Caryn Strickland v. United States

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 26, 2022
• Docket: 21-1346
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1346

CARYN DEVINS STRICKLAND,

Plaintiff – Appellant,

v.

UNITED STATES OF AMERICA; JUDICIAL CONFERENCE OF THE UNITED STATES; BRIAN STACY MILLER, The Hon., in his official capacity as Chair of the Judicial Conference Committee on Judicial Resources; ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS; ROSLYNN R. MAUSKOPF, The Hon., in her official capacity as Director of the Administrative Office of the United States Courts; SHERYL L. WALTER, in her individual capacity as General Counsel for Administrative Office’s Office of the General Counsel; JOHN DOE(S), c/o Office of the General Counsel for the Administrative Office of the United States Courts; UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT; JUDICIAL COUNCIL OF THE FOURTH CIRCUIT; ROGER L. GREGORY, The Hon., in his individual capacity and his official capacity as Chief Judge of the Fourth Circuit and as Chair of the Judicial Council of the Fourth Circuit; JAMES N. ISHIDA, in his individual capacity and his official capacity as Circuit Executive of the Fourth Circuit and as Secretary of the Judicial Council of the Fourth Circuit; JOHN G. BAKER, in his official capacity as Federal Public Defender of the Federal Public Defender for the Western District of North Carolina; FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF NORTH CAROLINA; ANTHONY MARTINEZ, in his individual capacity,

Defendants – Appellees.

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MEMBERS OF CONGRESS,

Amici Curiae. LEGAL MOMENTUM; NATIONAL WOMEN’S LAW CENTER; THE PURPLE CAMPAIGN AND 42 ADDITIONAL ORGANIZATIONS; NAMED AND UNNAMED CURRENT AND FORMER EMPLOYEES OF THE FEDERAL JUDICIARY WHO WERE SUBJECT TO OR WITNESSED MISCONDUCT; AZIZ HUQ; ERWIN CHEMERINSKY,

Amici Supporting Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. William G. Young, United States District Judge for the District of Massachusetts, sitting by designation. (1:20-cv-00066-WGY)

Argued: March 2, 2022 Decided: April 26, 2022

Before Mary Beck BRISCOE, Senior Circuit Judge of the United States Court of Appeals for the Tenth Circuit, Ronald Lee GILMAN, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, and Michael J. MELLOY, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation. 1

Affirmed in part, reversed in part, and remanded for further disposition by published opinion. Senior Circuit Judge Briscoe wrote the opinion, in which Senior Circuit Judge Gilman and Senior Circuit Judge Melloy joined.

ARGUED: Jeannie Suk Gersen, HARVARD LAW SCHOOL, Cambridge, Massachusetts, for Appellant. H. Thomas Byron, III, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Shannon S. Spainhour, DAVIS HARTMAN WRIGHT PLLC, Arden, North Carolina, for Appellees. ON BRIEF: Cooper Strickland, LAW OFFICE OF COOPER STRICKLAND, Lynn, North Carolina, for Appellant. Brian M. Boynton, Acting Assistant Attorney General, Amanda L. Mundell, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; William T. Stetzer, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellees. Lynn Hecht Schafran, Jennifer M. Becker, LEGAL MOMENTUM, THE WOMEN’S LEGAL DEFENSE AND EDUCATION

1 Because all members of the United States Court of Appeals for the Fourth Circuit are recused in this case, a panel of judges from outside the Circuit was appointed for this appeal pursuant to 28 U.S.C. §§ 291, 294.

2 FUND, New York, New York; Sunu Chandy, Emily Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C.; Ally Coll, Shea Holman, THE PURPLE CAMPAIGN, Washington, D.C.; Kristin E. Bender, WILLKIE FARR & GALLAGHER (UK) LLP, London, United Kingdom; Michael J. Gottlieb, Washington, D.C., Michaela Connolly, WILLKIE FARR & GALLAGHER LLP, New York, New York, for Amici Legal Momentum, National Women’s Law Center, The Purple Campaign, and 42 Additional Organizations. Erin E. Meyer, Deeva Shah, KEKER, VAN NEST & PETERS, LLP, San Francisco, California, for Amici Named and Unnamed Current and Former Employees of the Federal Judiciary Who Were Subject to or Witnessed Misconduct. Ilann M. Maazel, Samuel Shapiro, EMERY CELLI BRINCKERHOFF ABADY WARD & MAAZEL LLP, New York, New York, for Amici Aziz Huq and Erwin Chemerinsky. Elizabeth B. Wydra, Brianne J. Gorod, Miriam Becker-Cohen, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., for Amici Members of Congress.

3 MARY BECK BRISCOE, Senior Circuit Judge:

Plaintiff Caryn Devins Strickland is an attorney who was formerly employed by the

Federal Public Defender’s Office for the Western District of North Carolina (FPDO).

During the course of her employment, Strickland was allegedly subjected to sexual

harassment by the First Assistant Public Defender (First Assistant). When Strickland

reported the harassment, Anthony Martinez, the Federal Public Defender (FPD), allegedly

failed to take proper action and instead effectively retaliated against Strickland in various

ways, including requiring her to meet with the First Assistant and to continue working

under his supervision. Strickland made unsuccessful informal attempts to resolve the

sexual harassment through the Administrative Office of the United States Courts (AO), and

the FPD allegedly retaliated against Strickland for doing so by, in part, reclassifying her

job and denying her a promotion. Strickland then utilized the first two steps outlined in

the Fourth Circuit Court of Appeals’ Employment Dispute Resolution Plan (EDR Plan),

first filing a request for counseling and a report of wrongful conduct on the part of the First

Assistant and the FPD, and then filing a request for mediation. After allegedly

experiencing delays, procedural irregularities, and no resolution of the sexual harassment,

Strickland asked the mediator to help her secure a term clerkship with a federal appellate

judge. According to Strickland, she was constructively discharged. Strickland formally

resigned from her position with the FPDO in March 2019.

Approximately a year later, in March 2020, Strickland initiated these proceedings

by filing a complaint against: the United States of America; the Judicial Conference of the

United States (Judicial Conference); Judge Roslynn Mauskopf, in her capacity as Chair of

4 the Judicial Conference Committee on Judicial Resources; the AO; James Duff, in his

capacity as Director of the AO; Sheryl Walter, in her individual capacity as General

Counsel for the AO’s Office of the General Counsel; various John Does employed by the

AO’s Office of the General Counsel; the United States Court of Appeals for the Fourth

Circuit (Fourth Circuit); the Judicial Council of the Fourth Circuit; Judge Roger Gregory,

the Chief Judge for the Fourth Circuit, in both his individual and official capacities; James

Ishida, the Circuit Executive of the Fourth Circuit, in both his individual and official

capacities; and the FPD, in both his individual and official capacities. 2 The complaint

asserted claims for violations of Strickland’s due process and equal protection rights under

the Fifth Amendment, as well as claims pursuant to 42 U.S.C. §§ 1985(3) and 1986.

The district court, acting pursuant to the defendants’ motions, dismissed all of

Strickland’s claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). More

specifically, the district court concluded that Strickland’s claims against the Official

Capacity Defendants (encompassing all defendants sued in their official capacities) were

precluded by sovereign immunity and that her complaint failed to state any cognizable

claims for relief against the Individual Capacity Defendants (encompassing all defendants

sued in their individual capacities). Strickland now appeals from those rulings. Strickland

2 After Strickland filed her complaint, Duff retired as Director of the AO and was replaced as Director of the AO by Defendant Mauskopf. In turn, Brian Stacy Miller replaced Mauskopf as Chair of the Judicial Conference Committee on Judicial Resources. Defendant Martinez has also been replaced by John G. Baker as the Federal Public Defender for the Western District of North Carolina. Consequently, Baker now appears in his official capacity only and Martinez now appears in his individual capacity only.

5 has also filed a motion to file a declaration in support of her reply brief, as well as a motion

to vacate the district court’s judgment and to disqualify/recuse the district judge and the

panel in this appeal.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we grant Strickland’s motion

to file a declaration, but deny Strickland’s motion to vacate the district court’s judgment

and to disqualify/recuse the district judge and the panel. As to the merits of Strickland’s

appeal, we conclude as follows: (a) Strickland’s Fifth Amendment due process claim

adequately alleges the deprivation of cognizable property rights, but fails to adequately

allege the deprivation of a cognizable liberty interest; (b) Strickland’s Fifth Amendment

due process claim fails to adequately allege a facial challenge to the EDR Plan, but

adequately alleges an as-applied challenge to the EDR Plan; (c) Strickland’s Fifth

Amendment equal protection claim adequately alleges that defendants violated her right to

be free from sex discrimination; (d) Strickland’s 42 U.S.C. §§ 1985(3) and 1986 claims

fail to adequately allege claims upon which relief can be granted; (e) the Official Capacity

Defendants are entitled to sovereign immunity from the Fifth Amendment due process and

equal protection claims only to the extent those claims seek back pay; in other words,

Strickland’s potential recovery on those claims against the Official Capacity Defendants is

limited to prospective equitable relief; (f) with respect to the Individual Capacity

Defendants, Strickland’s Fifth Amendment equal protection claim is subject to dismissal

because Strickland cannot state a cause of action under Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971); (g) neither the Administrative Procedure Act nor the Back

Pay Act waive sovereign immunity for Strickland’s claims for back pay against the Official

6 Capacity Defendants; and (h) the Civil Service Reform Act does not bar Strickland’s

claims.

The effect of our rulings is as follows. Strickland’s Fifth Amendment due process

claim, to the extent it alleges a deprivation of Strickland’s property rights, and to the extent

it is asserted against the Official Capacity Defendants, is sufficient to survive the motions

to dismiss; to the extent the Fifth Amendment due process claim alleges the deprivation of

a liberty interest, however, it was properly dismissed by the district court. Strickland’s

Fifth Amendment equal protection claim, to the extent it is asserted against the Official

Capacity Defendants, is sufficient to survive the motions to dismiss. The Official Capacity

Defendants are entitled to sovereign immunity from the Fifth Amendment due process and

equal protection claims only to the extent those claims seek back pay; in other words,

Strickland’s potential recovery on those claims against the Official Capacity Defendants is

limited to prospective equitable relief. With respect to the Individual Capacity Defendants,

Strickland’s Fifth Amendment equal protection claim is subject to dismissal because

Strickland cannot state a cause of action under Bivens. Strickland’s §§ 1985 and 1986

claims against the Individual Capacity Defendants are inadequately pled and were thus

properly dismissed by the district court. We therefore affirm in part and reverse in part the

district court’s judgment and remand to the district court for further proceedings.

7 I

A. The Fourth Circuit’s EDR Plan

At the heart of this case is the EDR Plan that was adopted by the Fourth Circuit for

addressing employee complaints of sexual discrimination. We shall proceed to outline how

the EDR Plan was adopted and, in turn, how the EDR Plan was designed to work.

In January 1995, Congress enacted the Congressional Accountability Act (CAA), 2

U.S.C. § 1301 et seq. The CAA made applicable “to the legislative branch of the Federal

Government” a number of federal employment statutes, including Title VII of the Civil

Rights Act of 1964. 2 U.S.C. § 1302(a). The CAA also included a section titled “Judicial

Branch Coverage Study” that directed “[t]he Judicial Conference of the United States” to

“prepare a report for submission by the Chief Justice of the United States to the Congress

on the application to the judicial branch of the Federal Government” of various federal

employment statutes, i.e., the same statutes that the CAA made applicable to the legislative

branch of the federal government. 3 2 U.S.C. § 1434.

In December 1996, the Judicial Conference submitted a report to Congress in

response to the CAA. The report essentially asserted that it was unnecessary for federal

employment statutes to be applied to the federal judiciary because the federal judiciary

already provided its employees with protections similar to those enumerated in the various

3 “In enacting the CAA, Congress initially considered extending the statute’s coverage to employees of the judicial branch but, mindful of the importance of judicial autonomy, ultimately decided against such action.” Dotson v. Griesa, 398 F.3d 156, 173 (2d Cir. 2005).

8 federal employment statutes. The report did indicate, however, that the federal judiciary

would develop and implement a new model employment dispute resolution plan.

In early 1997, the Judicial Resources Committee drafted a new model employment

dispute resolution plan and circulated the plan for comments. After receiving comments

and revising the plan in response to those comments, the Judicial Resources Committee

recommended, and the Judicial Conference approved, a model employment dispute

resolution plan (Model EDR Plan). Judicial Conference of the United States, Report of the

Proceedings of the Judicial Conference of the United States, at 28 (Mar. 11, 1997) (saved

as ECF opinion attachment).

The Fourth Circuit adopted its own EDR Plan, based on the Model EDR Plan. The

Fourth Circuit’s EDR Plan has been amended several times since its original adoption. At

issue in this case is the 2013 version of that plan (2013 EDR Plan). The 2013 EDR Plan

expressly applied to the “unit executive and staff” of the “Federal Public Defenders within

the Fourth Circuit.” JA, Vol. II at 661.

Chapter II, § 1 of the 2013 EDR Plan stated that

[d]iscrimination against employees based on race, color, religion, sex (including pregnancy and sexual harassment), national origin, age (at least 40 years of age at the time of the alleged discrimination), and disability is prohibited. Harassment against an employee based on any of these protected categories or retaliation for engaging in any protected activity is prohibited. All of the above constitute “wrongful conduct.”

Id. at 662.

Chapter II, § 3.A of the 2013 EDR Plan stated, in pertinent part:

The . . . Federal Public Defenders . . . should make reasonable efforts to see that the skills, abilities, and potential of each employee are identified and

9 developed and that all employees are given equal opportunities for promotion by being offered, when the work of the Court permits and within the limits of available resources, cross-training, reassignments, job restructuring, special assignments, and outside job-related training.

Id. Section 3.B of Chapter II in turn directs supervisors to “apply equal employment

opportunity practices and policies in their work units.” Id.

Chapter X of the 2013 EDR Plan sets forth detailed “DISPUTE RESOLUTION

PROCEDURES” that are to govern when “[a]n employee . . . claims a denial of the rights

granted under Chapters II through VII of th[e] Plan.” Id. at 664. “Generally, the procedural

process consists of” three components: (1) “[c]ounseling and mediation”; (2) a “[h]earing

before the Chief Judge of the United States Court of Appeals for the Fourth Circuit (or a

designated hearing officer)”; and (3) “[r]eview of the hearing decision under procedures

established by the Judicial Council of the Circuit.” Id.

Chapter X encourages employees to attempt to informally resolve their concerns

before invoking the procedures of Chapter X. More specifically, § 2 of Chapter X provides

as follows: “Before invoking a request for counseling, an employee (to the extent feasible)

is encouraged to bring his or her concerns to his or her supervisor or unit executive, unless

the supervisor or unit executive is the alleged violator.” Id. at 664–65.

Section 8 of Chapter X requires “[a]n employee who believes that his or her rights

under Chapters II through VIII of th[e] Plan have been violated [to] first request

counseling.” Id. at 666. Such requests “must be made within 30 days of the alleged

violation or within 30 days of the time the employee becomes aware of the alleged

violation.” Id. Employee requests for counseling are submitted to the Circuit Executive,

10 who serves as the Circuit’s Employment Dispute Resolution Coordinator (EDR

Coordinator). Id.

This initial counseling requirement has four purposes: (1) “to discuss the

employee’s concerns and elicit information regarding the matter which the employee

believes constitutes a violation”; (2) “to advise the employee of his or her rights and

responsibilities and the procedures of the Court applicable to the employment dispute

resolution process”; (3) “to evaluate the matter”; and (4) “to assist the employee in

achieving an early resolution of the matter, if possible.” Id. (§ 8.C.2). At the end of the

30-day counseling period, the EDR Coordinator is required to notify the employee in

writing “of the end of the counseling period” and “inform the employee of the right and

obligation, should the employee choose to pursue his or her claim, to file with the EDR

Coordinator a request for mediation in accordance with § 9 of . . . Chapter” X. Id. at 667.

The 30-day counseling period can be extended for an additional 30 days by mutual

agreement of the employee and the counselor. Id.

An employee request for mediation must be filed “[w]ithin 15 days after receipt by

the employee of the notice of the conclusion of the counseling period.” Id. (§ 9.A). An

employee’s “[f]ailure to pursue mediation will preclude further processing of the

employee’s claim under any other provisions” of Chapter X. Id. “Any person with the

skills to assist in resolving disputes, except the Court’s EDR Coordinator, may serve as a

mediator under this Plan.” Id. (§ 9.B.1). The purpose of the mediation is to afford the

mediator the opportunity to “consult separately and/or jointly with the employee and his or

her representative, if any, and the employing office to discuss alternatives for resolving a

11 dispute, including any and all possibilities of reaching a voluntary, mutually satisfactory

mediation.” Id. (§ 9.B.3). If “the parties have not resolved the matter” by “the end of the

[30-day] mediation period,” the EDR Coordinator is required to “provide the employee,

the employee’s representative, if any, and the employing office with written notice that the

mediation period has concluded” and “inform the employee of his or her right to file a

complaint under § 10 of” Chapter X. Id. (§ 9.D).

“Not later than 15 days after receiving written notice of the end of the mediation

period, an employee may file a complaint with the EDR Coordinator, who will transmit the

complaint to the Chief Judge and to the respondent.” Id. (§ 10.A). Provided that the

complaint is on the court-approved form, names the employing office as the respondent,

and does not name any individuals as respondents, the presiding judicial officer (either the

Chief Judge of the Fourth Circuit or his/her designee) “shall hold a hearing on the merits

of the complaint unless he or she determines that no material factual dispute exists.” Id. at

668 (§ 10.B.1). “[T]he hearing shall be commenced no later than 60 days after the filing

of the complaint.” Id. (§ 10.B.2.a). No later than 60 days after the hearing, the presiding

judicial officer must issue a final written decision. Id. (§§ 10.B.2.f and 10.B.2.g). In

making that decision, the presiding judicial officer determines whether “the complainant

has established by a preponderance of the evidence that a substantive right protected by

th[e] Plan has been violated.” Id. (§ 10.B.2.f). If the presiding judicial officer finds that

the complainant has established one or more violations, “remedies may be provided in

accordance with § 12 of” Chapter X. Id.

12 Available remedies include “placement of an employee in a position previously

denied,” “placement in a comparable alternative position,” “reinstatement to a position

from which previously removed,” “prospective promotion to a position,” “priority

consideration for a future promotion or position,” “back pay and associated benefits,”

“records modification and/or expungement,” “‘equitable’ relief, such as temporary stays of

adverse actions,” “granting of family and medical leave,” and “accommodation of

disabilities through the purchase of specialized equipment or the restructuring of duties and

work hours, or other appropriate means.” Id. at 669–70 (§ 12.B).

B. Factual history 4

Plaintiff Strickland is a female attorney. JA, Vol. I at 22. After graduating with

honors from a highly ranked law school, Strickland completed three judicial clerkships: the

first for a state supreme court chief justice, the second for a federal district court judge, and

the third for a federal appellate judge. Id. at 23. Strickland then completed a federal

judicial fellowship. Id. In August 2017, Strickland began working as a research and

writing attorney for the FPDO. Id., Vol. II at 551. Defendant Martinez was the FPD at

that time. Strickland’s offer letter for the research and writing attorney position stated that

it was expected that she “w[ould] transition to an Assistant Defender position.” Id.

According to Strickland, the FPD repeatedly indicated to her that she would transition to

4 As discussed later, we must accept as true any well-pled facts in considering a motion to dismiss. The facts contained in this section are taken from Strickland’s detailed complaint.

13 an assistant defender position within a few months of her start date and would be afforded

the choice “between a trial or appeals position.” Id., Vol. I at 27.

After she began working for the FPD, Strickland allegedly learned that the FPD

“condoned, encouraged, and participated in a toxic workplace culture of discrimination,

harassment, and retaliation.” Id. “In this culture,” Strickland alleges, “bullying, sexism,

homophobia, racism, and mockery of disabilities was normalized.” Id. Strickland further

alleges that the FPD “promoted the individuals most responsible for misconduct and

punished employees who complained . . . with retaliatory acts ranging from disciplinary

actions and firings to vicious and false rumors.” Id.

According to Strickland, “[s]enior managers” in the office, including the First

Assistant, “were emboldened by the lack of oversight.” Id. at 27. Strickland alleges, for

example, that “after Ninth Circuit Judge Alex Kozinski resigned,” the First Assistant

“gloated to [her] that the process for filing sexual harassment claims in the federal judiciary

is useless and nothing ever happens to claims.” Id. at 27–28.

Strickland alleges that “[t]he First Assistant had control over the operations of the

entire [FPDO] and had supervisory authority over the trial units in the [FPDO’s] duty

stations.” Id. at 28. Under the management of the FPD and the First Assistant, Strickland

alleges, a “toxic workplace culture” existed in which “[f]emale employees were treated in

a sexist and discriminatory manner.” Id. at 29. In particular, Strickland alleges that

“female employees were belittled,” “not taken seriously as professionals,” and “targeted

for bullying and abusive behavior.” Id. “This toxic working culture,” Strickland alleges,

14 “served as a foundation for the harassment and discrimination” that she ultimately suffered.

Id.

Strickland alleges that, “[f]rom the time [she] started” at the FPDO, “the First

Assistant used his supervisory role to single her out professionally and personally.” Id. at

30. “[D]uring her first few months” at the FPDO, Strickland alleges, the First Assistant

“lavished her with attention,” “assigned her almost exclusively to his cases,” “created a

‘shadowing’ activities list just for her . . . and adorned it with nicknames,” “began asking

her to go to lunch with him on a regular basis,” and “always insisted on paying for her

lunch, even when she offered.” Id.

Strickland also alleges that the First Assistant began taking “a keen personal interest

in her.” Id. at 31. For example, Strickland alleges that “he often gave her rides home when

she was unable to ride her bike in inclement weather,” “read all of [her] law review articles

and often asked to discuss them with her,” and “showed an [unusual] interest in her

hobbies.” Id. Although Strickland “avoided socializing with the First Assistant outside of

work, . . . he asked her to drink alcohol with him in work settings.” Id. Strickland

“gradually suspected that the First Assistant was asking her to lunch and ‘mentoring’ her

because he was attracted to her romantically.” Id. “[S]ome of [Strickland’s] coworkers

[also] noticed the First Assistant’s interest in her” and “described him as ‘lustful,’ ‘fixated,’

‘sexually attracted,’ and ‘smothering.’” Id.

On May 18, 2018, the First Assistant asked Strickland to join him for a “mentoring”

lunch together. Id. at 32. At this lunch, Strickland told the First Assistant that she would

eventually need, for family reasons, to transfer to another of the FPDO’s duty stations. Id.

15 According to Strickland, the First Assistant became “visibly upset and emotional in

response to [her] comments.” Id. Strickland also attempted to discuss her work

performance with the First Assistant and told him that, at her upcoming performance

evaluation, “she planned to ask for a raise to the equivalent of the next grade on the GS pay

scale.” Id. When the First Assistant and Strickland returned to the office, he allegedly

said, “don’t worry, we’re going to take care of you,” and “[h]e added that he hoped

[Strickland’s] husband would take her somewhere nice for dinner that night.” Id. Later

that afternoon, the First Assistant sent an email to Strickland referencing her comments

about seeking a raise:

Dude, you’re shooting high with a G15, Not least of all since you’ll need 5 more years of fed service to qualify for it. But fret not, I have a plan . . . just remember I deal in pay-for-stay :)

Id. at 33. Strickland alleges that, “[i]n the context of the First Assistant’s inappropriate

interest in her, and his direct references to her request for a promotion,” she “interpreted

his words as a form of quid pro quo sexual harassment.” Id.

Strickland alleges that, “[o]ver the following weeks, the First Assistant increasingly

pressured [her] to leave the office with him.” Id. This included asking her “out for drinks,”

asking to join him “for ‘mentoring’ sessions,” offering her rides, and scheduling “out–of–

office meetings alone” with him. Id. Strickland also alleges that the First Assistant became

“increasingly obsessive” during that time period. Id. For example, when she “would leave

work at the end of the day, [he] would often appear from around the hallway corner at

precisely the same time and walk her out of the building.” Id. Although Strickland initially

“assumed [this] was a coincidence,” it “happened enough times” that she became

16 suspicious that he “was keeping track of her when she left work and standing around the

corner waiting to leave the building with her.” Id.

Strickland also alleges that, during this time period, the First Assistant “became

even more controlling of [her] work duties and schedule” and “demanded that she spend

time with him through contrived ‘shadowing’ activities, and punished her if she did not

comply.” Id. at 34. For example, on June 5, 2018, Strickland “emailed the First Assistant

to cancel a ‘shadowing’ activity because she had a forensic discovery review scheduled in

[a] life-sentence case.” Id. Although the First Assistant had previously told Strickland

“that his ‘shadowing’ activities were optional,” he responded to her June 5, 2018 email and

said “[t]hat’s really not OK with me.” Id. “At 6:00 a.m. the next morning, the First

Assistant emailed [Strickland] asking for a copy of her job offer letter, claiming it was not

saved in her personnel file.” Id. Strickland met with the First Assistant in his office later

that morning during business hours. Id. at 35. According to Strickland, “[t]he First

Assistant was so angry at [her] that he was pale and shaking,” and “[h]e berated her for not

attending his ‘shadowing’ activity.” Id. The First Assistant also “accused her of breaking

a ‘commitment’ to him” and again “demanded a copy of her job offer letter.” Id. Strickland

alleges that she “was so shaken and upset that she left the office crying.” Id.

“That afternoon, the [FPD] asked [Strickland] to meet about [a] trial case.” Id.

During the meeting, “Strickland raised concerns that the First Assistant had acted

inappropriately towards her.” Id. Strickland alleges that the FPD “was dismissive of her

concerns” and “told her to work things out with the First Assistant directly.” Id.

17 Following her meeting with the FPD, Strickland “reiterated to the First Assistant

that the discovery review could not be rescheduled and she would not be able to go on his

‘shadowing’ activity.” Id. According to Strickland, she “believed that her ethical duties

to her client required her to review the discovery.” Id. The First Assistant responded by

“order[ing] [Strickland] to attend his ‘shadowing’ activity” and “threatened action against

her if she disobeyed his ‘direct order.’” Id.

Strickland attended the “shadowing” activity with the First Assistant the following

morning. Id. at 36. During their time together, the First Assistant “continued to berate and

demean [Strickland].” Id. For example, he “called her ‘manipulative’ and ‘deceitful’ for

seeking trial experience” and “accused her of seeking trial experience just so she could

‘demand’ a transfer.” Id. “The First Assistant also accused [Strickland] of lying to him

about her reasons for cancelling his ‘shadowing’ activity,” “made clear that he had

questioned her coworkers,” and expressed anger “that she had raised concerns about him

to the [FPD].” Id. Strickland “perceived the First Assistant’s aggressive behaviors as

obsessive, controlling, and completely out of proportion to the issue of whether she would

attend a ‘shadowing’ activity.” Id.

Strickland alleges that she “began taking contemporaneous notes to document the

First Assistant’s inappropriate and unprofessional behaviors.” Id. at 37. “Shortly

thereafter,” Strickland alleges, the FPD “‘removed’ [her] as second chair from [a] trial case,

despite acknowledging her excellent performance.” Id.

On June 21, 2018, Strickland and the First Assistant worked together alone in the

office “after business hours . . . to prepare for a court hearing.” Id. When they completed

18 their work, the First Assistant noted that it looked like it might rain and asked Strickland if

she wanted a ride home. Id. Strickland did not feel comfortable around the First Assistant

and told him no. Id. “She joked that she was tough, and could handle biking home.” Id.

After she changed clothes and was leaving the building, “the First Assistant was waiting

for her in the lobby” and “asked her if she was sure she did not want a ride home.” Id.

(emphasis in original). Strickland “repeated that she was sure” and “left the building as

quickly as possible.” Id. Strickland “later saw that the First Assistant had . . . sent her text

messages,” saying “[i]t is currently raining. Last chance for a ride, tough girl . . . .” Id. at

38.

The First Assistant allegedly persisted in asking Strickland to meet him outside of

work for “mentoring.” Id. Strickland “sought advice from” an acquaintance “who had

extensive experience handling Equal Employment Opportunity cases for the federal

judiciary.” Id. at 39. “Based on this advice, [Strickland] asked to speak with the [FPD] in

confidence.” Id. During a July 2, 2018 meeting with the FPD, Strickland told him “that

she would be drawing boundaries with the First Assistant,” and she asked the FPD “to

support her and maintain her confidence.” Id. The FPD “asked [Strickland] if this was

‘sexual harassment.’” Id. Strickland “said that she was not using those words yet, because

she was trying to self-manage the situation first.” Id. (emphasis in original). But Strickland

“stressed that she was ‘notifying’ the [FPD], and she would not have involved him if it was

not absolutely necessary.” Id. The FPD “said very little except to confirm[] that this was

a ‘head’s up.’” Id. at 40. Strickland “left the meeting in tears, concerned that the [FPD]

did not verbally support her or ask her to follow up with him on her concerns.” Id.

19 “Later that afternoon, [Strickland] met with the First Assistant” in a conference

room. Id. “Before starting the meeting, the First Assistant shut both doors to the

windowless conference room.” Id. “He then told her that she was ‘struggling’” and

“claimed she was having a hard time balancing priorities.” Id. The First Assistant also

told Strickland that “[h]e had ‘frustrations’ with her.” Id. Strickland, believing “that his

criticisms were not based on job performance, but rather his anger that she was resisting

his advances,” told him “that she was setting ‘boundaries’ with him.” Id. She also “told

him that he ‘crossed a line’ with her, and that his behavior was unacceptable.” Id. The

First Assistant responded “sarcastically,” saying “he would ‘try’ not to speak to her that

way again.” Id. The First Assistant then “continued berating [Strickland] until she stood

up, stated that she would rather discuss these issues with the [FPD], and left the room.” Id.

at 41. “The First Assistant followed [Strickland] out of the room, telling her to come with

him to the [FPD’s] office.” Id. She “walked away from him.” Id. “Immediately after this

confrontation, [Strickland] called the [FPD].” Id. “She let him know that the First

Assistant might say something about her, and she asked him to withhold judgment until he

had spoken to her.” Id. “She then left the office.” Id.

On July 5, 2018, the FPD “unexpectedly called [Strickland] into his office to meet

with the First Assistant directly.” Id. Strickland “repeated several times that she was

uncomfortable and that she would not meet without speaking to the [FPD] alone first.” Id.

“Eventually, the [FPD] asked the First Assistant to leave the room.” Id. “The [FPD] told

[Strickland] that the First Assistant was upset with her for not keeping a commitment to

him.” Id. “The [FPD] called this issue a ‘breakdown in communication.’” Id. The FPD

20 explained “that he was an ‘old school’ person who believe[d] that when you make a

commitment, you keep it, so he could understand where the First Assistant was coming

from.” Id. at 42.

Although Strickland again expressed her concerns about the First Assistant’s

behavior to the FPD, the FPD “dismissed [Strickland’s] concerns” and “insisted that, as

[Strickland’s] supervisor, the First Assistant had the right to meet with her.” Id. “The

[FPD] then compared the First Assistant’s supervisory role over [Strickland] to

[Strickland’s] marriage.” Id. The FPD “said he knew [Strickland] had not been married

for very long, but marriage always involves ‘compromise,’ and so Strickland would have

to ‘meet in the middle’ with the First Assistant.” Id. Strickland “began to cry” in response

to the FPD’s statements, and he “asked her why she was ‘getting emotional.’” Id.

Strickland again informed the FPD about what she perceived as “the First Assistant’s

harassing behaviors.” Id. Although the FPD “acknowledged that he did not want

[Strickland] to feel uncomfortable,” he “brought the First Assistant back into the room,”

and the First Assistant proceeded to berate and criticize Strickland “in front of the [FPD].”

Id. at 43. Strickland concluded that the FPD “wanted her to simply stop complaining rather

than do anything to address the First Assistant’s harassment.” Id.

On July 9, 2018, Strickland confirmed in writing to the FPD their mutual

understanding “that she did not have a performance issue and that the First Assistant would

no longer be her ‘mentor.’” Id. On July 20, 2018, however, the FPD “announced that he

was re-assigning [Strickland] to work directly under the First Assistant on his trial ‘team.’”

Id. (emphasis in original). The FPD “also announced that [Strickland] would no longer be

21 assigned her own trial cases.” Id. Strickland “felt betrayed and afraid of the idea that the

First Assistant would have direct supervisory authority over her again.” Id. at 44.

On the evening of July 20, 2018, the FPDO’s Appellate Chief called Strickland and

told her “that he thought she would be happy with a new appellate attorney position that

management was looking into posting.” Id. Strickland “asked the Appellate Chief to keep

her updated on the new position.” Id. When the Appellate Chief then “asked [Strickland]

about her issues with the trial teams,” Strickland informed “him that she had serious

concerns about working on the First Assistant’s team.” Id. After further discussion, the

Appellate Chief “remarked that he ‘strongly disagreed’ with some of the First Assistant’s

‘management’ decisions, but he told [Strickland] that he ‘adored’ the First Assistant.” Id.

The Appellate Chief further stated that he perceived the First Assistant to be “a good guy

who had made mistakes,” and he told Strickland “that it was in her best interest to mend

things and get along with him.” Id. “These comments made [Strickland] deeply

uncomfortable, as she believed he was pressuring her to drop her complaints.” Id.

Two nights later, on the evening of Sunday, July 22, 2018, the First Assistant

emailed Strickland and asked her to meet with him alone about his “team.” Id. at 45. “This

request made [Strickland] very uncomfortable because the trial teams always met as a

group, and the First Assistant knew, or should have known, that [Strickland] was not

comfortable being alone with him.” Id.

The next day, Monday, July 23, 2018, Strickland took leave from work “because

she felt she had no other choice.” Id. She sought guidance that day from the AO’s Fair

Employment Opportunity Officer (FEOO). Id. Strickland described her experiences to the

22 FEOO. Id. The FEOO allegedly told Strickland that what she had described was “classic

sexual harassment.” Id. The FEOO in turn outlined for Strickland her possible options for

resolving her complaints about the FPD and the First Assistant. Id. The FEOO also

suggested to Strickland that a better option might be to look for another job because, in the

FEOO’s view, the EDR Plan meant that the cards were “stacked” against Strickland and in

favor of management. Id.

The FEOO allegedly shared copies of the First Assistant’s inappropriate text

messages and emails with the Chief of Defender Services. Id. at 49. The FEOO and Chief

of Defender Services then allegedly contacted the Deputy Director of the AO about the

issue, and the Deputy Director allegedly authorized the Chief of Defender Services to

contact the FPD directly. Id. at 49–50. The Chief of Defender Services then called the

FPD and told him that he was on notice of sexual harassment by the First Assistant. Id. at

50. The FPD allegedly told the Chief of Defender Services that he had mishandled the

situation and that the FPD did not have any performance issues with Strickland’s work. Id.

The Chief of Defender Services suggested to the FPD that he should transfer Strickland to

another duty station immediately and should also consider Strickland for an open appellate-

attorney position and allow her to work in the appeals unit away from the First Assistant’s

direct supervision. Id.

On August 9, 2018, the FPD visited Strickland in her office workspace and told her

that the Chief of Defender Services had called him. Id. The FPD allegedly claimed that

Strickland had previously told the FPD that she was not being sexually harassed and instead

was just uncomfortable. Id. at 51. The FPD also allegedly criticized Strickland for going

23 to another person with her concerns, and he told her that he was being blamed and attacked

for something that was not his fault. Id. The FPD allegedly asked Strickland what she

“want[ed].” Id. Strickland responded that she was requesting to be an assistant federal

public defender and to work exclusively on appeals. Id. at 51–52. The FPD allegedly

agreed with Strickland that it was necessary to move her to an appellate position because

the First Assistant was in charge of the entire trial unit. Id. at 52. The FPD, however,

allegedly refused to transfer Strickland to another duty station, claiming that there was no

available office space. Id. Although the FPD claimed that it was sufficient that Strickland

and the First Assistant worked on opposite ends of a hallway, Strickland responded that

she could not continue to work in the same office with the First Assistant, particularly since

the First Assistant was likely to be angry when he found out about the changes that

Strickland and the FPD had discussed. Id.

Approximately a week later, on August 17, 2018, the FPD sent an email to

Strickland and copied the Circuit Executive and a human resources specialist. Id. at 53. In

that email, the FPD informed Strickland that he was reclassifying her to the position of

assistant federal public defender and that he was doing so because it was “to the office’s

advantage to reclassify Research & Writing Specialists to [assistant federal public

defender] positions for purposes of case weight measurement.” Id. The FPD further stated

that he had never agreed to allow Strickland to work exclusively on appeals and instead

would require her to continue to work for the trial unit in a research and writing support

role. Id. The FPD stated that Strickland would report to the FPDO’s Appellate Chief, but

would still receive research and writing assignments from the First Assistant. Id. The FPD

24 stated that he had reported Strickland’s sexual-harassment allegation to the Circuit

Executive for the Fourth Circuit. Id. The FPD indicated that both he and the human

resources specialist would meet with Strickland to advise her of her rights under the EDR

Plan. Id. Lastly, the FPD stated that he would allow Strickland to telework temporarily,

but was reserving the right to require her to return to her duty station as soon as the

investigation into her allegations was over. Id.

The FPD subsequently contacted the Office of the General Counsel and the Circuit

Executive for the Fourth Circuit and discussed the situation. Id. at 54. According to

Strickland, her situation was subsequently discussed by various individuals, including the

FPD, the Circuit Executive, the Deputy Director of the AO, and the Chief Judge of the

Fourth Circuit. The decision was made that the Office of the General Counsel would take

over the matter, remove the FEOO from any further involvement, and limit any

investigation of wrongful conduct to the First Assistant. Id. at 55; Aplt. Br. at 11.

Strickland in turn was told that she would be prohibited from speaking to the FEOO. JA,

Vol. I at 55.

In August 2018, Strickland was not invited to interview for the appellate-attorney

position that was open in the office. Id. at 56. According to Strickland, the First Assistant

was either on the hiring committee or, at a minimum, provided input regarding the hiring

decision for this position. Id.

Strickland was, however, formally reclassified by the FPD as an assistant federal

public defender. Id. at 56–57. Strickland alleges that this reclassification was in name

only, and that she was not treated like other assistant federal public defenders in the office.

25 Id. at 57. In particular, she alleges that her job duties were limited to providing research

and writing support to other attorneys. Id. She also claims that she was required to

continue providing research and writing support to the trial unit that was directly supervised

by the First Assistant. Id. Strickland further alleges that she was denied a salary increase

with this reclassification and had her locality adjustment stripped, which resulted in a pay

cut of nearly 15 percent. Id.

Strickland alleges that, after her reclassification as an assistant federal public

defender, the First Assistant continued to harass her and interfere with her job duties. Id.

at 58. For example, she alleges that, in late August 2018, the First Assistant copied her on

an email to a client and that, in the email, the First Assistant “used highly specific, unique

words and phrases from a law review article” that she had written. Id. “As a result of

including these references,” she alleges, “the email was entirely nonsensical, inappropriate,

and unprofessional.” Id. Strickland believes that the First Assistant sent this email solely

to harass her because he knew that she was the only one who would understand its coded

references. Id. at 59. Strickland was allegedly scared to be around the First Assistant due

to what she viewed as his erratic and obsessive behaviors. Id. She came to believe, based

upon information conveyed to her by other employees, that the First Assistant was

essentially stalking her. Id.

On September 5, 2018, Strickland spoke to the Circuit Executive by telephone in

his capacity as the Fourth Circuit’s EDR Coordinator. As previously noted, the EDR Plan

provided that the Circuit Executive would serve as the EDR Coordinator. Id. The Circuit

Executive informed Strickland that a human resources specialist would be promptly

26 investigating her complaints. Id. When Strickland asked about the scope of the

investigation, the Circuit Executive stated that it would cover allegations of sexual

harassment by the First Assistant. Id. Strickland allegedly informed the Circuit Executive

that she was also alleging retaliation by the FPD. Id. at 60. The Circuit Executive allegedly

told Strickland that it was not helpful for her to have reported her complaints to the AO.

Id. He stated that her doing so meant that “barriers go up” and people are “on guard.” Id.

On September 10, 2018, Strickland filed a request for counseling under the EDR

Plan. Id. at 62. Strickland named both the First Assistant and the FPD as alleged violators

of the EDR Plan. Id. She alleged that she had been subjected to unlawful harassment,

retaliation, and discrimination. Id. Strickland requested the following relief: “An

environment free of harassment, retaliation, and discrimination, the opportunity for merit-

based advancement, and any other appropriate relief.” Id. Strickland also filed a separate

request, asking that the FPD be disqualified from serving as the employing office’s

representative under Chapter X, Section 7 of the EDR Plan. Id.

On September 18, 2018, Strickland met with the Circuit Executive in person. Id. at

63. After speaking with Strickland, the Circuit Executive stated that he would direct a

human resources specialist to conduct a single unified investigation into Strickland’s

allegations of misconduct on the part of both the First Assistant and the FPD. Id. at 65.

On October 5, 2018, Strickland met with the human resources specialist that was

assigned to conduct the investigation. Id. at 66. During the four-hour-plus meeting,

Strickland explained in detail the nature of the harassing and retaliatory behavior on the

part of the First Assistant and the FPD. Id. At the request of the human resources specialist,

27 the two met again a second time on November 9, 2018. Id. at 67. During that meeting, the

human resources specialist asked Strickland if she had been “friendly” to the First

Assistant, whether her relationship with the First Assistant “broke down” over a case

assignment, and whether the First Assistant’s behavior was “sexual” in nature. Id. The

human resources specialist also informed Strickland that the specialist was focusing her

investigation on the sexual-harassment claims regarding the First Assistant and in turn how

the FPD “handled” those claims. Id. at 68. The human resources specialist stated that she

did not understand Strickland’s claims of retaliatory conduct on the part of the FPD to be

part of the investigation that the Circuit Executive had ordered. Id. The human resources

specialist also informed Strickland that the investigative report would contain only facts

and that she expected the Circuit Executive to make the final decisions. Id. at 69.

On November 12, 2018, Strickland emailed the Circuit Executive, with a copy to

the Chief Judge, to inquire about the status of her request for counseling. Id. Strickland

noted in her email that the counseling period outlined in the EDR Plan would likely expire

before the human resources specialist had completed her investigation. Id. The Circuit

Executive responded by stating that the human resources specialist was conducting a “joint

investigation” that would cover both Strickland’s report of wrongful conduct and her

request for counseling. Id. at 70. The Circuit Executive stated that Strickland’s counseling

period under the EDR Plan would end on November 29, 2018, and could not be renewed

even if the joint investigation was not concluded by that date. Id. The Circuit Executive

also stated that the FPD had “taken numerous steps” to protect Strickland’s safety, but did

not detail what those steps were. Id.

28 Strickland followed up by email and asked the Circuit Executive a series of

questions. Id. at 70–71. The Circuit Executive responded by email, but did not directly

answer any of Strickland’s questions. Id. at 71. Instead, the Circuit Executive stated that

the FPD had allowed Strickland to telework, had removed her from the First Assistant’s

chain of command, and had taken other unspecified steps to avoid contact with the First

Assistant. Id. The Circuit Executive asked Strickland to “articulate precisely what it

[wa]s” that she was “looking for” so that he could “present” her ideas to the FPD for

“discussion.” Id. In doing so, the Circuit Executive stated: “Reiterating that you want a

safe workplace free of harassment isn’t helpful because [the FPD] already believes that

he’s done and is doing all he can to provide such a workplace for you.” Id.

On November 19, 2018, the human resources specialist emailed Strickland, with a

copy emailed to the Circuit Executive, and asked for a “specific list of demands you feel

would bring this situation to an agreeable resolution.” Id. The human resources specialist

asserted in the email that some “steps” had already been taken by the FPD, including

reclassifying Strickland as an assistant federal public defender and taking her out of the

chain of command of the First Assistant. Id. at 72. According to Strickland, the human

resources specialist’s email suggested that Strickland had accepted the legitimacy of these

“steps,” despite the fact that Strickland had asserted otherwise. Id. Lastly, the human

resources specialist stated that she needed Strickland to make “concrete specific requests”

regarding how she could “feel safe” in “an environment free from harassment and

intimidation and where advancement is based on merit.” Id.

29 On November 21, 2018, Strickland sent an email to the Circuit Executive, with a

copy to the Chief Judge. Id. at 76. Strickland stated, in pertinent part, that “[t]his situation

has irreparably damaged my relationships with the Federal Defender and my colleagues,

and I believe I am no longer welcome in that environment. I would appreciate the Fourth

Circuit’s assistance in transitioning me out of [the FPDO].” Id. Strickland sent a similarly

worded email in response to the human resources specialist’s email of November 18, 2018.

On November 25, 2018, the Circuit Executive asked Strickland for a copy of her

resume and stated that he would “make inquiries” to federal defenders’ offices around the

Fourth Circuit. Id. Strickland provided the Circuit Executive with a copy of her resume

and asked if he would send it to federal defenders’ offices and to Article III judges within

the Fourth Circuit. Id. The Circuit Executive stated that he would circulate her resume to

other federal defenders’ offices, but would leave it to Strickland to contact judges in the

Fourth Circuit. Id. at 77.

On November 27, 2018, Strickland and the Circuit Executive spoke by phone. Id.

The Circuit Executive informed Strickland that he had received the human resources

specialist’s report but had sent it back. Id. According to the Circuit Executive, the report

set forth a “chronology” of facts that “we all know.” Id. The Circuit Executive stated that

he told the human resources specialist that it would be “helpful” if the report included

“findings and recommendations.” Id. Strickland asked the Circuit Executive who would

be responsible for acting on the human resources specialist’s final report, and the Circuit

Executive stated that he would receive the report and then a decision would be made about

30 discipline. Id. at 78. Strickland also asked the Circuit Executive about the status of her

retaliation claims, and the Circuit Executive stated that he was not sure whether her

allegation of retaliation was part of the human resources specialist’s investigation. Id. In

addition, Strickland asked about the status of her motion to disqualify the FPD, and the

Circuit Executive stated that he and the Chief Judge had discussed the motion and agreed

that disqualifying the FPD would be “premature” absent a finding against the FPD. Id.

The Circuit Executive also stated that if the FPD was disqualified, then no one would

represent the employing office. Id. at 79. Strickland and the Circuit Executive discussed

whether Strickland wanted to remain with the FPDO at all, and Strickland expressed

concern whether she could continue to work there because she felt unwelcome and like she

was being “forced out.” Id. at 81.

On November 28, 2018, the Circuit Executive told Strickland that he had checked

with the human resources specialist regarding the retaliation claims and the human

resources specialist had assured him that she would include those claims in her report. Id.

Later that same day, Strickland emailed the human resources specialist to update her on the

retaliation that she had experienced since filing her complaint. Id. She also contacted the

Chief Judge and requested an extension of her counseling period for 30 days from the date

the investigation report was completed in order to allow her time to assess the options for

resolving her claims. Id.

On November 30, 2018, the Chief Judge issued a written order granting in part and

denying in part Strickland’s request to extend the counseling period. Id. at 82. The order

31 specifically extended the counseling period until January 16, 2019, but did not extend the

counseling period to thirty days from the date that the investigation report was completed.

On January 11, 2019, the Circuit Executive contacted Strickland and informed her

that he had received the amended investigation report from the human resources specialist

and would “be in touch.” Id. at 82. On January 16, 2019, the Circuit Executive emailed

Strickland and informed her that her counseling period had expired. Id. at 83. The Circuit

Executive also informed Strickland that the Chief Judge “intend[ed]” to deny her request

to disqualify the FPD. Id.

On January 17, 2019, Strickland and the Circuit Executive spoke by phone. Id.

Strickland asked the Circuit Executive to explain the reasons for the impending denial of

her motion to disqualify the FPD. Id. The Circuit Executive declined to answer, and

instead stated that he was drafting a denial order that would explain the reasons. Id. The

Circuit Executive also informed Strickland that, per the advice of the Office of the General

Counsel, neither she nor the employing office would receive a copy of the investigation

report or any summary of its findings and recommendations. Id. According to the Circuit

Executive, it was the Office of the General Counsel’s opinion that the report was an

“internal document only” and that distributing the report to the parties would make it more

difficult to resolve the matter informally because both parties would likely fight about parts

of the report rather than focusing on the issues in the case. Id. Strickland asked the Circuit

Executive to identify what section of the EDR Plan referred to “internal documents.” Id.

The Circuit Executive could not identify any part of the EDR Plan that referred to “internal

documents” and admitted that the EDR process was not “perfect.” Id. at 84.

32 Strickland learned from the Circuit Executive that the First Assistant had called the

Circuit Executive and stated that the ongoing EDR proceedings had been a “living hell”

for him and that he had been suffering from physical symptoms. Id. The Circuit Executive

admitted to Strickland that it was inappropriate for the First Assistant to have called the

Circuit Executive and that the Circuit Executive told the First Assistant not to call again.

On January 22, 2019, Strickland sent an email to the Chief Judge and the Circuit

Executive asking to be transferred to a federal defender office in an adjacent district. Id.

at 85. On January 24, 2019, Strickland was informed that the Chief Judge had directed the

Circuit Executive “to lend appropriate assistance” with a transfer. Id.

On January 30, 2019, Strickland filed a request for mediation under the EDR Plan. 5

Id. On February 7, 2019, Strickland met with the appointed mediator (Mediator) in the law

library of a Fourth Circuit judge. Id. at 86. The Mediator acknowledged that it would be

difficult for Strickland to return to work. Id. The Mediator stated that the First Assistant’s

“quid pro quo email” was “inappropriate,” and also stated his opinion that the Defender

was from a “generation” that doesn’t “get” sexual harassment. Id. The Mediator admitted

that there were problems with the EDR Process, and he acknowledged that you “give up a

5 This request was made by Strickland within fifteen days of what the Circuit Executive informed Strickland to be the end of the counseling period. Strickland’s request effectively triggered the running of the thirty-day mediation period provided for in the EDR Plan.

33 lot” as a judiciary employee. Id. Ultimately, the Mediator promised that he would press

the FPD on a duty station transfer and other requested terms. Id.

On February 12, 2019, the Mediator spoke to Strickland by phone and informed her

that the FPD would permit her to transfer to another duty station where she would likely

have to share an office with an intern. Id. at 87. Strickland told the Mediator that a transfer

under these circumstances would further humiliate and stigmatize her because the whole

office would know that the FPD had likely prioritized an intern over her. Id. The Mediator

suggested that Strickland put these issues aside and attempt to “work something out.” Id.

The Mediator also informed Strickland that the FPD was in agreement that the First

Assistant could no longer be “involved” with Strickland’s work. Id. Strickland asked the

Mediator what would happen if an EDR settlement was breached, and the Mediator stated

that in his experience, the only remedy for the breach of an EDR settlement was the filing

of another EDR claim. Id. Strickland suggested to the Mediator that, under the

circumstances, a duty station transfer alone would not accomplish anything and that the

underlying harassment and retaliation needed to be addressed. Id.

On February 14, 2019, Strickland met with the newly selected Judicial Integrity

Officer (JIO) in Washington, D.C. Id. at 88. The JIO stated, in part, that a Circuit

Executive should never serve as an EDR Coordinator due to inherent conflicts of interest.

Id. But the JIO also stated that just because every court handles the EDR process

differently does not mean that employees’ rights are being violated. Id. The JIO warned

Strickland that if she did not submit the entire factual basis for her claims in writing to her

employing office, she risked waiving claims. The JIO also opined that the five-page

34 narrative that Strickland had submitted with her request for counseling was not sufficient

to “preserve” her claims. Id. In addition, the JIO told Strickland that a presiding officer

would not have authority to order the First Assistant’s termination, and further noted that

Article III judges do not have authority to manage a federal defenders’ office. Id. at 90.

On February 22, 2019, Strickland’s representative (it is unclear from the complaint

who this representative was) submitted to the Circuit Executive a more detailed factual

narrative. Id. at 91. This supplement included highly sensitive details, including

information that Strickland believed could potentially expose other employees to

retaliation, that Strickland would not have disclosed voluntarily to the FPD. Id. Strickland

expected that the Circuit Executive would keep this supplement confidential. Id.

Strickland’s representative specifically requested that the supplement be redacted to protect

other employees’ identities if shared with the FPD. Id. at 92. The Circuit Executive,

however, at the advice of the Office of the General Counsel, forwarded the supplement

directly to the FPD, the Chief Judge, and the Mediator. Id.

On February 26, 2019, Strickland met with the Mediator in a Fourth Circuit judge’s

law library. Id. The Mediator told Strickland that she could not transfer to the federal

defender’s office in the adjacent district that she had requested because that office did not

have an opening. Id. The Mediator also told Strickland that the FPD had been

unresponsive since their first conversation. Id. at 93. The Mediator offered to help

Strickland find another job. Id. Strickland responded by asking the Mediator to help her

secure a Fourth Circuit clerkship; she believed that securing a clerkship would help prevent

her existing employment situation from destroying her reputation. Id.

35 After the meeting, the Mediator traveled to Richmond, Virginia, to advocate on

Strickland’s behalf for a clerkship. Id. Shortly thereafter, the Mediator called Strickland

and informed her that a Fourth Circuit judge had a term clerkship vacancy that had been

open for at least several weeks. Id. The Mediator informed Strickland that this judge

wanted to interview Strickland. Id. On March 8, 2019, Strickland interviewed with the

Fourth Circuit judge and was offered the clerkship position. Id.

Strickland told the Mediator that the clerkship was a “very nicely packaged

constructive discharge.” Id. at 94. She explained that, in her view, she was giving up her

career at the FPDO because she was harassed and retaliated against without any

accountability. Id. Strickland called the situation the “collective fault of the institution.”

Id. The Mediator responded that Strickland should be thankful for what went right for her.

Id. Further, the Mediator stated that a lot of people had worked to make this outcome

possible, even though they did not have to do anything for her. Id.

Strickland formally resigned from the FPDO effective March 15, 2019. Id.

On May 1, 2019, while Strickland was serving as a Fourth Circuit judicial law clerk,

she contacted the Circuit Executive and asked for a status update on her wrongful-conduct

report. Id. at 96. The Circuit Executive responded and said that the wrongful-conduct

proceeding was still ongoing Id. Strickland asked the Circuit Executive if she could meet

with him in person. Id.

On May 7, 2019, Strickland met with the Circuit Executive and a human resources

administrator in Richmond, Virginia. Id. Strickland asked for an update on her

wrongful-conduct proceeding. Id. The Circuit Executive stated that, on the advice of the

36 Office of the General Counsel, he could not tell Strickland anything about the proceeding

or its outcome. Id.

On June 4, 2019, the Circuit Executive sent Strickland an email, with a copy sent to

the Chief Judge, stating:

I wanted to let you know that disciplinary action was taken last week as a result of your report of wrongful conduct. As we discussed previously, I cannot reveal the nature of the action because it is a disciplinary matter. But I wanted to let you know that action was taken, and I wanted to re-emphasize that: (1) the Fourth Circuit took your report very seriously, (2) Chief Judge Gregory ordered a painstaking and exhaustive investigation into your allegations, and (3) actions were taken based on careful consideration of the investigation report.

Id. at 97.

To date, Strickland has never been informed of the findings on her complaint or

what corrective actions were taken. Id. at 98. According to Strickland’s complaint,

however, all of the individuals responsible for the harassment, retaliation, and

discrimination against her still hold their same positions and titles at the FPDO. Id. (We

note that this allegation is no longer accurate as to the FPD himself, who was not

reappointed. Aplt. Br. at 19 n.2)

C. Procedural history

Strickland initiated these proceedings on March 3, 2020, by filing a complaint

against the United States of America, the Judicial Conference, the AO, James Duff (then

the Director of the AO), Roslynn Mauskopf (then the Chair of the Judicial Conference

Committee on Judicial Resources), Sheryl Walter (General Counsel for the AO), John Does

(attorneys employed in the Office of the General Counsel), the Fourth Circuit, the Judicial

37 Council of the Fourth Circuit, Roger Gregory (the Chief Judge of the Fourth Circuit), James

Ishida (the Circuit Executive and EDR Coordinator), and the FPD. 6 Id. at 19. Three of the

defendants—Gregory, Ishida, and the FPD—were named in both their official and

individual capacities. Walter and the John Does were named in their individual capacities

only.

The first claim for relief asserted in the complaint, titled “Fifth Amendment: Due

Process,” alleged, in pertinent part, that defendants (the claim does not distinguish between

the defendants and thus presumably includes all of the defendants) “knowingly deprived

[Strickland] of her property interests without the due process of law in violation of the Fifth

Amendment to the United States Constitution” by (a) “adopting, promulgating, and

implementing policies and practices under which [Strickland] was deprived of immediate

and effective action on, and meaningful review of and remedies for, the harassment,

retaliation, and discrimination she suffered,” (b) “by violating the limited procedural

protections and rights [Strickland] was afforded under the EDR Plan,” and (c) “by

discriminating against [Strickland] based on her gender in violation of protected

employment rights.” Id. at 99. The first claim for relief does not identify precisely what

each defendant did or failed to do. Strickland’s opening appellate brief, however, provides

slightly more detail as to what she is claiming:

As previously noted, defendant Duff has since retired as the Director of the AO. 6

Defendant Mauskopf now serves as the Director of the AO. Mauskopf was replaced by defendant Brian Stacy Miller as Chair of the Judicial Conference Committee on Judicial Resources.

38 The Fourth Circuit’s internal complaint process, known as the Employment Dispute Resolution Plan (“EDR Plan”), failed to provide a fair process, meaningful review of her claim or remedies to stop the harassment. The design of the EDR Plan and its implementation were deeply unfair and grossly inadequate. Through the EDR process, defendants ratified, facilitated, and aggravated the hostile work environment, which became so intolerable that [Strickland] was forced to resign and lose her career as a federal public defender.

Aplt. Br. at 2. According to Strickland, “[t]he due process violations here consisted of

serious procedural defects in both 1) the EDR Plan’s design (facial); and 2) officials’

implementation of the EDR process (as applied).” Id. at 60. In short, Strickland alleges,

defendants “violated her Fifth Amendment due process right by denying her fair

procedures for resolving her discrimination complaint.” Id. at 20–21. The first claim for

relief alleged that “[a]s a result of Defendants’ unlawful conduct, [Strickland] has suffered

psychological harm, emotional distress, humiliation, embarrassment, and monetary

damages.” JA, Vol. 1 at 99.

The second claim for relief in Strickland’s complaint, titled “Fifth Amendment:

Equal Protection,” alleged that defendants violated Strickland’s Fifth Amendment equal

protection rights by (a) “subjecting [her] to harassment, retaliation, and discrimination, (b)

“failing to take immediate and effective action on her complaints,” and (c) “failing to

provide her with meaningful review or remedies.” Id. at 100. The complaint does not

identify precisely what each defendant is alleged to have done or failed to do. But again,

Strickland’s opening appellate brief provides more detail about this claim:

The [FPD] ratified the [First] Assistant’s harassing conduct, most significantly by refusing to consider [Strickland] for the promotion for which she was qualified—a discriminatory follow-up to the Assistant’s quid-pro- quo sexual harassment. The meaning of the [First] Assistant’s harassing

39 email was that if [Strickland] didn’t “pay” in the way he wanted, that is, sexually, she would not get the promotion. In refusing to consider the promotion—even going to lengths to backdate his reclassification of her title to the day before she became eligible for promotion, . . . the Defender made good on the [First] Assistant’s threat. This response was clearly unreasonable and effectively caused further harassment.

Second, after Fourth Circuit and AO officials were put on notice of the sexual harassment and of the [FPD’s] disregard of AO advice on stopping it, they protected the [FPD] rather than taking steps to end the harassment. The officials prohibited [Strickland] from seeking guidance about her civil rights from the FEOO. The officials allowed the [FPD] to drive the process despite his conflict of interest: The [FPD] appointed the investigator to investigate the allegations, and decided how to discipline the Assistant. The Chief Judge refused to disqualify the [FPD] from acting on behalf of the employing office in the dispute resolution process. Officials failed to conduct an impartial investigation by a well-trained investigator. The Circuit Executive limited the investigation’s scope to exclude the [FPD’s] wrongful conduct. As a result, the Investigator did not fully investigate [Strickland]’s claims.

Aplt. Br. at 46–47. As with the first claim for relief, the second claim for relief alleged

that, “[a]s a result of Defendants’ unlawful conduct, [Strickland] has suffered

psychological harm, emotional distress, humiliation, embarrassment, and monetary

damages.” JA, Vol. I at 100.

The third claim for relief alleged that defendants conspired to violate Strickland’s

civil rights, in violation of 42 U.S.C. § 1985, “[b]y agreeing to implement, and taking

actions on, policies, procedures, and practices whereby [she] was subjected to sexual

harassment, discrimination, and retaliation and deprived of immediate and effective action

on her complaints, and meaningful review and remedies, all on account of her gender.” Id.

The fourth and final claim for relief alleged that defendants violated 42 U.S.C. § 1986 by

neglecting to prevent the conspiracy to violate Strickland’s civil rights. Id. Both the third

40 and fourth claims, like the first two claims, alleged that “[a]s a result of Defendants’

unlawful conduct, [Strickland] has suffered psychological harm, emotional distress,

humiliation, embarrassment, and monetary damages.” Id. at 100, 101.

Under the heading “REQUESTED RELIEF,” the complaint asked for declaratory

relief, compensatory and punitive damages, front pay as equitable relief in lieu of

reinstatement, back pay as equitable relief for the unlawful termination of her employment

pursuant to the Back Pay Act, pre- and post-judgment interest on all amounts awarded, and

reasonable attorney’s fees and costs.

All of the Official Capacity Defendants moved to dismiss Strickland’s complaint

pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Id. at 256. The Individual Capacity

Defendants also each filed motions to dismiss Strickland’s claims against them pursuant to

Fed. R. Civ. P. 12(b)(6). Strickland opposed those motions and also filed motions for

partial summary judgment against all of the defendants.

On December 30, 2020, the district court issued a memorandum and order granting

the Official Capacity Defendants’ motion to dismiss on the grounds of sovereign immunity,

and granting the Individual Capacity Defendants’ motion to dismiss on the grounds that

Strickland’s complaint failed to allege cognizable claims against them. Id., Vol. IV at

1492–93. Regarding the issue of sovereign immunity for the Official Capacity Defendants,

the district court rejected Strickland’s argument that both 28 U.S.C. § 1331 and the Back

Pay Act waived those officials’ sovereign immunity. Id. at 1507–08. The district court

also rejected Strickland’s argument “that section 702 of the Administrative Procedure Act

[(APA)] waive[d] the Official Capacity Defendants’ sovereign immunity.” Id. at 1509. In

41 doing so, the district court noted that “[a]lthough section 702 waives sovereign immunity

with respect to agencies, 5 U.S.C. § 702, ‘the courts of the United States’ are not agencies,

id. § 701(b)(1)(B).” Id. And the district court concluded, citing an unpublished Ninth

Circuit opinion, that because “[t]he District Courts may make recommendations

concerning nominees for the position of Federal Public Defender and the Courts of Appeals

appoint, compensate, and remove Federal Public Defenders, . . . the Official Capacity

Defendants [we]re part of the federal judiciary for purposes of the APA, and that the APA

therefore d[id] not waive the Official Capacity Defendants’ sovereign immunity.” Id. at

1510–11. As a result, the district court concluded that it lacked subject matter jurisdiction

over the claims asserted by Strickland against the Official Capacity Defendants. Id. at

1511.

The district court also concluded in its memorandum and order that Strickland

“fail[ed] to allege cognizable constitutional claims” against the Individual Capacity

Defendants. Id. at 1512. Addressing Strickland’s first claim for relief, which alleged a

violation of her Fifth Amendment procedural due process rights, the district court

concluded that Strickland failed to adequately allege that “she . . . lost something that fits

into one of the three protected categories: life, liberty, or property.” Id. at 1513 (internal

quotation marks omitted). Although the district court noted that Strickland purported “to

have a liberty interest ‘in being free from unlawful discrimination,’ which she alternatively

label[ed] ‘a right to be free of sex discrimination in her workplace,’” the district court

concluded that this claim found no support in either Supreme Court or lower federal court

precedent. Id. at 1515. Consequently, the district court concluded “that [Strickland]

42 fail[ed] to allege that the Individual Capacity Defendants deprived her of a protected liberty

interest.” 7 Id. at 1516.

The district court next addressed Strickland’s allegation in her first claim for relief

that she had “purported property interest[s] . . . ‘in the [EDR] Plan’s terms as a condition

of her employment,’ a ‘right to prompt and effective remedial action on her complaints[,]’

and [a] ‘right to meaningful review and remedies.’” Id. at 1517. The district court

concluded that “‘[p]roperty’ cannot be defined by the procedures for its deprivation.” Id.

at 1519 (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)). And it

in turn “conclude[d] that [Strickland] fail[ed] to allege that the Individual Capacity

Defendants deprived her of a protected property interest.” Id.

Turning to Strickland’s second claim for relief, which alleged a violation of her Fifth

Amendment equal protection rights, the district court noted that Strickland did not allege

either that defendants had made a classification on the basis of sex or took an action that

resulted in a disparate impact that could be traced to a discriminatory purpose. Id. at 1520.

Instead, the district court noted that Strickland was “attempt[ing] to graft precedent

interpreting Title VII onto the Fifth Amendment.” Id. Consequently, the district court

concluded that the “case present[ed] a matter of first impression in th[e] [Fourth] [C]ircuit:

viz, whether a Title VII theory of discrimination on the basis of sex states a claim for

discrimination on the basis of sex under the Fifth Amendment Equal Protection Clause.”

7 Strickland states in her opening brief that, “[c]ontrary to the District Court’s understanding,” she “did not assert procedural due process claims against the Individual Capacity Defendants.” Aplt. Br. at 22 n.5.

43 Id. at 1521. Addressing that question, the district court noted that “the Fourth Circuit has

not held that courts must apply Title VII standards to free-standing Fifth Amendment

claims,” and in fact “rejected a similar attempt to graft Title VII standards onto a

free-standing Fourteenth Amendment equal protection claim.” Id. at 1522 (citing Wilcox

v. Lyons, 970 F.3d 452, 460 (4th Cir. 2020)). The district court also noted that Strickland’s

“complaint [wa]s void of any allegation that women are treated differently than men under

the EDR Plan” or “that the actions taken against her were on the basis of her sex.” Id. at

1523. Instead, the district court noted, Strickland “theorizes that the Individual Capacity

Defendants discriminated against her on the basis of sex when they mishandled her sexual

harassment complaints, ultimately leading to retaliation and constructive discharge.” Id.

The district court concluded that “[t]o condone such a theory would be to graft Title VII

standards onto the Fifth Amendment, when in Wilcox the Fourth Circuit rejected such a

theory with respect to the Fourteenth Amendment.” Id. at 1523–24. The district court also

concluded that “Supreme Court precedent supports the conclusion that only theories of

traditional class-based discrimination are cognizable under the Fifth Amendment Equal

Protection Clause.” Id. at 1524 (citing Davis v. Passman, 442 U.S. 228, 230 (1979)).

As for Strickland’s claim for conspiracy to deny equal protection of the laws under

42 U.S.C. § 1985(3), the district court concluded that her complaint “fail[ed] to plead” that

defendants were motivated by a specific class-based, invidiously discriminatory animus.

Id. at 1526. Instead, the district court noted that Strickland’s theory of liability was “the

more sweeping Title VII standards regarding sexual harassment as discrimination on the

basis of sex.” Id. The district court therefore granted the Individual Capacity Defendants’

44 motion to dismiss Count III of Strickland’s complaint. And the district court in turn

concluded that “[t]he dismissal of Count III require[d] the dismissal of Count IV because

section 1986 applies only to actors who could have prevented the section 1985 injury but

failed to do so.” Id.

Final judgment was entered in the case on December 30, 2020. Id. at 1528–29.

On January 26, 2021, Strickland filed a motion to reconsider. Id. at 1530. Strickland

argued in her motion that (1) the district court “did not consider [her] claims for equitable

relief, which,” she argued, “[we]re not barred by sovereign immunity,” (2) the district court

“did not consider the fact that the EDR process is the exclusive remedy for discrimination,

which requires due process protections,” and (3) the district court “construed [her] equal

protection claims as ‘pure’ retaliation, but . . . did not consider her allegations of gender

discrimination.” Id. (emphasis in original). Strickland argued that she was “entitled to

specific relief requiring judiciary officials to comply with their legal duties under the EDR

Plan and the Constitution to provide appropriate remedies for discrimination.” Id. at 1535.

Strickland noted in support that “the premise of [her] complaint [wa]s that she was

forced to resign because of the failures of the EDR process, which deprived her of any

meaningful review of or remedies for unlawful discrimination.” Id. Strickland also

asserted that the district court “failed to consider her allegations that she was subjected to

illegal discrimination because of her gender,” including “sexual harassment,

discrimination, retaliation, fail[ure] to take immediate and effective remedial action on her

complaints, and depriv[ation] . . . of any meaningful remedies or review, resulting in her

constructive discharge.” Id. at 1546.

45 The district court summarily denied Strickland’s motion to reconsider. 8

Strickland filed a notice of appeal on March 29, 2021.

II

Before addressing the merits of Strickland’s appeal, we must first address

Strickland’s motion to vacate or disqualify. For the reasons that follow, we decline to

vacate the district court’s judgment or disqualify this panel from this case.

A. The designation and assignment process

The Chief Justice of the United States is vested by statute with the authority to

designate and assign visiting judges. 28 U.S.C. §§ 291(a), 292(d). It is undisputed that, in

practice, the Chief Justice discharges that responsibility with assistance from the Judicial

Conference’s Intercircuit Assignment Committee and AO staff.

In this case, the Chief Justice was twice called upon to designate and assign visiting

judges. The first occasion occurred after Strickland filed her complaint in the district court

and all of the judges in the United States District Court for the Western District of North

Carolina recused themselves. The second occasion occurred after Strickland filed her

appeal and all of the judges in the Fourth Circuit recused themselves.

In both instances, the same procedures were employed. To begin with, the Fourth

Circuit Clerk of Court contacted the AO’s Judicial Services Office and asked for (a) a

visiting judge to be designated and assigned to preside over the district court proceedings,

8 The joint appendix does not appear to include a copy of the district court’s order denying Strickland’s motion to reconsider. It is undisputed, however, that the district court summarily denied the motion. Aplt. Br. at 24.

46 and (b) a panel of visiting judges to be designated and assigned to preside over Strickland’s

appeal. In response, a senior attorney in the AO’s Judicial Services Office “consulted [a]

roster of judges who indicated a willingness to serve in recusal cases outside of their

circuits.” ECF 124, Ex. A at 1. In doing so, the senior attorney focused solely on the

“availability and willingness to serve” of the judges listed on the roster. Id. at 2. After

identifying potential judges from the roster, the senior attorney contacted those judges to

obtain “their consent to serve.” Id. The senior attorney then notified the Chair of the

Committee on Intercircuit Assignments and the Fourth Circuit Clerk of Court of the

identified judges’ names “so that the Clerk’s assistant could complete the certificates of

necessity and obtain the circuit chief judge’s signature for the certificates.” Id. In

executing these procedures, the senior attorney “had no discussions with any of the named

defendants about this case.” Id.

In the district court proceedings, the parties were notified of the Chief Justice’s

designation and assignment of a visiting district court judge on April 17, 2020. JA, Vol. I

at 122. None of the parties objected to that designation and assignment.

In these appellate proceedings, the Fourth Circuit Clerk of Court notified the parties

on April 8, 2021, “that the judges of the court ha[d] recused themselves from consideration

of this appeal,” and that, consequently, “the appeal w[ould] be assigned to judges

designated in accordance with 28 U.S.C. §§ 291(a), 292(d), and 294(d).” ECF 8 at 1. The

designation and assignment orders were subsequently issued on May 7, 2021, but were not

publicly disclosed at that time.

47 B. Strickland’s motion to vacate or disqualify

On October 29, 2021, Strickland filed a motion to disclose all designation and

assignment orders for this appeal. ECF 78. The court granted that motion on November

1, 2021, and disclosed to the parties the designation and assignment orders for each panel

member.

On January 18, 2022, Strickland filed a motion to disclose public records from the

intercircuit assignment process in this case, including both the district court and appellate

assignments. ECF 101. In her motion, Strickland argued that “[t]he intercircuit assignment

procedures that would be followed in the ordinary case raise serious fairness concerns in

the context of this case” because the defendants in the case “include[d] parties who would

typically participate in the intercircuit assignment process to select judges to sit on a

particular case.” Id. She in turn argued that “[t]he ordinary procedures for intercircuit

assignment raise an unfortunate appearance that parties to this suit, who have a clear

interest in its outcome, were able to participate in the selection of particular judges to decide

their own case.” Id. at 1–2. Strickland argued that, “[t]o dispel the appearance of

unfairness,” the court should disclose “all intercircuit-assignment records for this case, both

in the district court and on appeal.” Id. at 2. Strickland emphasized, however, that she was

“not question[ing] the impartiality of the panel assigned to hear this appeal.” Id. at 15.

Defendants filed a response to Strickland’s motion to disclose, asserting that “there

are no public records concerning the intercircuit assignment process, and the underlying

communications and forms, like all working papers of the Judicial Conference, are

ordinarily not subject to disclosure.” ECF 108 at 2. Nonetheless, defendants “ma[de] a

48 discretionary disclosure of several documents, including the recommendation

memorandum to the Chief Justice, the certificates of necessity, and the cover letters

accompanying the designations and assignment orders” for this appellate panel. Id.

Defendants outlined how the intercircuit assignment process played out in this appeal,

noting generally the steps taken by the AO staff attorney in making the selections and also

noting that “[t]he Director of the AO—Judge Roslynn Mauskopf—recused herself from

participating in the assignment process” and that “Lee Ann Bennett, the Deputy Director

of the AO, . . . signed the memorandum recommending that the Chief Justice approve the

proposed assignments in this case.” Id. at 4–5. Defendants further noted that the AO staff

attorney “was neither directed by nor influenced by any of the named defendants” in

carrying out the selection process. Id. at 5. Defendants conceded that defendant “Gregory

transmitted the certificates of necessity to the Judicial Conference after the Committee had

made the selection, and [defendant] Ishida received notice of the assignments once they

were approved by the Chief Justice,” and “thereby learned the identity of the judges on the

panel” prior to the other parties and counsel in this matter. Id. Defendants also noted that,

“[w]hile some courts—including the district court in this case—enter [the designation and

assignment] orders on the docket in a specific case, other courts—including the Fourth

Circuit—maintain the orders in their internal records and ordinarily do not enter them on

the docket of a case.” Id. at 4. Ultimately, defendants argued that Strickland’s “fairness

concerns [we]re misplaced” and noted her “conce[ssion] that th[e] [assigned] panel w[ould]

review her appeal fairly and impartially.” Id. at 6. Relatedly, defendants argued that “the

Constitution does not require that all support staff and every member of the entire Judicial

49 Conference should have recused themselves from the intercircuit assignment process,” and

they argued that the participation of the AO staff attorney and the Deputy Director of the

AO “d[id] not create the appearance of impropriety or conflict of interest.” Id. at 7

(quotation marks omitted).

Strickland filed a reply brief, arguing that defendants’ “limited disclosures . . .

reveal[ed] that [defendants] did participate in selecting judges to hear their own case” and

that “[t]his [wa]s a blatant conflict of interest.” ECF 111 at 1. Strickland in turn argued

that this, combined with the fact that defendants “knew the identity of the panel while [she]

did not,” “undermine[d] the integrity of this proceeding and taint[ed] any judgment that

was entered or could be entered in this case.” Id. at 2. “At a minimum,” Strickland argued,

“the judgment below should be vacated, and the case assigned to a judge on remand,

selected by officials who serve entities that are not defendants in this suit.” Id. at 10.

On February 4, 2022, Strickland filed a motion to vacate the district court’s

judgment or to disqualify the appellate panel. Strickland argued “that the district court

judgment must be vacated based on the fact that the district court judge was selected by

Defendants—regardless of who the judge was or whether he was actually biased.” ECF

117 at 1. Strickland further argued that, “[t]hrough no fault of this panel, the same conflict

of interest that tainted the district court’s judgment also affects this appellate panel” and

that, consequently, “this Court could alternatively conclude that the panel should be

disqualified and another panel be appointed to order vacatur of the district court’s

decision.” Id. at 2.

50 The panel in this case ordered respondents to file a written response to Strickland’s

motion to vacate or disqualify and to attach thereto “a Declaration from the ‘staffer’ (or

‘staffers’) detailing how he/she went about selecting both the district court judge in this

case, as well as the current appellate panel.” ECF 119 at 2.

Defendants filed their response to Strickland’s motion to vacate or disqualify on

February 17, 2022. Attached to their response was a declaration from the AO senior

attorney who was involved in the designation and assignment process for both the district

court and appellate proceedings in this case. That attorney noted that her duties include

assisting the Committee on Intercircuit Assignments “in maintaining a roster of judges who

have indicated a willingness to serve in recusal cases outside of their circuits.” ECF 124,

Ex. A at 1. The attorney in turn noted that, “[i]n finding judges for this district court case

and appeal,” she “consulted the roster of judges who indicated a willingness to serve in

recusal cases outside of their circuits, as [she] ha[s] previously done in every case in which

one or more judges have recused themselves.” Id. She further noted that her “identification

of judges who could be designated . . . was in no way affected by the nature of the claims,

the factual allegations, the legal issues likely to be presented in the case, or the impact the

case may have on Judiciary policies.” Id. at 1–2. Instead, she noted that she “identified

the judges based on [her] understanding of their availability and willingness to serve for

the duration of the district court and appellate proceedings.” Id. at 2.

C. Analysis

Strickland makes two alternative requests in her motion to vacate or disqualify.

First, Strickland seeks vacatur of the district court’s judgment based upon what she alleges

51 was a violation of her due process rights. Second, and alternatively, Strickland seeks

disqualification of the panel in this case pursuant to 28 U.S.C. § 455 based upon what she

states is “the appearance of partiality and the harm to the public perception.” ECF 117 at

20 (emphasis in original). For the reasons outlined below, we deny both requests.

1) Vacatur of the district court’s judgment

In seeking vacatur of the district court’s judgment, Strickland asserts that “the

participation by officials in the AO and the Judicial Conference in selecting the” district

judge and this appellate panel “violated [her] due process rights, regardless of whether

those officials were actually biased in selecting judges, and regardless of whether the

judges they selected are actually biased.” ECF 117 at 18. Strickland has not, however,

pointed to any authority suggesting that a party in a civil proceeding has a due process right

to have a district judge or appellate panel assigned in a particular manner. And we are not,

in any event, persuaded that the involvement of AO and Judicial Conference officials in

the designation and assignment process resulted in the deprivation of Strickland’s due

process right to a fair tribunal, either in the district court or in this appeal.

It is well established that “[a] fair trial in a fair tribunal is a basic requirement of due

process.” In re Murchison, 349 U.S. 133, 136 (1955). “Fairness,” the Supreme Court has

held, “requires [both] an absence of actual bias in the trial of cases” and an effort to

“prevent even the probability of unfairness.” Id. That said, the Supreme Court has also

emphasized that “‘most matters relating to judicial disqualification [do] not rise to a

constitutional level.’” Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876 (2009)

(quoting FTC v. Cement Inst., 333 U.S. 683, 702 (1948)).

52 In addressing whether a party has been deprived of their due process right to a fair

tribunal, “the Court asks not whether the judge is actually, subjectively biased, but whether

the average judge in his position is likely to be neutral, or whether there is an

unconstitutional potential for bias.” Id. at 881 (quotation marks omitted). In other words,

are the circumstances such that “experience teaches that the probability of actual bias on

the part of the judge . . . is too high to be constitutionally tolerable.” Id. at 877 (quoting

Withrow v. Larkin, 421 U.S. 35, 47 (1975)).

The few cases that Strickland cites in support of her due process claim are

inapposite. For example, at issue in Murchison was the propriety of a Michigan state

contempt proceeding where the same judge who presided “at the contempt hearing had also

served as the ‘one-man grand jury’ out of which the contempt charges arose.” 349 U.S. at

134. And in Caperton, the question presented was whether a due process violation

occurred when a justice on the Supreme Court of Appeals of West Virginia voted with the

majority to “den[y] a recusal motion” and “[t]he basis for the motion was that the justice

had received campaign contributions in an extraordinary amount from, and through the

efforts of, the board chairman and principal officer of the corporation found liable for the

damages.” 556 U.S. at 872.

Thus, in the end, Strickland’s motion presents the novel question of whether the

involvement of AO and Judicial Conference officials in the designation and assignment

process in this case—where the AO and Judicial Conference have, as entities, been named

as defendants—gives rise to a probability of actual bias on the part of the designated and

assigned judges that is too high to be constitutionally tolerable. Notably, Strickland does

53 not offer any explanation of precisely how these circumstances have “created a

constitutionally intolerable probability of actual bias.” Id. at 882. Indeed, she suggests in

her motion that it is immaterial “whether the judges . . . selected are actually biased,” and

that, instead, the mere appearance of impropriety is sufficient to give rise to a due process

violation. ECF 117 at 18. But those arguments are belied by Supreme Court precedent

which, as we have discussed, requires an objective probability of actual bias.

In any event, we are not persuaded that the circumstances at issue here are so

“extreme” or “extraordinary” as to give rise to an objective probability of actual bias. Id.

at 887. Unlike in the handful of cases where the Supreme Court has found an objective

probability of actual bias, there are no financial interests of any involved judge at issue

here, nor have any of the designated and assigned judges had any prior involvement in, or

connection with, this matter. We further note that, to the extent the AO staff attorney

exercised any discretion in selecting the district judge or the panel members and submitting

their names for designation and assignment, that discretion appears to have been confined

solely to matters of availability and willingness to serve as visiting judges.

To be sure, Strickland speculates that the AO staff attorney might have exercised

her discretion to select judges who were more favorable to the defendants’ positions in this

case. But Strickland does not identify any factors that would objectively support such a

conclusion, such as, for example, the staff attorney selecting a judge who had a prior

relationship with one or more of the defendants. And, even assuming for purposes of

argument that the AO staff attorney had attempted to utilize such factors in the selection

process, the only way that could have been successful would have been if the designated

54 and assigned visiting judges also acted improperly and ignored their own responsibilities

under 28 U.S.C. § 455(b) and the Code of Conduct for United States Judges to recuse based

on those same factors. See 28 U.S.C. § 455(b) (requiring a judge to “disqualify himself . .

. [w]here he has a personal bias or prejudice concerning a party”). In other words, in

addition to being designated and assigned by the Chief Justice, the district judge and the

panel members in this case each had an independent duty and responsibility to satisfy

themselves that they were not required to recuse before they agreed to serve in this case.

As a result, we are simply not persuaded that the circumstances presented here, viewed

objectively, give rise to a probability of actual bias.

For all of these reasons, we reject Strickland’s due process arguments and decline

to vacate the judgment of the district court.

2) Disqualification of the panel

Strickland’s motion also seeks the disqualification of the panel in this case as an

alternative to vacating the district court’s judgment. In support of that alternative request,

Strickland cites to 28 U.S.C. § 455.

Section 455 “sets forth the legal criteria for disqualification of federal magistrates,

judges, and Supreme Court Justices.” Microsoft Corp. v. United States, 530 U.S. 1301,

1301 (2000) (Rehnquist, Chief Justice, writing separately). “This statute is divided into

two subsections.” Id. “Section 455(b) lists specific instances in which disqualification is

required,” id., including, for example, where a judge “has a personal bias or prejudice

concerning a party, or personal knowledge of disputed evidentiary facts concerning the

proceeding,” 28 U.S.C. § 455(b). As we have noted, each of the designated and assigned

55 judges in this matter would have, before accepting the assignments, considered the specific

instances outlined in § 455(b) and concluded that their disqualification was not required.

And, we note, Strickland does not invoke § 455(b) in her motion.

“Section 455(a) contains the more general declaration that a [judge] ‘shall disqualify

himself in any proceeding in which his impartiality might reasonably be questioned.’”

Microsoft, 530 U.S. at 1302 (quoting 28 U.S.C. § 455(a)). “[W]hat matters under §

455(a),” the Supreme Court has held, “‘is not the reality of bias or prejudice but its

appearance.’” Id. (quoting Liteky v. United States, 510 U.S. 540, 548 (1994)). “This

inquiry is an objective one, made from the perspective of a reasonable observer who is

informed of all the surrounding facts and circumstances.” Id.

In arguing that the panel’s impartiality might reasonably be questioned, Strickland

again points generally to the involvement of AO and Judicial Conference officials in the

selection process. ECF 117 at 20. She also points to what she calls an “information

asymmetry” that resulted from the Fourth Circuit’s Chief Judge and its Circuit Executive

learning the panel’s identity approximately six months before Strickland, the attorneys in

this case, and the public. Id.

Although we agree with Strickland that, from a public perception standpoint, it

would have been preferable had no AO or Judicial Conference officials participated in the

designation and assignment process, and that none of the defendants received notice of the

panel’s identity prior to the remaining parties, the attorneys, and the public, we nevertheless

are not persuaded that these circumstances require our disqualification under § 455(a). In

our view, “a reasonable observer who is informed of all the surrounding facts and

56 circumstances” would not reasonably question our impartiality. See Microsoft, 530 U.S.

at 1302. Key in that regard, we believe, is the fact that there is no evidence that the AO

staff attorney considered anything other than availability and willingness to serve in

selecting which judges to designate and assign to serve in this appeal, and the fact that each

panel member in this case, upon receiving notification of and before agreeing to the

designation and assignment, was obligated to and actually considered whether there were

any factors that required his or her disqualification under § 455(b). As for the fact that the

Chief Judge and the Circuit Executive received early notice of the panel’s identity, we fail

to see how that has any impact on our analysis under § 455(a). It is undisputed that neither

the Chief Judge nor the Circuit Executive informed their counsel in this matter about the

panel’s identity, and there is no evidence that these two defendants’ early notice had any

impact whatsoever on the manner in which this appeal was litigated.

For these reasons, we deny Strickland’s alternative request for disqualification of

the panel.

III

We now turn to the substance of Strickland’s appeal. Strickland essentially

challenges the entirety of the district court’s decision dismissing her complaint. We

therefore proceed by analyzing each of the claims for relief asserted by Strickland in her

complaint and determining whether Strickland has stated valid claims for relief against the

defendants. We also, after analyzing the substance of each of the claims, consider the

various defenses that the defendants have asserted to the claims, including whether

Strickland can assert Bivens claims against the Individual Capacity Defendants, and

57 whether the Official Capacity Defendants are entitled to sovereign immunity from

Strickland’s Fifth Amendment claims.

As we shall explain in greater detail below, we conclude that: (a) Strickland’s Fifth

Amendment due process claim adequately alleges the deprivation of cognizable property

rights, but fails to adequately allege the deprivation of a cognizable liberty interest; (b)

Strickland’s Fifth Amendment due process claim fails to adequately allege a facial

challenge to the EDR Plan, but adequately alleges an as-applied challenge to the EDR Plan;

(c) Strickland’s Fifth Amendment equal protection claim adequately alleges that

defendants violated her right to be free from sex discrimination; (d) Strickland’s claims

under 42 U.S.C. §§ 1985(3) and 1986 fail to adequately allege claims upon which relief

can be granted; (e) the Official Capacity Defendants are entitled to sovereign immunity

from the Fifth Amendment due process and equal protection claims only to the extent those

claims seek back pay; in other words, Strickland’s potential recovery on those claims

against the Official Capacity Defendants is limited to prospective equitable relief; (f) with

respect to the Individual Capacity Defendants, Strickland’s Fifth Amendment equal

protection claim is subject to dismissal because Strickland cannot state a cause of action

under Bivens; (g) neither the Administrative Procedure Act nor the Back Pay Act waive

sovereign immunity for Strickland’s claims for back pay against the Official Capacity

Defendants; and (h) the Civil Service Reform Act does not bar Strickland’s claims.

A. Standards of review

“This Court reviews a district court’s dismissal under Federal Rule of Civil

Procedure 12(b)(6) de novo.” Skyline Restoration, Inc. v. Church Mut. Ins. Co., 20 F.4th

58 825, 829 (4th Cir. 2021). “The Court must ‘accept as true all of the factual allegations

contained in the complaint and draw all reasonable inferences in favor of the plaintiff.’”

Id. (quoting King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016)). “To survive a motion

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a

claim that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[O]nly

a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679.

In other words, “[w]hen there are well-pleaded factual allegations, a court should assume

their veracity and then determine whether they plausibly give rise to an entitlement to

relief.” Id.

B. The Fifth Amendment due process claim

Strickland argues on appeal that the district court erred in dismissing the first claim

for relief in her complaint, which alleged a violation of her Fifth Amendment due process

rights. As we have noted, the district court dismissed this claim on the grounds that

Strickland failed to allege a protected property or liberty interest. Strickland argues in her

appeal that she “stated a claim that federal officials deprived her of protected property and

liberty interests without due process by subjecting her to a fundamentally unfair process

for resolving workplace discrimination claims.” Aplt. Br. at 1. Strickland further argues

that her “property interest was created and defined by the EDR Plan.” Id. at 53. More

specifically, she alleges that “[t]he EDR Plan granted [her] the right to be free from

workplace discrimination, harassment, and retaliation,” the right “to equal opportunities

for promotions,” and the right “to promotion according to [her] experience, training, and

demonstrated ability and without regard to sex.” Id. (internal quotation marks omitted).

59 Strickland argues that she also “had a liberty interest in pursuing her chosen career.” Id. at

57.

To adequately allege a Fifth Amendment procedural due process claim, Strickland

must allege that she (1) lost “something that fits into one of the three protected categories:

life, liberty, or property,” and (2) did not “receive the minimum measure of procedural

protection warranted under the circumstances.” Mallette v. Arlington Cnty. Emps.

Supplemental Ret. Sys. II, 91 F.3d 630, 634 (4th Cir. 1996). The district court, in granting

defendants’ motion to dismiss, focused exclusively on the first prong of this test and

concluded that Strickland “fail[ed] to allege that the Individual Capacity Defendants

deprived her of a constitutionally protected interest.” JA, Vol. IV at 1514.

For the reasons discussed below, we conclude that the district court erred in failing

to recognize that the Fourth Circuit’s EDR Plan afforded Strickland protected property

interests, but did not err in concluding that Strickland failed to adequately allege a protected

liberty interest. We also proceed to consider the second prong of the test and, in doing so,

conclude that Strickland’s facial challenge to the EDR Plan fails, but that her as-applied

challenge is sufficient to state a claim upon which relief can be granted.

1) Did Strickland adequately allege a protected property interest?

The Supreme Court has identified “[c]ertain attributes of ‘property’ interests

protected by procedural due process.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,

577 (1972). “To have a property interest in a benefit, a person clearly must have more than

an abstract need or desire for it.” Id. “He must have more than a unilateral expectation of

it.” Id. “He must, instead, have a legitimate claim of entitlement to it.” Id. Importantly,

60 “[p]roperty interests . . . are not created by the Constitution,” but rather “are created and

their dimensions are defined by existing rules or understandings that stem from an

independent source such as state law rules or understandings that secure certain benefits

and that support claims of entitlement to those benefits.” Id. A “person’s interest in a

benefit is a ‘property’ interest for due process purposes if there are . . . rules or mutually

explicit understandings that support his claim of entitlement to the benefit and that he may

invoke at a hearing.” Perry v. Sindermann, 408 U.S. 593, 601 (1972). “[T]he types of

interests protected as ‘property’ are varied and, as often as not, intangible, relating to the

whole domain of social and economic fact.” Logan v. Zimmerman Brush Co., 455 U.S.

422, 430 (1982) (internal quotation marks omitted).

Here, Strickland alleges that she has protected property interests that were created

and defined by the EDR Plan. According to Strickland, the EDR Plan granted her “the

right to be free from workplace discrimination, harassment, and retaliation,” the right to

“equal opportunities for promotions,” and the right “to promotion ‘according to [her]

experience, training, and demonstrated ability’ and ‘without regard to’ sex.” Aplt. Br. at

53 (quoting EDR Plan provisions). Strickland also argues that, “[c]ontrary to the District

Court’s reasoning, an employee need not claim an interest in ‘continued employment’ to

allege a protected property interest.” Id. at 55 (citation omitted).

A review of the EDR Plan clearly supports Strickland’s arguments. To begin with,

the EDR Plan repeatedly refers to “rights enumerated under the Plan.” Aplt. App., Vol. II

at 661. For example, § 1 (“Preamble”) of Chapter 1 (“GENERAL PROVISIONS”) states,

in pertinent part: “This Plan . . . is intended to be the exclusive remedy of the employee

61 relating to the rights enumerated under the Plan.” Id. (emphasis added). In turn, Chapter

II of the EDR Plan, titled “EQUAL EMPLOYMENT OPPORTUNITY AND

ANTI-DISCRIMINATION RIGHTS,” purports to outline the rights that the EDR Plan

affords to employees falling within the scope of the Plan’s coverage (which includes, as

relevant here, “[t]he unit executive and staff of the . . . Federal Public Defenders within the

Fourth Circuit”). Id. at 661, 662. Section 1 of Chapter II, titled “General,” states:

Discrimination against employees based on race, color, religion, sex (including pregnancy and sexual harassment), national origin, age (at least 40 years of age at the time of the alleged discrimination), and disability is prohibited. Harassment against an employee based upon any of these protected categories or retaliation for engaging in any protected activity is prohibited. All of the above constitute “wrongful conduct.” The rights and protections of Sections I through VII of the Plan shall also apply to employees.

Id. at 662. Section 4 of Chapter II, titled “Personnel Practices,” in turn provides:

A. Recruitment

Each Court unit will seek qualified applicants who reflect the make-up of all such persons in the relevant labor market. Each unit will publicize all vacancies.

B. Hiring

Each Court unit will make its hiring decisions strictly upon an evaluation of a person’s qualifications and ability to perform the duties of the position satisfactorily. Hiring decisions shall be made without regard to race, color, religion, sex, national origin, age, or disability.

C. Promotion

Each Court unit will promote employees according to their experience, training, and demonstrated ability to perform duties of a higher level. Promotion decisions shall be made without regard to race, color, religion, sex, national origin, age, or disability.

62 D. Advancement

Each Court unit will seek insofar as reasonably practicable to improve the skills and abilities of its employees through cross-training, job restructuring, assignments, details, and outside training.

Id. at 662–63.

Chapter X of the EDR Plan is titled “DISPUTE RESOLUTION PROCEDURES.”

Id. at 664. Section 1 thereof outlines the “General Procedure for Consideration of Alleged

Violations,” and begins by stating: “An employee who claims a denial of the rights granted

under Chapters II through VIII of this Plan shall seek resolution of such claims through

the procedures of this Chapter.” Id. (emphasis added). Section 5 of Chapter X affords

“[c]laimants under th[e] Plan . . . the right to be free from retaliation because of filing a

claim pursuant to th[e] Plan.” Id. at 665. Section 12 of Chapter X, titled “Remedies,”

states, in pertinent part, that “[w]here judicial officers acting pursuant to § 10 or § 11 of

this Plan find that a substantive right protected by this Plan has been violated, they may

order a necessary and appropriate remedy.” Id. at 669.

The plain language of these provisions, in our view, indicates that the Fourth Circuit

intended for the EDR Plan to afford its employees (including employees of each of the

Fourth Circuit units listed in the Plan, which encompasses all of the federal defenders’

offices) both substantive and procedural rights. As noted, the Plan (a) repeatedly and

expressly refers to “rights” that are being afforded by the Plan to employees,

(b) specifically outlines what those rights are, and (c) outlines a detailed set of procedures

for employees to follow if they believe that any of the substantive rights afforded to them

under the Plan have been violated. It is important to note that the Plan does not afford

63 employees a substantive right to continued employment. Instead, the Plan effectively

affords employees with the substantive right to work under conditions free from

discrimination and harassment, as well as the substantive right to be free from retaliation

in the event that they file a claim under the EDR Plan. 9 The Plan also creates a clear and

specific set of procedures that are to be followed in the event that an employee claims that

his or her substantive rights afforded under the EDR Plan have been violated.

Notably, the district court did not consider any of these provisions of the EDR Plan

or the Fourth Circuit’s purpose in implementing the EDR Plan in “conclud[ing] that

Strickland fail[ed] to allege that the Individual Capacity Defendants deprived her of a

protected property interest.” Id., Vol. IV at 1519. Instead, the district court simply

considered and distinguished a Supreme Court case (Vitarelli v. Seaton, 359 U.S. 535

(1959)), and two circuit cases (Johnson v. Mishler, 526 F.2d 364 (2d Cir. 1975), and Paige

v. Harris, 584 F.2d 178 (7th Cir. 1978)), that Strickland cited in her opposition to the

Official Capacity Defendants’ motion to dismiss. Id. at 1517–19. Whether or not the cases

that Strickland cited were on point, the fact remains that the district court overlooked the

language of the EDR Plan in concluding that the EDR Plan did not afford Strickland with

any substantive property rights.

The district court also stated, as part of its analysis, that “ ‘[p]roperty cannot be

defined by the procedures provided for its deprivation any more than can life or liberty.’”

9 This conclusion is bolstered by the fact that the EDR Plan was implemented by the Fourth Circuit because federal judiciary employees have no remedies under the Civil Service Reform Act and are not covered by Title VII of the Civil Rights Act.

64 Id. at 1519 (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)).

Although this principle is of course true, it has no applicability here because, as we have

discussed, the EDR Plan expressly afforded employees with both substantive and

procedural rights. In other words, Strickland is not, as the district court’s analysis suggests,

asking the courts to find a substantive property right based simply on a set of procedural

rules. Instead, Strickland is asserting substantive rights to be free from workplace

discrimination and, in turn, to be protected by the procedures outlined in the EDR Plan,

which is the right to a remedy for injuries from workplace discrimination.

In cases involving alternative judicial forums, the Supreme Court and other circuits

have recognized similar substantive rights. In Logan v. Zimmerman Brush Co., 455 U.S.

422 (1982), for example, the plaintiff, Logan, was a participant in an administrative process

established in Illinois that required litigants to bring their discrimination claims before the

state Fair Employment Practices Commission. Although Logan filed a timely complaint

with the Commission, the Illinois courts determined that the Commission’s failure to hold

an initial conference within the period mandated by statute deprived the Commission of

jurisdiction over Logan’s claims, causing the complaint to be dismissed. Id. at 424–27.

The Supreme Court held that the dismissal of Logan’s complaint violated Logan’s

due process right to use the statutorily mandated procedures for adjudicating his

discrimination claim. Logan had a protectable property interest in his

handicap-discrimination claim, the Court held, and the dismissal of that claim as a result

of the Commission’s procedural error frustrated Logan’s due process right “to have the

65 Commission consider the merits of his charge . . . before deciding whether to terminate his

claim.” Id. at 434.

In a post-Logan case, the Seventh Circuit explained that

the reason that there is a right of access to adjudicatory procedures is not because litigants have property interests in the procedures themselves. Rather, access to adjudicatory procedures is important because it serves to protect the litigants’ underlying legal claims, which are the true property interests. . . . In short, the property interest in Logan was the underlying discrimination claim; the adjudicatory process constituted the process that was due in connection with the deprivation of that property interest.

Shvartsman v. Apfel, 138 F.3d 1196, 1199 (7th Cir. 1998); see also Howard v. Defrates,

811 F. App’x 376, 378 (7th Cir. 2020) (holding that “[t]he state-established right to pursue

a discrimination claim through adjudicatory procedures can be a property interest, the

deprivation of which implicates the Due Process Clause.”).

Similarly, the Second Circuit has held that when “a state gives additional or

alternative procedural forums for a cause of action, there is no constitutionally protected

property interest in the forum itself,” but rather “the cause of action itself constitutes a

cognizable property interest.” Rosu v. City of New York, 742 F.3d 523, 526 (2d Cir. 2014);

see also N.Y. State Nat. Org. for Women, 261 F.3d 156, 164 (2d Cir. 2001) (concluding, in

class action suit brought on behalf of all persons who had filed or would file complaints of

discrimination with the New York State Division of Human Rights and whose complaints

were not or would not be timely resolved, that “the only substantive expectation that

warrants constitutional recognition is the entitlement under New York law to remedy

injuries resulting from discrimination”).

66 Such is the case here. The EDR Plan provides Strickland, in part, a right to redress

injuries caused by workplace discrimination, a right that is functionally equivalent to a

cause of action and one that is vitally important considering the lack of alternative means

of seeking relief for employees of the federal judiciary. “A claimant has more than an

abstract desire or interest in redressing his grievance: his right to redress is guaranteed by

the [judiciary].” Logan, 455 U.S. at 431.

Seizing on language in the EDR Plan stating that the Plan itself is the exclusive

remedy for enforcing the rights granted by the Plan, defendants summarily argue in their

appellate response brief that “[t]he EDR Plan delineates the bounds of any rights it creates,”

and that “such rights do not exist independent of the Plan’s procedures.” Aple. Br. at 27.

Defendants fail, however, to cite to a single case in support of this proposition.

In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the Supreme

Court considered and rejected a similar argument. The plaintiffs, one a security guard for

a school district and the other a bus mechanic for a different school district, were both

considered “classified civil servants” under Ohio state law. Both plaintiffs were fired for

alleged cause. After pursuing administrative remedies with Ohio’s Civil Service

Commission, both plaintiffs filed suit in federal court challenging the constitutionality of

the dismissal procedures under Ohio state law. More specifically, both plaintiffs alleged

that the Ohio statute that provided for administrative review of a dismissal was

unconstitutional on its face because it failed to afford them an opportunity to respond to

the charges against them prior to their removal.

67 In addressing these claims, the Supreme Court concluded that “[t]he Ohio statute

plainly create[d]” a “property right” on the part of the plaintiffs. Id. at 538. Although one

of the school district defendants argued “that th[is] property right [wa]s defined by, and

conditioned on, the legislature’s choice of procedures for its deprivation,” the Supreme

Court rejected that argument. Id. at 539. Characterizing the defendant’s argument as “the

‘bitter with the sweet’ approach,” the Court held that this “approach misconceives the

constitutional guarantee.” Id. at 541. The Court explained “that minimum procedural

requirements are a matter of federal law” and “are not diminished by the fact that the State

may have specified its own procedures that it may deem adequate for determining the

preconditions to adverse official action.” Id. (internal quotation marks and brackets

omitted). “While the legislature may elect not to confer a property interest . . . , it may not

constitutionally authorize the deprivation of such an interest, once conferred, without

appropriate procedural safeguards.” Id.

Applying that rule here, the defendants incorrectly suggest that they alone, by way

of the procedures outlined in the EDR Plan, may decide what is required to vindicate the

substantive rights that they conferred on Strickland under the express terms of the EDR

Plan. Defendants could of course have chosen not to provide a right to combat the

harassment of federal judiciary employees. But once they did so by adopting the EDR

Plan, “the floor for the procedures due is set by the federal Constitution.” Stephany v.

Wagner, 835 F.2d 497, 500 (3d Cir. 1987). We therefore reject defendants’ “bitter with

the sweet” argument.

68 In sum, we conclude that the EDR Plan afforded Strickland with substantive rights

that are protected property interests under the Fifth Amendment.

2) Did Strickland have a protected liberty interest in pursuing her chosen career?

Strickland also argues that she had a liberty interest in pursuing her chosen career.

According to Strickland, “[d]ue process prohibits the government from discharging an

employee in a manner that unfairly imposes a ‘stigma’ that ‘foreclose[s] [an employee’s]

freedom to take advantage of other employment opportunities.’” Aplt. Br. at 57 (quoting

Roth, 408 U.S. at 573)). She in turn alleges that “[d]efendants ‘placed a stigma’ on [her]

reputation that they then ‘made public.’” Id. at 58 (quoting Sciolino v. City of Newport

News, 480 F.3d 642, 646 (4th Cir. 2007)). More specifically, Strickland alleges that

“[d]efendants spread false rumors that [she] fabricated claims of sexual harassment,”

“bolstered the false rumors by visibly diminishing [her] job duties, announcing in a

humiliating office email that she would report to a research and writing attorney, which

looked like a demotion, and den[ied] her an earned promotion.” Id. She argues that

“[d]efendants’ stigmatizing of [her] occurred in the course of her constructive discharge,

and thus was accompanied by a change in her legal status as an employee.” Id.

Defendants argue in response, in pertinent part, that Strickland did not assert these

arguments in the district court. A review of the joint appendix confirms that defendants

are correct. In responding to defendants’ motions to dismiss for failure to state a claim,

Strickland argued only that she “had a liberty interest in being free from unlawful

discrimination.” JA, Vol. I at 398; see JA, Vol. II at 499 (same); JA, Vol. IV at 1298 (“she

had a liberty interest in being free from sex discrimination”). At no point did Strickland

69 argue in her district court pleadings that she had a liberty interest in pursuing her chosen

career. Nor did Strickland cite to the Supreme Court’s decision in Roth.

In her appellate reply brief, Strickland does not seriously dispute that she failed to

raise the issue in the district court. Instead, she makes two alternative arguments. First,

she asserts that the EDR investigation report contained a “damaging statement that [she]

‘exploited’ her supervisors to obtain a transfer,” and that this statement “was not disclosed

to her until Defendants’ summary judgment filings.” Aplt. Reply Br. at 10. She argues

that “[t]he report’s false charge matches the rumors about [her]” that were previously

spread by her colleagues, and that this “strongly suggests that the report’s findings were

shared in violation of confidentiality.” Id. This argument does not, however, explain why

she failed to argue below (at least in her reply brief in support of her motion for summary

judgment) that she had a liberty interest in pursuing her chosen career. Second, Strickland

argues that “[t]here is no dispute that [she] brought a due process claim” and that, “[o]nce

a federal claim is properly presented, a party can make any argument in support of that

claim” and that “parties are not limited to the precise arguments they made below.” Id. at

11 (quotation marks omitted). Strickland, however, fails to appreciate the fact that she

never argued below that her Fifth Amendment procedural due process claim included a

claim that defendants deprived her of a liberty interest in pursuing her chosen career. In

other words, at no point during the district court proceedings did she properly present a

claim that she had a liberty interest in pursuing her chosen career and that defendants

deprived her of that right without due process.

70 This court “ha[s] repeatedly held that issues raised for the first time on appeal

generally will not be considered,” and that “[e]xceptions to this rule exist only in very

limited circumstances, such as where refusal to consider the newly-raised issue would be

plain error or would result in a fundamental miscarriage of justice.” Kadel v. N.C. State

Health Plan for Teachers and State Emps., 12 F.4th 422, 430 (4th Cir. 2021) (internal

quotation marks omitted). As we shall proceed to explain, Strickland has not established

plain error or a fundamental miscarriage of justice.

“The Supreme Court has acknowledged a constitutional liberty interest in one’s

reputation.” Elhady v. Kable, 993 F.3d 208, 225 (4th Cir. 2021) (citing Kerry v. Din, 576

U.S. 86, 91–92 (2015)). “But recognizing the potentially boundless nature of this right,

the court has established doctrinal limits to narrow the category of cases claiming

reputational injury.” Id. A plaintiff claiming reputational injury “must show [(1)] a

statement ‘stigmatizing his good name’ and damaging his standing in the community;

(2) some type of dissemination or publication of the statement; and (3) some other

government action that ‘alter[s] or extinguishe[s] one of his legal rights.” Id. (quoting Paul

v. Davis, 424 U.S. 693, 706–711 (1976)). This court and other “[l]ower courts call this a

‘stigma-plus’ showing.” Id. at 226.

Here, Strickland’s allegations fail to satisfy even the publication requirement. She

alleges in her complaint that “she had difficulty finding another job because, when asked,

she did not feel comfortable providing references from the FDO” and “that everyone in her

office knew that she filed a complaint, and that the rumor was that she ‘lost.’” JA, Vol. I

at 96. Strickland also alleges in her complaint that she “learned that her Team Leader was

71 spreading rumors that she ‘made up’ being sexually harassed so that she could work in a

different duty station.” Id. at 99. In her appellate brief, Strickland now asserts that “[t]he

malicious gossip spread beyond office walls, impugning [her] character and tainting her

reputation.” Aplt. Br. at 58. The only portion of Strickland’s complaint that arguably

supports this assertion is the allegation that Strickland “was asked about her EDR case by

a former employee, who told her he found out about it because ‘people talk.’” JA, Vol. I

at 74.

Strickland makes but one mention of any possible disclosure to prospective

employers, alleging that when she spoke to the Federal Public Defender in the adjacent

North Carolina district, “that Defender was openly hostile towards her and demanded to

know why she left her former office.” Id. at 98. Strickland speculates in her appellate brief

that this other Federal Public Defender “heard false rumors about [her] integrity and

departure from the Federal Defender’s Office.” Aplt. Br. at 59. None of this, however,

sheds light on how this other Federal Public Defender actually received the information.

And, ultimately, we conclude that the allegations in Strickland’s complaint are insufficient

to “demonstrate a likelihood” that any of the defendants disseminated the information to

the other Federal Public Defender. See Cannon v. Vill. of Bald Head Island, 891 F.3d 489,

503 (4th Cir. 2018). Thus, we conclude that the allegations in Strickland’s complaint are

insufficient to satisfy the dissemination/publication requirement imposed by the Supreme

Court.

72 3) Did Strickland adequately allege that she failed to receive the minimum measure of procedural protection warranted under the circumstances?

Because the district court concluded that Strickland failed to allege either a

protected property or liberty interest, it did not reach the second prong of the test that this

court has outlined for determining the adequacy of a Fifth Amendment procedural due

process claim. See Mallette, 91 F.3d at 634 (holding that a plaintiff must allege, in part,

that she did not “receive the minimum measure of procedural protection warranted under

the circumstances”). That said, the parties extensively briefed the issue, and the issue raises

a purely legal question at this stage because it hinges solely on the allegations in

Strickland’s complaint. For those reasons, and for purposes of judicial economy,

particularly in light of the unique circumstances at issue here with all of the judges in the

case sitting by designation, we shall proceed to decide this issue in the first instance. See

United States v. Faulls, 821 F.3d 502, 512 n.4 (4th Cir. 2016) (“Although we generally do

not consider issues not passed upon below, the question before us is purely one of law, and

we perceive no injustice or unfair surprise in doing so here.”).

We begin with Strickland’s facial challenge to the EDR Plan. 10 Strickland alleges

that the EDR Plan was facially invalid for two reasons: (1) it denied her a neutral

decisionmaker because it required the involvement of the Chief Judge and Circuit

Executive, who were involved in the denial-of-promotion decision that she challenged; and

(2) judiciary officials told Strickland that the presiding officer in an EDR hearing was

10 We note at the outset of our analysis that the EDR Plan has been amended several times since the occurrence of the incidents that form the basis of Strickland’s complaint.

73 powerless to order the EDR Plan’s promised remedies, which made the availability of the

EDR process a “meaningless sham.” Aplt. Br. at 62–65. Strickland fails, however, to

explain why these are innate defects of the EDR Plan itself that would apply in all

circumstances. “When considering a facial challenge such as this one, . . . programs can

withstand such facial attacks whenever they are capable of constitutional applications.”

Elhady, 993 F.3d at 217 (citing United States v. Salerno, 481 U.S. 739, 745 (1987)).

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. In Strickland’s case, for example, had the FPD

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. And the EDR Plan accounts for potential conflicts of interest by permitting a

party, at any time during the Chapter X process, to “seek disqualification of a judicial

officer, employee or other person involved in a dispute by written request to the Chief

Judge.” JA, Vol. I at 301.

The EDR Plan even accounts for potential conflicts involving the Chief Judge

specifically. Id. (Chapter X § 7 of the EDR Plan provides that “[i]f the Chief Judge is

named as being involved in a dispute, the Chief Judge will ask the next most senior judge

of the Court of Appeals in regular active service who is available and qualified to serve to

decide the disqualification request.”). There is nothing in the record indicating that

Strickland ever made use of this procedure to seek the disqualification of the Chief Judge,

74 which prevents her from now asserting that his involvement automatically violated her due

process rights. See Dotson v. Griesa, 398 F.3d 156, 161 n.2 (2d Cir. 2005) (holding that

because the plaintiff failed to request a hearing pursuant to his employer’s Equal

Employment Opportunity Plan, he could not complain that his termination was in violation

of due process).

The EDR Plan is also not facially invalid because judiciary officials allegedly told

Strickland that the Plan did not allow for the ordering of actual remedies. Remedies are

specifically provided for by the EDR Plan, including but not limited to “placement of an

employee in a position previously denied,” “placement in a comparable alternative

position,” “reinstatement,” “prospective promotion,” and “back pay . . . where the statutory

criteria of the Back Pay Act are satisfied.” JA, Vol. I at 308 (EDR Plan, Ch. X, § 7).

Because the terms of the EDR Plan clearly allow for remedies, whatever Strickland was

told about the ability to order remedies is relevant only to her as-applied challenge.

Turning to Strickland’s as-applied challenge, we conclude that it may proceed

because the refusal to disqualify the FPD from the investigation and the alleged coercing

of Strickland to end the investigation stated a plausible violation of her due process rights.

The refusal to disqualify the FPD created a conflict of interest that infected the entire

investigation when Strickland was led to believe that the FPD would be the final

decisionmaker in the case. 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.

75 In Spreen v. Brey, 961 F.2d 109 (7th Cir. 1992), the plaintiff testified that she was

told by her supervisor that she could resign her employment or be terminated for cause,

and the supervisor erroneously said that the plaintiff would lose all of her employment

benefits if she were terminated. The Seventh Circuit held that, if true, her resignation was

involuntary and the “misrepresentation to [the] Plaintiff as to the consequences of

termination deprived her of procedural due process.” Id. at 113. Because the defendants

in Spreen had not shown that “knowledge of who is responsible for administering pension

benefits, and whether those benefits would be lost upon involuntary termination, [was] a

matter of common knowledge,” the plaintiff “was entitled to reasonably rely upon

Defendants’ statements regarding the loss of pension benefits.” Id.

The same principles compel the conclusion here that Strickland’s due process rights

were violated if she can prove that the FPD, an accused party, was not disqualified from

the EDR process, and if Strickland was led to believe that the FPD would be the final

decisionmaker in her case. Under these circumstances, a reasonable factfinder could

conclude that continuing with the EDR process would be futile and that Strickland had

reason to believe that the more suitable alternative was to drop her complaint and accept

the Fourth Circuit clerkship. Such findings would lead to the conclusion that Strickland

was deprived, without due process, of her property right to a remedy for the injuries that

she allegedly suffered from harassment by the First Assistant and from retaliation by the

FPD.

76 4) Conclusion

We conclude, in sum, that the district court erred in failing to recognize that the

Fourth Circuit’s EDR Plan afforded Strickland with protected property interests, but did

not err in concluding that Strickland failed to allege a protected liberty interest. We further

conclude that Strickland’s facial challenge to the EDR Plan fails to state a claim upon

which relief can be granted and must therefore be dismissed, but that her as-applied

challenge to the EDR Plan adequately alleges a claim upon which relief can be granted.

C. Strickland’s equal protection claim

We next turn to the second claim for relief asserted in Strickland’s complaint, which

alleges that defendants “violated the equal protection component of the Fifth Amendment’s

Due Process Clause, which confers a right to be free from sex discrimination in federal

employment.” Aplt. Br. at 40. Strickland argues in her appeal that “[t]he District Court

erred in two respects” in dismissing this claim. Id. at 41. “First,” she argues, “the District

Court mischaracterized [her] complaint as alleging ‘pure’ retaliation, when in fact she

explicitly alleged a mixture of retaliation and ongoing sex discrimination and sexual

harassment.” Id. “Second,” Strickland argues that “by ignoring [her] allegations of

defendants’ deliberate indifference to sexual harassment, the District Court erroneously

concluded that ‘Strickland does not allege that the actions taken against her were on the

basis of her sex.’” Id. at 41 (quoting JA at 1271). For the reasons outlined below, we agree

with both of Strickland’s arguments.

The Fifth Amendment to the United States Constitution provides, in pertinent part,

that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of

77 law.” U.S. Const. Amend. V. “In numerous decisions,” the Supreme “Court has held that

the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny

equal protection of the laws.” Davis, 442 U.S. at 234 (internal quotation marks omitted).

“To withstand scrutiny under the equal protection component of the Fifth Amendment’s

Due Process Clause, classifications by gender must serve important governmental

objectives and must be substantially related to achievement of those objectives.” Id. at

234₋35 (internal quotation marks omitted). “The equal protection component of the Due

Process Clause thus confers . . . a federal right to be free from gender discrimination which

cannot meet these requirements.” Id. at 235.

In analyzing Strickland’s Fifth Amendment equal protection claim, the district court

began by concluding that Strickland was “attempt[ing] to graft precedent interpreting Title

VII onto the Fifth Amendment.” JA, Vol. IV at 1520. The district court in turn concluded

that the Fourth Circuit would not recognize such a claim. Id. at 1521. In support, the

district court stated that “the Fourth Circuit has not held that courts must apply Title VII

standards to free-standing Fifth Amendment claims” and, “[t]o the contrary,” has “rejected

a similar attempt to graft Title VII standards onto a free-standing Fourteenth Amendment

equal protection claim.” Id. at 1522 (emphasis in original) (citing Wilcox v. Lyons, 970

F.3d 452, 460 (4th Cir. 2020)). The district court concluded that “Strickland’s complaint

is devoid of any allegation that women are treated differently than men under the EDR

Plan,” and that “Strickland does not allege that the actions taken against her were on the

basis of her sex.” Id. at 1523. “Instead,” the district court concluded, Strickland “theorizes

that the [defendants] discriminated against her on the basis of sex when they mishandled

78 her sexual harassment complaints, ultimately leading to retaliation and constructive

discharge.” Id.

We conclude that the district court misconstrued both the Fourth Circuit’s decision

in Wilcox and, more importantly, Strickland’s equal protection claim. In Wilcox, the Fourth

Circuit “conclude[d] that a pure retaliation claim is not cognizable under the Equal

Protection Clause” of the Fourteenth Amendment. In doing so, the Fourth Circuit noted

that neither it nor the Supreme Court “has recognized an equal protection right to be free

from retaliation.” 970 F.3d at 458. Instead, the court noted that it “has consistently

considered retaliation claims brought under Section 1983 to be more properly characterized

as claims asserting a violation of the First Amendment.” Id.

The court explained that “[r]etaliation for reporting alleged sex discrimination

imposes negative consequences on an employee because of the employee’s report, not

because of the employee’s sex.” Id. at 460. “The very premise of a retaliation claim,” the

court noted, “is that the employer has subjected an employee to adverse consequences in

response to her complaint of discrimination.” Id. Thus, the court noted, “[t]he necessary

causal link is between the employee’s complaint and the adverse action, not between her

sex and the adverse action.” Id. The court emphasized that “continued sexual harassment

and adverse treatment of a female employee unlike the treatment accorded male employees

remains actionable as a violation of the Equal Protection Clause even when the sex

discrimination and harassment continue after, and partially in response to, the female

employee’s report of prior discrimination and harassment.” Id. at 461 (emphasis added).

But, the court noted, “[t]he employee’s claim in such a case is not a claim of pure

79 retaliation, but instead implicates the basic equal protection right to be free from sex

discrimination that is not substantially related to important governmental objectives.” Id.

(internal quotation marks omitted; emphasis added). Although the court’s holdings were

limited to the Equal Protection Clause of the Fourteenth Amendment, we have no doubt,

given the Supreme Court’s equivalent treatment of equal protection claims under the Fifth

and Fourteenth Amendments, that they should be extended to retaliation claims brought

under the equal protection component of the Fifth Amendment’s Due Process Clause. See

Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (noting that the Supreme Court’s

“approach to Fifth Amendment equal protection claims has always been precisely the same

as to equal protection claims under the Fourteenth Amendment.”).

Turning to Strickland’s complaint, she alleges that defendants violated her Fifth

Amendment equal protection rights by (a) “subjecting [her] to harassment, retaliation, and

discrimination,” (b) “failing to take immediate and effective action on her complaints,” and

(c) “failing to provide her with meaningful review or remedies.” JA, Vol I at 100.

According to the complaint, defendants “singled [her] out . . . based on her gender and

intentionally violated her right to equal protection under the Fifth Amendment.” Id.

Strickland’s opening appellate brief fleshes out the claim in more detail:

The [FPD] ratified the Assistant’s harassing conduct, most significantly by refusing to consider [Strickland] for the promotion for which she was qualified—a discriminatory follow-up to the Assistant’s quid-pro- quo sexual harassment. The meaning of the Assistant’s harassing email was that if [Strickland] didn’t “pay” in the way he wanted, that is, sexually, she would not get the promotion. In refusing to consider the promotion—even going to lengths to backdate his reclassification of her title to the day before she became eligible for promotion, . . . the Defender made good on the

80 Assistant’s threat. This response was clearly unreasonable and effectively caused further harassment.

Second, after Fourth Circuit and AO officials were put on notice of the sexual harassment and of the [FPD’s] disregard of AO advice on stopping it, they protected the [FPD] rather than taking steps to end the harassment. The officials prohibited [Strickland] from seeking guidance about her civil rights from the FEOO. The officials allowed the [FPD] to drive the process despite his conflict of interest: The [FPD] appointed the investigator to investigate the allegations, and decided how to discipline the Assistant. The Chief Judge refused to disqualify the Defender from acting on behalf of the employing office in the dispute resolution process. Officials failed to conduct an impartial investigation by a well-trained investigator. The Circuit Executive limited the investigation’s scope to exclude the Defender’s wrongful conduct. As a result, the Investigator did not fully investigate [Strickland]’s claims.

Aplt. Br. at 46–47. Thus, Strickland has not alleged a pure retaliation claim, but rather has

alleged a violation of her right under the Equal Protection Clause of the Fifth Amendment

to be free from sex discrimination.

We also agree with Strickland that, under Fourth Circuit law, her complaint

adequately alleged that defendants were deliberately indifferent to her complaints of sexual

harassment. The Fourth Circuit has held in the context of a § 1983 action that a school

official can be liable under the Equal Protection Clause of the Fourteenth Amendment for

his or her deliberate indifference to student-on-student sexual harassment. Feminist

Majority Found. v. Hurley, 911 F.3d 674, 701–02 (4th Cir. 2018). In reaching this

conclusion, the Fourth Circuit noted that “the Equal Protection Clause of the Fourteenth

Amendment secures a student’s right to be free from sexual harassment in an educational

setting,” and that this both “guards against sexual harassment perpetrated by a school

administrator against students” and “protects students from a school administrator’s

81 deliberate indifference that allows such harassment to occur and persist.” Id. at 702

(internal quotation marks omitted). The Fourth Circuit further noted that a “school

administrator has the power and opportunity to both address and rectify” “known student-

on-student sexual harassment,” and that an “administrator’s failure to exercise that power

can result in the harassment victim suffering further injury.” Id.

The Fourth Circuit also held that, “[t]o state an equal protection claim for deliberate

indifference to known student-on-student sexual harassment, a plaintiff must first allege

that she was subjected to discriminatory peer harassment.” Id. (internal quotation marks

omitted). “Secondly, the plaintiff must allege that the school administrator responded to

the discriminatory peer harassment with deliberate indifference, i.e., in a manner clearly

unreasonable in light of known circumstances.” Id. “In other words, the plaintiff must

allege that the school administrator knew about harassment of the plaintiff and acquiesced

in that conduct by refusing to reasonably respond to it.” Id. at 702–03 (internal quotation

marks omitted). “Third, the plaintiff must allege that the school administrator’s deliberate

indifference was motivated by a discriminatory intent.” Id. at 703.

Because the Supreme Court’s “approach to Fifth Amendment equal protection

claims has always been precisely the same as to equal protection claims under the

Fourteenth Amendment,” Weinberger, 420 U.S. at 638 n.2, we conclude that the principles

outlined by the Fourth Circuit in Feminist Majority Foundation apply equally to the

circumstances alleged by Strickland in this case. More specifically, federal judiciary

employees who occupy supervisory roles and/or who are charged with enforcing an EDR

plan can, under Feminist Majority Foundation, be held liable under the Fifth Amendment

82 for their deliberate indifference to sexual harassment committed by a federal judiciary

employee or supervisor against another federal judiciary employee. This conclusion is

based on the principle that the Fifth Amendment’s Equal Protection Clause secures a

federal judiciary employee’s right to be free from sexual harassment in the workplace. It

thus both guards against sexual harassment perpetrated by other federal judiciary

employees and protects federal judiciary employees from deliberate indifference on the

part of federal judicial employees charged with preventing sexual harassment and

investigating complaints of sexual harassment.

The elements of such a claim, we conclude, are essentially identical to those outlined

by the Fourth Circuit in Feminist Majority Foundation: (1) the plaintiff was subjected to

sexual harassment by another employee or supervisor; (2) the plaintiff alerted supervisory

officials and/or officials responsible for overseeing the court’s EDR plan about the sexual

harassment; (3) the supervisory officials and/or officials responsible for overseeing the

court’s EDR plan responded to the allegations with deliberate indifference; and (4) the

deliberate indifference was motivated by a discriminatory intent.

The question then becomes whether Strickland’s complaint adequately alleged each

of these elements. The complaint clearly alleged the first element, i.e., that Strickland was

subjected to sexual harassment by the First Assistant. The complaint also clearly alleged

the second element, i.e., that Strickland reported the sexual harassment to various judiciary

employees, some of whom alerted the FPD to the harassment, and also initiated an

investigation and mediation under the EDR Plan. As for the third element, the complaint

alleged in substantial detail how officials responded to her report of sexual harassment and

83 to her initiating an investigation and mediation under the EDR Plan, and it in turn alleged

that defendants “fail[ed] to take immediate and effective action on her complaints” and

also “fail[ed] to provide her with meaningful review or remedies.” JA, Vol. I at 100.

The complaint does not specifically allege deliberate indifference on the part of the

defendants. But the complaint does allege that “[d]efendants, acting under color of law

and their authority as federal officers, singled out [Strickland] based on her gender and

intentionally violated her right to equal protection under the Fifth Amendment to the United

States Constitution.” Id. In our view, this allegation is substantially similar to, if not more

egregious than, deliberate indifference, and is sufficient to satisfy the fourth element, which

requires Strickland to prove that defendants’ deliberate indifference was motivated by a

discriminatory intent. More specifically, the complaint effectively alleges that defendants’

failure to take proper corrective action was intentional and motivated by their intent to

discriminate against her because of her gender.

Thus, in sum, we conclude that Strickland’s complaint adequately alleged that

defendants violated her equal protection rights under the Fifth Amendment and that the

district court erred in concluding otherwise.

D. Strickland’s §§ 1985(3) and 1986 claims

The third and fourth claims for relief in Strickland’s complaint allege, respectively,

violations of 42 U.S.C. §§ 1985(3) and 1986. To state a claim for conspiracy to deny equal

protection of the laws under section 1985(3), a plaintiff must plausibly allege:

(1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4)

84 and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy.

Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995) (internal citations omitted). Section

1986, in turn, provides a cause of action against anyone who has knowledge of a § 1985

conspiracy and who, “having the power to prevent or aid in preventing the commission of”

acts pursuant to that conspiracy, “neglects or refuses so to do.” 42 U.S.C. § 1986. “Section

1986 claims are therefore derivative of § 1985 violations.” Park v. City of Atlanta, 120

F.3d 1157, 1159–60 (11th Cir. 1997).

The district court in this case dismissed Strickland’s § 1985(3) claim for essentially

the same reasons that it dismissed Strickland’s Fifth Amendment equal protection claim.

More specifically, the district court concluded that the complaint “fail[ed] to plead” that

defendants were motivated by a specific class-based, invidiously discriminatory animus,

and instead “plead . . . the more sweeping Title VII standards regarding sexual harassment

as discrimination on the basis of sex.” JA, Vol. IV at 1526.

We reject the district court’s reasoning for dismissing Strickland’s § 1985(3) claim.

As discussed above, Strickland’s complaint effectively alleges that defendants’ failure to

take proper corrective action was intentional and motivated by their intent to discriminate

against her because of her gender. That allegation is sufficient under Fourth Circuit law to

satisfy the second element of a § 1985(3) claim. See Simmons, 47 F.3d at 1376.

Nevertheless, we conclude that the allegations in Strickland’s complaint are

otherwise insufficient to state a claim for relief under § 1985(3). “[T]he law is well settled

that to prove a section 1985 ‘conspiracy,’ a claimant must show an agreement or a ‘meeting

85 of the minds’ by defendants to violate the claimant’s constitutional rights.” Id. at 1377

(citing cases). More specifically, the plaintiff must show “that there was a single plan, the

essential nature and general scope of which was known to each person who is to be held

responsible for its consequences.” Id. at 1378 (internal quotation marks and brackets

omitted). “This Court, under that standard, has rarely, if ever, found that a plaintiff has set

forth sufficient facts to establish a section 1985 conspiracy.” Id. at 1377. “Indeed, we have

specifically rejected section 1985 claims whenever the purported conspiracy is alleged in

a merely conclusory manner, in the absence of concrete supporting facts.” Id.

Here, Strickland’s § 1985(3) claim, as set forth in her complaint, broadly alleges as

follows:

By agreeing to implement, and taking actions on, policies, procedures, and practices whereby Plaintiff was subjected to sexual harassment, discrimination, and retaliation and deprived of immediate and effective action on her complaints, and meaningful review and remedies, all on account of her gender, Defendants conspired to deprive Plaintiff of equal protection under the law and of equal privileges and immunities of the laws of the United States, resulting in injury to her person and property in violation of 42 U.S.C. § 1985(3).

JA, Vol. I at 100.

The complaint, in a section entitled “FACTUAL ALLEGATIONS,” more

specifically alleges that defendants conspired against Strickland on two occasions. First,

in a subsection titled “Defendants conspire to block [Strickland] from exercising protected

rights and shut down the efforts to take immediate and effective action on her complaints,”

the complaint alleges that the FPD met with the Circuit Executive and John Doe(s) from

the Office of the General Counsel “with the objectives of insulating himself from liability

86 and shutting down . . . efforts to take immediate and effective action on [Strickland’s]

complaints.” Id. at 54. This portion of the complaint further alleges that “individual

stakeholders acting on behalf of [the Office of the General Counsel] and the Fourth Circuit

agreed on actions and procedures for handling [Strickland’s] complaint, unbeknownst to

her.” Id. at 55. In particular, it alleges that “John Doe(s) recommended that [Office of the

General Counsel] take over the investigation and strongly suggested that the [Federal Equal

Opportunity Officer] be required to withdraw from any involvement.” Id. It also alleges

that “the General Counsel and Chief Judge were made personally aware of these

individuals’ actions, at a minimum.” Id.

Second, in a subsection titled “Defendants conspire to deny [Strickland] a

promotion,” the complaint alleges that “the hiring committee conducted interviews for [an]

appellate attorney position” that Strickland had expressed interest in obtaining. Id. at 56.

The complaint further states that “the First Assistant was on the hiring committee” and “the

[FPD] allowed the First Assistant to continue making, or participating in, decisions

affecting [Strickland’s] job terms and conditions, despite being on notice of the First

Assistant’s quid pro quo sexual harassment.” Id. Finally, the complaint alleges that

“[i]nstead of being promoted, [Strickland] received a ‘reclassification’ of title.” Id.

What is missing from these allegations is the pleading of any specific facts to show

that the Individual Capacity Defendants had any sort of “single plan, the essential nature

and scope of which was known to each person who is to be held responsible for its

consequences.” Simmons, 47 F.3d at 1378. The essence of Strickland’s complaint is

instead based on these defendants’ alleged deliberate indifference to her claims of sexual

87 harassment rather than their affirmative adherence to a single plan of discriminatory

animus based on her protected-class status. Id. at 1376. This is hardly the stuff of a

conspiracy, and leads us to conclude that Strickland’s § 1985(3) claim is “essentially an

afterthought.” Id. at 1377.

Based on the failure of Strickland’s complaint to plausibly allege any conspiratorial

plan of class-based discriminatory animus, we conclude that Strickland’s § 1985(3) claim

was properly dismissed for failure to state a claim upon which relief could be granted. And

because Strickland’s § 1986 claim depends on the existence of a viable § 1985(3) claim,

the § 1986 claim was properly dismissed as well. 11

E. Sovereign Immunity for the Official Capacity Defendants

Having analyzed each of the claims alleged in Strickland’s complaint, we now turn

to the various defenses asserted by defendants, beginning with their argument that the

Official Capacity Defendants are entitled to sovereign immunity from the claims asserted

against them. Strickland argues in her appeal that the district court “erred in holding that

all of [her] constitutional claims against the Official Capacity Defendants were barred by

sovereign immunity.” Aplt. Br. at 27. She argues in support that her “equitable claims

against the Official Capacity Defendants are not barred by sovereign immunity because

they fall squarely within the Larson-Dugan exception to sovereign immunity” that applies

to nonstatutory review claims seeking equitable forms of relief. Id. Strickland also argues

11 Because we conclude that Strickland’s §§ 1985(3) and 1986 claims were properly dismissed, it is unnecessary for us to address the absolute and qualified immunity defenses that were asserted by the Individual Capacity Defendants.

88 that “even if a waiver of sovereign immunity is needed, the [Administrative Procedure Act

(APA)] provides that waiver for [her] claims against the United States and judicial branch

defendants who are not ‘courts.’” Id. Finally, she argues that the Back Pay Act “waives

sovereign immunity for [her] back pay claims against the defendants who were her

employer.” Id.

For the reasons discussed below, we agree with Strickland that the nonstatutory

review claims she asserts against the Official Capacity Defendants are not barred by

sovereign immunity. 12 We disagree, however, with Strickland’s arguments that the Back

Pay Act and the APA waive sovereign immunity for her claims for back pay and other

requested relief against the Official Capacity Defendants.

1) The district court’s ruling

The district court concluded that “the doctrine of sovereign immunity shields the

Official Capacity Defendants from suit.” JA, Vol. IV at 1511. In reaching this conclusion,

the district court considered only whether “three statutes waive[d] the Official Capacity

Defendants’ sovereign immunity”: (1) 28 U.S.C. § 1331; (2) the Back Pay Act; and (3) the

APA. The district court concluded that none of these statutes waived the Official Capacity

12 Strickland’s Fifth Amendment due process and equal protection claims against the Official Capacity Defendants encompass both (a) nonstatutory review claims seeking prospective equitable relief, and (b) Bivens-like claims seeking back pay. See Clark Byse & Joseph V. Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and “Nonstatutory” Judicial Review of Federal Administrative Action, 81 Harv. L. Rev. 308, 322 (1967). Nonstatutory review claims allege that federal officials have (a) purported to exercise powers they do not have, (b) refused to perform required duties, and/or (c) acted unconstitutionally.

89 Defendants’ sovereign immunity for the claims asserted against them by Strickland. The

district court therefore concluded that “it lack[ed] subject-matter jurisdiction over the

Official Capacity Defendants.” Id.

2) Sovereign immunity and waivers of sovereign immunity

The general rule is that the sovereign, i.e., the United States, may not be sued

without its consent. See United States v. Mitchell, 463 U.S. 206, 212 (1983). The Supreme

Court has held that, generally speaking, a suit is against the sovereign “if the judgment

sought would expend itself on the public treasury or domain, or interfere with the public

administration, or if the effect of the judgment would be to restrain the Government from

acting, or to compel it to act.” Dugan v. Rank, 372 U.S. 609, 620 (1963).

Sovereign immunity can, however, be waived. To begin with, Congress has enacted

certain statutes that both create a cause of action against the federal government and

expressly waive the government’s immunity from suit for those actions. Strickland alleges

that two of those acts—the APA and the Back Pay Act—are applicable here and operate to

waive the sovereign immunity of the Official Capacity Defendants. In addition to these

statutory waivers of sovereign immunity, the Supreme Court has also held that sovereign

immunity does not apply when a plaintiff files suit seeking equitable relief against federal

officials in their official capacities and alleging that those officials exceeded the scope of

their authority and/or acted unconstitutionally. E.g., Leedom v. Kyne, 358 U.S. 184, 188–

89 (1958) (holding that federal courts have jurisdiction to strike down agency orders made

in excess of the agency’s delegated powers); Noble v. Union River Logging R.R. Co., 147

U.S. 165, 171–72 (1893) (holding that a federal official may be enjoined where he has

90 acted “ultra vires, and beyond the scope of his authority”). These types of claims are

generally referred to as nonstatutory review claims. Strickland also invokes this type of

waiver of sovereign immunity. We proceed to discuss both of these categories of waiver

in more detail below.

3) The Larson-Dugan exception for nonstatutory review claims

The Supreme Court has recognized, in what is sometimes referred to as the Larson-

Dugan exception to sovereign immunity, that a plaintiff can obtain injunctive relief against

an individual officer or agent of the United States in his official capacity for acts beyond

his statutory or constitutional authority because such actions “are considered individual

and not sovereign actions.” 13 Larson v. Domestic & Foreign Commerce Corp., 337 U.S.

682, 89 (1949). In other words, “under the so-called Larson-Dugan exception[,] . . . ‘suits

for specific relief against officers of the sovereign’ allegedly acting ‘beyond statutory

authority or unconstitutionally’ are not barred by sovereign immunity.” Pollack v. Hogan,

703 F.3d 117, 120 (D.C. Cir. 2012) (quoting Larson, 337 U.S. at 689); see, e.g., Vitarelli

v. Seaton, 359 U.S. 535 (1959) (nonstatutory review case filed by former government

employee seeking reinstatement and a declaration that his dismissal was illegal).

In Pollack, for example, the D.C. Circuit held that the plaintiff’s claim fell within

the Larson-Dugan exception because “[h]er sole allegation [wa]s that the named officers

13 More specifically, the Supreme Court noted in Larson that “[t]here may be, of course, suits for specific relief against officers of the sovereign which are not suits against the sovereign . . . . [W]here the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way (Continued) 91 acted unconstitutionally, and she request[ed] only injunctive and declaratory relief.” 703

F.3d at 120. In doing so, the D.C. Circuit rejected the argument “that the Larson-Dugan

exception is limited to cases alleging that defendants have acted beyond statutory

authority.” Id. The court stated that “there is no basis for such a limitation in the logic of

the ‘ultra vires’ rationale for the exception.” Id. The court also noted that the argument

was “contrary to the Supreme Court’s subsequent decision in Dugan, which noted

‘recognized exceptions’ to the general rule of federal sovereign immunity, for suits alleging

that: ‘(1) action[s] by officers [are] beyond their statutory powers and (2) even though

within the scope of their authority, the powers themselves or the manner in which they are

exercised are constitutionally void.’” Id. (quoting Dugan, 372 U.S. at 621–22) (emphasis

in Pollack).

Strickland argues on appeal that the Larson-Dugan exception applies to her Fifth

Amendment claims against the Official Capacity Defendants because those claims alleged

violations of her constitutional rights and sought prospective equitable relief from the

defendants, specifically reinstatement to a position of assistant federal public defender or

front pay in lieu of reinstatement (if reinstatement is deemed infeasible), as well as

declaratory and injunctive relief to stop ongoing constitutional violations. Aplt. Br. at 28–

33.

which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief.” 337 U.S. at 689.

92 Defendants argue in response that Strickland “alleged that the official-capacity

federal defendants violated her right to due process and equal protection,” but that she “has

not identified any prospective equitable relief or ongoing constitutional violations.” Aple.

Br. at 15. Defendants assert in particular that Strickland’s complaint “explicitly disclaimed

any interest in reinstatement” and requested only front pay in lieu of reinstatement. Id. at

20. As for the request for front pay, defendants argue that Strickland’s “complaint

identifies injuries based on defendants’ alleged past violations during the EDR process, not

any ongoing constitutional violations.” Id. Thus, defendants argue, “front pay would be a

damages remedy, not an equitable one.” Id. In other words, defendants appear to be

arguing that Strickland’s request for front pay is not actually prospective in nature because

it targets defendants’ past conduct. Defendants concede that Strickland’s “complaint

includes a generic request for injunctive and declaratory relief,” id., but they argue that she

“has never identified any equitable remedy that would redress her alleged injuries.” Id. at

20–21. Instead, defendants argue, Strickland “has disclaimed any request for

reinstatement, and her remaining claims seek damages for her past alleged injuries.” Id. at

21.

In addressing these arguments, it should be noted as a threshold matter that

Strickland did not expressly mention the Larson-Dugan exception in her response to the

Official Capacity Defendants’ motion to dismiss, nor did she cite to either of the Supreme

Court cases on which that exception is based. But she did argue in her response that a

federal district court exercising federal-question jurisdiction pursuant to 28 U.S.C. § 1331

“may issue declaratory and injunctive relief against officials responsible for creating

93 unconstitutional laws and policies,” and also “has authority to order [equitable] remedies

in fashioning injunctions against officials who violate the judiciary’s antidiscrimination

policies.” 14 JA, Vol. I at 391, 394. In other words, Strickland quite clearly indicated that

she was asserting, in part, nonstatutory review claims against the Official Capacity

Defendants. Thus, Strickland has effectively argued the substance of the Larson-Dugan

exception, notwithstanding her failure to mention it by name.

As to the question of whether the Larson-Dugan exception applies in this case, we

agree with Strickland and one of the amicus briefs that the district court “mistakenly

overlooked th[e] long-established line of precedent” establishing that parties can “seek to

enjoin federal officials in their official capacities from exceeding the scope of their

authority or acting unconstitutionally.” Huq & Chemerinsky Amicus Br. at 2. In Claims

One and Two of her complaint, Strickland alleged, in pertinent part, that “Defendants,

acting under color of law and their authority as federal officers,” adopted and applied the

EDR Plan to hear, adjudicate, and decide her claims of harassment and discrimination and,

in doing so, “willfully and knowingly deprived [her] of her property interests without due

process of law in violation of the Fifth Amendment to the United States Constitution,” and

“singled [her] out . . . based on her gender and intentionally violated her right to equal

protection under the Fifth Amendment to the United States Constitution.” JA, Vol I at 99,

100. In other words, Strickland alleged in Claims One and Two that the Official Capacity

14 Strickland did not, as the district court suggested in its memorandum and order granting the Official Capacity Defendants’ motion to dismiss, argue that 28 U.S.C. § 1331 itself waived these defendants’ sovereign immunity. JA, Vol. I at 1507.

94 Defendants exceeded the scope of their authority or acted unconstitutionally and that those

actions were therefore ultra vires. Strickland in turn asked, in pertinent part, for declaratory

relief (“Declare that Plaintiff’s constitutional rights were violated”), injunctive relief

(“Enjoin any further violation of Plaintiff’s rights”), front pay (“Award Plaintiff

appropriate front pay as equitable relief in lieu of reinstatement”), and back pay (“Award

Plaintiff back pay as equitable relief from the unlawful termination of her employment

pursuant to the Back Pay Act”). 15 Id. at 101. These allegations, with the exception of the

request for back pay, fall “squarely in the heartland of nonstatutory review over which

federal courts have long exercised jurisdiction,” and we therefore conclude that the Official

Capacity Defendants are not entitled to sovereign immunity from these nonstatutory

claims. Huq & Chemerinsky Amicus Br. at 11.

Relatedly, we reject the Official Capacity Defendants’ argument that Strickland

“has not identified any prospective equitable relief or ongoing constitutional violations.”

Aple. Br. at 15. Although it is true that Strickland’s resignation and acceptance of another

job means that she is not currently being impacted by the alleged constitutional violations,

15 As noted, the parties dispute on appeal whether Strickland requested reinstatement in the district court. We need not resolve this dispute because we conclude that Strickland’s complaint requests other viable forms of equitable relief against the Official Capacity Defendants. We therefore leave it to the district court on remand to determine whether Strickland actually requested reinstatement in her complaint and, if not, whether Strickland can amend her complaint to add that as a form of requested relief.

95 the fact remains that she is seeking other viable forms of equitable relief. 16 To begin with,

she seeks a declaration that the actions that the Official Capacity Defendants took were

unconstitutional (defendants effectively concede in their appellate response brief that

Strickland is seeking declaratory relief). In addition, she expressly requests in her

complaint that she be awarded front pay in lieu of reinstatement. This remedy has been

deemed by federal courts to constitute an equitable remedy. E.g., Pollard v. E.I. du Pont

de Nemours & Co., 532 U.S. 843 (2001) (holding, in a Title VII case, that front pay

constituted equitable relief and not an element of compensatory damages); Monohon v.

BNSF Rwy. Co., 17 F.4th 773, 784 (8th Cir. 2021); Hunter v. Town of Mocksville, 897 F.3d

538, 562 (4th Cir. 2018) (holding that, although reinstatement of a wrongfully discharged

employee is preferable, “in appropriate circumstances a district court may award front pay

in lieu of reinstatement”).

Thus, in sum, if Strickland can prove the allegations in her complaint, she will

establish that the Official Capacity Defendants acted beyond the scope of their powers

and/or in an unconstitutional manner, and in turn would be entitled to equitable relief. The

Official Capacity Defendants are not shielded by sovereign immunity from those

nonstatutory review claims.

16 Strickland’s complaint asks the district court to “[e]njoin any further violation of [her] rights.” JA, Vol. I at 101. It is unclear to us, however, barring Strickland’s reinstatement, what those “further violation[s]” might be.

96 4) Waiver of sovereign immunity by statute

Strickland also argues in her appeal that “Congress waived sovereign immunity for

[her] claims against the United States and non-courts defendants” by way of the APA, and

“for her back pay claim against her employer” by way of the Back Pay Act. Aplt. Br. at

33. We disagree.

a) The APA

The APA provides both a cause of action and a waiver of sovereign immunity in

suits against federal agencies seeking equitable relief. More specifically, the APA

provides, in pertinent part:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

5 U.S.C. § 702.

The APA defines the term “agency” to mean, in pertinent part, “each authority of

the Government of the United States, whether or not it is within or subject to review by

another agency, but does not include . . . the courts of the United States.” 5 U.S.C.

97 § 701(b)(1)(B) (emphasis added). The question at issue in this appeal is whether the

Official Capacity Defendants should all be considered part of “the courts of the United

States,” a phrase that the APA does not expressly define.

The district court concluded that this was “a matter of first impression in this

circuit.” JA, Vol. I at 1509. The district court in turn relied on an unpublished Ninth

Circuit opinion holding that “APA does not apply to the Federal Public Defender’s Office,

which is a part of the federal judiciary.” Id. at 1510 (quoting Demello v. Ney, 185 F.3d

866, *1 (9th Cir. 1999)). In doing so, the district court stated:

The District Courts may make recommendations concerning nominees for the position of Federal Public Defender, and the Courts of Appeals appoint, compensate, and remove Federal Public Defenders. 18 U.S.C. § 3006A(g)(2)(A). Against that backdrop, this Court rules that the Official Capacity Defendants are part of the federal judiciary for purposes of the APA, and that the APA therefore does not waive the Official Capacity Defendants’ sovereign immunity. See Demello, 185 F.3d at *1.

Id. at 1510–11.

Strickland challenges the district court’s ruling on appeal. She argues that “[i]n

determining whether an entity falls within the APA’s ‘courts’ exemption, courts have

looked to whether the functions performed by the entity are ‘functions that would otherwise

be performed by courts.’” Aplt. Br. at 34 (quoting Wash. Legal Found. v. U.S. Sent’g

Comm’n, 17 F.3d 1446, 1449 (D.C. Cir. 1994)). She in turn argues that “[t]he judicial

branch is not synonymous with ‘courts,’ and offices or officials do not become ‘courts’

simply by being placed in the judicial branch.” Id. She argues that “[t]he ‘courts’

exemption would likely cover the Fourth Circuit, and the Chief Judge and Judicial

Conference when they perform judicial functions,” but that the “[o]ther defendants—the

98 FDO, Defender, AO, AO Director, Circuit Executive, and Fourth Circuit Judicial

Council—are organizationally in the judicial branch but are not ‘courts.’” Id. “Federal

defenders,” Strickland argues, “serve an independent Sixth Amendment criminal defense

function.” Id. at 35. She in turn argues that “it would denigrate FDOs’ integrity and

independence to deem the FDO a court or to blur its functions with those of courts.” Id.

“And,” she argues, “at a minimum, the APA undoubtedly waives the sovereign immunity

of ‘the United States.’” Id. at 34.

Defendants argue in opposition that “[e]ach of the defendants named in their official

capacities—the Fourth Circuit, the Judicial Conference, the Fourth Circuit Judicial

Council, the AO, the Circuit Executive, the Federal Defender’s Office, the Federal

Defender, the Chair of the Judicial Conference Committee on Judicial Resources, and

Chief Judge Gregory—is part of the Judicial Branch and therefore outside the scope of the

APA’s waiver of sovereign immunity.” Aple. Br. at 16. Defendants further argue that,

contrary to Strickland’s arguments, “the exemption of a particular office from the APA’s

waiver ‘is warranted not by the functions it performs . . . but by its status as an auxiliary of

the courts.’” Id. at 17 (quoting Washington Legal Found., 17 F.3d at 1449)). Defendants

in turn argue that “[t]he AO, Fourth Circuit Judicial Council, and Circuit Executives are all

auxiliaries of the courts” because “[t]hey manage the courts’ operations and ensure the

‘effective and expeditious administration of justice,’” id. (quoting 28 U.S.C. § 332(d)(1)),

and that “Federal Defender Offices are also auxiliaries of the courts” because “[t]he Courts

of Appeals appoint, compensate, and remove Federal Defenders.” Id. at 18 (citing 18

U.S.C. § 3006A).

99 We conclude that defendants have the better of the argument here. Although there

is little case law on this issue, the central question as we see it is whether Congress intended

to include within or exclude from the statutory phrase “courts of the United States” entities

such as the AO, federal judicial councils, circuit executives, and federal public defenders.

Presumably, the reason that Congress excluded “courts of the United States” from the

definition of “agency” was that it had no intention of subjecting federal courts’ decisions

to “judicial review” under the APA. Indeed, the notion of that occurring is nonsensical.

“Congress passed the [APA] to ensure that agencies follow constraints even as they

exercise their powers,” and “[o]ne of those constraints is the duty of agencies to find and

formulate policies that can be justified by neutral principles and a reasoned explanation.”

F.C.C. v. Fox Tel. Stations, Inc., 556 U.S. 502, 537 (2009). To achieve this goal, “[t]he

APA ‘sets forth the procedures by which federal agencies are accountable to the public and

their actions subject to review by the courts.’” Dep’t of Homeland Sec. v. Regents of the

Univ. of Cal., 140 S. Ct. 1891, 1905 (2020) (quoting Franklin v. Mass., 505 U.S. 788, 796

(1992)). Further, “[t]he APA establishes a basic presumption of judicial review for one

suffering legal wrong because of agency action.” Id. (quotation marks and brackets

omitted).

Unlike federal executive agencies that are subject to the APA, federal courts do not

take what could reasonably be described as “executive agency action[s],” i.e., they do not

adopt rules or policies that impact the public at large and in turn could cause members of

the public to suffer legal wrong. Fox Tel. Stations, 556 U.S. at 513. The same holds true

for entities that are related to the federal courts, including the AO, federal judicial councils,

100 circuit executives, and federal public defenders. All of these entities, except for federal

public defenders, perform administrative and auxiliary functions for the federal courts. The

AO, for example, “provides a range of administrative, financial, legal, legislative,

management, technology, and program support services to Federal courts.” Administrative

Office of the United States Courts, The United States Government Manual (saved as ECF

opinion attachment). Not surprisingly, the Ninth Circuit has held that “[t]he AO’s role was

intended to be administrative ‘in the narrowest sense of that term.’” Tashima v. Admin.

Office of U.S. Courts, 967 F.2d 1264, 1271 (9th Cir. 1992) (quoting Chandler v. Jud.

Council, 398 U.S. 74, 97 (1970) (Harlan, J., concurring)).

As for federal public defenders, they do not serve an administrative function for the

federal courts. But they are, nevertheless, intricately associated with the federal courts and

the AO. By statute, Congress has authorized the federal appellate courts to appoint federal

public defenders for any district that meets the requirements for establishment of a defender

organization. 18 U.S.C. § 3006A(g)(1) and (2). Per statute, the federal appellate courts

also determine the compensation of federal public defenders, exercise supervisory

authority over them, and may remove them “for incompetency, misconduct in office, or

neglect of duty.” Id. § 3006A(g)(2)(A). Each federal defender office is required by statute

to submit to the AO “reports of its activities and financial position and its proposed budget.”

Id. The AO in turn submits a budget for each such office for each fiscal year and makes

payments to and on behalf of such office. Id.

Further, like the federal courts, and unlike executive agencies that are subject to the APA,

the federal public defenders do not establish rules or policies that are applicable to the

101 public at large. Thus, like federal courts, they do not appear to us to be the type of

governmental entities that Congress intended to subject to judicial review under the APA.

Indeed, it is unclear how any actions taken by federal public defenders would be subject to

review under the APA.

For these reasons, we agree with the district court that the APA does not waive the

Official Capacity Defendants’ sovereign immunity.

b) The Back Pay Act

The Back Pay Act waives sovereign immunity when

[a]n employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee.

5 U.S.C. § 5596(b)(1). The Back Pay Act authorizes an employee under these

circumstances to receive back pay “for the period for which the personnel action was in

effect.” Id. § 5596(b)(1)(A)(i).

The question of whether the Back Pay Act applies in this case received scant

attention in the parties’ district court pleadings. Aside from a brief mention in her

complaint, Strickland first raised the issue in her response to the Official Capacity

Defendants’ motion to dismiss. JA, Vol. I at 392. Strickland argued that “statutory waivers

of sovereign immunity apply in this context,” and cited, “[f]or example, the Back Pay Act.”

Id. She otherwise provided no discussion or argument regarding the applicability of the

Back Pay Act. The Official Capacity Defendants filed a reply brief in support of their

102 motion to dismiss and argued therein that Strickland was “wrong in claiming that the Back

Pay Act [wa]s an applicable waiver of sovereign immunity.” Id., Vol. II at 462. In support,

the Official Capacity Defendants noted that the Back Pay Act requires a determination by

an “appropriate authority,” and they in turn argued that Strickland had “not allege[d] that

there ha[d] been any determination by an appropriate authority that would entitle her to

back pay.” Id.

The district court, in its written decision granting the Official Capacity Defendants’

motion to dismiss, concluded that the Back Pay Act “d[id] not waive the Official Capacity

Defendants’ sovereign immunity” because no “appropriate authority” had determined that

Strickland was “affected by an unjustified or unwarranted personnel action.” Id., Vol. IV

at 1508. In reaching this conclusion, the district court stated that “[a]ppropriate authorities

are entities which ‘have the authority to review the agency’s determination,’ including the

agency itself, the Merit Systems Protection Board, and the United States Court of Appeals

for the Federal Circuit.” 17 Id. (citing United States v. Fausto, 484 U.S. 439, 454 (1988)).

In her opening appellate brief, Strickland challenges the district court’s decision and

argues that “the District Court itself is an ‘appropriate authority’ to determine whether [she]

was ‘affected by unjustified or unwarranted personnel action,’ since a district court can

17 The district court therefore found it “unnecessary to address whether Congress intended to include entities such as the Official Capacity Defendants within the definition of ‘agency’ under the Back Pay Act.” JA, Vol. IV at 1509. We likewise do not reach this issue.

103 rule that officials’ unconstitutional conduct resulted in her constructive discharge and order

her reinstated.” Aplt. Br. at 39–40 (quoting 5 U.S.C. § 5596(b)(1)).

Defendants argue in response that the “appropriate authority” in Strickland’s case,

i.e., “the one with the power ‘under applicable law’ to determine whether [she] was subject

to ‘an unwarranted personnel action’” was “Chief Judge Gregory (or the Judicial Council),

through the EDR process.” Aple. Br. at 18. Defendants in turn argue that “[b]ecause

[Strickland] terminated the EDR process before asking for or obtaining a determination of

whether she was entitled to back pay, no one—let alone any ‘appropriate authority’ under

the Back Pay Act—has found that [Strickland] is entitled to back pay.” Id. As for

Strickland’s contention that a district court could be an “appropriate authority,” defendants

argue that “she has not identified an ‘applicable law’ that authorizes the district court to

decide in the first instance whether she was subject to an unwarranted personnel action,”

and that, instead, “applicable law gives the Chief Judge and Judicial Council the authority

to do that pursuant to the EDR Plan.” Id. at 18–19.

It appears to be undisputed that, under the terms of the EDR Plan, an “appropriate

authority” for purposes of the Back Pay Act would have included “the Chief Judge of the

. . . Fourth Circuit” and/or “the Judicial Council of the Circuit.” Aplt. App., Vol. II at 664

(quoting Chapter X, § 1 of EDR Plan). It also appears to be undisputed that, as defendants

assert in their appellate response brief, Strickland failed to exhaust her remedies under the

EDR Plan. More specifically, Strickland never filed a complaint and sought a hearing

under the EDR Plan. Consequently, neither the Chief Judge nor the Judicial Council

rendered a decision regarding her allegations of discrimination and retaliation.

104 That leaves Strickland’s argument that the district court in this case should be

deemed an “appropriate authority” for purposes of the Back Pay Act. The Back Pay Act

itself does not define the phrase “appropriate authority.” To be sure, Congress directed the

Office of Personnel Management (OPM) to “prescribe regulations to carry out” the Back

Pay Act, 5 U.S.C. § 5596(c), and the OPM’s implementing regulations define key terms

and phrases in the Back Pay Act, including “appropriate authority.” 5 C.F.R. § 550.803.

But Congress also made clear that the OPM’s implementing “regulations are not applicable

to” the AO, the Federal Judicial Center, and the federal courts. 5 U.S.C. §§ 5596(a)(2),

(c). Thus, we must ignore the OPM’s implementing regulations and determine for

ourselves the meaning of the statutory phrase “appropriate authority.”

The plain text of the Back Pay Act requires an employee/plaintiff to establish, in

part, that an “appropriate authority” found, in the context “of a timely appeal or an

administrative determination,” and “under applicable law, rule, regulation, or collective

bargaining agreement,” that the employee/plaintiff was “affected by an unjustified or

unwarranted personnel action.” 5 U.S.C. § 5596(b)(1). These requirements make clear, in

our view, that an “appropriate authority” exists only when the statute’s context requirement

is met, i.e., when a decision is rendered in the context “of a timely appeal or an

administrative determination.”

We fail to see how the statute’s context requirement could be satisfied in this case,

and Strickland makes no attempt to address that issue. To begin with, a decision by the

district court in this case on the merits of Strickland’s claims would not be rendered in the

105 context “of a timely appeal.” That is because Strickland’s claims were filed originally in

the district court and do not stem from any decision by a lower body or agency.

As for whether a decision by the district court could constitute an “administrative

determination,” the Back Pay Act does not define the phrase “administrative

determination.” Black’s Law Dictionary defines the term “administrative” to mean “[o]f,

relating to, or involving the work of managing a company or organization; executive.”

Black’s Law Dictionary (11th ed. 2019). The Oxford English Dictionary defines the term

in a similar manner. OED Third Ed., December 2011 (defining “administration” to mean

“[o]f, relating to, or concerned with administration (in various senses); (in later use esp.)

relating to or required for the running of a business, organization, etc.”). Applying those

definitions to the case at hand, we conclude that a decision by the district court could not

reasonably be deemed an administrative determination for purposes of the statute’s context

requirement. Rather, such decisions are, under the normal meaning of the word

“administrative,” confined to determinations made by agencies themselves. This in turn

supports the notion that only a decision by the Chief Judge and/or the Judicial Council

pursuant to the EDR Plan would constitute an administrative determination by an

appropriate authority. Cf. United States v. Fausto, 484 U.S. 439, 454 (1988) (holding that

“the Claims Court (and any other court relying on Tucker Act jurisdiction) is not an

‘appropriate authority’ to review an agency’s personnel determination” under the Back Pay

Act); Bell v. United States, 23 Cl. Ct. 73, 76 (Cl. Ct. 1991) (same).

106 For these reasons, we conclude that Strickland has failed to establish that the district

court could reasonably be classified as an “appropriate authority” under the Back Pay Act

because there was no “timely appeal” or an “administrative determination” in this case.

5) Conclusion

We agree with the district court that the Back Pay Act and the APA do not waive

sovereign immunity for Strickland’s claims for back pay and other requested relief against

the Official Capacity Defendants. But we conclude, contrary to the district court’s

decision, that Strickland’s nonstatutory review claims for prospective equitable relief

against the Official Capacity Defendants, i.e., her Fifth Amendment due process and equal

protection claims, are not barred by sovereign immunity.

F. Bivens

The Individual Capacity Defendants argue that Strickland lacks a cause of action

against them under Bivens for the alleged Fifth Amendment equal protection violations.

Aple. Br. at 40; see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1976). The district court did not reach this issue because it concluded that

Strickland’s complaint failed to allege a viable claim for relief under the Fifth

Amendment’s Equal Protection Clause. Because we conclude that Strickland’s complaint

does in fact allege a viable claim for relief under the Fifth Amendment’s Equal Protection

107 Clause, we proceed to address whether Bivens permits Strickland to seek money damages

for that claim against the Individual Capacity Defendants. 18

“If [Strickland] were bringing” her Fifth Amendment “claim[] against state officials

[in their individual capacities], then there would be no question that [s]he could seek money

damages under 42 U.S.C. § 1983.” Annappareddy v. Pascale, 996 F.3d 120, 132 (4th Cir.

2021) (emphasis in original). Because, however, “no statute provides an analogous cause

of action against federal officials,” any remedy for her alleged constitutional violations

against the Individual Capacity Defendants “must come in the form of the implied cause

of action first recognized in Bivens.” Id. (quotation marks omitted) (emphasis in original).

In Bivens, the Supreme Court “recognized for the first time an implied private action

for damages against federal officers alleged to have violated a citizen’s constitutional

rights.” Ashcroft, 556 U.S. at 675 (quoting Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 66

(2001)). “In that case and then in two subsequent cases, the Supreme Court allowed

plaintiffs alleging certain Fourth, Fifth, and Eighth Amendment violations to proceed under

this implied cause of action.” Annappareddy, 996 F.3d at 133; see Bivens, 403 U.S. at

396–97 (recognizing Fourth Amendment violation resulting from use of unreasonable

force during a warrantless search and seizure); Davis, 442 U.S. at 248–49 (recognizing a

18 Strickland argues that we “should remand the Bivens issue to the District Court to consider in the first instance.” Aplt. Br. at 49₋50. We could, of course, remand the Bivens question to the district court for a determination in the first instance. But, for purposes of expedience and efficiency, and because the parties briefed the Bivens issue in detail in their district court pleadings, we proceed to address the question in the first instance.

108 remedy for the violation of the equal protection component of the Fifth Amendment’s Due

Process Clause resulting from a congressman’s termination of plaintiff’s employment

because of her gender); Carlson v. Green, 446 U.S. 14, 17–19 (1980) (recognizing a

remedy for a violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause

arising out of a federal prison officials’ failure to provide proper medical care to a prisoner).

“In the years since those [three] cases were decided, however, the Supreme Court’s

approach to implied damage remedies has changed dramatically, to the point that

expanding the Bivens remedy is now a disfavored judicial activity.” Annappareddy, 996

F.3d at 133 (quotation marks omitted). “Indeed, the Court has gone so far as to observe

that if the Court’s three Bivens cases [had] been . . . decided today, it is doubtful that [it]

would have reached the same result.” Id. (quotation marks omitted) (citing Hernandez v.

Mesa, 140 S. Ct. 735, 742–43 (2020)). “And for almost 40 years, [the Court has]

consistently rebuffed requests to add to the claims allowed under Bivens.” Hernandez, 140

S. Ct. at 743.

Consistent with its current view of Bivens actions, the Supreme Court has outlined

a two-step framework for determining whether a claim asserted under Bivens can proceed.

Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). First, a court must determine whether the

claims at issue present a new Bivens context, i.e., a context different from the contexts at

issue in Bivens, Davis, and Carlson. “To present a new context, a radical difference is not

required.” Annappareddy, 996 F.3d at 133 (quotation marks omitted). The Supreme Court

in Abbasi outlined a non-exhaustive list of potentially meaningful differences:

109 the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

Abbasi, 137 S. Ct. at 1860. “If the context is not new . . . then a Bivens remedy continues

to be available.” Annappareddy, 996 F.3d at 133 (quotation marks omitted) (emphasis in

original). “But if the context is new, courts must move on to the second step of the Bivens

analysis: evaluat[ing] whether there are special factors counselling hesitation in the

absence of affirmative action by Congress.” Id. (quotation marks omitted) (emphasis in

original). “If such special factors are present, a Bivens action is not available.” Id.

Applying the Abbasi framework to Strickland’s Fifth Amendment Equal Protection

claim, the first step is to determine whether that claim presents a new Bivens context. On

the one hand, the Supreme Court has already extended Bivens to a Fifth Amendment Equal

Protection claim arising in the context of sex discrimination in federal employment. See

Davis, 442 U.S. at 248–49 (1979) (recognizing a remedy for the violation of the equal

protection component of the Fifth Amendment’s Due Process Clause resulting from a

congressman’s termination of plaintiff’s employment because of her gender). In addition,

there is relatively clear judicial guidance, albeit in the context of federal discrimination

statutes rather than Bivens actions, as to how a supervisory official should respond to a

complaint that an employee is being sexually harassed by another employee.

110 But those two factors aside, Strickland’s claim clearly appears to us to present a new

context. To begin with, the defendants against whom the claim is asserted—a federal

circuit judge, a federal public defender, and other federal judiciary employees—are

strikingly different from the sole defendant in Davis, “who was a United States

Congressman at the time th[e] case commenced.” 442 U.S. at 228. Further, the actions

that Strickland seeks to challenge in her Fifth Amendment Equal Protection claim are more

far-reaching than the one specific action that was challenged by the plaintiff in Davis, i.e.,

the defendant congressman’s issuance of a letter terminating her employment because he

believed that a man was needed in the position that she occupied. 442 U.S. at 230 (the

letter concluded “that it was essential that the understudy to my Administrative Assistant

be a man”). More specifically, Strickland is challenging defendants’ response to her initial

allegations of sexual harassment, as well as the manner in which the EDR Plan was

executed by defendants in response to her request for an investigation and mediation.

Further, unlike the situation in Davis, where the defendant congressman was not operating

under any specific statutory or legal mandate when he issued the termination letter to the

plaintiff, the defendants in this action were operating under the framework of the EDR Plan

when they responded, or attempted to respond, to Strickland’s allegations of sexual

harassment. Finally, the fact that Congress has, to date, intentionally exempted the federal

judiciary from the reach of anti-discrimination employment statutes appears to be a

potential special factor that was not at issue in the previous Bivens cases. Thus, in sum, we

conclude that Strickland’s Fifth Amendment equal protection claim presents a new Bivens

context.

111 Because Strickland’s Fifth Amendment equal protection claim presents a new

Bivens context, the next question is whether there are special factors that counsel hesitation

in the absence of affirmative action by Congress. As previously noted, Congress has, to

date, intentionally exempted the federal judiciary from the reach of federal employment

statutes (including, as discussed in greater detail below, the Civil Service Reform Act), and

has instead effectively allowed the federal judiciary to police itself in terms of addressing

claims of employment discrimination by federal judiciary employees. In light of that

backdrop, it seems clear to us that the question of whether a damages action should be

allowed against federal judicial officials in their individual capacities “is a decision for the

Congress to make, not the courts.” Abbasi, 137 S. Ct. at 1860. Thus, we conclude that

Bivens should not be extended to the Fifth Amendment equal protection claim asserted by

Strickland in her complaint.

G. The Civil Service Reform Act

Defendants also argue that Strickland’s claims are all barred by the Civil Service

Reform Act, 5 U.S.C. § 1101 et seq. (CSRA). We reject that argument.

“The CSRA, enacted in 1978, ‘comprehensively overhauled the civil service

system,’ replacing a patchwork of rules and regulations with a ‘new framework for

evaluating adverse personnel actions against [federal employees].’” Dotson, 398 F.3d at

163 (quoting Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 773–74 (1985)). “‘[T]o

balance the legitimate interests of the various categories of federal employees with the

needs of sound and efficient administration,’ the CSRA creates ‘an integrated scheme of

112 administrative and judicial review’ for adverse employment actions.” Id. (quoting United

States v. Fausto, 484 U.S. 439, 445 (1988)).

The CSRA does not, however, “afford . . . administrative or judicial review to

judicial branch employees such as [Strickland].” Id. “The CSRA divides civil service

personnel into three main classifications: the senior executive service, the competitive

service, and the excepted service.” Id. “[E]mployees of the judicial branch . . . qualify as

excepted service personnel because they are neither in the executive branch nor included

in the competitive service by statute.” Id. Although “[t]hree sections of the CSRA,

Chapters 23, 43, and 75, afford detailed procedural protections to civil service employees

who experience adverse employment actions,” none of them apply to excepted service

judicial branch employees such as Strickland. Id.

The Supreme Court and federal circuit courts have all noted the comprehensive

nature of the CSRA and concluded that the lack of remedy provided therein to certain

classes of federal employees is not due to inadvertence on the part of Congress. See

Schweiker v. Chilicky, 487 U.S. 412, 423 (1988); Dotson, 398 F.3d at 167–68 (collecting

cases). As a result, the Supreme Court and federal circuit courts have generally refused to

create additional Bivens remedies for those classes of federal employees. See Schweiker,

487 U.S. at 423 (“When the design of a Government program [such as the CSRA] suggests

that Congress has provided what it considers adequate remedial mechanisms for

constitutional violations that may occur in the course of its administration,” the Court

“ha[s] not created additional Bivens remedies”); Dotson, 398 F.3d at 167–68 (collecting

cases). More specifically, the Supreme Court and federal circuit courts have generally

113 treated the comprehensiveness of the CSRA as a special factor that weighs against creating

Bivens remedies for federal employees who lack remedies under the CSRA. Thus, and for

the reasons we have previously discussed, we agree with defendants that the CSRA

effectively operates to preclude Strickland from asserting Bivens claims for money

damages against the Individual Capacity Defendants in this case.

But that still leaves open the question of whether the CSRA also operates to preclude

Strickland from asserting her nonstatutory review claims seeking equitable relief against

the Official Capacity Defendants. Those claims, as we have discussed, seek to enjoin the

Official Capacity Defendants from exceeding the scope of their authority or acting

unconstitutionally in their design of the Fourth Circuit’s EDR Plan, as well as in their

administration of the EDR Plan and its procedures in her particular case.

“The circuits are divided as to whether equitable relief such as reinstatement is

available to federal employees notwithstanding their general agreement that the CSRA

precludes Bivens claims for damages.” Dotson, 398 F.3d at 179. The Third and D.C.

Circuits have concluded the CSRA does not preclude federal employees’ claims for

equitable relief, reasoning, in part, “that the CSRA does not” express Congress’ intent to

bar such actions “with sufficient strength and clarity to bar courts’ traditional power to do

equity.” Id. at 180 (citing cases). “The First, Fourth, Ninth, Tenth, and Eleventh Circuits,”

on the other hand, “have concluded from the comprehensive nature of the CSRA that

Congress did not intend for federal employees to pursue supplemental judicial relief, even

in equity, for classic employment disputes.” Id. at 179 (citing cases).

114 The Fourth Circuit addressed this general issue nearly forty years ago in Pinar v.

Dole, 747 F.2d 899 (4th Cir. 1984). The plaintiff in that case was a Federal Aviation

Administration (FAA) police officer who filed suit against the Secretary of the Department

of Transportation and various FAA officials “contesting three personnel actions taken

against him: (1) the issuance of a letter of reprimand for making false and unfounded

statements about another employee; (2) a two-day suspension without pay and benefits for

mishandling his firearm; and (3) the termination of his temporary promotion to GS-6 for

being unresponsive to authority.” Id. at 902. The plaintiff claimed violations of his First

Amendment rights and “his [F]ifth [A]mendment right to due process.” Id. He “sought

injunctive relief against the agency and money damages against the individual” defendants.

Id. The district court dismissed the claims and the plaintiff appealed to the Fourth Circuit.

The Fourth Circuit began its analysis by rejecting the plaintiff’s “claim under the [F]irst

[A]mendment for damages against the individual defendants.” Id. at 904. The court noted,

in pertinent part, that the CSRA afforded the plaintiff “constitutionally adequate procedures

to protect his [F]irst [A]mendment rights” and that “[t]o afford [him] a full hearing with

the right to direct judicial review of the relatively minor personnel actions he received

would unduly frustrate the government’s interest in efficiently administering the federal

workforce.” Id. at 908. As for the plaintiff’s claim for equitable relief, the Fourth Circuit

concluded that “[a] review of the remedial provisions of the CSRA support[ed] the finding

that Congress clearly intended the comprehensive remedies available to [him] to be

exclusive.” Id. at 910. More specifically, the Fourth Circuit held that “in this case where

the personnel actions are so minor in nature and where the available statutory remedies are

115 constitutionally adequate to provide relief, we conclude that Congress intended that

judicially-created remedies in district court not be made available.” Id. at 912.

Strickland’s case, however, is distinguishable from Pinar and thus requires us to

decide an issue that was not decided in Pinar. Unlike the plaintiff in Pinar, Strickland is

not simply challenging one or more personnel decisions. To be sure, she is alleging that

she was subjected to sexual harassment in the workplace and that she was constructively

discharged. But the substance of her claims focuses on the defendants’ actions in both

designing the EDR Plan, and in turn in executing the EDR Plan in response to her

allegations of workplace sexual harassment. Strickland also effectively alleges that

defendants’ actions knowingly deprived her of meaningful review of her claims of sexual

harassment and that these actions ultimately led to her constructive discharge.

In resolving this issue, we find persuasive the Third Circuit’s decision in Semper v.

Gomez, 747 F.3d 229 (3d Cir. 2014). That case was filed by a federal probation officer

challenging his termination. The Third Circuit “concluded that the CSRA precluded [his]

constitutional claims for equitable and declaratory relief because he was a judicial

employee who could pursue meaningful relief under a remedial plan adopted by the District

Court of the Virgin Islands that provide[d] for meaningful review of his claims by judicial

officers.” Id. at 235. In reaching this result, the Third Circuit “conclude[d] that the CSRA

precludes a federal employee from litigating constitutional claims for equitable and

declaratory relief in a [28 U.S.C.] § 1331 action where the employee could pursue

meaningful relief under a remedial plan that provides for meaningful review of his or her

claims by judicial officers,” but that “a federal employee who could not pursue meaningful

116 relief through a remedial plan that includes some measure of meaningful judicial review

has the right to seek equitable and declaratory relief for alleged constitutional violations

in a ‘federal question’ action filed pursuant to § 1331.” Id. at 242 (emphasis added). In

so concluding, the Third Circuit noted “that it would be unnecessary and even inappropriate

to allow a judicial employee to file a lawsuit against a judicial officer where the judiciary

has already provided a means for this person to obtain meaningful relief together with a

measure of judicial review.” Id. at 243.

Generally speaking, an EDR Plan like the one in place in the Fourth Circuit is

designed to “provide[] for both a measure of judicial review and the means to obtain

meaningful relief to an employee covered under th[e] . . . Plan who claims a denial of the

rights granted [t]hereunder.” Semper, 747 F.3d at 244 (quotation marks and brackets

omitted). But Strickland’s allegations that the Official Capacity Defendants exceeded their

authority and/or acted unconstitutionally in the manner in which they implemented the

EDR plan and considered her claims of sexual harassment place Strickland’s case within

the exception identified by the Third Circuit in Semper. These allegations present a

situation where Strickland contends that she has been deprived of a forum for meaningful

review of her claims by judicial officers. As a result, we conclude that the CSRA should

not be interpreted as precluding Strickland’s claims for equitable relief against the Official

Capacity Defendants.

117 IV

The effect of our rulings is as follows: Strickland’s Fifth Amendment due process

claim, to the extent that it alleges a deprivation of Strickland’s property rights, and to the

extent that it is asserted against the Official Capacity Defendants, is sufficient to survive

the motions to dismiss; to the extent the Fifth Amendment due process claim alleges the

deprivation of a liberty interest, however, it was properly dismissed by the district court.

Strickland’s Fifth Amendment equal protection claim, to the extent that it is asserted

against the Official Capacity Defendants, is sufficient to survive the motions to dismiss.

The Official Capacity Defendants are entitled to sovereign immunity from the Fifth

Amendment due process and equal protection claims only to the extent those claims seek

back pay; in other words, Strickland’s potential recovery on those claims against the

Official Capacity Defendants is limited to prospective equitable relief.

With respect to the Individual Capacity Defendants, Strickland’s Fifth Amendment

equal protection claim is subject to dismissal because Strickland cannot state a cause of

action under Bivens. Strickland’s §§ 1985 and 1986 claims against the Individual Capacity

Defendants are inadequately pled and were thus properly dismissed by the district court.

Strickland’s motion to vacate the district court’s judgment and to disqualify/recuse

both the district court judge and this panel is DENIED. Strickland’s motion to file an

addendum/attachment to her reply brief is GRANTED. The district court’s judgment is

AFFIRMED in part and REVERSED in part and the case is REMANDED to the district

court for further proceedings consistent with this opinion.