Wu Tien Li-Shou v. United States

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).

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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

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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

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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

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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

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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

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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

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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.).

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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

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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.

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