Michael Weinhoffer/Staff Reporter
On July 12, 2017, an opinion ruling was issued by Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia in the matter of Orbital ATK v. Walker. The plaintiff of the case was Orbital ATK, which frequently launches cargo missions to the International Space Station, and the defendant was the Department of Defense’s Defense Advanced Research Projects Agency (DARPA), and its acting director, Dr. Steven Walker. The case concerned Orbital ATK and DARPA fighting over competing satellite programs, with the defense emerging victorious. This case is a great example of a private spaceflight company directly competing with the U.S. government, and thus warrants further discussion.
In short, Orbital ATK argued that a DARPA satellite program called “Robotic Servicing of Geosynchronous Satellites” (RSGS) violates President Obama’s 2010 National Space Policy (NSP), and therefore should be canceled. RSGS will consist of a spacecraft inspection, repairs, and correction of the orbit of geostationary satellites, which are very expensive and difficult to maintain once in orbit. This program has been in development for several years. On the private side, Orbital ATK has been developing Mission Extension Vehicles (MEVs) since 2008, which also aims to service geostationary satellites. In 2016, Orbital ATK’s CEO wrote to DARPA and said that its well-developed RSGS program was in direct competition with Orbital ATK’s program, and would harm investments into the MEV program. DARPA contended that the two competing programs had different goals, but Orbital ATK did not find the response satisfactory.
DARPA still wanted Orbital ATK to manufacture the spacecraft, but Orbital ATK repeatedly proposed different paths that DARPA should take to avoid competition with the MEV program. After failing to come to a compromise on the goals of the RSGS mission, DARPA stopped working with Orbital ATK and instead selected one of Orbital ATK’s competitors, Space Systems Loral, to manufacture the spacecraft. Shortly thereafter, Orbital ATK filed a lawsuit against DARPA, claiming that the agency violated multiple provisions of the 2010 NSP, which today remains the official space policy of the U.S.
Orbital ATK claimed that DARPA, by law, needed to implement commercial space capabilities when developing the RSGS program, such as MEV components, and discouraged U.S. commercial space activity by not doing so. Instead of merging the MEV and RSGS program, DARPA decided to develop a very similar program with another partner. The case was brought before the district court to determine if DARPA had indeed violated the NSP and that the RSGS was to be canceled.
The first question to be addressed was whether the court even had authority to rule in Orbital ATK’s favor. The court determined that since the lawsuit was brought against the program specifically, and not DARPA itself, it did not have the appropriate authority.
This decision was based on previous court rulings that determined that the court did not have jurisdiction if a government agency program is challenged by the plaintiff. Because of this technicality, Orbital ATK’s motion was dismissed. Despite this, the court addressed the second question presented just to provide a complete analysis.
The majority of the opinion document discusses whether the 2010 NSP has the force of law. The NSP was officially a called a “Presidential Policy Directive” under President Obama.
While directives such as the NSP are similar to executive orders, which can be issued by the President without consultation with Congress, they do not always have the force of law. It is not accurate to say that directives always have the force of law; it depends on the intention of the President to make it have the force of law.
The court concluded that because there was no indication by President Obama that he wanted to make the NSP a law and that no actions were taken by Congress to make the NSP a law, it does not have the force of law. Unlike executive orders, which are essentially substitutes of bills, policy directives are similar to a memorandum, which advices rather than orders. The NSP was directed at executive agencies such as NASA, the FAA, and the Office of Science and Technology Policy, and not to the American public.
DARPA did go against the directives in the NSP by developing a government space program very similar to a commercial space program, and it may affect investments in the MEV program. But since the directive cannot be enforced by any court in the U.S., the RSGS program was permitted to continue development, and Orbital ATK’s lawsuit was dismissed.
Both the RSGS and the MEV programs are still under development, and the first MEV vehicle will be launched in late 2018. Both programs will be in direct competition with each other in orbit, which is something that has not been seen before in the space sector.
One of the purposes of the NSP is to promote commercial space activities and prevent the government from stifling private competition. Although DARPA has gone against this principle, it does not compromise the validity of the program. It will be very interesting to see which program is more successful in achieving its goals and servicing large geostationary satellites.
Although DARPA is working with a private company in building the spacecraft, they should be more respondent to competitors’ positions in the future. The two programs are strikingly similar, and unfortunately, will be representative of the everyday fight between the government and the private sector. While the programs promise to demonstrate new capabilities, the morality of their competitive nature must be questioned.