                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                      April 24, 2008 Session

     CAPTAIN LOUIS J. GILLESPIE, JR., ET AL. v. CITY OF MEMPHIS

                      Appeal from the Chancery Court for Shelby County
                      No. CH-00-0887-2   Arnold B. Goldin, Chancellor



                       No. W2007-01786-COA-R3-CV - Filed June 5, 2008


The charter and code of ordinances of the City of Memphis set out certain specific provisions,
including civil service protections, concerning the organization and operation of the City’s police
department. This appeal arises from a suit brought by several high ranking members of the police
force who allege that the City created a de facto rank in conflict with the City’s charter and
ordinances. The trial court held that the City had impermissibly created a new rank and granted
relief in the form of an injunction and a declaratory judgment. It, however, denied claims for
damages pursuant to 42 U.S.C. § 1983 and an implied right of action under the City’s civil service
rules. We find that the question regarding the appropriateness of the trial court’s awarding injunctive
and declaratory relief is now moot and accordingly vacate that part of its decision. We affirm the
trial court’s decision that monetary damages are not available.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,
                            Vacated in Part, and Remanded

WALTER C. KURTZ, SR. J., delivered the opinion of the court, in which DAVID R. FARMER and HOLLY
M. KIRBY , JJ., joined.

Henry Shelton, III, Megan Arthur, and Emily C. Taube, Memphis, Tennessee for the appellants,
Captain Louis J. Gillespie, Jr. et al.

Louis P. Britt, III and P. Daniel Riederer, Memphis, Tennessee, for the appellee, City of Memphis.

                                               OPINION

        This case involves the classification of police officers under the charter and civil service rules
of the City of Memphis (“City”). For many years the City’s police department recognized a position
which was denoted as the “executive major.” In this action, several officers holding the ranks of
captain and major sued the City alleging that this position was not authorized by the applicable law.
The trial court held that the City had in fact created an unauthorized rank and enjoined its use; the
court, however, denied their claims for monetary relief. The officers (“appellants”) have appealed
arguing that they are entitled to money damages; the City argues that the court below erred in finding
the position of “executive major” to be an unauthorized rank. For the reasons stated herein, we
affirm in part, vacate in part, and remand.

                                                  I

       On May 8, 2000, the appellants filed a complaint against the City in the Chancery Court for
Shelby County seeking both a declaratory judgment and a permanent injunction as well as damages.
The complaint was twice amended, and the final amended complaint named as plaintiffs sixty-three
members of the Memphis Police Department holding the rank of captain or major.

        The appellants argued that the City had effectively created a new, de facto rank within the
police force—that of “executive major”—and that the officers holding this rank had certain
supervisory powers, including authority over regular majors and captains. They further contended
that these “executive majors” wore distinctive uniforms, received extra pay, and were provided city-
owned automobiles. The appellants took the position that the City’s charter and civil service rules
do not authorize such a rank and that, without this authorization, the rank is impermissible. As a
remedy they sought a declaration that the creation and utilization of the rank was illegal; relatedly,
they also sought an order enjoining its use. They further prayed for damages for the period within
which they were deprived of the “right” to obtain the rank of “executive major” in the force. The
appellants’ claims for monetary relief were premised on two grounds—first, that such relief was
owed as compensation for lost earnings and benefits associated with the position of “executive
major” and, second, that it was available pursuant to 42 U.S.C. § 1983 for due process and equal
protection violations.

        The City responded by arguing that extra responsibilities were in fact given to certain majors,
but that this was well within the executive authority possessed by the City’s Director of Police. It
maintained that there were no distinctive uniforms and that these “executive majors” had no
disciplinary authority over other majors. According to the City, the vehicles and extra pay cited by
the appellants were related to the assumption of additional responsibilities—and, moreover, these
responsibilities were often temporary, arising when an “executive major” substituted for an absent
supervisor. Thus, said the City, these additional duties were merely recognized by using the
appellation “executive major,” but this did not run afoul of the ranks designated in the City’s charter
and ordinances because it was not a separate rank.

       The case came for trial on November 14, 2006. In its ruling, the trial court agreed with the
appellants that the Director of Police had acted “without authority” in creating a de facto rank called
the “executive major.” The chancellor stated orally in part:

       In this case, the Court finds that obviously for a period of a number of years, 25
       years, 50 years—obviously, for a long period of time prior to 1998, there were
       persons who were acting either as executive Captains or executive Majors and had
       administrative responsibilities and were placed in those positions at the discretion of
       the Chief or the director now. The Court had no—sees no—that there was apparently
       no problem with that.


                                                 -2-
         Then in March of 1998 at the request of a group of executive Majors, there was a
         request that there be a change in pay and for whatever reason—or however this
         definition of “responsibilities” occurred in this memo that’s been introduced as
         Exhibit 2—at the same time that the executive Majors were given responsibilities as
         Duty—as Duty Chief. The—this definition of “responsibilities” as set out in this
         memo appear[s] to give supervisory function[s] to the executive Major that—over
         other Majors. The effect of that is the creation of a de facto rank by the City without
         the authority of the City providing such additional rank.

The court’s order of December 7, 2006 reads:

         A. By giving certain Majors within the Memphis Police Department supervisory
         authority over other Majors and Captains and by compensating those supervisory
         Majors with salary and benefits in excess of that received by Captains and Majors,
         the Defendant City of Memphis has created the de facto rank of Executive Major and
         in doing so has violated the Memphis City Charter and Memphis City Code of
         Ordinances.1

         B. Defendant is liable to Plaintiffs for damages in an amount to be determined at a
         later hearing.

        Subsequently, the City moved the trial court to dismiss the appellants’ claims for monetary
relief on the grounds that there is no private cause of action arising under the City’s charter and
ordinances for violations of their civil service provisions. The trial court agreed with the City on this
point and reversed its prior ruling that the appellants were entitled to damages. Consequently, it
dismissed those claims. The court’s order of July 20, 2007 states:

         This cause came on to be heard on July 9, 2007, upon the Court’s Order as to
         Liability and Declaratory Judgment, upon Defendant’s Motion to Dismiss Plaintiffs’
         Claim for Monetary Relief, upon Plaintiffs’ Response thereto, upon statements of
         counsel for Plaintiffs and Defendants, and upon the entire record herein, based upon
         all of which

         IT APPEARING TO THE COURT, for the reasons set forth in the Court’s oral
         ruling, a copy of which is attached hereto and incorporated herein by reference, that
         Defendant’s Motion is well-taken and should be granted, and

         IT FURTHER APPEARING TO THE COURT, that Defendant created a de facto
         rank of Executive Major in violation of the City Charter and should be enjoined from
         its conduct in violation of the Charter of the City of Memphis,



         1
          The record is not clear that the court dismissed the appellants’ claims under 42 U.S.C. § 1983. On appeal,
however, both sides agree that, by not referencing those claims in its order, the trial court dismissed them by implication.

                                                            -3-
       IT IS THEREFORE ORDERED, that:

       1. Defendant’s Motion to Dismiss Plaintiffs’ Claims for Monetary Relief is granted.

       2. The City of Memphis is enjoined from creating the rank of Executive Major which
       violates the requirements in the Charter and Ordinances of the City of Memphis for
       the proper creation of civil service ranks in the Memphis Police Department.

This appeal followed. The appellants seek to overturn the trial court’s ultimate ruling that they are
not entitled to monetary damages pursuant to either 42 U.S.C. § 1983 or a theory of an implied right
of action under the City’s charter and ordinances. The City, of course, embraces the trial court’s
ruling that damages were not an available remedy. But, on its cross-appeal, the City contends that
the trial court erred in finding that it had created an unauthorized, de facto rank.

                                                  II

        This case came before the court below for trial without a jury. “[R]eview of findings of fact
by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by
a presumption of the correctness of the finding, unless the preponderance of the evidence is
otherwise.” Tenn. R. App. P. 13(d); see Curry v. City of Hohenwald, 223 S.W.3d 289, 291 (Tenn.
Ct. App. 2007). The trial court’s legal conclusions, however, do not enjoy any such presumption
of correctness. See, e.g., Alison Group, Inc. v. Ericson, 181 S.W.3d 670, 674 (Tenn. Ct. App. 2005);
see generally Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

       The parties present the following issues on appeal before this Court:

(1) Whether the trial court erred in concluding that the City had created a de facto rank called the
“executive major” within the police department in violation of the City’s charter and code of
ordinances.

(2) Whether the trial court properly held that the City did not violate the appellants’ rights to due
process and equal protection.

(3) Whether the trial court was correct in dismissing the appellants’ claims for monetary relief on
the grounds that the City’s charter and ordinances do not provide for a private right of action.

                                                 III

                                                  A.

        The appellants argued below, and the trial court agreed, that the City created a de facto rank
of “executive major” in violation of its charter and ordinances. According to the City, however, the
title “executive major” was not meant to denote a separate rank within the police department.
Instead, it was an internal designation of those majors to whom the Director of Police assigned
additional duties.

                                                 -4-
       The City’s charter refers to the power of the board of commissioners, but since 1966 these
powers have been possessed by the Memphis City Council. As to police services, the charter states:

                          ARTICLE 11. POLICE DEPARTMENT

       Sec. 68. Duty of board to establish, fix duties, etc.

       It shall be the duty of the board of city commissioners of the City of Memphis to
       establish and maintain a police department, prescribe its duties and by ordinance
       establish and fix the grades, ranks and classifications of all officers and other
       employees of the police department of the City of Memphis.

       Sec. 69. Appointment and salaries of employees.

       The board of commissioners, in addition to all other powers delegated to it, is hereby
       authorized and fully empowered, by ordinance, to determine the number of officers
       and employees in each grade, rank and classification to be employed by the City of
       Memphis in the police department, and to fix the salaries of all of said officers and
       employees.

       Sec. 70. Chief of police and chief of detectives; number of other officers and
       employees to be determined by board of commissioners.

       There shall be but one chief of police and one chief of detectives, but the board of
       commissioners shall be empowered by ordinance to designate the number of
       captains, lieutenants, sergeants, detective sergeants, detectives, patrolmen and all
       other officers and employees as may be necessary to efficiently conduct the
       department.

The Council, in turn, has adopted the following ordinance:

       2.28.040 Appointment of other officers and employees of division:

       The director of police services is authorized and empowered to appoint one deputy
       director, four deputy chiefs and as many chief inspectors, inspectors, captains,
       lieutenants, sergeants, detectives and patrol officers, together with such emergency
       police, secretaries, clerks, stenographers, operators, janitors, turnkeys, desk
       lieutenants, desk sergeants, mechanics, matrons, women police officers and such
       other help as may be needed to efficiently police the city and to efficiently conduct
       the police division of the city.

We note that the rank of major—executive or otherwise—is curiously absent from this listing.

       The police services division enjoys civil service protections. See Memphis City Charter §

                                                -5-
250.1; Memphis City Ordinance § 3.08.020. Specifically, Memphis City Ordinance § 3.08.040
states:

         Examinations for applicants for employment.

         A. All applicants for employment in positions protected by Sections 3.08.020
         through 3.08.060 shall be subjected to competitive job-related examinations under
         such rules and regulations as may be adopted by the director of personnel.

         B. The examinations to be provided for shall be of a practical nature and relate to
         such matters as will fairly test the relative competency of the applicant to discharge
         the duties of the particular position. No question in any examination shall relate to
         political or religious opinions or affiliations. The examination shall be conducted
         and controlled by the director of personnel.

Furthermore, the City’s charter provides that any police officer hired before 1979 is to be promoted
to captain if he or she serves for thirty years.2 See Memphis City Charter § 67.

         The distinction among the ranks in the force is further confused by the fact that, according
to the parties’ briefs, the rank of captain was at some point replaced by the rank of major (a
designation distinct from “executive major”). The parties, however, cite no evidence in the record
to support this. For example, the appellants’ citation to the record is actually to nothing more than
the oral statement of their counsel to the trial court.3 The City does no better, stating in its brief,
without citing to the record at all, that “[i]n 1991 merit captains were renamed commanders, and
later renamed majors.” Whatever the authority for the creation of the rank of major, the parties often
refer to the ranks of major and captain interchangeably, and neither side makes an issue out of the
existence of the rank of major. It is the “executive major” whose legitimacy is in question in this
case.

        Confronting the propriety of this appeal is the fact that several weeks prior to the November
2006 hearing before the trial court, the Director of Police abolished the position of “executive major”
and replaced it with the position of “administrative major.” This new “administrative major” would
only receive pay outside of that normally received by other members of his rank when performing
duties outside of the rank—for instance, if filling in for an absent inspector. In contrast, the
“executive major” had received additional pay on a regular monthly basis. It is not clear from the
record whether these “administrative majors” are assigned automobiles permanently or only when



         2
             This provision has been the subject of prior litigation. See Dunlap v. City of Memphis, No. W2003-02649-
COA-R3-CV, 2004 WL 2599752 (Tenn. Ct. App. Nov. 12, 2004). Noncompliance with this provision was also alleged
in the first complaint filed in this case, but it is no longer part of the present lawsuit.
         3
           Their citation is to Record Volume IV, p. 46, where counsel for the appellants orally stated: “Essentially, the
city charter and the city code create five superior police ranks: . . . sergeants, lieutenants, captains, inspectors, and chief
inspectors. Captains, the third rank, are these days known as majors because of the 30-year captain situation[.]”

                                                             -6-
assuming additional duties. The Court takes note of the following passage in the appellants’ brief:

        [The Director of Police] later abolished the position of Executive Major in September
        2006—only a few weeks before the original setting of this case for trial on October
        1, 2006. Therefore, an injunction requiring the Defendant to comply with the Charter
        and Code by eliminating the rank of Executive Major is useless, as is a writ of
        mandamus ordering the Defendant to promote Appellants to Executive Major, as,
        thankfully, the “rank” no longer exists.

This development raises the question of whether this case is now moot.

         “A moot case is one that has lost its justiciability because it no longer involves a present,
ongoing controversy.” Alliance for Native American Indian Rights in Tennessee, Inc. v. Nicely, 182
S.W.3d 333, 338 (Tenn. Ct. App. 2005) (citations omitted). “A case will be considered moot if it
no longer serves as a means to provide some sort of judicial relief to the prevailing party.” Id.
(citations omitted). Where it appears that the act to be enjoined has ceased to exist, an action for an
injunction becomes moot and will be dismissed. Ford Consumer Fin. Co., Inc. v. Clay, 984 S.W.2d
615, 616-17 (Tenn. Ct. App. 1998); Hogue and Knott v. Kroger Co., 481 S.W.2d 784, 781 (Tenn.
Ct. App. 1971); see generally 5 Am. Jur. 2d Appellate Review §§ 596-601 (2008). The Court
recognizes that there are exceptions to the doctrine of mootness. See Consumer Advocate Div. of
the Office of the Tennessee Attorney Gen. v. Tennessee Regulatory Auth., Nos. M2004-01481-COA-
R12-CV, M2004-01482-COA-R12-CV, M2004-01485-COA-R12-CV, 2006 WL 249511, at *8-12
(Tenn. Ct. App. Feb. 1, 2006). Even when one of these exceptions applies, however, “[d]ecisions
concerning whether to take up cases that fit into one of the exceptions to the mootness doctrine are
discretionary with the appellate courts.” McIntyre v. Traughber, 884 S.W.2d 134, 137 (Tenn. Ct.
App. 1994) (citing Dockery v. Dockery, 559 S.W.2d 952, 954 (Tenn. Ct. App. 1977)). We conclude
that, even if this case did fit within one these exceptions, it would not be prudent to exercise that
discretion here, especially since the very parties who sought the injunction now tell us that it is
“useless” and the practice they sought to enjoin “no longer exists.” The typical course when
dismissing a case on appeal as moot is “to vacate the judgment and remand the case with directions
that it be dismissed.” Id. (citations omitted). That is the appropriate action in this case as to the trial
court’s injunction and declaratory judgment.

        The fact that these two prospective remedies are moot does not, however, render the entire
case moot. If the appellants are entitled to damages, then it would be of great consequence whether
or not the City’s introduction of the “executive major” was unauthorized. For the reasons set out
below, we have determined that, even if the appellants are correct that the position of “executive
major” is an unauthorized rank, they would not be entitled to monetary damages.

                                                   B.

        The appellants claim entitlement to money damages under two separate theories. By way
of an introduction, the Court observes a basic incongruousness in the appellants’ positions. First,
they urge that the City’s introduction of the “executive major” was an “illegal” action leading to an


                                                   -7-
“unauthorized” rank. Then they go on to assert that they should benefit from what they themselves
describe as actions not allowed by the law. The conflict between the assertion of an illegality on the
one hand and the desire to benefit therefrom on the other necessarily infects any analysis of their
claim to damages.

1. Damages under 42 U.S.C. § 1983

        The first theory by which the appellants seek damages is under 42 U.S.C. § 1983. They
argue that the City created a rank and then deprived them of its benefits when it did not allow them
to be considered for promotion to it pursuant to the rules governing civil service. This, they say,
constitutes a violation of their rights to due process and equal protection.

        The claim for damages on the grounds of an equal protection violation must readily fail. This
case is analogous to the case of Faust v. Metropolitan Gov’t of Nashville & Davidson County, 206
S.W.3d 475 (Tenn. Ct. App. 2006). In that case, civilian employees of the Nashville fire department
were, without legal authority, allowed to participate in the regular pension plan of the regular police
officers and fire fighters. Civilian employees of the Nashville police department then brought suit
contending that, if civilian employees of the fire department were allowed to participate, then they
should be as well. Failing to allow this would, they said, deprive them of equal protection of the
law. Id. at 478. This Court rejected that claim.

         In Faust, this Court articulated two principles applicable to the instant case. The Court
observed that giving the fire department’s civilian employees pension benefits was without legal
authority, was ultra vires, and thus was void. Id. at 485. The Court went on to make a second point:
if benefits are inappropriately given to one group, the remedy is not to compound the illegality by
giving it to others; rather, the remedy is to “remove the favored group from its favored position.”
Id. at 495-96 (citing Heckler v. Matthews, 465 U.S. 728, 739-40, 104 S.Ct. 1387, 1395, 79 L.Ed.2d
646 (1984)).

        We find that the appellants’ due process claims are considerably more inscrutable. It appears
to be alleged that the City created the rank of “executive major” and that this action did not comply
with the law. Then, civil service rules were not followed in the selection of persons to fill this illegal
rank, thus depriving the appellants of their right to be considered. Under this theory, the City’s
ordinances somehow created an entitlement to a promotional process and the right to compete for
the rank of “executive major.” When this was not provided, the appellants argue, they were deprived
of due process, and this now entitles them to damages.

        The right to procedural due process in government employment turns upon whether or not
the claimant possesses a property interest in the position. See generally Board of Regents v. Roth,
408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (discussing government employment); 3 Ronald
D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 17.5(d)
(2008). Most such cases involve an allegation of wrongful termination without the requisite due
process. State law determines whether a claimant truly has a property interest or entitlement to the
incidents of government employment meriting due process protections. Obviously a civil service
system and employment within that system create such an interest. Thus, if state law does not

                                                   -8-
provide sufficient procedures for termination of a government employee who has a property interest
in his employment, then the due process clause will provide him protection. See Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

        The protections described above do not typically apply to promotions, as there is usually no
property interest in a promotion. See Haskins v. City of Chattanooga, 877 S.W.2d 267, 269 (Tenn.
Ct. App. 1993); see also Bheemarao v. City of New York, 141 F.Supp.2d 446, 449-50 (S.D.N.Y.
2001); 15A Am. Jur. 2d Civil Service § 57 (2008). Only on rare occasions have the courts extended
due process protections to include the right to a promotion, and even then it has only been
recognized when a government has by its conduct created an implied contract assuring the claimant
that a promotion would be forthcoming. See Paskvan v. City of Cleveland Civil Serv. Comm’n, 946
F.2d 1233, 1235-36 (6th Cir. 1991).

        There is nothing in the record to indicate that promotion of the appellants to the position of
“executive major” was an assured right. First, since the appellants contend that the rank was
illegally created, there can be no right to be promoted to an illegal rank. Second, though, there is
no assurance that, even if eligible and considered, the appellants would have in fact been promoted
to the rank.

        Furthermore, the appellants’ due process claims run squarely counter to the holding of this
Court in Haskins v. City of Chattanooga, 877 S.W.2d 267 (Tenn. Ct. App. 1993). In the Haskins
case, police officers alleged that they took on responsibilities outside of their pay grade and that this
entitled them to promotions under the existing city ordinance. They argued that the city’s practice
violated both substantive and procedural due process thereby entitling them to damages pursuant to
42 U.S.C. § 1983. Id. at 267-68. The trial court agreed with the officers and ordered both
promotions and back pay pursuant to section 1983. Id. at 267. On appeal, this Court—while
acknowledging that the city had violated its own ordinance governing promotions—reversed the trial
court’s conclusion that there had been a constitutional violation. We first held that the actions of the
city could not be considered the kind of shocking or egregious abuse that would rise to the level of
a violation of substantive due process. Id. at 270. We then analyzed the claims made by the officers
for procedural due process:

        Courts of Appeals throughout the country have held that when government
        employees sue their employers under section 1983 for deprivation of property rights,
        the claim fails when the rights involve employment benefits, rather than the
        employment relation itself, and when a state law remedy for breach of the
        employment contract provides the “process due”. See, e.g., Oladeinde v. City of
        Birmingham, 963 F.2d 1481 (11th Cir. 1992); Ramsey v. Board of Education of
        Whitley County, 844 F.2d 1268 (6th Cir. 1988); Boston Environmental Sanitation
        Inspectors Assoc. v. City of Boston, 794 F.2d 12 (1st Cir. 1986); Brown v. Brienen,
        722 F.2d 360 (7th Cir. 1983).

        Although the existence of overlapping state remedies is not generally relevant to
        whether a section 1983 remedy is available, there is an exception for procedural due
        process violations. See Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108

                                                  -9-
         L.Ed.2d 100 (1990). The constitutional deprivation is incomplete unless the state has
         failed to provide due process. To determine whether a constitutional violation has
         occurred, it is necessary to ask what process the state provided, and whether it was
         adequate. The Supreme Court in Zinermon observed:

                  Therefore, to determine whether a constitutional violation has
                  occurred, it is necessary to ask what process the state provided, and
                  whether it was constitutionally adequate. This inquiry would
                  examine the procedural safeguards built into the statutory or
                  administrative procedure of [e]ffecting the deprivation, and any
                  remedies for erroneous deprivation provided by statute or tort law.

         494 U.S. at 126, 110 S.Ct. at 983.

         Various rationales are advanced for not affording employee benefit cases section
         1983 jurisdiction. They include an unwillingness to “trivialize” the Constitution with
         what are in essence personnel disputes, Brown, 722 F.2d at 364, and the futility of
         providing pre-deprivation hearings that would lead to the same result, when the
         plaintiffs claim an absolute entitlement to a benefit which is easily measured in
         money or time, Ramsey, 844 F.2d at 1272-74.

         Section 16-10 of the City Code afforded plaintiffs a “legitimate claim of entitlement”
         to promotions and pay increases. However, the plaintiffs’ breach of contract action
         adequately remedied the deprivation without the need to resort to federal remedies.
         Moreover, although the officers were not required to exhaust administrative remedies
         before filing a § 1983 action, Henderson v. Bentley, 500 F.Supp. 62 (E.D.
         Tenn.1980) aff’d, 698 F.2d 1219 (6th Cir. 1982), other state law remedies were
         available.4 The State afforded plaintiffs the process which they utilized to remedy
         the deprivation.

         Accordingly, we reverse the judgment of the Trial Court on the basis that plaintiffs
         are not entitled to relief under section 1983, and remand with costs of appeal assessed
         to appellees.

Haskins, 877 S.W.2d at 270-71 (internal footnote omitted). What makes the holding of Haskins
even more daunting for the appellants here is that the officers in that case were not just denied the
right to be considered for promotion. Rather, their status would have required their promotions.
Still, this Court found no violation of 42 U.S.C. § 1983.

       We conclude that the case before us is controlled by the reasoning and holding articulated
by the Court in Haskins. Therefore, we find that the appellants have no valid claim for a violation


         4
           Other like holdings have suggested that the availability of state court actions for injunctions, mandamus, or
a declaratory judgment would also suffice. See Shirokey v. Marth, 585 N.E.2d 407, 413-14 (Ohio 1992).

                                                         -10-
of due process, and thus there is no remedy available to them under 42 U.S.C. § 1983.

        Furthermore, in cases involving discretionary promotions, damages are not the appropriate
remedy. This is not a case in which the appellants had a right to be promoted. By their own
assertions they sought merely to be considered. The normal remedy for a systemic violation of civil
service promotion procedures is not damages or back pay; instead it is “reconsideration for
appointment or promotion after the defect in the process has been corrected.” Matter of Greco v.
Dep’t of Personnel of City of New York, 640 N.Y.S.2d 509, 510 (N.Y. App. Div. 1996).

        Having addressed the lack of damages as a remedy, the Court acknowledges that it has come
full circle—back to the incongruousness of the appellants’ claims. That is, the appellants seek
damages for being denied consideration for promotion to a position which they simultaneously
contend was illegally created. The law simply does not allow for recovery based on such an
irrational and contradictory assertion.5

2. Damages Pursuant to a Private Right of Action for Civil Service Violations

       The appellants also urge that the civil service provisions of the City’s charter and code of
ordinances create a private right of action under which they are entitled to damages. The Court can
find no better analysis than that provided by U.S. District Court Judge Bernice Donald, who
considered the same issue and wrote the following:

         Under Tennessee law, when a plaintiff asserts an injury that involves an alleged
         statutory violation, it is incumbent upon the court to determine whether the statute
         in question provides the plaintiff with a cause of action. Petty v. Daimler/Chrysler
         Corp., 91 S.W.3d 765, 768 (Tenn. Ct. App. 2002). In other words, the mere fact that
         a statute has been allegedly violated and some person harmed, does not automatically
         give rise to a private cause of action for monetary relief in favor of that person.
         Local 3-689, Oil, Chemical & Atomic Int'l Union v. Martin Marietta Energy Sys., 77
         F.3d 131, 136 (6th Cir. 1996). In construing the statutory section at issue, the Court
         is “not privileged to create [a private right of action] under the guise of liberal
         interpretation of the statute.” Premium Finance Corp. of Am. v. Crump Ins. Serv. of
         Memphis, Inc., 978 S.W.2d 91, 93 (Tenn. 1998). Rather, it is the legislative body
         that has the authority to create legal rights and interests and no right of action can be
         brought until there is legislative authority for that right of action. Id.; Hogan v.
         McDaniel, 319 S.W.2d 221, 225 (Tenn. 1958). As a result, the burden of proving the
         existence of a private right of action lies with the plaintiff. Premium Finance, 978
         S.W.2d at 93 (citing Ergon, Inc. v. Amoco Oil Co., 966 F.Supp. 577, 585 (W.D.
         Tenn. 1997)).

         Relying on Ergon, this Court noted recently that Tennessee courts have utilized the


         5
          The City has raised a statute of limitations issue regarding the appellants’ claims under 42 U.S.C. § 1983.
Given the decision of the Court above, this issue is pretermitted.

                                                        -11-
      standard set forth by the United States Supreme Court to determine whether a statute
      implies a private right of action. Matthews v. Storgion, 335 F.Supp.2d 878, 890
      (W.D. Tenn. 2004). In that case, the Court observed that “[t]he touchstone of the
      analysis is legislative intent: whether the legislature intended in passing the statute
      to provide a private right of action.” Id. (quoting Ergon, 966 F.Supp. at 583). The
      factors to consider include whether “1) the plaintiff is a member of the class intended
      to benefit from the statute, 2) there is any indication of a legislative intent to create
      a private right of action under the statute, and 3) a private cause of action is
      consistent with the underlying purposes of the legislation.” Id.

      Under the above test, the court must first look to the language of the statutory section
      for guidance. Id. (citing Ergon, 966 F.Supp. at 584). As stated by the Court in
      Ergon, “unless the legislative intent to create a private right of action ‘can be inferred
      from the language of the statute, the statutory structure, or some other source, the
      essential predicate for implication of a private remedy simply does not exist.’”
      Ergon, 966 F.Supp. at 584 (quoting Thompson v. Thompson, 484 U.S. 174, 179,
      (1988)).
      In the present case, neither the Charter nor the City Ordinance provisions at issue
      explicitly provide for a private cause of action for individual monetary relief or
      retroactive promotions for an alleged violation of these provisions. There is no
      enforcement mechanism specifically set forth in § 250.1 of the Charter or § 9-3 of the
      City Ordinances. See Premium Finance, 978 S.W.2d 93 (finding no private right of
      action, in part, where the statute at issue imposed a specific, mandatory duty but
      provided no enforcement mechanism for the duty).

      Additionally, the respective Articles in which these sections exist do not provide for
      any method of enforcing the provisions § 250.1 of the Charter or § 9-3 of the City
      Ordinances. See Charter, Art. 34; Memphis Code of Ordinances, Art. 9. Finally,
      there is nothing explicit or implicit in either provision that indicates any intent to
      provide a private right of action for monetary relief or retroactive promotions to
      enforce these provisions. Cf. Pratt v. Smart Corp., 968 S.W.2d 868, 872-73 (Tenn.
      Ct. App.1997) (finding that the Medical Records Act authorized a private cause of
      action by reason of the fact that it allowed for recovery of “actual damages” for
      willful or reckless violations). Thus, the language of the Charter and City Ordinance
      provisions does not support a private right of action for monetary relief or retroactive
      promotions.

      Accordingly, although the Court has found Defendant to be in violation of the City
      Charter and Ordinances in its administration of the 2000 process, the Court finds that
      the remedies Plaintiffs seek are unavailable under the city laws.

Johnson v. City of Memphis, Nos. 00-2608 DP, 04-2017 DP, 04-2013 DA, 2006 WL 3827481, at
*17-18 (W.D. Tenn. Dec. 28, 2006).

      We find Judge Donald’s reasoning to be compelling and likewise conclude that the City’s

                                                -12-
charter and ordinances do not provide the appellants with a private right of action for violations of
the City’s civil service provisions.

                                                  IV

        For the reasons stated above, the trial court’s injunction and declaratory judgment are vacated
as moot. The trial court’s decision regarding damages is affirmed, and this case is remanded for any
further proceedings as may be necessary. Costs of this appeal are taxed to the appellants and their
surety for which execution may issue if necessary.


                                               __________________________________
                                               WALTER C. KURTZ, SENIOR JUDGE




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