No MTCA Immunity for Malicious Interference with Employment: Fifth Circuit Aligns with Mississippi Supreme Court and Disavows Kilpatrick

Introduction

In Branson v. Harris (5th Cir. Apr. 3, 2025), the Fifth Circuit addressed whether a municipal board member sued in her individual capacity for malicious interference with employment can invoke immunity under the Mississippi Tort Claims Act (MTCA). The plaintiff, Arnetrius Branson, formerly the Chief Financial Officer of the Jackson Municipal Airport Authority (JMAA), alleged that the Board Chair, LaWanda Harris, used her position to secure Branson’s termination after Branson submitted a Form 1099 to the IRS reflecting per diem payments to Harris. While Branson’s federal Taxpayer First Act retaliation claim had been resolved at summary judgment in favor of the defendants, the district court allowed the state-law claim for malicious interference with employment to proceed and rejected Harris’s immunity arguments, characterizing the dispute as hinging on whether Harris acted within the “course and scope” of her role.

On interlocutory appeal, the Fifth Circuit clarified that the MTCA categorically does not apply to malice-based torts such as tortious (malicious) interference with employment. As a result, the “course and scope” inquiry that drove the district court’s reasoning was legally beside the point. The panel affirmed in part, reversed in part, and remanded, instructing the district court to proceed without treating MTCA immunity as a fact question in this context and to assess, in the first instance, whether Branson can prove the elements of malicious interference under Mississippi law.

Summary of the Opinion

The Fifth Circuit held that:

• The MTCA does not apply to claims that require proof of malice, including tortious interference with employment. Therefore, a governmental employee sued individually for such a claim cannot use the MTCA as a shield from suit.
• The district court erred by framing the immunity analysis as turning on a factual dispute about whether Harris’s conduct fell within the “course and scope” of her employment. Because the MTCA is inapplicable to this malice-based tort, “course and scope” is not the operative issue for immunity.
• The court affirmed the district court to the extent it allowed Branson’s malicious interference claim to proceed despite Harris’s MTCA immunity defense, but reversed the notion that the applicability of the MTCA depended on a fact issue.
• Exercising pendent appellate jurisdiction to consider the sufficiency of the evidence on the tort’s elements would have been premature because the district court had not yet ruled on those elements; the panel declined to address them and remanded.

Analysis

Precedents Cited and Their Role

• Mississippi Tort Claims Act framework:
  • Miss. Code § 11-46-5(1) and § 11-46-7(2): Generally waives sovereign immunity for the state and political subdivisions and protects governmental employees from personal liability for acts within the course and scope of employment; but expressly excludes certain conduct (fraud, malice, libel, slander, defamation, criminal offenses).
  • Green v. City of Moss Point (5th Cir. 2012) (unpublished): Recognizes personal liability for employees who commit torts with malicious intent; consistent with the MTCA’s exclusion of malice-based acts from course-and-scope immunity.
• Malice-based torts are outside the MTCA:
  • Zumwalt v. Jones County Board of Supervisors (Miss. 2009): Confirms the MTCA does not apply to malice-based torts.
  • Springer v. Ausbern Construction Co. (Miss. 2017): Clarifies the distinction between tortious breach of contract and tortious interference with contract, emphasizing malice as an element of the latter and explicitly removing it from the MTCA’s purview.
  • University of Mississippi Medical Center v. Oliver (Miss. 2017): Reinforces that defendants may not invoke the MTCA to shield against individual liability for malice-based torts.
  • Turner v. Oliver (5th Cir. Mar. 7, 2025): Recent Fifth Circuit alignment recognizing MTCA inapplicability to malicious interference claims.
• Elements of tortious interference with employment:
  • McClinton v. Delta Pride Catfish, Inc. (Miss. 2001): Sets forth the four elements of tortious interference: intentional and willful acts; calculated to cause damage; done with unlawful purpose and without justifiable cause (malice); and actual damage resulted.
  • Levens v. Campbell (Miss. 1999) and Gibson v. Estes (5th Cir. 2009) (unpublished): Use “malicious interference,” “tortious interference with employment,” and “tortious interference with contract” interchangeably in Mississippi law.
• Fifth Circuit’s rule of orderliness and correction of prior panel law:
  • Gibson v. Kilpatrick (5th Cir. 2016): Had treated malicious interference with employment as a contract claim subject to the MTCA; this understanding rested on an interpretation of Whiting v. University of Southern Mississippi (Miss. 2011).
  • Springer (2017) later clarified and corrected the underlying Mississippi law, overruling the relevant portion of Whiting. Consequently, under Coleman E. Adler & Sons, LLC v. Axis Surplus Insurance Co. (5th Cir. 2022), the Fifth Circuit is not bound by its earlier Kilpatrick panel where the state’s highest court has provided a contrary subsequent holding.
• Appellate jurisdiction over immunity denials:
  • Lampton v. Diaz (5th Cir. 2011) and Bosarge v. Mississippi Bureau of Narcotics (5th Cir. 2015): Denials of immunity under Mississippi law are reviewable as collateral orders to the extent they turn on questions of law.
  • Walton v. City of Verona (5th Cir. 2023) and Wilkerson v. University of North Texas (5th Cir. 2017): The court reviews de novo whether factual disputes are material.
  • Mitchell v. City of Greenville (Miss. 2003) and Mitchell v. Forsyth (U.S. 1985): Immunity is an entitlement not to stand trial and is effectively lost if the case proceeds to trial, justifying interlocutory review.
  • Janvey v. Libyan Investment Authority (5th Cir. 2016): Pendent appellate jurisdiction permits review of closely related issues, but the panel declined to reach the tort elements here.
  • Rutila v. Department of Transportation (5th Cir. 2021) and Cutter v. Wilkinson (U.S. 2005): The appellate court is a “court of review, not of first view” and typically will not decide issues not addressed by the district court.

Legal Reasoning

The Fifth Circuit’s analysis proceeded in two steps.

1. Appellate jurisdiction and scope of review:

   Although denials of summary judgment are not ordinarily immediately appealable, denials of immunity under state law are reviewable to the extent they present legal questions. Here, the district court denied summary judgment, reasoning that a factual dispute existed about whether Harris acted within the “course and scope” of her role. Because that language tracks the MTCA’s framework, the Fifth Circuit treated the ruling as an implicit denial of MTCA immunity. This opened the door to collateral-order review of the legal question whether the MTCA applies at all to a malicious interference claim.

2. MTCA inapplicability to malicious interference claims:

   The panel held that Mississippi Supreme Court authority (Zumwalt, Springer, Oliver) makes clear that malice-based torts—including tortious interference with employment—are not governed by the MTCA. That conclusion has two immediate consequences:

   • The “course and scope” analysis which anchors MTCA immunity for governmental employees is irrelevant for a tort that the MTCA does not cover. Even if a fact dispute exists about whether a board member acted within her official capacity, that question does not resolve immunity where the statute is inapplicable by its own terms.
   • To the extent prior Fifth Circuit dicta or holdings (e.g., Kilpatrick) suggested the contrary, they cannot control in light of subsequent, contrary guidance from the Mississippi Supreme Court. Under the rule of orderliness, the Fifth Circuit follows the state high court’s later decision on matters of state law.

   The court thus affirmed the bottom-line result—that Branson’s malicious interference claim is not barred by MTCA immunity—but reversed the district court’s reasoning that treated MTCA applicability as a fact issue. Because the district court had not analyzed whether the record supports each element of malicious interference (intentionality, calculated harm, malice/absence of justification, damages), the Fifth Circuit declined to reach those issues and remanded for the district court to address them in the first instance.

The panel also noted and rejected an additional contention by Harris: that a court must first find malice before deeming conduct outside the course and scope. That sequencing argument fails because the MTCA does not apply to this cause of action at all; there is no reason to undertake a course-and-scope analysis to decide immunity for a tort that lies outside the MTCA’s coverage.

Practical Impact and Future Litigation

• Clarified immunity landscape for Mississippi public employees:

  Public officials and employees in Mississippi cannot invoke MTCA immunity to defeat individual-capacity claims for malice-based torts such as tortious interference with employment. This decision confirms and applies Mississippi Supreme Court law and clarifies Fifth Circuit precedent in federal cases arising under Mississippi law. The effect is to expose individual public officials to potential personal liability where plaintiffs can prove malice.

• Reduced salience of “course and scope” fact disputes in malice-based tort cases:

  Litigants should not expect to defeat or sustain malicious interference claims by focusing on course-and-scope factual disputes under the MTCA. The dispositive threshold is that the MTCA does not apply. The real battleground will be the elements of the tort—especially malice and lack of justification—and causation/damages.

• Litigation strategy and pleading considerations:

  Plaintiffs may be incentivized to plead malice-based torts to avoid MTCA immunity. But this is no free pass: malice is a demanding element under Mississippi law, requiring proof that the defendant acted with an unlawful purpose and without right or justifiable cause. Conclusory allegations will not survive summary judgment. Plaintiffs should develop evidence of intentional, unjustified interference and actual, quantifiable damages.

• Defenses and alternative immunities:

  While the MTCA is off the table for these claims, defendants may still raise other defenses. Depending on the facts, these might include justification or privilege defenses to interference, lack of causation, absence of damages, or, in some contexts, legislative or absolute privileges if the conduct qualifies. The panel left these questions to the district court on remand.

• Interlocutory appeals protocol:

  The opinion reaffirms that denials of MTCA immunity are reviewable as collateral orders to the extent they turn on legal questions. But the court will resist addressing issues the district court has not decided. Parties should ask district courts to decide the immunity question and then separately address the merits of the tort’s elements to preserve issues for appeal.

• Institutional implications for boards and agencies:

  Governing bodies like JMAA boards should appreciate that individual members’ exposure is not coextensive with entity immunity under the MTCA. Training on conflicts of interest, recusal practices, documentation of “justifiable cause” in employment actions, and adherence to internal protocols may mitigate the risk of malice-based allegations. Entities should also review indemnification policies; many do not or cannot indemnify for malicious or willful misconduct.

• Unpublished but influential:

  Although the opinion is unpublished under Fifth Circuit Rule 47.5 and not binding precedent except in limited circumstances, it is a clear and current statement of how the Fifth Circuit will apply Mississippi Supreme Court law on MTCA inapplicability to malice-based torts and how it treats earlier, inconsistent panel decisions after Springer.

Complex Concepts Simplified

• Mississippi Tort Claims Act (MTCA):

  A statute that generally waives sovereign immunity for Mississippi governmental entities and protects their employees from personal liability when acting within the scope of their jobs. But it contains an explicit carveout: acts involving malice, fraud, or certain other wrongful conduct are not protected.

• “Course and scope” of employment:

  A legal test asking whether an employee’s actions were undertaken as part of their job duties. Under the MTCA, employees are immunized for acts within the course and scope—but not for malice-based torts, where the MTCA is inapplicable.

• Malicious (tortious) interference with employment:

  A Mississippi tort that requires the plaintiff to show that the defendant intentionally and without justification interfered with the plaintiff’s employment, causing actual damage. “Malice” here means an unlawful purpose and action without right or justifiable cause, not necessarily personal hatred.

• Collateral order doctrine / interlocutory review of immunity denials:

  Some orders, like denials of immunity, are immediately appealable even before the case ends, because immunity is a right not to go to trial at all, not just a defense to liability later.

• Rule of orderliness:

  The Fifth Circuit follows its own prior panel decisions unless an intervening decision of the U.S. Supreme Court or (for state-law questions) the state’s highest court clearly sets out contrary law. Here, the Mississippi Supreme Court’s decisions after Whiting (especially Springer) displaced the understanding reflected in the Fifth Circuit’s earlier Kilpatrick decision.

Conclusion

Branson v. Harris firmly situates malicious interference with employment outside the MTCA’s immunity framework. By aligning with Mississippi Supreme Court precedent and recognizing Springer’s correction of Whiting, the Fifth Circuit dispels any lingering reliance on Kilpatrick to bring tortious interference claims under the MTCA and rejects “course and scope” as a dispositive fact issue for immunity in this context. The practical message is straightforward: Mississippi public officials sued individually for malice-based interference cannot invoke MTCA immunity to avoid suit. At the same time, plaintiffs must still meet the rigorous elements of the tort, particularly malice and lack of justification. On remand, the district court must now evaluate those elements on the summary-judgment record.

Beyond this case, the opinion guides litigants and courts in Mississippi-related federal cases to focus less on MTCA immunity when malice-based torts are alleged and more on the substantive merits and defenses. It also underscores the Fifth Circuit’s approach to interlocutory review of immunity denials and its fidelity to the Mississippi Supreme Court on state-law questions. Even as an unpublished decision, Branson provides a clear roadmap for handling malicious interference claims against governmental employees in Mississippi going forward.