Old Stone Corporation v. U.S.

1. Whether the Federal Circuit incorrectly held that the victim of a total contract breach, by making post-breach mitigation efforts, made an "election of remedies" that forfeited its remedy of restitution, where it did not receive, and could not expect to receive, any post-breach contract performance from the breaching party.

2. Whether the Federal Circuit incorrectly barred restitution on the ground that restitution would make the victim better off than if the contract had been performed.

Urging the Supreme Court to grant review, NCLC filed a brief challenging the Federal Circuit’s decision to apply a special remedial rule when the government breaches a contract with a private party. In recent years, the Supreme Court has reaffirmed that, when the government enters into contracts, the government must abide by the same law of contracts as do private parties. In this case, the government and the Federal Circuit have relied on a nineteenth century election of remedies theory that has been discarded by courts in the private context.

The Supreme Court declined to review this case.

Amicus brief supporting cert. filed 2/17/07. Cert. denied 3/19/07.