FILED

October 7, 1996

Cecil W. Crowson

Appellate Court Clerk

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. )

For Appellant: For Appellee:

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

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 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.” 
1The 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 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. 
4

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
5

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
2As 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

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
7

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.
8

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. 
9

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. 
10

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
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

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).
12

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.