By Mia Dohrmann, FTC law clerk

Counsel for Jane Roe, Jeannie Suk Gersen, began her argument Wednesday with a clear theory of the case: Jane Roe was “constructively discharged by a sequence of sexual harassment, deliberate indifference, and fundamental unfairness in the way officials handled her complaint.” (Background on the the case described here.)

Judges Mary Beck Briscoe of the Tenth Circuit, Ronald Lee Gilman of the Sixth Circuit and Michael Melloy of the Eighth Circuit, all sitting by designation, then peppered Gersen with questions: namely whether Roe sought reinstatement or front pay as a form of relief in her complaint, and whether she technically alleged sex discrimination.

Gersen argued that not only was the sex discrimination theory directly asserted but that it was implicit within the acts of deliberate indifference alleged in the complaint.

Perhaps the most memorable part of Gersen’s argument came around the 19:50 mark of the recording, where the judges asked, given the various conflicts of interest at play here. why Roe didn’t request recusals of certain judiciary officials during the employment dispute resolution process. Gersen responded by noting that the Chief Judge of the Fourth Circuit did not make the named defendants recuse themselves — and after a decision like that, what would have led Roe to think that the Chief Judge and other top brass would recuse themselves, either?

Counsel for the government, the Justice Department’s Thomas Byron, focused his argument on the “remedy” and asserted that Roe had adequate remedies available to her under the EDR plan. Moreover, that plan, counsel argued, did not necessarily create a cognizable property right for Roe that would allow her to bring a suit like this.

In sum, counsel alleged that plaintiff’s legal arguments would ask the court to “go beyond precedent.” (Of course, the whole case is beyond precedent, as nothing like this has ever happened before…)

Counsel for former Federal Defender Anthony Martinez in his individual capacity argued briefly. She agreed with the DOJ that adequate remedies were available under the EDR plan. She also alleged that “deliberate indifference” in this context simply didn’t apply. Moreover, she said, if Bivens did not attach to Martinez or any similarly situated individuals in this case, the claim fails.

On rebuttal, Gersen reminded the court that Roe never withdrew her EDR complaint and that the government misrepresented how Roe left her position at the federal judiciary — i.e., she didn’t leave voluntarily. She also reiterated that at the heart of this case is a Fifth Amendment Due Process violation: the EDR process creates a legitimate entitlement to be free from sexual harassment in the workplace, and procedures need to be in place before this right can be deprived.