Novel Contract Defenses From Gov't May Not Sway Fed. Circ.

In two government contracts appeals argued remotely on June 1, the US government asked the US Court of Appeals for the Federal Circuit to endorse controversial theories of waiver and jurisdiction in order to avoid the merits of contractor breach claims. While oral argument does not always reflect the decision to come, the Federal Circuit panels seem appropriately skeptical of the government's arguments.

In The Boeing Company v. US,¹ the government argued that Boeing waived its right to challenge the validity of a regulation in a breach of contract action because Boeing entered into the contract without first challenging the regulation through a separate legal action. During oral argument, all three panel members expressed concern with the government's theory.