Legal Meets Practical

by Sarah Schauerte

Late this week, the House and Senate Armed Services Committees reached an agreement on the fiscal year 2014 National Defense Authorization Act (NDAA). It looks like the bill will be wrapped up by Christmas, but not everyone is happy with the packaging (double pun intended).

As approved by the committees, the text of the latest iteration of the bill is derived from H.R. 1960, which passed the House on June 14 by a vote of 315-108 and S. 1197, a version passed by a Senate committee by a vote of 23-3, later that same day.

The NDAA contains many important budget provisions, but its scope isn’t limited merely to budgetary matters. For two years, the NDAA included provisions that purported to authorize the president of the United States to deploy the U.S. military to apprehend and indefinitely detain any person (including an American citizen) who he believes “represent[s] an enduring security threat to the United States.” These provisions were heatedly criticized as unconstitutional.

Regardless of these voiced concerns, and promises made by certain politicians, the language of the NDAA continues to potentially place every citizen of the United States within the universe ofl “covered persons” due to the scope and definition of this term.  Also, Section 1071 of the version of the 2014 NDAA approved by the House and Senate committees expands on the scope of surveillance established by the Patriot Act and the Authorization for the Use of Military Force (AUMF).  For example, Section 1071(a) authorizes the secretary of defense to “establish a center to be known as the ‘Conflict Records Research Center.’” The center’s task would be to compile a “digital research database including translations and to facilitate research and analysis of records captured from countries, organizations, and individuals, now or once hostile to the United States.”

This language has caught a lot of heat from various well-known rights advocates, including libertarian icon Ron Paul and the People Against the NDAA (PANDA). Others, however, aren’t too concerned, citing the need to enhance national security measures due to the risk of internal terrorist attacks. The Boston marathon bombers come to mind. We Americans balk at the ideas of surveillance and infringements on our privacy, but if we have nothing to hide, would these provisions affect us? Legislators appear to think not, or at least not enough to justify omitting them from the 2014 NDAA.

It’s also worth noting that one high-profile amendment to the bill won’t be included. Sen. Kirsten Gillibrand, D-N.Y., had hoped to force a vote on a proposal to remove sexual assault cases from the military chain of command. That plan had won support from some unlikely allies – including from some of the Senate’s most conservative members – but it was strongly opposed by many top Pentagon officials. In the end, it was a no-go. The bill does, however, overhaul the way the military handles allegations of sexual assault, making it a crime to retaliate against those who report sex crimes in the ranks, among other new reforms.

by Sarah Schauerte

This is what happens when the Center for Verification and Evaluation (“CVE”) messes with a contractor that also happens to be a lawyer.

On October 11, 2013, federal contractor A1 Procurement, LLC (“A1”) sued the United States Government, the Department of Veterans’ Affairs (“VA”), the CVE, supervisors of 8127 Debarment Committee, and various individuals working for the VA and the CVE for a host of claims including violation of the Federal Torts Claims Act, violation of A1’s Fifth Amendment Due Process rights, and violation of the Administrative Procedure Act.

I am not familiar with this contractor, and only time will tell whether these claims will stand. Regardless of this, the facts alleged are worth repeating.

According to the complaint filed in the Eastern District of New York (the “Complaint”), A1 was verified in the CVE’s Vendor Information Pages (VIP) as a service-disabled veteran-owned small business (SDVOSB) in 2010. In 2011, owner Derrick Storms criticized a CVE employee for not removing ineligible contractors from the VIP database. That same year, A1 was removed from the VIP database because the CVE had found that based on his resume submitted, Derrick Storms, the service-disabled veteran, did not control the business.

And what did this resume say? Surely that Mr. Storms worked for another company for a considerable period of time each week, preventing him from operating his business on a full-time basis. Right?

Hardly. The resume submitted, which according to the Complaint was the basis for removing A1 from the VIP database, stated that Mr. Storms was also President of Homeless Veterans of America and the Managing Partner of Storms and Associates, P.A. In reality, Mr. Storms spent about four hours per month working for the former company – work which entailed volunteering at a soup kitchen for homeless veterans. As it relates to the latter business, this was a one-man law firm where Mr. Storms worked about seventeen hours over the course of a few years. All hours worked were to provide legal services to A1 and were not compensated.

A1 promptly requested reconsideration (“R4R”). A1 clarified the amount of time devoted to Mr. Storm’s endeavors and provided tax returns to show that he, indeed, did not receive compensation for his involvement in Homeless Veterans of America and Storms and Associates, P.A. According to the Complaint, the CVE first denied having received the request, then miraculously located it when pressure was applied by Mr. Storm’s local Senator’s office.

Guess how long it took CVE to respond to the R4R? According to the Complaint, two years.

In the interim period, A1 wanted to compete for contracts. After all, its owners had to eat. In November of 2011, it competed for a certain VA contract and represented itself as an SDVOSB. The VA reacted by – and this is a very condensed version of the sequence of events – debarring A1 for five years for misrepresenting its status as an SDVOSB.

In reading the Complaint, the actions on CVE’s behalf are stunning. However, when one takes a close look at the time sequence, we see that A1 filed its R4R in August of 2011, and it bid on a VA contract only three months later and represented itself as an “SDVOSB.” I expect that the CVE’s explanation will be that at this time, it was taking a considerably long period of time to process R4Rs, and A1’s R4R was delayed because of its action of “misrepresenting” itself as an SDVOSB when bidding for a VA contract. (At this time, the VA’s Answer to the Complaint is not yet available).

Even so, think about how unnecessary this all is. If A1 was denied inclusion in the VIP database solely because of a few extra items included on Mr. Storm’s resume, and this was the catalyst to this business being debarred, losing millions of dollars in federal contracts, and the federal government being sued, how can that be justified? At what point will the CVE realize that there needs to be objective criteria to determine whether a veteran can devote “full-time” to his business? It is nonsensical that involvement in two additional activities requiring a very minimal amount of time would call into question a veteran’s ability to control his business, and result in the type of lawsuit (and grief) we see here today.

In the months to come, I’ll be following this case. There is much to learn here, and I hope the lesson isn’t wasted.

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by Sarah Schauerte

During the week of Thanksgiving, the Wounded Warriors Project (“WWP”) served up a steaming helping of lawsuit to fellow non-profit, Help Indiana Vets.

Both organizations are designed to help veterans. According to Help Indiana Vets, however, WWP is a fraud. Dean Graham, the owner of Help Indiana Vets, posted an article on its website alleging that WWP is a sham because it does not donate a majority of its profits directly to veterans in need. The article picked up more exposure when it was posted on Facebook, yet more proof to never discount the power of social media. Soon many individuals were posting about their disappointment with WWP and cancelling their subscriptions.

Ultimately, Graham’s criticisms reached those at WWP, and they were not game for having the organization’s name dragged through the mud.  (They draw the line at Tough Mudder).

WWP is very, very proud of its reputation. In the 31-page complaint (the “Complaint”) filed in the United States District Court for the Southern District of Indiana, WWP outlined the different services it provides to veterans to fulfill its mission of “honoring and empowering injured service members.”

In November, Help Indiana Vets attacked this reputation by publishing a number of disparaging statements about WWP on its website (http://www.helpindianavets.com), including comments about how WWP was “best paid non-profit ever…” and that it “was really a fraud…that needs to be investigated immediately.” Also, on the same page as these statements, a link enabled website visitors to make a PayPal donation to Help Indiana Vets. This was a follow-up to an email with similar content that had been sent to government officials and entities back in July.

The six-count Complaint against Help Indiana Vets alleges false advertising, criminal deception, defamation, unfair competition, tortious interference with business relationships, and unjust enrichment. It can be accessed here. In the Complaint, the bottom line is that Help Indiana Vets seeks to drag WWP’s name through the mud and divert its donations.

But is legal action worth it?

To me, the act of filing a lawsuit seems a little drastic. WWP has worked hard to build its reputation, and there’s no question that it should defend that reputation. But couldn’t it just as easily have done that by writing to Dean Graham and threatening him with legal action if he didn’t stop his actions? His company is small and new; theirs is big and established. There’s no mention in the Complaint that this was attempted.

And here’s the another point. I’m blogging about this story because it’s interesting (ah, the power of social media). One non-profit for vets, suing another non-profit for vets. Who would have thought? This wouldn’t be interesting, however,  if the two organizations had just slugged it out on-line. WWP could have done an email blast to its thousands of followers about the accusations and clarifying where its money goes. Or it could have addressed the attacks on its website, and asked its supporters and allies to spread the word. Instead, it has a public lawsuit where all variations of the tagline address that it is being accused of “being a fraud.” Why be so vocal about it?

Maybe WWP has an agenda in taking the contentious approach. Or maybe it’s just one tough mudder. Access its website at:  http://www.woundedwarriorproject.org/.