Read on, some folks are fighting back....
<http://www.fas.org/spp/starwars/program/news01/schwartz-010105.htm>
LAW OFFICES OF DAVID W. AFFELD
A Professional Corporation
David W. Affeld (CA State Bar No. 123922)
Christopher D. Higashi (CA State Bar No. 168667)
333 South Grand Avenue, 37th Floor
Los Angeles, California 90071-1599
Telephone: (213) 229-0073
Guy T. Saperstein (CA State Bar No. 46354)
52 Glen Alpine Road
Piedmont, CA 94611
Telephone: (510) 595-1461
David E. Adelman (D.C. Bar No. 458346)
Natural Resources Defense Council
1200 New York Ave., N.W., Suite 400
Washington, D.C. 20005
(202) 289-6868
Attorneys for Plaintiff
and Relator Dr. Nira Schwartz
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA EX REL CASE NO. CV 96-3065 CM (RMCx)
NIRA SCHWARTZ,
Plaintiff, FOURTH AMENDED COMPLAINT FOR:
vs. 1. VIOLATION OF THE FALSE
CLAIMS ACT, 31 U.S.C.
§3729 (a)(1), (a)(2) and (c);
TRW, INC., an Ohio corporation, and
BOEING N. AMERICA INC., a Delaware 2. EMPLOYMENT RETALIATION
corporation, IN VIOLATION OF THE FALSE
CLAIMS ACT, 31 U.S.C.
Defendants. § 3730(h); and
3. WRONGFUL TERMINATION IN
VIOLATION OF PUBLIC
POLICY
DEMAND FOR JURY TRIAL
This is an action by relator Dr. Nira Schwartz ("Schwartz"), in the name of the
United States Government (the "Government"), to recover penalties and damages
arising from fraud on a vast scale perpetrated by defendants TRW, Inc. ("TRW")
and Boeing North America, Inc. ("Boeing") in connection with the efforts of the
U.S. Army's Space and Strategic Defense Command to develop a Ground Based
Interceptor ("GBI") for possible deployment by the United States' National
Missile Defense ("NMD") program. The claims asserted herein include counts under
the False Claims Act, 31 U.S.C. §§ 3727 et seq. They also include a count by
Schwartz as plaintiff under California state law for wrongful termination in
violation of public policy.
I.
JURISDICTION AND VENUE
1. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1345 and
31 U.S.C. § 3732(a). This Court also has supplemental jurisdiction over
Schwartz's related California state law claim for wrongful termination in
violation of public policy pursuant to 28 U.S.C. § 1367.
2. Venue is proper in the Central District of California under 31 U.S.C. §
3732(a) and 28 U.S.C. §§ 1391(b), (c). A substantial part of the acts or
omissions alleged herein occurred within the Central District of California.
Moreover. defendants TRW and Boeing transact business in this District.
3. Plaintiff and relator Schwartz demands trial by jury.
II.
PRELIMINARY STATEMENT
4. The events underlying this case arise out of the roles of TRW and Boeing in
the NMD program. The NMD program is intended to develop a system to protect the
United States from a limited attack of ballistic missiles containing weapons of
mass destruction. The NMD program is premised on developing a "kill vehicle"
that can locate, intercept and destroy an incoming warhead.
5. The task of the kill vehicle intercepting a warhead is tantamount to hitting
a bullet with a bullet. To intercept successfully, the kill vehicle must also
differentiate between an actual warhead and decoys designed to draw the kill
vehicle to the wrong target. Experts on missile technology, including at the
U.S. Central Intelligence Agency, have concluded that a potential adversary's
use of decoys is inevitable because effective decoys require much less
sophisticated engineering than that necessary for an intercontinental ballistic
missile.
6. Boeing was a prime contractor in the NMD program during the times relevant to
this action. TRW's role in the NMD program included purportedly developing
technology for the kill vehicle to distinguish warheads from decoys. TRW, and
Boeing as the prime contractor to whom TRW reported, have claimed to the
Government that the TRW discrimination technology is effective. In fact,
however, TRW's technology has always failed fundamentally.
7. Despite actual knowledge of the failure of TRW's technology, or in reckless
disregard of that failure, TRW and Boeing have made multiple false claims to the
Government regarding the efficacy of TRW's discrimination technology. TRW and
Boeing have also engaged in a campaign to cover up the severe scientific and
technical flaws in the TRW technology. The claims of TRW and Boeing defy
scientific principles and contradict extensive test data TRW collected, but
systematically failed to disclose to the Government. Schwartz is informed and
believes that this misconduct has occurred since at least as early as 1994 and
continues to the present day.
8. The TRW-Boeing kill vehicle prototype purportedly attempts to discriminate
between a target warhead and any decoys deployed with it based on
"characteristic" or "systematic" differences in the relative intensity,
including its fluctuation over time, of certain wavelengths (i.e., "colors") of
infrared light emitted by the warhead and decoys. The premise of the system,
however, is false, because neither the intensity nor the variation in the
intensity of the infrared light from space objects, such as a warhead or a
decoy, is a fixed and unique "characteristic" of such an object that could be
used to determine what kind of object it is. Without such unique differences,
there is no basis on which to discriminate between warheads and decoys.
9. Moreover, relative to the difficulty of developing intercontinental ballistic
missiles in the first place, it is simple to modify or construct decoys and
warheads to mimic each other, or to look indistinguishably different from each
other, thereby making it impossible for the kill vehicle's infrared sensors to
gather meaningful data to distinguish between warheads and decoys. It would thus
be highly likely that if an emerging missile state such as North Korea were to
develop intercontinental ballistic missile capability, it would easily develop
decoys.
10. In short, TRW's technology purports to discern characteristic signals for
warheads versus decoys in numerous threat scenarios required by contract with
the Government, where such signals cannot be discerned. TRW and Boeing falsely
claimed to be able to extract meaningful information from meaningless data.
11. In their effort to conceal the fundamental problems with their
discrimination system, TRW and Boeing (1) falsified data, (2) misrepresented the
effectiveness of the system, and (3) recklessly disregarded well-established
standards of engineering and scientific methods. In at least two instances, TRW
knowingly falsified data.
a. In April 1996, TRW generated several reports on one of its computer programs,
referred to as the "Kalman Filter." These reports were based on manipulated and
falsified data regarding the results of tests of the program's ability to
identify a warhead in a simulated attack. Actual test results showed that the
probability of a correct identification by TRW's Kalman Filter program was
significantly less than fifty percent. In some cases the program failed so
totally that it could not even make up its mind to select which object was a
warhead versus which were decoys. By contrast, Schwartz is informed and
believes, and on that basis alleges, that TRW falsely reported to the
Government, with knowledge of the falsity of its claims, that the probability of
a correct identification was greater than 85 percent.
b. A second example of TRW falsifying data involves a series of
misrepresentations by TRW dating to 1994 and explicitly documented in 1995. TRW
has regularly stated to the Government that its "BEST" computer algorithm(s) are
fully autonomous and, before the kill vehicle is launched, select the "best"
infrared signal features to insert in the kill vehicle's computer profile of the
threat objects it will encounter in an actual engagement. This technical
approach makes it impossible for the kill vehicle to change the signal features
it uses during an actual engagement. Nevertheless, this is precisely what TRW
and Boeing did in fraudulent analysis of data from the first actual flight test
of the system. Internal TRW documents - never released to the Government -
demonstrate that the "BEST" system has never worked and that there is absolutely
no evidence to suggest that it ever could. Indeed, none of the analyses of
actual flight-test data were undertaken using the BEST algorithm. Instead, after
the fact, TRW and Boeing staff hand-selected the purported signal features to be
analyzed by the discrimination system. Despite the absence of data to support
their claims, TRW and Boeing falsely represented to the Government on numerous
occasions that discrimination can be conducted autonomously by the kill vehicle
using TRW's technology.
12. The severe flaws in the TRW system have been concealed through a concerted
effort by TRW and Boeing to limit the data that they disclosed to the
Government. TRW and Boeing have systematically avoided disclosing to the
Government the extensive data generated by TRW that expose the serious flaws in
the discrimination system. Instead, they cherry-picked a few, highly contrived
instances in which the system purportedly met contractually required standards
(although even in the cherry-picked examples, the truth is that the system
failed). Examples of this "cherry-picking" abound and include the following:
a. First, from among the hundreds of tests TRW conducted, TRW and Boeing
systematically selected a few instances in which TRW's discrimination system
achieved a high probability of correctly identifying a warhead. TRW and Boeing
fraudulently failed to disclose the great majority of tests demonstrating that
the system performed far below this standard.
b. Second, TRW and Boeing never informed the Government of data showing serious
instabilities in TRW's discrimination system that cause catastrophic failures
under non-exceptional conditions. They also failed to report that the system was
highly sensitive to small unexpected and unpredictable variations in the
appearance of warheads and decoys when missile launch conditions varied even
slightly from what the kill vehicle (or ground simulator) had been programmed to
expect. TRW had extensive data demonstrating that, far from being "robust," its
discrimination system was crippled by even minor deviations from predicted
parameters for a given missile type. Despite this, TRW and Boeing claimed that
the system functioned under a wide range of conditions, even where accurate data
about a given missile type are lacking.
c. It was only after Schwartz brought these problems to light through the
instant action that any information was provided to the Government about these
system failures. However, the information that was made available after Schwartz
exposed these problems was substantially incomplete, and was formulated to hide
its significance. Schwartz is informed and believes, and on that basis alleges,
that from at least 1994 to the present day, TRW and Boeing have withheld and
continue to withhold important data in their possession demonstrating that the
TRW discrimination system does not and could not meet the performance standards
claimed by TRW and Boeing in their statements to the Government.
13. In seeking to protect their government contracts, TRW and Boeing recklessly
disregarded established standards of engineering and science. TRW and Boeing
systematically omitted essential tests, ignored critical data, and improperly
manipulated data to create the illusion that the TRW discrimination system
performed at the levels claimed by TRW and Boeing in statements to the
Government to support requests by TRW and Boeing for payment under their
contracts with the Government. These practices were used falsely to legitimize
performance claims by TRW and Boeing regarding the TRW system. These practices
were also used to conceal from the Government the fundamental flaws of the TRW
discrimination system. These practices violated canonical principles of
objective, verifiable scientific methods and constituted a fraud against the
Government.
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED]]On Behalf Of Lisa & Ian Murray
> Sent: Wednesday, January 24, 2001 8:45 PM
> To: [EMAIL PROTECTED]
> Subject: [PEN-L:7242] RE: The Globe and Mail on NMD system.
>
>
> Some Seattleites are thinking about some way of shaming Boeing and the
> Machinists on this as they just got a 6billion $$ contract to build stuff that
> will lead eventually....to the Death Star. In fact some artists are
> toying with
> a Death Star with Boeing's logo tacked on it. It's a f*****g disgrace. I don't
> know if http://www.ecaar.org is doing anything on it. The scientists should be
> ashamed of themselves; just another bunch of politically naive and dumb wage
> slaves.
>
> Ian
>
> > -----Original Message-----
> > From: [EMAIL PROTECTED]
> > [mailto:[EMAIL PROTECTED]]On Behalf Of Ken Hanly
> > Sent: Wednesday, January 24, 2001 7:51 PM
> > To: [EMAIL PROTECTED]
> > Subject: [PEN-L:7236] The Globe and Mail on NMD system.
> >
> >
> > It is a bit surprising that Canada's national business newspaper should
> > publish this. Is there much discussion of the NMD system in the US by the
> > left?
> > The system seems bound to unravel all the treaties that have mitigated the
> > build up of arsenals in Russia and will cerainly cause China to increase
> > arms production.
> >
> > Cheers, Ken Hanly
> >
>
