Category: Military Law

Department of Defense Contractors Agree to Pay the U.S. Government $5.5 Million for Allegedly Supplying the Military with Low-Grade Batteries for Humvee Gun Turrets Used in Iraq; Minnesota Whistleblower to Receive $990,000

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On September 16, 2014, the Department of Justice (DOJ) announced that Department of Defense (DOD) contractors, M.K. Battery, Inc. (M.K. Battery), East Penn Manufacturing Company (East Penn), NPC Robotics, Inc. (NPC), BAE Systems, Inc. (BAE) and BAE Systems Tactical Vehicle Systems LP (BAE) had agreed to a settlement of $5.5 million for allegedly violating the False Claims Act (FCA) by selling the U.S. Military substandard batteries for Humvee gun turrets used on military combat vehicles in Iraq. Minnesota whistleblower, David McIntosh, former employee of M.K. Battery, will receive $990,000 which represents his share of the settlement for reporting fraud against the government – in this case misrepresentation of a vital product supplied to the DOD.

A gun turret is a weapon mount that protects the crew or mechanism of a projectile-firing weapon and at the same time lets the weapon be aimed and fired in many directions. Sealed acid batteries are used as a backup to turn the turrets on the Humvees in the event that the engine gives out.  According to Mr. McIntosh, and unbeknownst to the Army, the manufacturing process of the batteries was allegedly changed from the original design presented to the DOD, consequently cutting the battery’s life span by as much as 50 percent and potentially putting U.S. Troops in harm’s way.  Mr. McIntosh, from Stacy, Minnesota, who at the time was employed by M.K. Battery as a regional sales representative, brought his concerns to top company officials at M.K. Battery.  However, in 2007 after numerous unsuccessful attempts to convince M.K. Battery that its decision to cut costs on these batteries could be hazardous to U.S. Troops, especially during combat, Mr. McIntosh alerted the DOD to this matter.  Three month later, M.K. Battery fired Mr. McIntosh.

Shortly thereafter, Mr. McIntosh and his attorneys filed the lawsuit under the whistleblowersprovisions of the False Claims Act, which is one of the most effective methods that the government has implemented for combating fraud. Under the FCA, any person, who knows of an individual or company that has defrauded the federal government, can file a “qui tam” lawsuit to recover damages on the government’s behalf.  Mr. McIntosh filed this particular lawsuit on behalf of himself and the Department of Defense. Additionally, a whistleblower who files a case against a company that has committed fraud against the government, may receive an award of up to 30 percent of the settlement. In this case, Mr. McIntosh’s share of $5.5 million is approximately 18 percent of the settlement.

ARTICLE BY

Whistleblower Practice Group
OF
Tycko & Zavareei LLP
© 2014 by Tycko & Zavareei LLP

Drones Over Kenya and South Africa?

Covington BUrling Law Firm

Similar to the growing U.S. interest in exploring civilian uses of unmanned aircraft systems (“UAS”), efforts are underway across the African continent to deploy UAS in innovative ways such as protecting wildlife, expanding internet connectivity to isolated communities, and delivering humanitarian aid.  In Kenya, Dickens Olewe and his African SkyCAM project is helping journalists to revolutionize their news reporting and coverage.

The winner of the inaugural African News Innovation Challenge, African SkyCAM “establishes Africa’s first newsroom-based ‘eye in the sky’ drones and camera-equipped balloons to help media that cannot afford news helicopters cover breaking news in dangerous situations or difficult-to-reach locations.”  It has the potential to address two of the main shortcomings faced by traditional news media in the region.  First, journalists who lack financial and technological resources to conduct remote reporting often are “‘risking life and equipment’” to get their story.  Second, by not resorting to state-owned UAS, journalists are able to maintain editorial independence in their reporting.

Use of UAS for journalism and other civilian purposes in the region is facing the same regulatory challenges which are delaying their widespread deployment in the U.S.  Although the Kenyan government has not yet established a regulatory framework for civilian UAS, it has indefinitely grounded both the Flying Donkey Challenge (a high-profile, Swiss-funded competition to develop flying robots which are capable of carrying heavy cargo over long distances) and the Ol Pejeta Conservancy’s wildlife surveillance drone.  Similarly, earlier this year, the South African Civil Aviation Authority announced a “clampdown” on civilian UAS, a warning that some observers believe has chilled this nascent industry.  However, it is promising that the South African government has stated that it is “cognizant of the urgent need and demand for UAS usage” and that it will be releasing an interim guidance document by March 31st of next year.  In addition, South Africa and other countries in the International Civil Aviation Organisation Unmanned Aircraft Systems Study Group are continuing to work to develop a safe and harmonised regulatory framework.

In the meantime, African SkyCAM (which is looking to expand to Mozambique and Namibia) and others will need to pay careful attention to finding the proper balance between business, compliance, and innovation.

ARTICLE BY

Mipe Okunseinde
 
OF 
Covington & Burling LLP

July 4th Puts the Federal Aviation Administration (FAA) Drone Policy to the Test

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Dramatic videos posted over the holiday weekend show fireworks displays that were filmed from drones.  The videos are remarkable, with the drones often flying within the sweep of the exploding shells.  Burning fireworks frequently zoom past the cameras.  We found drone fireworks videos from Decatur, Ga., Lake Martin, Ala., Oak Mountain State Park, Ala., and Nashville, Tenn.  The drone operators may have been inspired by a popular YouTube video of fireworks over West Palm Beach that attracted more than 6 million views and considerable press coverage.

We expect that the videos are also causing post-holiday headaches at the FAA.  The FAA’s reaction to these videos may prove to be an early test of its recent regulatory notice interpreting its longstanding rules on model aircraft.

As we previously reported, the FAA is playing catch up on its drone rules.  For years, the agency’s regulation of drones was limited to an advisory circular from 1981 and a policy statement from 2007, neither of which provided a comprehensive set of rules.  In March, the agency lost an enforcement action against a drone operator largely because it had never adopted specific regulations for drones.

On June 23, the FAA took a substantial step forward by issuing a notice of the agency’s interpretation of its authority to regulate drones.  The notice interprets Congress’s 2012 FAA legislation, including a provision that prohibits FAA regulation of model aircraft that are flown for “hobby or recreational” purposes and that meet certain other criteria.

In a key provision of the interpretation, the FAA stated that Congress’s prohibition on regulating model aircraft does not prohibit the agency from enforcing – against drone operators – the “general rules . . . that apply to all aircraft.”  This interpretation would permit the agency, for example, to allege that the fireworks drone operators violated regulations that prohibit careless and reckless operations that endanger life or property.

Finally, for those following the FAA’s position on commercial operation of drones, the fireworks videos may present a novel issue related to compensation.  In the June 23 interpretation, the FAA reiterated its longstanding position that commercial drone operations are generally prohibited, and the agency cited the example of “photographing [an] event and selling the photos to someone else.”

Some of the fireworks videos we reviewed were preceded by advertisements, which would appear to indicate that they are part of the YouTube Partner Program, where a portion of the advertising revenue is paid to the video creator.  The FAA has traditionally adopted a very broad view of commercial operations, and it will be interesting to see whether it considers “monetized” videos to cross the line.

We expect the FAA may have something to say about these fireworks videos.

Article By:

Brian D Smith
Of:
Covington & Burling LLP

 

The Exploding Use of Drones

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The potential for drones, i.e., unmanned aircraft systems (“UAS”), is tremendous.  After years of being associated with military operations, the civilian UAS market is expected to dramatically expand in the United States in the next ten years.  A multitude of conceivable applications for UAS — including mapping, weather forecasting, law enforcement, news gathering, real estate, photography, agriculture, and freight transport — promises to change the way business is done across a diverse array of industries and companies.

By any measure, the UAS market is significant and growing. Optimistic analysts project that annual U.S. civilian spending on UAS will grow from $1.15 billion in 2015 to $4 billion in 2020 and $5.11 billion in 2025.   Less sanguine analysts place the annual worldwide civilian UAS market between $498 million and $1 billion  by 2020.  The FAA predicts that UAS will be the “most dynamic growth sector within aviation industry.”

However, many legal and regulatory obstacles remain before drones can be widely used in our national airspace.  Current federal law prohibits UAS in most circumstances with exceptions for test flights and government aircraft that secure special permission from the FAA.

This will change because Congress delegated to the Federal Aviation Administration (FAA) the task of integrating UAS in to the National Airspace System by September 2015.  Quite apart from the regulatory framework developed by the FAA, numerous legal issues will arise ranging from takings and property torts relating to flights over private property to privacy issues.  State tort laws will be heavily involved.

Notwithstanding these legal and regulatory challenges to widespread UAS usage, there is great momentum and potential for this new form of aviation.  Businesses should focus on how they can benefit from the use of drones.  Once they have done so, they should navigate the legal and regulatory thicket.  The rewards could be substantial.

Article By:

Jack L. Schenendorf
Of:
Covington & Burling LLP

New Export Control Changes Affect Naval Warfare and Ground Vehicles

Morgan Lewis

 

Second phase of the Export Control Reform Initiative allows certain U.S. industries to fall into categories that may make them more attractive to foreign buyers.

On January 6, the Obama administration reached another important milestone of the president’s Export Control Reform (ECR) Initiative, with the second phase of revised export control lists and regulations taking effect.[1] These second phase changes significantly affect naval warfare, ground vehicle, and other industries as they present an opportunity for manufacturers and exporters to reclassify certain items under a more flexible and beneficial regulatory system.

The New Rules

The new lists and regulations continue the process of fundamentally updating the United States’ export control regimes and include revisions to U.S. Munitions List (USML) Categories VI (Vessels of War and Special Naval Equipment), VII (Tanks and Military Vehicles), XIII (Auxiliary Military Equipment), and XX (Submersible Vessels). The revisions transition many less sensitive items from the U.S. Department of State’s International Traffic in Arms Regulations (ITAR) USML to the more flexible Department of Commerce’s Export Administration Regulations (EAR) Commerce Control List (CCL).

The new USML controls in these four categories are no longer broad and generic controls that capture everything. They are now detailed, enumerated lists that impose controls based on the sensitivity of an item.

Category VI (Vessels of War and Special Naval Equipment)

“Surface vessels of war” remain in USML Category VI and are now positively defined in new ITAR section 121.15 as the following: battleships, aircraft carriers, destroyers, frigates, cruisers, corvettes, littoral combat ships, mine sweepers, mine hunters, mine countermeasure ships, dock landing ships, amphibious assault ships, or cutters. Less sensitive items—such as generic parts, components, accessories, or attachments—are now subject to the more flexible authorities of the EAR and will transition to the CCL under Export Control Classification Number (ECCN) 8A609.

The key to determining whether an item will transition from USML Category VI to the CCL under ECCN 8A609 or another ECCN in the CCL will depend on the application of the new ITAR and EAR definitions of “specially designed.” The revised USML Category VI does not contain controls on all general parts, components, accessories, and attachments specifically designed or modified for a defense article, regardless of their significance to maintaining a military advantage for the United States. Rather, it now contains a positive list of specific types of parts, components, accessories, and attachments that continue to warrant control on the USML. All other parts, components, accessories, and attachments are subject to the new “600 series” controls in Category 8 of the CCL.

Category VII (Tanks and Military Vehicles)

The revision narrows the types of ground vehicles controlled on the USML to only those that warrant control. Changes include the removal of most unarmored and unarmed military vehicles, trucks, trailers, and trains (unless specially designed as firing platforms for weapons above .50 caliber) and armored vehicles (either unarmed or with inoperable weapons) manufactured before 1956. Engines are now covered in revised USML Category XIX.

A significant aspect of the revised USML Category VII is that it does not contain controls on all generic parts, components, accessories, and attachments that are specifically designed or modified for a defense article, regardless of their significance to maintaining a military advantage for the United States. Rather, it contains a positive list of specific types of parts, components, accessories, and attachments that continue to warrant control on the USML. All other parts, components, accessories, and attachments are subject to the new 600 series controls in Category 0 of the CCL.

USML Categories XIII (Auxiliary Military Equipment) and XX (Submersible Vessel) also have been revised similarly. Category XIII continues to control certain cameras and encryption/information security items. Category XX will now control all submersible vessels in a single category, including submarines, as they have been moved from Category VI.

Definition of “Specially Designed”

The definition has a two-part approach. Part one “catches” things that are “specially designed,” and part two releases many types of items from the definition of “specially designed” so that they become not “specially designed.” Assuming an item is caught by part one, the exporter should focus on part two of the definition, i.e., the six separate “releases.”

Under part two, there are six possible ways an item can be released from being specially designed. For example, a part, component, accessory, attachment, or software is not considered to be specially designed if it is, regardless of form or fit, “a fastener (e.g., screws, bolts, nuts, nut plates, studs, inserts, clips, rivets, pins), washer, spacer, insulator, grommet, bushing, spring, wire, or solder.”

Also under part two, a part, component, accessory, attachment, or software is not deemed to be specially designed if it has the same function and performance capabilities and the same or equivalent form and fit as a commodity or software used in or with an item that (i) is or was in production (i.e., not in development) and (ii) is either not enumerated on the CCL or USML or is described in an ECCN controlled only for antiterrorism reasons.

Therefore, exporters and manufacturers should review the new definition of “specially designed” to ascertain if any items pending sale are released from the definition.

Implications

These changes will significantly affect exporters and manufacturers of naval warfare, ground vehicles, and other items as these items may no longer fall under ITAR jurisdiction, making the products more attractive to foreign buyers. Exporters and manufacturers will no longer need a manufacturing license agreement document for foreign manufacture of CCL items. Additionally, because there is no concept of “defense service” under the EAR, providing services related to CCL products will not require any technical assistance agreement documents. Items that become classified as EAR99 generally do not require a license to be exported or reexported to most destinations, and there is no annual registration fee paid to the Commerce Department, unlike under the ITAR. Furthermore, there is no “brokering” registration or licensing under the EAR.

In addition, many of the items moved to the CCL are now eligible for export without specific licenses under EAR license exceptions. One such EAR license exception is strategic trade authorization (STA), which is used when the item is intended for the ultimate end use by the governments of 36 U.S. allies and partners (although such exports carry with them additional compliance requirements). Failure to comply with STA requirements may result in an unlicensed export, opening up the exporter to significant penalties and fines.

On July 1, 2014, five more USML categories are scheduled to transition to the CCL in the third phase of ECR:

  • Category IV (Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs, and Mines)
  • Category V (Explosives and Energetic Materials, Propellants, Incendiary Agents, and Their Constituents)
  • Category IX (Military Training Equipment)
  • Category X (Personal Protective Equipment)
  • Category XVI (Nuclear Weapons Related Articles)

Marynell DeVaughn also contributed to this article.

[1]. For more information on the first phase that occurred in October 2013, view our November 14, 2013 LawFlash, “Export Control Changes Affecting Aircraft Industry Take Effect,” available here. 

Article by:

Of:

Morgan, Lewis & Bockius LLP

Senate Immigration Bill To Impact Business, Technology and Defense Sectors

Barnes & Thornburg

On April 17, 2013, a bipartisan group of U.S. Senators known as the “Gang of Eight” introduced an immigration bill entitled the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.”

The bill includes provisions that substantially increase the number of visas for highly-skilled workers, creates a new visa category for lower-skilled workers, eliminates the backlog for employment-based immigration, and authorizes significant resources to achieve border security.

The bill aims to increase the annual cap of certain employment-based nonimmigrant visas (H-1B) from 65,000 to 110,000 and the number may increase up to 180,000 depending on labor demands and the unemployment rate. In order to ensure that American workers are not displaced by H-1B workers, employers will continue to be required to pay the prevailing wage to H-1B workers and it has been proposed that the prevailing wage system be strengthened. Also in fiscal year 2014, companies will be banned from bringing in additional workers if more than 75 percent of their workers are H-1B or L-1 employees. The bill also provides for dual intent visas for all students who come to the U.S. on a bachelor or advanced degree program.

To ensure the U.S. has sufficient lower-skilled workers, the bill creates a new nonimmigrant category known as the W-Visa. Eligible recipients would be immigrants who come to the U.S. to perform services or labor for a registered employer and for a registered position. Beginning April 1, 2015, unless the Secretary of Homeland Security extends the start date, the maximum cap for four years would be 75,000 visas.

The bill proposes to exempt from the annual numerical limits multinational executives and managers; immigrants of extraordinary ability in the sciences, arts, education, business, or athletics; and doctoral degree holders in the science, technology, engineering and mathematics (STEM) fields.

The bill allocates a significant number of all employment-based visas to individuals holding advanced degrees in STEM fields, in particular. The bill also creates startup visas for foreign entrepreneurs seeking to establish a company in the U.S.

The bill provides $3 billion to implement the Comprehensive Southern Border Security Strategy for achieving and maintaining effective control in all high risk border sectors along the southern border. The funds will be used for acquiring, among other things surveillance and detection capabilities developed or used by the U.S. Department of Defense; fixed, mobile, and agent portable surveillance systems; and unmanned aerial systems and fixed-wing aircraft and necessary and qualified staff equipment to fully utilize such systems.

The bill permits undocumented immigrants, who entered the U.S. before December 31, 2011 and who do not have a serious criminal record, to apply for a Registered Provisional Immigrant (RPI) status. This would permit an individual to work legally in the U.S. for any employer. RPI status would last for a 6-year term that is renewable if the worker has not committed any acts that would render the worker deportable.

The Senate bill is likely to undergo changes as other U.S. Senators and constituents weigh in on this important bill. A House bill is also expected to be unveiled soon. If the bills can pass their respective chambers, then bicameral negotiations would begin in an attempt to pass a final comprehensive immigration reform bill for the President to sign into law.

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 of

Final Family and Medical Leave Act (FMLA) Military Leave Regulations Issued

The National Law Review recently published an article by John A. Vering, III, Shelley I. Ericsson, and Michael B. Kass with Armstrong Teasdale regarding FMLA Military Leave:

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The Department of Labor (DOL) recently issued final regulations addressing an amendment to the Family and Medical Leave Act (FMLA) that requires employers covered by the FMLA to provide certain types of military-related leave. The regulations, which will take effect on March 8, 2013, determine how the provisions  are to be interpreted and implemented. The DOL’s new regulations will require employers to update their FMLA policies, posters and forms and, among other things, change the way they administer family leave for servicemembers caregivers and employees with family members in the military. The text of the Final Rule can be found here: www.dol.gov/WHD/FMLA/2013rule/.

A brief overview of some of the changes in this Final Rule is set forth below. Please take specific note of the new FMLA poster requirement and new forms near the end of this Alert.

Qualifying Exigency Leave

The Final Rule revises regulations dealing with qualifying exigency leave to (a) include eligible employees with family members serving in the regular armed forces in a foreign country; (b) more clearly define what constitutes a qualifying exigency and adds a new qualifying exigency for parental care; and (c) increase the length of time an eligible family member may take for qualifying exigency leave for rest and recuperation from five days up to a maximum of 15 days.

Military Caregiver Leave

With respect to military caregiver leave, the new Rule: (a) specifically defines what conditions constitute a serious injury of illness for a current member of the Armed Forces or a covered veteran, and expands that definition; (b) defines who is a covered veteran; and (c) allows private physicians, outside the military healthcare system, to certify a serious injury or illness, but allows employers to request a second or third opinion if the employer questions the certification of one of these private physicians.

Calculation of Intermittent or Reduced Schedule Leave

The Final Rule also clarifies the calculation of intermittent leave for FMLA purposes to make clear that an employer cannot require that intermittent FMLA leave be taken in increments longer than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.

New FMLA Poster and New Forms Required

The DOL is requiring a new FMLA poster and use of new FMLA forms effective March 8, 2013. A copy of the poster can be found on the DOL’s website and downloaded atwww.dol.gov/whd/regs/compliance/posters/fmla.htm. DOL has also created at least one new form and revised other key forms (the new form is WH-385-V, and the revised forms include WH-381, WH-384, and WH-385). The following FMLA forms can now be found on the internet atwww.dol.gov/whd/fmla/2013rule/militaryForms.htm:

 Conclusion

The FMLA generally applies to employers who have at least 50 employees within a 75-mile radius of a single site of employment. If the FMLA applies to your company, in light of these new regulations, you will want to review and likely revise your written FMLA policies and ensure your compliance going forward.

© Copyright 2013 Armstrong Teasdale LLP

Refresher on the “Step-up” Process for Service Personnel

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A common question our Education Law Practice Group deals with relates to how the “step-up” process works for service personnel.

The “step-up” process is found in W. Va. Code 18A-4-15, which in relevant part, states:

Any regular service person employed in the same building or working station and the same classification category of employment as the absent employee shall be given the first opportunity to fill the position of the absent employee on a rotating and seniority basis. In such case the regular service person’s position is filled by a substitute service person. A regular service person assigned to fill the position of an absent employee has the opportunity to hold that position throughout the absence. For the purpose of this section only, all regularly employed school bus operators are considered to be employed within the same building or working station.

Let’s discuss some common scenarios we often see.

Scenario 1: Employee “A” is regular bus operator that is on an approved leave of absence (“LOA”) that was requested in writing and approved by the board of education. The LOA is expected to extend beyond thirty days. When an employee receives a LOA from the board, and the leave will extend for more than thirty days, W. Va. Code 18A-4-15 requires the board to post the assignment and fill it per W. Va. Code 18A-4-8b. The assignment is awarded to the most senior regular employee in the classification that applies, and if no regular employee is interested, bus operators on preferred recall, and if none, substitutes bus operators that might apply. Suppose that in the instant, Employee “B”, the most senior regular bus operator bids and receives the assignment. “B” finds the route more attractive than his or her route because it is closer to home, or is short (or some other reason). Keep in mind this is not a “step-up” for “B”. As for “B’s” regular assignment though, you have to permit “step-up” (not posting it), which is offering “B’s” assignment to the regular bus drivers via seniority based rotation. Let’s say regular Employee “C” wants “B’s” assignment via the “step-up” up process. If “C” “steps-up”, “C” will remain in that assignment until “B” returns. A substitute bus driver via rotation (whoever is next on the list) will substitute for “C”. You do not allow “step-up” to “C’s” regular assignment. “Step-up” happens once.

Scenario 2: Employee “A” is a regular bus operator out from work using sick leave. “A” has not requested in writing an approved LOA from the board. It appears that “A” is going to be absent for an extended period of time (lets’ say five to sixty days). The board does not post it after the twentieth day (that is a common myth). Instead, the board utilizes the “step-up” process of W. Va. Code 18A-4-15 and offer “A’s” assignment to the most senior bus operators via seniority based rotation. If a regular bus operator “steps-up” (let’s say “B”), a substitute next on the bus operator list is called for “B”. “Step-up” does not continue on-and-on-and-on. A substitute is called for “B”. Yes a substitute with little seniority might get lucky if s/he is next in line on the substitute list.

Always keep in mind that if a substitute is initially called for “A’s” assignment (which is often the case because the board might not know the absence could extend for a few days), but after that initial day it appears the regular employee will continue to be absent, the board should offer “step-up” per W. Va. Code 18A-4-15 to regular employees, who then bump the substitute out. The Grievance Board encourages this process (see Decision). And again, if a regular employee “steps-up”, a substitute is then called for the regular employee who took the opportunity to “step-up”.

The “step-up” process is not fun from a personnel standpoint, especially when there is not sufficient time to contact regular employees, in emergency situations, or in situations when it is not known that the regular employee’s absence will be beyond a day or so, etc. But we hope the above sheds some light on the proper use of the “step-up” process compared to the posting process. For additional grievances decision on the “step-up” process, see Garner, Mullins, McMillen, and Prickett.

© 2013 Dinsmore & Shohl LLP