By Nate Raymond

March 21 (Reuters) - A federal judge in Florida has acknowledged that she created the appearance of bias when she stated that women needed to be adequately represented among the lawyers who would be assigned to serve as the leadership team in mass tort litigation over the hormonal contraceptive drug Depo-Provera.

Chief U.S. Circuit Judge William Pryor of the Atlanta-based 11th U.S. Circuit Court of Appeals cited that acknowledgment by U.S. District Judge M. Casey Rodgers in Pensacola in an order dated Thursday dismissing an ethics complaint by a conservative activist.

"Although I have never engaged in impermissible discrimination when selecting attorneys for MDL leadership positions or in any other facet of my work, I acknowledge that my statements could be construed as creating a preference for female attorney representation in leadership positions during the selection process," Rodgers said in a letter.

Mike Davis, an ally of Republican President Donald Trump who heads the Article III Project, had filed the ethics complaint with the 11th Circuit Judicial Council last month over statements Rodgers made during the first case management conference in the multidistrict litigation.

At least 78 lawsuits so far have been consolidated before Rodgers alleging that Pfizer's Depo-Provera, or its generic equivalents, can cause users to develop one or more meningiomas, a type of brain tumor. The company denies the claims.

During a February 21 hearing to discuss the appointment of lead counsel, Rodgers expressed her views on the need for diversity and told lawyers for the plaintiffs that "females need to be adequately represented in your leadership."

A subsequent order stated that the judge "prefers a balanced leadership team that reflects diversity of all types and, in particular, leadership should reflect the diversity of the individual plaintiffs."

Davis argued those statements by the judge, an appointee of Republican President George W. Bush, constituted impermissible bias as they suggested sex would be a relevant factor in selecting lead counsel for the MDL, rather than merit.

Pryor, a conservative and fellow appointee of Bush, said the judicial code of conduct and the U.S. Constitution bar judges from engaging in sex-based discrimination, including by giving preferences to lawyers for leadership positions based on sex.

He pointed to a statement conservative U.S. Supreme Court Justice Samuel Alito wrote in 2013 when the justices declined to hear a case involving Sirius XM Radio.

Alito at the time took issue with the "unique" practice now-deceased U.S. District Judge Harold Baer in Manhattan had of urging lead law firms in class actions to staff the lawsuits with women and minority lawyers.

Pryor said that what had been a "unique" practice "has since been touted as a 'best practice' in multidistrict litigation," as "commentators openly encourage judges who preside over these actions to consider impermissible characteristics."

But he said the complaint against Rodgers should be dismissed after she acknowledged the concerns created by her statements and took steps to address them.

Following Davis' complaint, Rodgers issued a new order making clear any attorney could apply to lead the MDL, without any reference to their sex. She told applicants she would consider them solely on "individual merit."

Davis in a statement on Friday called the decision "a victory for judicial integrity."

(Reporting by Nate Raymond in Boston)

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