Armor Maker Slighted by Feds Has Triable Case

(CN) - A federal agency faces review for refusing to include a California company's body armor on a list of subsidy-eligible law-enforcement materials, the 9th Circuit ruled Thursday, although the court found that the agency did not violate the armor company's due-process rights.

The U.S. Department of Justice's National Institute of Justice (NIJ) refused to certify Fresno-based Pinnacle Armor "dragon skin" body armor under a 2005 Body Armor Compliance Testing Program. The institute, which will pay up to 50 percent of the costs for law-enforcement agencies to purchase armor that meets the program's rigorous standards, found that the company had failed to prove its armor would perform at the same level for up to six years, according to the ruling.

The institute invited Pinnacle to submit further evidence, but the company, which had "spent hundreds of thousands of dollars producing vests for law enforcement agencies," instead filed suit in California District Court. Pinnacle claimed that the institute's failure to certify the dragon-skin armor violated the company's due-process rights and the Administrative Procedures Act (APA).

Unconvinced, U.S. District Judge Lawrence O'Neill ruled for the government, finding that the institute had properly reached its decision. O'Neill also found that the institute's list of approved and subsidy-eligible armor was not subject to judicial review, as it involved a discretionary decision by the agency.

The federal appeals court in San Francisco agreed to a point, affirming the lower court's ruling on Pinnacle's due-process claims but finding O'Neill in error as to judicial review.

"We believe that the NIJ's procedures afforded Pinnacle a hearing 'appropriate to the nature of the case,'" Judge Jay Bybee wrote for the unanimous, three-judge panel. "In a letter dated September 28, 2007, the NIJ explained in detail why Pinnacle's evidence was not sufficient to meet the criteria laid out in the 2005 Interim Requirements. The letter also invited Pinnacle to submit additional evidence to satisfy the NIJ's concerns. Pinnacle declined the invitation. Pinnacle has had a full and fair opportunity to be heard on its claims."

The panel nonetheless remanded the issue back the District Court, finding that "the NIJ's certification decision is not committed to agency discretion by law and is therefore reviewable under the APA."

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