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ARTICLE · 26 MAY 2011

Supreme Court Decision Alert - May 23, 2011

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In an important decision long-anticipated by government contractors, the Supreme Court today held that the government cannot use the state-secrets doctrine as both a "sword and a shield."

United StatesLitigation, Mediation & Arbitration
Andrew Tauber
Andrew Tauber
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Originally published May 23, 2011

Keywords: government contracts, state secrets, General Dynamics Corp, Boeing, fixed-price contracts

Today the Supreme Court issued one decision, described below, of interest to the business community.

Government Contracts—"State Secrets" Privilege

General Dynamics Corp. v. United States and The Boeing Company v. United States, Nos. 09-1298 & 09-1302 (previously discussed in the September 28, 2010 Docket Report).

In an important decision long-anticipated by government contractors, the Supreme Court today held that the government cannot use the state-secrets doctrine as both a "sword and a shield." The Supreme Court unanimously ruled in General Dynamics Corp. v. United States and The Boeing Company v. United States, Nos. 09-1298 & 09-1302, that when the government successfully invokes the "state secrets" privilege to bar adjudication of an affirmative defense plausibly asserted by the contractor, and when "full litigation

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