#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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Armstrong v. Michigan Bureau of Services for Blind Persons

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-2179

Opinion Date: August 7, 2020

Judge: Jeffrey S. Sutton

Areas of Law: Civil Rights, Government & Administrative Law, Government Contracts

The Randolph-Sheppard Act, 20 U.S.C. 107, requires government agencies to set aside certain contracts for sight-challenged vendors. States license the vendors and match them with available contracts. In 2010, Michigan denied Armstrong’s bid for a contract to stock vending machines at highway rest stops. A state ALJ ruled in Armstrong’s favor and recommended that she get priority for the next available facility/location. The state awarded Armstrong an available vending route later that year. Armstrong nonetheless requested federal arbitration, seeking nearly $250,000 in damages to account for delays in getting the license. The arbitrators ruled that Armstrong was wrongfully denied the location she sought and ordered Michigan to immediately assign Armstrong the Grayling vending route but declined to award damages, reasoning that her request was “too speculative.” The district court upheld the arbitration award and rejected Armstrong’s 42 U.S.C. 1983 claims, concluding that the Randolph-Sheppard Act created the sole statutory right to relief under federal law. Michigan subsequently granted her the Grayling license. The Sixth Circuit affirmed. The unfavorable arbitration decision was not arbitrary or capricious under the Administrative Procedure Act. Armstrong may not sue under 42 U.S.C. 1983 to vindicate her rights under the Randolph-Sheppard Act.

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.

Boeing Co. v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-2148

Opinion Date: August 10, 2020

Judge: Richard Gary Taranto

Areas of Law: Government Contracts

Boeing permissibly changed cost accounting practices for its Defense contracts simultaneously. Some changes raised the government's costs; others lowered those costs. The Defense Contract Management Agency, invoking Federal Acquisition Regulation 30.606, determined the amount of the cost-increasing changes and demanded that Boeing pay that amount plus interest. Boeing did so, then sued, asserting that the government, in following FAR 30.606, committed a breach of contract and effected an illegal exaction. Boeing argued that FAR 30.606 is contrary to 41 U.S.C. 1503(b), which requires that simultaneously adopted cost-increasing and cost-lowering accounting changes be considered together and that, by following FAR 30.606’s command to disregard the cost-lowering changes, the government unlawfully charged it too much. The trial court held that Boeing had waived its breach of contract claim by failing to object to FAR 30.606 before entering into the contracts and that it lacked jurisdiction to consider Boeing’s illegal exaction claim, which was not based on a “money-mandating” statute. The Federal Circuit reversed. A pre-award objection by Boeing would have been futile, as the government concededly could not lawfully have declared FAR 30.606 inapplicable in entering into the contract. A contractor is not required to pursue judicial relief before the award to avoid waiver. To establish Tucker Act jurisdiction for an illegal exaction claim, a party that has paid money over to the government and seeks its return must make a non-frivolous allegation that the government, in obtaining the money, has violated the Constitution, a statute, or a regulation.

Parsons Evergreene, LLC v. Secretary of the Air Force

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1931

Opinion Date: August 7, 2020

Judge: Timothy B. Dyk

Areas of Law: Construction Law, Contracts, Government Contracts

In 2003, the government awarded Parsons a $2.1 billion indefinite-delivery, indefinite-quantity contract for planning and construction work to be described in subsequent task orders. In 2005, the government issued a $34 million task order to complete an existing, concept-level design and construct the Temporary Lodging Facility and Visiting Quarters, at the McGuire Air Force Base. Design and construction were completed. The Air Force accepted the completed facilities for “beneficial use” in September 2008. In 2012, Parsons submitted a claim for approximately $34 million in additional costs that Parsons allegedly incurred in the design and construction process. The Armed Services Board of Contract Appeals awarded Parsons about $10.5 million plus interest. The Federal Circuit reversed in part after holding that the Board had Contracts Dispute Act jurisdiction 41 U.S.C. 7102(a)(1), (3). The court dismissed Parsons’ appeal as to its payroll claim and reversed the Board’s denial of recovery to Parsons for its claim to construction costs. On remand, the Board must award Parsons the difference between its cost in constructing a substituted design compared to the cost Parsons would have incurred in constructing a structural brick design. The court affirmed the Board’s conclusion that Parsons’ costs awarded by the Board were reasonable.