedy of impeachment demonstrates that the President remains accountable under law for his misdeeds in office. This case involves only a damages remedy. Although the President is not liable in civil damages for official misbehavior, that does not lift him "above" the law. The dissents do not suggest that a judge is "above" the law when he enters a judgment for which he cannot be held answerable in civil damages; or a prosecutor is above the law when he files an indictment; or a Congressman is above the law when he engages in legislative speech or debate. It is simply error to characterize an official as "above the law" because a particular remedy is not available against him.