                               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

                                                5
     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

                                         7
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



                                         8
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

                                          18
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




                                                21
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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