Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—5th Cir.: Alderman who declined to second clerk’s reappointment was entitled to qualified immunity, (May 13, 2025)

By Jason Albright, J.D.

The clerk had run for mayor against his preferred candidate and lost.

An alderman for the city of Macon, Mississippi was entitled to qualified immunity against a former court clerk’s First Amendment claim alleging that he retaliated against her, for running unsuccessfully against his preferred candidate for mayor, by declining to second her nomination for reappointment, the Fifth Circuit found. Under the controlling circuit precedent—which held that “someone who is not a final decisionmaker and makes a recommendation that leads to the plaintiff’s being harmed can be liable for retaliation”—the “violative nature” of the particular conduct of the alderman, who neither recommended the clerk’s removal nor suggested that another board member vote against her, was not clearly established (Atkins v. Hopkins, No. 24-60058 (5th Cir. May 12, 2025)).

Court clerk. The plaintiff, according to the appeals court, began serving as the court clerk for Macon, Mississippi, in 2003. The court clerk position requires reappointment by the board of aldermen every four years.

Embezzlement indictment. In January 2019, however, the city discovered that about $3,200 in municipal court fines and fees could not be accounted for. After a state investigation, the clerk was arrested and indicted for embezzlement.

Placed on leave. On October 6, 2020, the board of aldermen voted 4-1 to place her on leave. The defendant, an alderman for the city, was in the majority. Two days later, the clerk paid the state auditor $4,541, explaining that she wanted “to save her job,” and enrolled in a pretrial diversion program. Her embezzlement charges remain pending.

Reinstatement vote. On October 13, 2020, however, the board of aldermen voted 3-2, with the defendant again in the majority, to reinstate her as court clerk. In January 2021, after the board received her reimbursement check, the alderman said he “considered the [embezzlement] situation... ‘over and done.

Mayoral election. The plaintiff then ran for mayor against the preferred candidate of the alderman and lost. After the election, the new board, which included the alderman, met to consider reappointments, including for court clerk.

Not seconded for reappointment. One board member moved to reappoint her, but neither the alderman nor any other members seconded the motion. Her appointment thus ended.

Lawsuit and decision below. She sued the alderman, the other members of the board, and the new mayor in their individual and official capacities, raising First Amendment retaliation and other claims not relevant to the appeal. The defendants moved for summary judgment on the First Amendment claims, asserting qualified immunity, and the district court granted the motion for all defendants except the alderman. He timely appealed.

Sims. The Fifth Circuit initially observed that Sims v. City of Madisonville, 894 F.3d 632 (5th Cir. 2018) (per curiam) was controlling. In Sims, which addressed when a non-decisionmaker could be liable for First Amendment retaliation, a subordinate police officer had reported his supervisor for misconduct. His supervisor, in turn, recommended that the chief of police discipline him, and the chief then fired him. Though the supervisor could not fire him, he could be liable if his “unlawful conduct [was] a link in the causal chain that resulted in” the termination. Nonetheless, the court found, the supervisor was entitled to qualified immunity in the case because such a violation was not (yet) clearly established. In short, Sims, decided that “someone who is not a final decisionmaker and makes a recommendation that leads to the plaintiff’s being harmed can be liable for retaliation.”

No clearly established violation. Here, the appeals court found no similar clearly established violation. The alderman did not recommend the clerk’s removal or suggest that another board member should vote against her. Nor did he “set in motion” a disciplinary process that resulted in her termination. Instead, as an alderman on a five-member board, he merely declined to second a motion to reappoint her as court clerk, and her appointment naturally ended.

Sims thus did not clearly establish “the violative nature of [the alderman’s] particular conduct,” and because his violation—if any—of her First Amendment rights was not clearly established, the order of the district court was reversed and the matter remanded.

The case is No. 24-60058.

Judge: Smith, J.

Attorneys: Pieter Teeuwissen (Simon & Teeuwissen) for Yolanda Welch Atkins. Gregory Todd Butler (Phelps Dunbar) for Patrick Hopkins.

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