General Dynamics Corporation v. U.S.; The Boeing Company v. U.S.

Whether the Due Process Clause of the Fifth Amendment permits the Government to maintain a claim while simultaneously asserting the state secrets privilege to bar presentation of a prima facie valid defense to that claim.

NCLC urged the Supreme Court to rule that the government may not assert the state secrets privilege to bar discovery of materials related to its own breach of contract claim. In a pair of decisions, the Federal Circuit allowed the government to proceed with its breach of contract claim against two defense contractors even though the government had asserted the state secrets privilege to deprive the defendant-contractors of the right to litigate a defense to that claim. In its brief, NCLC warned that the decision below creates considerable uncertainty surrounding the enforceability of government contracts addressing classified matters. Contractual certainty is essential to the effective and efficient delivery of defense systems and services by private companies to the government.

Previously, NCLC filed an amicus brief supporting certiorari.

Held: When, to protect state secrets, a court dismisses a Government contractor’s prima facie valid affirmative defense to the Government’s allegations of contractual breach, the proper remedy is to leave the parties where they were on the day they filed suit.

Previously, the Supreme Court agreed with NCLC's amicus supporting certiorari.

Amicus brief supporting certiorari filed 5/27/10. Cert. granted 9/28/10. Amicus brief on the merits filed 11/19/10. Decided 5/23/11.