U.S. v. Kellogg Brown & Root Services,
Inc., 10-cv-530 (RCL) (D.D.C. 2012), presents the
interesting case whether a defendant in an international litigation
can or should counterclaim litigation, in this case against the
U.S. government. The U.S. sued KBR for over $100 million in
allegedly false claims arising from the war in Iraq. The government
is seeking civil penalties and treble damages. Once the government
sued, the defendant had the choice to counterclaim, which it did
here. The government then moved to dismiss on a variety of grounds
that arise with some frequency in international litigation.
Of particular interest is the government's invocation of the
political question doctine, which the government said "bars
judicial second-guessing of the military's decision making as
regards the provision of force protection in Iraq". As a
result, argued the government, "KBR's challenge to the
military's performance of its contractual obligation to provide
force protection is nonjusticiable".
The Court rejected these defenses. "Absent some
discovery", said the Court, "and more detailed briefing
by the parties specifically concerning the political question
problem, the Court cannot perform the 'discriminating
analysis' required to resolve this problem". See El Shifa
Pharm. Indus. Co. v. U.S., 607 F.3d 836, 841 (D.C. Cir. 2010).
At the same time, the Court agreed that DKR's failure to
exhaust its administrative remedies. Under the Contract Disputes
Act, a contractor is required make a written claim against the
government before going to court. The Court did not address whether
that rule applied in the case where there are time limits set on
litigants to assert their counterclaims, including mandatory or
Also, the Court then went on to find that the contractor has
failed to state any claim for relief because of the fatal failure
to plead a claim for "recoupment" in the manner required
by law. The Court did not explain why it went through the earlier
and extensive analysis in its decision if in fact the Court had
determined that there was no cause of action alleged.
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