Justices will hear dispute over Navy plane

WASHINGTON — The Supreme Court is getting involved in the longstanding dispute between the Pentagon and two contractors contesting the government’s demand for $3 billion over the Navy’s ill-fated A-12 Avenger attack plane.

The justices on Tuesday agreed to hear an appeal from the Boeing Co. and General Dynamics Corp., the main contractors on a $4.8 billion project that the Pentagon, then headed by Richard Cheney, canceled in 1991.

The government is seeking repayment of $1.35 billion, plus more than $2.5 billion in accumulated interest, arguing that the companies failed to meet the terms of the contract.

The issue before the court involves the state-secrets privilege, which typically arises in national security and terrorism cases. Invoking the privilege, which the Supreme Court ratified in the 1950s, the government tells a court that allowing a case to go forward would force the disclosure of information that could damage national security.

In this case, the parties are arguing over whether the government’s claims about national security have prevented the companies from defending their position that they should not have to repay the money. A federal appeals court sided with the government.

Both Boeing and General Dynamics have disputed the Pentagon’s claims that they did not live up to the contract.

The A-12, designed with stealth technology to hide it from radar, was more than 18 months behind schedule and at least $1 billion over budget when it was canceled. The government and the contractors dispute who was responsible for the delays and overages.

The Navy wanted the A-12 Avenger in operation by the mid-1990s to replace older carrier-based airplanes. At one point, the military was planning to buy 850 A-12s.

The case will be argued early next year.

The consolidated cases are General Dynamics v. U.S., 09-1298, and Boeing v. U.S., 09-1302.

Also on Tuesday, the court said it will no longer release audio recordings of arguments in high-profile cases the same day the matters are heard. However, the court will put recordings of all arguments online a few days after they take place.

In other matters, the court:

— Said it will decide whether corporations can assert personal privacy interests to prevent the government from turning over information under the federal Freedom of Information Act. AT&T wants the FCC to keep secret all the information it gathered from the company during an investigation into its participation in the federal E-Rate program, which helps schools and libraries get Internet access. A federal appeals court sided with AT&T.

— Jumped in again to the bitter fight over the estate of billionaire Texas oilman J. Howard Marshall, who married Anna Nicole Smith in 1994 and died a year later. Marshall’s will left nearly all his money to his son, E. Pierce Marshall, and nothing to Smith. The 9th U.S. Circuit Court of Appeals affirmed a Houston jury that said Marshall was mentally fit and under no undue pressure when he wrote the will. Both Smith and the younger Marshall have since died, but their estates have continued the legal tussle.

— Voted to hear a case involving the use of lab reports at criminal trials, part of its recent examination of the constitutional requirement that defendants be able to confront witnesses against them. A man convicted of drunken driving in New Mexico is challenging the state’s use of lab reports showing the amount of alcohol in his blood because the analyst who performed the test was not the one who testified about it in court.

— Agreed to resolve a split among federal appeals courts about whether a conviction for using a vehicle to flee from the police constitutes the kind of violent crime that can be used to lengthen a prison sentence.

— Announced it would decide whether the relatives of two teenagers from North Carolina who were killed in a bus accident in France can sue foreign tire makers in state court over alleged defects that led to the accident.

— Waded into a case over the limits on police entering a residence without a warrant, in this instance, bursting into an apartment in pursuit of a fleeing suspect and, not finding the suspect, arresting the occupants for possession of marijuana and cocaine.

— Said it would decide whether public hospitals and health clinics can go into federal court to sue drug makers for charging too much for the medicines they provide under a federal program.

— Agreed to decide whether a whistleblower may use information obtained through FOIA to allege violations of the federal False Claims Act by a government contractor.

— Voted to consider allowing two West Virginia residents to revive a lawsuit against Bayer AG over its anti-cholesterol drug Baycol, which was withdrawn from the market in 2001 after reports of a severe and sometimes fatal muscle disorder.