United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED April 10, 2024 No. 23-60199 Lyle W. Cayce ____________ Clerk Mark Johnson,

Plaintiff—Appellant,

versus George Miller, Sr., individual capacity; Donald Mitchell, individual capacity; Clarksdale Public Utilities Commission,

Defendants—Appellees. ______________________________

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:21-CV-120 ______________________________ Before Elrod, Willett, and Duncan, Circuit Judges. Don R. Willett, Circuit Judge: This case concerns the procedural interplay between two Mississippi statutes—the Mississippi Tort Claims Act (MTCA) and the Mississippi Whistleblower Protection Act (MWPA). Long story short, Mark Johnson filed a retaliation complaint under the MWPA, alleging that he was fired from his position as general manager of the Clarksdale Public Utilities Authority (CPU) for reporting inefficiency and incompetence. Johnson later added claims for First Amendment retaliation and breach of contract. Case: 23-60199 Document: 54-1 Page: 2 Date Filed: 04/10/2024

No. 23-60199

The district court held that the procedural requirements of the MTCA applied to Johnson’s MWPA claim, and because the court concluded he didn’t comply with them, it dismissed his claim. We are unable to make a reliable Erie guess as to whether the MTCA’s procedural requirements apply to MWPA claims because we lack clear guidance from Mississippi courts on how the two statutes interrelate. We must resolve that threshold question before we can reach three others: (1) whether Johnson’s original complaint was timely filed; (2) whether he complied with the MTCA’s procedural requirements (if they apply); and (3) whether his two later-added claims relate back to the original complaint. Therefore, we certify this question to the Supreme Court of Mississippi: When a plaintiff brings a claim against the government and its employees for tortious conduct under the MWPA, is that claim subject to the procedural requirements of the MTCA? I Mark Johnson sued the CPU and its members in diversity in federal court on September 22, 2021. His initial complaint was only three pages long. Johnson pleaded that he had been hired as the general manager of the CPU in June 2017, had witnessed “multiple acts of abuse of authority,” had reported it to various government officials, and eventually was terminated on September 25, 2018 in retaliation for his reports to the state auditor under the pretext that he had wiretapped phones. The complaint did not have a section for causes of action but referenced the MWPA and retaliation. Johnson sought backpay, compensatory damages, attorney fees, reinstatement, and civil fines from CPU board members. Defendants moved to dismiss the complaint for failure to state a claim. Johnson later amended his complaint. There, he clearly specified two causes of action—First Amendment retaliation and MWPA retaliation.

2 Case: 23-60199 Document: 54-1 Page: 3 Date Filed: 04/10/2024

No. 23-60199

Shortly after, Johnson moved to amend a second time.