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The Supreme Court made a dent in its 46-case backlog with three decisions on Monday, including one that is a major win for government contractors and another that makes it easier for police to conduct searches without warrants. The justices returned from a brief break for the final phase of the Court’s term – the period between mid-May and late June when it sits mostly on Mondays to release decisions and orders. Justices Clarence Thomas and Samuel Alito Jr. were absent from Monday’s brief session — not unusual during a period of travel for many justices — leaving Chief Justice John Roberts Jr. to announce decisions they authored. In other action Monday, the justices declined to review Mohamed v. Jeppesen, a challenge to the government’s assertion of the “state secrets” privilege to end a lawsuit by five individuals who claimed they were tortured after the United States illegally transported them to secret prisons and detention sites. “With today’s decision, the Supreme Court has refused once again to give justice to torture victims and to restore our nation’s reputation as a guardian of human rights and the rule of law,” said Ben Wizner, litigation director of the ACLU National Security Project, in a statement. Justice Stephen Breyer also announced the Court’s 8-0 decision in CIGNA Corp. v. Amara, limiting the ability of employees to recover retirement benefits when their employers describe benefits inaccurately. Justice Sonia Sotomayor did not participate. Whistleblower suits In a win for business, the Court restricted the ability of whistleblowers to make use of the Freedom of Information Act as a tool in challenging fraud and waste by government contractors. The 5-3 ruling in Schindler Elevator Corp. v. United States ex. rel. Kirk affects so-called “qui tam” lawsuits in which citizens can file suits in their own name on behalf of the government to challenge misuse of public money by contractors — and can win a substantial percentage of what is recovered. Justice Elena Kagan did not participate. To discourage opportunistic or scavenger lawsuits, the False Claims Act says that claims cannot be based on information that has already been publicly disclosed in a government report or by the news media. In other words, the law prevents individuals from profiting from reports of fraud already disclosed by others. The question before the Court in Schindler was whether the release of documents under the FOIA amounts to a “report” that would make a suit based on those documents invalid. The ruling by Justice Thomas said yes. Daniel Kirk, who worked at Schindler Elevator, filed a qui tam suit claiming that the company falsified reports it made to the federal government concerning the number of veterans it employed in government contract work. In support of his claim, he cited documents his wife had obtained under the FOIA. Schindler sought dismissal of the suit because of the False Claims Act provision barring suits based on public reports made by the government. The U.S. Court of Appeals for the 2nd Circuit sided with Kirk, but the Supreme Court reversed, favoring Schindler. Thomas wrote that even though Kirk had suspicions about the false statements based on his own time at Schindler, the ordinary meaning of “report” includes FOIA requests. “Anyone could have filed the same FOIA requests and then filed the same suit,” wrote Thomas, adding that Kirk’s suit was the sort of case that was “a classic example of the opportunistic litigation” barred by the law. Weil, Gotshal & Manges partner Steven Reiss, who argued the case for Schindler Elevator, said the ruling is “very important for what won’t happen” as a result. If the Court had upheld the 2nd Circuit, Reiss said “we would have seen a flood of cases” brought by “trolling plaintiffs” using the FOIA to find documents that could be used in qui tam lawsuits. Justice Ruth Bader Ginsburg dissented, joined by Justices Breyer and Sotomayor. Ginsburg disagreed that Kirk’s lawsuit was opportunistic and said the majority opinion “weakens the force of the FCA as a weapon against fraud on the part of government contractors.” She said whistleblowers should not be penalized for seeking corroboration of their claims through the FOIA, and urged Congress to consider changing the law to counteract today’s ruling. Police searches In Kentucky v. King, an 8-1 majority ruled in favor of law enforcement in a case involving the exigent circumstances rule — an exception to the Fourth Amendment’s warrant requirement. The case arose when police were chasing a drug trafficker into an apartment building but did not know into which of two apartment units — across from each other — the suspect entered. They approached the unit where they said they smelled marijuana. After knocking and announcing their presence, the officers said they heard noises inside “as if things were moving around.” Thinking that evidence was being destroyed, they kicked in the door and found illegal drugs. The police arrested Hollis King who subsequently sought to have the drug evidence suppressed. The Kentucky Supreme Court ultimately held that the exigent circumstances here — the possible destruction of evidence — could not justify the warrantless search because it was reasonably foreseeable that the apartment occupants would destroy the evidence when the police knocked and announced their presence. In reversing the state high court, Justice Alito wrote, “A rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.” Where the police, as in this case, did not create the exigency “by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed,” he said. Justice Ginsburg authored the lone dissent. As the Kentucky Supreme Court found, she said, nothing made it impracticable for police to post officers on the premises while they went to get a warrant to enter the apartment. “The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct,” she wrote. “How `secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving around, forcibly enter and search for evidence of unlawful activity?” Assistant Public Advocate Jamesa Drake of Frankfort, Ky. represented King with assistance from the Supreme Court Clinic at Northwestern University School of Law. Clinic co-director Jeffrey Green, partner at Sidley Austin, said, “My overwhelming concern is that the Court’s opinion will be construed by police departments around the country as allowing them to kick down a door if they knock on a door and hear shuffling noises behind it. That’s not what the Court’s opinion says and it shouldn’t be construed in that way because the justices assumed exigent circumstances existed.” Green said the question of whether exigent circumstances actually were present will be addressed on remand to the Kentucky Supreme Court. Marcia Coyle can be contacted at [email protected]. Tony Mauro can be contacted at [email protected].

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