29 May 1998
Source: David Sweigert
See related documents: http://jya.com/dgsfiles.htm
[Docket No. 1, March 3, 1998]
UNITED STATES DISTRICT COURT
District of Maryland
DAVID G. SWEIGERT (PRO SE) )
)
Plaintiff )
)
Vs. ) AMD98-654
)
DEPARTMENT OF THE ARMY, and )
)
Defendant )
_________________________________)
INITIAL COMPLAINT
The Plaintiff, DAVID G. SWEIGERT, hereby requests a trial by jury for the
following action.
PARTIES
Plaintiff D. G. SWEIGERT is a legal resident of the State of Maryland and
maintains a business address at P.O. Box 390, Annapolis Junction, Maryland 20701.
As the Plaintiff can not afford an attorney he appears PRO SE before this
Court.
Defendant U.S. Army is a federal agency of the U.S. Government and
maintains a business address at the Aberdeen Proving Ground, Maryland, 21010.
JURISDICTION
Jurisdiction is granted upon this Court by the Administrative Procedures
Act, 5 USC 702 - 706, et. al.
BACKGROUND
The U.S. Army entered into a contract with a defense contractor. The
contract number is N61339-92-D-00181, Delivery Order no. 2 (herein the military
contract). The military contract allowed the U.S. Army to hire civilian
contractors to perform computer software development and maintenance for the U.S.
Army.
The military contract contained the following clause:
“GOVERNMENT-CONTRACTOR RELATIONSHIPS (NON-PERSONAL SERVICES)
The Government and the Contractor understand and agree that the services to be
furnished under this contract by the Contractor to the Government are non-personal
services and the parties recognize and agree that no employer-employee or
master-servant relationship exist or will exist under the contract between the
Government and the Contractor and/or between the Government and the Contractor’s
employees. It is, therefore, in the best interest of the Government to afford the
parties a full and complete understanding of their respective obligations…”
It is instructive for the Court to note the following entry that appears in a
publication created by the Office of Federal Procurement Policy:
“Task order contracts, especially those for advisory and assistance
services, with a long period of performance, a broad statement of work, and on-site
performance potentially can result in conflicts of interest, performance of
inherently governmental functions, or an employer/employee relationship,
particularly if the contractor becomes an integral part of the agency operations.
Some agencies use contract provisions to help avoid these problem situations; for
example, the following provision has been used to protect against creation of a
personal services contract. “This contract is a "nonpersonal services contract" as
defined in FAR 37.101. It is, therefore, understood and agreed that the contractor
and/or the contractor's employees: (1) shall perform the services specified herein
as independent contractors, not as employees of the government; (2) shall be
responsible for their own management and administration of the work required and
bear sole responsibility for complying with any and all technical, schedule, or
financial requirements or constraints attendant to the performance of this contract;
(3) shall be free from supervision or control by any government employee with
respect to the manner or method of performance of the services specified; but (4)
shall, pursuant to the government's right and obligation to inspect, accept or
reject the work, comply with such general direction of the CO, or the duly
authorized representative of the CO as is necessary to ensure accomplishment of the
contract objectives.”
The foregoing excerpt from “Best Practices for Multiple Award Task and Delivery Order
Contracting” Office of Federal Procurement Policy (OFPP), Office of Management and
Budget, Executive Office of the President, INTERMIN EDITION, July, 1997.
Plaintiff was employed by the defense contractor from May 15th, 1995 to
August 12th, 1996. The defense contractor directed the Plaintiff to occupy space
controlled by a subordinate agency of the U.S. Army Material Command. In July, 1996
the Plaintiff transmitted an electronic mail message to his supervisor at the defense
contractor and to E-mail address: mcbrayej@stricom.army.mil , that of the Contractor
Officer’s Technical Representative (herein COTR) at the U.S. Army. The E-mail
message complained of several violations to contract N61339-92-D-0018. The
Plaintiff also transmitted to the defense contractor’s Director of Human Rescores a
memorandum that complained of a hiring scheme whereby members of the C.O.T.R.’s
religious fellowship were being hired by the defense contractor based upon the
C.O.T.R.’s verbal direction that such personnel should be hired. Shortly after the
Plaintiff transmitted the memorandum to the Director of Human Resources he was
assigned to new duties on or about August 1, 1996. These new duties required the
Plaintiff to work on the U.S. Army’s Electronic Commerce, Electronic Data Interchange
(EC/EDI) program charted by the Office of the Secretary of Defense. Shortly,
thereafter, Plaintiff’s employment was terminated without warning or notice and
thereby Plaintiff was affected by some agency action; LUJAN, SECRETARY OF THE
INTERIOR, et al. v. NATIONAL WILDLIFE FEDERATION et al., certiorari to the United
States Court of Appeals for the District of Columbia circuit No.89640. Argued April
16, 1990, Decided June 27, 1990 -- Decided. The Plaintiff received a letter
postmarked August 15th, 1996 that advised the Plaintiff that his employment
termination was due to “a lack of support” for his “current billet”.
The Plaintiff filed a complaint with the U.S. Department of Labor’s Office
of Federal Contract Compliance Programs (OFCCP). The OFCCP released two reports;
(1) dated December 3, 1997 and (2) dated February 2, 1998. Both OFCCP reports
re-stated that the reason for employment termination, based upon their interviews
with the defense contractor, was related to “Army funding cut-backs”.
Following his employment termination the Plaintiff officially raised allegations
concerning the apparent “religious preference” hiring system installed by the Army
C.O.T.R. The U.S. Army’s Command Counsel supervised two investigations: (1) an
internal investigation conducted by an Army Lt. Colonel under the authority of
Army Regulation 15-6 (herein AR 15-6) and (2) a Criminal Investigative Division
(herein CID) under the authority of 31 USC 3729-31.
ALLEGATIONS
COUNT ONE:
VIOLATION OF 5 USC 3109
Plaintiff alleges that the U.S. Army C.O.T.R. had budgetary control over
the U.S. Army EC/EDI program. It would have been rather simple for the Army
C.O.T.R. to artificially “cut-funding” of the Plaintiff’s EC/EDI position for the
purposes of cutting off the Plaintiff’s access to U.S. Army organization and to
eliminate any future memorandums or “whistle-blowing” regarding the hiring of
C.O.T.R. acquaintances at the C.O.T.R.’s religious fellowship.
Plaintiff alleges that the Army C.O.T.R. lacked the background and
experience to properly manage a NON-PERSONAL services contract, as opposed to a
PERSONAL-SERVICES contract. Plaintiff alleges that the C.O.T.R. became personally
involved in the hiring, terminating, evaluation, motivating and supervision of
employees of the defense contractor, in other words Army C.O.T.R. managed the
military contract as a PERSONAL SERVICES contract.
Plaintiff alleges that the Army’s C.O.T.R.’s management of the military
contract as a PERSONAL SERVICES contract violates Federal Acquisition Regulation
37.104, which states in relevant part:
“37.104 Personal services contracts.
As indicated in 37.101, a personal services contract is characterized by the
employer-employee relationship it creates between the Government and the
contractor's personnel. The Government is normally required to obtain its employees
by direct hire under competitive appointment or other procedures required by the
civil service laws. Obtaining personal services by contract, rather than by direct
hire, circumvents those laws unless Congress has specifically authorized
acquisition of the services by contract.
Agencies shall not award personal services contracts unless specifically authorized
by statute (e.g., 5 U.S.C. 3109) to do so. ..”
Plaintiff alleges that the Army C.O.T.R.’s management of the military contract
specifically violated 5 U.S.C. 3109 causing harm and injury to the Plaintiff.
COUNT TWO:
ARMY’S THREATS AIMED
AT WITNESSES FOR
SELF-INCRIMINATION
It is instructive for this Court to note Army Regulation 15-6, section 3-6,
para. (5) (b), which states in relevant part:
“…No witnesses or respondents not subject to the UCMJ will be required to make a
statement or produce evidence that would deprive them of rights against
self-incrimination under the Fifth Amendment of the U.S. Constitution….”
Plaintiff alleges that the U.S. Army investigator required witnesses to answer
self-incriminating questions for the purposes for intimidating the witnesses so as
to “insure their silence” regarding the matters related to a possible “religious
preference” hiring system during the AR 15-6 investigation (conducted approximately
around January, 1997).
Compelling witnesses to commit self-incrimination violates the Fifth Amendment2
of the U.S. Constitution.
COUNT THREE:
UNAUTHORIZED RELEASE
OF INFORMATION TO THE
DEFENSE CONTRACTOR
UNDER SUSPICION
It is instructive for this Court to note 31 USC 3730(b):
“…The complaint shall be filed in camera, shall remain under seal for at least 60
days, and shall not be served on the defendant until the court so orders….”
In July, 1996 the Plaintiff transmitted a message to the Army Command
Counsel at E-mail address: gottlieh@stricom.army.mil that the Plaintiff would file
a 31 USC 3730(b) lawsuit. The Plaintiff invoked the qui tam provisions of 31 USC
3730(b) and filed a lawsuit with allegations about the “religious preference”
hiring system. It is instructive for this Court to note that during the
Congressional debate that led to the 1986 Amendments to 31 USC 3730(b) Congress
memorialized it’s desire that allegations of wrong-doing not be presented to the
target of a 31 USC 3730(b) investigation to prevent the target from being “tipped
off” and improperly preparing to defend itself from the allegations.
Plaintiff alleges that agents of the U.S. Army Criminal Investigative
Division and the U.S. Army General Counsel shared information with the C.O.T.R.
and employees of the defense contractor. That this information sharing violated
the provisions of 31 USC 3730(b).
REQUEST FOR RELIEF
Plaintiff seeks judicial review of the agency’s (U.S. Army) actions in
accordance with 5 USC 7023.
Plaintiff seeks declaratory judgement in accordance with 5 USC 706(2)(D)
regarding all issues contained within COUNT ONE. Plaintiff seeks this Court’s
judgement that the Army C.O.T.R.’s managerial actions were improper and in
violation of 5 USC 3109.
Plaintiff further seeks this Court’s judgement that the Army C.O.T.R.
manipulated funding to create an “artificial” budget cut-back for the purposes of
disposing of the Plaintiff from the organization without due process, notice or
any other customary waring.
Plaintiff further seeks this Court’s judgement in accordance with 5 USC
(2)(D) that the Army Criminal Investigative Division and Army General Counsel
violated 31 USC 3730(b) by sharing investigative data with the target of an
investigation, the defense contractor and the C.O.T.R.
Respectfully submitted:
D. G. Sweigert
P.O. Box 390
Annapolis Junction, MD 20701