A war of words in EELV court filings (updated)

Since the preliminary injunction issued by the US Court of Federal Claims late Wednesday that blocked the US Air Force and United Launch Alliance (ULA) from making any payments to NPO Energomash, the Russian company that manufactures the RD-180 engine used by ULA’s Atlas V, there has been a increasingly heated war of words among the parties involved in the suit regarding the language of the injuction, in the form of a series of filings made to the court.

The debate started Friday when the Justice Department filed with the court a proposed order clarifying one aspect of the injunction. That proposed order states that the injunction “does not apply to Government purchases from or payments to either United Launch Services, LLC (ULS) or United Launch Alliance, LLC (ULA). The United States may continue to make payments to ULS and/or ULA.” That seems straightforward enough, although to the non-legal eye, there’s nothing in the original injunction that would appear to have prohibited such payments in the first case.

However, in a response filed with the court on Sunday, SpaceX’s legal counsel strongly opposed the proposed order. “In other words, Defendant asks the Court to permit the Government to continue to provide funds to Defendant-Intervenor even if Defendant cannot certify that those funds will flow to NPO Energomash and/or other entities that may be under the control of Deputy Prime Minister Rogozin,” the document states. (In the legal language of the filing, the Defendant is the US Government, while the “Defendant-Intervenor” is United Launch Alliance and its operating entity, United Launch Services.) “In essence, Defendant seeks to continue business as usual under the EELV program—including paying monies to ULS—relieved from any obligation to ensure that those monies do not flow in violation of sanctions.”

On Monday, ULS responded to SpaceX’s response, mincing no words. “SpaceX’s response is a frivolous and improper attempt to interfere with ULS’s business by needlessly expanding an injunction it never sought in the first place,” it states. “There is no basis whatsoever for SpaceX’s libelous suggestion that the United States, ULS, and ULA will try to ‘circumvent’ the Court’s Order.” It adds that under the “plain terms” of the order, the Air Force can continue to make payments to ULS “because ULS is obviously not under the control of Deputy Prime Minister Rogozin.”

In documents filed with the court Friday, the parties anticipated the presiding judge, Susan G. Braden, would rule on the proposed order on Monday. As of late Monday afternoon, the court had not yet issued a decision.

Update 1 pm May 6: In a one-sentence order released Tuesday morning, Judge Braden denied the proposed order filed Friday by the US Government: “For the reasons discussed during the May 5, 2014 status conference, the Government’s May 2, 2014 Motion For Clarification Of Preliminary Injunction Order is denied.” No additional reason is given, nor any other details about the status conference held Monday afternoon by telephone.

21 comments to A war of words in EELV court filings (updated)

  • Coastal Ron

    Well, if you never ask the question, you never get an answer. And if it turns out that SpaceX wins out, it won’t be because of SpaceX per se, but because that’s the way the law should be interpreted – SpaceX is just forcing a review of the law.

    Really this is a side issue to the USAF Block Buy debate, but ULA has left themselves vulnerable on this…

    • numbers_guy101

      As with Ma’Bell, back in the day, a government sponsors a monopoly, and it can also turn on that monopoly. Especially once enough people both inside and outside the government come to be of a mind that the objectives achieved by the monopoly have been achieved, and the downside ahead if far greater than the monopolies continuation.

      Everything leading up to Ma’Bells breakup was also rather a confluence of events, not just the big bang event when it all got to Judge Green.

      The government allowed ULA to be created. It was beneficial at the time. What is beneficial now is another matter. Many of the same arguments will be employed by ULA as were employed by Ma’Bell and it’s defenders (if not uncannily similar!) As with Ma’Bell, these defenses could all prove irrelevant to the discussion.

  • Jim Nobles

    I wonder what Bigelow Aerospace thinks about all this? If the RD-180 is gone for good (probably won’t happen-too much money at stake.) then who will be his second taxi service?

    • Matt McClanahan

      Seems like human-rating the Delta IV would be the logical next step for ULA, since the research into how much work it requires has already been done, and it was considered feasible.

    • Ben Russell-Gough

      The best-case scenario involves ULA getting off its backside and acting to source an alternate core engine for the Atlas-V. I’m sure that USAF and NASA will be more than glad to fast-track certification of the new powerplant.

    • Andrew Swallow

      I wonder what Bigelow Aerospace thinks about all this? If the RD-180 is gone for good (probably won’t happen-too much money at stake.) then who will be his second taxi service?

      This has already been solved. The Bigelow Aerospace website quotes the price of flying to a BA-330 from two companies. If the Atlas V is unavailable then customers will have to use a Falcon 9 + Dragon.

      • Jim Nobles

        Bigelow has stated that he wants/needs two providers in order to do business. That’s why I wonder what they are thinking over at Bigelow Aerospace now.

  • vulture4

    Human-rating the DIV was poo-ooed in the ESAS, but a significant part of the cost was in the pointless requirement to redesign the second stage to a load factor of 1.4 because that was what we used back in the old days before computers. Talk about a foolish consistency.

    • Reality Bits

      From the 27 Feb 2014 Exploration Systems Development Management Directive

      “Human rating of the ICPS is not required to accomplish the test objectives of EM-1.”

      “The SLS program manager is hereby directed to adjust planning and remove human rating requirements for the ICPS in support of the EM-1 flight.”

      SOURCE: http://www.nasaspaceflight.com/2014/04/evolving-plans-human-rating-icps-sls-em-1-mission/

      ICPS (Interim Cryogenic Propulsion Stage) is none other than our little friend, DCSS (Delta Cryogenic Second Stage). So there WAS a plan in place to “human-rate” the DCSS, but it appears to have been sacrificed in order to keep SLS to it’s pseudo-schedule for EM-1.

      So there is a plan, schedule, and requirements for “man-rating” the DCSS.

  • josh

    I like how ula’s people are getting all upset. Spacex is definitely hitting a nerve here.

  • Just my opinion, but looking at the big picture I have to think someone told SpaceX that ULA’s weak spot was the RD-180. Someone with a political connections. Someone who may have served in Congress.

    SpaceX in recent years has retained lobbying firms to defend its interests, as of course do ULA, Boeing and LockMart separately, ATK, etc.

    Space News had this recent article:


    And Roll Call had this article last December:


    As the Space News article notes, SpaceX spends far less on lobbying than its competitors.

    The articles point out they now have three former U.S. senators on call, and I have to think one of them told Elon to use the RD-180 as his main argument. They probably also arranged the media event last month at the National Press Club.

    My personal opinion is that SpaceX probably won’t win the claim, but the longer view is to break up ULA’s legal monopoly to assure the block buys don’t happen again.

    Which might explain why persons unknown last week slipped into H.R. 4435 a provision which states it’s “the sense of Congress” to continue the block buy:


    ULA is in Decatur AL. Decatur’s congressman Rep. Mo Brooks is on that panel, and the subcommittee chair is Rep. Mike Rogers from the next district over. I’ve no proof that either inserted the language, although there’s a press release on Brooks’ web site taking credit for the language to subsidize a U.S. replacement for the RD-180.

    In any case, quite the chess game is being played behind the scenes. The endgame is to topple the king of government space pork.

    • An update thanks to Marcia Smith at SpacePolicyOnline.com …

      Looks like the “sense of Congress” provision is out of the chairman’s markup for the full Armed Services Committee:


      “Strike section 1602 contained in the report of the Subcommittee on Strategic Forces and insert the following new section 1602 …”

      So we’ll have to see if Reps. Brooks or Rogers try to add back the provision on Wednesday.

    • numbers_guy101

      Lets not forget the Russians, the Air Force, and the current administration in all the focus on ULA’s reaction to the SpaceX legal complaint.

      (1) In a US court, would it really be that difficult to show that this particular Russian, Rogozin, on the sanctions list, benefits personally from RD-180 purchases? I can already see all the testimony of experts about oligarchies and financial traces, or Rogozins lifestyle on merely a civil servants salary.

      (2) In a US court, would it be that difficult to show the Air Force took on some urgency with the block buy, motivated precisely to preempt SpaceX, knowing the new entrant criteria would soon kick in, once SpaceX delivered certain data about recent launches?

      (3) In the current administration, was this Rogozin fallout even expected? Is this more attention here than they wanted? Eventually there will have to be someone who, perhaps in court, gets on the hook to present how these sanctions were intended to be interpreted.

      So, who will stand up in the players here to associate or ally themselves with the Rogozin fallout to come?

  • numbers_guy101

    Oh…but the AF and ULA will try to circumvent the injunction order. That’s obvious, to anyone who’s dealt in this world anyway. It’s a given.

  • Curtis Quick

    This can turn out well for free-market competition in the launch industry if policy influences continue to play the Russia card, for members of Congress to decide there is much to be gained by jumping on this issue to thwart the Russians (and sound patriotic while doing so), and for Russian leaders to continue to call Americans “Morons” even while they occupy the Ukraine. In fact the more the Russians speak out against this, and the more ULA dismisses SpaceX’s accusations out of hand, the less likely it will be that the block buy deal will be allowed to stand.

  • Nexis?

    From Watergate days; “Follow the Money”

    Is Elon Musk buying all the Senators who signed this Feinstein letter regarding the RD-180 http://www.feinstein.senate.go

    They all received funds with SpaceX PAC Money? http://www.opensecrets.org/pac

    Is there a Nexis? Why only these Senators?
    Many questions, few real answers.

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