Media

Dragon skin® seemed like the coolest idea in body armor, ever, when I saw it on Future Weapons back in 2008. The stuff can take multiple direct rifle rounds (not to mention slower pistol rounds), see here, plus a frag grenade (say, if a soldier jumped on it to save his squad), see here. It is an amazing product and hopefully something that will save the lives of soldiers and law enforcement for years to come. That is, it would save lives, if the decertification of the armor by the National Institute of Justice (NIJ) gets reversed at a federal district court in California. Before that happens, Dragon skin® had to survive the battle at the Ninth Circuit Court of Appeals. It did.

In Pinnacle Armor, Inc. v. United States of America, No. 08-16209 __ F3d __ (9th Cir. May 27, 2011), see here, the Ninth Circuit gave Dragon skin® back its chance to contest the NIJ’s decision. By way of background, the NIJ certifies body armor (“bullet proof” vests, which typically cannot stop rifle rounds without bulky, solid ceramic plates) for purchases by law enforcement agencies. The agencies are able to purchase body armor by applying for federal money, but the body armor has to be certified by NIJ to qualify for the federal subsidy.

NIJ decertified Dragon skin® because of new interim regulations passed in 2005 that required objective proof that vests would “maintain their ballistic performance over the warranty period” of six years. Of course, Dragon skin® is a relatively new invention, so Pinnacle could only muster evidence of “testimonials of those who wore the dragon skin vest for over one year, photographs of armor panels, and a test report on a vest that had been turned in after four years of service.” NIJ decertified the armor, despite Pinnacle’s subsequent submissions of additional data. The entire decertification process occurred in a series of written requests by NIJ and written submissions by Pinnacle.

Pinnacle brought suit alleging a deprivation of procedural due process, and a violation of the federal Administrative Procedures Act (APA) because the de-certification was arbitrary and capricious. The district court dismissed both claims on a Rule 12(b)(6) motion by the government, and Pinnacle appealed.

After a discussion of mootness based on supervening rules, and finding the case was not moot, the panel moved on the procedural due process issue. In brief, Pinnacle said that it was deprived of procedural due process because there was no formal hearing. The Ninth Circuit assumed without deciding that there was a property interest in certification by NIJ (probably true in any event, based on the prior certification of Dragon skin® vests), and held that the written process for decertification (which NIJ properly followed), provided sufficient safeguards and an opportunity for Pinnacle to present its case to the agency. Not all due process hearings need to look like a trial, or take place in something that looks like a courtroom.