Blue Origin thread.

[mikegarrison]

Rule 12(b)1 "lack of subject matter jurisdiction" and Rule 12(b)6 "failure to state a claim upon which relief can be granted".

So, basically, the court ruled that the court had no jurisdiction over the claim that was made, so it is being dismissed.

[JoeSchmuckatelli]

12 hours ago, mikegarrison said:

Rule 12(b)1 "lack of subject matter jurisdiction" and Rule 12(b)6 "failure to state a claim upon which relief can be granted".

So, basically, the court ruled that the court had no jurisdiction over the claim that was made, so it is being dismissed.

I have not seen anything from the court suggesting it's a 12(b)1 dismissal.  I think the court likely agreed that jurisdiction is found - far more likely that BO failed to demonstrate that it could succeed on the merits. 

Still, that's a guess until the opinion is released after the technology redactments 

[JoeSchmuckatelli]

1 minute ago, JoeSchmuckatelli said:

I have not seen anything from the court suggesting it's a 12(b)1 dismissal.  I think the court likely agreed that jurisdiction is found - far more likely that BO failed to demonstrate that it could succeed on the merits. 

Still, that's a guess until the opinion is released after the technology redactments 

12(b) 1 is common when a claim is made but not cognizable by the specific court... So maybe you are correct and it found that Congress has not authorized Federal Courts to hear that class of cases (because they belong in a different venue / regulatory agency - or the issue isn't mature enough to reach the court (administrative remedies not exhausted) 

"In order to bring an action in federal court, the plaintiff must find a constitutional or congressional grant of subject-matter jurisdiction to allow the federal court to hear the claim"

https://www.law.cornell.edu/wex/subject_matter_jurisdiction

 

[JoeSchmuckatelli]

17 hours ago, mikegarrison said:

Rule 12(b)1 "lack of subject matter jurisdiction" and Rule 12(b)6 "failure to state a claim upon which relief can be granted".

So, basically, the court ruled that the court had no jurisdiction over the claim that was made, so it is being dismissed.

Edit to my above - I found a Twitter thing (not on Twitter and the news articles did not state the standards) confirming 12(b)1 and 12(b)6.

So Mike is correct. 

Looking forward to reading the actual opinion!  I'd like to know what underlies the Subject Matter Jurisdiction decision.  

[tater]

Asked lawyer friend who has not read the full ruling. He said, "12b1 is but I doubt that was the basis for the ruling. Which I haven't read"

The "is" refers to me asking him about the jurisdiction bit.

[Shpaget]

19 hours ago, mikegarrison said:

Rule 12(b)6 "failure to state a claim upon which relief can be granted".

This bit here sounds like legalise description of BO saying "We can't deliver what is asked, but we don't want anybody else to do it either."

[mikegarrison]

1 hour ago, tater said:

Asked lawyer friend who has not read the full ruling. He said, "12b1 is but I doubt that was the basis for the ruling. Which I haven't read"

The "is" refers to me asking him about the jurisdiction bit.

No one has read the ruling yet. The parties have agreed to have a conference to propose redactions from the ruling, so the ruling is confidential until that happens.

I assume this is to protect proprietary information.

This is all spelled out in that tweet from Bezos that was posted on the previous page.

Edited November 7, 2021 by mikegarrison

[JoeSchmuckatelli]

1 hour ago, Shpaget said:

This bit here sounds like legalise description of BO saying "We can't deliver what is asked, but we don't want anybody else to do it either."

Easiest way to say 'you don't have any chance to win' as presented.  Often when dismissed, leave is granted to file again if they can figure out how to squeeze the facts into a cognizable claim... But you kind of guess that they took their best stab at it on the first go. 

[tater]

Bezos certainly doesn't seem to be saying they will fight on (legally) in that tweet.

<shrug>

Wait and see, I guess.

[tater]

BO image of their simulator:

 

[JoeSchmuckatelli]

17 minutes ago, tater said:

BO image of their simulator:

 

Looks rockety

[.50calBMG]

Almost makes you think they might be working on something other than lawsuits.

 

Edited November 8, 2021 by .50calBMG

[JoeSchmuckatelli]

Where do they put the engines? 

[Rakaydos]

2 minutes ago, JoeSchmuckatelli said:

Where do they put the engines? 

Other end. The straight fins are the equivilant of SpaceX's grid fins,  the flare at the far end is the engine bay cowling.

[Beccab]

5 minutes ago, Rakaydos said:

Other end. The straight fins are the equivilant of SpaceX's grid fins,  the flare at the far end is the engine bay cowling.

Also worth mentioning this one in particular will not have engines mounted, it's a pathfinder without even tanks on it (just in case it wasn't obvious)

[JoeSchmuckatelli]

16 minutes ago, Beccab said:

Also worth mentioning this one in particular will not have engines mounted, it's a pathfinder without even tanks on it (just in case it wasn't obvious)

I appreciate @Rakaydos response b/c I couldn't tell if the flair was for mounting larger payloads or the engines 

I did know that it was a pathfinder - but it is good to reiterate 

Edited November 8, 2021 by JoeSchmuckatelli

[OrdinaryKerman]

6 hours ago, tater said:

BO image of their simulator:

 

panel gaps look even bigger than on KSP parts

[JoeSchmuckatelli]

1 hour ago, OrdinaryKerman said:

panel gaps look even bigger than on KSP parts

Maybe they are going to erect it outside as a monument to things they aspire to accomplish?

[magnemoe]

7 hours ago, Beccab said:

Also worth mentioning this one in particular will not have engines mounted, it's a pathfinder without even tanks on it (just in case it wasn't obvious)

I assume the entire body is two tanks with an common bulkhead, the three bulkheads is integral parts of the structure. But no it does not need to be an real tank if its just an boilerplate for handling and fitting, kind of we see SpaceX do with first starship first stages. 
 

[RCgothic]

I believe it's fabric over frame. It's at best a full scale mock-up, I'd struggle to dignify this with the term "pathfinder", which implies at least some manufacturing processes have been tested.

[Beccab]

8 minutes ago, RCgothic said:

I believe it's fabric over frame. It's at best a full scale mock-up, I'd struggle to dignify this with the term "pathfinder", which implies at least some manufacturing processes have been tested.

Yep some sources say that it wasn't built by BO but commissionated to a secondary company, nothing of it is made by the NG machinery. It tests transportation n'stuff I think. It's much less complete than the Shuttle Pathfinder, for example

[magnemoe]

48 minutes ago, RCgothic said:

I believe it's fabric over frame. It's at best a full scale mock-up, I'd struggle to dignify this with the term "pathfinder", which implies at least some manufacturing processes have been tested.

Don't think it fabric, I assume rolled aluminium. I reacted a bit to the square steel structure in the interstage but assumed the upper stage engine would fit inside. 
Still an weird way of building it rater than using ribbing like Starship does or carbon fiber as falcon 9. 
With aluminum its pretty common to machine out an ribbing out of thick aluminium for rockets. 
This is expensive but stage cost is less important for an reusable stage. 

[RCgothic]

This is definitely not machined aluminium. It may be extremely badly applied aluminium sheet, but it's definitely not any form of tank structure.

Edited November 9, 2021 by RCgothic

[sevenperforce]

On 11/7/2021 at 3:02 PM, JoeSchmuckatelli said:

On 11/6/2021 at 10:40 PM, mikegarrison said:

Rule 12(b)1 "lack of subject matter jurisdiction" and Rule 12(b)6 "failure to state a claim upon which relief can be granted".

So, basically, the court ruled that the court had no jurisdiction over the claim that was made, so it is being dismissed.

Edit to my above - I found a Twitter thing (not on Twitter and the news articles did not state the standards) confirming 12(b)1 and 12(b)6.

So Mike is correct. 

Looking forward to reading the actual opinion!  I'd like to know what underlies the Subject Matter Jurisdiction decision.  

I'm pulling up the PACER docket now. The case was filed against the United States but SpaceX is the Intervenor-Defendant. My guess (not having seen it yet) is that it can be found in either the US or the SpX Motion to Dismiss.

<<search>>

And it looks like it was the US who filed the MTD and Motion for Judgment on Administrative Record, on October 1. It was filed under seal, like everything else in the case. I downloaded the redacted version of the original complaint; I'm not sure if it is already available online. DM me if you want it. There is no redacted version of the MTD.

The claim was brought under 28 USC § 1491, where the US waives sovereignty for claims brought in the U.S. Court of Federal Claims. But the USCFC only has jurisdiction under a specific, delineated number of situations. The one cited in BO's complaint is this:

"[The USCFC has jurisdiction over] an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement."

Blue Origin is definitely objecting to "a proposed award or the award of a contract" and so the only way to challenge this rests on the first part of the sentence: "an action by an interested party." A challenge to subject matter jurisdiction is often a challenge based on standing, and so my guess is that the MTD on Rule 12(b)(1) is a challenge to BO's standing.

Here's what Blue Origin had to say in their Complaint about why they think they have standing:

"Blue Origin is an interested party with standing to pursue this protest action because it was an actual offeror for the HLS Option A Contract and was next in line for award. Thus, Blue Origin's direct economic interests are affected by the award of this contract to SpaceX. Blue Origin is prejudiced because but for NASA's erroneous and flawed evaluation actions and conduct, including waiver of a critical and mandatory solicitation requirement for SpaceX, there was a substantial chance Blue Origin would have received a contract award."

And that's where they lost. The federal court must, by law, give deference to factual determinations of the administrative agency for the purposes of evaluating questions of standing. The GAO (likely) said that the Blue Origin was NOT second in line because they did NOT qualify for the award and would NOT have received it but for the award to SpaceX, due to the limited budget authorized by Congress. Thus, Blue Origin did not have standing and so the court did not have jurisdiction under §1491.

That's my guess, anyway.

A further amusing excerpt from BO's Complaint:

"Plaintiff Blue Origin is in the business of lunar launch and landing services and is designing and developing the Blue Origin Human Landing System with the plan to return humans to the Moon."

The "business" of lunar launch and landing services, eh?

[sevenperforce]

I will also point out that when you have a Rule 12(b)(1) Motion to Dismiss on lack of standing, the same set of facts will also usually trigger Rule 12(b)(6).

On 11/7/2021 at 4:44 PM, Shpaget said:

 

On 11/6/2021 at 10:40 PM, mikegarrison said:

Rule 12(b)6 "failure to state a claim upon which relief can be granted".

This bit here sounds like legalise description of BO saying "We can't deliver what is asked, but we don't want anybody else to do it either."

The good old Rule 12(b)(6) “failure to state a claim” is often poorly-described.

In order to get a court to do what you want, you have to demonstrate that you have a legal right to the thing you want the court to do. If the court can tell that the thing you want is something you could not possibly have a right to, then it can dismiss your case without any further analysis.

For example, if I file a lawsuit asking a court to grant me title to some piece of property on the grounds that I am the descendant of British nobility with rights to that property, the court will dismiss my claim because the Constitution says that the United States does not recognize titles of nobility. Even if what I’m saying is true — even if I really am descended from Duke So-And-So — it doesn’t matter.

Another way Rule 12(b)(6) can be triggered is if the facts I state in my complaint do not support a right to the relief I’m demanding. For example, suppose I imagine that I am being ostracized at work for refusing to get vaccinated, and so I sue OSHA for intentional infliction of emotional distress based on their vaccine mandates. Intentional infliction of emotional distress is a valid claim, but since there is no way that OSHA could be responsible for the actions of my coworkers, the court will rule that the facts stated in my complaint simply don’t support the relief I’m seeking.

In this situation, the same fatal flaw in Blue Origin’s lawsuit rears its head again. The facts established by the GAO demonstrated that Blue Origin was not second in line for the Human Landing System award and would not have received the award regardless of whether SpaceX was involved, because the National Team submitted a non-qualifying bid. Thus, EVEN IF all BO’s criticisms of SpaceX and the award process were 100% true, it still wouldn’t matter because BO lost independently of SpaceX’s involvement and so BO doesn’t have any legal right to interfere.