By Tommy H. Thomason
Tuesday, September 28, 2010
A-12, The Gift That Keeps On Giving, IV
The Supreme Court has agreed to hear part of the A-12 appeal by Boeing and General Dynamics. (See here, here, and here for the background; the case status is provided here.) Note that they are limiting their review to the Fifth Amendment issues and not reviewing the termination for default issue.
Sep 28 2010 Petition GRANTED limited to Question 2 presented by the petition. The petition for a writ of certiorari in No. 09-1298 is granted limited to Question 1 presented by the petition. The cases are consolidated and a total of one hour is allotted for oral argument.
09-1302 BOEING COMPANY V. UNITED STATES
DECISION BELOW: 567 F.3d 1340
LOWER COURT CASE NUMBER: 2007-5111, 2007-5131
1. Whether the Due Process Clause of the Fifth Amendment permits an appellate court to adopt a new legal rule, inconsistent with its own prior ruling in the same case, and then apply it retroactively to the record established in the trial court pursuant to the prior ruling, without remanding to afford the parties the opportunity to prove their case under the new rule. 2. 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. 3. Whether the Government may terminate a government contract for default on the ground that a contractor has failed to make adequate progress toward timely completion of that contract where the Government has not set a valid deadline for completing the contract.
CONSOLIDATED WITH 09-1298 FOR ONE HOUR ORAL ARGUMENT
09-1298 LIMITED TO QUESTION 1
09-1302 LIMITED TO QUESTION 2
CERT. GRANTED 9/28/2010