Harlow v. Fitzgerald

Incident Summary & Facts

A. Ernest Fitzgerald lost his position in the Air Force’s Financial Management Office through a reduction in force. He sued Bryce Harlow and Alexander Butterfield, senior White House aides to President Richard Nixon, for civil damages. He alleged that they took part in a conspiracy to bring about his retaliatory dismissal and to block his reemployment, in violation of his constitutional and statutory rights. His evidence against Harlow was “inferential”: conversations Harlow had with Air Force Secretary Robert Seamans about the dismissal, and a recorded remark in which the President tentatively recalled that Harlow was “all for canning” Fitzgerald. Against Butterfield, Fitzgerald pointed to a May 1969 memorandum reporting that Fitzgerald planned to “blow the whistle” on “shoddy purchasing practices,” and to a later memorandum emphasizing “loyalty” that advised against rehiring him. Both aides denied wrongdoing. They said nearly eight years of discovery had produced no direct evidence against them.

This case did not involve a use-of-force encounter. It concerns the scope of official immunity from civil damages.

Procedural posture: The district court denied summary judgment and ruled that the aides were not entitled to absolute immunity. The aides appealed under the collateral order doctrine. The D.C. Circuit dismissed the appeal without opinion, and the Supreme Court granted certiorari.

Core Legal Issue

Are senior Presidential aides entitled to absolute immunity from civil damages suits based on their official acts? If they are entitled only to qualified immunity, what standard governs that defense?

The Holding

Presidential aides generally have only qualified immunity, unless an aide shows that a particular function, such as national security or foreign policy, requires absolute immunity. The Court also redefined qualified immunity as an objective test: officials performing discretionary functions are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The judgment was vacated and the case remanded.

The Court’s Analysis:

• Qualified immunity is the norm: Following Butz v. Economou, which gave Cabinet officers only qualified immunity, the Court held that blanket absolute immunity for every White House aide would be “equally untenable.” Immunity follows a “functional” approach, and the official claiming absolute immunity bears the burden of justifying it.
• Subjective element removed: The earlier “good faith” test (Wood v. Strickland) had both objective and subjective parts. The subjective inquiry into malice blocked summary judgment and led to “broad-ranging discovery.” The Court held that “bare allegations of malice should not suffice” to force officials into trial or burdensome discovery.
• Objective test, decided early: On summary judgment, the judge may decide both the current law and whether it was clearly established at the time. “Until this threshold immunity question is resolved, discovery should not be allowed.”
• Consequences: If the law was clearly established, the defense “ordinarily should fail, since a reasonably competent public official should know the law governing his conduct,” unless the official proves extraordinary circumstances. If it was not clearly established, the official cannot be expected to anticipate later legal developments.
• Concurrences: Justice Brennan (joined by Justices Marshall and Blackmun) noted that some discovery into what an official actually “knew” may sometimes be needed. Justice Rehnquist joined but said he would reexamine Butz.
• Dissent (Burger, C.J.): Senior aides are the President’s “alter egos” and, as with congressional aides under Gravel, should share his absolute immunity.