WAYNE MORRIS, )
)
Plaintiff/Appellant, )
) Appeal No.
) 01-A-01-9612-CH-00543
VS. )
) Davidson Chancery
) No. 96-705-I
CORRECTIONAL ENTERPRISES )
OF TENNESSEE, TENNESSEE )
CIVIL SERVICE COMMISSION, and
SUSAN R. WILLIAMS, in Her
Official Capacity as Commissioner of
)
)
)
FILED
the Tennessee Department of ) October 29, 1997
Personnel, )
) Cecil W. Crowson
Defendants/Appellees. ) Appellate Court Clerk
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR
LARRY D. WOODS
P. O. Box 24727
Nashville, Tennessee 37202-4727
Attorney for Plaintiff/Appellant
JOHN KNOX WALKUP
Attorney General & Reporter
JAMES C. FLOYD
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0490
Attorney for Defendants/Appellees
REVERSED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
LEWIS, J.
KOCH, J.
OPINION
The primary question in this appeal, from which all other issues flow, is
what is the procedure for determining whether a state employee was in the career
service, and thus entitled to civil service protection, or in the executive service serving
at the pleasure of his employer. We vacate the judgment of the chancery court and
give the appellant employee thirty days to act in accordance with the proper procedure
as outlined in the following opinion.
I.
Procedural History
The Tennessee Civil Service Commission (CSC) and Correctional
Enterprises of Tennessee (CET) denied the appellant an administrative hearing after
he was terminated from his job with Tennessee State Industries, a division of the
Department of Correction. Appellant then petitioned the Chancery Court of Davidson
County for review of the denial pursuant to the Uniform Administrative Procedures Act
(UAPA) adding a claim for the infringement on his rights in violation of 42 U.S.C. §
1983. Finding that it lacked jurisdiction to hear the § 1983 claim, the trial court
dismissed this portion of Appellant's petition. The court then found that Appellees'
decision not to grant Appellant a hearing was not subject to review in the chancery
court because there was no "contested case" in this matter and because the law
provides that "[t]he final step of th[e] grievance procedure for regular employees shall
be a request for review to the [CSC], and all decisions by the [CSC] upon such
requests for review shall be final." Tenn. Code Ann. § 8-30-328(a)(7) (1993).
II.
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Facts
Wayne Morris had been employed by the State of Tennessee for twenty-
seven years when he was terminated from his job in December of 1995. He began
his career with the state as a correctional officer. In 1984, he was transferred to
Tennessee State Industries, a division of the Department of Correction, where he
worked as a Correctional Industries Supervisor II. From 1984 to 1989, Mr. Morris
received merit pay increases and promotions becoming first a Correctional Industries
Supervisor III and, later, a Correctional Industries Supervisor V. In the latter position,
Mr. Morris was Plant Manager of the metal plant at Turney Center -- a state prison
industry facility containing a metal plant, a paint plant and a wood furniture plant. At
Turney Center, there is an Industries Operations Manager (IOM), a position which Mr.
Morris claims was filled by Ken Brown during Mr. Morris' entire tenure as Plant
Manager. It is Appellees' view that Mr. Morris' promotion in January of 1995 was to
the position of IOM. Contrarily, Mr. Morris asserts that CET and the CSC transferred
him from his position as Plant Manager of the metal plant to Plant Manager of the
wood furniture plant at which time Mr. Morris was promised a step raise.
Almost a year after the change in Mr. Morris' job, the Acting Executive
Director of CET notified Mr. Morris in a letter dated December 5, 1995 that, "[d]ue to
continuing quality control problems and the inadequate oversight of plant operations,"
he was being terminated from employment. When he attempted to utilize the
grievance procedures set up by statute for state employees, the Director for Human
Resource Management for CET told him that he was not entitled to a hearing because
he had been in an executive service position since January 16, 1995. The Director
asserted in a letter that the fact that Mr. Morris accepted the raise which he received
in January of 1995 indicates that he knowingly accepted this executive service
position. When Mr. Morris requested a Level V hearing before the CSC, his request
was again denied in a letter stating that his personnel records indicated that he has
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been in the executive service since January 16, 1995 and thus CSC has no authority
to hear his appeal.
III.
The Status of the Employee
The scope of Mr. Morris' rights with regard to his former employment is
defined by whether he was Plant Manager or IOM-- each position occupying a
different status under the Civil Service Code which divides all positions in the state
service between career service and executive service. Tenn. Code Ann. § 8-30-208
(1993). The Tennessee Code provides that a plant manager in a prison industry
"shall be a career service employee." Id. § 41-22-407(d) (1997). The statute further
provides that the Tennessee Rehabilitative Initiative in Correction Board (TRICOR),
with the approval of the commissioner of personnnel, "shall have the option of
declaring certain management positions, unique to the operations under the control
of the board, a part of the executive service and under the exclusive control of the
board." Id. Mr. Morris does not dispute that the position of IOM is such an executive
service job.
Significantly, if, at the time of his termination, Mr. Morris was a career
service employee who had completed his initial working test period, or a "regular
employee," he should have been given certain procedural protections under the Civil
Service Code. See id. § 8-30-101(a)(20) (Supp. 1997) (defining "regular employee").
For example, while § 8-30-328 sets up grievance procedures for both permanent and
regular employees in the state service, only regular employees are permitted a
contested case hearing before the CSC as the final step of these grievance
procedures. Id. § 8-30-328(7)(1993); Tenn. Comp. R. & Reg. R. 1120-11-.05(5)(b).
Moreover, a regular employee in the career service acquires a property right in his
position. Id. § 8-30-331(a) (1993). With such a right, "no suspension, demotion,
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dismissal or any other action which deprives a regular employee of such employee's
'property right' will become effective until minimum due process is provided." Id. The
statute provides that minimum due process includes written notice of the charges and
the opportunity to respond to these charges before any action is taken. Id. §
8-30-331(b)(1)-(2). An executive service employee, on the other hand, serves at the
pleasure of his employer. Tenn. Comp. R. & Reg. R. 1120-10-.02. While the
grievance procedures of § 8-30-328 are available to executive employees, for them
the final step of these procedures is before the agency appointing authority and is not
a contested case hearing. Tenn. Code Ann. § 8-30-328(a)(7); Tenn. Comp. R. & Reg.
R. 1120-11-.05(4).
In support of his position that he was a Plant Manager, and hence a
career service employee, Mr. Morris presented his own testimony as well as that of
a man who was present at a meeting in January of 1995 where Mr. Morris was offered
the job of managing the wood plant. Appellees have presented no evidence to
establish that Mr. Morris was the IOM. Rather, they rely on the bare assertion that the
grievance procedures do not apply to his termination because he was an executive
service employee. In addition, they maintain that the grievance procedures are not
available to adjudicate the issue of whether Mr. Morris was a Plant Manager or an
IOM at the time of his termination. As stated, the chancery court found that it did not
have jurisdiction to hear Mr. Morris' case under the UAPA since there had been no
contested case hearing. Finally, the court found that even if Mr. Morris were a civil
service employee, the right to appeal a grievance to the CSC is a determination
expressly within the exclusive authority of the CSC.
Mr. Morris is confronted with an interesting procedural dilemma: he
desires a contested case hearing to resolve the question of his status as a state
employee, the resolution of which would determine his right to a contested case
hearing in the first place. While Mr. Morris does not dispute that he has no right to a
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hearing if he was an executive employee at the time of his termination, he argues that
his claim and uncontroverted proof that he was in the career service entitles him to a
hearing before the CSC on this issue. We must settle this issue in a manner which,
while consistent with the civil service statute, rules, and regulations, does not permit
the state to deny an employee civil service protection by merely declaring that the
employee was in an executive position.
IV.
Judicial Review Under the UAPA
"Title 4, Chapter 5 of the Tennessee Code establishes the procedures
for State agencies under the aegis of the Uniform Administrative Procedures Act."
Gonsalves v. Roberts, 905 S.W.2d 931, 932 (Tenn. 1995). This statute was
"designed to clarify and bring uniformity to the procedure of state administrative
agencies and judicial review of their determination." Tenn. Code Ann. § 4-5-103
(1991). As for the judicial review of agency decisions, the courts have recognized that
the UAPA provides two methods by which such decisions can be reviewed. See
Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 455-56 (Tenn. 1995);
McKissack & McKissack & Thompson Architects & Eng'rs, Inc. v. State Bd. of Exam'rs
for Architects & Eng'rs, No. 86-361-II, 1987 WL 10331, at *2 (Tenn. App. 1987). The
first is through a declaratory judgment proceeding which is outlined in § 4-5-2251 of
the Tennessee Code and the second is through judicial review of contested cases
pursuant to Tennessee Code Annotated section 4-5-322.
Tennessee Code Annotated section 4-5-225 provides a procedure by
which the Davidson County Chancery Court can issue a declaratory judgment to
determine "[t]he legal validity or applicability of a statute, rule or order of an agency
1
T he Code provision concerning declaratory judgments, formerly found in § 4-5-224, was
trans ferre d to § 4-5-225 purs uan t to Acts 1997, ch. 162, § 1. See Tenn. Code A nn. § 4-5-224 (Supp.
1997) compiler’s notes.
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to specified circumstances . . . if the court finds that the statute, rule or order, or its
threatened application, interferes with or impairs, or threatens to interfere with or
impair, the legal rights or privileges of the complainant." Tenn. Code Ann. §
4-5-225(a) (Supp.1997). A complainant can petition the chancery court for a
declaratory judgment if he "has petitioned the agency for a declaratory order and the
agency has refused to issue a declaratory order." Id. § 4-5-225(b); see Richardson,
913 S.W.2d at 456. The declaratory order statute, found in § 4-5-223 of the Code,
provides that "[a]ny affected person may petition an agency for a declaratory order as
to the validity or applicability of a statute, rule or order within the primary jurisdiction
of the agency" at which time the agency shall "[c]onvene a contested case hearing
pursuant to the provisions of this chapter and issue a declaratory order which shall be
subject to review in the chancery court of Davidson County." Tenn. Code Ann. § 4-5-
223(a)(1)(1991).
The second method by which an agency decision can be reviewed in the
chancery court is found in Tennessee Code Annotated section 4-5-322(a)(1). This
statute provides that "[a] person who is aggrieved by a final decision in a contested
case is entitled to judicial review under this chapter, which shall be the only available
method of judicial review." Tenn. Code Ann. § 4-5-322(a)(1) (Supp. 1997). A
"contested case" is statutorily defined as "a proceeding, including a declaratory
proceeding, in which the legal rights, duties or privileges of a party are required by any
statute or constitutional provision to be determined by an agency after an opportunity
for a hearing." Tenn. Code Ann. § 4-5-102(3) (1991). An example is the contested
case hearing to which a regular employee is statutorily entitled as the final step in the
grievance procedures under § 8-30-328. Tenn. Code Ann. § 8-30-328(a)(7) & (d)
(1993); see also Tenn. Comp. R. & Reg. R. 1120-11-.05(5)(b).
It is the latter statute, Tennessee Code Annotated section 4-5-322,
through which Mr. Morris sought chancery court review. Finding that the CSC did not
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conduct a hearing in this matter and that neither statute nor constitutional provision
required a hearing to determine Mr. Morris' legal rights, duties and privileges, the trial
court concluded that Mr. Morris' case was not a "contested case" and thus that it had
no jurisdiction under the UAPA. In drawing its conclusion, the lower court cited
Mid-South Indoor Horse Racing, Inc. v. Tennessee State Racing Comm'n, 798
S.W.2d 531 (Tenn. App. 1990), which involved the issue of the UAPA's applicability
to the review of licensing proceedings that had resulted in the plaintiff's being denied
a license to conduct horse racing. In Mid-South, this court did state that such
proceedings "will be treated as 'contested cases' only if they contain three essential
elements. They must be a 'proceeding' conducted by an 'agency' after the opportunity
for a 'hearing.' . . . Proceedings lacking any of these ingredients are not contested
cases." Id. at 537. In the case before us, appellees assert that since the Commission
did not conduct a proceeding after the opportunity for a hearing but rather simply
advised Mr. Morris that his dismissal from an executive service position was not
grievable, there was no "contested case" as is required by the law for judicial review.
The problem with appellee's argument is that the Mid-South case did not
turn on the fact that there was no hearing before the agency, but rather on the fact
that no hearing was required. The court stated "the licensing proceeding involved in
this case was not a contested case because the commission was not required to
afford Mid-South a hearing before acting on its application." Id. (emphasis added).
As stated, the UAPA defines "contested case" as "a proceeding, including a
declaratory proceeding, in which the legal rights, duties or privileges of a party are
required by any statute or constitutional provision to be determined by an agency after
an opportunity for a hearing." Tenn. Code Ann. § 4-5-102(3) (1991) (emphasis
added). The court in Mid-South found that state law did not contain a contested case
hearing requirement nor was there one arising from a constitutionally protected
property interest in a racing license. Mid-South, 798 S.W.2d at 539-40. In the case
at bar, we must determine whether a statute or the constitution requires that an
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employee who claims to have been terminated from a career services position be
given the opportunity to be heard before the CSC on this matter.
V.
Classification of State Employees Under Civil Service Law
An examination of the civil service statutes and regulations reveals that
it is the Commissioner of Personnel who has the authority to determine an employee's
status within the state service. Tennessee Code Annotated section 8-30-208(d)
(Supp. 1997) states that "[t]he commissioner shall determine equivalent levels for the
purpose of assigning positions not specifically addressed in subsection (b) to the
career or executive service. Such determination shall be based solely on duties,
responsibilities and reporting relationships and shall not be subject to review through
any procedure." See also Tenn. Comp. R. & Reg. R. 1120-3-.03. In addition, the
Commissioner is charged with maintaining the official roster of all state service
employees which must show, among other information, the employee's name, title
of position, class and any changes in classification. Tenn. Code Ann. § 8-30-
202(a)(2) (1993); Tenn. Comp. R. & Reg. R. 1120-2-.16. The CSC, on the other
hand, has no role in the classification of state employees. Its duties are limited to
those "expressly imposed upon" it in the code which include exercising jurisdiction
over "civil service appeals brought pursuant to statute and regulations promulgated
pursuant thereto" and acting as "the final step in the grievance procedure provided for
regular employees." Tenn. Code Ann. § 8-30-108 (1993).
Nothing in the statutes or rules requires the Commissioner to provide the
employee a contested case hearing before making a classification decision.2
2
W e note that this court recently held that a regu lar em ployee who has acq uired a pro perty
interest in his position has a right to proced ural due proces s when that position is reclassified from
career to executive servic e as th is reclassification is an "action which deprives a regular employee of
suc h em ployee 's 'prop erty right'" under Te nne sse e Code § 8-3 0-33 1. Arm stro ng v. Tennessee De p't
of Veterans A ffairs, No. 01-A-01-9610-CH00476, 1997 W L 367463 (Tenn. App. 1997). This opinion
was bas ed u pon the nature of co nstitution al due proc ess which will not perm it a prop erty intere st, once
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Moreover, the Tennessee Department of Personnel Rules explicitly provide that the
"classification of a position" is a non-grievable matter. Tenn. Comp. R. & Reg. R.
1120-11.08(12) (in section entitled "Grievances"). As for disputes over grievability
itself, the rules provide as follows: "Disputes over grievability may be resolved by an
agency's appointing authority or by the Commissioner. The [CSC] may review such
determinations and, at its discretion, take whatever action it deems appropriate."
Tenn. Comp. R. & Reg. R. 1120-11-.09(3).
In light of the foregoing, it appears that a state employee cannot obtain
a hearing before the CSC regarding his classification. The law is clear that
classification decisions are solely within the jurisdiction of the Commissioner of
Personnel and that they are not grievable or contestable matters. 3 Because neither
statute nor constitution requires the state to provide a hearing for employees who
claim to have been terminated from career services positions, the chancery court was
correct in its determination that it lacked jurisdiction under § 4-5-322 of the UAPA.
See Tenn. Code Ann. § 4-5-102(3)(1991); Mid-South Indoor Horse Racing, Inc. v.
Tennessee State Racing Comm’n, 798 S.W.2d 531, 537 (Tenn. App. 1990).
However, as we pointed out, the UAPA provides another method for employees in the
state service to seek review of the decisions which affect their employment and it is
to this other method Mr. Morris ought have turned.
To avail himself of chancery court review, Mr. Morris should have filed
a petition for a declaratory order with the Commissioner of Personnel pursuant to §
4-5-223. In his petition, Mr. Morris could have requested the Commissioner to declare
bestowed, to be arbitrarily take n awa y. Logan v. Zim merm an Brush Co., 455 U.S. 422, 432 (1982)
(quoting Vitek v. Jones, 445 U.S. 480, 490-91 (1980) (quoting Arnett v. Kennedy, 416 U.S. 134, 167
(1974))). However, subsequent to Armstrong, the legislature seem s to have eliminated the constitutional
ramifications of rec lassification by providing th at a career service employee, upon reclassification to the
execu tive service, “shall maintain the position with an incumbent’s rights in the career service.” Tenn.
Code Ann. § 8-30-20 8(g)(1) (Supp. 199 7).
3
See su pra note 1.
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whether, at the time of his termination, he was a career employee who was entitled
to invoke the grievance procedure or whether he was an executive service employee
with no such right. As stated above, the declaratory order statue provides that "[a]ny
affected person may petition an agency for a declaratory order as to the validity or
applicability of a statute, rule or order within the primary jurisdiction of the agency."
Tenn. Code Ann. § 4-5-223(a)(1) (1991). The rules and statutes are clear that both
the classification and the grievability issues are within the Commissioner of
Personnel's primary jurisdiction.
Had Mr. Morris requested a declaratory order, the Commissioner could
have convened a contested case hearing under § 4-5-223(a)(1) and issued a
declaratory order which would have been subject to review in the Davidson County
Chancery Court under § 4-5-322(a)(1). If the Commissioner had refused to issue a
declaratory order, Mr. Morris could have filed a petition for a declaratory judgment in
the chancery court of Davidson County under § 4-5-225. Finally, in either case, a final
judgment of the chancery court would have been appealable to the Tennessee Court
of Appeals. Tenn. Code Ann. § 4-5-223 (1991); see Richardson v. Tennessee Bd. of
Dentistry, 913 S.W.2d 446, 458 (Tenn. 1995) (summarizing the avenues by which a
state service employee can obtain judicial review).
Because no Tennessee court has previously set out the proper
procedure for a state service employee to obtain an authoritative answer to the
question of his classification, we give Mr. Morris thirty days to file a petition for a
declaratory order with the Commissioner of Personnel. The judgment of the court
below is vacated and Mr. Morris is authorized to proceed in accordance with the
procedure as outlined above should he so desire.
VI.
The § 1983 Claim
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Lastly, we turn to the lower court's dismissal of the appellant's 42 U.S.C.
§ 1983 claim. In Mr. Morris' original petition, he argued, in the alternative, that
Appellees' actions constituted a deprivation and infringement upon his protected rights
in violation of 42 U.S.C. § 1983. In his prayer for relief, Mr. Morris requested that he
be granted, in addition to a hearing and subsequent reinstatement, "such other relief
as is just and proper including an award of costs and reasonable attorney's fees."
See 42 U.S.C. § 1988(b) (governing the award of attorney's fees in a § 1983 action
by providing that "the court, in its discretion, may allow the prevailing party other than
the United States, a reasonable attorneys' fees as part of the costs"). Finding that it
lacked jurisdiction over the this claim, the trial court dismissed that portion of Mr.
Morris' complaint involving § 1983.
In its order, the court stated that it was dismissing the appellant’s
complaint under 42 U.S.C. § 1983 "for good cause shown, as reflected in [the
appellees'] Memorandum in Support of Their Motion for Partial Dismissal." While
Appellees' memorandum in support of the dismissal motion was not made a part of
the record, the parties' briefs indicate that the jurisdictional basis for dismissal involved
the joinder of an original action with an administrative appeal. Before addressing this
jurisdictional question, we must determine whether Mr. Morris has a federally
protected right which would give rise to a § 1983 action before there has been a
decision that he was a career service employee.
Section 1983 of Title 42 of the United States Code establishes a cause
of action against "[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the Constitution and
laws." Procedural due process is a right secured by federal law. See Logan v.
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Zimmerman Brush Co., 455 U.S. 422, 432 (1982) (quoting Vitek v. Jones, 445 U.S.
480, 491 (1980)) (in addressing the nature of constitutional due process, the Court
noted that "'minimum [procedural] requirements [are] a matter of federal law'"). As
stated, Tennessee law only gives employees who are in the career service property
rights to their positions. Tenn. Code Ann. § 8-30-331 (1993); see id.§ 8-30-331(b)
(providing that minimum due process ensures career employees notification of
charges against them and a right to a pre-decision discussion with their manager).
Since it has not even been determined that Mr. Morris was in the career service, we
think it premature for him to raise a § 1983 claim.
Should it be determined by the Commissioner of Personnel that Mr.
Morris was indeed a career service employee at the time of his termination, he may
desire to join a § 1983 claim with the claim that he was denied the minimum due
process to which he was entitled. Because we find that there is no jurisdictional basis
for categorically denying the joinder of an original action with an appeal as the court
below seemed to do, we will discuss this issue which has already been thoroughly
addressed by Tennessee courts.
In Goodwin v. Metropolitan Bd. of Health, 656 S.W.2d 383, 386 (Tenn.
App. 1983), the plaintiff appealed from an administrative hearing ruling which upheld
her termination of employment from the Metropolitan Board of Health. In the same
action, the plaintiff sought additional relief by requesting a declaratory judgment to
have certain regulations of the Board of Health declared unconstitutional. This court
condemned the joinder of these two claims holding that the original action should
have been dismissed at the "very outset." Id. at 387. The court reasoned as follows:
This Court is of the firm opinion that such procedure is
inimical to a proper review in the lower certiorari Court
and creates even greater difficulties in the Court of
Appeals. The necessity of a separation of appellate
review of a matter and trial of another matter ought to be
self evident. In the lower Court one is reviewed under
appropriate Appellate rules and the other is tried under
trial rules. In this Court our scope of review is dependent
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upon the nature of a proceeding. In this case one matter
would be limited by rules of certiorari review and the other
would be reviewed under 13(d), Tennessee Rules of
Appellate Procedure. Like water and oil, the two will not
mix.
Id. at 386.
Citing Goodwin, the Court of Appeals again reiterated its view that an
appeal from an action from a board should not be joined with an original action in the
trial court. State ex rel. Byram v. City of Brentwood, 833 S.W.2d 500 (Tenn. App.
1991). In Byram, the plaintiffs were seeking plat approval from the city planning
commission in order to develop a tract of land which the commission denied. On
appeal, the plaintiffs "sought to have the trial court mandate the issuance of a certified
plat or, in the alternative, to find that the defendants/appellees acted arbitrarily,
capriciously and unreasonably in withholding approval of a plat for a subdivision to be
built on property owned by the Byrams in Williamson County, Tennessee. The
Byrams also sought an award of damages they alleged they sustained as a result of
the defendants' actions." Id. at 501. The court held that plaintiffs' mandamus action
and their action for damages should have been dismissed at the outset and that it was
"unnecessary to discuss any issue having to do with damages and claims invoking the
original jurisdiction of the trial court." Id. at 502.
Most recently, in Wimley v. Rudolph, 931 S.W.2d 513 (Tenn. 1996), the
Tennessee Supreme Court addressed the issue of "whether [a] plaintiff can combine
an original action under 42 U.S.C. § 1983 with a petition for judicial review under the
[UAPA] when the sole relief requested under the § 1983 claim is an award of attorney
fees." There, the plaintiff exhausted her administrative remedies after the state
terminated her Aid for Dependent Children (AFDC) benefits. When she sought
chancery court review of the decision that she was ineligible for continued benefits,
she also "requested that the court '[a]ssess costs, including a reasonable attorney's
fee as provided by 42 U.S.C. § 1988. . . .'" Id. at 514. Holding that the plaintiff was
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permitted to join these two claims, the court noted that the plaintiff was not seeking
remedies under § 1983 which were inconsistent with the remedies in her petition for
review. Id. at 515. The court stated that "[h]ad [the p]laintiff sought to join a claim for
any of those types of relief under [§] 1983 which were inconsistent to remedies
available in a petition for judicial review under the Uniform Administrative Procedures
Act, the state's estoppel claim would have had merit." Id.
The court distinguished Goodwin and Byram characterizing them both
as cases in which the "plaintiffs, pursuing administrative appeals, attempted to join
original actions for inconsistent relief with the judicial review provided in the [UAPA]."
Id. at 516. Significantly, the court articulated "the crucial distinction between the
issues in those cases and the one at bar" as follows:
Here, the basis for plaintiff's petition for judicial review
was her allegation that DHS had denied her rights
afforded under federal law, specifically rights to AFDC
benefits. Upon prevailing upon that claim, plaintiff had, by
definition, established a deprivation of rights under color
of state law, the very basis for recovery under § 1983.
Furthermore, that success entitled her to attorney fees
under § 1983 even had she not plead that entitlement.
Id. (citing Bloomingdale's by Mail Ltd. v. Huddleston, 848 S.W.2d 52, 56 (Tenn.
1992)). Goodwin and Byram, on the other hand, did not involve allegations of the
deprivation of federal rights under color of law. Wimley, 931 S.W.2d at 516.
Mr. Morris might, subsequent to the remand of this case, petition for
judicial review on the basis that he was denied his right to procedural due process
which, like the right at issue in Wimley, is a right afforded under federal law. By
prevailing on a claim brought under the UAPA, Mr. Morris may show that he is also
entitled to recover under 42 U.S.C. § 1983 as the plaintiff in Wimley did. Because the
case law has emphasized that the relief sought in the original § 1983 action can not
be inconsistent with the judicial review under the UAPA, it is significant that Mr. Morris
specifically sought only attorney's fees under § 1983 in his complaint. The court in
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Wimley explicitly held that there was no inconsistency when a plaintiff joined a claim
for attorney's fees under § 1983 with her appeal under the UAPA . We therefore
clarify that the trial court was in error when it based its dismissal of the § 1983 claim
on its lack of jurisdiction over an original action joined with an administrative appeal.
VII.
Conclusion
For the foregoing reasons, the decision of the chancery court is vacated.
We hold that the proper procedure for a state employee to obtain an authoritative
answer to the question of his status is the filing of a declaratory order with the
Commissioner of Personnel pursuant to Tennessee Code Annotated section 4-5-223.
We direct that Mr. Morris be given thirty days to act in accordance with this procedure.
Finally, we conclude that there is no basis for a § 1983 action until there has been a
determination that Mr. Morris was a career service employee with a federally secured
property interest in his position. However, once the declaratory order action before
the Commissioner is final, Mr. Morris may couple a § 1983 claim for attorney’s fees
with his petition for chancery court review of the issue that he, as a career service
employee, was denied due process. Tax the costs on appeal to the state.
_______________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
SAMUEL L. LEWIS, JUDGE
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_______________________________
WILLIAM C. KOCH, JR., JUDGE
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