A judicial advocacy group that opposes “leftist lawfare” has lodged a conduct complaint against federal Judge M. Casey Rodgers of the Northern District of Florida, accusing the jurist of sex bias in statements involving the Depo-Provera multidistrict litigation (MDL).
The Article III Project, a Texas-based group that claims to use “brass knuckles” tactics to confirm “constitutionalist” jurists, filed the complaint against Rodgers on Feb. 27 with the U.S. 11th District Court of Appeals in Atlanta. Rodgers is currently overseeing the MDL involving Pfizer Inc. and other defendants involved in the manufacture of the injectable contraceptive Depo-Provera, which plaintiffs allege increases the risk of developing a brian cancer.
In a case-management conference on Feb. 21, Rodgers told the parties’ attorneys that “females need to be adequately represented in your leadership,” according to the complaint letter authored by Article III President Michael R. Davis.
“This remark reflects an explicit preference for females in the allocation of professional roles and responsibilities,” Davis said in his letter. “By implying that sex – rather than qualifications, experience or merit – should influence selection for MDL leadership, Judge Rodgers engaged in conduct that constitutes impermissible bias and judicial misconduct.”
The Northern District of Florida declined to discuss the complaint. MDL defendant Pfizer also did not respond to a request for comment.
“Pursuant to the Rules for Judicial-Conduct and Judicial-Disability Proceedings, as adopted by the Judicial Conference, and the 11th Circuit Judicial Conduct and Disability Rules, the court has no comment,” a clerk of court told the Florida Record.
Davis cited rules governing federal courts that say judicial misconduct includes intentional bias on the basis of “race, color, sex, gender, gender identity, pregnancy, sexual orientation, religion, national origin, age or disability.”
In a Feb. 23 case-management order, Rodgers said the court favored a balanced leadership team that reflects the diversity of individual plaintiffs in the MDL, which will evaluate claims in about 70 cases that Depo-Provera can increase the risk of developing meningiomas, tumors found in tissues near the brain and spinal column.
“This does not by any means suggest that every single position requires female counsel, but simply that females should be adequately represented within leadership,” Rodgers said. “Those with a demonstrated track record of successfully working with others, building consensus and amicably managing disagreements are also preferred.”
Davis’ complaint also argues that the Constitution’s Fifth Amendment bars federal judges from engaging in gender-based discrimination without an “exceedingly persuasive justification.”
Rodgers’ statement favoring female attorneys flies in the face of the constitutional standard, he said.
“There is no legally permissible justification for using sex as a factor in judicial case management decisions,” Davis said. “Leadership roles in MDLs should be awarded based solely on merit, experience, and ability – not on sex.”
In turn, the judge’s actions have hurt public confidence in the federal court system’s impartiality and cast a shadow on the fairness of the MDL hearings, he said.
The Article III Project website indicates that none of the organization’s top officials is a woman.
Last month, the U.S. Judicial Panel on Multidistrict Litigation ordered the transfer of Depo-Provera cases to the Northern District of Florida, noting that Rodgers was an able jurist with access to judicial resources and “exceptional experience” in litigation dealing with products-liability MDLs.