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The Boeing Company (Successor To Mcdonnell Douglas Corporation v. United States

United States Court of Appeals for the Federal Circuit


July 7, 2011

THE BOEING COMPANY (SUCCESSOR TO MCDONNELL DOUGLAS CORPORATION), PLAINTIFF-APPELLANT, AND GENERAL DYNAMICS CORPORATION, PLAINTIFF-APPELLANT,
v.
UNITED STATES, DEFENDANT-APPELLEE.

Appeals from the United States Court of Federal Claims in case No. 91-CV-1204, Senior Judge Robert H. Hodges, Jr. Before RADER, Chief Judge, PROST and MOORE, Circuit Judges.

Per curiam.

NOTE:

This disposition is nonprecedential.

ORDER

The Supreme Court vacated and remanded this case to the Federal Circuit in its recent decision in General Dynamics Corp. v. United States, 131 S. Ct. 1900 (2011), for consideration of the Government's argument that it does not have an obligation to share its superior knowl- edge "with respect to 'highly classified information,'" or "when (as was the case here) the agreement specifically identifies information that must be shared." Id. at 1909-10. In addition, on remand, we must determine whether those issues "can safely be litigated without endangering state secrets." Id. at 1910.

On June 30, 2011, the parties submitted a joint mo- tion for entry of a scheduling order in this case for brief- ing of the remanded issues. The Government's arguments, however, were never squarely addressed by the Court of Federal Claims in the first instance. In addition, the Supreme Court's remand requires factual determinations most appropriately undertaken by the trial court.

Upon consideration thereof, IT IS ORDERED THAT:

(1) The parties' joint motion for entry of a scheduling order is denied.

(2) We remand to the Court of Federal Claims for further proceedings consistent with the Court's opinion in General Dynamics Corp. v. United States.

FOR THE COURT

Jan Horbaly Clerk

20110707

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