By Khorri Atkinson
A designated Fourth Circuit panel on Tuesday reinstated some claims in a sexual harassment suit brought by a former North Carolina assistant federal public defender accusing federal judiciary officials of mishandling her complaints, but declined to rule that internal procedures designed to redress workplace misconduct claims are unconstitutional.
The three-judge panel said former assistant federal public defender Caryn Devins Strickland can proceed with certain allegations that the Judicial Conference, the Administrative Office of the US Courts, the Fourth Circuit and its leaders violated her constitutional rights to equal protection and due process. A district judge dismissed the entire case in December 2020.
Former assistant federal public defender Caryn D. Strickland testifies in front of a House Judiciary subcommittee. Strickland has accused judiciary officials of mismanaging her report about a supervisor’s unwanted sexual advances.
Strickland’s March 2020 lawsuit said judiciary officials mismanaged her report about a supervisor’s unwanted sexual advances, forcing her to later bail on the Fourth Circuit’s entire internal complaint process, which the Western District of North Carolina uses. Strickland alleged that efforts to report her concerns to higher-ups were often dismissed, amounting to a denial of her right to due process. The suit is demanding monetary damages, including back pay and interest, as an alternative to being rehired for her job.
The focus of the case, however, is on the employment dispute resolution, or EDR, plan, which prevents judiciary employees from seeking redress for harassment or discrimination in court under federal civil rights law. Strickland specifically sought an order declaring the EDR process unconstitutional because it denied her a neutral decision-maker since her dispute involves the chief judge of the Fourth Circuit and the circuit executive, and judiciary officials told her the presiding officer in an EDR hearing was powerless to order the plan’s promised remedies from injuries incurred by harassment.
But US Circuit Judge Mary Beck Briscoe of the Tenth Circuit, who wrote Tuesday’s opinion, said the EDR plan cannot be facially challenged because Strickland failed to “explain why these are innate defects of the EDR plan itself that would apply in all circumstances.”
“Although the chief judge and circuit executive are involved in employment decisions, that would not necessarily raise any conflict of interest under circumstances different from those in the present case,” the opinion said. “In Strickland’s case, for example, had the [federal public defender]not allegedly retaliated against her for raising allegations of harassment by the First Assistant, there would have been nothing improper about the Chief Judge and Circuit Executive being involved in investigating the underlying allegations against the First Assistant.”
Furthermore, the EDR plan accounts for potential conflicts of interest as it permits a party to seek disqualification of a judicial officer, employee or other person involved in a dispute by written request to the chief judge, the panel added. The court said there’s nothing in the record showing Strickland ever made use of this procedure.
The EDR plan is also not facially invalid just because judiciary officials allegedly told Strickland it does not allow for the ordering of actual remedies, the judges said, pointing out that remedies are “specifically provided for by the EDR plan.” The panel said she could, however, challenge the internal complaint procedures if it was applied in an unconstitutional manner.
The opinion emphasized that the judiciary’s refusal to disqualify Anthony Martinez, the former federal public defender named in the complaint, “infected the entire” internal investigation. This created a conflict of interest because Martinez was involved in the probe and led Strickland to believe he would be the final decision-maker, according to the opinion. The failure to disqualify Martinez and the coercing of Strickland to end the investigation “stated a plausible violation of her due process rights,” the panel said.
“Leading Strickland to believe that her only way forward was to obtain a favorable decision from one of the key subjects of the investigation could be found to have deprived Strickland of her property interest in the right to a remedy from injuries incurred because of harassment and discrimination,” the opinion said.
In addition to allowing Strickland’s due process claim alleging deprivation of her property rights to proceed, the panel also revived her equal protection allegation that officials violated her right to be free from sex discrimination and harassment.
The panel, however, agreed with the district court that the judicial officials sued in their official capacities are entitled to immunity and therefore will not face the Fifth Amendment due process and equal protection claim. Strickland’s potential recovery on those claims against the official capacity defendants, including Fourth Circuit Chief Judge Roger L. Gregory and Circuit Executive James Ishida, “is limited to prospective equitable relief,” the court said.
The equal protection claims against Judge Gregory and other officials sued in their individual capacities were also dismissed. The panel said Strickland cannot state a cause of action under the U.S. Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents , which holds that an individual can sue federal officials for monetary damages when no other remedy is available to protect the person’s constitutional rights.
Harvard Law School professor Jeannie Suk Gersen, who is representing Strickland, said the panel’s decision “made clear that the federal judiciary as an employer is not immune from suits for sex discrimination.”
A spokesperson for the AO told Law360 in a statement that the agency, which performs administrative and policy-related work for the federal judiciary, is unable to comment on the pending litigation itself. The statement said the judiciary “has made significant, far-reaching improvements to its workplace conduct policies, complaint procedures, and ethics codes, including significant improvements in the employment dispute resolution processes.”
“The Judiciary remains committed to promoting an exemplary workplace through engaged leadership, meaningful policy improvements, and more expansive education in the areas of civility, respect, and communication,” the spokesperson said.
Tuesday’s partial revival of the case is a big legal victory for Strickland, who was initially known as Jane Roe before she publicly unmasked herself ahead of a congressional hearing on sexual misconduct in the federal judiciary. Strickland lodged her appeal in March 2021 after a Massachusetts federal judge designated to hear the North Carolina suit dismissed the case and found that she failed to allege cognizable claims and cannot tie discrimination allegations based on sex under Title VII of the Civil Rights Act of 1964 to a violation of the US Constitution’s equal protection clause.
Tenth Circuit Judge Mary Beck Briscoe, Sixth Circuit Judge Ronald Lee Gilman and Eighth Circuit Judge Michael J. Melloy sat on the panel for the Fourth Circuit.
Strickland is represented by Jeannie Suk Gersen and Cooper Strickland.
The other federal parties are represented by H. Thomas Byron III and Amanda L. Mundell of the U.S. Department of Justice’s Civil Division and Gill P. Beck of the US Attorney’s Office for the Western District of North Carolina.
The unnamed federal public defender, in his individual capacity, is represented by Shannon S. Spainhour of Davis Hartman Wright PLLC.
The case is Strickland v. US et al., case number 21-1346, in the US Court of Appeals for the Fourth Circuit.
–Additional reporting by Kevin Penton. Editing by Alex Hubbard.
* Editor’s Note: This story has been updated with a statement from the judiciary.
