August 31, 2012
Using the Government's Breach of Contract Suit Against Navy Seal "Mark Owen" in Class?
The U.S. government reportedly is considering filing a breach of contract suit against the Navy Seal (pseudonym "Mark Owen") who wrote a book about the raid and killing of Osama bin Laden. According to a letter obtained by Reuters, the Pentagon has told Owen that his publication of the book would further violate certain confidentiality provisions in agreements between him and the U.S. government. The Huffington Post reports the contents of the letter as follows:
"In the judgment of the Department of Defense, you are in material breach and violation of the non-disclosure agreements you signed....Further public dissemination of your book will aggravate your breach and violation of your agreements."
I recently thought about how I could use this case in class without crossing any lines of impropriety (read: without crossing over into an uncomfortably political discussion). One angle I envisioned was using it when we get to specific performance. A topic closer to the (mythical?) impropriety line would be whether Owen would have any arguments regarding why the agreements should not be enforced, perhaps including public policy or duress. Both are a stretch without more facts. Regardless of specifics, I think it could be a great case to use when discussing the general topics of the limits of contract law and the limits of contract law remedies.
[Heidi R. Anderson]
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I'm really glad you posted on this subject, as I was thinking about posting myself, but had not yet figured out my angle.
If I were to discuss this case with my students, I would do it in conjunction with my section on public policy, in which I like to discuss Totten v. United States (see this blog post: http://lawprofessors.typepad.com/contractsprof_blog/2009/10/bonus-limerick-totten-v-united-states.html
In Totten, the Court refused to hear a breach of contract claim against the government on the ground that the contract was secret and the lawsuit itself violated an implied covenant of secrecy. Recently, in General Dynamics, Justice Scalia invoked the "go away" doctrine and told government contractors that, where the government invoked the state secrets privilege (SSP), courts must back off and leave the parties where they are. I criticized General Dynamics because the government always has the option of declassifying secret information. The government can invoke the SSP when it wants to thwart litigation, but it can forego the SSP when it wants to pursue litigation. This renders secret contracts illusory. The government can sue, but its counterparts cannot.
One could raise the objection that "Mark Owen" has already disclosed the confidential information and thus opened himself up to suit. But when the government invokes the SSP, it insists that information is still classified despite its public disclosure. And courts have dismissed cases on that basis.
So, in short, this case illustrates the Trouble with Totten, which is the subject of another post:
Posted by: Jeremy Telman | Aug 31, 2012 3:17:01 PM
Heidi and Jeremy --
There are two cases already on point,
HM Att'y Gen. v. Blake,  UKHL 45,  1 A.C. 268 (U.K.) and Snepp v. United States, 444 U.S. 507 (1980).
In Blake, an employee in the British intelligence agency during the Cold War was also a double agent for the Soviet Union. After serving a prison sentence in England, he escaped to the USSR and wrote a book about his activities, which was published in England. The UK authorities sued to deprive him of his royalties and the House of Lords awarded the State an unjust enrichment remedy.
In Snepp, a former CIA agent published a book about his work for the agency but breached his CIA contract without obtaining pre-clearance. Because the former agent’s breach of contract was also a breach of his fiduciary duty, the Court held him liable in restitution for all profits he realized on the book.
Posted by: Steve Feldman | Aug 31, 2012 6:22:02 PM
I think the fate of Valerie Wilson's book is also relevant in this context:
Steve, any thoughts about that?
Posted by: Jeremy Telman | Sep 1, 2012 7:29:44 AM
I read the 2009 posting and agree that the Wilson case is on point, because the appeals court upheld the CIA prehearing contract on the activities of its present or former agents.
If the government sues the former Navy Seal, which appears likely, the interesting point will be whether the DOD will rely on the Snepp/Blake line of authority and seek restitution of royalties. Disgorgement of ill-gotten profits is a relatively new development in the law of restitution and has been noted by the commentators. See, e.g., Caprice Roberts, A Commonwealth of Perspective on Restitutionary Disgorgement for Breach of Contract, 65 Wash. & Lee L. Rev. 945 (2008).
Posted by: Steve Feldman | Sep 4, 2012 6:38:12 AM
I think I read that the author was planning to donate the proceeds from his book to a charitable organization that helps veterans or their families. If that is the case, a disgorgement would be politically ill-advised, no?
Posted by: Jeremy Telman | Sep 4, 2012 7:45:33 AM
Good point-- sounds like his legal team already has read Blake and Snepp!
Posted by: Steve Feldman | Sep 4, 2012 1:54:47 PM
Snepp and Blake are very different Blake was based on pejorative facts that prompted the House of Lords to change the law of contracts and allow the remedy of disgorgement for the breach Snepp was a garden variety breach of fiduciary duty by an employee breaching his employer's confidentiality. The Restatement Third of Restitution and Unjust Enrichment now provides for disgorgement for a flagrant breach of contract but is unlikely to be accepted by most courts. Breach of contract damages aren't well suited for this type of case because the gov't probably can't establish much in damages.
The bottom line is that the Seal can breach his fiduciary duty but he can't make a profit at breaching his fiduciary duty. Sorry, it's unlikely that his contributing the profits to charity probably won't count as counter restitution for offsetting his royalties. He should have arranged for he royalties to go to the charity directly.
Posted by: George Roach | Jan 28, 2013 7:20:48 PM