Articles Posted in Aerospace/Defense

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Beydoun and Bazzi, both U.S. citizens, alleged that as a result of being placed on the federal government’s “Selectee List,” which designates them for enhanced screening at the airport, they have missed flights and been humiliated. The Selectee List is a subset of the government’s Terrorist Screening Database (TSDB). The Terrorist Screening Center (TSC) decides whether to accept the “nomination” of a person by the FBI or the National Counterterrorism Center to the TSDB or the Selectee List and decides whether to remove a name after it receives a redress request. Beydoun and Bazzi both claim to have attempted to use the procedure to challenge their inclusion on the List and to have received only generalized responses that neither confirmed nor denied their inclusion on the List. The district court dismissed their suits, which alleged violations of the Fifth Amendment and unlawful agency action. The Sixth Circuit affirmed. Plaintiffs did not allege that any protected interest was violated; they may have been inconvenienced by the extra security hurdles they endured in order to board an airplane but those burdens do not amount to a constitutional violation. Plaintiffs have not been prevented from flying altogether or from traveling by other means. View "Bazzi v. Sessions" on Justia Law

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Organizations that represent migrant farm-workers claimed that the U.S. Border Patrol allows agents at its Sandusky Bay, Ohio station to target persons of Hispanic appearance for questioning. The district court found that the Plaintiffs had not proved their claim. The Sixth Circuit affirmed. The Border Patrol trains its agents to follow the official policy, to avoid racial profiling and the plaintiffs did not prove the existence of a ratification-based policy of racial targeting at Sandusky Bay. The plaintiffs’ analysis of statistical information to show that agents from Sandusky Bay were targeting persons of Hispanic appearance was unreliable. View "Muniz-Muniz v. United States Border Patrol" on Justia Law

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All Tennessee Valley Authority (TVA) plant officers are required to maintain medical clearance as a condition of employment. Since his employment began in 2009, Hale maintained the clearance necessary for his position. In 2013, the TVA began requiring a pulmonary function test for that clearance; Hale failed the testing and was terminated because of his chronic obstructive pulmonary disorder. Hale sued, alleging disability discrimination and failure to accommodate under the Americans with Disabilities Act and the Rehabilitation Act. In an unsuccessful motion to dismiss, the TVA argued that Title VII’s national-security exemption applies to the Rehabilitation Act and precludes the court from reviewing the physical-fitness requirements imposed by the Nuclear Regulatory Commission in the interests of national security and that the Egan doctrine precludes the judiciary from reviewing the TVA’s determination that Hale lacked the physical capacity to fulfill his job duties because this decision was one of national security. The Sixth Circuit denied an interlocutory appeal; the national security exemption does not apply to Hale’s Rehabilitation Act claim. The court declined to extend Egan to preclude judicial review of an agency’s determination regarding an employee’s physical capability to perform the duties of his position. View "Hale v. Johnson" on Justia Law

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Mokdad, a naturalized U.S. citizen, alleges that he has been denied boarding on commercial airline flights between the U.S. and his native country, Lebanon because he was on the No Fly List. Mokdad applied for redress under the Department of Homeland Security Traveler Redress Inquiry Program (TRIP). Mokdad received a letter that did not confirm or deny whether he was on the List but informed him that “we have conducted a review of any applicable records in consultation with other federal agencies ... no changes or corrections are warranted at this time.” The letter notified him of his right to file administrative appeal with the Transportation Security Administration (TSA) within 30 days, that the TRIP determination would become final if he did not, and that final determinations are reviewable by the Court of Appeals under 49 U.S.C. 46110. Mokdad did not file a TSA administrative appeal or a petition with the Court of Appeals but filed a complaint in the Eastern District of Michigan against the Attorney General, the FBI, and the Director of the Terrorist Screening Center. Mokdad did not name TSA or any TSA officer. The Sixth Circuit reversed dismissal, finding that the district court had jurisdiction, but declined to address the challenge to the adequacy of procedures to contest inclusion on the No Fly List, for failure to join a necessary party. View "Mokdad v. Lynch" on Justia Law

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The Y-12 National Security Complex in Oak Ridge, Tennessee manufactures and tests components for nuclear weapons and stores highly enriched uranium, much of which is eventually “down-blended” for civilian use, at a Highly Enriched Uranium Materials Facility (HEUMF). It is not used to store or otherwise manufacture nuclear weapons or for military operations. An 82 year-old nun and two Army veterans, ages 57 and 63, cut through four layers of fences and reached the HEUMF, spray-painted antiwar slogans, hung crime tape and banners with biblical phrases, splashed blood, and sang hymns. When a guard arrived, the group offered him bread and read aloud a message about “transform[ing] weapons into real life-giving alternatives to build true peace.” The group surrendered, having caused $8,000 of damage to government property. The government charged them with injuring government property, 18 U.S.C. 1361, and violation of the peacetime provision of the Sabotage Act, 18 U.S.C. 2155(a), which applies if the defendant acted “with intent to injure, interfere with, or obstruct the national defense,” and authorizes a sentence of up to 20 years. A jury convicted the defendants on both counts. The Sixth Circuit reversed in part; the defendants lacked the intent necessary to violate the Sabotage Act. View "United States v. Walli" on Justia Law

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In 1983, Pratt & Whitney made false statements to the Air Force while competing with GE to supply fighter jet engines. Pratt did not obtain more business and the fraud was discovered. The government filed a 1998 action before the Armed Services Board of Contract Appeals seeking relief under the Truth in Negotiations Act, and a 1999 federal court action, seeking relief under the False Claims Act and common law restitution. The government lost the administrative action. While Pratt’s statements violated the truth-in-negotiation requirements, the Board refused to lower the price of the contracts retroactively (the remedy permitted by the Act) because the Air Force had relied on the competitive bids, not the 1983 false statements, in determining a reasonable price for the contracts. The Federal Circuit affirmed. After it was established that Pratt violated the False Claims Act and that it owed the government $7 million in statutory penalties, the case was remanded for damages calculation. The district court awarded $657 million. The Sixth Circuit remanded again, noting that the matter has been in litigation for 17 years. The award was not supported by the evidence given the government expert’s refusal to account for the competition between the companies in setting a fair market value for the engines. View "United States v. United Techs. Corp." on Justia Law

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In 2008, the FBI issued its Domestic Investigations and Operations Guide (DIOG) to implement newly revised Department of Justice guidelines, addressing use of race and ethnicity in investigations. Under this guidance, the FBI may identify and map “locations of concentrated ethnic communities” to “reasonably aid the analysis of potential threats and vulnerabilities … assist domain awareness,” and collect “[f]ocused behavioral characteristics reasonably believed to be associated with a particular criminal or terrorist element of an ethnic community.” The ACLU submitted a Freedom of Information Act request, seeking release of documents concerning policy on collecting such information, and records containing information actually collected. The FBI initially released 298 pages (48 partially redacted) of training material, previously released for a similar request by the ACLU’s Atlanta affiliate. The ACLU filed suit. With additional releases, the FBI identified 1,553 pages of potentially responsive records: training materials, “domain intelligence notes,” “program assessments,” “electronic communications,” and maps. The district court held that the FBI appropriately withheld records under a FOIA exemption for law enforcement information whose release could “interfere with enforcement proceedings,” 5 U.S.C. 552(b)(7)(A). The Sixth Circuit affirmed; release of publicly available information selectively used in investigations may reveal law-enforcement priorities and methodologies and interfere with enforcement. The ACLU’s proposed procedure for resolving the dispute was inadequately protective of sensitive information; in camera review was appropriate. View "Am. Civil Liberties Union v. Fed. Bureau of Investigation" on Justia Law