Part-Time Public Defender Sued for Retirement Benefits Too Late

June 11, 2021, 2:48 PM

A former assistant public defender in Yazoo County, Miss., waited too long to file a lawsuit claiming he was wrongly excluded from the state’s public retirement plan, the U.S. Court of Appeals for the Fifth Circuit ruled.

Michael Rushing knew he was classified as a part-time contractor ineligible for state benefits by at least July 2014, when he complained about this classification in a letter to the attorney for Yazoo County’s board of supervisors, the court said. Because Rushing knew about this alleged wrong more than three years before he sued in 2018, his claims for federal civil rights violations and fiduciary breach under Mississippi law are time-barred, the court said.

Rushing worked part-time as an assistant public defender for Yazoo County in the 1990s and again from 2009 to 2017, maintaining a private law practice during his tenure. Both of his appointments were made pursuant to orders from the county’s board of supervisors, which provided that assistant public defenders weren’t covered by the Public Employees’ Retirement System of Mississippi.

Rushing challenged this exclusion from state benefits, arguing that the deadline for bringing his claims didn’t begin to run until he resigned from his position in 2017.

The court disagreed.

“As relevant here, the (allegedly) unlawful act is the Board’s classification of him as a part-time contractor ineligible for county employment benefits, including PERS retirement,” the court said. “That act was accomplished through the 1997 Order and the 2008 Order, and Rushing had actual knowledge of the existence, content, and effect of both orders by July 2014, at the latest.”

The court’s unpublished opinion, issued Thursday, was joined by Chief Judge Priscilla R. Owen and Judges E. Grady Jolly and James L. Dennis.

Joiner Law Firm PLLC represents Rushing. Henry, Barbour, Decell and Bridgforth Ltd. represents the county. The Mississippi attorney general’s office represents the retirement system.

The case is Rushing v. Yazoo Cnty., 5th Cir., No. 20-60462, unpublished 6/10/21.

To contact the reporter on this story: Jacklyn Wille in Washington at jwille@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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