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Stating that “the Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” the Supreme Court last week unanimously ruled that border guards could remove, disassemble and reassemble a vehicle’s fuel tank with or without a reasonable suspicion of finding contraband there. United States v. Flores-Montano, No. 02-1794. The opinion, penned by Chief Justice William H. Rehnquist, overturned a 9th U.S. Circuit Court of Appeals decision that had upheld a trial court ruling in favor of Manuel Flores-Montano. Flores-Montano had been indicted for possession of marijuana with intent to distribute after border agents took apart the gas tank of his 1987 Ford Taurus wagon and discovered 37 kilograms of marijuana hidden there. Upon his motion to suppress, however, the trial court quashed the indictment on the ground that the agents did not have reasonable suspicion for the search. Justice Stephen G. Breyer concurred separately. Constitutional law In another unanimous ruling, the justices rejected attorney-activist Allan J. Favish’s argument that photographs taken at the site where one-time Clinton White House aide Vincent Foster Jr. committed suicide were subject to the federal Freedom of Information Act (FOIA). Nat’l Archives and Records Admin. v. Favish, No. 02-954. Foster was found dead of a gunshot wound in Washington’s Fort Marcy Park in 1993. Favish, a California lawyer, asserted that Foster had been murdered and that the Clinton White House had covered up the crime. He also contended that U.S. Park Police photographs taken upon their arrival at the scene were subject to FOIA. The government countered that the photos were shielded from disclosure under FOIA Exemption 7(C), and that their release would be injurious to Foster’s surviving relatives. The exemption covers “records or information compiled for law enforcement purposes” if their production “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Reversing a 9th Circuit decision, Justice Anthony M. Kennedy wrote that Favish had established neither government malfeasance nor that the public interest he sought to advance was so significant that it outweighed the Foster family’s right to privacy under the law. Environmental law Gravel and sand are not valuable minerals reserved to the federal government under the Pittman Underground Water Act of 1919, the high court ruled on March 31. BedRoc Ltd. v. U.S., No. 02-1593. The Pittman act enabled the Department of the Interior to designate “non-mineral” lands in Nevada upon which settlers could obtain permits to drill for water. Under the act, the government expressly reserved the rights to any “valuable minerals” in the land and the right to remove them. The petitioner, BedRoc, which had been removing sand and gravel from one such site under an interim agreement with the Interior Department, filed an action to quiet title. Rejecting BedRoc’s claim, a Nevada federal court ruled that the “valuable minerals” reservation covered sand and gravel, too. That ruling was upheld by the 9th Circuit. But, overturning the 9th Circuit for the third time in a week, the court drew a distinction between the reservation of rights contained in the Pittman act and in the contemporaneous Stock-Raising Homestead Act of 1916, which did use the modifier “valuable” before minerals. It concluded that Pittman allowed for BedRoc’s activity. Rehnquist penned the majority opinion, joined by justices Sandra Day O’Connor, Antonin Scalia and Kennedy. Joined by Breyer, Justice Clarence Thomas concurred in the judgment. Justice John Paul Stevens dissented, joined by justices David H. Souter and Ruth Bader Ginsburg. On March 29, the high court also agreed to hear oral arguments next term in these three cases: Attorney fees In consolidated cases, the justices will consider how much of a damages award a winning plaintiff in litigation must report under � 61(a) of the Internal Revenue Code. Commissioner v. Banks, No. 03-892, consolidated with Commissioner v. Banaitis, No. 03-907. Two taxpayers sought to exclude from their gross income the portion of their litigation victory that was paid to their attorneys pursuant to a contingency fee agreement. The 6th Circuit in Banks, and the 9th Circuit in Banaitis, ruled that the taxpayers did not have to include the amounts paid to their attorneys in their gross income. Criminal practice The justices agreed to review the terms of 18 U.S.C. 922(g)(1), which makes it illegal for felons to possess firearms or ammunition, in Small v. U.S., No. 02-750. Gary Sherwood Small was indicted under the statute in 2000 because he was found in possession of a firearm, and he had been convicted of a felony by a Japanese court in 1994. A Pennsylvania federal court refused to dismiss the charges. The 3d Circuit affirmed, ruling that the phrase “convicted in any court” in � 922(g)(1) included convictions entered by foreign courts. Employment law The high court also agreed to hear arguments in a case that has divided the circuit courts on whether the Age Discrimination in Employment Act of 1967 (ADEA) allows for claims of disparate impact in Smith v. Jackson, No. 03-1160. Thirty Jackson, Miss., police officers and dispatchers challenged a performance-pay plan that was neutral on its face, but when implemented had the effect of granting more substantial pay increases to workers under 40. The 5th Circuit ruled that the ADEA is not identical in scope to Title VII of the 1964 Civil Rights Act and was not meant to remedy the disparate effects that may arise from the application of employment plans or practices that are not based on age.

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