DOJ response brief filed late yesterday in Roe v. U.S.; identity of panel hearing the case revealed Monday, thanks in part to FTC

The U.S. Department of Justice argued in a brief filed late Wednesday that a former assistant federal defender who’s alleged she was subjected to harassment and retaliation has no cognizable statutory or constitutional claim.

The DOJ, of course, is not a part of the branch of government that’s being sued in the case — which also happens to comprise thousands of attorneys who might be better suited to defend the indefensible behavior of the judges, EDR coordinators and Administrative Office staff being sued.

“Why is the Justice Department involved?” FTC’s Gabe Roth asked. “To my knowledge, there’s no statutory requirement that the DOJ defend judiciary officials’ actions here. After all, if the DOJ can flip-flop on a host of positions it’s taken in the last year, why not flip here, too, to avoid defending a system of harassment claim adjudication that’s beyond broken?”

In this case, Roe v. U.S. (21-1346; Fourth Circuit), three DOJ attorneys — Gill Beck, Thomas Byron, and Amanda Mundell — are representing the Judicial Conference and two of its committees; the director and general counsel of the Administrative Office; the Fourth Circuit as overseers of the EDR process, its judicial council, chief judge and circuit executive; and the W.D.N.C. federal defender’s office. Acting Civil Division AAG Brian Boynton and acting U.S. Attorney William Seltzer are also listed on the brief (though Beck is not). “That’s far from an ideal use of my tax dollars,” Roth added.

Given the change in administration, FTC had hoped that either the DOJ would decline to defend some or all of the defendants or the Biden administration would release a policy statement favoring the inclusion of judiciary staff in applicable anti-harassment and anti-retaliation sections of Title VII, regardless of DOJ’s participation in this one case.

The brief filed late yesterday relies largely on four points. First, because Roe “voluntarily withdr[ew] her claims before [EDR] proceedings were completed,” she forfeited any claims against judiciary officials, so Roe’s decision to remove herself from a harmful situation — one that occurred at her “dream job,” no less — ought to be held against her under applicable laws and regulations. Second, DOJ attorneys emphasize a Fourth Circuit precedent that states, “The right to be free from retaliation for protesting sexual harassment and sex discrimination […] is a right created by Title VII rather than the Constitution” (p. 48 of PDF; cleaned up), which is a debatable interpretation of the Equal Protection Clause.

Third, the brief asserts that because the EDR process takes place within the judicial branch and includes judicial officers, it counts as a satisfactory “review process” (p. 57) and that Roe’s claims should be barred from further adjudication in the courtroom.

Fourth, the brief saves what it seems to believe is its best argument for last (p. 68): qualified immunity, a judge-made doctrine that favors government officials because, in order to get around it and be allowed to sue these officials in their personal capacity, you need to show that the official should have known that their conduct was unlawful at the time, which judges often only find when there is already a previous case with an almost identical set of facts. This narrow conception of “notice” permits an expansive number of unlawful actors to claim immunity. Here’s DOJ’s take: “[T]he question here is not whether, as a general matter, discrimination on the basis of sex violates the law. Everyone agrees it does, but that is not enough to hold these individual defendants personally liable in the context of this case.”

The filing did have this to say about the issue at hand (p. 19): “The Judiciary is firmly committed to providing all employees with a workplace free from discrimination, harassment, and retaliation, and has adopted comprehensive procedures to address and remedy allegations of workplace misconduct, including the allegations at issue here.” At this point in the district court proceedings (cf., this filing), the judiciary had made no such statement.

DOJ attorneys also represented judiciary officials in the district court case that ran from March to December last year.

The suit centers on whether a former judiciary employee, Roe, is entitled to a remedy under federal statute, the Fifth Amendment or Bivens for the harassment, retaliation and other discrimination she alleges she faced. Roe says she experienced severe harassment in her job as an assistant federal defender in the Western District of North Carolina, and when she tried to use the judiciary’s internal reporting and counseling systems, she was consistently stonewalled. Roe lost her case in the district court last year but appealed earlier this year.

Also of note is that the panel of judges hearing the case was finally revealed on Monday. The entire circuit had been recused since April, as Roe named the Fourth Circuit in the suit due to its inadequate EDR process. But on Friday, Roe’s attorneys — citing a FixTheCourt.com post on this question and the federal law stating that a panel’s identity shall be entered in the docket — requested that the court reveal the three judges on the panel.

It turns out that the presiding judges — Ronald Gilman (CA6), Michael Melloy (CA8) Mary Briscoe (CA10) — were assigned by Chief Justice Roberts on May 7, as noted by the signature of the Supreme Court’s deputy clerk in the paperwork. (According to federal law, 28 U.S.C. §294(d), Roberts maintains a list of judges able to undertake an intercircuit assignment.)

FTC is considering filing a FOIA request to DOJ’s Civil Division to understand whether the agency knew about the assignment before this week. The Judicial Conference, DOJ’s client here, has an Intercircuit Assignment Committee that works with Roberts on assigning out-of-circuit judges, and it would raise concerns if the DOJ knew the identity of the panel six months before the information was provided to Roe’s attorneys.

Roberts has become somewhat familiar with each of these judges in the last three years. Earlier this year, Roberts assigned Judge Gilman, who’s endearingly all but made it his job to moonlight in every circuit, to the three-judge panel that heard the Dylann Roof appeal, since the entire Fourth Circuit was recused from that case, as well. In 2018, Roberts assigned Melloy to be special master in a SCOTUS original jurisdiction case, 22O141.

Judge Briscoe sat on the judicial council of the Tenth Circuit at the time in which the 83 misconduct complaints filed against Justice Brett Kavanaugh were sent there for review by Roberts. The council dismissed all 83 but oddly also reviewed and then dismissed all the appeals to the dismissals, which sat wrong with Briscoe. The council, she wrote in her dissent from the denial of the appeals, “having reviewed and dismissed the complaints in the first instance, [should be] disqualified from considering the current petitions for review.” She was the only judge among the eight on the council to arrive at that opinion, which FTC commended at the time.