WAYNE MORRIS,                             )
                                          )
       Plaintiff/Appellant,               )
                                          )   Appeal No.
                                          )   01-A-01-9612-CH-00543
VS.                                       )
                                          )   Davidson Chancery
                                          )   No. 96-705-I
CORRECTIONAL ENTERPRISES                  )
OF TENNESSEE, TENNESSEE                   )
CIVIL SERVICE COMMISSION, and
SUSAN R. WILLIAMS, in Her
Official Capacity as Commissioner of
                                          )
                                          )
                                          )
                                                       FILED
the Tennessee Department of               )             October 29, 1997
Personnel,                                )
                                          )           Cecil W. Crowson
       Defendants/Appellees.              )          Appellate Court Clerk

                      COURT OF APPEALS OF TENNESSEE
                        MIDDLE SECTION AT NASHVILLE


APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR




LARRY D. WOODS
P. O. Box 24727
Nashville, Tennessee 37202-4727
       Attorney for Plaintiff/Appellant

JOHN KNOX WALKUP
Attorney General & Reporter

JAMES C. FLOYD
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0490
       Attorney for Defendants/Appellees



                              REVERSED AND REMANDED



                                              BEN H. CANTRELL, JUDGE


CONCUR:
LEWIS, J.
KOCH, J.
                                  OPINION

              The primary question in this appeal, from which all other issues flow, is

what is the procedure for determining whether a state employee was in the career

service, and thus entitled to civil service protection, or in the executive service serving

at the pleasure of his employer. We vacate the judgment of the chancery court and

give the appellant employee thirty days to act in accordance with the proper procedure

as outlined in the following opinion.



                                            I.

                                  Procedural History



              The Tennessee Civil Service Commission (CSC) and Correctional

Enterprises of Tennessee (CET) denied the appellant an administrative hearing after

he was terminated from his job with Tennessee State Industries, a division of the

Department of Correction. Appellant then petitioned the Chancery Court of Davidson

County for review of the denial pursuant to the Uniform Administrative Procedures Act

(UAPA) adding a claim for the infringement on his rights in violation of 42 U.S.C. §

1983. Finding that it lacked jurisdiction to hear the § 1983 claim, the trial court

dismissed this portion of Appellant's petition. The court then found that Appellees'

decision not to grant Appellant a hearing was not subject to review in the chancery

court because there was no "contested case" in this matter and because the law

provides that "[t]he final step of th[e] grievance procedure 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.



                                           -2-
                                         Facts



              Wayne Morris had been employed by the State of Tennessee for twenty-

seven years when he was terminated from his job in December of 1995. He began

his career with the state as a correctional officer. In 1984, he was transferred to

Tennessee State Industries, a division of the Department of Correction, where he

worked as a Correctional Industries Supervisor II. From 1984 to 1989, Mr. Morris

received merit pay increases and promotions becoming first a Correctional Industries

Supervisor III and, later, a Correctional Industries Supervisor V. In the latter position,

Mr. Morris was Plant Manager of the metal plant at Turney Center -- a state prison

industry facility containing a metal plant, a paint plant and a wood furniture plant. At

Turney Center, there is an Industries Operations Manager (IOM), a position which Mr.

Morris claims was filled by Ken Brown during Mr. Morris' entire tenure as Plant

Manager. It is Appellees' view that Mr. Morris' promotion in January of 1995 was to

the position of IOM. Contrarily, Mr. Morris asserts that CET and the CSC transferred

him from his position as Plant Manager of the metal plant to Plant Manager of the

wood furniture plant at which time Mr. Morris was promised a step raise.



              Almost a year after the change in Mr. Morris' job, the Acting Executive

Director of CET notified Mr. Morris in a letter dated December 5, 1995 that, "[d]ue to

continuing quality control problems and the inadequate oversight of plant operations,"

he was being terminated from employment. When he attempted to utilize the

grievance procedures set up by statute for state employees, the Director for Human

Resource Management for CET told him that he was not entitled to a hearing because

he had been in an executive service position since January 16, 1995. The Director

asserted in a letter that the fact that Mr. Morris accepted the raise which he received

in January of 1995 indicates that he knowingly accepted this executive service

position. When Mr. Morris requested a Level V hearing before the CSC, his request

was again denied in a letter stating that his personnel records indicated that he has


                                          -3-
been in the executive service since January 16, 1995 and thus CSC has no authority

to hear his appeal.



                                           III.

                             The Status of the Employee



               The scope of Mr. Morris' rights with regard to his former employment is

defined by whether he was Plant Manager or IOM-- each position occupying a

different status under the Civil Service Code which divides all positions in the state

service between career service and executive service. Tenn. Code Ann. § 8-30-208

(1993). The Tennessee Code provides that a plant manager in a prison industry

"shall be a career service employee." Id. § 41-22-407(d) (1997). The statute further

provides that the Tennessee Rehabilitative Initiative in Correction Board (TRICOR),

with the approval of the commissioner of personnnel, "shall have the option of

declaring certain management positions, unique to the operations under the control

of the board, a part of the executive service and under the exclusive control of the

board." Id. Mr. Morris does not dispute that the position of IOM is such an executive

service job.



               Significantly, if, at the time of his termination, Mr. Morris was a career

service employee who had completed his initial working test period, or a "regular

employee," he should have been given certain procedural protections under the Civil

Service Code. See id. § 8-30-101(a)(20) (Supp. 1997) (defining "regular employee").

For example, while § 8-30-328 sets up grievance procedures for both permanent and

regular employees in the state service, only regular employees are permitted a

contested case hearing before the CSC as the final step of these grievance

procedures. Id. § 8-30-328(7)(1993); Tenn. Comp. R. & Reg. R. 1120-11-.05(5)(b).

Moreover, a regular employee in the career service acquires a property right in his

position. Id. § 8-30-331(a) (1993). With such a right, "no suspension, demotion,


                                          -4-
dismissal or any other action which deprives a regular employee of such employee's

'property right' will become effective until minimum due process is provided." Id. The

statute provides that minimum due process includes written notice of the charges and

the opportunity to respond to these charges before any action is taken. Id. §

8-30-331(b)(1)-(2). An executive service employee, on the other hand, serves at the

pleasure of his employer. Tenn. Comp. R. & Reg. R. 1120-10-.02. While the

grievance procedures of § 8-30-328 are available to executive employees, for them

the final step of these procedures is before the agency appointing authority and is not

a contested case hearing. Tenn. Code Ann. § 8-30-328(a)(7); Tenn. Comp. R. & Reg.

R. 1120-11-.05(4).



              In support of his position that he was a Plant Manager, and hence a

career service employee, Mr. Morris presented his own testimony as well as that of

a man who was present at a meeting in January of 1995 where Mr. Morris was offered

the job of managing the wood plant. Appellees have presented no evidence to

establish that Mr. Morris was the IOM. Rather, they rely on the bare assertion that the

grievance procedures do not apply to his termination because he was an executive

service employee. In addition, they maintain that the grievance procedures are not

available to adjudicate the issue of whether Mr. Morris was a Plant Manager or an

IOM at the time of his termination. As stated, the chancery court found that it did not

have jurisdiction to hear Mr. Morris' case under the UAPA since there had been no

contested case hearing. Finally, the court found that even if Mr. Morris were a civil

service employee, the right to appeal a grievance to the CSC is a determination

expressly within the exclusive authority of the CSC.



              Mr. Morris is confronted with an interesting procedural dilemma: he

desires a contested case hearing to resolve the question of his status as a state

employee, the resolution of which would determine his right to a contested case

hearing in the first place. While Mr. Morris does not dispute that he has no right to a


                                         -5-
hearing if he was an executive employee at the time of his termination, he argues that

his claim and uncontroverted proof that he was in the career service entitles him to a

hearing before the CSC on this issue. We must settle this issue in a manner which,

while consistent with the civil service statute, rules, and regulations, does not permit

the state to deny an employee civil service protection by merely declaring that the

employee was in an executive position.



                                                 IV.

                             Judicial Review Under the UAPA



                "Title 4, Chapter 5 of the Tennessee Code establishes the procedures

for State agencies under the aegis of the Uniform Administrative Procedures Act."

Gonsalves v. Roberts, 905 S.W.2d 931, 932 (Tenn. 1995).                          This statute was

"designed to clarify and bring uniformity to the procedure of state administrative

agencies and judicial review of their determination." Tenn. Code Ann. § 4-5-103

(1991). As for the judicial review of agency decisions, the courts have recognized that

the UAPA provides two methods by which such decisions can be reviewed. See

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

McKissack & McKissack & Thompson Architects & Eng'rs, Inc. v. State Bd. of Exam'rs

for Architects & Eng'rs, No. 86-361-II, 1987 WL 10331, at *2 (Tenn. App. 1987). The

first is through a declaratory judgment proceeding which is outlined in § 4-5-2251 of

the Tennessee Code and the second is through judicial review of contested cases

pursuant to Tennessee Code Annotated section 4-5-322.



                Tennessee Code Annotated section 4-5-225 provides a procedure by

which the Davidson County Chancery Court can issue a declaratory judgment to

determine "[t]he legal validity or applicability of a statute, rule or order of an agency


        1
           T he Code provision concerning declaratory judgments, formerly found in § 4-5-224, was
trans ferre d to § 4-5-225 purs uan t to Acts 1997, ch. 162, § 1. See Tenn. Code A nn. § 4-5-224 (Supp.
1997) compiler’s notes.

                                                 -6-
to specified circumstances . . . if the court finds that the statute, rule or order, or its

threatened application, interferes with or impairs, or threatens to interfere with or

impair, the legal rights or privileges of the complainant."         Tenn. Code Ann. §

4-5-225(a) (Supp.1997).       A complainant can petition the chancery court for a

declaratory judgment if he "has petitioned the agency for a declaratory order and the

agency has refused to issue a declaratory order." Id. § 4-5-225(b); see Richardson,

913 S.W.2d at 456. The declaratory order statute, found in § 4-5-223 of the Code,

provides that "[a]ny affected person may petition an agency for a declaratory order as

to the validity or applicability of a statute, rule or order within the primary jurisdiction

of the agency" at which time the agency shall "[c]onvene a contested case hearing

pursuant to the provisions of this chapter and issue a declaratory order which shall be

subject to review in the chancery court of Davidson County." Tenn. Code Ann. § 4-5-

223(a)(1)(1991).



              The second method by which an agency decision can be reviewed in the

chancery court is found in Tennessee Code Annotated section 4-5-322(a)(1). This

statute provides that "[a] person who is aggrieved by a final decision in a contested

case is entitled to judicial review under this chapter, which shall be the only available

method of judicial review." Tenn. Code Ann. § 4-5-322(a)(1) (Supp. 1997). A

"contested case" is statutorily defined as "a proceeding, including a declaratory

proceeding, in which the legal rights, duties or privileges of a party are required by any

statute or constitutional provision to be determined by an agency after an opportunity

for a hearing." Tenn. Code Ann. § 4-5-102(3) (1991). An example is the contested

case hearing to which a regular employee is statutorily entitled as the final step in the

grievance procedures under § 8-30-328. Tenn. Code Ann. § 8-30-328(a)(7) & (d)

(1993); see also Tenn. Comp. R. & Reg. R. 1120-11-.05(5)(b).



              It is the latter statute, Tennessee Code Annotated section 4-5-322,

through which Mr. Morris sought chancery court review. Finding that the CSC did not


                                           -7-
conduct a hearing in this matter and that neither statute nor constitutional provision

required a hearing to determine Mr. Morris' legal rights, duties and privileges, the trial

court concluded that Mr. Morris' case was not a "contested case" and thus that it had

no jurisdiction under the UAPA. In drawing its conclusion, the lower court cited

Mid-South Indoor Horse Racing, Inc. v. Tennessee State Racing Comm'n, 798

S.W.2d 531 (Tenn. App. 1990), which involved the issue of the UAPA's applicability

to the review of licensing proceedings that had resulted in the plaintiff's being denied

a license to conduct horse racing. In Mid-South, this court did state that such

proceedings "will be treated as 'contested cases' only if they contain three essential

elements. They must be a 'proceeding' conducted by an 'agency' after the opportunity

for a 'hearing.' . . . Proceedings lacking any of these ingredients are not contested

cases." Id. at 537. In the case before us, appellees assert that since the Commission

did not conduct a proceeding after the opportunity for a hearing but rather simply

advised Mr. Morris that his dismissal from an executive service position was not

grievable, there was no "contested case" as is required by the law for judicial review.



              The problem with appellee's argument is that the Mid-South case did not

turn on the fact that there was no hearing before the agency, but rather on the fact

that no hearing was required. The court stated "the licensing proceeding involved in

this case was not a contested case because the commission was not required to

afford Mid-South a hearing before acting on its application." Id. (emphasis added).

As stated, the UAPA defines "contested case" as "a proceeding, including a

declaratory proceeding, in which the legal rights, duties or privileges of a party are

required by any statute or constitutional provision to be determined by an agency after

an opportunity for a hearing." Tenn. Code Ann. § 4-5-102(3) (1991) (emphasis

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 constitutionally protected

property interest in a racing license. Mid-South, 798 S.W.2d at 539-40. In the case

at bar, we must determine whether a statute or the constitution requires that an


                                          -8-
employee who claims to have been terminated from a career services position be

given the opportunity to be heard before the CSC on this matter.



                                                      V.

             Classification of State Employees Under Civil Service Law



                  An examination of the civil service statutes and regulations reveals that

it is the Commissioner of Personnel who has the authority to determine an employee's

status within the state service. Tennessee Code Annotated section 8-30-208(d)

(Supp. 1997) states that "[t]he commissioner shall determine equivalent levels for the

purpose of assigning positions not specifically addressed in subsection (b) to the

career or executive service. Such determination shall be based solely on duties,

responsibilities and reporting relationships and shall not be subject to review through

any procedure." See also Tenn. Comp. R. & Reg. R. 1120-3-.03. In addition, the

Commissioner is charged with maintaining the official roster of all state service

employees which must show, among other information, the employee's name, title

of position, class and any changes in classification. Tenn. Code Ann. § 8-30-

202(a)(2) (1993); Tenn. Comp. R. & Reg. R. 1120-2-.16. The CSC, on the other

hand, has no role in the classification of state employees. Its duties are limited to

those "expressly imposed upon" it in the code which include exercising jurisdiction

over "civil service appeals brought pursuant to statute and regulations promulgated

pursuant thereto" and acting as "the final step in the grievance procedure provided for

regular employees." Tenn. Code Ann. § 8-30-108 (1993).



                  Nothing in the statutes or rules requires the Commissioner to provide the

employee a contested case hearing before making a classification decision.2


         2
          W e note that this court recently held that a regu lar em ployee who has acq uired a pro perty
interest in his position has a right to proced ural due proces s when that position is reclassified from
career to executive servic e as th is reclassification is an "action which deprives a regular employee of
suc h em ployee 's 'prop erty right'" under Te nne sse e Code § 8-3 0-33 1. Arm stro ng v. Tennessee De p't
of Veterans A ffairs, No. 01-A-01-9610-CH00476, 1997 W L 367463 (Tenn. App. 1997). This opinion
was bas ed u pon the nature of co nstitution al due proc ess which will not perm it a prop erty intere st, once

                                                    -9-
Moreover, the Tennessee Department of Personnel Rules explicitly provide that the

"classification of a position" is a non-grievable matter. Tenn. Comp. R. & Reg. R.

1120-11.08(12) (in section entitled "Grievances"). As for disputes over grievability

itself, the rules provide as follows: "Disputes over grievability may be resolved by an

agency's appointing authority or by the Commissioner. The [CSC] may review such

determinations and, at its discretion, take whatever action it deems appropriate."

Tenn. Comp. R. & Reg. R. 1120-11-.09(3).



                   In light of the foregoing, it appears that a state employee cannot obtain

a hearing before the CSC regarding his classification.                         The law is clear that

classification decisions are solely within the jurisdiction of the Commissioner of

Personnel and that they are not grievable or contestable matters. 3 Because neither

statute nor constitution requires the state to provide a hearing for employees who

claim to have been terminated from career services positions, the chancery court was

correct in its determination that it lacked jurisdiction under § 4-5-322 of the UAPA.

See Tenn. Code Ann. § 4-5-102(3)(1991); Mid-South Indoor Horse Racing, Inc. v.

Tennessee State Racing Comm’n, 798 S.W.2d 531, 537 (Tenn. App. 1990).

However, as we pointed out, the UAPA provides another method for employees in the

state service to seek review of the decisions which affect their employment and it is

to this other method Mr. Morris ought have turned.



                   To avail himself of chancery court review, Mr. Morris should have filed

a petition for a declaratory order with the Commissioner of Personnel pursuant to §

4-5-223. In his petition, Mr. Morris could have requested the Commissioner to declare



bestowed, to be arbitrarily take n awa y. Logan v. Zim merm an Brush Co., 455 U.S. 422, 432 (1982)
(quoting Vitek v. Jones, 445 U.S. 480, 490-91 (1980) (quoting Arnett v. Kennedy, 416 U.S. 134, 167
(1974))). However, subsequent to Armstrong, the legislature seem s to have eliminated the constitutional
ramifications of rec lassification by providing th at a career service employee, upon reclassification to the
execu tive service, “shall maintain the position with an incumbent’s rights in the career service.” Tenn.
Code Ann. § 8-30-20 8(g)(1) (Supp. 199 7).

        3
            See su pra note 1.




                                                   - 10 -
whether, at the time of his termination, he was a career employee who was entitled

to invoke the grievance procedure or whether he was an executive service employee

with no such right. As stated above, the declaratory order statue provides that "[a]ny

affected person may petition an agency for a declaratory order as to the validity or

applicability of a statute, rule or order within the primary jurisdiction of the agency."

Tenn. Code Ann. § 4-5-223(a)(1) (1991). The rules and statutes are clear that both

the classification and the grievability issues are within the Commissioner of

Personnel's primary jurisdiction.



              Had Mr. Morris requested a declaratory order, the Commissioner could

have convened a contested case hearing under § 4-5-223(a)(1) and issued a

declaratory order which would have been subject to review in the Davidson County

Chancery Court under § 4-5-322(a)(1). If the Commissioner had refused to issue a

declaratory order, Mr. Morris could have filed a petition for a declaratory judgment in

the chancery court of Davidson County under § 4-5-225. Finally, in either case, a final

judgment of the chancery court would have been appealable to the Tennessee Court

of Appeals. Tenn. Code Ann. § 4-5-223 (1991); see Richardson v. Tennessee Bd. of

Dentistry, 913 S.W.2d 446, 458 (Tenn. 1995) (summarizing the avenues by which a

state service employee can obtain judicial review).



              Because no Tennessee court has previously set out the proper

procedure for a state service employee to obtain an authoritative answer to the

question of his classification, we give Mr. Morris thirty days to file a petition for a

declaratory order with the Commissioner of Personnel. The judgment of the court

below is vacated and Mr. Morris is authorized to proceed in accordance with the

procedure as outlined above should he so desire.



                                           VI.

                                    The § 1983 Claim


                                         - 11 -
               Lastly, we turn to the lower court's dismissal of the appellant's 42 U.S.C.

§ 1983 claim. In Mr. Morris' original petition, he argued, in the alternative, that

Appellees' actions constituted a deprivation and infringement upon his protected rights

in violation of 42 U.S.C. § 1983. In his prayer for relief, Mr. Morris requested that he

be granted, in addition to a hearing and subsequent reinstatement, "such other relief

as is just and proper including an award of costs and reasonable attorney's fees."

See 42 U.S.C. § 1988(b) (governing the award of attorney's fees in a § 1983 action

by providing that "the court, in its discretion, may allow the prevailing party other than

the United States, a reasonable attorneys' fees as part of the costs"). Finding that it

lacked jurisdiction over the this claim, the trial court dismissed that portion of Mr.

Morris' complaint involving § 1983.



               In its order, the court stated that it was dismissing the appellant’s

complaint under 42 U.S.C. § 1983 "for good cause shown, as reflected in [the

appellees'] Memorandum in Support of Their Motion for Partial Dismissal." While

Appellees' memorandum in support of the dismissal motion was not made a part of

the record, the parties' briefs indicate that the jurisdictional basis for dismissal involved

the joinder of an original action with an administrative appeal. Before addressing this

jurisdictional question, we must determine whether Mr. Morris has a federally

protected right which would give rise to a § 1983 action before there has been a

decision that he was a career service employee.



               Section 1983 of Title 42 of the United States Code establishes a cause

of action against "[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." Procedural due process is a right secured by federal law. See Logan v.


                                           - 12 -
Zimmerman Brush Co., 455 U.S. 422, 432 (1982) (quoting Vitek v. Jones, 445 U.S.

480, 491 (1980)) (in addressing the nature of constitutional due process, the Court

noted that "'minimum [procedural] requirements [are] a matter of federal law'"). As

stated, Tennessee law only gives employees who are in the career service property

rights to their positions. Tenn. Code Ann. § 8-30-331 (1993); see id.§ 8-30-331(b)

(providing that minimum due process ensures career employees notification of

charges against them and a right to a pre-decision discussion with their manager).

Since it has not even been determined that Mr. Morris was in the career service, we

think it premature for him to raise a § 1983 claim.



              Should it be determined by the Commissioner of Personnel that Mr.

Morris was indeed a career service employee at the time of his termination, he may

desire to join a § 1983 claim with the claim that he was denied the minimum due

process to which he was entitled. Because we find that there is no jurisdictional basis

for categorically denying the joinder of an original action with an appeal as the court

below seemed to do, we will discuss this issue which has already been thoroughly

addressed by Tennessee courts.



              In Goodwin v. Metropolitan Bd. of Health, 656 S.W.2d 383, 386 (Tenn.

App. 1983), the plaintiff appealed from an administrative hearing ruling which upheld

her termination of employment from the Metropolitan Board of Health. In the same

action, the plaintiff sought additional relief by requesting a declaratory judgment to

have certain regulations of the Board of Health declared unconstitutional. This court

condemned the joinder of these two claims holding that the original action should

have been dismissed at the "very outset." Id. at 387. The court reasoned as follows:

              This Court is of the firm opinion that such procedure is
              inimical to a proper review in the lower certiorari Court
              and creates even greater difficulties in the Court of
              Appeals. The necessity of a separation of appellate
              review of a matter and trial of another matter ought to be
              self evident. In the lower Court one is reviewed under
              appropriate Appellate rules and the other is tried under
              trial rules. In this Court our scope of review is dependent

                                        - 13 -
               upon the nature of a proceeding. In this case one matter
               would be limited by rules of certiorari review and the other
               would be reviewed under 13(d), Tennessee Rules of
               Appellate Procedure. Like water and oil, the two will not
               mix.


Id. at 386.



               Citing Goodwin, the Court of Appeals again reiterated its view that an

appeal from an action from a board should not be joined with an original action in the

trial court. State ex rel. Byram v. City of Brentwood, 833 S.W.2d 500 (Tenn. App.

1991). In Byram, the plaintiffs were seeking plat approval from the city planning

commission in order to develop a tract of land which the commission denied. On

appeal, the plaintiffs "sought to have the trial court mandate the issuance of a certified

plat or, in the alternative, to find that the defendants/appellees acted arbitrarily,

capriciously and unreasonably in withholding approval of a plat for a subdivision to be

built on property owned by the Byrams in Williamson County, Tennessee. The

Byrams 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 action for damages should have been dismissed at the outset and that it was

"unnecessary to discuss any issue having to do with damages and claims invoking the

original jurisdiction of the trial court." Id. at 502.



               Most recently, in Wimley v. Rudolph, 931 S.W.2d 513 (Tenn. 1996), the

Tennessee Supreme Court addressed the issue of "whether [a] plaintiff can combine

an original action under 42 U.S.C. § 1983 with a petition for judicial review under the

[UAPA] when the sole relief requested under the § 1983 claim is an award of attorney

fees." There, the plaintiff exhausted her administrative remedies after the state

terminated her Aid for Dependent Children (AFDC) benefits. When she sought

chancery court review of the decision that she was ineligible for continued benefits,

she also "requested that the court '[a]ssess costs, including a reasonable attorney's

fee as provided by 42 U.S.C. § 1988. . . .'" Id. at 514. Holding that the plaintiff was

                                            - 14 -
permitted to join these two claims, the court noted that the plaintiff was not seeking

remedies under § 1983 which were inconsistent with the remedies in her petition for

review. Id. at 515. The court stated that "[h]ad [the p]laintiff sought to join a claim for

any of those types of relief under [§] 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." Id.



              The court distinguished Goodwin and Byram characterizing them both

as cases in which the "plaintiffs, pursuing administrative appeals, attempted to join

original actions for inconsistent relief with the judicial review provided in the [UAPA]."

Id. at 516. Significantly, the court articulated "the crucial distinction between the

issues in those cases and the one at bar" as follows:

              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 § 1983.
              Furthermore, that success entitled her to attorney fees
              under § 1983 even had she not plead that entitlement.


Id. (citing Bloomingdale's by Mail Ltd. v. Huddleston, 848 S.W.2d 52, 56 (Tenn.

1992)). Goodwin and Byram, on the other hand, did not involve allegations of the

deprivation of federal rights under color of law. Wimley, 931 S.W.2d at 516.



              Mr. Morris might, subsequent to the remand of this case, petition for

judicial review on the basis that he was denied his right to procedural due process

which, like the right at issue in Wimley, is a right afforded under federal law. By

prevailing on a claim brought under the UAPA, Mr. Morris may show that he is also

entitled to recover under 42 U.S.C. § 1983 as the plaintiff in Wimley did. Because the

case law has emphasized that the relief sought in the original § 1983 action can not

be inconsistent with the judicial review under the UAPA, it is significant that Mr. Morris

specifically sought only attorney's fees under § 1983 in his complaint. The court in


                                          - 15 -
Wimley explicitly held that there was no inconsistency when a plaintiff joined a claim

for attorney's fees under § 1983 with her appeal under the UAPA . We therefore

clarify that the trial court was in error when it based its dismissal of the § 1983 claim

on its lack of jurisdiction over an original action joined with an administrative appeal.



                                          VII.

                                     Conclusion



              For the foregoing reasons, the decision of the chancery court is vacated.

We hold that the proper procedure for a state employee to obtain an authoritative

answer to the question of his status is the filing of a declaratory order with the

Commissioner of Personnel pursuant to Tennessee Code Annotated section 4-5-223.

We direct that Mr. Morris be given thirty days to act in accordance with this procedure.

Finally, we conclude that there is no basis for a § 1983 action until there has been a

determination that Mr. Morris was a career service employee with a federally secured

property interest in his position. However, once the declaratory order action before

the Commissioner is final, Mr. Morris may couple a § 1983 claim for attorney’s fees

with his petition for chancery court review of the issue that he, as a career service

employee, was denied due process. Tax the costs on appeal to the state.




                                           _______________________________
                                           BEN H. CANTRELL, JUDGE



CONCUR:




_______________________________
SAMUEL L. LEWIS, JUDGE




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_______________________________
WILLIAM C. KOCH, JR., JUDGE




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