IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
SHERRY WIMLEY, ) FOR PUBLICATION
)
Plaintiff/Appellee, ) Filed: October 7, 1996
)
v. ) Davidson County
)
LINDA RUDOLPH, Commissioner ) Hon. C. Allen High, Chancellor
of the Tennessee Department )
of Human Services, ) No. 01S01-9507-CH-00108
)
Defendant/Appellant. )
FILED
October 7, 1996
Cecil W. Crowson
For Appellant: For Appellee: Appellate Court Clerk
Charles W. Burson David Kozlowski
Attorney General and Reporter Legal Services of South
Central Tennessee, Inc.
Michael E. Moore Tullahoma, TN
Solicitor General
Dianne Stamey Dycus
Senior Counsel
CIVIL DIVISION
Nashville, TN
OP I N I O N
AFFIRMED WHITE, J.
The issue in this case is whether plaintiff can combine an original
action under 42 U.S.C. § 1983 with a petition for judicial review under the
Uniform Administration Procedures Act when the sole relief requested
under the Section 1983 claim is an award of attorney fees. We affirm the
Court of Appeals’ decision allowing plaintiff an award of attorney fees.
Plaintiff, a recipient of Aid for Dependent Children (AFDC)
benefits, contacted the Department of Human Services (DHS) when she
learned she would be receiving inheritance from her uncle’s estate. She
was told to keep a copy of the check and receipts for its use and was
further advised that the inheritance would not affect her benefits. Seven
months after turning the receipts over to DHS, plaintiff was advised that
her benefits were being terminated. Following an appeal and an
administrative hearing, plaintiff’s benefits were terminated for nine
months. Additionally, plaintiff was deemed responsible for the
overpayments made during the seven months in which DHS failed to take
action.
Following the denial of a petition to rehear, an appeal, and a petition
to reconsider the final order, plaintiff sought judicial review in the
Davidson County Chancery Court under the Uniform Administrative
Procedures Act, Tennessee Code Annotated Sections 4-5-301 et seq.
Plaintiff's complaint, in its introductory paragraphs, sought judicial review
of the decision made by DHS finding her ineligible for continued AFDC
benefits and sought to proceed "pursuant to 42 U.S.C. § 1983.”
2
Each of the factual allegations in plaintiff’s complaint pertained to
the circumstances surrounding her receipt of the inheritance, report of the
inheritance, and termination of benefits. The "Causes of Action" section
of the complaint referred again to the actions of DHS in determining her
AFDC eligibility. In both, plaintiff asked that DHS ruling that finding her
ineligible for AFDC benefits be reversed.
In her prayer for relief, in addition to requesting that the court
reverse the decision of DHS terminating her AFDC benefits, plaintiff
requested that the court "[a]ssess costs, including a reasonable attorney's
fee as provided by 42 U.S.C. §1988 . . . . " The state moved to dismiss the
request for attorney fees in a pretrial motion. The Chancery Court
overruled the motion to dismiss, found in plaintiff’s behalf, and allowed
plaintiff to file a request for attorney's fees under Section 1988.
From the ruling of the Chancellor, the state appealed raising as its sole
issue the propriety of allowing the award of attorney fees.1 The state's
position was that allowing a claim for attorney fees violated the doctrine of
election of remedies. Because plaintiff had sought relief under the state
administrative procedures act, the state argues, plaintiff was estopped from
asserting an action under the federal civil rights statute.
1
The Court of Appeals' opinion refers to the issue as "whether the Trial Court erred in
failing to dismiss plaintiff's action based upon 42 U.S.C. Section 1983, joined to the
petition for review under the Administrative Procedures Act."
3
In its opinion, the Court of Appeals found that the election of
remedies doctrine, relied upon by the state, did not apply to the facts of the
case before it. The court noted that the doctrine of election of remedies
serves to disallow a plaintiff from seeking inconsistent or repugnant
remedies. Plaintiff's request for attorney fees, however, did not duplicate
and was not inconsistent with any remedy provided by the Administrative
Procedure Act. The intermediate court concluded: "If plaintiff had sought
duplicate relief, an election would have been required; but the only relief
sought under Section 1983 was an attorney's fee which is not provided by
the Administration Procedure Act." Further, the court concluded, "Section
1983 attorneys' fees may be allowed even though Section 1983 is not
specifically invoked, if the facts justify." Bloomingdale’s by Mail Ltd., v.
Huddleston, 848 S.W.2d 52 (Tenn. 1992).
In dissent, Judge Cantrell relied upon two cases in which the Court
of Appeals had previously disallowed joinder of an administrative appeal
and an original action. Those cases, Goodwin v. Metropolitan Board of
Health, 656 S.W.2d 383 (Tenn. App. 1983) and State ex rel. Byram v. City
of Brentwood, 833 S.W.2d 500 (Tenn. App. 1991) were distinguished by
the majority.
We granted application for permission to appeal to decide this issue
of first impression in Tennessee. In reviewing our decisions, the doctrine
of the election of remedies, the purposes of Section 1988 fee awards, and
the cases of other jurisdictions, we conclude that the judgment of the
4
Chancery Court and the Court of Appeals awarding attorney fees to
plaintiff in this case should be affirmed.
As the state recognizes, state courts have jurisdiction over Section
1983 claims. Poling v. Goins, 713 S.W.2d 305 (Tenn. 1986). More
specifically, plaintiff's claim against DHS for termination of AFDC
benefits was cognizable under Section 1983. Nonetheless, the state
contends that once plaintiff opted to pursue judicial review under the state
administrative procedures act, she was barred from seeking relief under
Section 1983.
The election of remedies doctrine, which is the basis of the state’s
argument, is a recognized part of Tennessee’s jurisprudence. The doctrine
prohibits and estops a plaintiff from seeking inconsistent remedies once a
clear choice has been made to pursue a specific remedy. Barger v. Webb,
391 S.W.2d 664 (Tenn. 1965). The purpose of the doctrine is to prohibit
plaintiffs from acquiring double redress for a single wrong. Thus,
"[w]here the remedies are so inconsistent or repugnant that the pursuit of
one necessarily involves the negation of the other" plaintiff may be
required to elect which remedy to pursue, or, if a choice has been made,
may be estopped from pursuing the other remedy. McQuiddy Printing Co.
v. Harsig, 134 S.W.2d 197, 203 (Tenn. App. 1939).
In this case the state argues that plaintiff has sought two
irreconcilable remedies, one under the judicial review portion of the
5
Administrative Procedures Act and the other under Section 1983 of Title
42 of the United States Code. The former, set forth in Tennessee Code
Annotated Section 4-5-322 provides that a person "aggrieved by a final
decision in a contested case is entitled to judicial review . . . which shall be
the only available method of judicial review." Tenn. Code Ann. §4-5-
322(a)(1)(1995 Supp.). The latter, part of the Civil Rights Act of 1871,
provides
[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,
shall be liable to the party injured in
action at law, suit in equity, or
other proper proceeding for redress.
42 U.S.C. §1983.
As is obvious from the review of the two statutes at issue in this
case, both create remedies. See Albright v. Oliver , 510 U.S. 1215 (1994);
Public Service Comm’n v. General Telephone Co., 555 S.W.2d 395 (Tenn.
1977). A remedy is "a means employed to enforce a right or redress an
injury." Alamo Development Co. v. Thomas, 212 S.W.2d 606, 610 (Tenn.
1948). A remedy is not a right in and of itself.2 Under our recognized
election of remedies doctrine, should the two remedies claimed be
inconsistent or repugnant, a plaintiff would be barred from proceeding on
2
As has been recognized, Section 1983 is not the source of any federal right. It simply
secures federal rights by providing a remedy for their violation. Chapman v. Houston
Welfare Rights Org., 441 U.S. 600, 617-18 (1979).
6
the latter. Garrett v. Mazda Motors of America, 844 S.W.2d 178, 180
(Tenn. App. 1992).
In plaintiff's complaint, she did not seek remedies under Section
1983 that were inconsistent with those in her petition for judicial review.
As the state notes, Section 1983 entitles one aggrieved to seek "monetary,
declaratory, or injunctive relief." Had Plaintiff sought to join a claim for
any of those types of relief under Section 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.
The state urges that two prior decisions of the Court of Appeals
dictate a reversal of the fee award in this case. In Goodwin v .
Metropolitan Board of Health, 656 S.W.2d 383 (Tenn. App. 1983),
plaintiff sought an appeal under the Uniform Administrative Procedures
Act from an administrative decision upholding her termination from
employment with the Board of Health. In her suit seeking judicial review
in the Chancery Court, she also sought a declaratory judgment that certain
policies of her employer were unconstitutional. The Court of Appeals held
that the attempt to join the declaratory judgment action should have been
denied "condemn[ing] . . . the joinder of an appeal with an original action
and the simultaneous consideration of both at the trial level." Goodwin v.
Metropolitan Board of Health, 656 S.W.2d at 386. In a subsequent
decision, State ex rel. Byram v. City of Brentwood, 833 S.W.2d 500 (Tenn.
7
App. 1991), the Court of Appeals reaffirmed its position in a case in which
plaintiff sought to join an action for damages with an administrative
appeal.
Neither Goodwin nor Byram affect the resolution of this case. In
both of those cases, plaintiffs, pursuing administrative appeals, attempted
to join original actions for inconsistent relief with the judicial review
provided in the Uniform Administrative Procedures Act. As the Court of
Appeals noted in Goodwin, such a practice creates difficulties for the trial
court and the Court of Appeals as a result of the differing rules,
standards, and procedures. In this case, plaintiff sought a remedy, not
available under the Uniform Administrative Procedures Act, but not
inconsistent with the relief sought thereunder.
More important is the crucial distinction between the issues in those
cases and the one at bar. 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 Section 1983.
Furthermore, that success entitled her to attorney fees under Section 1988
even had she not plead that entitlement. Bloomingdale’s By Mail Ltd., v.
Huddleston, 848 S.W.2d at 56.
8
The claims in Goodwin and Byram, conversely, did not involve
allegations of the deprivation of federal rights under color of law. The
decisions of the Court of Appeals in those cases to disallow joinder of
inconsistent original actions with administrative appeals does not require a
denial of a claim for attorney fees here, where success on the
administrative appeal is, by definition, the establishment of a Section 1983
violation.
Our decision to uphold the award of attorney fees in this context is
consistent with authority in other jurisdictions. In Maine v. Thiboutot,
448 U.S. 1 (1980), AFDC recipients whose benefits were terminated
sought judicial review of a decision of the Maine Department of Human
Services. In an amended complaint, the recipients sought Section 1983
relief as well. Although the recipients were successful, the Maine Superior
Court denied attorney fees. The United States Supreme Court reversed the
decision and held that attorney fees may be awarded to the prevailing party
in "any action" to enforce the provisions of Section 1983. While the
joinder of the claim for fees with the judicial review petition was not
analyzed, the result sanctioned that practice.
Other courts have more directly addressed the issue. In Magnant v.
Lane, 582 N.E.2d 461 (Ind. App. 1991), plaintiff sought judicial review of
a decision of the Indiana Board of Public Welfare denying Medicaid
benefits. In a second count of the two-count petition, plaintiff sought
injunctive relief under Section 1983 and attorney fees under Section 1988.
9
The parties settled the judicial review action resulting in the grant of
Medicaid benefits to plaintiff. The trial court originally dismissed count
two, but, on a motion to correct error, reversed itself and awarded fees.
The Indiana Court of Appeals affirmed the action. Magnant v. Lane, 582
N.E.2d at 463 (Ind. App. 1991)(citing Stevens v. Dept. of Public Welfare,
566 N.E.2d 544 (Ind App. 1991). See also Sprague v. Dept. of State
Revenue, 583 N.E.2d 214 (Ind. Tax 1991)(noting that Indiana tax law
which involves administrative remedies does not evidence legislative
intent that remedies contained be exclusive). As in the case before us,
entitlement to Section 1988 fees was established once plaintiff prevailed
(by settlement) on the merits since plaintiff was deprived under color of
law of federal Medicaid rights.
Similarly in Johnson v. Commissioner of Public Welfare, 643 N.E.2d
444 (Mass. 1994), plaintiff sought judicial review of the termination of her
benefits under the AFDC program. In her petition for judicial review, she
requested attorney fees under Section 1988. The Massachusetts Supreme
Court held that plaintiff was entitled to attorney fees even though the lower
court rested its decision not on the federal law, but "entirely on the law of the
Commonwealth." Johnson v. Commission of Public Welfare, 643 NE.2d at
445. The court noted that Section 1988 "creates an incentive to vindicate
federally protected rights. . . . The fee incentive is equally useful and
necessary whether the right in question is secured by Federal law alone, or by
State law as well." Id. at 445-46. See also Gaulin v . Commissioner of
Public Welfare, 515 N.E.2d 583 (Mass. 1987); Stratos v. Department of
10
Public Welfare, 439 N.E.2d 778 (Mass. 1982).
Likewise, and also in the context of enforcing federal rights in appeals
from termination of AFDC benefits, the Supreme Court of Nebraska has
allowed the joinder of a Section 1988 claim for attorney fees with the judicial
review of an administrative action. In Maldonado v. Nebraska Department
of Public Welfare, 393 N.W.2d 105 (Neb. 1986), the state contended that the
appeal from the state agency was not an action under Section 1983
authorizing the award of attorney fees pursuant to Section 1988. The
Nebraska Supreme Court disagreed and upheld the fee award despite the fact
that the petition for judicial review did not cite Section 1983.3
We are aware that courts have ruled contrary to the position we take
and that taken in these cases. In some of the contrary rulings, plaintiffs
sought remedies under Section 1983 which were inconsistent to those
available on judicial review, Tatten Partners, L.P. v. New Casle County Bd.
Of Assessment Review, 642 A.2d 1251 (Del. Super. Ct. 1993); in others,
plaintiffs sought remedies not available against the state, Hardges v.
Department of Social Services, 506 N.W.2d 532 (Mich. App. 1993); still
others turned on interpretations of state court jurisdiction and procedural
rules, Maisonet v. Department of Human Services, 657 A.2d 1209 (N.J.
1995); Human Development of Erie, Inc. v. Zoning Hearing Bd. Of Millcreek
Township, 600 A.2d 658 (Pa. Commw. Ct. 1991).
3
In this regard the Maldonado case is consistent with our decision in Bloomingdale's by
Mail Ltd., v. Huddleston, 848 S.W.2d 52 (Tenn. 1992), in which we held that a party is
entitled to recover an award for attorney fees under Section 1988 in a case in which the
party is successful in enforcing federal rights even if the party did not specifically plead
42 U.S.C. §1983.
11
Nothing in those cases persuades us to retreat from our conclusion
allowing a plaintiff to seek attorney fees under Section 1988 in a petition for
judicial review when the petition seeks relief from the wrongful denial, under
color of state law, of rights, privileges, or immunities secured by the federal
constitution and laws. For these reasons we affirm the judgment of the
Chancery Court and the Court of Appeals granting plaintiff attorney fees
under Section 1988.
__________________________________
Penny J. White, Justice
CONCUR:
Birch, C.J.
Drowota, Anderson, Reid, J.J.
12
Wimley v. Rudolph
Combined Opinion