Wu Tien Li-Shou v. United States , 777 F.3d 175 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1206
WU TIEN LI−SHOU,
Plaintiff − Appellant,
v.
UNITED STATES OF AMERICA,
Defendant − Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cv-01366-JFM)
Argued: December 10, 2014 Decided: January 23, 2015
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Niemeyer and Judge King joined.
ARGUED: Timothy Burke Shea, NEMIROW HU & SHEA, Washington, D.C.,
for Appellant. Douglas Neal Letter, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Thomas G.
Corcoran, Jr., BERLINER, CORCORAN & ROWE, LLP, Washington, D.C.,
for Appellant. Stuart F. Delery, Assistant Attorney General,
Anne Murphy, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Rod J. Rosenstein, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
WILKINSON, Circuit Judge:
Wu Tien Li-Shou, a citizen of Taiwan, seeks damages from
the United States for the accidental killing of her husband and
the intentional sinking of her husband’s fishing vessel during a
NATO counter-piracy mission. The district court dismissed the
action under the political question and discretionary function
doctrines. For the reasons that follow, we affirm.
I.
Since the summer of 2009, the North Atlantic Treaty
Organization (NATO) has conducted Operation Ocean Shield in the
Gulf of Aden and the Indian Ocean waters around the Horn of
Africa. NATO’s offensive responds to the recognition by the
United States and its allies that “Somali-based piracy against
chemical and oil tankers, freighters, cruise ships, yachts, and
fishing vessels poses a threat to global shipping.” J.A. 48
(Dec. 2008 U.S. National Security Council report). “Piracy is a
universal crime,” President Bush noted in June 2007. J.A. 59
(Memorandum from the President). “The physical and economic
security of the United States . . . relies heavily on the secure
navigation of the world’s oceans for unhindered legitimate
commerce by its citizens and its partners.” Id.
As part of Ocean Shield, the USS Stephen W. Groves engaged
the Jin Chun Tsai 68 (JCT 68), a Taiwanese fishing ship, in the
early morning of May 10, 2011. Pirates had hijacked the JCT 68
2
more than a year earlier, transforming the commercial vessel
into a mothership from which the pirates launched attacks using
skiffs stored onboard. The ship housed nearly two-dozen pirates
in addition to three hostages: the master and owner of the ship,
Wu Lai-Yu, and two Chinese crewmembers.
The commander of NATO Task Force 508, a commodore in the
Royal Netherlands Navy, directed the USS Groves “to shadow and
then disrupt the pirate mothership JCT 68.” J.A. 64
(unclassified U.S. Navy investigation report). In particular,
the task force commander ordered the USS Groves “to force JCT 68
to stop and surrender, including the use of non-disabling and
disabling fire” starting with verbal warnings, then warning
shots, followed by fire aimed at the skiffs. Id. 64-65. The USS
Groves commenced this sequence on the morning of May 10. The
shots ended almost an hour later.
After the pirates had indicated their surrender, a special
team from the USS Groves approached and boarded the JCT 68.
Weapons used by the pirates, including two rocket-propelled
grenade launchers, were littered throughout the ship. The team
found Master Wu in his sleeping quarters “with the crown of his
head shot off.” Wu v. United States, 997 F. Supp. 2d 307, 309
(D. Md. 2014). Three pirates were also killed in the engagement,
and the two Chinese crewmembers were rescued safely. The next
day, May 11, 2011, the USS Groves intentionally sunk the JCT 68
3
with Wu’s body on board pursuant to orders from the NATO task
force commander.
Two years later, Master Wu’s widow initiated this action
against the United States, seeking damages for her husband’s
death and the loss of the JCT 68 under the Public Vessels Act
(PVA), 46 U.S.C. § 31101 et seq., the Suits in Admiralty Act
(SIAA), 46 U.S.C. § 30901 et seq., and the Death on the High
Seas Act (DOHSA), 46 U.S.C. § 30301 et seq. The district court
granted the government’s Rule 12(b)(1) motion to dismiss,
reasoning that the complaint presented a nonjusticiable
political question. Wu, 997 F. Supp. 2d at 309-10. The court
also noted that even if subject matter jurisdiction were proper,
Wu’s claims would be “futile” in light of the discretionary
function exception to any waiver of the government’s sovereign
immunity from suit. Id. at 309 n.2.
We review a dismissal under Rule 12(b)(1) de novo. In re
KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014).
We apply the clear error standard to the “district court’s
jurisdictional findings of fact on any issues that are not
intertwined with the facts central to the merits of the
plaintiff's claims.” U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d
337, 347 (4th Cir. 2009).
4
II.
Wu challenges the district court’s conclusion that her tort
suit presents a nonjusticiable political question. Because
allowing this action to proceed would thrust courts into the
middle of a sensitive multinational counter-piracy operation and
force courts to second-guess the conduct of a military
engagement, we agree that the separation of powers prevents the
judicial branch from hearing the case.
A.
The political question doctrine “is primarily a function of
the separation of powers.” Baker v. Carr, 369 U.S. 186, 210
(1962); see also Taylor v. Kellogg Brown & Root Servs., Inc.,
658 F.3d 402, 408 (4th Cir. 2011) (explaining the “genesis” of
the doctrine in Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803)). It is not a matter of whether the dispute strictly
falls within one of the categories over which the federal courts
have subject matter jurisdiction. Baker, 369 U.S. at 198.
Rather, a question is “political” and thus nonjusticiable when
its adjudication would inject the courts into a controversy
which is best suited for resolution by the political branches.
Id. at 210-11. A case presents a nonjusticiable political
question where there is
[1] a textually demonstrable constitutional commitment
of the issue to a coordinate political department; or
[2] a lack of judicially discoverable and manageable
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standards for resolving it; or [3] the impossibility
of deciding without an initial policy determination of
a kind clearly for nonjudicial discretion; or [4] the
impossibility of a court's undertaking independent
resolution without expressing lack of the respect due
coordinate branches of government; or [5] an unusual
need for unquestioning adherence to a political
decision already made; or [6] the potentiality of
embarrassment from multifarious pronouncements by
various departments on one question.
Id. at 217. These formulations do not provide a clean, crisp
test. Id. (noting “the impossibility of resolution by any
semantic cataloguing”). Rather, we must undertake a “case-by-
case inquiry.” Id. at 211.
“Of the legion of governmental endeavors, perhaps the most
clearly marked for judicial deference are provisions for
national security and defense.” Tiffany v. United States, 931
F.2d 271, 277 (4th Cir. 1991). Of course, “[t]he military does
not enjoy a blanket exemption from the need to proceed in a non-
negligent manner.” Id. at 280. But it is not within the purview
of “judicial competence” to review purely military decisions.
Lebron v. Rumsfeld, 670 F.3d 540, 548 (4th Cir. 2012). We must
be wary where plaintiff’s “negligence claim would require the
judiciary to question actual, sensitive judgments” made by the
armed forces. Taylor, 658 F.3d at 411 (internal quotation marks
omitted). Cases that require courts to second-guess these
decisions run the risk not just of making bad law, but also of
“imping[ing] on explicit constitutional assignments of
6
responsibility to the coordinate branches of our government.”
Lebron, 670 F.3d at 548.
B.
This case presents a textbook example of a situation in
which courts should not interfere. Resolving this dispute would
oblige the district court to wade into sensitive and
particularized military matters. In order to reach a finding of
negligence on the part of the United States, Wu would have the
court consider the precise details of the military engagement:
what kind of warnings were given, the type of ordnance used, the
sort of weapons deployed, the range of fire selected, and the
pattern, timing, and escalation of the firing. J.A. 8-9
(complaint); Appellant’s Br. 5-7, 7 n.1. Wu is quite direct
about this, criticizing the USS Groves for, among other things,
“using exploding ordnance on the fishing boat rather than inert
ordnance and firing into central compartments rather than at the
skiffs on the bow or the boat’s engines.” Appellant’s Br. 3. The
case would not need to proceed to trial for the court to find
itself enmeshed in this rigging. Discovery easily could draw the
court and the parties into the technicalities of battle, with
subpoenas issuing to NATO and American commanders on down to the
Gunnery Direction Officer.
As judges, we are just not equipped to second-guess such
small-bore tactical decisions. We also are ill-suited to
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evaluate more strategic considerations. We do not know the
waters. We do not know the respective capabilities of individual
pirate ships or naval frigates. We do not know the functionality
and limitations of the counter-piracy task force’s assets. We do
not know how a decision to tow and not to sink the JCT 68 would
have affected the task force’s mission by tying down valuable
naval resources. We do not know the extent of the disruption to
commercial shipping caused by any single ship or by Somali-based
piracy generally. What we do know is that we are not naval
commanders. These are questions not intended to be answered
through the vehicle of a tort suit.
That is not all. This case threatens to involve the courts
in the command structures of both the U.S. military and
Operation Ocean Shield. Wu bases her claim of negligence on the
USS Groves’s failure to follow the proper rules of engagement.
Appellant’s Br. 8, 19-20; Reply Br. 4-5, 5 n.1. Specifically,
she asserts that Navy vessels involved in what Wu terms as law
enforcement “are governed by the law enforcement parameters set
down by the U.S. Coast Guard.” Reply Br. 5 n.1. But selecting
the proper rules of military engagement is decidedly not our
job. This request that we do so encourages the courts to bull
their way into the chain of command of a multinational
operation. In fact, Wu would have us sit astride the top of the
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command pyramid and decree the proper counter-piracy strategies
and tactics to the NATO and American commanders below.
Moreover, Wu explicitly urges us to repudiate the NATO
commander’s direct order, see J.A. 67, to sink the JCT 68 under
the rationale that “the U.S. Navy chain of command maintained
control of the [USS Groves] at all times,” Reply Br. 6. The
disruption caused to our alliances by treating allied command
decisions as advisory or second-rate is all too evident. One
need only imagine the Dutch NATO commander fielding deposition
questions in a federal lawsuit about decisions he made
concerning naval vessels carrying military grade weapons in the
context of a multinational counter-piracy mission in the Indian
Ocean. Whatever protective orders courts might issue to avoid
litigative tension within the NATO alliance would be under
constant challenge, given the perceived relevance of the Dutch
commodore’s order to plaintiff’s negligence claims.
Further, if we accepted Wu’s invitation, we would open the
door to allegations that soldiers and sailors should treat more
skeptically the clear orders of their superiors. We would afford
military personnel a reason and incentive to question orders --
namely, to head off tort liability or at least the burdens of
litigation that come with being sued. Allowing discovery here
would permit inquiry into the wisdom of the order to sink the
JCT 68. But the extent to which NATO counter-piracy operations
9
must accommodate “the property rights of shipowners” from
various nations “dispossessed of their ships by pirates” is not
justiciable without inquiry into every engagement with hijacked
vessels, including vessels used by pirates as heavily armed
bases for further disruptions of commercial shipping lanes.
Appellant’s Br. 21.
Wu next points to a provision in the Public Vessels Act,
which allows litigating parties to subpoena crewmembers of a
public vessel, as proof that there are procedures in place for
deciding a case like this. Id. 38 n.12, 39. But crewmembers may
only be subpoenaed if the Secretary who heads the department or
the vessel’s commander consents. 46 U.S.C. § 31110. More
importantly, this procedure is beside the point. Subpoenaing
members of the military is not necessarily itself an attack on
the separation of powers. Asking probing questions about the
strategy, tactics, and conduct of a military operation, however,
is just such an affront.
It is, after all, the President who is commander-in-chief.
U.S. Const. art. II, § 2, cl. 1; see also Lebron, 670 F.3d at
549. It is, after all, Congress which holds “plenary control
over rights, duties, and responsibilities in the framework of
the military establishment, including regulations, procedures,
and remedies.” Chappell v. Wallace, 462 U.S. 296, 301 (1983);
see also U.S. Const., art. I, § 8, cl. 11 (power to declare
10
war); id. cl. 12-13 (power to establish an army and navy); id.
cl. 14 (power “[t]o make Rules for the Government and Regulation
of the land and naval Forces”). And, as our discussion has made
abundantly clear, this controversy lacks discernible rules and
standards for judicial resolution.
C.
Several of Wu’s specific contentions merit mention. She
objects to the district court’s description of the altercation
between the USS Groves and the JCT 68 as “a belligerent
operation.” Wu, 997 F. Supp. 2d at 309; Appellant’s Br. 17-20,
29. In fact, Wu repeatedly characterizes Operation Ocean Shield
as little more than an oceanic traffic stop or “a traditional
police action on the high seas,” and analogizes the incident
with the JCT 68 to “a police officer stopping a vehicle on any
highway.” Appellant’s Br. 10, 19, 20. She stresses that the
government is attempting to escape responsibility by
establishing a safe zone between belligerency and ordinary law
enforcement actions. Thus the deference we offer is, under Wu’s
view, misplaced.
Wu misunderstands both the district court’s use of the term
“belligerent” and the law. Wu may be correct that the NATO’s
counter-piracy activities do not amount to “belligerency” in the
law of war meaning. See Black’s Law Dictionary 184 (10th ed.
2014) (defining “belligerency” as “the quality, state, or
11
condition of waging war”). But it is difficult for a court even
to define what war is. Campbell v. Clinton, 203 F.3d 19, 26
(D.C. Cir. 2000) (Silberman, J., concurring) (questioning the
existence of “a coherent test for judges to apply to the
question what constitutes war”). Yet the district court did not
say that the USS Groves’s actions constituted “war,” nor does
the government assert that the frigate was engaged in “war.”
Gov’t Br. 35 n.10. It is clear to us that the district court’s
use of the word “belligerent” was vernacular, not technical.
That does not mean, however, that the USS Groves was engaged in
a mere law enforcement action. Nothing about the events of May
10 and 11, 2011 -- from their far away location, to the
international forces and threat involved, to the military
command structure and equipment deployed -- is “consistent with
a traditional police action.” See Appellant’s Br. 19. American
military forces typically do not take part in simple law
enforcement, see 18 U.S.C. § 1385 (Posse Comitatus Act); 32
C.F.R. § 182.6(a)(3) (applying Posse Comitatus Act to the Navy),
and there is nothing to suggest garden-variety police activity
here.
Regardless, a state of war in the technical sense did not
have to exist for the actions of the USS Groves to be
unreviewable by the courts. As the Eleventh Circuit has noted,
“judicial intrusion into military practices would impair the
12
discipline that the courts have recognized as indispensable to
military effectiveness.” Aktepe v. United States, 105 F.3d 1400,
1404 (11th Cir. 1997). That case involved negligence claims by
Turkish sailors against the United States for injuries arising
out of a NATO training exercise. Id. at 1401-02. War did not
need to be declared for the political question doctrine to apply
to this sort of tort suit against the United States. It is
enough that plaintiff “ask[s] the courts to intrude in an area
in which they have no rightful power and no compass.” Smith v.
Reagan, 844 F.2d 195, 202 (4th Cir. 1988) (refusing under the
political question doctrine to entertain an action for a
declaratory judgment under the Hostage Act). The cases Wu cites
for the proposition that liability may attach to the United
States for negligent acts of Navy vessels are not to the
contrary, for none of them involved a military engagement. See
Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d
Cir. 1968); Pac.-Atl. S.S. Co. v. United States, 175 F.2d 632
(4th Cir. 1949); United States v. The Australia Star, 172 F.2d
472 (2d Cir. 1949); Bank Line v. United States, 163 F.2d 133 (2d
Cir. 1947); Lind v. United States, 156 F.2d 231 (2d Cir. 1946);
Ocean S.S. Co. of Savannah v. United States, 38 F.2d 782 (2d
Cir. 1930).
Wu also seems to suggest that because the USS Groves
“recaptured” the JCT 68, the district court possessed admiralty
13
jurisdiction pursuant to the law of prize. See Appellant’s Br.
33-35; Reply Br. 7. But the law of prize only applies where the
captor demonstrates “an intention to seize and to retain as
prize.” The Grotius, 13 U.S. (9 Cranch) 368, 370 (1815); see
also 28 U.S.C. § 1333 (granting federal district courts
exclusive jurisdiction over claims “for the condemnation of
property taken as prize” (emphasis added)). The law of prize in
essence adjudicates claims to ownership. See Jennings v. Carson,
8 U.S. (4 Cranch) 2, 23 (1807) (The courts “decide who has the
right, and they order its delivery to the party having the
right.”); 3 Op. Att’y Gen. 377 (1838); Thomas J. Schoenbaum, 1
Admiralty & Mar. Law § 3-2 (5th ed. 2011 & Supp. 2014). It is
doubtful that the JCT 68 was ever a prize, because neither the
USS Groves nor the NATO task force claimed or intended to claim
ownership of the JCT 68. See generally The Siren, 80 U.S. (13
Wall.) 389, 391-93 (1871) (describing English origins of law of
prize). As the district court recognized, “prize cases are in
rem actions, not tort suits.” Wu, 997 F. Supp. 2d at 309.
III.
Wu also challenges the district court’s holding that the
United States retains its sovereign immunity from suit because
it was engaged in the exercise of a discretionary function.
While this is framed as an alternative ground for decision, it
decidedly is not because the political question doctrine and the
14
discretionary function exception to waivers of sovereign
immunity overlap here in important respects. Wu contends that,
although the exception applies to the Suits in Admiralty Act, it
does not apply to suits brought under the Public Vessels Act and
that, even if it did, the sinking of the JCT 68 was beyond the
bounds of the USS Groves’s discretion.
A.
The SIAA and the PVA both waive sovereign immunity for in
personam admiralty suits. The SIAA does so where, “if a vessel
were privately owned or operated, or if cargo were privately
owned or possessed, or if a private person or property were
involved, a civil action in admiralty could be maintained.” 46
U.S.C. § 30903(a); see also McMellon v. United States, 387 F.3d
329, 334-37 (4th Cir. 2004) (en banc) (discussing history of
government waiver as to admiralty suits). The PVA waives
immunity for actions brought to recover “damages caused by a
public vessel of the United States.” 46 U.S.C. § 31102(a)(1).
Neither statute contains an explicit exception to the scope of
its waiver. In this respect, the statutes are unlike the Federal
Tort Claims Act (FTCA), which expressly prohibits courts from
hearing claims “based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty
on the part of a federal agency or an employee of the
15
Government, whether or not the discretion involved be abused.”
28 U.S.C. § 2680(a).
Nevertheless, in McMellon v. United States, 387 F.3d at
349, this court sitting en banc held that “the SIAA must be read
to include a discretionary function exception to its waiver of
sovereign immunity.” The discretionary function exception “is
grounded in separation-of-powers concerns.” Id. at 341 (citing
United States v. S.A. Empresa de Viacao Aerea Rio Grandense
(Varig Airlines), 467 U.S. 797, 808, 814 (1984)); see also
Tiffany v. United States, 931 F.2d 271, 276 (4th Cir. 1991).
Because the separation of powers is a constitutional doctrine,
“the courts must adhere [to it] even in the absence of an
explicit statutory command.” Canadian Transp. Co. v. United
States, 663 F.2d 1081, 1086 (D.C. Cir. 1980). The SIAA must thus
contain an implied discretionary function exception. Otherwise,
the courts would become arbiters of “administrative and
legislative . . . policy judgments.” Gercey v. United States,
540 F.2d 536, 539 (1st Cir. 1976). That would be an
“intolerable” result. In re Joint E. & S. Dists. Asbestos
Litig., 891 F.2d 31, 35 (2d Cir. 1989).
This logic applies with equal force to the PVA. The same
separation-of-powers concerns that were present with the SIAA
are present here. Without the discretionary function exception,
“all administrative and legislative decisions concerning the
16
public interest in maritime matters would be subject to
independent judicial review in the not unlikely event that the
implementation of those policy judgments were to cause private
injuries.” Gercey, 540 F.2d at 539. That outcome is inconsistent
with our Constitution. We are not alone in reaching this
conclusion as to the PVA. In fact, every circuit to consider the
issue has held that the PVA contains an implied discretionary
function exception. Thames Shipyard & Repair Co. v. United
States, 350 F.3d 247, 254 (1st Cir. 2003); B & F Trawlers, Inc.
v. United States, 841 F.2d 626, 630 (5th Cir. 1988); Tobar v.
United States, 731 F.3d 938, 945 (9th Cir. 2013); U.S. Fire Ins.
Co. v. United States, 806 F.2d 1529, 1534–35 (11th Cir. 1986),
abrogated on other grounds by United States v. Gaubert, 499 U.S.
315 (1991).
B.
In applying the discretionary function exception, we look
to FTCA cases for guidance. McMellon, 387 F.3d at 349. The
discretionary function exception applies to “conduct” that
“involves an element of judgment or choice.” Berkovitz v. United
States, 486 U.S. 531, 536 (1988). Where a case implicates such a
choice, it does not matter “whether or not the discretion
involved be abused.” 28 U.S.C. § 2680(a). The conduct of a
military engagement is the very essence of a discretionary
function. Cases involving the use of military force lure courts
17
into considering “complex, subtle, and professional [military]
decisions.” Gilligan v. Morgan, 413 U.S. 1, 10 (1973). All
military engagements involve discretionary decisions by military
commanders of all ranks -- choices that have to be made quickly
during moments of pronounced pressure.
Wu’s suit relies on questioning the wisdom of a series of
discretionary decisions, some of which we noted in the preceding
section. How should the warnings to the pirates have been
framed? What type of ordnance should have been used? What
weapons should have been used? At what range should the USS
Groves have fired from? Where precisely should the fire have
been directed? In light of the task force’s resources and the
goals of the counter-piracy mission, should the JCT 68 have been
sunk? “The list of inquiries is virtually endless and the
umbrella of negligence would encompass them all.” Tiffany, 931
F.2d at 279. The Supreme Court has held “that the selection of
the appropriate design for military equipment . . . is assuredly
a discretionary function.” Boyle v. United Techs. Corp., 487
U.S. 500, 511 (1988). All the more so would operational
decisions such as whether to sink a damaged pirate mothership in
the waters off of the Horn of Africa count as discretionary
functions too. Even if the NATO and American commanders abused
their discretion “so as to frustrate the relevant policy,” the
fact that the function is discretionary ab initio exempts those
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choices from judicial review. Gaubert, 499 U.S. at 338 (Scalia,
J., concurring in part and concurring in the judgment). “The
inquiry is thus whether the discretion exists, not whether in
later litigation it is alleged to have been abused.” Holbrook v.
United States, 673 F.3d 341, 350 (4th Cir. 2012).
Wu insists that the USS Groves acted in contravention of
law and thus that the government cannot claim the discretionary
function exception as a safe harbor. Reply Br. 9-11. But Wu does
not identify a law that would permissibly have circumscribed the
USS Groves’s course of action. Wu points to the Annotated
Supplement to the Commander’s Handbook on the Law of Naval
Operations (Nov. 1997 ed.), Articles 18 and 19 of the 1958
Geneva Convention on the High Seas, and Articles 104 and 105 of
the United Nations Convention on the Law of the Sea (UNCLOS).
Appellant’s Br. 32-33, 34 n.9; Reply 5 n.1, 7 n.3. The Handbook,
however, notes that it provides only “general guidance” and “is
not a comprehensive treatment of the law.” Handbook 1 (Nov. 1997
ed.). 1 “International treaties,” moreover, “are not presumed to
create rights that are privately enforceable.” Goldstar (Panama)
S.A. v. United States, 967 F.2d 965, 968 (4th Cir. 1992). Non-
1
Wu cites to the 1997 Annotated Supplement. The Handbook
was reissued in 2007. That newer version also states that it
provides only “general guidance” and “is not a comprehensive
treatment of the law.” The Commander’s Handbook on the Law of
Naval Operations 19 (July 2007 ed.).
19
self-executing treaties “do not by themselves function as
binding federal law.” Medellin v. Texas, 552 U.S. 491, 504
(2008). The 1958 Geneva Convention on the High Seas contains no
provision indicating that it is self-executing, and Wu offers no
statutory provision implementing the Convention. Wu admits that
the United States is not even a signatory to UNCLOS. Appellant’s
Br. 33.
In sum, nothing in this collection of documents deprives
the United States and its NATO allies of the discretion inherent
in sovereignty to conduct military operations free of judicial
oversight or hindsight. Nothing in these documents purports to
anticipate the myriad evolving circumstances that commanders
encounter on the ground or on the seas, much less which of the
many possible options those commanders should choose in
responding to them. In short, the firing upon the JCT 68 and the
subsequent sinking of that vessel were discretionary acts that
the judiciary may not take it upon itself to review.
IV.
Wu asserts that the district court should have allowed
discovery or at least held an evidentiary hearing to establish
that this case is justiciable. See Appellant’s Br. 17-18, 29;
Reply Br. 15-17. She points to our recent decision in Al Shimari
v. CACI Premier Tech., Inc., 758 F.3d 516, 534, 537 (4th Cir.
2014), as demonstration that discovery is needed to determine if
20
the claim may proceed. But that case is very different from the
case at bar. Al Shimari involved a private contractor working
for the federal government, a situation for which this Court has
developed a specialized political question doctrine analysis.
See id. at 533-34 (explaining test developed in Taylor v.
Kellogg Brown & Root Servs., Inc., 658 F.3d 402 (4th Cir.
2011)). More importantly, in Al Shimari we were “unable to
assess whether a decision on the merits would require the
judiciary ‘to question actual, sensitive judgments made by the
military.’” 758 F.3d at 536 (quoting Taylor, 658 F.3d at 411).
The complaint and accompanying record in this case do not suffer
from the same defects.
Whether or not every single fact in the Navy’s unclassified
investigative report is accurate, it quite clearly provided an
overall picture of the military engagement. The district court
was not required to litigate every fact in the report before
making the political question or discretionary function
determination, because litigating the facts would constitute
just the sort of involvement that those doctrines are designed
to avoid. We do not for a moment trivialize either Master Wu’s
death or the destruction of his ship, for which diplomatic
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channels should in all kindness dictate recompense. 2 But whether
or not the USS Groves properly approached and engaged the JCT 68
and whether or not the USS Groves should have sunk the vessel
are matters of international import and military judgment in
which we are loath to interfere. Under our constitutional system
of separation-of-powers, these cases raise questions that the
judiciary is not empowered to answer. The district court did not
err in dismissing the suit. Its judgment is
AFFIRMED.
2
The government asserts that “[a]cting under its authority
to conduct international relations,” the United States has in
fact made a payment to Master Wu’s family. See Gov’t Br. 4 n.1.
22