# FILED
October 29, 19 97 Cecil W. Crowson Ap pellate Cou rt Clerk WAYNE MORRIS, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9612- CH-00543 VS. ) ) Davidson Chancery ) No. 96-705-I CORRECTION AL ENTERPRISES ) OF TENNESSEE, TEN NESSEE ) CIVIL SERVIC E COMMISSIO N, and ) SUSAN R. WILLIAMS, in Her ) Official Capacit

y as Commis sioner of ) the Tennessee Depart ment of ) Personnel, ) ) Defendants/Ap pellees. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C HANC ERY C OURT O F DAVI DSON COUN TY AT NASHVILLE, TENN ESSEE THE HONORABLE IRVIN H. K ILCREASE, JR ., CHANCEL LOR

LARRY D. WOODS P. O. Box 2472 7 Nashvil le, Tennessee 37202- 4727 Attorney for Plaintiff/Appellant JOHN KNOX WALK UP Attorney Gen eral & Repor ter JAMES C. FL OYD Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, Tennessee 37243- 0490 Attorney for Defendants/Appellees

REVERSED AN D REMAND ED

BEN H. CAN TRELL, JUDGE
CONCUR: LEW IS, J. KOCH, J.- 2 - 

## O P I N I O N
The primaryquestion in this appeal, from which all other issues flow, is whatis the proce dure for determini ng whether a state employee was in the career service , and thus entitled to civil service protection, or in the executi ve serv ice serv ing at the pleasure of his employer. W e vacate the judgment of th e chancery court and give the appellant

emp loyee thirt y days to act in accordance with the proper procedure as outlined in the followi ng opinion.

I. Procedural H istory

The Tennessee Civil Service Commission (CSC) a nd C orrectional Enterprises

of Tennessee (CET) denied the appellant an administrati ve hearingafter he was termi nated from his job w ith Tennessee State Industr ies, a divisi on of the Departmentof Correction . Appellant then petitioned the Chancery Court of Davidson County for review

of the denial pursuant to the Unif orm Administrative Procedures Act (UAPA) adding a claim for the infringem ent on his rights in violat ion of 42 U.S.C. § 1983. Finding that it lacked jurisdi ction to hear the § 1983 claim, the trial court dismissed thi s por

tion of Appellant' s petition. The court then f ound that Appellees' decision not to grant Appellant a hearing was not subject to review in the chance ry court because there w as no "contested case" in this mat ter an d because th e law providesthat "[t]he final step of th[e] gri evance proc edure 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.- 3 - Facts
Wayne Morris had been employed by the S tate of Te nne ssee for t wentyseven years when he was terminated from his job in December of 1995. H e began his career w ith the state as a co rrectional officer. In 1984, he was transferred to Tennessee State Industri es, a divi sion of the Depart ment of Correcti on, where he worked as a Correc

tional Indus tries Supervisor II. From 1984 to 1989, Mr. Morris received merit pay increasesand promotions becoming first a Correction al Industries Supervisor

III and, later, a Correcti onal Industries S upervisor V. In the latt er position, Mr. Morris was Plant Manager of the metal plant at Turney Center -- a state prison industryfacility containing a metal plant, a paint plant and a wood furniture plant. At Turney Center, there is an I ndustries Oper ations Manag er (IOM) , a position which Mr. Morris claims was filled by Ken Brown during Mr. Morris' e ntir e tenure as Plan t Manager. It is Appell ees' view that Mr. M orris' pr

omotion in Januar

y of 1995 was

to the position of IOM. Contrarily, Mr. Morris asserts that CET and the CSCtransferred him from his positi on as Plant Mana ger of the metal p lant to Pl ant M anager of the wood furniture plant at w hich time Mr . Morris was promi sed a step rai se.
Almost a year

after the change in Mr. Morris' job, the A ctin g Execu tive Director of CET notified Mr . Morris in a letter dated December 5, 1995 that, "[d]ue to continuing quality

control pro blems and the inadequate oversig ht of plantoperations," he was beingterminated from employ ment. When he attem pted to ut ilize t he grievance procedures s et up by statut e for state employees, the Director for Human Resource Management for C ET told him that he was not entitled toa hearing because he had been in an executive se rvice pos ition since January 16, 1995. The Direc tor asserted in a letter that the fact that M r. Morri s accepted theraise w hich he received in January of 1995 indicates tha t he knowingly accepted this exec utive service position. When Mr. Morris re quested a Level V hearing before the CSC, his request
was again denied in a letter stating that his pers onnel records indicated that he has- 4 -

been in the exec utive ser vice si nce January

16, 1995 and thus CSChas no authorit y to hear his appea l.

III. The Statusof the Em ploy ee

The scope of Mr. M orris' r ights w ith regard to his former employment is defined by whet her he w as Plan t Manager or IOM-- eac h positi on occu pying a different status unde r the Civil Service Code whic h divides all positi ons in the state service between career service and e xecut ive servic e. Tenn. Code Ann. § 8-30-208 (1993). The Tennessee Code pr ovides that a plant man ager i n a prison industry "shall be a career

service employee." Id. § 41-22-407(d) (1997). The statute further provides that the Tennesse e Rehabilitative Initiative in Correction Board (TRICOR), with the approval of the commissioner of pe r sonnnel, "shall have the opti on of declaring certain manag ement positions, unique to the op erations under the control of the board, a par

t of the executi ve ser

vice an d under the exclusive control of the board." Id

. Mr. Mo rris d oes n ot di sput e tha t the posi tion of I OM is su ch an execu tive servicejob.
Signi fica ntly, if, at the time of his termination , Mr. Morri s was a career service employee who had compl eted his init ial wor king test period, or a "r egular employee," he should have been given certain procedural protection s under the Civil Service Code. See id. § 8-30-101(a)(20) (Supp. 1997) (def ining "regular employee"). For example, w hile § 8-30- 328 sets up grievance procedures for both permanent and reg ular empl oyees in thestate serv ice, only regular employees are permitted a contested case hearingbe fo re the CSC as the final step of these grievance procedures. Id

. § 8-30-328(7) (1993); Tenn. Co mp. R. & Reg. R. 1120-11-.05(5)(b). Moreover, a regular employee in the career servic e a cquires a property right in his position. Id. § 8-30-331(a) (1993). With such arig ht, "no suspensio n, demotion,- 5 -

dismissal or any

other action w hich deprives a regula r employeeof such employee's 'property rig ht' w ill b ecome effective until minimum due proces s is prov ided." Id. The statute provides

that minimum due process i ncludes wr itten notice of the charges and the opportunity

to respond to th ese charges before any acti on is taken. Id. § 8-30-331(b)(1)-(2). An executi ve serv ice employee, on the other hand, serves at the pleasure of his employer . Tenn. Comp. R. &Reg. R. 1 120-10-.02. While the grievance procedures

of § 8-30-328 are avail able to executive employees, for them the final step of these pr ocedures is b efore the agency appointing authority

and is not
a contest ed case hearing. Tenn. Code Ann. § 8-30-3 28(a)(7); Tenn. Comp. R. & Reg. R. 1120-11-.05( 4).

In sup port of his position that he was a Plant Manager, and hence a career servic e employee, M r. Morri s present ed his own testi mony as w ell as that of
a man who was present at a meeting in January of 1995 w here Mr. M orris was offered the job o f man aging the wood plant. Appellees have presented no ev idence to establish that Mr. Morris was the IOM. Rather, they rely on the bare asse rtion that the grievance procedures do not apply to his term inat ion b ecau se he was an execu tive service employe e. In add ition, t hey main tain tha t the gr ie vance proce dures are not available to adjudicat e the issue of whether M r. Morri s was a Pl ant Manager or an IOM at the time of his termination. As stated , the chancery court found that it did not hav e jurisdic

tion to hear M r. Morri s' case under the UAPA sinc e there had bee n n o contested case hearing . Finally , the court found that even if Mr . Morris

were a ci vil service employee, the right to appeal a grievance to the CSC is a determina tion expressl y wi thin the exc lusive aut hority of the CSC.

Mr

. Morri s is confronted w ith an interesting proced ural dilemma: he desires a contested case hea ring to resolve the q uestion of his st atus as a stat e employee, the re solu tion of wh ic h would determine his right to a contested case hearing in the first p lace. While Mr. Morr is does not dispute that he has no right to a1 Th e Code provi sion con cerni ng decl arat oryjudgments, formerl y f ound i n § 4-5- 22 4, wa s trans ferre d to § 4-5- 225 purs uan t to Ac ts 19 97, c h. 16 2, § 1

. See Tenn. Co de A nn. § 4-5-224 (Supp. 1997) compil er’ s notes. - 6 - hearing if he wasan ex ecuti ve emp loye e at thetime of his terminati on, he argues that his claim and uncontroverted proof tha t he was in the career s ervice en titles him to a hearing before the CSC on this issue. W e must settle this issue in a manner whi ch, while consistent w ith the civil service statute, rules, and regulations, does not permit the state to deny an employee civil service protect i on by merely declaring that the employee was in an exe cutive pos ition.

IV. Judicial Rev iew Under the U APA

"Title 4, Chapter 5 of the Tennessee Code establ ishes the procedures forState agenci es under the aeg is of th e Uniform Administrati ve Procedures Act." Gonsalves

v. Roberts , 905 S.W.2d 931, 932 (Tenn. 1995). This statute was "designed to clarify

and bring un ifor mity to the p roce dure of st ate a dmin istra tive agenciesand judicial review of their determi nation." Tenn. Code A nn. § 4-5-103 (1991). As for the judi cial rev iew of agenc y decisi ons, the courts

have recog nized that the UAPA prov ides two methods by whi ch such decis ions can be rev iewed. See Richardson

v. Tennessee Bd. of Dentistry , 913 S.W .2d 446, 455-56 (Te nn. 1995); McKissack

& McKissack

& Thompson

Architects & Eng'rs, Inc. v. State Bd. of Exa m'rs for Architects & Eng'rs , No. 86-361-I I, 1987 WL 10331, at *2 (Tenn. App. 1987). The first is through a declaratory j udgment proceedi ng whic h is outlined in § 4-5-225 1 of the Tenness ee Code and the second is through judi cial rev iew of contest ed cases pursuant to Tennesse e Code Annotated sec tion 4-5-322.

Tenness ee Cod e Annotated secti on 4-5-225 prov ides a procedur e by which the Davidson County Chancery Court can issu e a declaratory judgment to determine "[t]he legal validit y or app licability of a statute, rule or order of an agen cy- 7 -

to specified circumstances . . . if the co ur t finds that the st atute, rule or order, or i ts threatened application, interferes w ith or impair s, or threatens to interfere w ith or impair, the legal r ights or privil eges of the complai nant." Tenn. Code A nn. § 4-5-225(a) (Supp.1997). A complainant can petition the cha ncery cou rt for a declaratory judgment if he "has petitioned the ag ency for a decl aratory or der and the agencyhas refused to is sue a declaratory order." Id. § 4-5-225(b) ; see Richardson , 913 S.W.2d at 456. The declaratory order statute , foun d in § 4-5-223of the Code, providesthat "[a]ny affected person may petition an agency for a declarator y order as to the validit

y or applicabili ty of a statute, rule or or der withi n the primary

jurisdic tion of the agency " at which time the agency shall "[c]onv

ene a conteste d case hearing pursuantto the prov isions of this chapter and issue a declaratory order which shall be subject to revie w in the c hancery cou rt of David son County." Tenn. Code Ann. § 4-5- 223(a)(1)( 1991).

The second method by

which an agency

decision can be reviewed in the chancerycourt is found i n Tennessee Code Ann otate d section 4-5-322(a)(1). This statute provides

that "[a ] pe rson who i s aggri eved by a final decision in a contested
case is entitled to judicial review under this c hapter, whi ch shall bethe onlyavailable method of ju di cial rev iew." Tenn. C ode Ann. § 4-5-322( a)(1) (Supp . 1997). A "contes t ed case" is statutorily defined as "a proce eding, including a declaratory procee ding, in whic h the legal rights, d uties or pri vilege s of a party ar e required by any statute or constitut ional prov ision tobe determined by an agency

after an opportunit

y for a hearing. " Tenn. Code Ann. § 4- 5-102(3) (19 91). An example is the contested
case hearing to which a regular employee is

statutoril y entitled as the final stepin the grievance procedures unde r § 8-30-328. Tenn. Code Ann. § 8- 30-32 8(a)(7) & (d) (1993); see also

Tenn. Comp. R. & R eg. R. 1120- 11-.05(5)(b)

.

It is the latter statute, Tenne ssee Code Annotated section 4-5-3 22 , through which M r. Morri s sought chancery cour t review . Finding that the CSC d id not- 8 -

conduct a hearing i n this matter an d that neither statute nor cons titutional pr

ovision required a hearing to determine Mr. Morris' legal ri ghts, duties and privi leges, thetrial court concluded that M r. Morri s' case was not a "contested case" and thus that it had
no jurisdic

tion under the U APA. In draw ing its conclusion, the lower court cited Mid-South

Indoor Hors e Racing, Inc. v. Tennessee State Racing Comm'n , 798 S.W.2d 531 (Tenn. App. 1990) , which i nvolved the issue ofthe UAPA's appl icability to the revi ew of licens ing proceedi ngs that had resulted in the p laintiff's being denied
a license to conduct horse racing. In Mid-So uth , this c ourt did state that such proceedings

"will be treated as 'contested cases' only if they contain three essential elements. They m ust b e a 'p roce edin g' con duct ed by a n 'age ncy' after the opportunity fora ' hearing.'

. . . Proceeding s lacking any of these in gredients a re not contested cases." Id. at 537. In thecase before us, appelle es assert that since the Commi ssion did not conduct a proceeding af ter the opportunity for a hearing but rath er simply advised Mr. Morris that his dismissal from an executive service posit ion was n ot grievable, there was

no "contested cas e" as is req uired by the law for judicial review.

The problem with appellee's argument is that the Mid-South

case did not t urn on the fact that there was no hear ing before the ag ency, but r ather on the fac t that no hearing was required. The court stated "the licensin g proceeding involved in this case was not a contested c ase because the co mmission was not required to afford Mid-Sout h a hearing before acting on its application." Id. (emphasis added). As stated, the UAPA def ines "contested case" as "a proceeding, in cl uding a declaratory proc eed ing, i n which the l egal r ights , dut ies o r privil eges of a part y are required by any statute or constituti onal provision to be determined by an agency

after
an opportunity for a hearing." Tenn . Code Ann. § 4-5-102(3) (1991) (emp hasis 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 co nsti tutionally protected property interest i n a racing license. Mid-South , 798 S.W.2d at 539-40. In the case at bar, we must d ete rmine whethe r a statute or the constituti on require s that an2 W e note t hat t his court r ecentl y hel d t hat a regu lar em ployee who has acq uired a pro perty int erest in his positi on has a right t o proced ural due proces s when that positi on is re cl assif ied f rom ca re er to e xe cu tive se rvic e a s th is recl assif icat ion i s an "act ion whi ch depri ves a regul ar employ ee of suc h em ployee 's 'prop erty ri ght' " under Te nne sse e C ode § 8-3 0-33 1. Arm stro ng v. T en ne ss ee De p't of Veterans A ffair

s , No. 01-A- 01-9610-CH00476, 1997 W L 367463 (Tenn. App. 1997) . Thi s opini on was bas ed u pon the n ature of co nstitution al due proc ess whic h will not p erm it a prop erty intere st, once - 9 - emp lo yee who clai ms to have been t erminated from a career serv ices positi on be given th e opportunity

to be heard before th e CSC on this matter.

V. Classificatio n of State Employ ees Under Ci vil Serv ice Law

An examination of the civil service statutes and regulations r eveals that it is the Commissioner of Person nel who has the authority to determine an employee's status within the state service. Tennessee Code Anno tated se ction 8-30-208(d) (Supp. 1997) states that "[t]he com missioner shall determine equivalent levels for the p urpose of assigningpositions not specificall y addressed in subsecti on (b) to the
career or executi ve serv ice. Such deter mi nation shall be based solely on duties, responsibil ities and reportingrelationshi ps and shall not be subject to review thro ugh
a nyprocedure." See also Tenn. Comp. R. & R eg. R. 1120- 3-.03. In addit ion , th e Com mission er

is charged with maintaining the official roster of all state service employeeswhich must show, amongother infor mation, th e employee's name, title of position, cl ass and any c han g es in class ification. Tenn. C ode Ann. § 8-30- 202(a)(2) (1993); Tenn. Co mp. R. & R eg. R. 1120- 2-.16. The CSC, on the other h and, h as no role in the classification of state employees. Its duti es are limit ed to those "expressly imposed upon" it in the c ode which i nclude exercising j urisdicti on over "civi l se rvice app eals brought pursuant to st atute and regul ations promulg ated pursuantthereto" and acti ng as "the final step in the grievance procedure provided for regular employees." Tenn. Code An n. § 8-30-108 (1993).

Nothing in the statutes or rules requires t he Commissioner to provi de the employee a contested cas e hearing beforemaking a cl assification de cisio n. 2bestowed, to b e a rb itra rily ta ke n a wa y. Logan v. Zim merm an Bru sh Co

. , 455 U. S. 422, 432 (1982) (quot ing Vit

ek v. Jones , 445 U. S. 480, 490-91 ( 1980) (q uoti ng Arnett v. Kennedy

, 416 U. S. 134, 167 (1974))). However, subsequent to Armstrong , t he leg isl ature s e e ms to ha ve el iminat ed the con sti tut ional ramifi cati ons of rec lass ification by pro viding th at a career servi ce employee, upon recl assif icat ion t o the execu tive servi ce, “ shall maintai n the posi ti on wit h an i ncumbent’s r ight s in t he careerservi ce.” Tenn. Code Ann. § 8-30-20 8(g)(1) (Supp. 199 7).

3 See su pra note 1.
- 10 - Moreover, the Tennessee Department of Personnel Rul es explic itly pr ovide that t he "classificati on of a posi tion" i s a non-grievable matter. Tenn. Comp . R. & Reg. R. 1120- 11.08(12 ) (in secti on entitled "Gr ievances") . As for disput es over g rievabil ity its elf, the rules pr

ovide asfollows: "D isputes over griev ability may be resol ved by an agency's appointing au thority o r by theCommissioner. The [CSC] may review such determinationsand, at its discretion, take whatever action it deems appropr iate." Tenn. Comp. R. & Reg. R. 1120-11 -.09(3).

In light of the foregoing, it appears that a state em ployee cannot obtain
a hearing before th e CSC re garding his classi fication. The law is clear that classificati on decis ions a re sol ely w ithin the ju risdi ction of the C omm issi oner of Personnel and that they are notgrievable or contestable matters. 3 Because neither statute nor constitu tion requi res the s tate to provide a h earing for empl oyees w ho claim to have been te rminated from career services positions, the chancery court was correct in its deter mination that it lacked jur isdiction un der § 4-5-322 of the UAPA. See Tenn. Code Ann. § 4-5-102(3)( 1991); Mid-South Indoor Horse Racing, Inc. v. Tennessee

St at e Ra cin g Co mm’n , 798 S.W.2d 531, 537 (Tenn. App. 19 90). However, as we pointed out, the UAPA prov ides another method for employees i n the state servic e to seek rev iew of the decisions which affect their emp loyment and it is to this other method Mr. Mor ris ought have turned.

To avail himself of chancery court review, Mr. Morris should have filed
a petition for a dec laratory order w ith the C ommi ssioner of Pers onnel pursuant to § 4-5-223. In his petition, Mr. Morris could have requested the Commissioner to d eclare- 11 -

whether, at the time of his termination, he was a career employee w ho was enti tled to invoke thegrievance procedure or whether he was an executive service employee with no such rig ht. As stated above, the declaratory order statue provides that "[a]ny affected pers on m ay pet itio n an a genc y fo r a declarat ory order as to the validity or applicabili ty

of a statut e, rule or

order w ithin the pri mary juri sdiction of the ag ency." Tenn. Code Ann. § 4-5- 223(a)(1) (1991). The r ules and statutes are clear

that both the classificat ion and th e grievability issues are w ithin the Commis sioner of Personnel's p rimary j urisdicti on.

Had Mr. Morris requested a declaratory order, the Commissione r could have convened a co ntested case hear ing under § 4 -5-223(a)( 1) and issued a dec lar atoryorder w hich woul d have been subj ect to rev iew in t he Davidso n County ChanceryCourt under § 4-5-322(a) (1). If the Commi ssioner had refused to iss ue a declaratory order, Mr. Morris could have filed a petition f or a declaratoryjudgment in the chancery court of Davi dson County under § 4-5-225. Finally , in either case, a final judgmentof the chancery court would have been appealable to th e Tennessee Court of Appeals. Tenn. Code Ann. § 4-5-223 (199 1); see Richardson v. Tennessee Bd. of Dentistry , 913 S.W.2d 446, 458 (Tenn. 1995) ( summarizingthe avenuesby whi ch a state serv ice employee can obtain judi cial rev iew).

Because no Tennes se e court has previously set out the prop er procedure for a state ser vice employee to obtain an author itative an swer to t he question of his classi fication, wegive M r. Morri s thirty days t o file a petition for a declaratory order with the Commissioner of Pers onnel. The judgment of th e court below is vacat ed and Mr. Mo rris is authorized to pr oceed in accordance w ith the procedure as out lined above should he so desi re.

VI. The § 1983 Claim- 12 - Last ly, we turn to the lower cour t's dismiss al of the appellant' s 42 U.S.C. § 1983 claim. In Mr. Morr is' orig inal petitio n, he argued, i n the alternative, that Appellees' actions const ituted a deprivati on and in fringement upon hi s protected r ights in violati on of 42 U.S.C. § 1983. In his prayer for relief, M r. Morri s requested that he be granted, i n addition to a he aring and subsequent reinstatement, "such other rel ief
as is just and proper incl uding an award of costs and reason able attorney 's fees." See 42 U.S.C. §1988(b) (g overning the award of attorney' s fees in a § 1983 ac tion byprovidi ng that "the court, in i ts discreti on, may allow the prevai ling part

y other than the United States, a reasonable attorneys' fees as part of the costs"). Finding that it lacked jurisdic

tion over the this clai m, the tri al court dismissed that portion of Mr. Morris' complaint inv

olving § 1983.

In its order, the court stated that it was dis missing the appellant’s complai nt un der 42 U.S.C. § 1983 "for good ca use shown, a s reflected in [the appellees'] Memorandum in Suppo rt of Their Mo tio n for Partial Dismissal." W hile Appellees' memorandum in sup port of the dismissal motion was not made a part of the rec ord, the p art ies ' br iefsindicate that the jurisdictional basis for dismissal involved the joinder of

an original action with an administrative appeal. Befo re addressing this jurisdictio nal qu estion, we must determine whether Mr. Morris has a fede rally protected right which would give rise to a § 1983 action bef ore there has b een a decision that he was a car eer serv ice employee.

Section 1983 of Title 42 of the Un ited States Codeestablishes a cause of act ion against "[e]v ery pers on who, under color of any

statute, ordi nance, regulation, custom, or usag e, of any State or Territory

or th e Distric

t o f Columbia, subjects, or causes to be subjected, any citizen of the United States . . . to the deprivati on of an yrights, privil eges, or i mmunities secured by the Constitution and laws." Procedural du e process is a right s ecured by feder al law. See Logan v.- 13 -

Zimm erman

Brush Co. , 455 U.S. 422 , 432 (19 82) (quot ing Vitek v. Jones , 445 U.S. 480, 491 (1980)) ( in addres si ng the nature of constitut ional due process, the Court noted that "'minimum [proce dural] requirements [are] a matte r o f f ederal law '"). As stated, Tennessee law only gives employeeswho are i n the career s ervice pr operty rightsto their posi tions. Tenn. Code Ann. § 8-30-33 1 (1993); s ee id .§ 8-30-331(b) (providi ng that

mini mum du e proces s ens ures career empl oye es notifi cation of chargesagainst t hem and a right to a pre-decisi on discussio n with thei r manager). Since it has not even been determined that Mr. Mor ris was in the career

servic e, we think it premature for him to r aise a § 1983 cl aim.

Should it be determine d by the C ommissi oner of Personnel tha t Mr. Morris w as indeed a career serv ice employee at the ti me of his terminati on, he may desire to join a § 1983 claim wi th the claim that he wasdeni ed the minimum due process to which he was entitled. Because we find that there is no jurisdictional basis forcategorically deny ing the joi nder of an orig inal action w ith an appeal as the court below seemed to do, we will discuss thi s issue which h as already been thoroughly addressed by

Tennessee courts.

In Goodwin v. Metr

opolitan Bd. of Health , 656 S.W.2d 383, 386 (Tenn. App. 1983), the plai ntiff appealed from an administrative hearing ruling which upheld hertermination of em ployment from the Metrop olitan Board of Health. In th e sa m e action, the pl ainti ff sough t addit ional reli ef by reques ting a decl arator y jud gme nt to have certain regulations of the Board o f Health declared uncon stitutional. This court condemned the joinder of these two claim s ho lding that the original action should have been dismissed at the "very outset." Id. at 387. The court reasone d as follows:

This Court is of the firm opinion that su ch procedure is inimical to a proper review in the lower certio rari Co urt and crea tes e ven great er difficulties in the Court

of Appeals. The necessity of a separation of appel late review of a matter and trial of another matter ought t o be self evident. In the lower Court one is r eviewe d under appropriateAppellate rul es and the other is t ried under trial rules. In this Court our scope of review is dependent- 14 - upon the nature of a proceeding. In this case one matter would be limited by

rules of cert iorari review and the other would be reviewed under 13(d), Tennesse e R ules of Appellate Procedure. Like water and oil, the two w ill not mix.
Id. at 386.
Citing Goodwin , the Court of Appeal s again rei terated its v iew that an appeal from an action from a boar d should not be j oined with an original action in the trial court. State ex rel. Byram v . City of Br

entwood , 833 S. W.2d 500 (Te nn. App. 1991). In Byram , the plaintiffs were seeking plat app roval from the ci ty planning commission in order to develop a tract of land which thecommission deni ed. On appeal, the plaintiffs "soug ht to have the trial court mandate the issuance of a certified plator, in the a ltern ative , to f ind t hat t he de fen dan ts/a ppe llee s act ed ar bitra rily, capriciouslyand unreasonably in with holding appr

oval of a plat for a subdi vision t o be built on property

owned by

the Byrams in Williams on County, Tennes see. The Byra ms 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 acti on for damages shoul d have been dis missed at the outs et and thatit was "unnecessary to discuss any issue having t o do with damages and cl aims invok ing the original jurisdic

tion of the trial court." Id. at 502.

Most recently , in Wimley v. Rudolph , 931 S.W.2d 513 (Tenn. 1996), the Tennessee Suprem e Court addres sed the issue of "whet her [a] plaint iff can combine
an original action under 42 U.S.C . § 1983 wit h a petition for j udicial rev iew under the [UAPA] when thesole reli ef requested under the § 1983 claim i s an award of attorney fees." There, the plai ntiff exhausted her administrati ve r emedies after the st ate terminated her Aid for De pendent Children (AFDC) benefits. When she sought chancerycourt review of the decision that she was ineligible for contin ue d benefits, she also "reque sted thatthe cou rt '[a]ss ess cost s, includ ing a reasonable attorney's fee as provi ded by 42 U.S .C. § 1988. . . .'" Id. at 514. Holdi ng that the p lai ntiff was- 15 -

permitted to join these two clai ms, the court not ed that the plainti ff was not seeki ng remedies under § 1983 w hich were inconsistent with the remedies in her petition for revie w. Id. at 515. The court stated that "[h]ad [the p]laintiff soug ht to join a clai m for any of those types of relief under [§] 1983 which were inconsistent to remedies available in a petition forjudicial review under the Unifor m Administrati ve Procedur es Act, the state' s estoppel cl aim would hav e had merit." Id.

The court disti nguished Goodwinand Byram characteri zing the m both
as cases in w hich the "plain tiffs, pursuing administrati ve appe als, attempted to join original actions for in consistent relief with the judicial review provided in the [UAPA]. " Id. at 516. Sig nificantly, the court art iculated "the c rucial distinction between the issues in those cases and the on e at bar" as follows:

Here, the basis for pl aintiff's petitio n f or judicial review was her allegation that DHS had denied he r rig ht s aff orded under federal law , specificall y rig hts to AFD C benefits. Upon prevailing upon that claim, plai ntiff had, by definition, established a deprivati on of rightsunder color of state la w, t he very

basis for recovery under § 1983. Furthermore, tha t success enti tled her to att orney fees under § 1983 even ha d she not plead that entitlement.
Id. (citing Bloomingdal e's by Mail

Ltd. v. Huddl

eston , 848 S.W.2d 52, 56 (Tenn. 1992)). Goodwinand Byram , on the oth er hand, did not involve allegati ons of the deprivati on of federal rig hts under color of law. Wimley

, 931 S.W.2d at 516.

Mr. Morris might, subseq uent to the reman d of this case, pet ition for judicial review

on the basis th at he was deni ed his rig ht to p rocedural due process which, like the r ight at is sue in W imley , is a right afforded under federal law . By prevaili ng on a claim br ought under theUAPA, Mr . Morris may show that he is also entitled to recover under 42 U.S.C. § 1983 as the plaintiff in Wimley did. Because t he case law has emphasized that the reli ef sought in the o riginal § 1983 action can not be inconsistent

with the judicial review

under the UAPA, it is significant that Mr. Morris spe cificallysought only attorney' s fees under § 1983 i n his complaint . The court i n- 16 -

Wimley explici tly held t hat there was no inconsistency when a plaintiff joine d a claim forattorney' s fees under § 1983 w ith her appeal und er the U APA . W e therefore cla rify that the trial court was in error when it based its dismissal of the § 1983 claim
on its lack of jurisdic

tion over an original action joined with an administrative appeal.

VII. Conclusion

For the foregoing reasons, the dec ision of the chancery court is v acated. We hold that the pr

oper proc edure for a sta te em ploye e to o btai n an a utho ritat ive
answer to the questi on of his status i s the f ilin g of a declarat ory order with the Commissioner

of Personnel pursuant to Tenness ee Code Annotated section 4-5- 223. We direct that Mr. Morr is be given thirty days to act in accordance w ith this pr ocedure. Fina lly, we conclude that there is no basis for a § 1983 action unti l there has been a determination that Mr. M orris was a career s ervice empl oyee with a federallysecured property interest i n h is p osition. However, once the declaratory order action befo re the Commissioner

is final, Mr . Morris

may couple a § 1983 claim for attorney’s fees with his petitio n for chancery court rev iew of the is sue tha t he, as a career service employee, was denied due process. Tax the costs on appeal to the state.

_______________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ SAMUEL L. LEWIS, JUDGE- 17 -

_______________________________ WILLIAM C. KOCH, JR., J UDGE