The Supreme Court may get a chance to weigh in on the case between the Pentagon and Boeing/General Dynamics over the termination of the U.S. Navy's A-12 stealthy strike aircraft.

If the court takes up the case – a big if – it may be the first time that the highest court in the U.S. has been asked to adjudicate a defense procurement case of this sort. At issue is whether the U.S. Navy was within its rights to cancel for default the A-12 development program in 1991. The move came after then Defense Secretary Richard Cheney learned of massive cost and schedule overruns on the project.

Industry has claimed the termination for default finding was wrong, and that they should be entitled to recompense from the government because the termination was, in fact, for the convenience of the government.

But the U.S. Court of Appeals this year ruled in favor of the government and ordered Boeing and General Dynamics to pay back $2.8 billion plus interest, which has become a huge sum in the intervening time.

An appeal to the court to rehear the case has now been struck down, prompting General Dynamics to say it plans to petition the Supreme Court for a review. Boeing is saying the same, with the company's general counsel, J. Michael Luttig, noting that "the Court of Appeals' decision is clearly wrong as a matter of law and it has broad implications for all forms of government contracting nationwide."

In a wonderful coincidence of timing, the U.S. Navy yesterday announced that the X-47B UCAS is to fly next year. An operational version of the X-47B would effectively carry out much of the mission the A-12 was designed to perform, and give the Navy the stealth aircraft it sought two decades ago.