# Petition for Writ of Certiorari — Farsaci v. Bush

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 939

## Text

.
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0161%3A1. Public record. Not legal advice.