Latest 5 Cases: Zimmerman v. City of Austin (Civil Procedure), National Coalition for Men v. Selective Service System (Civil Rights), United ...

#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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Zimmerman v. City of Austin

Docket: 19-50857

Opinion Date: August 13, 2020

Judge: Leslie Southwick

Areas of Law: Civil Procedure, Legal Ethics

The Fifth Circuit affirmed the district court's denial of plaintiff's request for attorneys' fees incurred at trial and during the first appeal to this court. This appeal arose from a bench trial where plaintiff, a former Austin city councilman, prevailed on some but not all of his First Amendment claims against the City of Austin. As a preliminary matter, the court held that the district court's ancillary enforcement jurisdiction covered the "collateral issue" of plaintiff's attorney fee request. On the merits, the court held that the district court did not err in denying plaintiff's fee request because plaintiff waived his right to request fees incurred at trial. Even if the district court had discretion to excuse the delay in filing, no error occurred by failing to exercise the discretion. Furthermore, the district court did not err when it denied plaintiff's request for fees incurred on appeal where he made no request within the 14-day time period after the district court entered its initial judgment, and there also was no new judgment entered following a reversal or remand from this court.

National Coalition for Men v. Selective Service System

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.

United States v. Garner

Docket: 19-10884

Opinion Date: August 13, 2020

Judge: W. Eugene Davis

Areas of Law: Criminal Law

18 U.S.C. 3583(g), which requires revocation of supervised release and a term of imprisonment for certain drug and gun violations, is not unconstitutional under United States v. Haymond, 130 S. Ct. 2369 (2019). In Haymond, the Supreme Court held that a different mandatory revocation provision, section 3583(k), violates the Fifth and Sixth Amendments. The Fifth Circuit held that section 3583(g) lacks the three features which led the Supreme Court to hold section 3583(k) unconstitutional: first, while subsection (g) singles out certain conduct, only some of it is criminal; second, although subsection (g) takes away the judge's discretion to decide whether a violation should result in imprisonment, it does not dictate the length of the sentence; and third, subsection (g) does not limit the judge's discretion in the same "particular manner" as subsection (k). Therefore, the district court did not err in its revocation decision.

Environmental Integrity Project v. Environmental Protection Agency

Docket: 18-60384

Opinion Date: August 13, 2020

Judge: Stuart Kyle Duncan

Areas of Law: Environmental Law, Government & Administrative Law

The Fifth Circuit denied the petition for rehearing, withdrew its prior opinion, and substituted the following opinion. After ExxonMobil sought a revised Title V permit under the Clean Air Act concerning an expansion of a plant in Baytown, Texas, petitioners asked EPA to object on the grounds that the underlying Title I preconstruction permit allowing the expansion was invalid. EPA rejected petitioners' arguments and declined to object. The Fifth Circuit denied the petition for review, holding that EPA's interpretation that Title V permitting is not the appropriate vehicle for reexamining the substantive validity of underlying Title I preconstruction permits is independently persuasive. Therefore, EPA's interpretation is entitled to the mild form of deference recognized by Skidmore v. Swift & Co., 323 U.S. 134 (1944).

Gonzalez v. Mid-Continent Casualty Co.

Docket: 19-10565

Opinion Date: August 13, 2020

Judge: Andrew S. Oldham

Areas of Law: Insurance Law

After plaintiff allegedly damaged a house's electrical wiring while installing siding, Mid-Continent refused to provide him with defense and indemnity for the accident. The district court granted defendant a partial final judgment, holding that Mid-Continent owed plaintiff a duty to defend. Applying Texas law and the eight-corners rule, the Fifth Circuit affirmed and held that the underlying litigation falls within the coverage provisions of the commercial general liability (CGL) policy and hence obligates Mid-Continent to defend plaintiff. The court also held that the policy's j(5) and j(6) exclusions do not apply in this case.