Petition for Writ of Certiorari — Farsaci v. Bush

.

Supreme Court, U.S.

91-1277 rites oe

7 FFR 4 1992

OFFICE OF THE CLERK

In the

Supreme Court of the United States

OCTOBER TERM, 1991

STEVEN FARSACI, INDIVIDUALLY AND ON BEHALF

OF ALL OTHERS SIMILIARLY SITUATED,

PETITIONER,

ve

GEORGE BUSH,

AS PRESIDENT OF THE UNITED STATES,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THI

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

PETITION FOR WRIT OF CERTIORARI

STEVEN FARSACI

Pro Se, Attorney ot Record

c/o VALERIANO DIVIACCHI

220 N Harvard Street,

Boston, Massachusetts 02134

(617) 843-9538

February 3, 1992

H rMAN A 1 ATH

QUESTIONS PRESENTED

Lh. In reviewing a Motion To Dismiss as moot

a complaint alleging a violation of Fifth

Amendment Due Process, must a Court consider

whether the dispute raises a genuine factual

issue as to mootness which therefore precludes

dismissal of the Complaint?

as Is jurisdiction of a moot class action

dispute maintained if it is "Capable of

repetition, yet evading review" as this

principle is delineated in Super Tire

Engineering Co. vy. McCorkle, 416 U.S. 115

(1974), without need of satisfying the dicta

of Richmond Newspapers Inc., v. Virginia, 448

U.S. 555 (1980), commenting that the reviewed

dispute was "short-lived by nature," or the

principles of Weinstein v. Bradford, 423 U.S.

147 (1975), cases that were specifically

decided as applying only in the absence of a

class action?

3. Do genuine issues of material fact

challenging the President of United States'

Claim for his Office of the right to declare

war survive a Motion to Dismiss despite the

reality of modern warfare that allows that

Office to act so quickly that war is already a

completed fact before there can be judicial

review?

TABLE OF CONTENTS

REFERENCE TO COURT OPINIONS............0cc00. 1

GROUNDS FOR JURISDICTION. ....ccccccsccccccece 2

CONSTITUTIONAL PROVISIONS.....ccccccccccccces 3

ewes COP SUE CAGE. iis cc ew crccbwceccscces 4

i Se ea ee 14

I.

if.

ee &

THE MATERIAL ALLEGATIONS OF

PETITIONER FARSACI'S CAUSE OF

ACTION STATE A CLEAR VIOLATION

OF THE DUE PROCESS REQUIRED FOR

A DECLARATION OF WAR......ccccccccccs ze

THE COURT OF APPEALS MISAPPREHENDED

THE “CAPABLE OF REPETITION, YET

EVADING REVIEW" DOCTRINE AND IN

CLEAR ERROR APPLIED AN INCORRECT

STANDARD OF REVIEW TO THE DISMISSAL

OF THE PETITIONER'S COMPLAINT........ 25

BY FAILING TO APPLY PROPER

STANDARDS OF REVIEW, THE DISMISSAL

OF THE PETITIONER'S COMPLAINT AS

MOOT SETS PRECEDENT STRIKING FROM

JUDICIAL REVIEW BECAUSE OF THE ABRUPT

NATURE OF MODERN WARFARE A CLEAR

VIOLATION OF DUE PROCESS PROTECTION

ABROGATING THE DEFENDANT'S CLAIM OF.

RIGHT FOR HIS OFFICE TO DECLARE WAR. .29

eA hae. esd 6 6 ae bens 8% & a Chale ead war 36

eh at an kk ee 6b 0 6 0 4 644 6 es was uw A-8

ORDER AND DECISION DENYING

co SE i A-10

TABLE OF AUTHORITIES

CASES PAGE

Abbot Laboratories v. Gardner, 287 U.S.

“ERE TAGE Ein ns an canewesans eek eels 6 Sees a 33

Baker v. Carr, 369 U.S. 196 (1962).....20, 21

Blum v. Yaretsky, 457 U.S. 991 (1982)...... 22

Bowsher v. Synar, 478 U.S. 714 (1986)...... 16

Cleaver v. Wilcox, 499 F.2d 940 (9th Cir.

eee ee rere Terre rrr ee eer 26

Dames and Moore v. Regan, 453 U.S. 654

Cl so Perec r Tree Ce eT eT Tee CTT TT ee ee 21

Diamond v. Charles, 476 U.S. 54 (1986)..... 17

Duke Power Company v. Carolina Environmental

Stuey Grows, ine., 436 U.S. 59 (i97TB) «ss 22

Hamilton v. Kentucky Distilleries and

Warenouse Co., 251 U.S. 146 (1919) ..ccccece 23

Florida v. Weinberger, 492 F.2d 488 (5th

Cans Bese see cases aioe es Seb idiek sae tee 18

Japan Whaling Assoc. v. American Cetacean

Society, SFE Ustes SOR CLUOO) + 6c eo bbe ews 21

Knight v. Mills, 836 F.2d 659 (1st Cir.

1987) Ta 2S & & eeeete#egfsq5qeee#efettkse*e#ee#e#ee#e##ee#e#e#e##*# @ J ww oe. Se OS Ok le ok, ee ee 15

Lake v. Speziale, 580 F. Supp. 1318 (Conn.

See need eee ures Reece asks ware eae eee cal?

Mitchell v. Laird, 488 F.2d 611 (DDC 1973)

co eneueeecas TEETLTiL TRERTeTeCCeLe es “29, 20

National Wildlife v. Burford, 835 F.2d

Pee Cee SAMRAT) coke bebe nos be eeeeawueeeees 17

National Wildlife Federation v.

Agricultural Stabilization and

Conservation Service, 901 F.2d 673

(8 Se eer re ee ere 18

New York Life Ins. Co. v. Bennion, 158

Teme Bee TEWO Gales 656s cee eee asec cekeue r

The Prize Cases, 67 U.S. 635 (1863)....19, 22

Pujol v. Shearson American Express,

877 F.2d 132 (1st Cir. BUOEI 6464463008 % OSs 16

Red Bluff Drive-in, Inc. v. Carol Vance,

GGG Fs SGae CEPOL 6604406 ee hed bee weak ee aa

Richmond Newspapers, Inc. v. Virginia,

448 U.S 555 (1980)..........200. 5. af, 20, -3

Sherwood Medical Inc. v. Decknatal, 510

F.ae FOR CO SEK. - 2ST E oii ce ee eee 26

Steffell v. Thompson, 415 U.S. 452

(EPCR) 66.5 OSHA AREER O TEED EEE 26

Super Tire Engineering Co. v. McCorkle,

16 GU.8. 235 C2978) ov ascccacks 25, 26, 28, 29

United States v. Curtiss-Wright Export

oe ne | ce a a ere 21

United States v. SCRAP, 412 U.S.

Te eg ) Pe err ere to 7. a6

United States v. W.T. Grant, 345 U.S.

SOS PENSE ci koh see eee 29

Weinstein v. Bradford, 423 U.S. 147

(ABTS i 6d Ke ocdaee eee ee :, 23, 3

Youngstown Sheet and Tube Co. v. Sawyer,

83 Uebse DIR ELSE 6 4a ee eee eee y & |

OTHER AUTHORITIES ___ PAGE

American Constitutional Law, (L. Tribe,

i OB... BUG) bdo 3 4 65 hee see 34

The Collected Works of Abraham Lincoln,

[Re BABLGE OG. L953) esc ccenssssatessvesncs 24

The Debates in the several State

Conventions on the Adoption of the

Federal Constitution in 1787, (J. Elliot

BG. GE. TESS) occ vcesecevscessesesssisesnes 24

The Federalist, No. 75 (Alexander

Mami iton, J. Cooke O6@.. 3961) scecavncanecuss 24

Military Heritage of America, 121 (R.

Ernest and Trevor N. Dupuy, Hero Books,

Peareee, Vat. C2908) vo ca kot we ee eee eens 9

The Papers of Thomas Jefferson,

(J. BOYS OG. 1951) .cnccresscesnecenssensenes 24

The Papers of Thomas Jefferson,

(J. BOVG OG. LOSE) ca cceveseeecansseeecensse 34

War and Presidential Power: a chronicle

of congressional surrender, (Thomas

Eagleton, Liveright, N.Y. 1974)........ i228

Who Makes War, (Jacob K. Javits,

William Morrow & Co., N.Y., 1973)...... Li, 24

aa

REFERENCE TO COURT OPINIONS

A) This case was first brought in the United

States District Court of the District of Maine

C.A. No. 91-00010-P. On February 8, 1991 the

Court sua sponte dismissed the Petitioner's

Complaint as moot. Appendix at A-8.

B) The case was appealed to the United

States Court of Appeals for the First Circuit,

No. 91-1223, and Judgment was affirmed on July

31, 1991 pursuant to Local Rule 27.1 by Order

of Court. Appendix at A-1.

C) On November 7, 1991 the Court of Appeals

denied a petition for rehearing. Appendix at

A~10.

D) There are no official or unofficial

reports of opinions.

GROUNDS OF JURISDICTION

A) The petitioner seeks review of an

affirmance by the First Circuit Court of

Appeals entered on July 31, 1991, of the

Judgment of the United States District Court

for the District of Maine. The petitioner had

appealed the District Court's allowance of a

sua sponte Motion to Dismiss.

B) Petition for re-hearing was denied on

November 7, 1991.

C) Jurisdiction is conferred on this Court

by Article III of the Constitution of the

United States and by United States Code chap.

ae 6S 1257. Review is sought pursuant to

Supreme Court Rule 10.1(c) allowing review:

"When a State Court, or a United States Court

of Appeals has decided an important question

of federal law which has not been, but should

be, settled by this Court, or has decided a

federai question in a way that conflicts with

applicable decisions of this Court."

CONSTITUTIONAL PROVISIONS

OF THE CONSTITUTION OF THE UNITED STATES

Article I, §8, Clause 11

The Congress shall have power...

To declare war, grant letters of Marque and

Reprisal, and make Rules concerning captures

on land and water.

Amendment V

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land or

natural forces, or in the militia, when in

actual service in time of war or public

danger; nor shall any person be subject for

the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any

Criminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

without Due Process of law; nor shall private

property be taken for public use, without just

compensation. (emphasis added)

STATEMENT OF THE CASE

The Petitioner Steven Farsaci

individually and on behalf of all others

similarly situated, filed on January 8, 1991 a

Complaint in the United States District Court

for the District of Maine challenging as a

violation of the Fifth Amendment to the

Constitution of the United States’ the

Defendant/Appellee President George Bush's de

facto declaration of war on Iraq. The

Petitioner by affidavit indicated that he was

morally opposed to the war yet without the

required Due Process protection had his well-

being and the well-being of his family and

friends placed in danger and forced to suffer

the detrimental economic effects of war. On

February 8, 1991, the Plaintiff's Complaint

was dismissed as moot. This Decision was

based on Congress accepting on January 12,

1991 as irreversible the de facto declaration

of war upon Iraq. Appendix, at A-10. The

Plaintiff's appeal to the United States Court

of Appeals for the First Circuit argued that

though request for injunctive relief may have

been moot at the time under the strict

standard for such relief, the District Court

should not have dismissed his request for

declaratory relief as the subject violation of

Due Process is capable of repetition yet

evading review. The first Order of Court of

the Appeals Court applied the principles of

Weinstein v. Bradford, 423 U.S 147 (1975) and

Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555 (1980) to Petitioner's appeal and

refused to consider whether the Petitioner's

Complaint raised a genuine factual issue

regarding mootness which would preclude a

ruling on a Motion to Dismiss. Appendix at A-

i.

The basis for jurisdiction in the

District Court was based on Federal Question

Jurisdiction pursuant to 28 U.S.C. 1331.

The solitary and individual act of power

by which the Defendant made the decision to

declare war and his claim of right to have

made this decision was delineated by

Plaintiff's and Defendant's own exhibits

admitted below. These can be summarized as

follows.

After a meeting with Prime Minister

Margaret Thatcher and a small group of

advisors in the White House a few days after

the Iraqi invasion, President Bush decided to

deploy 125,000 troops to the Gulf, and he sent

a letter to the Speaker of the House and the

President pro tempore of the Senate stating

that he does not believe involvement in

hostilities is eminent, "on the contrary, it

is my belief that this deployment will

facilitate a peaceful resolution of the

crisis." By the end of October 1990, the

escalation of troops in the mid-east had

reached 200,000 troops and the President

contemplated sending 100,000 more to the Gulf.

By August 11, 1990, the United States had

imposed a military blockade on Iraq, which

included using force to intercept, stop,

divert, and board ships in order to enforce

the ban on Iraq of imports and exports and bar

all items except medical supplies. As of

November 15, 1990, the U.S. Defense Department

had reported 3,680 intercepts by the allied

forces, including 420 boardings and 16 ship

diversions; 286 of the boardings were

conducted by U.S. forces.

It was only after the troops had already

been deployed that legislative leaders were

informed of this fait accompli: "I was not

consulted, I was informed of the buildup,"

stated Senator Sam Nunn of Georgia, Chairman

of the Senate Armed Services Committee. "Last

November, Nunn was not told about the U.S.

troop buildup in the Gulf until an hour before

it was made public," reported Newsweek. As

early as November 9, 1990, several Republican

Senators said the Defendant should call a

special session of Congress to approve the

President's plans for military deployments in

the Mid-East, but he rejected their request.

By November 8, 1990, the Defendant "after

consultation with King Fahd and our other

allies" had already decided that an "offensive

military option" was needed against Iraq,

reported the Weekly Compilation of

Presidential Documents.

Until January 12, 1991, when the United

States was already set, planned, and prepared

to start a military offensive in this de facto

War, the President had received authorization

from no one other than his own advisors and a

foreign head of state to put the United States

in such a state of war. As stated by several

Senators, by the time the legislature gave any

type of approval to the President's acts, this

approval did not a result from the

Constitutionally required Due Process but was

only an acceptance of an already completed

fact; and even this was only achieved by a

margin of five votes in the Senate. By the

time Congress voted on January 12, 1991, "I

think for better or worse we have crossed the

Rubicon. The question is not whether or not

we have a war, it is when," Senator Patrick

Leahy. The publicity campaign in support of

the war propagandized: support for the troops

requires support for the war and any protest

is unpatriotic. "I said last November and

December we ought to have been dealing then

when the policy was being formulated instead

of coming in at the eleventh hour, let us not

pull the rug out from under the President at

this last moment," Senator Bob Dole.

Historically, such an absolute power over

the life and death of the United States was

not intended to be held by the office of the

Defendant. In June of 1784, it was the opinion

of Congress that standing armies in time of

peace are inconsistent with the principles of

the Republican government and dangerous to the

liberties of free people, that they generally

are easily converted into destructive engines

for establishing despotism. Military Heritage

of America, 121 (R. Ernest and Trevor N.

Dupuy, Hero Books, Fairfax, Virginia (1984)).

The Congress therefore directed that the

Continental Army after the Revolution be

disbanded, maintaining only about one hundred

officers and men to guard the armories at West

Point and Fort Pitt. Id. Although President

George Washington requested a regular and

standing force, a well-organized militia that

would be present throughout all the states,

the establishment of arsenals throughout the

states, and the establishment of military

academies and special factories for military

10

armaments, he was not able to convince the

Congress and it was not until the

administration of Thomas Jefferson that such

issues began to be taken seriously. Id., D.

aa9720, 122.

Until after World War Bae every

Significant military offense by the United

States against a foreign power was founded

upon a declaration of war by Congress: The War

of 1812 declared on June 18, 1812; the Mexican

War declared on May 13, 1846; the Spanish

American War declared on April 25, 1898;

World War I declared on April 6, 1917; World

War II on December 7, 1991. See generally, War

and Presidential Power: -a chronicle of

congressicnal surrender (Thomas Eagleton,

Liveright, N.Y., 1974); Who Makes War (Jacob

K. Javits, William Morrow & Co., N.Y., 3973).

After World War II, beginning with the

"police action" in Korea in which President

Truman relied on the fact that American troops

were called into action as a part of the

United Nations contingent and command,

continuing into Vietnam in which the Executive

derived authority from the Tonkin Gulf

Resolution, the Defendant has now reached a

point where he claims for the Executive the

power for de facto declaration of war without

any prior legislative authorization or notice.

By the time the Defendant had received any

type of congressional approval for his

military actions he already had 400,000 troops

stationed in an militarily offensive position

against Irag, a foreign power. These facts

have caused the Defendant to gloat that he did

not need the permission of the "smartalecks"

in Congress or to "have to seek the permission

of Sen. Kennedy or some liberal Democrats" to

begin the "glorious history" of Desert Storm.

This gloating is more consistent with a

military oligarchy than a Republic whose

Constitution does respect and require

12

rae

permission of Congress.

Petitioner Farsaci's cause of action

individually and as a class representative is

that this declaration of war is a violation of

Article I, Section 8, clause 11 of the United

States Constitution and therefore the Fifth

Amendment protection of Due Process. The

Petitioner's primary injury is the imminent

threat to his life and well being presented by

modern 20th century warfare in which

historically civilian casualties have grown

from 5% of all war deaths to 75%. During the

months preparing for the War with Iraq and

during the War it was common for plane trips

to be canceled for fear of terrorism, for

government buildings to heighten their

security measures against bombings, for local

police and bomb squads to be on alert, and the

fear of civilian casualties in the United

States resulted in suspicion and police

observation of Arabic tourist and visitors.

13

The second injury suffered by the petitioner

is the direct and palpable injury of higher

travel costs which is typical of the economic

injury suffered by the class as a result of a

state of war. Other economic injuries

suffered by the class consist of restricted

travel, lost business opportunities, loss of

personnel to war-time reserve call-ups,

reduced exports, and higher prices.

ARGUMENT

INTRODUCTION / SUMMARY

When looked at ina light most favorable

to the Petitioner Farsaci and making all

inferences in his favor, his cause of action

states facts indicating a violation of the Due

Process protection provided him by the Fifth

Amendment and Article 1, §8, Clause 11 of the

United States Constitution. The issue

presented by his Complaint is reviewable only

14

within a limited set of circumstances: facts

Significant enough to be called a war, yet not

so tremendous that judicial review would be

impossible either because of the required

discovery or because of political effects.

The First Circuit Court of Appeals by failing

to apply a properly understood "capable of

repetition yet evading review" standard to its

review of the Trial Court's dismissal of his

Complaint has set a precedent that the abrupt

nature of modern warfare shall strike from

judicial review this important Due Process

protection.

I. THE MATERIAL ALLEGATIONS OF PETITIONER

FARSACI'S CAUSE OF ACTION STATE A CLEAR

VIOLATION OF THE DUE PROCESS REQUIRED FOR

A DECLARATION OF WAR.

In reviewing a Motion To Dismiss, "all

inferences must be drawn against the movant...

and in favor of the non-movant." Knight v.

Mills, 836 F. 2d 659, 664 (1st Cir. 1987).

15

"(I]}f under any theory" the Plaintiff states

facts sufficient to state a cause of action, a

Motion to Dismiss the Complaint must _ be

denied. Id. All material allegations in the

pleading must be excepted as true and the

Complaint construed in favor of the non-moving

party. Pujol _v. Shearson American Express,

877 F. 2d 132, 138 (1st Cir. 1984).

A. Farsaci has standing to bring his

ripe, justiciable claim before the

Court.

Even in the early stages of this case

without any discovery, the Court was provided

with facts and statements indicating that

Petitioner Farsaci has standing to bring the

issue before the Court and that the issue

presented by his Complaint is justiciable and

ripe for review.

The harms asserted by the Plaintiff to

establish standing are immediate, palpable and

direct. The immediate threat to the

16

Petitioner's well being and the damages of

increased fuel and travei costs and the

economic privation directly resulting from a

state of war are judicially recognized as

sufficient for standing. E.g-, Bowsher vy.

Synar, 478 U.S. 714, 721 (1986) (potential

10SS of cost of living increases. are

sufficient to challenge a legislative

delegation of legislative power to the

executive.); Diamond v. Charles, 476 U.S. 54,

65 - 66 (1986) (regulations having a direct

financial impact on a physician's practice

allow the physician to assert the

constitutional rights of other individuals who

are unable to assert those rights themselves) ;

Lake _v. Speziale, 580 F. Supp. 1318, 1333

(Conn. 1984) and cases cited (imminent injury

or damages is sufficient to establish

Standing). The question of the Specificity of

the harms complained of are not properly

addressed at this juncture, and should be

a?

argued in a summary judgment motion. National

Wildlife v. Burford, 835 F. 2d 305, 312 (DC

Cir. 1987).

Certainly the harms complained of in this

case when compared to the one upheld in United

States _v. SCRAP, 412 U.S. 669 (1973) stand

scrutiny on the issue of standing within the

parameters of a Motion to Dismiss. In SCRAP,

the Court was asked by the Plaintiffs to

uphold an “attenuated line of causation to the

eventual injury," and did so. SCRAP, supra at

688. The Court emphasized that "[j[t]o deny

standing to persons who are in fact injured

Simply because many others are also injured,

would mean that the most injurious and wide

spread government actions would be questioned

by nobody." Id. at 688. The particular

severity of the harm may not be great; a

harmed interest, “if genuine, may be small -

no more than an ‘identifiable trifle'."

Weinberger, 492 F. 2d 488, 494 (5th

18

cir. 1974) quoting United States vy. SCRAP,

supra, 412 U.S. at oes, RR. 184: A harm

complained of need not be great, the cause

need not be direct. National Wildlife

Federation v. Agricultural Stabilization and

Conservation Service, 901 F. 2a 673, 676-77

(8th Cir. 1990).

The Petitioner has never requested a

Court to step into an argument between the

Executive and the Legislative branches. Both

are centers of strong Governmental power that

can take care of themselves. Nor has the

Petitioner ever asked a Court to legally

define war. During the process of appeal, the

Defendant/Appellee admitted that he both

Started and ended a war. The Petitioner has

Only argued that the lssue presented is

Justiciable because a Court can not be blind

to a war already declared in fact by affecting

"the technical ignorance to the existence of

a war." The Prize Cases, 67 U.S. 635, 669

19

(1863); See, also, Mitchell v. Laird, 488 F.

2d 611, 614 (DDC 1973) ("the reference by a

president to a military operation as war is

indicative of a de facto state of war").

"An honorable, decent, compassionate act

of aiding those already in peril is no proof

of consent to the actions that place and

continued them in that dangerous posture."

Laird, supra, 488 F.2d at 615. A congressman

who may be wholly opposed to a war and the

continuation of the war might vote for draft

measures supporting that war because he is

unwilling to abandon without support men

already fighting. Id. A Court should not

construe votes cast and acceptance of facts

that cannot change "as though they are votes

freely given to express consent." Id. "This

Court cannot be unmindful of what every school

boy knows: that in voting to appropriate money

or draft men, a congressman is not necessarily

approving of the continuation of a war, no

20

matter how specifically the appropriation or

draft act refers to that war." Id.

This Court has always viewed with strong

disfavor the notion that any case involving

"political" rights is therefore non-

justiciable. Baker v. Carr, 369 U.S. 196, 209

(1962). The Court has unequivocally stated

that "it is error to suppose that every case

or controversy which touches foreign relations

lies beyond judicial cognizance." Id. at 211;

accord, Japan Whaling Association v. Amer

Cetacean Society, 478 U.S. 221, 229-230

(1986). The Courts of the United States have

routinely decided cases involving issues of

foreign and defense policy. See, Dames and

Moore Vv. Regan, 453 U.S. 654 (1981);

Youngstown Sheet and Tube Company v. Sawyer,

343 U.S. 579 (1952); United States v. Curtiss

Wright Export Corporation, 299 U.S. 304

(1936). The Baker Court made it clear that

the question of when a state of war begins and

21

ends were amenable to judicial resolution.

Baker, supra, 369 U.S. at 212-214. Courts

have historically made determinations about

whether this Country was at war for the

purposes of treaties, statutes and even

insurance contracts. See e.g., New York Life

Insurance Company v. Bennion, 158 F. 2d 260

(10th Cir. 1946). The judicial determination

of a de facto state of war has occurred in the

absence of official declarations of war by

Congress. See,The Prize Cases, 67 U.S. 635

(1863).

The material facts of the Petitioner's

Complaint show a declaration of war without

any implicit or explicit authorization by

Congress. Thus the issue of a citizen's Due

Process protection against war cannot be any

more ripe than it is in this case. The

possibility that the Defendant will again

enter this country into a de facto state of

war without congressional approval is not

22

"imaginary or speculative." See Blum _ v.

Yaretsky, 457 U.S. 991, 1000 (1982) (quoting

from Younger v. Harris, 401 U.S. 37, 42

(1971)); see also Duke Power Company v.

Carolina Environmental Study Group, Inc. 438

U.S. 59, 81-82 (1978) (although risk of a

nuclear disaster was remote, question

regarding validity of statutory indemnity

coverage in an event of such a disaster was

ripe for review)."

B. The material facts and inferences of

Farsaci's cause of action indicate a

declaration of war by the Defendant

without congressional authorizaticn.

The exercise of the war power granted by

the United States Constitution is subject to

the Fifth Amendment. E.g., Hamilton v.

Kentucky Distilleries and Warehouse Company,

251 U.S. 146, 155 (1919). "The war power of

the United States, like its other powers and

like the police powers of the states, is

subject to applicable constitutional

23

limitations." Id. and cases cited.

The Petitioner's Complaint involves the

unambiguous language of Article 1, §8, Clause

11 of the Constitution which was written by

the framers of the Constitution because they

felt it unwise to entrust such a momentous

power to involve a nation in war to the

President alone. See The Federalist, No.75 at

506 (Alexander Hamilton, J. Cooke ed. 1961).

"It should be difficult ina... republic to

declare war; but not to make peace." Justice

Joseph Story, qucted in War _ and Presidential

Power, supra at ats Thomas Jefferson

explained that he wanted "an effectual check

to the dog of war." The Papers of Thomas

Jefferson, 397 (J. Boyd ed. 1951). "Congress

alone is constitutionally invested with the

power of changing our position from peace to

war." Thomas Jefferson quoted in Who Makes

War, supra, at 273. James Wilson stated that

he hoped the Constitution would guard against

24

hostilities being initiated by a _= single

Executive. The Debates in the Several State

Conventions on the Adoption of the Federal

Constitution in 1787, 528 (J. Elliot, 2nd ed.

1836). Abraham Lincoln stated "no one man

Should hold the power of bringing" war upon

us. The Collected Works of Abraham Lincoln,

452 (R. Basler ed. 1953).

II. THE COURT OF APPEALS MISAPPREHENDED

THE “CAPABLE OF REPETITION, YET

EVADING REVIEW" DOCTRINE AND IN

CLEAR ERROR APPLIED AN INCORRECT

STANDARD OF REVIEW TO THE DISMISSAL

OF THE PETITIONER'S COMPLAINT.

Faced with the reality of the strict

Standard for obtaining injunctive relief, the

Plaintiff was eventually forced to admit that

his initial claim for injunctive relief was

rendered moot by subsequent events. AS a

matter of practicality, once the legislature

accepts a war already in progress, it is

difficult for a Court to enjoin it.

25

This practical reality, however, makes

the need for declaratory relief only more

necessary and_ pertinent. This Court has

provided a clear standard for when declaratory

relief is necessary and is distinct from an

advisory opinion: "(gjovernmental actions

directly effecting, and continuing to effect

citizens in our society" is not moot when an

issue is "capable of repetition, yet evading

review." Super Tire Engineering Company v.

McCorkle, 416 U.S. 115, 126 (1974). Where a

claim for injunctive relief is moot, a claim

for declaratory relief should be considered

separately on its merits, as it may well serve

aS an appropriate alternative to injunctive

relief. See Steffell v. Thompson 415 U.S.

452, 463 (1974); Cleaver v. Wilcox, 499 F. 2d

940, 944 (Sth . Cir. 1974). Declaratory

judgment is a form of relief which "should be

liberally construed to provide its purpose of

providing a speedy and inexpensive method of

26

adjudicating legal disputes without invoking

coercive remedies and is not to be interpreted

in a narrow or technical sense." Sherwood

Medical Industries v. Decknatal Inc., 517 F.2d

724, 729 (8th Cir. 1975).

The First Circuit Court of Appeals never

applied this clear standard to Petitioner

Farsaci's Complaint. Rather it applied the

principles of Weinstein v. Bradford, 423 U.S.

147 (1975) and dicta from Richmond Newspapers

Inc., v. Virginia, 448 U.S. 555 (1983) and

therefore concluded that since the challenged

war is not’ short-lived by nature that

Petitioner Farsaci's individual claim presents

merely a hypothetical expectation. Appendix,

A-6 to A-8. It then wented on to conclude that

based on these principles, that authorities

permitting class actions to proceed when the

named plaintiff's claims were mooted for

reasons that did not moot the claims of the

~ ~ -~, + lary ie.

Class do not apply. Id.

a7

The above principles as used by the First

Circuit are clearly erroneous and should not

have been the standard of review. Bradford

specifically involved a cause of action in

which class certification was denied and was

decided "in the absence of a class action."

Bradford, at 149. The "short-lived by nature"

comment was dicta this Court used in Richmond

Newspapers Inc. to refer to the short duration

of the criminal trial that was’ reviewed.

Richmond Newspapers Inc., at 563.

The application of this dicta to the

pivotal case of McCorkle delineating the

"Capable of repetition yet evading review"

doctrine as it applied to class actions would

have mooted that case before the Court and

this conceptualization of the doctrine was

specifically rejected. That case involved a

labor dispute and associated economic strikes.

This Court noted that such strikes’ are

comparatively of short duration but "[t]here

are exceptions." McCorkle, supra, at 126 and

cases cited (emphasis added). This noted fact

that such labor disputes are not short-lived

by nature did not moot the class action before

the Court in McCorkle.

The principles delineated by the Court in

McCorkle clearly show that it is not a matter

of whether the subject unconstitutional acts

last enough to permit judicial review as

stated by the First Circuit but whether the

acts will be capable of review or evade review

when repeated. "[G]Jovernmental Action directly

effecting, and continuing to effect, the

behavior of citizens in our society" is not

moot when an issue is "capable of repetition,

yet evading review." McCorkle, supra, at 126.

The Defendant faces a heavy’ burden of

establishing that there is "no reasonable

expectation that the wrong will be repeated."

United States v. W.T. Grant Company, 345 U.S.

629, 633 (1953) quoting United States v.

29

Aluminum Company of America 148 F. 2d 416, 448

(2nd Cir. 1945).

III. BY FAILING TO APPLY PROPER STANDARDS

OF REVIEW, THE DISMISSAL OF THE

PETITIONER'S COMPLAINT AS MOOT SETS

PRECEDENT STRIKING FROM JUDICIAL

REVIEW BECAUSE OF THE ABRUPT NATURE

OF MODERN WARFARE A CLEAR VIOLATION

OF THE DUE PRCCES8S PROTECTION

ABROGATING THE DEFENDANT'S CLAIM OF

RIGHT FOR HIS OFFICE TO DECLARE WAR.

If the material facts of this Action are

construed in favor of the Petitioner, there

never occur the required Due Process

Protection of Congressional authorization for

the Defendant's declaration of war. The

acceptance by Congress of an already declared

war is not an authorization of that war nor

satisfaction of the required Due Process.

This action on appeal presents the narrow

question of whether the reality of modern

warfare and presidential power will as a

matter of law be allowed to strike from

judicial review a violation of the clear

30

language of Article 1, §8, clause 11 of the

United Constitution. This Clause through the

Fifth Amendment requires that the process of

Congressional authorization occur to place the

nation into a state of war. When the narrow

question of this action on appeal is examined

from the _ stand point of the substantive

constitutional principle at Stake, the need

for controversy is clearly being served by the

plaintiff in this action: the significant

injuries involved provide standing to

Challenge the continuing claim of right by the

Defendant to declare war, a right that the

Judiciary can review through a long history of

historical development, previous case law, and

make a decision on the merits as to whether

declaratory relief is necessary or proper.

This action as viewed between the individual

citizen and the federal] government cannot be

any more ripe than it is.

After petition for rehearing, the First

31

Circuit again failed to apply the "capable of

repetition yet evading review" standard to the

class action and simply concluded that the

claims of all class members failed to satisfy

the requirement of that principle because the

sensation of hostilities against Iraq rendered

the class claims moot, referring to its prior

decision based on Bradford and Richmond

Newspapers Inc. Appendix A-10 to A-11.

The issues presented by this matter are

reviewable only within a limited set of

circumstances: facts significant enough to be

Called a war yet not so tremendous’ that

judicial review would be impossible either

because of the required discovery or because

of political effects. It is not a question of

time but of fact allowing for judicial review.

This case would not be any easier to

adjudicate if the war against Iraq was still

on-going with half a million American troops

engaged in desert warfare and with all the

32

major countries of the world engaged in a

political battle to resolve it. It is not any

easier to engage discovery into a declaration

of war whose duration is measured in months or

years instead of days. A quick

unconstitutional declaration of war

responsible fer the death of 200,000 people

Should not be passed over for review in order

to wait for the occurrence of a longer

unconstitutional war with greater casualties.

As the Appellee is quick to point out,

this case obviously poses jurisdictional]

issues such as Standing, political question,

ripeness, and advisory opinion. However these

are not substantive Constitutional protections

or guarantees that the Court must be on guard

to protect. They are judicially created means

of ensuring the existence of a case-or-

controversy as required by Article III of the

United States Constitution. These means can be

balanced and if necessary relaxed by the Court

Jo

when viewed against the potential harm of not

reviewing the substantive issues presented.

E.g., Abbot Laboratories v. Gardner, 387 U.S.

136, 149 (1967); Red Bluff Drive-in, Inc. v.

Carol Vance, 648 F.2d 1020, 1033, n. 18 (1981)

and cases cited.

The Fifth Amendment Right of Due Process

within the context of the Bill of Rights

serves as a “legal check [in the} hands of the

judiciary ... a body, which if rendered

independent ... merits great confidence for

their learning and integrity." 14 The Papers

I"

oan

Thomas Jefferson 659 (J. Boyd ed. 1958).

The Bill of Rights was intended to serve as an

additional __ guarantee, _ other than the

separation and division of powers, that

government will "proceed in accord with

settled rules of law." American Constitutional

Law, 4-5 (L. Tribe, 2nd ed., 1988) (emphasis

The Appellee distorted the facts of

34

previous and pending case law in his arguments

to dismiss this Action. The Appellant is only

asking for a similar opportunity to engage in

a factual dispute over whether declaratory

relief is proper, something he cannot do

because the Trial Court allowed the modern

reality of warfare to moot his Challenge to a

continuing unconstitutional Claim of right by

the Defendant to declare war.

When the proper principles are applied to

the specific historic facts of this case and

to case law, it Clearly demonstrates that the

scenario played out in this conflict is

capable of repetition and is likely to be

repeated. The historical pattern indicates

the Defendant's claim of right to declare war

without even an implicit authorization by

Congress. As seen with rapidly unfolding

events in the Persian Gulf, this is a practice

which could very likely evade review because

of the transient and abrupt nature of modern

35

warfare. The Defendant acted so quickly during

the subject matter of this action and upon

such an absolute claim of right that not even

the legislature of the United States was able

to act quickly enough. Clearly this Plaintiff

or any other Plaintiff having less power than

the Congress will net be able to act

powerfully or quickly enough to obtain relief

from future violations of Constitutionally

required Due Process for placing this Nation

into a state of war.

CONCLUSION

This Court should issue ae writ of

Certiorari to the First Circuit Court of

Appeals regarding Petitioner's Appeal.

36

Steven Farsaci

pro se attorney,

Steven Farsaci

Pro Se attorney of record

C/O Valeriano Diviacchi

220 N Harvard St

Boston MA 02134

(617) 843-9538

37

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 91-1223

STEVEN FARSACI,

Plaintiff, Appellee.

GEORGE BUSH, AS PRESIDENT OF

THE UNITED STATES,

Defendant, Appellee.

Before

Torruella, Selya and Cyr,

Circuit Judges.

ORDER OF COURT

Entered July 31, 1991

ORDER OF COURT

Entered July 31, 1991

Plaintiff-appellant Steven Farsaci filed

a class action complaint on January 8, 1991

against President George Bush seeking

declaratory and injunctive relief to forestall

the use of military force against Iraq.

Farsaci sued on behalf of himself and "all

United States Citizens residing in the United

States who are suffering the effects of the

United States' state of war with Iraq."

Farsaci requested a declaratory judgment that

the President's alleged "de facto declaration

of war against Iraq" without Congressional

approval was unconstitutional and an

injunction ordering the President "not to

commence a military offensive against Iraq

without congressional approval oor _ unless

necessary to defend an attack."

Four days later, on January 12, 1991,

Congress passed joint resolutions authorizing

the President "to use United States Armed

Forces" against Iraq pursuant to United

Nations Security Council resolutions. H. J.

Res. 77, § 2(a), 102d Cong., 1st Sess., 137

Cong. Rec. H443 (Jan. 12, 1991); S. J. Res. 2,

§ 2(a), 102d Cong., 1st Sess., 137 Cong. Rec.

S403 (Jan. 12, 1991). The U.S. commenced

hostilities on January 16.

On January 22, the district court sua

sponte ordered Farsaci to show cause why the

action should not be dismissed as _ moot.

Farsaci responded by conceding that his

request for injunctive relief was moot, but he

asserted that insofar as he sought declaratory

relief his claim was not moot because it was

"capable of repetition yet evading review."

On February 8, 1991, the district court

dismissed the case upon finding that the

Congressional resolutions had mooted the

action and that the situation was not likely

to recur in such a way as to evade review.

Farsaci appealed. Subsequently, in early

March 1991, hostilities ceased between the

United States and Iraq.

There can be no question that Farsaci's

objections to the President's allegedly

committing United States troops without

Congressional authorization became moot when

Congress provided the very authorization said

to be lacking. Congress did not, as Farsaci

claims, merely authorize draft call-ups or

funding for unauthorized military action; the

joint resolutions plainly authorized the

President to use military force. Even if we

were to accept, arguendo, claimant's assertion

that the President before passage of the

resolutions had acted unlawfully because of a

lack of Congressional authorization, the

resolutions still rendered the matter moot.

See, e.g., Burke v. Barnes, 479 U.S. 361

(1987).

Even were there any doubt about this, the

cessation of hostilities after the district

Court's dismissal certainly renders the case

moot at this time. See, e.g., Conyers v.

Reagan, 765 F.2d 1124, 1127-29 (D.C. Cir.

1985) (termination of U.S. military action in

Grenada rendered moot a challenge to the

constitutionality of the President's action).

Farsaci urges that his case nevertheless

be adjudicated under the principle that a moot

case may be justiciable if

(1) the challenged action was in its

duration too short to be fully litigated

prior to its cessation or expiration, and

(2) there was a reasonable expectation

that the same complaining party would be

subjected to the same action against.

Weinstein v. Bradford, 423 U.S. 147, 149

(1975). Application of this’ principle

requires that the challenged action be too

"short-lived by nature" to permit effective

judicial review. Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555, 563 (1980). The

challenged action here -- a war allegedly

ordered by the President without required

Congressional authorization -- could easily,

if repeated, last long enough to permit

judicial review of allegations such as

Farsaci's. Conyers, supra, 765 F.2d at 1128

("(uJndeclared wars of aggression .. . are

not inherently short in duration"). In

A-S

addition, Farsaci has presented no more than a

purely hypothetical expectation that he would

be subjected to the same action again.

Finally, there is no merit in Farsaci's

suggestion that DECAUSS his claims were

brought on behalf of a class of similarly-

Situated persons, the action is somehow

justiciable even if Farsaci's own claims are

moot. The action is moot as to all members of

the purported class for precisely the same

reasons it is moot as to Farsaci personally:

the allegediy unauthorized war received

authorization and then terminated.

Consequently, authorities that have permitted

class actions to proceed when the named

plaintiff's claims were mooted for reasons

that did not moot the claims of the class,

see, e.g., Gerstein v. Pugh, 420 U.S. 103, 110

m.11 (1975), do not apply here.

Because we agree with the district

court's dismissal of Farsaci's claims on

grounds of mootness, we -- like the district

court “= need not discuss defendant's

apparentiy very substantial objections that

Farsaci lacks standing to bring his claims and

that Farsaci's complaint raises a non-

justiciable political question.

The judgment of the district court is

affirmed. Loc. R. 27.1.

By the Court:

Clerk.

UNITED STATES DISTRICT COURT

No. 91-00010-P

STEVEN FARSACI,

Plaintiff, Appellee.

GEORGE BUSH, AS PRESIDENT OF

THE UNITED STATES,

Defendant, Appellee.

AS MOOT

This Court entered its Order to Show

Cause (Docket No. 6) on January 22, 1991,

requiring counsel to show cause on or before

February 1, 1991 why this matter should not

now be dismissed as MOOT. Plaintiff's counsel

filed on February 1, 1991 Plaintiff's

Opposition to Sua Sponte Motion to Dismiss

Plaintiff's Complaint as Moot (Docket No. 9).

The Court has now carefully reviewed the

entire file in this matter, including

A-8

Plaintiff's Opposition, and has reviewed the

parties' written submissions on Defendant's

Motion to Dismiss, filed on January 11, 1991

(Docket No. 4). The Court now FINDS that the

matter is MOOT. The Court FURTHER FINDS that

Plaintiff's request for declaratory relief is

not demonstrated by the record made in this

case to be either likely to reoccur or, should

it do so, to be likely to evade timely review.

The Court is satisfied that the Congress now

having acted to invest the President with

authority to utilize force in Support of the

enforcement of the United Nations Resolutions

in Saudi Arabia, and the President having

undertaken to do so, this matter is now MOOT.

Accordingly, Plaintiff's Complaint is

DISMISSED.

GENE CARTER

Chief Judge

Dated at Portland, Maine this 8th day of

February, 1991.

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO. 91-1223

STEVEN FARSACI,

Plaintiff, Appellee.

GEORGE BUSH, AS PRESIDENT OF

THE UNITED STATES,

Defendant, Appellee.

Before

Torruella, Selya and Cyr,

Circuit Judges.

ORDER OF COURT

Entered July 31, 1991

ORDER OF COURT

Entered November 7, 1991

Appellant has filed ae petition for

rehearing of this court's order summarily

affirming the district court's dismissal of

Farsaci's class action as moot. We reject

A-10

seta ic lt Nl et CNET ONE i SN cabanas Ne ee

RR ee Rg Te ep EE Ee An ae ER Ne IM RaNA Fer Tce |

Farsaci's assertion that this court in that

order "misapprehended" the "capable of

repetition, yet evading review" doctrine. Not

only are the claims of all class members in

Farsaci's case moot, the claims of all class

members also fail to satisfy the requirements

of the "capable of repetition, yet evading

review" doctrine for the reasons stated in

this court's order. see Conyers v. Reagan,

765 F.2d 1124, 1128-29 (D.C. Cir. 1985).

In addition, because the cessation of

hostilities against Iraq rendered the class

claims moot, id. at 1127-28, we need not

consider Farsaci's contention that he raised a

genuine factual issue precluding a ruling on a

motion to dismiss that the congressional

resolutions rendered the claims moot.

The petition for rehearing is denied.

By the Court:

FRANCIS P. SCIGLIANO, Clerk

By:

Chief Deputy Clerk

A~11

ace naailiitiai