Koohi v. U.S.

• Decision Date: 08 October 1992
• Docket Number: Nos. 90-16107,90-16159,s. 90-16107
• Parties: , 61 USLW 2233 Mitra KOOHI; Iman Koohi, minor daughter; Kosar Koohi, minor daughter; Hassan Almassi; Iran Air Flight 655, Plaintiffs-Appellants, v. UNITED STATES of America; United States Department of Navy, Defendants-Appellees. Elizabeth H. BAILEY, as the personal representative, et al., Plaintiffs-Appellants, v. VARIAN ASSOCIATES, INC.; General Electric Co.; GE Aerospace; RCA Corp; Harnischfeger Industries; Syscon Corp.; Computer Sciences Corporation; John Connor, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1328

976 F.2d 1328

1994 A.M.C. 1514, 61 USLW 2233

Mitra KOOHI; Iman Koohi, minor daughter; Kosar Koohi,

minor daughter; Hassan Almassi; Iran Air Flight

655, Plaintiffs-Appellants,

v.

UNITED STATES of America; United States Department of Navy,

Defendants-Appellees.

Elizabeth H. BAILEY, as the personal representative, et al., Plaintiffs-Appellants, v. VARIAN ASSOCIATES, INC.; General Electric Co.; GE

Aerospace; RCA Corp; Harnischfeger Industries;

Syscon Corp.; Computer Sciences

Corporation; John Connor,

Defendants-Appellees.

Nos. 90-16107, 90-16159.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 11, 1992.

Decided Oct. 8, 1992.

Bruce A. Bailey, Burlingame, Cal., for plaintiffs-appellants.

Jeffrey Clair, U.S. Dept. of Justice, Washington, D.C., and Matthew D. Powers, Orrick, Herrington & Sutcliffe, San Francisco, Cal., for defendants-appellees.

Robert W. Hallock, James K. Meguerian, D'Ancona & Pflaum, Chicago, Ill., for Syscon Corp.

Appeal from the United States District Court for the Northern District of California.

Before: SCHROEDER, REINHARDT, and KLEINFELD, Circuit Judges.

REINHARDT, Circuit Judge:

The tragedy that gives rise to this lawsuit--the shooting down of a civilian aircraft by a United States warship--occurred in the midst of the undeclared "tanker war" that was a part of the larger hostilities between the nations of Iran and Iraq. During the tanker war, each of those nations attacked vessels carrying the other's oil. In August, 1986, Iran began to concentrate its attacks on ships calling at Kuwaiti ports, especially those flying the Kuwaiti flag. Those ships, according to Iran, were carrying Iraqi-produced cargo, primarily oil, as well as cargo destined for Iraq. Kuwait appealed to the United States for help in protecting its shipping. ¹

In March of 1987, the United States announced that it would allow qualifying Kuwaiti tankers to reregister under the American flag and that the United States Navy would then provide those tankers with protection. Because at that time Kuwait was closely allied with Iraq, the decision had the effect of aiding Iraq in its war with Iran. Shortly after the March announcement, American naval forces commenced protecting ships carrying Iraqi oil and products destined for Iraq against attacks by Iranian forces. Not surprisingly, the United States Navy soon began to engage in combat with Iranian naval vessels. We will mention only a few of the more publicized incidents. On September 21, 1987, two United States naval helicopters fired on an Iranian landing craft, disabling the craft and killing some of the crew. On October 8, Iranian gunboats fired on a United States naval helicopter; subsequently, United States naval forces destroyed one of the gunboats. On October 16, United States naval forces destroyed an Iranian oil platform. On April 14, 1988, a United States guided missile frigate struck a mine and was extensively damaged. In apparent retaliation, United States warships destroyed three Iranian oil platforms and sank or damaged six Iranian naval vessels.

The incident that underlies this lawsuit occurred on July 3, 1988. Early that morning, the USS Vincennes, a naval cruiser equipped with the computerized Aegis air defense system, dispatched a reconnaissance helicopter to investigate reported activity by Iranian gunboats. The helicopter was allegedly fired upon by antiaircraft guns. The Vincennes in turn crossed into Iranian territorial waters and fired upon the gunboats. Minutes later, a civilian Iranian Airbus, Iran Air Flight 655, took off from a joint commercial-military airport at Bandar Abbas, Iran. The Vincennes was in the vicinity of the aircraft's flight path. Its crew mistook the civilian aircraft for an Iranian F-14 and shot it down over the Persian Gulf. All 290 persons aboard the Iranian Airbus died. ²

Plaintiffs are the heirs of some of the deceased passengers and crew. They seek compensation from the United States and several private companies involved in the construction of the Aegis Air Defense System, which was deployed on the Vincennes. They assert two different types of claims: claims against the United States for the negligent operation of the Vincennes and claims against the weapons manufacturers for design defects in the Aegis system. Essentially, they contend that the defendants were, for differing reasons and to differing degrees, each responsible for the misidentification of the civilian Airbus as an F-14 and the consequent decision to shoot it down. They contend that various statutes impose liability on the defendants. Following the district court's dismissal of their lawsuits, the plaintiffs appealed. We affirm.

Justiciability

The defendants first contend that we may not take cognizance of the plaintiffs' action because it is not justiciable. Specifically, the defendants contend that the subject of the plaintiffs' action is a "political question" beyond the power of the federal courts. See, generally, Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). The political question doctrine serves to prevent the federal courts from intruding unduly on certain policy choices and value judgments that are constitutionally committed to Congress or the executive branch. See Japan Whaling Ass'n v. American Cetacean Society, 478 U.S. 221, 230, 106 S.Ct. 2860, 2866, 92 L.Ed.2d 166 (1986). The determination of whether a lawsuit raises a political question depends upon "a discriminating analysis of the question posed, in terms of the history of its management by the political branches, of its susceptibility in the light of its nature and posture of the specific case, and of the possible consequences of judicial action." Baker, 369 U.S. at 211-12, 82 S.Ct. at 707.

We do not believe that the plaintiffs' action should be dismissed on the basis of the political question doctrine. We note, as an initial matter, that governmental operations are a traditional subject of damage actions in the federal courts. See, e.g., Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) (negligence in fighting fires); Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (negligence in operating and maintaining a lighthouse). Thus, the federal courts have previously allowed damage actions alleging the negligent operation of naval vessels. See, e.g., United States v. United Continental Tuna Corp., 425 U.S. 164, 181-82, 96 S.Ct. 1319, 1329, 47 L.Ed.2d 653 (1976) (holding that a suit alleging that a naval vessel negligently collided with a merchant ship may be brought against the United States if it satisfies the reciprocity requirements of the Public Vessels Act); United States v. Lawter, 219 F.2d 559 (5th Cir.1955) (allowing suit for negligence during operation of an at-sea rescue); cf. United Air Lines, Inc. v. Wiener, 335 F.2d 379, 392-95 (9th Cir.) (allowing suit for aeronautic disaster arising from negligence during military training mission), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964). Accordingly, the fact that the plaintiffs' lawsuit involves the operation of a United States warship does not render it beyond judicial cognizance.

Nor is the lawsuit rendered judicially unmanageable because the challenged conduct took place as part of an authorized military operation. The Supreme Court has made clear that the federal courts are capable of reviewing military decisions, particularly when those decisions cause injury to civilians. The controlling case is The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290, 44 L.Ed. 320 (1900). That case involved the seizure of two Spanish fishing vessels by United States naval forces engaged in a military blockade during the Spanish-American War. The Supreme Court found that the question whether the seizure of the vessels was militarily justified could be reviewed by the Court. See id. at 686-713, 20 S.Ct. at 294-304. The Court then held that the decision to seize the vessels was not justified by military necessity and that the vessels must be returned. See id. at 713-14, 20 S.Ct. at 304-05. More recently, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the Court allowed a civil action alleging the unlawful operation of the national guard during the incident at Kent State, see id. at 247-49, 94 S.Ct. at 1692-93. These cases make clear that the claim of military necessity will not, without more, shield governmental operations from judicial review. Instead, as the Court has stated, "when presented with claims of judicially cognizable injury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury." Laird v. Tatum, 408 U.S. 1, 15-16, 92 S.Ct. 2318, 2327, 33 L.Ed.2d 154 (1972). As The Paquete Habana demonstrates, this is true in time of war as well as in time of peace, and with respect to claims by enemy civilians as well as by Americans.

A key element in our conclusion that the plaintiffs' action is justiciable is the fact that the plaintiffs seek only damages for their injuries. Damage actions are particularly judicially manageable. By contrast, because the framing of injunctive relief may require the courts to engage in the type of operational decision-making beyond their competence and constitutionally committed to other branches, such suits are far more likely to implicate political questions. Compare Gilligan v. Morgan, 413 U.S. 1, 11, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973) (refusing to take cognizance of a suit seeking judicial supervision of the operation and training of the Ohio National Guard in the wake of the Kent State shootings) with id. at 5, 93 S.Ct. at 2443 (suggesting that the court might allow a suit against the national guard for damages) and Scheuer, 416 U.S. at 247-49, 94 S.Ct. at 1692-93 (allowing such a suit). In sum, the federal courts are competent to determine...