# FILED
October 7, 1996 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

SHERRY WIMLEY, ) FOR PUBLICATION ) Plaintiff/Appellee, ) Filed: October 7, 1996 ) v. ) Davidson County ) LINDA RUDOLPH, Com missioner ) Hon. C. Alle n High, Chancellor of the Tennessee D

epartment ) of Human Ser

vices, ) No. 01S01-9507- CH-00108

) Defendant/Appel

lant. )

For Appellant : For Appellee : Charles W. Bur

son David Kozlowski Attorney General and Reporter Legal Services o f South Central Tennessee, Inc. Michael E. Moore Tullahoma, TN Solicitor General Dianne Stame

y Dycus Senior Counsel CIVIL DIVISION Nashville, TN

O P I N I O N

AFFIRMED WHITE, J.2 The issue in this case is whether plaintiff can combine an original action under 42 U.S .C. § 1983 with a pe tition for judicial

review under the Uniform Administration Procedures Act when the sole relief requested under the Section 1983claim is an aw ard of attorney

fees. We af

firm the Court of Appeals’ decision allowing pla intiff an award of

attorney fees
. Plaintiff, a recipient of Aid for Dependent Children (AFDC) benefits, contact

ed the Departm

ent of Human S ervices (DHS) when she learned she would be

receiving inherita

nce from her u

ncle’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 wer

e terminated f

or nine months. Additio

nally, plaintif

f was deemed

responsible for the overpayme

nts made during th

e seven months in w

hich DHS failed t

o take action.
Following the denial

of a petition to rehe

ar, an appeal, a

nd a petition to reconsider the f

inal order, plainti

ff sought judicial r

eview in the Davidson County C

hancery Court under the Uniform Administrativ

e Procedures Act,

Tennessee Code A

nnotated Sections 4- 5-301 et seq . Plaintiff's complaint, in its introductory paragraphs, sought judicial review of the decision made by DHS findi ng her ineligible for continued AFDC benefits and sought to proceed "pursuant to 42 U.S.C. § 1983.”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 Each of the factu

al allegations in plai

ntiff’s com

plaint pertained to the circumsta

nces surrounding her r

eceipt of the inher

itance, report of

the inheritance, and t

ermination of b

enefits. The "C auses of Action" se ction 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 AFD

C benefits be reve

rsed.
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 sta

te moved to dism

iss 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 attorn

ey's fees unde

r Section 1988.

From the rul

ing of the Chancellor

, the state appeal

ed raising as its sole issue the propriety

of allowing the award of attorney fees. 1 The state's position was that allo

wing a claim f

or attorney fe

es violated the doctr

ine of election of rem

edies. Because p

laintiff had sought re

lief under the state administrative

procedures act, the state argues, plaintiff was esto

pped from asserting an action under the federal civi l rights statute.4 In its opinion, the Cou

rt of Appeals found t

hat the election of remedies doctr

ine, relied upon by

the state, did not ap

ply 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. P

laintiff's reques

t for attorney fees, however, did not duplicate and was not inconsiste

nt with any rem

edy provided by

the Administra

tive Procedure Act.The interme diate court conclude

d: "If plaintiff ha

d sought duplicate relief, an election would have been required; but the only relief sought under Section 19 83 was an attorney 's fee which is not provided by the Administra

tion Procedure Ac

t." Further, the

court concluded, "S ection 1983 attorneys' f

ees may be

allowed even though S ection 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 acti on. Those cases, Goodwin v. Metropo litan Board of Health , 656 S.W.2d 383(Tenn. App. 1983 ) and State ex rel. By ram v. City of Brentwood , 833 S.W.2d 500 (Tenn. App. 1991 ) were distinguishe d by the major ity.
We granted appli

cation for perm

ission to appeal to dec

ide this issue of first impression in Tennessee.In reviewing our de cisions, the doctrin

e of the election of r

emedies, the

purposes of Section 1 988 fee awards, and the cases of other j urisdictions, we c onclude that the judg

ment of the5

Chancery Cour

t and the Court of Ap

peals awarding att

orney fees to plaintiff in this case should be affirm ed.
As the state recog

nizes, state cour

ts have jurisdictio

n 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 cogniz

able under Section 1 983. Nonetheless, the state contends that once pla

intiff opted to pursue

judicial review

under the state administrative procedures act, she was barred from seeking relief under Section 1983.

The electio n of remedies doctrine, which is th e basis of t he state’s argument, is a

recognized part of

Tennessee’s j urisprudence. Th e doctrine prohibits and estops a plaintiff from seeking inconsistent remedies once a clear choice has been made to pursue a specific remedy. Barger v. Web b , 391 S.W.2d 664 (T

enn. 1965). The pu

rpose of the doctrine

is to prohibit plaintiffs from

acquiring double redr

ess for a single wr

ong. Thus, "[w]here the remedies are so inconsistent or rep

ugnant 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 m ade, may be estopped from pursuing th e other remedy. McQuiddy Print ing Co. v. Harsig , 134 S.W.2d 197, 203 (Tenn. Ap p. 1939).

In this case the stat e argues that plaint iff has sought two irreconcilable r

emedies, one under the judicial review portion of t

he2 As h as b een r ecog niz ed, Sec tio n 19 83 i s no t th e so urce of an y fede ral righ t. It sim ply

secures federal rights by providing a re medy for their violation. Chapman v. Houston Welfare Ri ghts Org. , 441 U.S. 600, 617-18 (1979).
6 Administrative

Procedures Act a

nd the other under Se

ction 1983 of Title 42 of the United Sta

tes Code. The for

mer, set for

th in Tennessee Code Annotated Section 4-5-322 provides that a person "aggrieved by a final decision in a conteste

d case is entitled to j udicial review .. . which shall be the only availabl

e method of jud

icial review." Tenn. Code Ann.§4-5- 322(a)(1)(1995 Supp .). The latter , part of the Civil Rights Act of 1871, provides [e]very pe

rson who, under col

or of any statu te, or dina nce, r egul ation , cust om, or usage, of any

State or Territ

ory or the District of Col

umbia, subje

cts, or causes to be subjec

ted, any citiz

en of the United States .

. . to the deprivat

ion of any rights, privileges, or immunities secured by the C

onstitution and laws, shall be liable to the

party injure

d in action at law, sui

t in equity, or other proper proce

eding 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 Co

mm’n v.General Teleph

one Co. , 555 S.W.2d 395 (Tenn. 1977). A remedy is "a means em ployed to enforce a right or redress an injury." Alamo Development Co. v. Thom as , 212 S.W.2d 606 , 610 (Tenn. 1948). A remedy is not a right in and of itself. 2 Under our recognized election of rem

edies doctrine, sho

uld the two rem

edies claimed

be inconsistent or repugn

ant, a plaintiff w

ould be barred from

proceeding on7

the latter. Garrett v. Mazda Motors of America , 844 S.W.2d 178 , 180 (Tenn. App. 1992).
In plaintiff's com

plaint, she did not see

k remedies unde

r Section 1983 that were incon sistent with thos e in her petition for judicial review. As the s tate no tes, Sec tion 1 983 ent itles o ne aggr ieved t o seek " monetary, declaratory,

or injunctive reli

ef." Had Plaint

iff sought to join a c

laim for any of those ty

pes of relief under

Section 1983 which w

ere 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 tha

t two prior decisions

of the Court of Appe

als dictate a reversa

l of the fee awar

d in this case. In Goodwin v . Metropolitan Board of Health , 656 S.W.2d 383 (Tenn. App. 19 83), plaintiff sought an appeal under the Uniform Administrative Procedures Act from an a

dministrative de

cision upholding her ter

mination from employment with the Board of Health. In her suit seeking judicial review in the Chancery

Court, she also sought

a declaratory

judgment that c

ertain policies of her em

ployer were u

nconstitutional. Th

e Court of Appeals held that the attempt to join the declaratory judgment action should have been denied "condemn [ing] . . . the joinder of an appe

al with an original a

ction and the simultaneous consideration of both at the trial level." Goodwin v. Metropolitan Board of Health , 656 S.W.2d a t 386. In a subsequent decision, State ex rel. By ram v. City

of Brentwood , 833 S.W.2d 500 (Tenn.8

App. 1991), the Court of Appeals reaffirmed its position in a case in which plaintiff sought to j oin an action for dam ages with an adm

inistrative 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 Unifor

m Administ

rative Procedures Act. As the Cour t of Appeals noted in Goodwin , such a practice creates difficulties for the trial court and the Court o

f Appeals as a re sult of the differin g rules, standards, and proc

edures. In this ca

se, plaintiff sought

a remedy , not available under the

Uniform Adm

inistrative Proce

dures Act, but not inconsistent with the relief sought thereunder.
More important

is the crucial distin

ction between the is sues 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, sp

ecifically r

ights to AFDC benef

its. Upon prevaili

ng upon that claim, pl

aintiff had, by

definition, establi shed a deprivation of rights under color of state law, the very basis for recover y under Section 1983. Furthermore , that success enti tled her to attorney

fees under Sectio

n 1988 even had she not pl ead that entitlement. Bloomingdale’ s By Mail Ltd. , v. Huddleston , 848 S.W.2d at 56.9 The claims in Goodwin

and Byram , conversely,

did not involve allegations of the de

privation of federa

l rights under color of

law. The decisions of the Cour

t of Appeals in those cases to disallow j oinder of inconsistent original actions with administrative appeals does not require a denial of a claim

for attorney f

ees here, wher

e success on the administrative

appeal is, by de

finition, the establ

ishment of a Se

ction 1983 violation.
Our decision to uphold t

he award of attor

ney fees in this c

ontext is consistent with author

ity in other jur

isdictions. 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 com plaint, the recipi

ents sought Section 1983 relief as well.Although the recipie nts were successf

ul, the Maine Super

ior Court denied attorne

y fees. The

United States Supr

eme Court rev

ersed the decision and held that attorney fees may be aw

arded to the prevail

ing party in "any action" t

o enforce the provis

ions of Section 1983. While the joinder of the cla

im for fees w

ith the judicial re

view petition was no

t analyzed, the result sanctioned that practice.

Other courts have m

ore directly a

ddressed the issue.In Magnant v. Lane , 582 N.E.2d 461 (

Ind. App. 1991), plaintiff sought judi cial review of a decision of the Indi

ana Board of Public

Welfare deny

ing Medicaid benefits. In a sec

ond count of the two-c

ount petition, plaintif

f sought injunctive relief un der Section 1983 an d attorney fees under Secti on 1988.10

The parties settle

d the judicial revi

ew action resulting

in the grant of Medicaid benefits t

o plaintiff. The trial court origina lly dismisse

d count two, but, on a motion to co rrect error, reversed itsel f and awarded fees. The Indiana Court of App eals affirmed the action. Magnant v. Lane , 582 N.E.2d at 463 (I

nd. App. 1991)(cit

ing Stevens v. Dept. of Public Welfare , 566 N.E.2d 544 (Ind App. 1 991). See also Sprague v. Dept.of State Revenue , 583 N.E.2d 214 (Ind. Tax 1991)(noting that Indiana tax law which involves adm

inistrative rem

edies does not evidenc

e legislative intent that rem

edies contained be e

xclusive). As in th

e case before us, entitlement to Section 1988 fees was established once plaintiff prevailed (by settlem

ent) on the mer

its since plaintiff w

as deprived under col

or of law of federal Medicaid ri ghts.
Similarly in Johnsonv. Commissioner of Public Welfare, 643 N.E.2d 444 (Mass. 1994), pla

intiff sough

t ju dicial review of the termination of her benefit s under the AFDC progra m. In her pet

ition for judicial review, she requested attorney fees under Sec ti on 19 88. Th e Mass achus etts S upreme Court held that plaintiff

was entitled to attorney fees even though the lower courtrested its decision n ot on the federal la

w, but "entirely

on the law of the Commonwealth." Johnson v. Commis sion of Public Welfare , 643 NE.2d at 445. The court noted that Section 1988 "crea tes an in centive to vindicate federally protected rig

hts. . . . The fee incentive is equally usefu

l and necessary whether

the right in question is secured by Fede ral law alone, or

by Statelaw as w ell." Id . a t 445-46. See also Gaulin v . Com missioner of Public Welfare , 515 N.E.2d 583 ( Mass. 1987); Stratos v. Depar tment of3 In this regard the Maldonado case is consistent with our decision in Blo omi ngda le'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 fee s under Section 1988 in a case in which the party is successful in enforcing federal rig hts even if the party did not specifically plea d 42 U.S.C. §1983. 11 Public Welfare , 439 N.E.2d 778 (Mass. 1982).
Likewise, and also in the context of enforcing federa

l rights in appeals from termination of

AFDC benefits,

the Supr eme Cou rt of Nebraska has allowed the joinder of a S ection1988 claim for attorney fees with the judicial review of an ad minist

rative action. In Maldonado v. Nebra ska Departme

nt of Public Welfare , 393 N.W.2d 1 05 (Neb. 1986), th e state contended that

the appeal from t he state agency was not an action unde r Section 1983 authoriz ing the award of attorney fees pu rsuant to Section 1 988. Th e Nebraska Supreme Court disagreed and upheld the feeaward despite the fact that the petition for

judicial review

did not cite Section 1 983. 3

We are aware that

courts have ruled co

ntrary to the pos

ition we ta

ke and that ta ken in t hese ca ses. In s ome of th e contr ary rulings, plaintiffs sought reme dies under Section 1983 wh ich were inconsiste

nt to those available on judicial review, Tatten Partners , L.P. v. Ne w Casle County Bd. Of Assessment Review , 642 A.2d 12 51 (Del . Super. Ct. 199 3); in others, plaintiffs sought remedies not a vailable against t he state, Hardges v. Department

of Social Ser vices , 506 N.W.2d 5 32 (Mich. App. 1993 ); still others turned on interpret ations of state cou rt ju risdicti on and procedural rules, Maisonet v. Department of Human Ser vic es , 657 A.2d 1209 (N. J. 1995); Human Develo

pment of Erie, Inc.v. Zoning Hearing Bd. Of Millcreek Township , 600 A.2d 658 (Pa. Commw. Ct. 1991).12 Nothing in those cases persua des us to retreat f

rom our conclusi

on 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 aff irm the judgm

ent of th e Chancery Court and the Court of Appeals granting plaintiff attorney fees under Section 1988
.

__________________________________ Penny J. White, Justice

CONCUR: Birch, C.J. Drowota, Ander

son, Reid, J.J.