SUPREME COURT OF THE UNITED STATES
551 U.S. 205; 127 S.Ct. 2360; 168 L.Ed.2d 96

KEITH BOWLES, PETITIONER v. HARRY RUSSELL, WARDEN

No. 06-5306

March 26, 2007, Argued

June 14, 2007, Decided

NOTICE: [*1] The LEXIS pagination of this document is subject to change pending release of the final published version.

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

DISPOSITION: 432 F.3d 668, affirmed.

SYLLABUS:

Having failed to file a timely notice of appeal from the Federal District Court's denial of habeas relief, petitioner Bowles moved to reopen the filing period pursuant to Federal Rule of Appellate Procedure 4(a)(6), which allows a district court to grant a 14-day extension under certain conditions, see 28 U.S.C. § 2107(c). The District Court granted Bowles' motion but inexplicably gave him 17 days to file his notice of appeal. He filed within the 17 days allowed by the District Court, but after the 14-day period allowed by Rule 4(a)(6) and § 2107(c). The Sixth Circuit held that the notice was untimely and that [*2] it therefore lacked jurisdiction to hear the case under this Court's precedent.

Held: Bowles' untimely notice of appeal--though filed in reliance upon the District Court's order--deprived the Sixth Circuit of jurisdiction. Pp. 2-10.

(a) The taking of an appeal in a civil case within the time prescribed by statute is "mandatory and jurisdictional." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (per curiam). There is a significant distinction between time limitations set forth in a statute such as § 2107, which limit a court's jurisdiction, see, e.g., Kontrick v. Ryan, 540 U.S. 443, 453, and those based on court rules, which do not, see, e.g., id., at 454. Arbaugh v. Y & H Corp., 546 U.S. 500, 505, and Scarborough v. Principi, 541 U.S. 401, 314, distinguished. Because Congress decides, within constitutional bounds, whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them. See United States v. Curry, 6 How. 106, 113. And when an "appeal has not been prosecuted [*3] in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction." Id., at 113. The resolution of this case follows naturally from this reasoning. Because Congress specifically limited the amount of time by which district courts can extend the notice-of-appeal period in § 2107(c), Bowles' failure to file in accordance with the statute deprived the Court of Appeals of jurisdiction. And because Bowles' error is one of jurisdictional magnitude, he cannot rely on forfeiture or waiver to excuse his lack of compliance. Pp. 4-8.

(b) Bowles' reliance on the "unique circumstances" doctrine, rooted in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (per curiam) and applied in Thompson v. INS, 375 U.S. 384 (per curiam), is rejected. Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the doctrine is illegitimate. Harris Truck Lines and Thompson are overruled to the extent they purport to authorize an exception to a jurisdictional rule. Pp. 8-9.

432 F.3d 668, affirmed.

JUDGES: THOMAS, [*4] J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined.

OPINION: JUSTICE THOMAS delivered the opinion of the Court.

In this case, a District Court purported to extend a party's time for filing an appeal beyond the period allowed by statute. We must decide whether the Court of Appeals had jurisdiction to entertain an appeal filed after the statutory period but within the period allowed by the District Court's order. We have long and repeatedly held that the time limits for filing a notice of appeal are jurisdictional in nature. Accordingly, we hold that petitioner's untimely notice--even though filed in reliance upon a District Court's order--deprived the Court of Appeals of jurisdiction.

I

In 1999, an Ohio jury convicted petitioner Keith Bowles of murder for his involvement in the beating death of Ollie Gipson. The jury sentenced Bowles to 15 years to life imprisonment. Bowles unsuccessfully challenged his conviction and sentence on direct appeal.

Bowles then filed a federal habeas corpus application on September 5, 2002. On [*5] September 9, 2003, the District Court denied Bowles habeas relief. After the entry of final judgment, Bowles had 30 days to file a notice of appeal. Fed. Rule App. Proc. 4(a)(1)(A); 28 U.S.C. § 2107(a). He failed to do so. On December 12, 2003, Bowles moved to reopen the period during which he could file his notice of appeal pursuant to Rule 4(a)(6), which allows district courts to extend the filing period for 14 days from the day the district court grants the order to reopen, provided certain conditions are met. See § 2107(c).

On February 10, 2004, the District Court granted Bowles' motion. But rather than extending the time period by 14 days, as Rule 4(a)(6) and § 2107(c) allow, the District Court inexplicably gave Bowles 17 days--until February 27--to file his notice of appeal. Bowles filed his notice on February 26--within the 17 days allowed by the District Court's order, but after the 14-day period allowed by Rule 4(a)(6) and § 2107(c).

On appeal, respondent Russell argued that Bowles' notice was untimely and that the Court of Appeals therefore lacked jurisdiction to hear the case. The Court of Appeals agreed. It first recognized that this Court has [*6] consistently held the requirement of filing a timely notice of appeal is "mandatory and jurisdictional." 432 F.3d 668, 673 (CA6 2005) (citing Browder v. Director, Dept. of Corrections of Ill., 434 U.S. 257, 264 (1978)). The court also noted that courts of appeals have uniformly held that Rule 4(a)(6)'s 180-day period for filing a motion to reopen is also mandatory and not susceptible to equitable modification. 432 F.3d at 673 (collecting cases). Concluding that "the fourteen-day period in Rule 4(a)(6) should be treated as strictly as the 180-day period in that same Rule," id., at 676, the Court of Appeals held that it was without jurisdiction. We granted certiorari, 549 U.S. (2006), and now affirm.

II

According to 28 U.S.C. § 2107(a), parties must file notices of appeal within 30 days of the entry of the judgment being appealed. District courts have limited authority to grant an extension of the 30-day time period. Relevant to this case, if certain conditions are met, district courts have the statutory authority to grant motions to reopen the time for filing an appeal for 14 additional [*7] days. § 2107(c). Rule 4 of the Federal Rules of Appellate Procedure carries § 2107 into practice. In accord with § 2107(c), Rule 4(a)(6) describes the district court's authority to reopen and extend the time for filing a notice of appeal after the lapse of the usual 30 days:
"(6) Reopening the Time to File an Appeal.

"The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:

"(A) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier;

"(B) the court finds that the moving party was entitled to notice of the entry of the judgment or order sought to be appealed but did not receive the notice from the district court or any party within 21 days after entry; and

"(C) the court finds that no party would be prejudiced." (Emphasis added.) n1



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n1 The Rule was amended, effective December 1, 2005, to require that notice be pursuant to Fed. Rule Civ. Proc. 77(d). The substance is otherwise unchanged.


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It is undisputed that the District Court's order in this case purported to reopen the filing period for more than 14 days. Thus, the question before us is whether the Court of Appeals lacked jurisdiction to entertain an appeal filed outside the 14-day window allowed by § 2107(c) but within the longer period granted by the District Court.

A

This Court has long held that the taking of an appeal within the prescribed time is "mandatory and jurisdictional." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam) (internal quotation marks omitted); n2 accord, Hohn v. United States, 524 U.S. 236, 247 (1998); Torres v. Oakland Scavenger Co., 487 U.S. 312, 314-315 (1988); Browder, supra, at 264. Indeed, even prior to the creation of the circuit courts of appeals, this Court regarded statutory limitations on the timing of appeals as limitations on its own jurisdiction. See Scarborough v. Pargoud, 108 U.S. 567, 568 (1883) ("[T]he writ of error in this case was not brought within the time limited by law, and we have consequently no jurisdiction"); United States v. Curry, 6 How. 106, 113 (1848) [*9] ("[A]s this appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction"). Reflecting the consistency of this Court's holdings, the courts of appeals routinely and uniformly dismiss untimely appeals for lack of jurisdiction. See, e.g., Atkins v. Medical Dept. of Augusta Cty. Jail, No. 06-7792, 2007 WL 1048810 (CA4, Apr. 4, 2007) (per curiam) (unpublished); see also 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3901, p. 6 (2d ed. 1992) ("The rule is well settled that failure to file a timely notice of appeal defeats the jurisdiction of a court of appeals"). In fact, the author of today's dissent recently reiterated that "[t]he accepted fact is that some time limits are jurisdictional even though expressed in a separate statutory section from jurisdictional grants, see, e.g., . . . § 2107 (providing that notice of appeal in civil cases must be filed 'within thirty days after the entry of such judgment')." Barnhart v. Peabody Coal Co., 537 U.S. 149, 160, n. 6 (2003) (majority opinion of SOUTER, J., joined by STEVENS, [*10] GINSBURG, and BREYER, JJ., inter alios) (citation omitted).

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n2 Griggs and several other of this Court's decisions ultimately rely on United States v. Robinson, 361 U.S. 220, 229 (1960), for the proposition that the timely filing of a notice of appeal is jurisdictional. As the dissent notes, we have recently questioned Robinson's use of the term "jurisdictional." Post, at 2 (opinion of SOUTER, J.) Even in our cases criticizing Robinson, however, we have noted the jurisdictional significance of the fact that a time limit is set forth in a statute, see infra, at 5-6, and have even pointed to § 2107 as a statute deserving of jurisdictional treatment. Infra, at 6. Additionally, because we rely on those cases in reaching today's holding, the dissent's rhetoric claiming that we are ignoring their reasoning is unfounded.

Regardless of this Court's past careless use of terminology, it is indisputable that time limits for filing a notice of appeal have been treated as jurisdictional in American law for well over a century. Consequently, the dissent's approach would require the repudiation of a century's worth of precedent and practice in American courts. Given the choice between calling into question some dicta in our recent opinions and effectively overruling a century's worth of practice, we think the former option is the only prudent course.


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Although several of our recent decisions have undertaken to clarify the distinction between claims-processing rules and jurisdictional rules, none of them calls into question our longstanding treatment of statutory time limits for taking an appeal as jurisdictional. Indeed, those decisions have also recognized the jurisdictional significance of the fact that a time limitation is set forth in a statute. In Kontrick v. Ryan, 540 U.S. 443 (2004), we held that failure to comply with the time requirement in Federal Rule of Bankruptcy Procedure 4004 did not affect a court's subject-matter jurisdiction. Critical to our analysis was the fact that "[n]o statute . . . specifies a time limit for filing a complaint objecting to the debtor's discharge." 540 U.S., at 448. Rather, the filing deadlines in the Bankruptcy Rules are "'procedural rules adopted by the Court for the orderly transaction of its business'" that are "'not jurisdictional.'" Id., at 454 (quoting Schacht v. United States, 398 U.S. 58, 64 (1970)). Because "[o]nly Congress may determine a lower federal court's subject-matter jurisdiction," 540 U.S., at 452 [*12] (citing U.S. Const., Art. III, § 1), it was improper for courts to use "the term 'jurisdictional' to describe emphatic time prescriptions in rules of court," 540 U.S., at 454. See also Eberhart v. United States, 546 U.S. 12 (2005) (per curiam). As a point of contrast, we noted that § 2107 contains the type of statutory time constraints that would limit a court's jurisdiction. 540 U.S., at 453, and n. 8. n3 Nor do Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), or Scarborough v. Principi, 541 U.S. 401 (2004), aid petitioner. In Arbaugh, the statutory limitation was an employee-numerosity requirement, not a time limit. 546 U.S., at 505. Scarborough, which addressed the availability of attorney's fees under the Equal Access to Justice Act, concerned "a mode of relief . . . ancillary to the judgment of a court" that already had plenary jurisdiction. 541 U.S., at 413.

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n3 At least one federal court of appeals has noted that Kontrick and Eberhart "called . . . into question" the "longstanding assumption" that the timely filing of a notice of appeal is a jurisdictional requirement. United States v. Sadler, 480 F.3d 932, 935 (CA9 2007). That court nonetheless found that "[t]he distinction between jurisdictional rules and inflexible but not jurisdictional timeliness rules drawn by Eberhart and Kontrick turns largely on whether the timeliness requirement is or is not grounded in a statute." Id., at 936.


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This Court's treatment of its certiorari jurisdiction also demonstrates the jurisdictional distinction between court-promulgated rules and limits enacted by Congress. According to our Rules, a petition for a writ of certiorari must be filed within 90 days of the entry of the judgment sought to be reviewed. See this Court's Rule 13.1. That 90-day period applies to both civil and criminal cases. But the 90-day period for civil cases derives from both this Court's Rule 13.1 and 28 U.S.C. § 2101(c). We have repeatedly held that this statute-based filing period for civil cases is jurisdictional. See, e.g., Federal Election Comm'n v. NRA Political Victory Fund, 513 U.S. 88, 90 (1994). Indeed, this Court's Rule 13.2 cites § 2101(c) in directing the Clerk not to file any petition "that is jurisdictionally out of time." (Emphasis added.) On the other hand, we have treated the rule-based time limit for criminal cases differently, stating that it may be waived because "[t]he procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion [*14] . . . ." Schacht, supra, at 64. n4

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n4 The dissent minimizes this argument, stating that the Court understood § 2101(c) as jurisdictional "in the days when we used the term imprecisely." Post, at 4, n. 4. The dissent's apathy is surprising because if our treatment of our own jurisdiction is simply a relic of the old days, it is a relic with severe consequences. Just a few months ago, the Clerk, pursuant to this Court's Rule 13.2, refused to accept a petition for certiora

SUPREME COURT OF THE UNITED STATES
472 U.S. 511; 105 S. Ct. 2806; 86 L. Ed. 2d 411

MITCHELL v. FORSYTH
No. 84-335

February 27, 1985, Argued

June 19, 1985, Decided

PRIOR HISTORY: [*1]

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.

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

SYLLABUS: In 1970, petitioner, who was then the Attorney General, authorized a warrantless wiretap for the purpose of gathering intelligence regarding the activities of a radical group that had made tentative plans to take actions threatening the Nation's security. During the time the wiretap was installed, the Government intercepted three conversations between a member of the group and respondent. Thereafter, this Court in United States v. United States District Court, 407 U.S. 297 (Keith), ruled that the Fourth Amendment does not permit warrantless wiretaps in cases involving domestic threats to the national security. Respondent then filed a damages action in Federal District Court against petitioner and others, alleging that the surveillance to which he had been subjected violated the Fourth Amendment and Title III [*10] of the Omnibus Crime Control and Safe Streets Act. Ultimately, the District Court, granting respondent's motion for summary judgment on the issue of liability, held that petitioner was not entitled to either absolute or qualified immunity. The Court of Appeals agreed with the denial of absolute immunity, but held, with respect to the denial of qualified immunity, that the District Court's order was not appealable under the collateral order doctrine.

Held:

1. Petitioner is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions. His status as a Cabinet officer is not in itself sufficient to invest him with absolute immunity. The considerations of separation of powers that call for absolute immunity for state and federal legislators and for the President do not demand a similar immunity for Cabinet officers or other high executive officials. Nor does the nature of the Attorney General's national security functions -- as opposed to his prosecutorial functions -- warrant absolute immunity. Petitioner points to no historical or common-law basis for absolute immunity for officers carrying [*11] out tasks essential to national security, such as pertains to absolute immunity for judges, prosecutors, and witnesses. The performance of national security functions does not subject an official to the same risks of entanglement in vexatious litigation as does the carrying out of the judicial or "quasi-judicial" tasks that have been the primary well-springs of absolute immunities. And the danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity. Pp. 520-524.

2. The District Court's denial of qualified immunity, to the extent it turned on a question of law, is an appealable "final decision" within the meaning of 28 U. S. C. § 1291 notwithstanding the absence of a final judgment. Qualified immunity, similar to absolute immunity, is an entitlement not to stand trial under certain circumstances. Such entitlement is an immunity from suit rather than a mere defense to liability; and like absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate [*12] appealability of the denial of absolute immunity indicates that the denial of qualified immunity should be similarly appealable under the "collateral order" doctrine; in each case, the district court's decision is effectively unreviewable on appeal from a final judgment. The denial of qualified immunity also meets the additional criteria for an appealable interlocutory order: it conclusively determines the disputed question, and it involves a claim of rights separable from, and collateral to, rights asserted in the action. Pp. 524-530.

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

COUNSEL: Deputy Solicitor General Bator argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, Samuel A. Alito, [*13] Jr., Barbara L. Herwig, Gorden W. Daiger, and Larry L. Gregg.

David Rudovsky argued the cause for respondent. With him on the brief was Michael Avery.

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

OPINIONBY: WHITE

OPINION: JUSTICE WHITE delivered the opinion of the Court.

[*14] This is a suit for damages stemming from a warrantless wiretap authorized by petitioner, a former Attorney General of the United States. The case presents three issues: whether the Attorney General is absolutely immune from suit for actions undertaken in the interest of national security; if not, whether the District Court's finding that petitioner is not immune from suit for his actions under the qualified immunity standard of Harlow v. Fitzgerald, 457 U.S. 800 (1982), is appealable; and, if so, whether the District Court's ruling on qualified immunity was correct.

I

In 1970, the Federal Bureau of Investigation learned that members of an antiwar group known as the East Coast Conspiracy to Save Lives (ECCSL) had made plans to blow up heating tunnels linking federal office buildings in Washington, D. C., and had also discussed the possibility of kidnaping then National Security Adviser Henry Kissinger. On November 6, 1970, acting on the basis of this information, the then Attorney General John Mitchell authorized a warrantless wiretap on the telephone of William Davidon, a Haverford College physics professor who was a member of the group. According [*15] to the Attorney General, the purpose of the wiretap was the gathering of intelligence in the interest of national security.

The FBI installed the tap in late November 1970, and it stayed in place until January 6, 1971. During that time, the Government intercepted three conversations between Davidon and respondent Keith Forsyth. The record before us does not suggest that the intercepted conversations, which appear to be innocuous, were ever used against Forsyth in any way. Forsyth learned of the wiretap in 1972, when, as a criminal defendant facing unrelated charges, he moved under 18 U. S. C. § 3504 for disclosure by the Government of any electronic surveillance to which he had been subjected. The Government's response to Forsyth's motion revealed that although he had never been the actual target of electronic surveillance, he "did participate in conversations that are unrelated to this case and which were overheard by the Federal Government during the course of electronic surveillance expressly authorized by the President acting through the Attorney General." App. 20-21. The Government's response was accompanied by an affidavit, sworn to by then Attorney General [*16] Richard Kleindienst, averring that the surveillance to which Forsyth had been subjected was authorized "in the exercise of [the President's] authority relating to the national security as set forth in 18 U. S. C. 2511(3)." Id., at 23. n1

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n1 Title 18 U. S. C. § 2511(3) (1976 ed.) provided:

"Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U. S. C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power" (footnote omitted).

The provision, enacted as part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, was repealed in 1978 by § 201(c) of the Foreign Intelligence Surveillance Act, Pub. L. 95-511, 92 Stat. 1797.

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Shortly thereafter, this Court ruled that the Fourth Amendment does not permit the use of warrantless wiretaps in cases involving domestic threats to the national security. United States v. United States District Court, 407 U.S. 297 (1972) (Keith). In the wake of the Keith decision, Forsyth filed this lawsuit against John Mitchell and several other defendants in the United States District Court for the Eastern District of Pennsylvania. Forsyth alleged that the surveillance to which he had been subjected violated both the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. §§ 2510-2520, which sets forth comprehensive standards governing the use of wiretaps and electronic surveillance by both governmental and private agents. He asserted that both the constitutional and statutory provisions provided him with a private right of action; he sought compensatory, statutory, and punitive damages.

Discovery and related preliminary proceedings dragged on for the next five-and-a-half years. By early 1978, both Forsyth and Mitchell had submitted motions for summary judgment on which the District [*18] Court was prepared to rule. Forsyth contended that the uncontested facts established that the wiretap was illegal and that Mitchell and the other defendants were not immune from liability; Mitchell contended that the decision in Keith should not be applied retroactively to the wiretap authorized in 1970 and that he was entitled either to absolute prosecutorial immunity from suit under the rule of Imbler v. Pachtman, 424 U.S. 409 (1976), or to qualified or "good faith" immunity under the doctrine of Wood v. Strickland, 420 U.S. 308 (1975).

The court found that there was no genuine dispute as to the facts that the FBI had informed Mitchell of the ECCSL's plots, that Mitchell had authorized the warrantless tap on Davidon's phone, and that the ostensible purpose of the tap was the gathering of intelligence in the interest of national security. Such a wiretap, the court concluded, was a clear violation of the Fourth Amendment under Keith, which, in the court's view, was to be given retroactive effect. The court also rejected Mitchell's claim to absolute immunity from suit under Imbler v. Pachtman: Imbler, the court held, provided absolute [*19] immunity to a prosecutor only for his acts in "initiating and pursuing a criminal prosecution"; Mitchell's authorization of the wiretap constituted the performance of an investigative rather than prosecutorial function. Forsyth v. Kleindienst, 447 F.Supp. 192, 201 (1978). Although rejecting Mitchell's claim of absolute immunity, the court found that Mitchell was entitled to assert a qualified immunity from suit and could prevail if he proved that he acted in good faith. Applying this standard, with its focus on Mitchell's state of mind at the time he authorized the wiretap, the court concluded that neither side had met its burden of establishing that there was no genuine issue of material fact as to Mitchell's good faith. Accordingly, the court denied both parties' motions for summary judgment. Id., at 203.

Mitchell appealed the District Court's denial of absolute immunity to the United States Court of Appeals for the Third Circuit, which remanded for further factfinding on the question whether the wiretap authorization was "necessary to [a] . . . decision to initiate a criminal prosecution" and thus within the scope of the absolute immunity recognized [*20] in Imbler v. Pachtman. Forsyth v. Kleindienst, 599 F.2d 1203, 1217 (1979). On remand, the District Court held a hearing on the question whether the wiretap served a prosecutorial purpose. On the basis of the hearing and the evidence in the record, the court concluded that Mitchell's authorization of the wiretap was not intended to facilitate any prosecutorial decision or further a criminal investigation. Mitchell himself had disavowed any such intention and insisted that the only reason for the wiretap was to gather intelligence needed for national security purposes. Taking Mitchell at his word in this regard, the court held to its conclusion that he was not entitled to absolute prosecutorial immunity.

At the same time, the court reconsidered its ruling on qualified immunity in light of Harlow v. Fitzgerald, 457 U.S. 800 (1982), in which this Court purged qualified immunity doctrine of its subjective components and held that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable [*21] person would have known." Id., at 818. The District Court rejected Mitchell's argument that under this standard he should be held immune from suit for warrantless national security wiretaps authorized before this Court's decision in Keith: that decision was merely a logical extension of general Fourth Amendment principles and in particular of the ruling in Katz v. United States, 389 U.S. 347 (1967), in which the Court held for the first time that electronic surveillance unaccompanied by physical trespass constituted a search subject to the Fourth Amendment's warrant requirement. Mitchell and the Justice Department, the court suggested, had chosen to "gamble" on the possibility that this Court would create an exception to the warrant requirement if presented with a case involving national security. Having lost the gamble, Mitchell was not entitled to complain of the consequences. n2 The court therefore denied Mitchell's motion for summary judgment, granted Forsyth's motion for summary judgment on the issue of liability, and scheduled further proceedings on the issue of damages. Forsyth v. Kleindienst, 551 F.Supp. 1247 (1982).

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n2 The court also suggested that Mitchell should have been put on notice that his act was unlawful by Title III, which, in its view, clearly proscribed such warrantless wiretaps.

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Mitchell again appealed, contending that the District Court had erred in its rulings on both absolute immunity and qualified immunity. Holding that it possessed jurisdic