Aktepe v. United States

United States Court of Appeals, Eleventh Circuit.

No. 96-2167.

Ahmet AKTEPE, as personal representative of the estate of his
son, Serkan Aktepe, deceased, Celal Kilinc, as personal
representative of the estate of his son Mustafa Kilinc, deceased,
Karim Aslan, Tayfun Balkan, Fahrettin Balkir, Mehmet Basal, Meftun
Dirman, Necati Erol, Murat Gunes, Nizamettin Guz, Fazli Kesgun, et
al., Plaintiffs-Appellants,

v.

USA, Defendant-Appellee.

Feb. 20, 1997.

Appeal from the United States District Court for the Middle
District of Florida. (No. 94-946-CIV-J-20), Harvey E. Schlesinger,
Judge.

Before COX and BLACK, Circuit Judges, and FAY, Senior Circuit
Judge.

BLACK, Circuit Judge:

Approximately 300 Turkish Navy sailors appeal the district

court's order granting summary judgment in favor of the United

States on their claims for death and personal injury suffered when

two missiles fired from the USS SARATOGA (Saratoga) struck their

vessel during North Atlantic Treaty Organization (NATO) training

exercises. As this case presents a nonjusticiable political

question, we affirm the district court's grant of summary judgment.

I. BACKGROUND

The underlying facts are uncontested. During the fall of

1992, the United States, Turkey, and several other NATO members

participated in "Exercise Display Determination 1992," a combined

forces naval exercise under the overall command of Admiral J.M.

Boorda of the United States Navy. The forces of participating

nations were assigned to either of two multinational teams. Vice
Admiral T. Joseph Lopez of the United States Navy led the "Brown

Forces," which included the United States aircraft carrier

Saratoga. The opposing "Green Forces," including the Turkish

Destroyer TCG MUAVENET (Muavenet), were under the direct control of

Admiral Kroon of the Netherlands.

During the "enhanced tactical" phase of the training

exercises, the Brown Forces were to attempt an amphibious landing

at Saros Bay, Turkey against the resistance offered by the Green

Forces. Admiral Boorda ordered the units comprising each force to

actively seek and "destroy" each other. Both task force commanders

had full authority to engage the enemy when and where they deemed

appropriate and to use all warfare assets at their disposal to

achieve victory. Needless to say, all confrontations were intended

to be simulated attacks.

On October 1, 1992, the Combat Direction Center Officer aboard

the Saratoga decided to launch a simulated attack on nearby

opposition forces utilizing the Sea Sparrow missile system. After

securing the approval of the Saratoga's Commanding Officer and the

Battle Group Commander, the Combat Direction Center Officer

implemented the simulated assault plan. Without providing prior

notice, officers on the Saratoga woke the enlisted Sea Sparrow

missile team and directed them to conduct the simulated attack.

Certain members of the missile firing team were not told that the

exercise was a drill, rather than an actual event.

As the drill progressed, the missile system operator used

language to indicate he was preparing to fire a live missile, but

due to the absence of standard terminology, the responsible
officers failed to appreciate the significance of the terms used

and the requests made. Specifically, the Target Acquisition System

operator issued the command "arm and tune," terminology the console

operators understood to require arming of the missiles in

preparation for actual firing. The officers supervising the drill

did not realize that "arm and tune" signified a live firing. As a

result, the Saratoga inadvertently fired two live Sea Sparrow

missiles at the Muavenet. Both missiles struck the Muavenet,

resulting in several deaths and numerous injuries.

On September 29, 1994, some of the Turkish Navy sailors

serving aboard the Muavenet instituted this action by suing the

United States under the Public Vessels Act, 46 U.S.C.App. §§ 781-

790, and the Death on the High Seas Act, 46 U.S.C.App. §§ 761-768.

The present action encompasses 2 wrongful death claims and 299

personal injury claims arising out of the inadvertent missile

firing. On September 22, 1995, the United States filed a motion

for summary judgment, contending that this case presents a

nonjusticiable political question. The district court granted the

motion by order issued January 2, 1996.1 On appeal, Appellants

contend that the district court erred by dismissing its claims

under the political question doctrine.

II. ANALYSIS

The justiciability of a controversy depends not upon the

1
Although the district court declined to reach the issue,
the order granting summary judgment also suggested that dismissal
probably would have been required under Feres v. United States,
340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). As we conclude
that this case presents a nonjusticiable political question, we
decline to address the applicability of Feres doctrine.
existence of a federal statute, but upon whether judicial

resolution of that controversy would be consonant with the

separation of powers principles embodied in the Constitution. See

Dickson v. Ford, 521 F.2d 234, 235 (5th Cir.), cert. denied, 424

U.S. 954, 96 S.Ct. 1428, 47 L.Ed.2d 360 (1975). Separation of

powers is a doctrine to which the courts must adhere even in the

absence of an explicit statutory command. Tiffany v. United

States, 931 F.2d 271, 276 (4th Cir.1991), cert. denied, 502 U.S.

1030, 112 S.Ct. 867, 116 L.Ed.2d 773 (1992). Restrictions derived

from the separation of powers doctrine prevent the judicial branch

from deciding "political questions," controversies that revolve

around policy choices and value determinations constitutionally

committed for resolution to the legislative or executive branches.

Japan Whaling Ass'n v. American Cetacean Soc., 478 U.S. 221, 230,

106 S.Ct. 2860, 2866, 92 L.Ed.2d 166 (1986); Abebe-Jira v. Negewo,

72 F.3d 844, 848 (11th Cir.), cert. denied, --- U.S. ----, 117

S.Ct. 96, 136 L.Ed.2d 51 (1996).

In Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7

L.Ed.2d 663 (1962), the Supreme Court identified six hallmarks of

political questions, any one of which may carry a controversy

beyond justiciable bounds:

[1] a textually demonstrable constitutional commitment of the
issue to a coordinate political department; [2] a lack of
judicially discoverable and manageable standards for resolving
it; [3] the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial
discretion; [4] the impossibility of a court's undertaking
independent resolution without expressing lack of the respect
due coordinate branches of government; [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.
For invocation of the political question doctrine to be

appropriate, at least one of these characteristics must be evident.

Id. at 217, 82 S.Ct. at 710.

Foreign policy and military affairs figure prominently among

the areas in which the political question doctrine has been

implicated. The Supreme Court has declared that "[m]atters

intimately related to foreign policy and national security are

rarely proper subjects for judicial intervention." Haig v. Agee,

453 U.S. 280, 292, 101 S.Ct. 2766, 2774, 69 L.Ed.2d 640 (1981).

The Constitution commits the conduct of foreign affairs to the

executive and legislative branches of government. See, e.g.,

Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309,

311, 62 L.Ed. 726 (1918); Dickson, 521 F.2d at 236. At the same

time, it is error to suppose that every case or controversy which

touches foreign relations lies beyond judicial cognizance. Baker,

369 U.S. at 211, 82 S.Ct. at 707. Ultimately, whether a foreign

relations controversy lies beyond judicial cognizance requires

"discriminating analysis of the particular question posed, in terms

of the history of its management by the political branches, of its

susceptibility to judicial handling in light of its nature and

posture in the specific case, and the possible consequences of

judicial action." Id.

In a related manner, the political branches of government are

accorded a particularly high degree of deference in the area of

military affairs. Owens v. Brown, 455 F.Supp. 291, 299

(D.D.C.1978). The Constitution emphatically confers authority over

the military upon the executive and legislative branches of
government. U.S. Const. art. I, § 8, cls. 11-16 (granting Congress

the power to declare war and to provide for, organize, arm,

maintain, and govern the military); U.S. Const. art. II, § 2

(providing the President shall be the Commander-in-Chief of the

armed forces); see also United States v. Stanley, 483 U.S. 669,

682, 107 S.Ct. 3054, 3063, 97 L.Ed.2d 550 (1987) (noting the

insistence with which the Constitution granted authority over the

Army, Navy, and militia to the political branches). The Supreme

Court has generally declined to reach the merits of cases requiring

review of military decisions, particularly when those cases

challenged the institutional functioning of the military in areas

such as personnel, discipline, and training. See, e.g., Chappell

v. Wallace, 462 U.S. 296, 304, 103 S.Ct. 2362, 2368, 76 L.Ed.2d 586

(1983) (concluding that unique disciplinary structure of the

military establishment precluded enlisted military personnel from

seeking to recover from their superior officers for alleged

constitutional violations); Gilligan v. Morgan, 413 U.S. 1, 5-13,

93 S.Ct. 2440, 2443-47, 37 L.Ed.2d 407 (1973) (refusing to review

and assert continuing regulatory control over the training of the

Ohio National Guard); Orloff v. Willoughby, 345 U.S. 83, 90-92, 73

S.Ct. 534, 538-39, 97 L.Ed. 842 (1953) (holding that commissioning

of officers in the Army was a matter of discretion within the

province of the President).

As with many cases that directly implicate foreign relations

and military affairs, the instant controversy raises a

nonjusticiable political question. This suit exhibits most, if not

all, of the indicia of political questions identified by the
Supreme Court in Baker v. Carr. First, the Constitution commits

the issues raised by this action to the political branches of

government. The underlying events involve two nations engaged in

a NATO training exercise. The relationship between the United

States and its allies, like the broader question of which nations

we number among our allies, is a matter of foreign policy. As

courts are unschooled in "the delicacies of diplomatic negotiation

[and] the inevitable bargaining for the best solution of an

international conflict," the Constitution entrusts resolution of

sensitive foreign policy issues to the political branches of

government. See Smith v. Reagan, 844 F.2d 195, 199 (4th Cir.)

(quoting Holtzman v. Schlesinger, 484 F.2d 1307, 1312 (2d

Cir.1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d

286 (1974)), cert. denied, 488 U.S. 954, 109 S.Ct. 390, 102 L.Ed.2d

379 (1988). Similarly, the Constitution reserves to the

legislative and executive branches responsibility for developing

military training procedures that will ensure the combat

effectiveness of our fighting forces. See Gilligan, 413 U.S. at 5-

13, 93 S.Ct. at 2443-47; Nation Magazine v. United States Dep't of

Defense, 762 F.Supp. 1558, 1567 (S.D.N.Y.1991).

Second, no judicially discoverable and manageable standards

exist for resolving the questions raised by this suit. In order to

determine whether the Navy conducted the missile firing drill in a

negligent manner, a court would have to determine how a reasonable

military force would have conducted the drill. As the Supreme

Court noted in a related context, "it is difficult to conceive of

an area of governmental activity in which the courts have less
competence." Gilligan, 413 U.S. at 10, 93 S.Ct. at 2446.

Decisions relative to training result from a complex, subtle

balancing of many technical and military considerations, including

the trade-off between safety and greater combat effectiveness. See

Boyle v. United Technologies Corp., 487 U.S. 500, 511, 108 S.Ct.

2510, 2518, 101 L.Ed.2d 442 (1988). Courts will often be without

knowledge of the facts or standards necessary to assess the wisdom

of the balance struck. Rappenecker v. United States, 509 F.Supp.

1024, 1029 (N.D.Cal.1980). More particularly, courts lack

standards with which to assess whether reasonable care was taken to

achieve military objectives while minimizing injury and loss of

life. See DaCosta v. Laird, 471 F.2d 1146, 1155 (2d Cir.1973);

Rappenecker, 509 F.Supp. at 1030.

Third, resolving this case inevitably would require that

courts make initial policy decisions of a kind appropriately

reserved for military discretion. For example, a court could not

conclude that the Navy behaved negligently when it declined to

advise each member of the Sea Sparrow missile team that the firing

was a drill without rendering a policy determination regarding the

necessity of simulating actual battle conditions. Trained

professionals, subject to the day-to-day control of the responsible

civilian authorities, necessarily must make comparative judgments

on the merits as to evolving methods of training, equipping, and

controlling military forces with respect to their duties under the

Constitution. Gilligan, 413 U.S. at 8, 93 S.Ct. at 2444-45. It

would be inappropriate for a district court to undertake this

responsibility in the unlikely event that it possessed the
requisite technical competence to do so. Id. at 8, 93 S.Ct. at

2445.

Fourth, adjudicating this case would express a lack of respect

for the political branches of government by subjecting their

discretionary military and foreign policy decisions to judicial

scrutiny, notwithstanding the judiciary's relative lack of

expertise in these areas. The interjection of tort law into the

realms of foreign policy and military affairs would effectively

permit judicial reappraisal of judgments the Constitution has

committed to the other branches. Tiffany, 931 F.2d at 278.

Appellants' effort to cast their suit as a common negligence

action directed at lower-level military operatives is unconvincing.

The allegations of the complaint launch a far more sweeping assault

on the Navy's practices than Appellants acknowledge. The complaint

alleges negligence relating to Navy communication, training, and

drill procedures. Moreover, even if the complaint actually

targeted only operational level personnel, that fact would not

eliminate the justiciability problem. The court would still have

to decide how the weapon system operator should have behaved. In

the present context, such an inquiry might require the judiciary to

determine whether members of the Sea Sparrow missile team should

have demanded confirmation of their superior's apparent instruction

to fire a live missile. Such judicial intrusion into military

practices would impair the discipline that the courts have

recognized as indispensable to military effectiveness. See, e.g.,

Chappell, 462 U.S. at 300, 103 S.Ct. at 2365-66 (noting that "the

habit of immediate compliance with military procedures and orders
must be virtually reflex with no time for debate or reflection").

III. CONCLUSION

This case presents a nonjusticiable political question because

it would require a court to interject itself into military

decisionmaking and foreign policy, areas the Constitution has

committed to coordinate branches of government.

AFFIRMED.