In this Note, I argue that the Supreme Court’s litigation-avoidance doctrine—the doctrine that courts should address qualified immunity at the earliest possible stage of litigation—abridges the right to petition. For centuries, petitioners have used the familiar tools of litigation (discovery, subpoenas, admissions, etc.) to develop the facts of their grievance, even when redress would ultimately come from the sovereign. And sovereigns, in turn, relied on courts to weigh in on the legal issues underlying a petitioner’s grievance before deciding whether to grant redress. Litigation, then, was often vital to the petitioning process.
But the Supreme Court’s recent qualified-immunity precedents instruct lower courts to address dispositive immunity issues at the earliest possible stage of litigation—before would-be petitioners have had the chance to develop the full story of their grievance using the tools of litigation.
To be sure, the Court’s insistence on avoiding litigation would undermine the right to petition in any context. But that the Court insists on avoiding litigation in qualified-immunity cases is particularly concerning because, until recently, private petitioning played a central role in redressing wrongs committed by public officials. Below, I argue that, in fact, the Supreme Court’s litigation-avoidance doctrine abridges the right to petition. But first, a bit of table setting.
Qualified immunity is the doctrine under which government officials can be held liable for constitutional violations only if the constitutional right at issue is “clearly established.” [1] First articulated in the 1967 case Pierson v. Ray [2] as a narrow exception to constitutional liability, [3] the doctrine today protects “all but the plainly incompetent or those who knowingly violate the law.” [4]
This change—from qualified immunity as a narrow exception to constitutional liability, to liability as a narrow (and ever-narrower) exception to immunity—happened in the 1980s. In Pierson, the Court at least gestured toward common-law principles of executive-branch immunity, [5] even though most scholars agree that the Court misapplied those principles. [6] But in the 1982 case Harlow v. Fitzgerald, [7] “the Court,” by its own account, “completely reformulated qualified immunity along principles not at all embodied in the common law, replacing the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action.” [8] Now, whatever their subjective intent, government officials are immune from liability so long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” [9] Circuit courts take different positions on what suffices to “clearly establish” a right, [10] but lower courts generally look to “binding case law from the Supreme Court or their own circuit.” [11] For its part, the Court has “not yet decided what precedents—other than [its] own—qualify as controlling authority for purposes of qualified immunity.” [12]
Even after Harlow, though, courts had to first determine whether the defendant had violated the plaintiff’s constitutional rights before determining whether the rights were “clearly established.” [13] This is a fact-dependent inquiry, and so qualified-immunity cases typically required at least limited discovery. [14] But in the 2009 case Pearson v. Callahan, [15] the Court held that lower courts may skip straight to the clearly established inquiry without deciding whether a constitutional violation occurred. [16] So after Pearson, it is at least possible for courts to resolve even the most egregious qualified-immunity cases using little more than Westlaw. Indeed, the more outlandish the facts of the constitutional violation, the less likely it is to be “clearly established.” As Fifth Circuit Judge Don Willett put it: “No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.” [17]
And since reinventing the doctrine in 1982, the Court has emphasized “the need to protect government officials from [the] nonfinancial burdens associated with discovery and trial” [18] as an important policy justification for qualified immunity. As Professor Joanna Schwartz details in a recent study, the Court’s qualified immunity precedents dictate that qualified immunity “should be raised and decided at the earliest possible stage of the litigation (at the motion to dismiss stage if possible), . . . and it should, therefore, protect defendants from the time and distractions associated with discovery and trial . . . .” [19] This “litigation-avoidance” justification was central to the Court’s decision in Harlow, [20] and has been the driving force behind the most significant developments in the qualified immunity landscape. [21]
Over the last two decades, the Court has coalesced around litigation avoidance as the “fundamental” policy justification for qualified immunity, more so, even, than protecting government officers from financial liability. [22] This Note addresses how the litigation-avoidance doctrine undermines the right to petition.
As part of its efforts to police lower courts’ compliance with the litigation-avoidance justification, the Court has increasingly turned to its shadow docket. By its own admission, the Court has used summary reversals several times to rebuke lower courts for proceeding to trial in qualified immunity cases. [23] Since 2007, the Court has summarily reversed a lower court’s refusal to grant qualified immunity in twelve cases. [24] In nine of these cases, the Court summarily reversed not because the plaintiff failed to allege a constitutional violation—in each case it took no stance on this issue—but because it found that the unconstitutionality of the officer’s conduct was not “clearly established.” [25] The message of these summary reversals, which even the Justices view as stinging rebukes, [26] is clear: Lower courts, proceed to discovery or trial at your own peril. [27] Applied consistently, the Court’s logic would leave many victims of constitutional violations not only without a remedy, but without even the opportunity to acquire important evidence through discovery, compel witness depositions, and develop a record. And this is not even counting those who are deterred by the litigation-avoidance justification from bringing suit at all. [28]
Yet despite the Court’s admonitions, trial courts have recognized the difficulty in applying a fact-intensive test at the motion-to-dismiss stage. [29] Circuit courts, too, have recognized that the determination of qualified immunity is usually more appropriate at the summary judgment stage after discovery has been conducted. [30] And other courts, it seems, have taken a Judge Reinhardt approach, [31] relying on the sheer bulk of qualified immunity cases to give them cover. [32] So in Professor Schwartz’s study, qualified immunity was granted at the motion-to-dismiss stage in less than one percent of cases. [33]
Still, lower courts can only dodge, duck, dip, dive, and dodge [34] Court precedents for so long, and some circuit courts are already taking heed of the possibility of being summarily reversed. [35] As Professor Richard Chen argues, “[a]t the same time that summary reversals are failing to dissuade one group of judges, a different set is likely to be overdeterred by the threat of being summarily reversed.” [36] And there is always the possibility that the Court will go from slapping wrists on the shadow docket to issuing a directly on-point merits-docket decision.
So who is right? At what stage of litigation should qualified immunity be applied? Of course, no constitutional imperative dictates at what stage of litigation a judge-made doctrine with no basis in history or the common law should be applied. The decision about when to apply qualified immunity—like the doctrine itself—is, for the most part then, policy all the way down. In this Note, however, I argue that there is at least a factor of constitutional significance favoring applying qualified immunity after discovery or even after trial. In particular, I argue that litigation has historically facilitated the right “to petition the Government for a redress of grievances.” [37]
For centuries, courts have promoted the right to petition by allowing petitioners to develop the facts of their dispute and, in some cases, receive a preliminary determination of factual and legal issues through litigation. In Part I, I survey the history of courts’ role in the petitioning process of England and show that courts were integral to that process. In Part II, I discuss how, in the colonial period, the petitioning process itself came to resemble litigation. And in Part III, I rely on the case of Maley v. Shattuck [38] to show that the Founders saw litigation in the courts as central to the petitioning process.
With this historical backdrop, I argue in Part IV that the Supreme Court’s use of the shadow docket to enforce the litigation-avoidance doctrine undermines the right to petition. Plaintiffs in qualified-immunity cases could establish that the government owes them a “debt,” even if only a “moral” or an “honorary” one. [39] In fact, as recently as 1994, Congress compensated a victim of assault by a federal official after she petitioned for a private bill. [40] Even so, as discussed in Parts I–III, sovereigns have historically required petitioners to go through the rigors of litigation, or a process like it, before they would recognize such debts. Today, would-be petitioners can only turn to courts to administer this process. [41] Encouraging lower courts to “resolv[e] immunity questions at the earliest possible stage in litigation” [42] and punishing them with summary reversals if they do not resolve those questions in favor of the officer, then, undermines the right to petition by denying would-be petitioners the ability to develop the facts and resolve the legal issues of their case.
The Anglo-American tradition of private petitions dates back to the reign of Edward I and has its roots in ensuring government accountability. As Gwilym Dodd exhaustively details, [43] the submission of formal petitions to the Crown and the adoption of procedures for their consideration began in earnest in 1275 as part of “an abrupt and deliberate shift in government policy over a very short period of time.” [44]
Edward I’s decision to invite petitions was a response to the widespread breakdown of the rule of law throughout the country and to rampant abuses by unaccountable royal officials, issues inherited from his father’s reign. [45] Petitions helped preserve the legitimacy of the Crown because the “actions of unscrupulous and unpopular local officials damaged royal prestige and weakened royal authority within local communities.” [46]
But petitions to the king were subject to an important limitation: would-be petitioners had to first exhaust any recourse available in the ordinary common-law courts. In part, this reflects the Crown’s “reluctance to interfere in due legal process” [47] and the “contemporary understanding that parliament should act as the provider of justice only in cases that could not be adequately dealt with in the king’s ordinary common-law courts.” [48] But it also reflects a pragmatic consideration: litigation is inherently useful in developing the facts of a dispute and local courts are uniquely suited to this task. Highlighting the importance of these preliminary proceedings, petitioners would often append court records to their petitions or request that the king and Parliament order the record to be brought before them. I’ve collected a handful of demonstrative examples from the UK National Archives. [49]
Courts, then, served an important role in developing the record of a dispute even when they lacked the authority to provide the ultimate remedy.
As the number of private petitions presented to the king and council increased, so too did the centrality of litigation to the petitioning process—so much so that, by the end of the seventeenth century, courts exercised almost full control over the private petitioning process in claims relating to the Crown’s interests. [50] Even so, the authority of courts was limited in the most important respect: those who received a favorable disposition of their claims in the royal courts still had to petition the king and council for the payment of any judgments against the Crown. So, in these cases, litigation in the royal courts was less an end of itself—after all, few petitioners were interested in declaratory relief—and more so a way to facilitate the right to petition the king.
Eventually, Chancery came to handle petitions seeking justice against the Crown, also called “petitions of right.” [51] Though it was in most other instances a prerogative court, Chancery handled petitions of right on its common-law or “Latin” side. [52] Unlike proceedings on its equity or “English” side, proceedings on the Latin side of Chancery mirrored ordinary litigation. Petitioners had to draw up a complaint, [53] a special Chancery commission investigated the facts, [54] “the king was . . . called on to plead to the questions of law involved,” [55] and then King’s Bench would preside over a jury trial on the fact issues. [56]
Still, while such proceedings may have mirrored ordinary common-law litigation, invoked common-law principles, and resulted in determinations by a jury, the king never surrendered (as a formal matter, at least) his prerogative to disregard judgments he perceived as against his interests. [57] In fact, that petitions of right were handled on the common-law side of Chancery reflects that the king was as immune from self-executing judgments in these cases as in the ordinary common-law courts. [58]
Perhaps no single case better reflects the penultimate role of litigation in the process of securing extraordinary relief through petitioning than the Bankers Case. [59] In that case, “a group of creditors who had lent money to Charles II several decades earlier sought to recoup the nominal value of their debts plus interest from the Crown.” [60] The case is notable because, rather than pursue a petition of right in a prerogative court, the creditors brought their suit in the Court of Exchequer, a common-law court with jurisdiction over money claims. [61] The Attorney General demurred to the petition in Exchequer, which entered judgment for the bankers, and then brought a writ of error in the Exchequer Chamber, a sort-of appeals court with jurisdiction over writs of error from Exchequer. [62] Accordingly, the case presented two issues: “first, whether the King’s debts could be binding on his successors, and second, whether a suit in the Court of Exchequer was the proper method for obtaining redress.” [63]
The Exchequer Chamber fractured on these issues. Two of the three judges—Treby and Holt—believed that the king’s debts could bind his successors. [64] The third judge, Somers, thought it unnecessary to decide this issue. [65] He “contended that the proper remedy for the bankers was a petition of right to the Crown, not a petition to the barons of the Exchequer, for the barons had no independent authority to grant relief.” [66] Judge Treby agreed. [67] Ultimately, “[b]ecause the offices of Lord Chancellor and Lord Treasurer were both vacant in 1696, the Lord Keeper [Somers] was empowered to render judgment alone.” [68] Somers—who, again, thought that the proper remedy was a petition of right—ruled against the bankers with the proviso that this was “meerly [sic] upon his own opinion.” [69]
The bankers then “brought a writ of error to the House of Lords.” [70] Sitting in its capacity as England’s highest court, the House of Lords reversed “Somers’s judgment in the Exchequer Chamber.” [71] Rather than the petition of right, then, the House of Lords endorsed the bankers’ suit in the common-law Court of Exchequer as the appropriate vehicle for seeking relief in money claims against the Crown. The case remains damning evidence against any theory of legal, rather than structural, sovereign immunity existing at the beginning of the eighteenth century. [72]
Parliament, however, had seized control of the Crown’s hereditary revenue—the source of funds for satisfying the bankers’ judgment. [73] So, because Parliament has plenary discretion over how to discharge the nation’s many debts, the relief Exchequer afforded in the Bankers Case was inherently declaratory. [74] Indeed, the Barons of the Exchequer recognized as much when they limited the bankers’ relief to revenue “not otherwise disposed of or applied by Act of Parliament.” [75] After receiving the judgment, the bankers still had to present their claims before Parliament. [76] Ultimately, they fared poorly: five years after the Exchequer’s judgment, the bankers received three percent annuities instead of the six percent they had been promised, and they agreed that their claim on the capital sum would be extinguished once half had been paid. [77]
The Bankers Case is noteworthy for three reasons. First, the litigation helped clarify the legal rights of the parties and the obligations of the government. It was not obvious that Charles II’s grant of annuities would be binding on his successors. [78] Without this issue resolved in their favor, the bankers would have been left with a meaningless claim against a dead king’s hereditary revenue, as they had been in 1685. [79] Second, the Barons of the Exchequer were perfectly comfortable declaring that the government owed the bankers a debt—even a legal one—while also recognizing Parliament’s plenary control over how that debt would be discharged, if at all. By limiting the bankers’ relief to revenues “not otherwise disposed of or applied by Act of Parliament,” [80] the Barons of the Exchequer—who, as Britain’s treasurers, were aware of the many debts left over from the Nine Years’ War—were implicitly recognizing the structural limitations of judgments against the government. And third, for all the sound and fury surrounding the Bankers Case, which began in 1665, [81] it was litigation in an ordinary common-law court that ultimately persuaded Parliament to provide at least some relief. After all, the bankers had unsuccessfully petitioned Parliament several times before. [82] With this background, the parallels between the Bankers’ Case and Maley v. Shattuck, discussed in Part III, are unmistakable. And in neither case did the court wring its hands about the fact that the legislative branch would have discretion over how, if at all, the court’s judgment would be executed.
In the American Colonies, colonial assemblies exercised both legislative and judicial functions. [83] In part, this was because the bureaucratic demands of administering justice in the colonies “outstripped the ability of both local and imperial institutions to render effective government.” [84] But it also reflects that colonial assemblies saw the adjudication of private disputes as an important tool for expanding their jurisdiction vis-à-vis the Crown. [85] Whatever the reason, the petitioning process in the colonial assemblies—more so than in any other tradition of petitioning—came to resemble the process of litigation. [86] Accordingly, because colonial assemblies themselves had the tools and institutional competencies necessary to develop the factual record of disputes and provide adjudication, there is less evidence of reliance on preliminary litigation in courts in the colonial tradition. Even so, colonial petitioning demonstrates the importance of a litigation-like process of discovery, fact-finding, and adjudication to the right to petition.
“Most petitions in the early colonies involved private disputes that the assemblies, acting in a quasi-judicial capacity, would investigate and resolve.” [87] As in England, most of the investigatory and administrative work was delegated to committees instituted to handle petitions. [88] And like Chancery and the prerogative courts in England, these committees possessed the full suite of tools for the investigation of disputes. As Raymond Bailey, in the only book-length treatment of colonial petitioning, recounts:
Committees possessed the necessary powers to conduct thorough investigations: they could subpoena witnesses, papers, and records; testimony could be accepted through depositions; witnesses were privileged from arrest while in transit and compensated for their expenses; legal counsel could be employed by the petitioners or by other interested parties; the house consistently promised to act “with the utmost severity” against anyone who should “tamper with any witness” or hinder the collection of evidence, and this promise was enforced when necessary. [89]
And even the process of receiving petitions “reflected the judicial character of petition consideration.” [90] Petitioners had to provide proper notice, summons, and copies of the petition to concerned parties, amounts-in-controversy requirements were eventually imposed, and petitions eventually even received docket numbers. [91] In short, the petitioning process in the colonial assemblies was often indistinguishable from ordinary litigation, with many of the same investigatory tools and procedural due process safeguards.
And if colonial assemblies were already inclined toward full investigation and fair hearing in disputes between private parties, they were even more so inclined when petitioners claimed a debt from the public fisc. Professor Christine Desan exhaustively describes this process, [92] but it is worth summarizing here. To begin, Professor Desan notes that “[t]he procedures that the [New York assembly] adopted when it began resolving public claims reinforce the impression that participants identified legality, as opposed to assertions of will or dispensations of grace, as the goal of assembly deliberations.” [93] This “suggest[s] that the assembly approached its duty as an adjudication that would turn on fact-finding and the existence of obligation.” [94]
The process began with the creation of a public claim, typically when an agent of the assembly purchased (or sometimes commandeered) some necessity from a colonist. [95] In exchange, the agent would issue a warrant payable by the treasurer describing the nature of the transaction. [96] If for whatever reason this warrant was not paid by the treasurer, colonists would bring their warrant to assembly-appointed commissioners who “had authority ‘to Receive, Examine and State the several Claims alleged as Debts of the Government.’” [97] The commissioners had the duty to “‘discover[] the truth of such Debts’ including ‘how they came to be Contracted.’” [98] And they “were armed accordingly, with the authority to subpoena ‘persons, papers and Records’ and to administer oaths as necessary.” [99]
After receiving the commissioners’ reports, the assembly itself “evidently examined and resettled each claim.” [100] It did so in a committee of the whole with “rules imply[ing] that the House undertook a substantive review.” [101] And as Desan notes, “[s]everal factors indicate that the House seriously weighed the evidence before it.” [102] Petitioners were required to take oaths swearing that they had not received payment before the claim was heard and upon receiving payment, and they “could be sued (qui tam) if they took the oath falsely.” [103] The committee defended its work to outside parties as based on a “long examination of the particular accounts.” [104] And in many cases, “claims were reduced, an indication in itself that the House made some affirmative effort to assess value.” [105]
The process of public-claims adjudication Desan describes reveals a particular insistence that petitions be factually supported and fully investigated when the petitioner’s relief draws on the public fisc. This was certainly true, as just described, where petitioners claimed a legal obligation, but the assembly expected even petitions claiming equitable relief or a gratuity to be well supported and substantially justified. [106]
The petition process in the colonial period relied less on courts as fact-finders and preliminary adjudicators than did the processes in England and the early American republic. [107] But this was not because litigation and adjudication were no longer required to handle petitions. Rather, the colonial petition process itself came to incorporate many tools of litigation, and colonial assemblies developed the institutional competence to adjudicate many of the factual and legal issues that would have normally been the purview of courts. In all cases, but particularly when relief drew on the public fisc, colonial assemblies insisted on a full factual record and claims justified by principles of law or equity. Put another way: denying petitioners access to a means of developing the factual record and establishing the legal or equitable validity of their claim would have been effectively denying them their right to petition for redress entirely. Colonial petitioning, then, demonstrates the importance of a litigation-like process of discovery, fact-finding, and adjudication to the right to petition.
After the period of “legislative adjudication” [108] described above, courts resumed their role as fact-finders and preliminary adjudicators in the early republic era, at least at the federal level. [109] In the seminal paper on this topic, Public Wrongs and Private Bills, James Pfander and Jonathan Hunt describe the Supreme Court as a knowing participant in a system of nonadversarial litigation intended to develop a factual record and adjudicate legal issues in disputes ultimately destined for relief through the congressional petitioning process. [110] Though Pfander and Hunt’s paper focuses on how the political branches used the petition process to “shape the incentives of government officers to comply with the law,” [111] the cases they discuss paint a compelling picture of how the judicial branch used its core institutional competency—the process of litigation and adjudication—to facilitate the right to petition. I will discuss only the most demonstrative case, Maley v. Shattuck, in this Note.
By 1789, “[l]eading thinkers of the day agreed that, from the perspective of the separation of government powers, the task of adjudicating money claims against the government was one that the courts should perform.” [112] Even so, the theory of separation of powers had to contend with the well-established practice of legislative adjudication described in Part II. After independence, states experimented with various models, some continuing the practice of legislative adjudication, some providing for government suability in the regular courts, and still others adopting a more-or-less hybrid model. [113] The Constitution reflects this same ambivalence, with provisions that “authorize, but do not necessarily require, Congress to assign the adjudication of money claims to the federal courts.” [114]
Enter James Madison. In the “Quasi-War” between the United States and the French First Republic, several Danish ships were caught in the crossfire, seized by American naval officers who suspected them of being American smugglers using Danish papers to evade the trade embargo with France. [115] This led to a minor diplomatic crisis, with Danish officials interceding on behalf of the dispossessed ship captains to request compensation for their losses. [116] In particular, the Danish resident minister, Peder Blicherolsen, began corresponding with then-Secretary of State James Madison in 1802, requesting that a method “of adjudicating [the] issue be agreed upon.” [117]
In response, Madison struck (another) compromise, balancing “the role of the federal courts in adjudicating claims of liability and the role of Congress in making any appropriation of funds to pay the claims.” [118] Madison recognized that “general usage requires that redress should be first prosecuted judicially,” but also that the cases might give rise to an “obligation[] of the United States” [119] —a telling admission, for the cases were nominally to proceed against the American naval officers.
Inquiries from the Attorney General, Levi Lincoln, soon “confirmed Madison’s view about the need for adjudication” in these cases. [120] In response to a request from Madison for an opinion of the Attorney General relating to the case involving the seizure of the Danish vessel Mercator by Captain William Maley, Lincoln first pointed out the threadbare factual record. [121] He then questioned whether Maley himself would even be liable, given that the ultimate condemnation of the vessel was pursuant to a British prize claim. [122] Finally, even “admitting [Maley] liable,” Lincoln could “find no principle of the law of nations, or adjudication, by which the government is bound to answer in the first instance for the unlawful captures of its subjects, or become so from their insolvency or avoidance.” [123] Clearly, then, there were factual and legal issues in the case that needed preliminary adjudication.
“Following his receipt of Lincoln’s opinion, Madison made arrangements to secure a judicial determination of Shattuck’s [the Danish ship captain] claim against Maley.” [124] Madison wrote a tactful letter to Blicherolsen, explaining that “Shattuck’s claim could not be adjusted without a prior judicial investigation.” [125] “Such an adjudication would enable the government to determine the circumstances surrounding the seizure” and could help resolve the legal issues raised in Lincoln’s opinion. [126] Madison also recommended to Blicherolsen that—oh, by the by—it might be a good idea to address how the United States, “distinct from the conduct of Captain Maley,” would still be liable for the loss of the ship given the potentially supervening intervention of the British. [127] After all, Madison intimated, “it may be made an eventual question.” [128]
Madison then arranged for the amicable suit of Shattuck v. Maley (read: Blicherolsen v. United States). Blicherolsen chose the forum closest to his own residence, the District Court of Pennsylvania, as the venue for the suit. [129] And Madison arranged for Alexander Dallas, the U.S. Attorney for the District of Pennsylvania, to appear “in behalf of Captn. Maley; in whose defence the United States are interested.” [130] Dallas’s intercession might have also had something to do with the fact that Maley, the nominal defendant, “was both absent from the country and presumed insolvent.” [131]
With a mostly unexplained delay of two years, [132] the suit got underway. Shattuck apparently lost at first in the district court, but then appealed to the circuit court, which “reversed the decree of the district court.” [133] The court “overruled and rejected the protest of Maley, and ordered him to appear absolutely without protest, before the district court.” [134] The circuit court, it seems, was unaware of its role in Madison’s carefully orchestrated judicial theater.
On remand, the district court entered judgment for Shattuck, who claimed that his total loss amounted to $41,658.67 [135] —slightly more than a million dollars in today’s money if the online inflation adjuster is to be believed. [136] But “Maley” (Dallas) excepted to this figure on several bases, and, on appeal, the circuit court ultimately adjusted the figure down to $33,244.67 with costs. [137] Dallas appealed this judgment to the Supreme Court, which took the case to resolve three questions: “Was the capture lawful? . . . Was there probable cause? . . . [And] whether, upon the appeal of Shattuck, the sentence of the district court ought not to be affirmed, as to the items excepted by the counsel for Maley[?]” [138]
In delivering the opinion of the Court, Marshall treated the first two questions “as essentially governed by prior decisions.” [139] The Court had decided almost identical issues in the Charming Betsy case, and it was not going to rehash them here. [140] Even still, the Court had a few quibbles with how the circuit court had adjusted the damages award, remarking that “in so much of the report of the commissioners appointed to adjust the account as is affirmed, some unimportant inaccuracies appear.” [141] The Court held that, contra the circuit court, the expenses associated with outfitting the vessel and paying the crew should have been allowed, while the costs associated with Shattuck’s prior efforts at petitioning Congress and the British government should have been disallowed. [142] The parties then entered into an agreement that the final damages award with these adjustments accounted for would be $33,864.55. [143]
Given the absent and insolvent Maley, “Shattuck, acting with the assistance of Danish agents, sought compensation from Congress a short time later.” [144] Yet for reasons that we can only speculate about, “his private bill did not become law until February 1813, some seven years after the Court’s decision and thirteen years after his loss.” [145]
And while Pfander and Hunt do not dwell on the details of the Act, they are of central importance. Congress awarded Shattuck $33,864.55 plus interest accrued since the Supreme Court’s decision in his favor. [146] This figure is critical, because it is, in one sense, entirely arbitrary. Remember, the district court had entered judgment in Shattuck’s favor for $41,658; in the circuit court, this figure was adjusted down to $33,244; and after the Supreme Court’s decision in the case, the parties’ attorneys agreed that the final amount was $33,864.55. And in most of the cases collected by Pfander and Hunt, it is the federal officer who petitions Congress to indemnify them against a judgment that they have already paid or will have to pay. Here, however, it is Shattuck, not Maley, who petitions Congress. Finally, everyone involved agreed that this judgment was not legally binding on the United States; relief was granted as a matter of “practice.” [147]
Given, then, (1) that there was some reasonable disagreement as to the amount of damages, (2) that the relief requested was not remuneration for sums already paid, and (3) that Shattuck was asking for relief as a matter of grace, not entitlement, the point is this: there is nothing to commend the figure of $33,864.55 other than that it was the final result of a long process of fact-finding and legal adjudication by Article III courts. Shattuck could have asked for more; Congress could have insisted on less. Instead, all parties agreed that the results of litigation were the appropriate measure of relief. This shows how both petitioners and the petitioned often relied on courts to determine what the parties’ legal rights were and whether and to what extent they were infringed—the exact questions today’s federal courts mostly refuse to answer in § 1983 cases because of the modern qualified-immunity doctrine.
In Maley v. Shattuck, “[t]he government, through James Madison, arranged an amicable proceeding in which Maley appeared as a nominal defendant to facilitate a judicial test of Shattuck’s legal claims.” [148] And Shattuck could not have effectively exercised his right to petition without this judicial test. As Pfander and Hunt recount, “Shattuck could presumably have obtained a default judgment against Maley, but the government doubtless would have declined to pay such a judgment without a judicial investigation of Maley’s defenses.” [149] Further, “[n]o one appears to have been offended by the thin formality of this model.” [150] That is, “Madison issued the order that authorized the litigation, Dallas . . . [conveyed] that the proceeding was an amicable one, and the presiding courts proceeded to enter judgment as if Maley were really before the court.” [151]
And perhaps most importantly, there was no pearl-clutching about whether the litigation transgressed the limitations Article III purportedly imposes on the exercise of the judicial power. As Pfander and Hunt remark:
[T]he case presented the whole gamut of judicial power issues: It did not involve proper parties but was brought to determine the interests of the United States; it was subject to a measure of congressional revision (at least to the extent that Congress chose not to pay Shattuck by private bill); and the judgment, unenforceable either against Maley or the United States by writs of execution, could have been regarded as an advisory opinion. Notwithstanding these difficulties, federal courts heard the case and resolved it on the merits. They did so, moreover, without suggesting that Article III posed a problem. [152]
The case paints a compelling picture of litigation’s role in the petition process, relying as it did on the parties—Maley and Shattuck nominally, but Dallas and Blicherolsen in truth—to adduce facts and present legal arguments, and on courts to resolve factual disputes and adjudicate legal issues. And ultimately, though this was by no means a given, both Shattuck and Congress took the results of litigation as determinative of their claims and obligations, respectively. The case, then, serves as the model for how courts can facilitate the right to petition for redress by simply doing their job. [153]
Against this historical backdrop, the Supreme Court’s insistence that lower courts “resolv[e] immunity questions at the earliest possible stage in litigation,” [154] and its practice of summarily reversing those that do not, undermine the right to petition. Even in 1991, the Court, in a merits decision scolding the Ninth Circuit, reminded lower courts that it had “repeatedly . . . stressed” the importance of deciding immunity questions as early as possible. [155] Since then, rather than waste a merits decision on little more than knuckle-rapping, the Court has increasingly turned to summary reversals to rebuke lower courts for proceeding too far in qualified immunity cases. [156] But before further discussing this trend and how it impacts the right to petition, it is worth situating these summary reversals in the Supreme Court’s modern history with qualified immunity generally.
Since Harlow, the Supreme Court has addressed the clearly established test of qualified immunity thirty-six times. [157] “It has only found that a government official violated clearly established law three times,” [158] and only one of these cases, Taylor v. Riojas, [159] was decided within the last fifteen years. [160] But more important than the raw numbers showing what the Court has done in recent qualified-immunity cases, stark as they are, is what the Court has said in recent cases. As Professor Kit Kinports writes, the Court has “made a sub silentio assault on constitutional tort suits” in its recent qualified-immunity cases. [161] That is, “[i]n a number of recent rulings, the Court has engaged in a pattern of covertly broadening the [qualified-immunity] defense, describing it in increasingly generous terms and inexplicably adding qualifiers to precedent that then take on a life of their own.” [162] And so, “without offering any explanation, and without even acknowledging it is doing so,” the Court has “broadened the protection qualified immunity offers government officials in § 1983 litigation.” [163]
Part of this trend has been the use of summary reversals to enforce the litigation-avoidance doctrine. Since 2007, the Court has summarily reversed a lower court’s refusal to grant qualified immunity in twelve cases. [164] In the 2017 case White v. Pauly, the Court acknowledged that these summary reversals were, in part, due to lower courts proceeding too far in qualified immunity cases. [165] As the Court stated, “In the last five years, this Court has issued a number of opinions reversing federal courts in qualified immunity cases. . . . [This is] because as ‘an immunity from suit,’ qualified immunity ‘is effectively lost if a case is erroneously permitted to go to trial.’” [166] After that warning shot, the Court issued five more summary reversals in qualified immunity cases, including two in 2021 alone. [167]
And while “summary disposition[s] do[] not enjoy the full precedential value” of a merits opinion, [168] there is reason to think that these decisions will influence lower court judges, who, so far, have been reluctant to apply qualified immunity at the motion-to-dismiss stage. [169] Professor Richard Chen has noted that these decisions have more reasoning than most summary reversals [170] —they certainly have more words. Likewise, the Court’s 2021 summary reversals, Cortesluna [171] and City of Tahlequah, [172] have already been cited in hundreds of lower court opinions. [173] And in the recent case of Salazar v. Molina, [174] the Fifth Circuit cited the two “strongly worded summary reversals” in a decision reversing a trial court’s denial of qualified immunity. [175] The Supreme Court then denied cert in the case. [176] Professor Chen also notes that some judges, such as those who “believe that being summarily reversed harms their reputations,” are “likely to be overdeterred by the threat of being summarily reversed” and “grant qualified immunity at every opportunity.” [177]
So what would strict adherence to the Court’s litigation-avoidance rationale look like and how would it impact the right to petition in qualified immunity cases? One recent case offers a view through the looking glass. Hernandez v. Mesa [178] was a cross-border shooting case raising Bivens and qualified immunity issues. Though the case actually involved quite a lot of litigation, [179] it proceeded entirely at the motion-to-dismiss stage without any discovery. So at the end of nearly ten years of litigation, the plaintiffs were in no better a position to petition Congress for private relief than when they started.
The facts of the case as alleged in the plaintiff’s complaint are that on June 7, 2010, Sergio Adrián Hernández Güereca, a fifteen-year-old Mexican national, was playing a game with his friends that involved “run[ning] up and touch[ing] the barbed-wire United States high fence, and then scamper[ing] back down the incline.” [180] United States Border Agent Jesus Mesa, Jr. then appeared and detained one of Sergio’s friends, at which point “Sergio retreated and stood still beneath the pillars of the Paso del Norte Bridge . . . .” [181] Mesa “then stopped, pointed his weapon across the border, seemingly taking careful aim, and squeezed the trigger at least twice.” [182] “Sergio, who had been standing safely and legally on his native soil of Mexico, unarmed and unthreatening, lay dead . . . .” [183]
The government contested this version of the shooting. Shortly after the shooting, a spokeswoman for the FBI stated that Sergio and his friends had “surrounded the agent and continued to throw rocks at him.” [184] Yet cellphone footage of the event seemed to disprove this claim. [185] And in 2012, the Justice Department released a statement claiming that the shooting had “occurred while smugglers attempting an illegal border crossing hurled rocks from close range.” [186] The report noted that after a “comprehensive and thorough investigation,” the Department felt that there was “insufficient evidence to pursue federal criminal charges” and also that “no federal civil rights charges could be pursued in this matter.” [187] But the full factual findings of the report—the witness testimony, 911 recordings, video footage, etc.—were not released. Against this account, the family responded that the cellphone footage of the event showed that Sergio was hiding behind a trestle underneath the Paso del Norte bridge and was not among those throwing rocks. [188]
Besides the circumstances of the shooting, there were several other factual issues. One scholar reports that Border Patrol agents had “developed an ‘unofficial’ policy of responding [to rock throwing] with the use of deadly force ‘instead of taking cover or calling for backup.’” [189] There were also allegations that the Department of Justice and Border Patrol had cooperated to “conceal the facts surrounding the death of Sergio Hernández.” [190] Further, as Justice Breyer alluded to in his 2017 dissent, there were complicated, fact-dependent jurisdictional issues about who had jurisdiction over the “limitrophe” area where the shooting took place. [191]
Sergio’s parents sued in the Western District of Texas, bringing statutory claims against the United States and Bivens claims against Mesa and his supervisors alleging Fourth and Fifth Amendment violations. The trial court granted a motion to dismiss the claims against the United States, severed the parents’ Bivens claims, and granted the parents leave to amend their complaint. [192] On a motion to dismiss the amended complaint, the trial court held that “excessive force claims should be analyzed only under the Fourth Amendment,” [193] and so dismissed the Fifth Amendment claim, and then dismissed the Fourth Amendment claim because of alienage. [194] The court also dismissed the claims against Mesa and his supervisors. [195]
Sergio’s parents appealed these orders to the Fifth Circuit. There, a three-judge panel affirmed the trial court’s dismissal of the Fourth Amendment claim against Mesa. [196] But the court held that the parents could “assert a Fifth Amendment claim against Agent Mesa and that they ha[d] alleged sufficient facts to overcome qualified immunity.” [197] Next, the Fifth Circuit, sitting en banc, affirmed the dismissal of the Fourth Amendment claim but reversed the three-judge panel and held that Mesa was entitled to qualified immunity because the law of cross-border shootings was not clearly established. [198]
From this, Sergio’s parents appealed to the Supreme Court. In a 5–3 per curiam opinion, [199] the Court first chastised the Fifth Circuit for resolving the “sensitive” question of the Fourth Amendment’s extraterritorial application without resolving the “antecedent” question of whether a Bivens claim even existed in the case. [200] Next, it held that the Fifth Circuit should consider whether a Bivens claim existed for the Fourth Amendment violation under Abbasi. [201] Finally, the Court held that the Fifth Circuit had impermissibly granted qualified immunity on the basis of facts not known to the officer at the time. [202] The Court therefore vacated the Fifth Circuit’s en banc decision and remanded the case. [203]
On remand, the Fifth Circuit, again sitting en banc, refused to recognize a Bivens action for either the Fourth or Fifth Amendment claim. [204] The case went back to the Supreme Court, which affirmed 5–4 the Fifth Circuit’s refusal to recognize a Bivens claim. [205] As noted in Justice Ginsburg’s dissent, the nearly ten-year litigation had proceeded entirely at the motion-to-dismiss stage, without the opportunity for discovery and with only the facts as alleged in the complaint. [206]
Hernandez is a sobering example of how “resolving immunity questions at the earliest possible stage in litigation” [207] undermines the right to petition. Historically, foreign citizens injured by the actions of federal officials would have been able to petition Congress for relief. [208] But throughout the history of petitioning, sovereigns would not grant relief if the facts of a disputed case had not been fully developed. [209] This factual development came through actual litigation or through a petitioning process that approximated litigation. [210] Denying would-be petitioners the process of discovery and litigation in disputed cases, then, amounts to denying them the effective exercise of the right at all.
Hernandez fits this bill. As discussed above, the circumstances of the shooting were hotly contested, and the case raised complicated jurisdictional questions. Yet despite nearly ten years of litigation, none of these issues were resolved because the case was dismissed on immunity grounds before it even proceeded to discovery. “[R]esolving [the] immunity questions” in Hernandez “at the earliest possible stage in litigation,” [211] then, undermined any chance the Hernándezes might have had at petitioning Congress for redress. If lower courts take heed of the Court’s summary reversals and begin routinely dismissing qualified immunity cases before discovery, others will be similarly left without meaningful recourse to the petition process.
To finally address the elephant in the room: yes, private petitioning today is, for the most part, a constitutional vestige, a “kiwi’s wing” left over in the United States’ evolution from agrarian, coastal commonwealth to industrial, continental nation. From a peak in the 1830s and 1840s, the number of petitions submitted to Congress per capita has, with a few exceptions, steadily declined. [212] The only historical counterpose to this broader trend was tort claims against the government, which continued to number in the thousands well into the twentieth century. [213] But after jurisdiction over most tort claims was transferred to the federal courts in 1946 with the passage of the FTCA, [214] “the petition volume in Congress dropped to near-zero levels, where it has remained until modern day.” [215] And the private bills enacted to provide redress for petitioners—which had accounted for nearly half of all laws passed by Congress up to 2007 [216] —have likewise faded from prominence. Since 2007, Congress has enacted only four private bills. [217]
Since then, efforts to obtain relief against the government through petitioning and private bills have been comparatively rare. But a few post-FTCA examples suggest Congress’s continued willingness to provide relief for plaintiffs frustrated by immunity doctrines.
A 1994 private bill provided relief for Master Sergeant James B. Stanley, [218] who lends his name to the Supreme Court case United States v. Stanley. [219] Stanley had been “secretly administered doses of lysergic acid diethylamide (LSD), pursuant to an Army plan to study the effects of the drug on human subjects.” [220] The LSD caused Stanley to experience violent psychotic episodes that led to his premature discharge and the dissolution of his marriage. [221] Stanley brought FTCA claims against the United States and Bivens claims against the government officials involved. [222] The Eleventh Circuit affirmed the viability of Stanley’s Bivens claims and reinstated his FTCA claims, which had been dismissed by the district court under the Feres doctrine. [223] The Supreme Court then vacated the Eleventh Circuit’s opinion with respect to the FTCA claims, finding the reinstatement of the FTCA claims “astonishing,” and reversed on the Bivens claims. [224]
Stanley did not accept defeat. Instead, he turned to Congress for relief, petitioning for a private bill to redress his grievances. After unsuccessful attempts to get relief from the 101st and 102nd Congresses, Stanley managed to secure a private bill in the 103rd. [225] The bill provided Stanley $400,577 “to compensate [him] for the physical, psychological, and economic injuries sustained by him as a result of the administration to him, without his knowledge, of [LSD] by United States Army personnel in 1958.” [226]
The success of Stanley’s petition was directly influenced by the prior litigation of his claims. In the Judiciary Committee report accompanying the bill, the Committee notes that “[t]he court record indicated that Mr. Stanley would occasionally ‘awake from sleep at night and, without reason, violently beat his wife and children, later being unable to recall the entire incident.’” [227]
A similar sequence of events occurred with the claim of Melissa Johnson. As a House Judiciary Committee report details, “On June 3, 1982, and various dates prior thereto, Melissa Johnson, then six years old, was molested and sexually abused by a [USPS] employee, a letter carrier by the name of Luis Ojeda . . . .” [228] Melissa’s mother brought suit under the FTCA, but the district court dismissed the claims, finding that the mother had failed to allege the requisite facts in her administrative claim to the USPS and so was barred from bringing a federal suit under the FTCA’s presentment requirement. [229] On appeal, the Second Circuit reversed on the presentment issue, but held that the claims were still barred because they “‘ar[ose] out of’ assault [or] battery” and were thus not actionable under the FTCA. [230]
At the same time, Johnson sought relief in Congress, with the earliest bill granting her daughter relief proposed in 1985. [231] While her court claim was still pending, more bills were presented in the 100th, 101st, and 102nd Congresses before she ultimately found success with a bill passed by the 103rd Congress. [232] Here again, the prior litigation significantly impacted Johnson’s ability to successfully petition for relief. The House Judiciary Committee report described at length the course of litigation in the district and circuit courts. [233] In particular, the Committee Report noted that “[t]he [Second Circuit] said that the Johnsons did not provide sufficient facts indicating that Ojeda had committed past offenses or manifested previous aberrant behavior that his employers should have detected.” [234] The Committee disagreed. It found that “the facts in this case . . . support the conclusion that Ojeda’s supervisors at the U.S. Postal Service knew of his prior record involving similar incidents of this nature.” [235] Congress apparently agreed, because it passed a bill appropriating $125,000 for Melissa’s relief to be deposited in a trust. [236]
The centrality of litigation to Melissa Johnson’s successful petition for relief is perhaps best demonstrated by a letter of then-Assistant Attorney General John Bolton to the Chairman of the Judiciary Committee. [237] Bolton notes that “when this bill was considered during the last Congress,” Johnson’s “suit against the United States under the Federal Tort Claims Act was pending.” [238] He then references a 1986 DOJ letter submitted in response to the proposed 1985 bill in which the Department expressed that it “felt that the bill was premature in light of the then pending litigation.” [239] Accordingly, Johnson could not secure relief until after the federal courts had fully adjudicated the legal and factual issues in her case.
True, Stanley and Johnson are rare birds: petitioners with extremely compelling claims of government abuse who were able to secure relief from Congress—where so many others have failed. But the private bills passed to redress their grievances show that Congress can still play a role in providing relief to those frustrated by immunity doctrines. Stanley and Johnson’s claims also demonstrate the enduring importance of litigation in the modern-day petition process. In both cases, the committee reports recommending passage of the private bills relied on the facts and legal theories developed in the courts.
And even if the prospect of a plaintiff eventually petitioning Congress for relief were wholly speculative, it would be no different than the other considerations that factor into the qualified-immunity doctrine. Despite some recent suggestions to the contrary, [240] the doctrine has no basis in the common law. [241] The original policy justification—sparing officers from ruinous individual liability—was always and remains a canard (in fact, successful petitioners are hardly rarer than nonindemnified officers). [242] And as Hernandez aptly demonstrates, in many cases the burdens of litigation are actually increased by immunity doctrines as the parties sometimes spend years litigating about whether to litigate. [243] Further, the Court’s concerns that lawsuits may “deter[] . . . able citizens from acceptance of public office” and “dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties,” [244] have not been borne out. [245] Finally, the clearly established test for determining when officers have been put on notice relies on the frankly risible image of police officers leafing through the pages of the federal reporter in their spare time.
Among these mostly speculative and decidedly policy-based considerations, the role of courts in facilitating “the right to petition the Government for a redress of grievances” at least adds a consideration of constitutional dimensions. As the history presented in Parts I–III demonstrates, sovereigns have generally insisted that would-be petitioners develop their claims through the rigors of litigation or a process quite like it before seeking redress from the public fisc. So, by simply exercising their core institutional competencies of fact-finding and adjudication, courts can facilitate the right to petition. Conversely, by shirking this role, as the Supreme Court’s summary reversals on the shadow docket have increasingly encouraged lower courts to do, courts undermine the right to petition.