* After examining appellant’s brief and the appellat e record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R . 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 22 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT O’CONNOR, Plaintiff - Appellant, v. UNITED STATES OF AMERICA; GEORGE W. BUSH, JR., President of the United States; UNITED STATES ARMED FORCES, Joint Chiefs of Staff; UNITED STATES MARINE CORPS, Commandant; DEPARTMENT OF THE NAVY, Chief of Staff; ARMY, Chief of Staff; DEPARTMENT OF THE AIR FORCE; DEPARTMENT OF DEFENSE, Donald Rumsfeld, Secretary of Defense, Defendants - Appellees. No. 02-2311 (D.C. No. CIV-02-1274 BB/LFG)

(D.N.M.)

ORDER AND JUDGMENT *

Before EBEL , HENRY and HARTZ , Circuit Judges.1 O’Connor filed his complaint on October 9, 2002, s everal months before (continued...) - 2 - Robert O’Connor, proceeding pro se , appeals the district court’s dismissal of his lawsuit against the president of the United States and certain officials, military and civilian, responsible for the nation’s military operations. He challenges the constitutionality of the invasion of Iraq by the armed forces of the United States. The district court dismissed his co mplaint because it presented “a classic example of a non-justiciable political ques tion.” O’Connor also has filed a motion to proceed in forma pauperis and a petition seeking a writ of prohibition directed against the defendants. We AFFIRM the dis trict court’s dismissal of his case, GRANT the motion to proceed in forma pauperis , and DENY O’Connor’s petition for a writ of prohibition.

I. Appeal of District Court’s Dismissal of the Case In his complaint, O’Connor alleges, somewhat crypti cally, that “[t]he War on Iraq which Congress by resolution gives authority to the President to wage war on Iraq is unconstitutional because waging war on I raq is a subterfuge for the U.S. Government to wage war on its own citizens by releasing A.B.C. warfare on Americans and blaming it on Iraq.” He asks the fed eral courts “to declare the war on Iraq unconstitutional” and seeks an injunction r equiring the defendants to “cease and desist . . . from waging war on Iraq.” 1 We review de novo the district1 (...continued)

U.S. military forces attacked Iraq in March 2003. W e also note that on May 1, 2003, President Bush stated that major combat operations in Iraq had ended. David E. Sanger, “Aftereffects: The President; BushDeclares ‘One Victory in War on Terror,’” N.Y. Times, May 2, 2003, at A1. B ecause we resolve this case on other grounds, we do not address whether these f acts raise standing or mootness problems for O’Connor’s lawsuit. - 3 - court’s application of the political question doctr ine to O’Connor’s complaint. Custer County Action Ass’n v. Garvey , 256 F.3d 1024, 1030–31 (10th Cir. 2001). Both constitutional and prudential concerns counsel courts not to hear cases presenting “political questions.” Schroder v. Bush , 263 F.3d 1169, 1173 (10th Cir. 2001) (citing Baker v. Carr , 369 U.S. 186, 210 (1962)). “When deciding whether issues present political questions, courts must make a discriminating inquiry into the precise facts and posture of the p articular case, for it resists resolution by any semantic cataloguing.” Id. at 1173–74 (internal quotation marks omitted). Because “there is no blanket rule, appli cation of the doctrine must be made on a case-by-case basis.” Id. at 1174 (internal citations and quotation marks omitted). The Supreme Court provided its most detailed discus sion of the political question doctrine in Baker v. Carr , 369 U.S. 186 (1962). In that case the Court wrote, Prominent on the surface of any case held to involv e a political question [will be] found a textually demonstrable c onstitutional commitment of the issue to a coordinate political d epartment; or a- 4 -

lack of judicially discoverable and manageable stan dards for resolving it; or the impossibility of deciding with out an initial policy determination of a kind clearly for nonjudicial dis cretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branc hes of government; or an unusual need for unquestioning ad herence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departm ents on one question. Id. at 217. The presence of several of the Bakerfactors indicate that O’Connor’s complaint presents a political question. His compl aint argues that the war on Iraq is unconstitutional because of the intentions of th e President and the armed forces in waging it. Yet the text of the Constitution com mits the power to employ the nation’s armed forces in war to Congress and the Pr esident. Congress has the power to declare war, to raise and support armies, to provide and maintain a navy, and to make rules governing these military bodies. U.S. Const. art I, § 8, cls. 11, 12, 13, 14. The Constitution also names the Presid ent as the commander-in-chief of the military forces. Id. art. II, § 2, cl. 1. And we can identify no judic ially discoverable standards that would permit a court to determine whether the intentions of the president in prosecuting a war ar e proper. The Constitution does not speak to the question of what objectives are pe rmissible when waging war. Such an inquiry would require courts to make a poli cy determination that is of a kind clearly for nonjudicial discretion. As we hav e said before, “courts afford the2 In declining to consider O’Connor’s argument on app eal that the

president’s prosecution of the war on Iraq was unco nstitutional because Congress had not issued a formal declaration of war, we expr ess no opinion on the merits of that argument except to observe that the federal co urts have left the question largely unexplored. See, e.g. , 1 Laurence H. Tribe, American Constitutional Law 659 (3d ed. 2000) (“Our legal history . . . is almo st barren of judicial pronouncements regarding the legitimacy of such exe cutive behavior.”). But see Doe v. Bush , 257 F. Supp. 2d 436, 438–40 (D. Mass. 2003) (hold ing that federal courts may consider the constitutionality of milita ry action by the president if “it become[s] apparent that the political branches . . . are clearly and resolutely in (continued...) - 5 - political branches of government a particularly hig h degree of deference in the area of military affairs, because the Constitution expressly confers authority over the military on the executive and legislative branc hes.” Garvey , 256 F.3d at 1031. For these reasons, we conclude that O’Connor’s laws uit raises a non-justiciable political question. On appeal, O’Connor advances a legal theory he did not raise below: that the war on Iraq is unconstitutional because the pre sident acted without a formal declaration of war by Congress. (Aplt. B. at 2.) Mindful that we hold pro se actions to less rigorous standard of review, see Hunt v. Uphoff , 199 F.3d 1220, 1223 (10th Cir. 1999), we nonetheless decline to co nsider this issue because O’Connor did not raise it before the district court , see Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992) (applying “the general rule that ‘a federal appellate court does not consider an issue not passed upon below’”) (quoting Singleton v. Wulff , 428 U.S. 106, 120 (1976)). 22 (...continued)

opposition as to the military policy to be followed by the United States,” but that in the case of the recent Iraq war, the constitutio nality of the military action raised a non-justiciable political question because no such inter-branch conflict existed in light of the October 16, 2002 Congressio nal Resolution, Pub. L. No. 107-243, authorizing the President Bush’s actions) (citing Massachusetts v. Laird , 451 F.2d 26, 34 (1st Cir. 1971)). - 6 -

II. Petition for a Writ of Prohibition O’Connor attaches to his brief on appeal a petitionfor a writ of prohibition. By statute, the power of federal courts to issue extraordinary writs is confined to those “necessary or appropriate in aid of their res pective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). A writ of prohibition is a “‘means of confining an inferior c ourt to a lawful exercise of its prescribed jurisdiction . . . .’” In re Missouri , 664 F.2d 178, 180 (8th Cir. 1981) (quoting Missouri v. United States Bankruptcy Court , 647 F.2d 768, 770 n.3 (8th Cir. 1981)); see also Parr v. United States , 351 U.S. 513, 519 (1956) (stating that writs of prohibition and mandamus “may only go in a id of appellate jurisdiction”). That the function of a writ of prohibition is to co rrect a lower court’s exercise of jurisdiction is illustrated by our Circuit’s test f or granting the writ, which is focused on the actions of lower courts: “[A] writ of prohibition is a drastic and extraordi nary remedy which should be granted only when the petitioner has show n his right to the writ to be clear and undisputable and that the acti ons of the court were a clear abuse of discretion.” Sangre De Crist o Community Mental Health Serv., Inc. v. United States (In re V argas) , 723 F.2d- 7 -

1461, 1468 (10th Cir. 1983). This court looks to f ive nonconclusive factors when determining whether to grant the writ: (1) the party seeking the writ must have no other adequate means to secure the relief desired; (2) the petitioning party will be d amaged or prejudiced in a way not correctable on appeal; (3) the distric t court’s order constitutes an abuse of discretion; (4) the distric t court’s order represents an often-repeated error and manifests a persistent disregard of the federal rules; and (5) the distric t court’s orderraises new and important problems or issues of law of firs t impression. Univ. of Texas at Austin v. Vratil , 96 F.3d 1337, 1339 (10th Cir. 1996) (Order) (emphasis added) (citation omitted). O’Connor is not entitled to a writ of prohibition b ecause he does not direct the writ toward the judicial action of a lower court. He seeks a writ of prohibition against the defendants, the president and certain of his military and civilian subordinates, to stop them from engaging i n hostilities in Iraq. O’Connor is not seeking to correct a jurisdictional error of the district court, nor is this a case where appellate review is defeated if a writ d oes not issue. Therefore, a writ of prohibition is not an available remedy. See Parr , 351 U.S. at 520 (declining to issue a writ of prohibition or mandamus because “[t ]his is not a case where a court has exceeded or refused to exercise its juris diction, nor one where appellate review will be defeated if a writ does not issue.”) (citation omitted). Even if a writ of prohibition could be directed tow ard the acts of executive officials, O’Connor has not made the requisite show ing in his petition that he is entitled to the writ under these circumstances. We require that a petitioner- 8 -

“show[] his right to the writ to be clear and undis putable.” Vratil , 96 F.3d at 1339 (internal quotation marks omitted). Because O ’Connor has not made this showing, we decline to exercise our discretion to i ssue a writ of prohibition. See
Parr351 U.S. at 520 (“The power to issue [extraordinary writs] is discretionary and it is sparingly exercised.”). * * * For the reasons stated, we AFFIRM the decision of the district court dismissing O’Connor’s case. O’Connor’s motion to p roceed in forma pauperis is GRANTED, and his petition for a writ of prohibitionis DENIED. All other of O’Connor’s motions are DENIED.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge