Wu Tien Li-Shou v. United States

• Decision Date: 23 January 2015
• Docket Number: No. 14–1206.,14–1206.
• Citation: 777 F.3d 175
• Parties: WU TIEN LI–SHOU, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

777 F.3d 175

WU TIEN LI–SHOU, Plaintiff–Appellant

v.UNITED STATES of America, Defendant–Appellee.

No. 14–1206.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 10, 2014.

Decided: Jan. 23, 2015.

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.

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Opinion

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Judge KING joined.

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 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 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).

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, 82 S.Ct. 691, 7 L.Ed.2d 663 (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, 2 L.Ed. 60 (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, 82 S.Ct. 691. 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, 82 S.Ct. 691. 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 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, 82 S.Ct. 691. 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, 82 S.Ct. 691.

“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 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 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...