#MeToo and What Men and Women Are Willing to Say and Do

SHERRY F. COLB

Cornell Law professor Sherry F. Colb explores why people have such strong feelings about the #MeToo movement (whether they are advocates or opponents) and suggests that both sides rest their positions on contested empirical assumptions about the behavior of men and women. Colb argues that what we believe to be true of men and women generally contributes to our conclusions about the #MeToo movement and our perceptions about how best to handle the accusations of those who come forward.

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National Coalition for Men v. Selective Service System

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-20272

Opinion Date: August 13, 2020

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law, Military Law

Plaintiffs filed suit against the Government, alleging that the male-only military draft unlawfully discriminates based on sex. The Military Selective Service Act requires essentially all male citizens and immigrants between the ages of eighteen and twenty-six to register with the Selective Service System. The district court granted plaintiffs declaratory judgment and held that requiring only men to register for the draft violated their Fifth Amendment rights. The Fifth Circuit reversed, holding that the district court's judgment directly contradicts the Supreme Court's holding in Rostker v. Goldberg, 453 U.S. 57, 78–79 (1981). In Rostker, the Supreme Court held that the male-only Selective Service registration requirement did not offend due process where women at the time were barred from combat. The court explained that here, as in State Oil Co. v. Khan, 522 U.S. 3, 22 (1997), the factual underpinning of the controlling Supreme Court decision has changed, but that does not grant a court of appeals license to disregard or overrule that precedent. Accordingly, the court dismissed the case.

Agility Public Warehousing Co. v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1886

Opinion Date: August 12, 2020

Judge: Jimmie V. Reyna

Areas of Law: Aerospace/Defense, Government Contracts, Military Law

After the U.S. invasion of Iraq, Agility was awarded a contract for support of staging area operations (PCO Contract). Under the Contract, the Coalition Provisional Authority (CPA) could issue individual task orders to Agility. Funds obligated under the contract were sourced from the Development Fund for Iraq (DFI). The CPA controlled the DFI, which consisted of Iraqi money. The Contract provided that “[n]o funds, appropriated or other, of any Coalition country are or will be obligated under this contract” and recognize[d] that a transfer of authority from the CPA to the interim Iraqi Governing Council (IIG) would occur in June 2004. The contracting parties were the CPA and Agility. The Contract expressly preserved the right of the United States to assert claims against Agility. A Contract amendment provided that any claim Agility had after the transfer to IIG could not be brought before the Armed Services Board of Contract Appeals but could only be brought in an Iraqi court. The U.S. Army was designated as the administrator of the PCO contract. In 2010, following an audit of the PCO Contract, the Army contracting officer sent demand letters for overpayments allegedly made under 12 task orders. The Claims Court upheld the offsets, holding that the United States (rather than Iraq) was owed the alleged overpayment and the United States was authorized to offset the alleged overpayment. The Federal Circuit in part and vacated in part. The Claims Court did not evaluate the merits of the offset determination nor the procedures required by law.

Kisor v. Wilkie

Court: US Court of Appeals for the Federal Circuit

Docket: 16-1929

Opinion Date: August 12, 2020

Judge: Alvin Anthony Schall

Areas of Law: Military Law, Public Benefits

Kisor served in the Marine Corps, 1962-1966. In 1982, he sought disability compensation benefits for PTSD. A 1983 psychiatric examination noted Kisor's combat experiences in Vietnam. The examiner expressed his “distinct impression” that Kisor suffered from “a personality disorder as opposed to PTSD,” which cannot be a basis for service connection. Kisor did not pursue an appeal. In 2006, Kisor submitted a request to reopen and presented a 2007 report of a psychiatric evaluation diagnosing PTSD. He was granted a 50% rating. The Veterans Court and Federal Circuit affirmed that Kisor was not entitled to an effective date earlier than 2006. On remand from the Supreme Court, the Federal Circuit again affirmed. In the setting of 38 C.F.R. 3.156(c)(1), for purposes of reconsideration of the 1983 denial, the term “relevant” is not “genuinely ambiguous” and “Auer deference” is not appropriate. In the context of section 3.156(c)(1), “relevant” has only “one reasonable meaning.” As the Board determined, under the regulation, to be “relevant,” a record must speak to a matter in dispute. Service department records received in 2006 and 2007 were not “relevant” under the regulation because they did not pertain to the basis of the 1983 denial of Kisor’s claim, which was the lack of a diagnosis of PTSD.