Bloomberg Law
Feb. 4, 2022, 11:15 AM

Judiciary Misconduct Spotlighted in Fourth Circuit Sex Bias Case

Robert Iafolla
Robert Iafolla

A U.S. appeals court will consider reviving a former federal judiciary employee’s sex discrimination claims in a case that could lower the bar for workers to win misconduct lawsuits against the nation’s judicial branch.

Counsel for the worker, an ex-assistant federal public defender known only as “Jane Roe,” will press Roe’s case during oral argument at the U.S. Court of Appeals for the Fourth Circuit Monday. A panel of three judges from other circuits will hear the case because the Fourth Circuit is one of the defendants.

Unlike private sector workers and most government employees, Roe and other federal judiciary workers aren’t covered by the anti-discrimination protections under Title VII of the 1964 Civil Rights Act. Roe sued officials in the federal judiciary for alleged breaches of her constitutional rights to equal protection and due process.

The case could make it easier for federal judiciary employees to pierce the sovereign immunity defense often used by authorities sued in their official capacities. It also could clarify how sex bias allegations like Roe’s—involving harassment, deliberate indifference, and retaliation—fit as an equal protection claim.

The federal judiciary has been rocked by allegations of sexual misconduct, leading to the resignations of Ninth Circuit Judge Alex Kozinski and U.S. District Judge Carlos Murguia of the District of Kansas. Legendary liberal Judge Stephen Reinhardt of the Ninth Circuit, who died in 2018, was accused of sexual harassment in 2020.

But these types of publicly shared stories of sexual harassment are “dwarfed” by those that haven’t been widely aired, a group of current and former federal judiciary employees said in a brief backing Roe. They shared firsthand accounts of bias and harassment in the workplace, including rape jokes, degrading comments about their bodies, and unwanted sexual advances.

Although the judiciary amended its Employment Dispute Resolution Plan after the allegations against Kozinski surfaced, both that program and the Administrative Office of the Court’s Fair Employment Practices System remain crippled by structural flaws, the judiciary workers said.

“Each flaw disincentivizes reporting, entrenches misconduct, and leaves judiciary employees without basic employment protections or due process,” they said.

Democratic lawmakers who drafted a bill that would extend Title VII protections to judiciary employees also filed a brief supporting Roe, saying that testimony from congressional hearings show her experience is “far from unique.” That legislation hasn’t seen action in the House or Senate since it was introduced in July.

Alleged Bias

Roe alleged she suffered unwanted sexual advances and other harassment from a superior in the Federal Defender’s Office for the Western District of North Carolina early into her tenure at the office.

She claimed that she was met with deliberate indifference and grossly inadequate responses from other officials at the defender’s office, the Fourth Circuit, and the Administrative Office of the U.S. Courts, even after she pursued a claim through the judiciary’s employment dispute plan.

Roe said she was forced to resign in March 2019, less than two years after joining the office. She said she’s been working in temporary and lower-paying jobs since then due to reputational damage.

In her March 2020 complaint, Roe sued the chief judge in the Fourth Circuit, the federal defender for the Western District of North Carolina, and other federal figures in their official capacity. She alleged due process and equal protection violations for their indifference and their roles in creating, imposing, and administering the employment dispute plan.

She also named the chief judge, federal defender, and circuit executive in their individual capacities for equal protection violations and statutory claims related to those violations. Suing them that way allowed her to seek damages for the alleged violations, while she sought injunctive and declaratory relief from the claims against defendants acting in their official capacities.

U.S. District Judge William Young—a Reagan appointee who normally presides in Massachusetts—dismissed Roe’s lawsuit in December 2020.

Sovereign immunity blocked Roe’s claims against officials working in their official capacity, Young ruled. The equal protection claims against individual-capacity defendants failed because she alleged retaliation, which works under Title VII but not the Constitution’s equal protection clause, the judge said.

Immunity Exception?

Roe argues in a brief that her claims against the official-capacity defendants—which sought equitable relief like reinstatement, and not money damages—aren’t barred because they qualify for the Larson-Dugan exception to sovereign immunity.

That exception, named after Supreme Court rulings from 1949 and 1963, is based on the principle that unlawful action by federal officers doesn’t qualify as government conduct that’s immune to litigation.

The district judge wrongly ignored the type of relief Roe sought when he overlooked a long line of precedent allowing claims for equitable remedies against officials in their official capacities, according to a brief in support of Roe filed by Erwin Chemerinsky, dean of Berkeley Law, and Aziz Huq, a law professor at the University of Chicago.

But the Larson-Dugan exception doesn’t apply because Roe didn’t target any ongoing constitutional violations, the Justice Department said in a brief. She also asks for remedies like front pay, which would be a damages remedy and not subject to the exception, the department said.

Pure v. Mixed

Judge Young mistook the equal protection allegations—which were a mixture of retaliation and sex bias—as pure retaliation, Roe said. The Fourth Circuit allowed equal protection claims based on that type of mixed allegations in decisions from 1994 and 2020, Roe said.

The judge also incorrectly stated that Title VII theory of discrimination doesn’t fit as an equal protection claim, when they actually “enjoy considerable overlap and the standards often inform one another,” according to a brief backing Roe filed by the National Women’s Law Center, Legal Momentum, and more than 40 other public interest and civil rights groups.

But the Justice Department pointed out that Roe didn’t sue her alleged harasser. Her equal protection claims center on actions taken by defendants in response to her reports of misconduct and don’t alleged sex-based bias, making the judge’s dismissal correct, the department said.

Justice Department spokeswoman Danielle Blevins declined to comment. Roe’s attorney, Harvard Law School professor Jeannie Suk Gersen, didn’t reply to a request for comment.

The case is Roe v. US, 4th Cir., No. 21-01346, Oral argument 2/7/22.

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Martha Mueller Neff at; Jay-Anne B. Casuga at