Government Contracts

State Secrets Doctrine
Hepting v. AT&T Corp.
Nos. 06-17132 & 06-17137
United States Court of Appeals for the Ninth Circuit

NCLC urged the Ninth Circuit to reverse the district court's erroneous determination that the state secrets doctrine does not bar litigation of the National Security Agency's Terrorist Surveillance Program and its alleged call records program.  In its brief, NCLC noted that 85% of the nation's critical infrastructure is in private hands and that the government and the private sector have cooperated to safeguard that infrastructure.  If private entities can be sued when the plaintiff disagrees with the government's national security policy, then that cooperation may be undermined.

Amicus brief filed 3/20/07. Oral argument held 8/15/07.

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Remedies for Breach of Government Contracts
Old Stone Corporation v. United States
No. 06-837
Supreme Court of the United States

The Supreme Court declined to review 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.

Amicus brief filed 2/17/07.  Decision 3/19/07.

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The Statute of Limitations under the California False Claims Act
State of California ex rel. Hindin v. Hewlett Packard and Agilent Technologies, Inc.
No. A114629
Court of Appeal of the State of California, First Appellate District

NCLC urged the appellate court to affirm the trial court's decision to dismiss this case on statute of limitations grounds.  California's False Claims Act limits filing of complaints based on information discovered more than three years previous to the time of filing.  That bar references "the official of the state or political subdivision charged with responsibility to act in the circumstances" as the individual subject to this discovery rule.  The private relator in this case argues that he is not such an individual and therefore is subject instead to the ten-year statute of repose.  In its brief, NCLC contended that the private relator sues in the name of the state and is therefore subject to the same limitations period.

Amicus brief filed 2/8/07.

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Government Contracts under the Federal Acquisition Regulations
Tesoro Hawaii Corporation, et al. v. United States
No. 04-5064
U. S. Court of Appeals for the Federal Circuit

The Federal Circuit denied Tesoro's petition for rehearing en banc of the panel decision finding that the challenged contractual clauses were not illegal.  Before the panel, NCLC had argued that a government contractor does not waive the right to object to a contract clause that is illegal under the Federal Acquisition Regulations simply by continuing to perform under the contract.  Our panel "brief confront[ed] the foundational question of whether the government or private contractors should bear the risk that individual government contracting officers will depart from the rules of the game that Congress and high-level officials have established."  Placing the risk on the private contractors flies in the face of well-established law that private contractors, confronted by unauthorized government contracts, are not bound by estoppel, acquiescence, or failure to protest.

In affirming the district court, the Federal Circuit panel did not reach the issue of waiver and instead concluded that the clauses were not illegal.  NCLC filed an additional amicus brief in support of Tesoro's pending petition for rehearing en banc.

Amicus brief filed 5/5/04.  Decision 4/26/05.  Amicus brief in support of petition for rehearing en banc filed 6/10/2005.  Rehearing denied 8/22/05.

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