mitchell forsyth argued february decided june petitioner attorney general authorized warrantless wiretap purpose gathering intelligence regarding activities radical group made tentative plans take actions threatening nation security time wiretap installed government intercepted three conversations member group respondent thereafter district keith ruled fourth amendment permit warrantless wiretaps cases involving domestic threats national security respondent filed damages action federal district petitioner others alleging surveillance subjected violated fourth amendment title iii omnibus crime control safe streets act ultimately district granting respondent motion summary judgment issue liability held petitioner entitled either absolute qualified immunity appeals agreed denial absolute immunity held respect denial qualified immunity district order appealable collateral order doctrine held petitioner absolutely immune suit damages arising allegedly unconstitutional conduct performing national security functions status cabinet officer sufficient invest absolute immunity considerations separation powers call absolute immunity state federal legislators president demand similar immunity cabinet officers high executive officials nature attorney general national security functions opposed prosecutorial functions warrant absolute immunity petitioner points historical basis absolute immunity officers carrying tasks essential national security pertains absolute immunity judges prosecutors witnesses performance national security functions subject official risks entanglement vexatious litigation carrying judicial tasks primary wellsprings absolute immunities danger high federal officials disregard constitutional rights zeal protect national security sufficiently real counsel affording officials absolute immunity pp district denial qualified immunity extent turned question law appealable final decision within meaning notwithstanding absence final judgment qualified immunity similar absolute immunity entitlement stand trial certain circumstances entitlement immunity suit rather mere defense liability like absolute immunity effectively lost case erroneously permitted go trial accordingly reasoning underlies immediate appealability denial absolute immunity indicates denial qualified immunity similarly appealable collateral order doctrine case district decision effectively unreviewable appeal final judgment denial qualified immunity also meets additional criteria appealable interlocutory order conclusively determines disputed question involves claim rights separable collateral rights asserted action pp petitioner entitled qualified immunity suit authorization wiretap question notwithstanding actions violated fourth amendment harlow fitzgerald petitioner immune unless actions violated clearly established law wiretap took place well year keith supra decided clearly established wiretap unconstitutional pp white delivered opinion blackmun joined parts iii iv burger joined parts ii brennan marshall joined burger filed opinion concurring part post filed opinion concurring part burger joined post stevens filed opinion concurring judgment post brennan filed opinion concurring part dissenting part marshall joined post powell took part decision case rehnquist took part consideration decision case deputy solicitor general bator argued cause petitioner briefs solicitor general lee acting assistant attorney general willard samuel alito barbara herwig gorden daiger larry gregg david rudovsky argued cause respondent brief michael avery justice white delivered opinion suit damages stemming warrantless wiretap authorized petitioner former attorney general case presents three issues whether attorney general absolutely immune suit actions undertaken interest national security whether district finding petitioner immune suit actions qualified immunity standard harlow fitzgerald appealable whether district ruling qualified immunity correct federal bureau investigation learned members antiwar group known east coast conspiracy save lives eccsl made plans blow heating tunnels linking federal office buildings washington also discussed possibility kidnaping national security adviser henry kissinger november acting basis information attorney general john mitchell authorized warrantless wiretap telephone william davidon haverford college physics professor member group according attorney general purpose wiretap gathering intelligence interest national security fbi installed tap late november stayed place january time government intercepted three conversations davidon respondent keith forsyth record us suggest intercepted conversations appear innocuous ever used forsyth way forsyth learned wiretap criminal defendant facing unrelated charges moved disclosure government electronic surveillance subjected government response forsyth motion revealed although never actual target electronic surveillance participate conversations unrelated case overheard federal government course electronic surveillance expressly authorized president acting attorney general app government response accompanied affidavit sworn attorney general richard kleindienst averring surveillance forsyth subjected authorized exercise president authority relating national security set forth shortly thereafter ruled fourth amendment permit use warrantless wiretaps cases involving domestic threats national security district keith wake keith decision forsyth filed lawsuit john mitchell several defendants district eastern district pennsylvania forsyth alleged surveillance subjected violated fourth amendment title iii omnibus crime control safe streets act sets forth comprehensive standards governing use wiretaps electronic surveillance governmental private agents asserted constitutional statutory provisions provided private right action sought compensatory statutory punitive damages discovery related preliminary proceedings dragged next years early forsyth mitchell submitted motions summary judgment district prepared rule forsyth contended uncontested facts established wiretap illegal mitchell defendants immune liability mitchell contended decision keith applied retroactively wiretap authorized entitled either absolute prosecutorial immunity suit rule imbler pachtman qualified good faith immunity doctrine wood strickland found genuine dispute facts fbi informed mitchell eccsl plots mitchell authorized warrantless tap davidon phone ostensible purpose tap gathering intelligence interest national security wiretap concluded clear violation fourth amendment keith view given retroactive effect also rejected mitchell claim absolute immunity suit imbler pachtman imbler held provided absolute immunity prosecutor acts initiating pursuing criminal prosecution mitchell authorization wiretap constituted performance investigative rather prosecutorial function forsyth kleindienst supp although rejecting mitchell claim absolute immunity found mitchell entitled assert qualified immunity suit prevail proved acted good faith applying standard focus mitchell state mind time authorized wiretap concluded neither side met burden establishing genuine issue material fact mitchell good faith accordingly denied parties motions summary judgment mitchell appealed district denial absolute immunity appeals third circuit remanded factfinding question whether wiretap authorization necessary decision initiate criminal prosecution thus within scope absolute immunity recognized imbler pachtman forsyth kleindienst remand district held hearing question whether wiretap served prosecutorial purpose basis hearing evidence record concluded mitchell authorization wiretap intended facilitate prosecutorial decision criminal investigation mitchell disavowed intention insisted reason wiretap gather intelligence needed national security purposes taking mitchell word regard held conclusion entitled absolute prosecutorial immunity time reconsidered ruling qualified immunity light harlow fitzgerald purged qualified immunity doctrine subjective components held government officials performing discretionary functions generally shielded liability civil damages insofar conduct violate clearly established statutory constitutional rights reasonable person known district rejected mitchell argument standard held immune suit warrantless national security wiretaps authorized decision keith decision merely logical extension general fourth amendment principles particular ruling katz held first time electronic surveillance unaccompanied physical trespass constituted search subject fourth amendment warrant requirement mitchell justice department suggested chosen gamble possibility create exception warrant requirement presented case involving national security lost gamble mitchell entitled complain consequences therefore denied mitchell motion summary judgment granted forsyth motion summary judgment issue liability scheduled proceedings issue damages forsyth kleindienst supp mitchell appealed contending district erred rulings absolute immunity qualified immunity holding possessed jurisdiction decide denial absolute immunity issue despite fact pretrial order arguably final judgment appeals rejected mitchell argument national security functions attorney general entitled absolute immunity imbler pachtman otherwise respect denial qualified immunity appeals held district order appealable collateral order doctrine cohen beneficial industrial loan fearing allowing piecemeal appeals issues unduly burden appellate courts unwilling hold goal protecting officials frivolous litigation required orders denying qualified immunity immediately appealable forsyth claim noted frivolous one policies underlying immunity doctrine therefore frustrated mitchell forced wait final judgment appeal qualified immunity ruling forsyth kleindienst therefore remanded case district proceedings leading entry final judgment mitchell filed timely petition certiorari seeking review rulings absolute qualified immunity question whether attorney general absolutely immune suit acts performed exercise national security functions important one hitherto left unanswered see halperin kissinger app aff equally divided moreover issue appealability final judgment orders denying immunity objective standard harlow fitzgerald one divided courts appeals finally district decision left standing appeals mitchell actions violated clearly established law contrary rulings district columbia circuit sinclair kleindienst app zweibon mitchell app cert denied granted certiorari address issues ii first address mitchell claim attorney general actions furtherance national security shielded scrutiny civil damages actions absolute immunity similar afforded president see nixon fitzgerald judges prosecutors witnesses officials performing functions see briscoe lahue butz economou stump sparkman imbler pachtman legislators see dombrowski eastland tenney brandhove conclude attorney general absolutely immune suit damages arising allegedly unconstitutional conduct performing national security functions nation chief law enforcement officer attorney general provides vital assistance president performance latter constitutional duty preserve protect defend constitution art ii cl mitchell argument essence national security functions attorney general sensitive vital protection nation tolerate risk performing functions chilled possibility personal liability acts may found impinge constitutional rights citizens arguments urged behalf president national security domestic implications merit careful consideration keith nonetheless believe considerations led us recognize absolute immunities officials dictate result case decisions area leave doubt attorney general status cabinet officer sufficient invest absolute immunity considerations separation powers call absolute immunity state federal legislators president demand similar immunity cabinet officers high executive officials see harlow fitzgerald butz economou supra mitchell claim must rest attorney general position within executive branch nature functions performing case see harlow fitzgerald supra mitchell acting prosecutorial capacity case situations applied functional approach absolute immunity questions provide scant support blanket immunization performance national security function first deciding whether officials performing particular function entitled absolute immunity generally looked historical basis immunity question legislative immunity recognized tenney brandhove supra example rooted long struggle england america legislative independence presupposition scheme representative government immunities judges prosecutors witnesses established cases firm roots common law see briscoe lahue supra mitchell points analogous historical basis absolute immunity officers carrying tasks essential national security second performance national security functions subject official obvious risks entanglement vexatious litigation carrying judicial tasks primary wellsprings absolute immunities judicial process arena open conflict virtually every case always winner least one loser inevitable many lose pin blame judges prosecutors witnesses bring suit effort relitigate underlying conflict see bradley fisher wall national security tasks contrast carried secret open conflict overt winners losers rare circumstances far likely actual abuses go uncovered fancied abuses give rise unfounded burdensome litigation whereas mere threat litigation may significantly affect fearless independent performance duty actors judicial process unlikely similar effect attorney general performance national security tasks third officials entitled absolute immunity liability damages subject checks help prevent abuses authority going unredressed legislators accountable constituents see tenney brandhove supra judicial process largely procedural rules appeals possibility collateral challenges obviate need damages actions prevent unjust results similar restraints attorney general activities name national security however exist despite recognition importance activities safety nation democratic system government accept notion restraints completely unnecessary observed keith label national security may cover multitude sins national security cases often reflect convergence first fourth amendment values present cases ordinary crime though investigative duty executive may stronger cases also greater jeopardy constitutionally protected speech history abundantly documents tendency government however benevolent benign motives view suspicion fervently dispute policies danger political dissent acute government attempts act vague concept power protect domestic security given difficulty defining domestic security interest danger abuse acting protect interest becomes apparent emphasize denial absolute immunity leave attorney general mercy litigants frivolous vexatious complaints standard qualified immunity articulated harlow fitzgerald attorney general entitled immunity long actions violate clearly established statutory constitutional rights reasonable person known standard allow attorney general carry national security functions wholly free concern personal liability may occasion pause consider whether proposed course action squared constitution laws precisely point harlow standard official expected know conduct violate statutory constitutional rights made hesitate emphasis added true matters national security fields governmental action believe security republic threatened attorney general given incentives abide clearly established law iii although vests courts appeals jurisdiction appeals final decisions district courts decision final within meaning necessarily mean last order possible made case gillespie steel thus decision district appealable falls within small class finally determine claims right separable collateral rights asserted action important denied review independent cause require appellate consideration deferred whole case adjudicated cohen beneficial industrial loan major characteristic denial granting claim appealable cohen collateral order doctrine unless reviewed proceedings terminate never reviewed stack boyle opinion jackson see also hollywood motor car district denied defendant claim right stand trial double jeopardy grounds example consistently held decision appealable right effectively vindicated trial occurred abney thus denial substantial claim absolute immunity order appealable final judgment essence absolute immunity possessor entitlement answer conduct civil damages action see nixon fitzgerald cf helstoski meanor heart issue us question whether qualified immunity shares essential attribute absolute immunity whether qualified immunity fact entitlement stand trial certain circumstances conception animating qualified immunity doctrine set forth harlow fitzgerald official duties legitimately require action clearly established rights implicated public interest may better served action taken independence without fear consequences quoting pierson ray citation pierson ray makes clear consequences concerned harlow limited liability money damages also include general costs subjecting officials risks trial distraction officials governmental duties inhibition discretionary action deterrence able people public service harlow indeed harlow emphasizes even pretrial matters discovery avoided possible nquiries kind peculiarly disruptive effective government concerns mind harlow refashioned qualified immunity doctrine way permit resolution many insubstantial claims summary judgment avoid subject ing government officials either costs trial burdens broadreaching discovery cases legal norms officials alleged violated clearly established time unless plaintiff allegations state claim violation clearly established law defendant pleading qualified immunity entitled dismissal commencement discovery see even plaintiff complaint adequately alleges commission acts violated clearly established law defendant entitled summary judgment discovery fails uncover evidence sufficient create genuine issue whether defendant fact committed acts harlow thus recognized entitlement stand trial face burdens litigation conditioned resolution essentially legal question whether conduct plaintiff complains violated clearly established law entitlement immunity suit rather mere defense liability like absolute immunity effectively lost case erroneously permitted go trial accordingly reasoning underlies immediate appealability order denying absolute immunity indicates us denial qualified immunity similarly appealable case district decision effectively unreviewable appeal final judgment appealable interlocutory decision must satisfy two additional criteria must conclusively determine disputed question coopers lybrand livesay question must involve clai right separable collateral rights asserted action cohen supra denial defendant motion dismissal summary judgment ground qualified immunity easily meets requirements decision conclusive either two respects cases may represent trial conclusion even facts asserted defendant defendant actions violated clearly established law therefore within scope qualified immunity case nothing subsequent course proceedings district alter conclusion defendant immune alternatively trial judge may rule facts asserted plaintiff defendant immune trial plaintiff may succeed proving version facts defendant may thus escape liability even denial summary judgment finally conclusively determines defendant claim right stand trial plaintiff allegations simply steps taken district avoid trial defendant maintains barred apparent cohen threshold requirement fully consummated decision satisfied case abney similarly follows recognition qualified immunity part entitlement forced litigate consequences official conduct claim immunity conceptually distinct merits plaintiff claim rights violated see appellate reviewing denial defendant claim immunity need consider correctness plaintiff version facts even determine whether plaintiff allegations actually state claim need determine question law whether legal norms allegedly violated defendant clearly established time challenged actions cases district denied summary judgment defendant ground even defendant version facts defendant conduct violated clearly established law whether law clearly proscribed actions defendant claims took sure resolution legal issues entail consideration factual allegations make plaintiff claim relief true however must consider whether prosecution barred claim former jeopardy whether congressman absolutely immune suit complained conduct falls within protections speech debate clause case double jeopardy claim must compare facts alleged second indictment first determine whether prosecutions offense evaluating claim immunity speech debate clause must analyze plaintiff complaint determine whether plaintiff seeks hold congressman liable protected legislative actions unprotected conduct holding similar issues absolute immunity appealable collateral order doctrine see abney supra helstoski meanor nixon fitzgerald recognized question immunity separate merits underlying action purposes cohen test even though reviewing must consider plaintiff factual allegation resolving immunity issue accordingly hold district denial claim qualified immunity extent turns issue law appealable final decision within meaning notwithstanding absence final judgment iv appeals thus jurisdiction mitchell claim qualified immunity question one question presented petition certiorari granted without limitation moreover purely legal question mitchell claim immunity turns appropriate immediate resolution notwithstanding addressed appeals nixon fitzgerald supra therefore turn attention merits mitchell claim immunity harlow fitzgerald mitchell immune unless actions violated clearly established law see see also davis scherer forsythia complains november mitchell authorized warrant less wiretap aimed gathering intelligence regarding domestic threat national security kind wiretap subsequently declared illegal keith question mitchell immunity turns whether clearly established november well year keith decided wiretaps unconstitutional conclude use warrantless electronic surveillance gather intelligence cases involving threats nation security traced back president roosevelt instructed attorney general robert jackson authorized approve wiretaps persons suspected subversive activities president truman approval attorney general tom clark request expanded wiretapping authority made clear executive branch perceived authority extend cases involving domestic security see report national commission review federal state laws relating wiretapping electronic surveillance attorneys general serving presidents eisenhower kennedy johnson nixon continued practice employing warrant less electronic surveillance efforts combat perceived threats national security foreign domestic see keith supra anything clear practices violated constitution ruled olmstead wiretap involving physical trespass property person surveillance search purposes fourth amendment although rule olmstead suffered erosion see silverman never explicitly disavowed hold electronic surveillance unaccompanied physical trespass constituted search subject fourth amendment restrictions including warrant clause katz yet katz recognized warrantless searches circumstances violate fourth amendment though held recognized exception warrant requirement justify warrantless wiretapping ordinary criminal case careful note hether safeguards prior authorization magistrate satisfy fourth amendment situation involving national security question presented case separate concurrences members debated question whether president attorney general constitutionally authorize warrantless wiretapping interest national security compare douglas joined brennan concurring white concurring aftermath katz executive authority order warrantless national security wiretaps remained uncertain uncertainty found expression title iii omnibus crime control safe streets act congress attempted fashion rules governing wiretapping electronic surveillance meet constitutional requirements electronic surveillance enunciated berger new york katz keith supra although setting detailed standards governing wiretapping state federal law enforcement agencies act disclaimed intention limit constitutional power president take measures deems necessary protect overthrow government force unlawful means clear present danger structure existence government subsequently interpreted keith provision act expression neutrality reflecting awareness part congress uncertain scope executive authority conduct warrantless national security wiretaps unwillingness circumscribe whatever authority might exist uncertainty regarding legitimacy warrantless national security wiretapping period katz keith also reflected decisions lower federal courts widely cited decision handed july district southern district texas held president acting attorney general legally authorize warrantless wiretaps gather foreign intelligence interest national security clay cr sd july aff rev grounds clay course speak legality surveillance directed domestic threats national security soon applied two federal district courts uphold constitutionality warrantless wiretapping directed black panthers domestic group believed attorney general constitute threat national security dellinger cr nd app rev app appeal dism matters stood mitchell authorized davidon wiretap issue case days termination davidon wiretap however two district courts explicit rejected justice department contention attorney general authority order warrantless wiretaps domestic national security cases smith supp cd sinclair supp ed sixth circuit affirmed sinclair decision district eastern dist affirmance followed keith supra short doctrine executive authority conduct warrantless domestic security wiretaps long survive expiration davidon wiretap means follows however mitchell actions authorizing wiretap violated law clearly established time authorization justice departments six successive administrations considered warrantless domestic security wiretaps constitutional three years earlier expressly left open possibility view correct two federal district courts accepted justice department position although sixth circuit later firmly rejected notion fourth amendment countenanced warrantless domestic security wiretapping found issue sufficiently doubtful warrant exercise discretionary jurisdiction framing issue keith explicitly recognized question one yet receive definitive answer demanded issue us important one people country government involves delicate question presidents power acting attorney general authorize electronic surveillance internal security matters without prior judicial approval successive presidents century authorized surveillance varying degrees without guidance congress definitive decision case brings issue first time resolution matter national concern requiring sensitivity government right protect unlawful subversion attack citizen right secure privacy unreasonable government intrusion affirm appeals denial mitchell claim absolute immunity erred however declining accept jurisdiction question qualified immunity extent effect judgment appeals leave standing district erroneous decision mitchell entitled summary judgment ground qualified immunity judgment appeals reversed ordered justice rehnquist took part consideration decision case footnotes nothing contained chapter section communications act stat shall limit constitutional power president take measures deems necessary protect nation actual potential attack hostile acts foreign power obtain foreign intelligence information deemed essential security protect national security information foreign intelligence activities shall anything contained chapter deemed limit constitutional power president take measures deems necessary protect overthrow government force unlawful means clear present danger structure existence government contents wire oral communication intercepted authority president exercise foregoing powers may received evidence trial hearing proceeding interception reasonable shall otherwise used disclosed except necessary implement power omitted also suggested mitchell put notice act unlawful title iii view clearly proscribed warrantless wiretaps forsyth moved dismissal appeal ground interlocutory therefore within appeals jurisdiction motions panel third circuit held denial absolute immunity appealable order nixon fitzgerald issue appealability denial qualified immunity debatable enough justify referring merits panel forsyth kleindienst judge sloviter dissented arguing mitchell arguments regarding absolute immunity frivolous light third circuit earlier consideration issue addition judge sloviter argued denial qualified immunity unlike denial absolute immunity immediately appealable collateral order doctrine cohen beneficial industrial loan issue objective good faith neither separate merits underlying action effectively unreviewable appeal final judgment judge weis dissenting argued point immunity doctrine protecting officials ultimate liability also trial vindication goal required immediate appeal merits judge weis reversed district immunity ruling ground keith decided clearly established warrantless wiretapping mitchell engaged illegal first eighth district columbia circuits held orders appealable see krohn evans dillahunty mcsurely mcclellan app fifth seventh circuits joined third circuit holding courts appeals lack jurisdiction interlocutory appeals qualified immunity rulings see kenyatta moore lightner jones fourth circuit held district denial qualified immunity appealable plaintiff action involves claims injunctive relief adjudicated regardless resolution damages claims england rockefeller bever gilbertson cert denied case involve claim injunctive relief propriety fourth circuit approach us express opinion question recognize mitchell faced significant number lawsuits stemming authorization warrantless national security wiretaps see zweibon mitchell app cert denied sinclair kleindienst app smith nixon app halperin kissinger app aff equally divided weinberg mitchell burkhart saxbe supp ed mcalister kleindienst civ action filed ed spate litigation however seriously undermine belief attorney general national security duties tend subject large numbers frivolous lawsuits cases involved warrantless wiretapping authorized attorney general generated decision keith suggest absolute immunity rather qualified immunity necessary proper performance attorney general role protecting national security true damages actions conceivable deterrents constitutional violations attorney general mitchell suggests example possibility declaratory injunctive relief use exclusionary rule prevent admission illegally seized evidence criminal proceedings however justice harlan pointed concurring opinion bivens six unknown fed narcotics agents remedies useless citizen accused crime subjected completed constitutional violation cases damages nothing possibilities mentioned mitchell including criminal prosecution impeachment attorney general dubious value deterring flagrant constitutional violations similarly held decision rejecting party claim subject suit particular tribunal final purposes certiorari jurisdiction mercantile national bank langdeau construction laborers curry emphasize point appealable issue purely legal one whether facts alleged plaintiff cases defendant support claim violation clearly established law advancing view separate merits aspect cohen test justice brennan dissent fails account rulings appealability denials claims double jeopardy absolute immunity dissent seems suggest factual overlap collateral issue merits plaintiff claim fatal claim immediate appealability none matters appealed require inquiry whether plaintiff double jeopardy situation government factual allegations state claim falls outside scope defendant immunity distinction principle inquiry cases inquiry issue qualified immunity moreover dissent characterization double jeopardy absolute immunity cases involving issues necessarily conclusive even relevant question whether defendant ultimately liable merits post course inaccurate meritorious double jeopardy absolute immunity claims necessarily directly controlling question whether defendant ultimately liable indeed holdings appealability double jeopardy absolute immunity rulings make anything clear fact issue outcome determinative mean collateral purposes cohen test dissent explanation absolute immunity double jeopardy cases involve determination defendant liability merits similarly fails distinguish cases one reason legal determination given proposition law clearly established time defendant committed alleged acts entail determination merits plaintiff claim defendant actions fact unlawful see inconsistency ruling handling completely separate merits requirement koller ante contrary justice brennan suggestion alternative holding issue disqualification counsel civil case separate merits based fact issue involves factual overlap merits underlying litigation rather observes question whether district disqualification order reversed may depend effect disqualification nondisqualification success parties litigating legal factual issues form underlying dispute accordingly propriety disqualification order unlike qualified immunity ruling legal issue decided reference undisputed facts isolation remaining issues case district suggestion mitchell actions violated clearly established law conflict title iii see supra therefore expressly contradicted keith held title iii simply legislate respect national security surveillances given congress express disclaimer intention limit president national security wiretapping powers said mitchell actions unlawful title iii let alone clearly unlawful keith similarly requires rejection forsyth submission legality wiretap title iii open remand never shown tap justified clear present danger national security see keith majority handling statutory question makes clear statutory exemption national security wiretaps depend showing actual clear present danger intend suggest official always immune liability suit warrantless search merely warrant requirement never explicitly held apply search conducted identical circumstances cases legitimate question whether exception warrant requirement exists said warrantless search violates clearly established law forsyth insists even district incorrect concluding warrantless national security wiretaps conducted violated clearly established law mitchell entitled summary judgment never found actions fact motivated concern national security submission untenable district held hearing purpose wiretap took mitchell word wiretap national security interception prosecutorial function absolute immunity recognized concluded tap violated fourth amendment mitchell immune liability violation harlow standard concluded wiretap indeed national security wiretap qualified immunity question never reached tap clearly illegal title iii qualified immunity hence unavailable light district handling case precludes suggestion wiretap either authorized criminal investigatory purposes authorized purpose unrelated national security chief justice burger concurring part justice join parts iii iv opinion judgment also agree discussion absolute immunity issue unnecessary resolution case write separately emphasize agreement justice stevens extended discussion issue reaches wrong conclusion gravel held aides members congress implement legislative policies decisions member enjoy absolute immunity suit speech debate clause members enjoy noted dissent harlow fitzgerald logic underlying gravel applies equally top executive aides cabinet officer surely none attorney general aide arm president execution president constitutional duty take care laws faithfully executed astonishing paradox aides senators representatives share absolute immunity member president chief aide protecting internal national security agree petitioner entitled absolute immunity actions undertaken exercise discretionary power president area national security justice chief justice joins concurring part join parts iii iv majority opinion judgment previous cases concerning qualified immunity doctrine indicate defendant official whose conduct violate clearly established legal norms entitled avoid trial davis scherer harlow fitzgerald entitlement analogous right avoid trial protected absolute immunity double jeopardy clause district rejects claims official immunity double jeopardy preclude trial special nature asserted right justifies immediate review purpose immunities protect defendant burdens trial right irretrievably lost denial immediately appealable see helstoski meanor abney agree district denial qualified immunity comes within small class interlocutory orders appealable cohen beneficial industrial loan also agree district erred holding petitioner authorization wiretaps violated legal rights clearly established time concur judgment conclusion petitioner entitled qualified immunity sufficient resolve case therefore reach issue whether attorney general may claim absolute immunity acts prevent threat national security accordingly decline join parts ii opinion justice stevens concurring judgment public officials shielded absolute immunity civil damages liability nixon fitzgerald members congress shield expressly provided constitution various state officials shield actually conclusion congress enacted civil rights act intend subject damages liability federal officials also accorded immunity cases holding congress intend subject individual liability even constitutional violations bush lucas absolute immunity president rests part absence indication authors either constitutional text relevant statutory text intended subject damages liability predicated official acts practical consequences holding remedy authorized public official essentially flowing conclusion official absolute immunity moreover similar factors evaluated deciding whether recognize implied cause action claim immunity situations congress silent makes effort ascertain probable intent opinion congress legislated disputed area legislation relevant assertion official immunity analysis question whether implied cause action recognized title iii omnibus crime control safe streets act congress enacted comprehensive legislation regulating electronic interception wire oral communications see one section act ed specifically exempted wire oral communication intercepted authority president national security purposes district keith held certain wiretaps authorized attorney general covered proviso therefore exempt prohibitions title iii wiretap case authorized november attorney general mitchell affidavit later submitted district justifying wiretap national security grounds virtual carbon copy justification attorney general offered electronic surveillance involved keith app reason authority keith holds case involves national security wiretap undertaken authority president exempted title iii see ante determination case keith attorney general mitchell exercising discretionary power president area national security authorized episodes surveillance inescapably leads conclusion absolute immunity attached special function performed mitchell harlow fitzgerald explicitly noted absolute immunity may justified presidential aides entrusted discretionary authority sensitive areas national security foreign policy protect unhesitating performance functions vital national interest central presidential domains foreign policy national security president discharge singularly vital mandate without delegating functions nearly sensitive president expressly delegated responsibility approve national security wiretaps attorney general attorney general determined wiretap case essential gather information conspiracy might plotting kidnap presidential adviser sabotage essential facilities government buildings attorney general vigorous guaranteeing personal security presidential aide physical integrity important government facilities justify holding personally accountable damages civil action authorized congress attorney general secretary state secretary defense make erroneous decisions matters national security foreign policy primary liabilities political intense scrutiny people press congress traditional method deterring violations constitution high officers executive branch unless congress authorizes remedies presumably intends retributions violations undertaken political action congress best position decide whether incremental deterrence added civil damages remedy outweighs adverse effect exposure personal liability may governmental decisionmaking however balance struck surely national interest enabling cabinet officers responsibilities area perform sensitive duties decisiveness without potentially ruinous hesitation passions aroused matters national security foreign policy high profile cabinet officers functions area make easily identifiable target suits civil damages nixon fitzgerald persons wisdom honor hesitate answer president call serve vital positions fear vexatious politically motivated litigation associated public decisions squander time reputation sap personal financial resources leave office multitude lawsuits filed high officials recent years confirms rationality anxiety availability qualified immunity hardly comforting took years federal courts determine plaintiff claim case without merit attorney general violated provisions title iii justice white argued keith immunity congress however expressly refused enact civil remedy cabinet officials exercising president powers described circumstance believe cabinet official entitled absolute immunity president indeed highly doubtful whether rationale bivens six unknown federal narcotics agents even supports implied cause action damages congress enacted legislation comprehensively regulating field electronic surveillance specifically declined impose remedy national security wiretaps described see bush lucas congress failure act careful consideration matter factor counselling hesitation accordingly concur judgment extent requires entry summary judgment favor former attorney general mitchell senators representatives shall cases except treason felony breach peace privileged arrest attendance session respective houses going returning speech debate either house shall questioned place art cl see tenney brandhove pierson ray imbler pachtman stat time attorney general authorized wiretap involved case ed provided nothing contained chapter section communications act shall limit constitutional power president take measures deems necessary protect nation actual potential attack hostile acts foreign power obtain foreign intelligence information deemed essential security protect national security information foreign intelligence activities shall anything contained chapter deemed limit constitutional power president take measures deems necessary protect overthrow government force unlawful means clear present danger structure existence government contents wire oral communication intercepted authority president exercise foregoing powers may received evidence trial hearing proceeding interception reasonable shall otherwise used disclosed except necessary implement power emphasis added attorney general mitchell affidavit justifying warrantless electronic surveillance keith quoted opinion separate opinion disagreeing construction justice white pointed language section means compelled conclusion reached see construction nevertheless controlling case see memorandum heads executive departments agencies june reprinted district eastern dist southern aff cf pierson ray judge errors may corrected appeal fear unsatisfied litigants may hound litigation charging malice corruption imposing burden judges contribute principled fearless intimidation imbler pachtman public trust prosecutor office suffer constrained making every decision consequences terms potential liability suit damages cf pierson ray judge duty decide cases within jurisdiction brought including controversial cases arouse intense feelings litigants many lawsuits filed attorney general mitchell authorization wiretaps one example litigation see ante justice brennan justice marshall joins concurring part dissenting part join parts ii opinion agree qualified immunity sufficiently protects legitimate needs public officials retaining remedy whose rights violated denial absolute immunity immediately appealable nixon fitzgerald issue squarely us view rightly decided disagree however holding qualified immunity issue properly us purpose applying final judgment rule embodied see justification distinguishing denial mitchell claim qualified immunity numerous pretrial motions may reviewed appeal final judgment case therefore dissent holding denials qualified immunity least rest undisputed facts generally appealable acknowledges trial refusal grant mitchell qualified immunity technically final order possible trial refusal immediately appealable therefore must come within narrow confines collateral order doctrine cohen beneficial industrial loan progeny although years varied statement cohen test slightly underlying inquiry remained relatively constant order must conclusively determine disputed question resolve important issue completely separate merits action effectively unreviewable appeal final judgment coopers lybrand livesay always read cohen collateral order doctrine narrowly part strong policies supporting final judgment rule rule respects responsibilities trial enabling perform function without appeals peering shoulder every step way preserves scarce judicial resources otherwise spent costly appeals trial errors become moot aggrieved party nonetheless obtains final judgment favor appellate courts need waste time familiarizing anew case time partial appeal taken equally important final judgment rule removes potent weapon harassment abuse hands litigants justice frankfurter writing cobbledick noted rule avoid obstruction claims come permitting harassment cost succession separate appeals various rulings litigation may give rise initiation entry judgment effective judicial administration must leaden footed momentum arrested permitting separate reviews component elements unified cause although qualified immunity question suit identical ultimate question merits two quite closely related question merits whether mitchell violated law authorized wiretap davidon phone without warrant immunity question whether mitchell violated clearly established law authorized wiretap davidon phone without warrant assuming relevant factual disputes case resolved necessary implication holding mitchell entitled qualified immunity holding indeed liable moreover trial seeking answer either question refer similar cases statutes consult treatises secondary materials undertake rather similar course reasoning least circumstances presented two questions simply completely separate close relationship immunity merits questions consequence special circumstances case view issues material fact parties concerning events surrounding davidon wiretap reason immunity merits questions readily decidable summary judgment yet case divergence facts present congruence merits immunity questions instance parties differed concerning whether mitchell fact authorized wiretaps mitchell perhaps still able move qualified immunity basis undisputed facts nonetheless even case question whether trial grant motion closely related question whether trial grant mitchell summary judgment motion merits question sense collateral ultimate question merits thus find application second prong cohen test result straightforward preclusion interlocutory appeal prior cases confirm result past found inter alia double jeopardy claims abney claims excessive bail stack boyle claims absolute immunity nixon fitzgerald disputes concerning whether defendant required post security bond certain circumstances cohen beneficial industrial loan separate merits underlying actions none issues necessarily conclusive even relevant question whether defendant ultimately liable merits decision questions likely require analysis research decision related merits case attempt avoid rigors second prong collateral order doctrine holds claim immunity conceptually distinct merits plaintiff claim rights violated ante emphasis added previous cases especially recent vintage established exacting standard ordinary formulation coopers lybrand stated interlocutory order may considered final purposes immediate appeal resolve important issue completely separate merits action emphasis added used formulation koller ante flanagan hollywood motor car per curiam firestone tire rubber risjord abney supra described factor noting challenged order resolved issue completely collateral cause action asserted emphasis added although precise outlines conceptual distinction test made clear support conclusion argument appellate need determine question law ante underlying assumption conceptual distinction test thus seems questions law likely separate merits case questions fact seems entirely wrong legal rather factual nature given question simply nothing whether separate merits although appellate provide interlocutory review legal issues final judgment rule embodies congress conclusion appellate review interlocutory legal factual determinations await final judgment focusing legal nature challenged trial order test effectively substitutes traditional test completely separate merits vastly less stringent analysis whether allegedly appealable issue identical merits even something less complete separability required toothless standard disserves important purposes underlying separability requirement first pretrial issue entirely separate merits interlocutory review may cause delay unjustified various grounds least unlikely require repeated appellate review similar questions contrast pretrial issue closely related merits case interlocutory review permitted appellate review likely require appellate reexamine similar legal issues holding today effect requiring precisely kind repetitious appellate review interlocutory appeal qualified immunity issue appellate must inquire legality defendant underlying conduct recently noted ost pretrial orders district judges ultimately affirmed appellate courts koller ante thus trial usual affirmed appellate must repeat process final judgment although agree legal question review conceptually different connection research analysis decision issues apparent much work reviewing final judgment duplicative second purpose separability requirement derives recognition resolution even abstract legal disputes advanced presence concrete set facts appeal put final judgment fuller development facts stage assist appellate disposition case simply put appellate best able decide whether given conduct prohibited established law record case contains full description conduct see kenyatta moore short conceptual distinction test separability finds support cases fails serve underlying purposes final judgment rule extent requires trial orders concerning matters law appealable requires thought condition appellate review interlocutory otherwise additional thrust test seems appealable order must identical merits case test separability weak see little profit maintaining fiction remains prerequisite interlocutory appeal heart issue us ante third prong cohen test whether order effectively unreviewable upon ultimate termination proceedings holds right qualified immunity includes right stand trial unless plaintiff make material issue fact question whether defendant violated clearly established law effectively vindicated trial cf abney given defense liability fact encompasses right stand trial specified circumstances one right defense effectively unreviewable appeal final judgment instance one right summary judgment federal rule civil procedure characterized right stand trial opposing party failed create genuine issue material fact denials summary judgment motions immediately appealable least third prong cohen test similarly statute limitations gave defendants right tried time denial statute limitations defense immediately appealable insofar third cohen test concerned similar results follow host constitutional right jury trial right due process statutory venue necessary parties rights right characterized right stand trial except certain circumstances follows ineluctably right vindicated final judgment point course characterization right issue determines legal result case therefore careful inquiry must undertaken determine whether necessary characterize right issue right stand trial final judgment rule presupposes party must abide trial judgments end proceedings gaining opportunity appellate review hold given legal claim fact immunity trial except privileged class undergoing regrettable cost trial lightly harlow fitzgerald extended qualified immunity doctrine part avoid imposition general costs subjecting officials risks trial distraction officials governmental duties inhibition discretionary action deterrence able people public service harlow however chose advance purpose modifying substantive standards governing qualified immunity making defense easier prove summary judgment motion harlow relieve many officials undergoing costs trial yet harlow fails answer question today given extra protection public officials adjusting liability standards harlow need addition take extraordinary step excepting officials operation final judgment rule advances three grounds support result first notes defendant government official entitled dismissal plaintiff fails state claim violation clearly established law ante although true merely restates standard liability recognized harlow fails justify additional step taken today second defendant official entitled summary judgment plaintiff unable create genuine issue material fact issue also true merely restates ordinary standard summary judgment rule finally declares entitlement immunity suit rather mere defense liability thus lost case erroneously permitted go trial ante although may believe italicizing words immunity suit clarifies rationale doubt ordinary characterization wide variety legal claims immunities establishes trial orders rejecting claims necessarily unreviewable termination proceedings view sober assessment interests protected qualified immunity defense counsels departing normal procedural rules defense asserted claims subjecting officials trial may lead distraction officials governmental duties inhibition discretionary action deterrence able people public service ante quoting harlow fitzgerald supra even agreed environment evils real possibly agree justify conclusion ill results flow adverse decision dispositive preliminary issue lawsuit official defendant whether based statute limitations collateral estoppel lack jurisdiction like trial often able resolve issues considerable finality trial decision questions may often far separable merits qualified immunity ruling yet hardly think prepared hold government official suffering adverse ruling issues entitled immediate appeal event think evils suggested pose significant threat given liability standards established harlow held harlow government officials performing discretionary functions generally shielded liability civil damages insofar conduct violate clearly established statutory constitutional rights reasonable person known doubt trial judges employing standard little difficulty achieving harlow goal early dismissal frivolous insubstantial lawsuits question whether anything gained permitting interlocutory appeal remaining cases otherwise proceed trial cases predictably two types cases official violate clearly established legal norm cases nothing gained permitting interlocutory appeal proceed expeditiously possible trial rest cases official violate clearly established legal norm given nature qualified immunity determination expect tend quite close cases defendant violated legal norm questionable whether norm clearly established many cases may well appealable certified interlocutory appeals less likely writ mandamus cf firestone tire rubber risjord coopers lybrand livesay remaining cases decision today offers hope otherwise unavailable pretrial reversal class cases interlocutory appeal beneficial still smaller subclass trial judgment reversed question thus whether possibly beneficial effects avoiding trial small subset cases justify declaration right qualified immunity right stand trial benefits seem rather small meritless cases dismissed early stages thus minimizing extent officials distracted duties officials aware extensive protection offered qualified immunity deterred activities least strong scent illegality deterrence many activities clearly unlawful precisely one goals official liability finally take seriously suggestion officials otherwise deterred taking public office confidence restored possibility mistaken trial qualified immunity rulings small class cases might brought overturned appeal trial even benefits gained granting officials right immediate appeal rule allowing immediate appeal imposes enormous costs plaintiffs judicial system whole claims entitled immediate appeal quality see macdonald relying part fact nothing circumstances support speedy trial claim inherently limits availability claim find appealable double jeopardy claims instance available criminal defendants previously tried similarly interlocutory civil appeals permitted cohen obviously limited small number cases see also helstoski meanor speech debate clause immunity swift packers compania colombiana del caribe order denying attachment ship roberts district per curiam order denying right proceed forma pauperis although absolute immunity perhaps widely available claim ambit nonetheless remains restricted officials performing extremely sensitive functions see nixon fitzgerald president imbler pachtman prosecutors pierson ray judges tenney brandhove legislators contrast right interlocutory appeal recognized today generally available expected widely pursued virtually governmental official sued personal capacity regardless merits claim qualified immunity strength claim result fear today decision give government officials potent weapon use plaintiffs delaying litigation endlessly interlocutory appeals decision today result denial full speedy justice plaintiffs strong claims merits relentless unnecessary increase caseload appellate courts ii even agreed conclusion denials qualified immunity rest undisputed facts immediately appealable agreed conclusion mitchell entitled qualified immunity agree mischaracterization proceedings case find mitchell entitled summary judgment qualified immunity issue outset forsyth alleged davidon wiretap national security wiretap instead simple attempt spy political opponents created issue fact nature wiretap question issue trial never resolved hold record mitchell entitled summary judgment either engage de novo factfinding exercise neither authority resources intentionally disregard record achieve particular result case purports find two justifications conclusion trial fact resolved issue mitchell favor district held hearing purpose wiretap took mitchell word wiretap national security interception prosecutorial function absolute immunity recognized ante true fails demonstrate resolution disputed factual issue ruling trial indeed said taken defendant mitchell word claimed approved davidon wiretaps part national security investigation app pet cert section opinion reproduced trial determining whether mitchell entitled absolute immunity prosecutor authorizing davidon wiretap thus two paragraphs quoted statement trial said egardless whether davidon wiretap motivated legitimate national security concern good faith belief existed legitimate national security concern defendants contend invasion privacy political dissidents conducted guise national security plaintiff contends doubt defendant mitchell consistently taken position davidon tap arose context purely investigative administrative function part emphasis added also attempts construct argument trial matter logic must made finding fact question otherwise according qualified immunity question never reached tap clearly illegal title iii qualified immunity hence unavailable ante argument seems trial decided legality wiretap title iii going qualified immunity question since question arises considering legality wiretap constitution perhaps trial proceeded wants although question nearly simple suggests thought trial complicated case must accorded great discretion determining order decision rate speculations trial decided order irrelevant forsyth surely forfeit legal claim arguably trial went task inartfully word record suggest trial actually made determination disputed issue thus loss understand legal principle aside sympathy defendant hostility plaintiff bases decision mitchell entitled summary judgment dissent point part ii infra view seriously misrepresents dispute parties thus believe mere factual overlap ante sufficient show lack separability rather legal overlap qualified immunity question merits case renders two questions inseparable text makes clear trial renders qualified immunity decision summary judgment motion must make legal determination similar legal determination must make summary judgment motion merits similarly may cases evidence introduced defendant official moves directed verdict ground evidence actually produced trial failed make factual issue question whether defendant violated clearly established law trial decision defendant directed verdict motion involve legal questions quite similar motion defendant directed verdict merits case point regardless defendant raises qualified immunity issue similar question merits stage trial contrast trial decision absolute immunity double jeopardy whatever stage arises ordinarily raise legal question even similar question merits case see also helstoski meanor claim immunity speech debate clause eisen carlisle jacquelin order allocating costs notice class action swift packers compania colombiana del caribe order vacating attachment ship maritime case roberts district order denying forma pauperis status suggest seems think double jeopardy absolute immunity rulings controlling question whether defendant ultimately liable see ante rather rulings generally conclusive relevant question whether defendant liable merits course double jeopardy absolute immunity rulings outcome determinative ruling qualified immunity application statute limitations claim improper venue lack jurisdiction failure join indispensable party like question answered whether given issue outcome determinative whether resolution closely related resolution merits case also appellate reviewing denial defendant claim immunity need consider correctness plaintiff version facts even determine whether plaintiff allegations actually state claim ante first part statement correct equally true motion judgment pleadings yet never seen plausible argument motion judgment pleadings immediately appealable part motion plainly separable merits case second part statement also correct indeed explain difference qualified immunity determination ordinary motion judgment pleadings summary judgment motion yet fact qualified immunity determination different respect judgment pleadings hardly ground finding sufficiently separate immediately appealable conceptual distinction test also inconsistent decision koller ante notes question immunity separate merits underlying action purposes cohen test even though reviewing must consider plaintiff factual allegations resolving immunity issue ante yet evidently believes attorney disqualification issue separable merits appeals must evaluate inter alia respondent claim merits relevance alleged instances misconduct attorney zealous pursuit claim ante judgment sought summary judgment motion shall rendered forthwith pleadings depositions answers interrogatories admissions file together affidavits show genuine issue material fact moving party entitled judgment matter law fed rule civ proc numerous legal rights traditionally recognized immunities include everything charitable immunity tort law keeton dobbs keeton owen prosser keeton law torts ed immunity antitrust law see parker brown doctrine sovereign immunity federal statutes also contain numerous provisions granting immunities see immunity organizations liability disclosures relating financial difficulties certain securities dealers immunity foreign government vessels pollution control remedies immunities carrier goods sea app supp iii immunity antitrust laws certain agreements among carriers goods sea also imposes costs defendant officials public pursue interlocutory appeals expected ordinarily lose see koller ante permitting interlocutory appeal thus cases merely divert officials duties even longer time appeals available course official sued official capacity may take advantage qualified immunity defense see brandon holt instant case apt illustration proceedings trial likely concluded two interlocutory appeals filed government given conclusion appeals jurisdiction mitchell interlocutory appeal need reach issue whether entitled qualified immunity