A U.S. federal judge lifted a preliminary injunction May 8 that blocked the U.S. government and United Launch Alliance (ULA) from buying Russian RD-180 engines used to power the Atlas 5 rocket.
The ruling dismisses a claim by Hawthorne, Calif.-based Space Exploration Technologies (SpaceX) that the government should prove payments made by the U.S. Air Force to RD-180 prime contractor NPO Energomash through ULA do not benefit Russian Deputy Prime Minister Dmitry Rogozin, one of several Kremlin officials sanctioned in March by the U.S. Treasury Department in response to Moscow's annexation of Crimea.
Last week, SpaceX filed a protest with the court in an effort to break a contract between the Air Force and ULA under the service's Evolved Expendable Launch Vehicle (EELV) program. The complaint relies heavily on the allegation that the majority of EELV launches use RD-180 rocket engines manufactured by NPO Energomash, “a corporation owned and controlled by the Russian government,” according to the company's April 28 filing.
Although the court has yet to rule on SpaceX's complaint, Judge Susan Braden issued a preliminary injunction April 30 stopping the U.S. Air Force, ULA and its subsidiary, United Launch Services (ULS) from making any purchases from or payment of money to NPO Energomash or any entity subject to Rogozin's control until the Commerce, State and Treasury departments certify that they do not directly or indirectly contravene the executive order sanctioning him.
In letters submitted to the U.S. Court of Federal Claims May 6, the departments said that U.S. purchases from or payments to NPO Energomash do not violate an executive order issued by the Treasury Department in March sanctioning Rogozin, who oversees Russia's space and defense industries.
In a May 7 filing to the court, SpaceX counsel Richard Vacura argued that the letters provided were “nonresponsive” because they stated “that these agencies have simply not yet made any determination one way or the other regarding whether payments to NPO Energomash” violate the U.S. sanctions regime against Rogozin.
“There should be little doubt that the Russian engines at issue come from an entity that operates in the Russian arms or related materiel sector and is controlled by or acts at least indirectly, if not directly, on behalf of Russian government officials, including Rogozin as an explicitly blocked official,” Vacura wrote.
The filing goes on to assert the Treasury Department has not reviewed NPO Energomash's activities, because if it had, “it presumably would determine that NPO Energomash does operate in the arms sector in Russia and is controlled by a senior Russian government official, in which case dealings by ULS with Energomash would be prohibited.”
Treasury should “promptly review NPO Energomash's activities and make the appropriate determination, including whether the nature of ULS's dealings with NPO Energomash implicate the sanctions on Rogozin,” Vacura wrote.
In a response submitted to the court May 7 by legal counsel for ULA, the company said there is no legal basis for the preliminary injunction, “and dissolving it will cause no harm whatsoever” to SpaceX. “Meanwhile, the injunction is contrary to the public interest in national security, and keeping it in place will inflict irreparable harm on ULS.”
Specifically, attorneys for ULA said if left in place, the injunction would harm ULS in its effort as a team member on two competitive proposals now pending, as well as a number of “additional competitive proposals for launch services in the coming weeks and months.”
Continued enforcement of the injunction, ULA's attorneys argue, “will cause potential customers to question ULS's reliability and ability to maintain schedule, because of the uncertainty regarding whether ULS will be able to purchase additional Russian engines for future Atlas 5 launch vehicles.”
“Unless the preliminary injunction is lifted immediately, and certainly restored to ULS's core business, there is a significant threat that ULS and its team members will unfairly lose these business opportunities,” the ULA filing said.
The company currently has 16 RD-180 engines in the U.S., and has ordered 36 more from RD Amross, a joint venture of NPO Energomash and UTC, under a block-buy agreement signed in December.
In a May 8 order, Braden dissolved the preliminary injunction, noting that if the departments learn that any purchases from or payments to NPO Energomash in some manner benefit Rogozin, they are to inform the court.
In a May 8 statement issued after the injunction was lifted, ULA said: “Sadly, SpaceX’s frivolous lawsuit caused unnecessary distraction of the executive and judicial branch and increased tensions with Russia during a sensitive national security crisis."
Describing SpaceX’s actions as self-serving and irresponsible, ULA said the company has threatened U.S. involvement in the International Space Station and other companies and projects working with Russian entities.
“We continue to hope that SpaceX will revisit its underlying lawsuit and the merits of its case," ULA said. "The fact remains, even today SpaceX is not certified to launch even one mission under the block buy contract -- a contract that was authorized and announced more than two years ago, without objection by SpaceX, and is saving the U.S. taxpayers over $4 billion.”