Koohi v. United States

KLEINFELD, Circuit Judge,

concurring:

I concur in the result.

We probably can avoid resolving a constitutional issue, whether we lack jurisdiction under the political question doctrine, because sovereign immunity makes the case insubstantial on the merits. Clow v. U.S. Department of Housing and Urban Development, 948 F.2d 614, 616 (9th Cir.1991). Both political question doctrine and sovereign immunity go to jurisdiction. Rivera v. United States, 924 F.2d 948, 951 (9th Cir.1991). If it were necessary to reach it, I would conclude that we have no jurisdiction under the political question doctrine.

We flew the American flag on foreign vessels to protect shipping in the Persian Gulf during the Iran-Iraq war. An Iraqi warplane had successfully fired missiles at an American warship, the U.S.S. Stark. After more than a year of violent naval and air encounters, the Iranian passenger airplane took off during an exchange of fire between American and Iranian gunboats. The commander of the Vincennes had to decide, in the heat of battle, whether to risk his sailors and his ship on the unidentified approaching plane. The United States paid money to the airplane passengers’ estates, but made a point, for foreign policy purposes, of not acknowledging any wrongdoing.

The means and methods of making war are assigned to the executive branch by Article II, Section 2 of the Constitution. Every one of the reasons for treating a question as outside our jurisdiction under the political question doctrine, listed in Baker v. Carr, 369 U.S. 186, 217 , 82 S.Ct. 691, 710 , 7 L.Ed.2d 663 (1962), applies here. Baker v. Carr teaches that foreign relations and determination of when or whether a war has ended, illustrate areas of application of the doctrine. Id. at 211-13 , 82 S.Ct. at 706-08 ; see Sarnoff v. Connally, 457 F.2d 809 (9th Cir.), cert. denied sub nom. Sarnoff v. Schultz, 409 U.S. 929 , 93 S.Ct. 227 , 34 L.Ed.2d 186 (1972). The Federalist Papers, explaining why the Constitution makes the President commander in chief, says, “Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.” The Federalist No. 74 (Hamilton), Cooke ed. at 500 (1788).

The authorities upon which the majority relies do not extend federal court jurisdiction to questions of how we fight in com *1338 bat. The Paquete Habana, 175 U.S. 677 , 20 S.Ct. 290 , 44 L.Ed. 320 (1900), did not raise the issue of justiciability. The executive branch filed the libel in admiralty, to obtain an adjudication of title, so the court had no occasion to adjudicate whether the executive branch was entitled to avoid a judicial determination. The President had made an executive determination that the Spanish-American War was to be conducted according to international law, so the only question before the court was whether under international law title to non-combatant fishing boats could pass under the doctrine of war prizes. Scheuer v. Rhodes, 416 U.S. 232 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974) resolved the scope of immunity from damage suits of state officials under the Eleventh Amendment and common law tort doctrine. It did not address whether the federal courts can adjudicate questions arising out of the federal executive’s conduct in firing weapons at putative attackers during combat.

The phrase “time of war” in the Federal Tort Claims Act is ambiguous, so a literal construction cannot determine the scope of the exception. Does it mean a time during which Congress has declared war, or a time during which the military forces of the United States are engaged in the use of arms? If the former, the exception does not apply. If the latter, it does. The latter is a more reasonable interpretation. Congress probably did not intend that the government be liable for failure to exercise reasonable care for the safety of those against whom our armed forces are deployed in combat, whether war had formally been declared or not.

The Public Vessels Act does not create new causes of action against the United States. The Act subjects the government to liability in certain cases where a private vessel would be liable. Allen v. United States, 338 F.2d 160, 162 (9th Cir.1964), cert. denied, 380 U.S. 961 , 85 S.Ct. 1104 , 14 L.Ed.2d 152 (1965). The appellants have found no case where the statute was read to subject the United States to liability for conduct during combat of a warship. This unprecedented and surprising notion, that our warships must exercise reasonable care toward their targets even as they fire, seems unlikely to have been the intent of Congress and the President when they promulgated the law.

I agree with the majority, that the defense contractors did not owe a duty of reasonable care to those toward whom the weapons they made might be fired.