                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                           April 15, 2005 Session

      RODERICK McDAVIS v. METROPOLITAN GOVERNMENT OF
              NASHVILLE AND DAVIDSON COUNTY

                        Appeal from the Chancery Court for Davidson County
                          No. 02-3294-I   Claudia Bonnyman, Chancellor



                      No. M2004-00055-COA-R3-CV - Filed September 7, 2005


A Metropolitan Nashville police officer seeks judicial review of the Final Order of the Civil Service
Commission of Metropolitan Government pursuant to Tennessee Code Annotated section 4-5-322
following his termination from Metropolitan Government service. After reviewing the record, the
Chancery Court of Davidson County determined that the decision of the Civil Service Commission
was not arbitrary and capricious and was supported by substantial and material evidence. The
judgment of the Chancellor is affirmed.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which FRANK G. CLEMENT , JR., J. and
DONALD P. HARRIS, SR. J., joined.

Jeffrey Blackshear, Nashville, Tennessee, for the appellant, Roderick McDavis.

J. Douglas Sloan, III, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville
and Davidson County.

                                          MEMORANDUM OPINION1


       Roderick McDavis (“Officer McDavis”) was a Metropolitan Nashville police officer on April
26, 2001. He, along with two other officers, Steve Bumpus and John Bourque, responded to a report

       1
           Tenn. R. Ct. App. 10 states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify
       the actions of the trial court by memorandum opinion when a formal opinion would have no
       precedential value. W hen a case is decided by memorandum opinion it shall be designated
       “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
of criminal activity to find one Antwain Hockett (“Mr. Hockett”) present. A confrontation occurred
between Officer McDavis and Mr. Hockett during which Officer McDavis drew his service weapon
from his holster, grabbed Mr. Hockett by the throat and pushed him to the ground pointing the
weapon at his face and making a comment, the exact nature of which was disputed before the
Commission. After other police officers intervened and freed Mr. Hockett, Officer McDavis
reholstered his weapon and returned to his patrol car. Shortly thereafter McDavis placed Mr.
Hockett under arrest for several offenses including assault. The commissioner refused to issue an
assault warrant against Mr. Hockett, and Officers Bumpus and Bourque reported the entire incident
to their supervisor. On May 2, 2001, Mr. Hockett also filed a complaint, and these complaints
resulted in a disciplinary board hearing on June 14, 2001. Officer McDavis was found guilty of the
charges, and his employment was terminated. He appealed to the Civil Service Commission of
Metropolitan Nashville and Davidson County. On February 8, 2002, a hearing was held before
Administrative Law Judge Randall LeFevor after which Judge LeFevor found Officer McDavis to
have violated specified general orders of the Metropolitan Police Department and Tennessee
Criminal Statutes and upheld the termination of Officer McDavis. After Judge LeFevor denied his
Petition for Reconsideration, McDavis appealed to the Civil Service Commission, which reviewed
the matter on September 10, 2002. On October 17, 2002, the chairman of the Civil Service
Commission issued a Final Order upholding Judge LeFevor’s decision to terminate Officer McDavis.
The matter was timely appealed to the chancery court in Nashville and, upon review of the
administrative record, Chancellor Claudia Bonneyman held that Officer McDavis had not been
treated arbitrarily and capriciously and that the action of the Civil Service Commission was
supported by substantial and material evidence. Officer McDavis filed a timely appeal to this Court.

        Appellant does not question the factual findings upon which his termination was based, but
limits his appeal before this Court to the severity of the sanction imposed upon him. The single issue
asserted is:

       Whether the Chancellor erred by failing to find that the Civil Service Commission’s
       Administrative Decision to approve the termination of Roderick McDavis was
       arbitrary and capricious and an unwarranted exercise of discretion because of the
       disparity of punishment between Officer McDavis and other equally situated Police
       Officers.

       The limited scope of review available before the judiciary in review of the decision of an
administrative tribunal is statutorily mandated and well settled:

              Tenn.Code Ann. § 4-5-322(h) states that upon judicial review of an agency’s
       findings
              (h) The court may affirm the decision of the agency or remand the case for
              further proceedings. The court may reverse or modify the decision if the
              rights of the petitioner have been prejudiced because the administrative
              findings, inferences, conclusions or decisions are:
              (1) In violation of constitutional or statutory provisions;


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               (2) In excess of the statutory authority of the agency;
               (3) Made upon unlawful procedure;
               (4) Arbitrary or capricious or characterized by abuse of discretion or clearly
               unwarranted exercise of discretion; or
               (5) Unsupported by evidence which is both substantial and material in the
               light of the entire record.
               In determining the substantiality of evidence, the court shall take into
               account whatever in the record fairly detracts from its weight, but the
               court shall not substitute its judgment for that of the agency as to the
               weight of the evidence on questions of fact.

               “Substantial and material evidence” has been defined as “ ‘such relevant
       evidence as a reasonable mind might accept to support a rational conclusion and such
       as to furnish a reasonably sound basis for the action under consideration.’ ” Clay
       County Manor, Inc. v. State of Tennessee, 849 S.W.2d 755, 759 (Tenn.1993)
       (quoting Southern Railway Co. v. State Board of Equalization, 682 S.W.2d 196, 199
       (Tenn.1984)).

              This Court’s review of the trial court’s decision is essentially a determination
       of whether or not the trial court properly applied the foregoing standard of review.
       James R. Bryant v. Tennessee State Board of Accountancy, No. 01A01-9303-CH-
       00088, 1993 WL 330987, Davidson County (Tenn.Ct.App. Filed September 1, 1993
       at Nashville) (citing Metropolitan Gov’t. Of Nashville v. Shacklett, 554 S.W.2d 601,
       604 (Tenn.1977)).

Papachristou v. University of Tennessee, 29 S.W.3d 487, 490 (Tenn.Ct.App.2000).

        Since the sole issue before this Court is the severity of the sanctions imposed upon Officer
McDavis in a case in which the controlling facts are not disputed, the standard of appellate review
is even more restricted.

             The leading case relative to the standard of judicial review of sanctions
       imposed by an administrative agency is Butz v. Glover Livestock Commission Co.,
       411 U.S. 182, 36 L.Ed.2d 142, 93 S.Ct. 1455 (1973). The Court declares:

                       The applicable standard of judicial review in such cases
               required review of the Secretary’s order according to the
               “fundamental principle . . . that where Congress has entrusted an
               administrative agency with the responsibility of selecting the means
               of achieving the statutory policy ‘the relation of remedy to policy is
               peculiarly a matter for administrative competence.’ ” American
               Power Co. v. SEC, 329 U.S. 90, 112 (1946). Thus, the Secretary’s
               choice of sanction was not to be overturned unless the Court of


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Appeals might find it ‘unwarranted in law or . . . without justification
in fact . . . .” Id., at 112-113; Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 194 (1941); Moog Industries, Inc. v. FTC, 355 U.S. 411, 413-
414 (1958); FTC v. Universal-Rundle Corp., 387 U.S. 244, 250
(1967); 4 K. Davis, Administrative Law § 30.10, pp 250-251 (1958).
The Court of Appeals acknowledged this definition of the permissible
scope of judicial review but apparently regarded respondent’s
suspension as “unwarranted in law” or “without justification in fact.”
We cannot agree that the Secretary’s action can be faulted in either
respect on this record.

         We read the Court of Appeals’ opinion to suggest that the
sanction was “unwarranted in law” because “uniformity of sanctions
for similar violations” is somehow mandated by the Act. We search
in vain for that requirement in the statute. The Secretary may suspend
“for a reasonable specified period” any registrant who has violated
any provision of the Act. 7 U.S.C. § 204. Nothing whatever in that
provision confines its application to cases of “intentional and flagrant
conduct” or denies its application in cases of negligent or careless
violations. Rather, the breadth of the grant of authority to impose the
sanction strongly implies a congressional purpose to permit the
Secretary to impose it to deter repeated violations of the Act, whether
intentional or negligent. Hyatt v. United States, 276 F.2d 308, 313
(CA10, 1960); G.H. Miller & Co. v. United States, 260 F.2d 286
(CA7, 1958); In re Silver, 21 Agric. Dec. 1438, 1452 (1962). The
employment of a sanction within the authority of an administrative
agency is thus not rendered invalid in a particular case because it is
more severe than sanctions imposed in other cases. FCC v. WOKO,
329 U.S. 223, 227-228 (1946); FTC v. Universal-Rundle Corp., 387
U.S., at 250, 251; G.H. Miller & Co. v. United States, supra, at 296;
Hiller v. SEC, 429 F.2d 856, 858-859 (CA2, 1970); Dlugash v. SEC,
373 F.2d 107, 110 (CA2, 1967); Kent v. Hardin, 425 F.2d 1346, 1349
(CA5, 1970).

        Moreover, the Court of Appeals may have been in error in
acting on the premise that the Secretary’s practice was to impose
suspensions only in cases of “intentional and flagrant conduct.” The
Secretary’s practice, rather, apparently is to employ that sanction as
in his judgment best serves to deter violations and achieve the
objectives of that statute. Congress plainly intended in its broad grant
to give the Secretary that breadth of discretion. Therefore, mere
unevenness in the application of the sanction does not render its
application in a particular case “unwarranted in law.”


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       Butz, 411 U.S. at 185-88. (footnotes omitted)

Mosley v. Tennessee Dept. of Comm. and Ins., No. M2003-01998-COA-R3-CV, 2004 WL 2663667
(Tenn.Ct.App. Nov. 22, 2004) (perm. app. denied May 9, 2005).

      Following the lead of Butz, both the Supreme Court of Tennessee and the Sixth Circuit Court
of Appeals have asserted the same rule.

              As noted by the learned Chancellor: “[t]he appropriate remedy is peculiarly
       within the discretion of the [agency] . . .” Having found grounds to affirm the
       procedures employed, facts found, and conclusions reached, we will not interfere
       with the sanctions imposed upon Dr. McClellan. We remand for the appropriate
       imposition of those sanctions and tax the costs of this appeal to Dr. McClellan.

McClellan v. Bd. of Regents, 921 S.W.2d 684, 693 (Tenn. 1996).

        In reversing the United States District Court for the Middle District of Tennessee, the United
States Court of Appeals for the Sixth Circuit held:

               Determination of a sanction to be applied by an administrative agency, if
       within bounds of its lawful authority, is subject to very limited judicial review.
       Kulkin v. Bergland, 626 F.2d 181, 184 (1st Cir. 1980). “ ‘The relations of remedy
       to policy is peculiarly a matter of administrative competence.’ ” Butz v. Glover
       Livestock Commission Co., 411 U.S. 182, 185, 93 S.Ct. 1455, 1458, 36 L.Ed.2d 142
       (1973) (quoting American Power Co. v. S.E.C., 329 U.S. 90, 112, 67 S.Ct. 133, 146,
       91 L.Ed. 103 (1946)). The reviewing court’s function is only to “determine the
       validity of the questioned administrative action,” not to review the sanctions. Martin
       v. United States, 459 F.2d at 302; G.H. Miller & Co. v. United States, 260 F.2d 286,
       296 (7th Cir. 1958) (en banc) cert. denied, 359 U.S. 907, 79 S.Ct. 582, 3 L.Ed.2d 572
       (1959).

       While the de novo provision of the Food Stamp Act raises certain problems, it does
       not, in our view, call for a departure from the usual standard of review concerning
       sanctions.

                Kulkin v. Bergland at 184; see also Broad Street Food Market, Inc. v. United
       States, 720 F.2d 217 at 220 (1st Cir. 1983). Once the trial court confirmed that there
       were repeated violations of the law and regulations as determined by appellant, “the
       court’s only reasoning task is to examine the sanction imposed in light of the
       administrative record to judge whether the agency properly applied the regulations,
       i.e., whether the sanction is ‘unwarranted in law . . . or without justification in fact.
       . . .’ ” See Butz v. Glover Livestock Commission Co., 411 U.S. 182, 185-189, 93
       S.Ct. 1455, 1457-1459, 36 L.Ed.2d 142 (1973), cited in Broad Street Food Market,


                                                 -5-
       supra, at 220. We agree with the First Circuit’s rationale in this respect. Cf. Cross
       v. United States, 512 F.2d 1212, 1218 (4th Cir. 1975) (en banc). See also the incisive
       dissent by Russel, J., in the latter case at 1222; Wolf v. United States, 662 F.2d 676,
       678 (10th Cir. 1981).

Woodard v. U.S., 725 F.2d 1072, 1077-78 (6th Cir. 1984).

       For any of the infractions charged in the complaints before the Civil Service Commission,
the available punitive measures included termination. The trial court adopted in summary the
findings of the administrative law judge, and these findings are not disputed by Appellant. The final
order of the court states:

               Mr. Roderick B. McDavis (Officer McDavis) was employed by the
       Metropolitan Nashville Police Department for approximately six years. On April 26,
       2001, Officer McDavis and several other officers responded to a report of criminal
       activity and followed up by performing field interviews and warrant checks of several
       individuals. One of the individuals interviewed was Antwain Hockett (Mr. Hockett),
       who was well known to the police due to his lengthy criminal record. Officer
       McDavis was eager to assist in the investigation of a recent drive-by shooting in the
       area, and he believed that Mr. Hockett might have had information about the crime.
       Officer McDavis questioned Mr. Hockett and in reply to one of his questions, Mr.
       Hockett responded to the effect that he “would rather shoot a grown man than a
       child.”

               Officer McDavis then drew his service weapon from his holster and
       conspicuously completed a “press-check” of his weapon within Mr. Hockett’s view
       and while pointing the weapon in the direction of two other officers. Officer
       McDavis then rushed toward Mr. Hockett and grabbed him by his throat, pushed him
       backwards, which caused Mr. Hockett to fall over a short concrete wall. Officer
       McDavis straddled Mr. Hockett on the ground and while he pointed his pistol at Mr.
       Hockett’s face, he yelled at him “do you want a piece of me? Do you want to shoot
       me?” Two other officers moved toward Mr. Hockett and Officer McDavis and
       interrupted to the incident. [sic] The two officers reported this incident to their
       supervisor.

               Shortly [after] this incident, Officer McDavis arrested Mr. Hockett and put
       him in the back of his patrol car. He prepared an affidavit in support of his request
       for an assault warrant. The affidavit contained false and misleading statements. The
       commissioner refused to issue an assault warrant against Mr. Hockett, but Officer
       McDavis failed to indicate this refusal in his “Arrest Report.” He also used the same
       false and misleading statements in both his “Arrest Report” and his “Use of Force
       Report.”



                                                -6-
                 At his departmental-level hearing, Officer McDavis admitted that he prepared
         these documents to cover up his mistakes. Officer McDavis also made other
         statements at the hearing that lacked credibility. Officer McDavis either lost self-
         control or deliberately attacked Mr. Hockett. His testimony suggests that he does not
         appreciate the gravity of his behavior. A supervisor of Officer McDavis testified that
         she had received numerous complaints regarding Officer McDavis and counseled
         him about those complaints. Officer McDavis’ disciplinary history includes two
         suspensions and a written reprimand.


         Antwain Hockett is described by Officer Michael J. Robinson, one of the officers present on
the scene on April 26, 2001, as being a “local thug” who between the years 1998 and 2000 had been
arrested over 100 times for offenses ranging from aggravated burglary to assault, trespass, drug
trafficking and evading arrest. It must be frustrating indeed for a front-line police officer to be
confronted during an investigation with the sight of such a prolific repeat offender. The record
discloses no evidence that on this occasion Mr. Hockett was the aggressor or otherwise threatening
to Mr. McDavis, and, by his concession of the facts as found by the administrative law judge, the
Civil Service Commission and the trial court, such a conclusion is rendered indisputable. When the
facts of the case as found below are undisputed, they constitute the very substantial and material
evidence needed to uphold the administrative law decision. Neither the drastic consequences of
termination (Mosley v. Tennessee Department of Commerce and Insurance, 2004 WL 2663667) nor
the unblemished character of prior service2 (Arthur L. Lynn v. Randy C. Camp, Commissioner, No.
M2002-02708-COA-R3-CV, 2003 WL 22401280 (Tenn.Ct.App.2003)) give this Court the power
to disturb an administrative sanction that is warranted in law and justified in fact. The judgment of
the trial court is in all respects affirmed, costs of appeal are assessed against Appellant, Roderick
McDavis.



                                                                 ___________________________________
                                                                 WILLIAM B. CAIN, JUDGE




         2
          Officer McDavis does not have such an unblemished record of prior services but has, in fact, suffered two prior
disciplinary suspensions and a written reprimand.

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