Chucking of Body Armor Won’t Leave U.S. Liable

(CN) - A manufacturer of bulletproof vests failed to provide enough evidence that Dragon Skin body armor meets U.S. performance standards, a federal judge ruled.

Pinnacle Armor in Fresno, Calif., has been defending Dragon Skin since at least 2007, when U.S. Army General Ross Thompson III testified at a House Armed Services Committee hearing that the vests suffered "catastrophic failure" at extreme temperatures. The Army had tested the flexible Dragon Skin armor in response to an NBC News report that favorably compared Dragon Skin to Interceptor, the military's go-to body armor. Thompson testified that the NBC tests had been done at room temperature, while the Army had exposed the vests to extreme temperature variations and "chemical agents."

After the hearing, the National Institute of Justice (NIJ), an arm of the U.S. Justice Department responsible for setting performance standards and certifying law-enforcement equipment eligible for federal grants, began to question its 2006 certification of Dragon Skin, which had prompted Pinnacle to spend "hundreds of thousands of dollars producing vests for law enforcement agencies," the court noted.

NIJ officials requested "data or objective evidence" from the company to show that Dragon Skin would hold up over the life of its six-year warranty. Pinnacle responded with a package composed largely of testimonials from happy customers who had used the vest for a year or so. The NIJ found these materials insufficient, however, and dropped Dragon Skin from its list of approved armor, with a press release to that effect.

Pinnacle then sued the government in Fresno, alleging that the institute's failure to certify the dragon-skin armor violated the company's due-process rights and the Administrative Procedures Act (APA).

U.S. District Judge Lawrence O'Neill ruled for the government on all points and found that NIJ's list of approved and subsidy-eligible armor was not subject to judicial review because it involved agency discretion. The 9th Circuit agreed with O'Neill as to Pinnacle's due-process claims in 2011 but said that NIJ's list was subject to judicial review and remanded.

Judge O'Neill handed down the results of that review this week in 28-page ruling against Pinnacle, finding that the "NIJ's decertification decision was founded upon a rational interpretation of the record evidence."

"There really can be no debate that the agency acted reasonably in calling for Pinnacle's warranty data," he wrote. "Given the results of the June 6, 2007 House Armed Services Committee hearing, it would have been irresponsible for NIJ to not do so."

For its part, Pinnacle simply failed to submit the kind of evidence that the NIJ wanted, O'Neill noted.

"It does not take great expertise to understand that the testimonials fail to provide objective evidence that the Dragon Skin models owned by the testifying individuals were exposed to particular environmental stressors," he wrote, adding that "the court is left with the inescapable conclusion that Pinnacle's submission left NIJ with no choice but to decertify" Dragon Skin.

Pinnacle's attorney, Eric Saiki of Radcliff & Saiki in Torrence, Calif., did not immediately return a request for comment Thursday morning.

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