Durham v. Martin et al

Filing 17

MEMORANDUM signed by District Judge Aleta A. Trauger on 12/8/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JEREMY R. DURHAM,
Plaintiff,
v.
LARRY MARTIN, as Commissioner of
Finance and Administration of the State
of Tennessee, in his official capacity;
CONNIE RIDLEY, as Director of
Legislative Administration for the State
of Tennessee, in her official capacity;
and DAVID H. LILLARD, JR., as
Treasurer of the State of Tennessee,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 3:17-cv-01172
Judge Aleta A. Trauger

MEMORANDUM
Plaintiff Jeremy R. Durham has filed suit against defendants Larry Martin, Tennessee
Commissioner of Finance and Administration; Connie Ridley, Tennessee Director of
Legislative Administration; and David H. Lillard, Jr., Tennessee State Treasurer, in their
official capacities. The plaintiff asserts a claim under 42 U.S.C. § 1983 for violation of his
right to procedural due process, and he seeks declaratory and injunctive relief. (Compl., Doc.
No. 1.) Now before the court is the defendants’ Motion to Dismiss. (Doc. No. 8.) The motion
has been fully briefed by both parties and is ripe for review. For the reasons set forth herein,
the motion will be granted, and this case will be dismissed.
I.

Factual Allegations
Plaintiff Jeremy Durham was elected to the Tennessee House of Representatives in

November 2012 and again in November 2014, where he served until his expulsion on

2

September 13, 2016. This lawsuit stems from that event, although it does not purport to
challenge it directly.
On September 2, 2016, Tennessee Governor Bill Haslam issued a proclamation to
convene the Tennessee General Assembly for a special session. As set forth in the
proclamation, the purpose of the special session was to “[c]onsider[] and act[] upon
legislation necessary to ensure that Tennessee law prohibiting an individual under the age of
21 from operating a motor vehicle while intoxicated or under the influence of alcohol
maintains compliance with 23 U.S.C. § 161” (Proclamation, Doc. No. 1-2), in order to avoid
losing up to $60 million in federal highway funds. The other purposes of the special session
identified by the proclamation were to “[c]onsider[] and act[] upon legislation to address any
other instances of noncompliance . . . with federal [law] relating to federal-aid highway
funding,” make appropriations necessary to provide first-year funding for any such
legislation, and make appropriations to pay for the special legislative session. (Id.)
The special legislative session was authorized by Article III, Section 9 of the
Tennessee Constitution. (Id.) That provision specifically empowers the governor, “on
extraordinary occasions, [to] convene the General Assembly by proclamation, in which he
shall state specifically the purposes for which they are to convene.” Tenn. Const. art. III, § 9.
On such occasions, the General Assembly “shall enter on no legislative business except that
for which they were specifically called together.” Id.
On September 13, 2016, the second day of the special session, Representative Susan
Lynn (R – Mt. Juliet) introduced a motion in the House of Representatives to expel Durham.
The Tennessee House of Representatives eventually voted on the motion and approved it by
a margin of seventy votes in favor of expulsion to two against. Durham was immediately

3

expelled from the House of Representatives.
The House’s authority to expel Durham arose from a different provision of the
Tennessee Constitution, which states in relevant part that “[e]ach House may . . . , with the
concurrence of two-thirds, expel a member.” Tenn. Const. art. II, § 12. Durham nonetheless
maintains that the House of Representatives had no authority under the Tennessee
Constitution to expel him during the special session, because the General Assembly’s
authority under Article III, Section 9 of the Tennessee Constitution is limited to the
consideration of those matters of “legislative business” specifically identified in the
proclamation calling for the special session. His expulsion was not a matter identified in the
Governor’s proclamation.
Shortly after his expulsion from the legislature, Durham inquired about the status of
his health insurance coverage. He was informed that, as a result of the vote to expel him on
September 13, his insurance coverage as an active state employee would terminate on
September 30, 2016, after which date he would be eligible for COBRA coverage. An email
attached to the Complaint, from Angie Gargara, Benefits Administration, to Tammy Rather,
which the plaintiff claims was forwarded to him, states:
The question of whether former Representative Durham is entitled to lifetime
coverage as a retiree was decided by Commissioner Martin after consultation
with the Attorney General’s office. It is the Department’s decision that
expulsion from the General Assembly does not constitute “retirement” that the
law requires for lifetime coverage, so Representative Durham is not entitled to
that benefit. The Attorney General interpreted “retirement” to exclude
expulsion in Attorney General Opinion 80-147.
(Doc. No. 1-3, at 1.)
The plaintiff claims that his unlawful expulsion from the House of Representatives
resulted in the loss of his right to lifetime health insurance coverage as well as the loss of a

4

state pension to which he would have otherwise been entitled.
The Complaint alleges that the defendants “are public officials of the State of
Tennessee,” each of whom “either oversees, administers, or regulates state insurance and
benefit plans in some capacity.” (Compl. ¶ 5.) Defendant Larry Martin, Commissioner of
Finance and Administration for the State of Tennessee, is “responsible for administering state
benefit plans for elected members of state government.” (Compl. ¶ 12.) Defendant Connie
Ridley, Director of Legislative Administration for the State of Tennessee, is “responsible for
all administrative matters and member benefits for the Tennessee General Assembly.”
(Comp. ¶ 13.) Defendant David H. Lillard, Jr., Treasurer for the State of Tennessee,
“overseas the daily operation of the State retirement system.” (Compl. ¶ 14.)
To be clear, the plaintiff does not actually challenge the constitutionality of the state
statutes and regulations that govern his claims to health and retirement benefits or the
correctness of the state officials’ interpretation of state benefits law. Rather, he simply
contends that his expulsion from the legislature violated the Tennessee Constitution and, as a
result, violated his “protected property interest in his state benefits, specifically his pension
and insurance benefits.” (Compl. ¶ 3.) Durham claims that, “[b]ased on the plain language of
Article III, Section 9 of the Tennessee Constitution and prior failed attempts to call a special
session for the specific purpose of expelling him, [he] had the reasonable understanding that
he would retain his state benefits (lifetime health insurance and a state pension) at the end of
his term.” (Compl. ¶ 28.) He also asserts that he was “afforded no post-deprivation remedy to
challenge his expulsion or deprivation of his state benefits.” (Compl. ¶ 29.) Consequently, he
claims that he was been deprived of his constitutional right to due process, in violation of 42
U.S.C. § 1983.

5

II.

The Defendants’ Motion
The defendants’ motion seeks dismissal of the Complaint under Rule 12(b)(1) of the

Federal Rules of Civil Procedure, for lack of subject matter jurisdiction and, alternatively,
under Rule 12(b)(6), for failure to state a claim for which relief may be granted. They argue
in support of the motion that (1) the plaintiff lacks standing, both because he fails to identify
an injury in fact caused by the defendants and because he fails to identify a violation of the
laws or Constitution of the United States; (2) even if he has standing, he lacks a protected
property interest in either his elected office or in receiving lifetime state benefits, for
purposes of asserting a due process claim under § 1983; and (3) even if he had a protected
property interest, he was afforded all the process that was due. In the alternative, the
defendants argue that, if the court finds that dismissal is not warranted on any of the above
grounds, the court should abstain or dismiss the Complaint under the Pullman abstention
doctrine or certify the state constitutional question raised by the Complaint—that is, whether
Durham’s expulsion violated the state Constitution—to the Tennessee Supreme Court. The
plaintiff filed a Response opposing each of these arguments. (Doc. No. 12.) The defendants
filed a Reply. (Doc. No. 16.)
As set forth below, the court finds that the plaintiff fails to establish standing, because
he does not draw the requisite causal connection between his injuries and any action by the
defendants named in this case, as a result of which the court lacks subject matter jurisdiction
and must dismiss the Complaint. The court declines to reach the defendants’ alternative
arguments.
III.

Legal Standard: Rule 12(b)(1)
A court’s subject matter jurisdiction is a “threshold determination” that may be

6

challenged by motion under Rule 12(b)(1). Am. Telecom Co. v. Republic of Lebanon, 501
F.3d 534, 537 (6th Cir. 2007). “A Rule 12(b)(1) motion can either attack the claim of
jurisdiction on its face, in which case all allegations of the plaintiff must be considered as
true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh
the evidence and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc.
v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). The instant motion is a facial challenge to the
court’s subject matter jurisdiction, so the court will treat the allegations in the Complaint as
true. See, e.g., United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) (“A facial attack is a
challenge to the sufficiency of the pleading itself.”).
IV.

Discussion
In order to establish subject matter jurisdiction, the plaintiff must show, among other

things, that he has standing to litigate a particular claim. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 102 (1998) (“Standing to sue is part of the common understanding of
what it takes to make a justiciable case.”); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (“[T]he core component of standing is an essential and unchanging part of the caseor-controversy requirement of Article III.”). Standing is a “threshold determinant[] of the
propriety of judicial intervention.” Warth v. Seldin, 422 U.S. 490, 518 (1975).
The elements of standing are threefold—the plaintiff must establish (1) injury in fact,
(2) causation, and (3) redressability. Steele Co., 523 U.S. at 103. The injury-in-fact
component requires the plaintiff to “allege an injury to himself that is distinct and palpable,
as opposed to merely abstract, and the alleged harm must be actual or imminent, not
conjectural or hypothetical.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (internal
citations omitted). The causation element requires the plaintiff to establish a “causal

7

connection between the injury and the conduct complained of”—that is, the plaintiff must
show that the alleged injury is “fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent action of some third party not before
the court.” Lujan, 504 U.S. at 560 (alterations in original; citation omitted). The
redressability requirement means the plaintiff must show that it is “likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561
(internal quotation marks and citation omitted).
The defendants here argue that the facts as alleged by the plaintiff show neither an
injury in fact nor causation, because the alleged injuries are traceable only to the actions of
the Tennessee House of Representatives, rather than to those of the defendants. The plaintiff
retorts that he “suffered an actual injury when he lost his benefits without due process.”
(Doc. No. 12, at 1.) He also argues that he lost his benefits through the defendants’ actions,
because the defendants are charged with “oversee[ing], administer[ing], or regulat[ing] state
insurance and benefits plans.” (Doc. No. 12, at 3.) Although the plaintiff concedes that the
“basis” for the defendants’ actions was “an illegal act by the Tennessee legislature,” he
argues that it was the defendants, rather than the state legislature, who actually “enforced the
denial of benefits based on [the] unauthorized and unconstitutional expulsion.” (Doc. No. 12,
at 3.)
In their Reply, the defendants insist that the plaintiff’s “real complaint” is that the
Tennessee House of Representatives denied him due process (Doc. No. 16, at 2), as
illustrated by his repeated assertions that the expulsion vote itself violated the Tennessee
Constitution and “deprived Mr. Durham of any meaningful notice or opportunity to be
heard.” (See, e.g., Doc. No. 12, at 11 (“The violation of [the plaintiff’s] procedural due

8

process rights [by the Tennessee legislature] led to Defendants’ deprivation of Mr. Durham’s
protected property interests in his benefits and pension.”).)
A.

Injury in Fact

The court finds, first, that the plaintiff at least arguably suffered an actual injury that
is neither conjectural nor hypothetical: he was expelled from the Tennessee House of
Representatives, allegedly in violation of the Tennessee Constitution, and, as a result, he
suffered a loss of certain benefits attendant upon his status as a state legislator, including
lifetime health insurance coverage and, if he met certain qualifications, a retirement pension.
B.

Causation

The next standing question implicated by his suit is whether the plaintiff has alleged a
causal connection between the defendants’ actions and the injuries he has identified. He has
not.
1.

Retirement Benefit

Durham was initially elected to the House of Representatives on November 6, 2012.
See https://sos.tn.gov/products/elections/election-results#2012. He became a member of the
General Assembly and a state employee on election day. Comer v. Ashe, 514 S.W.2d 730,
733 (Tenn. 1974) (citing Tenn. Const. art. II, § 3). He was re-elected on November 4, 2014,
https://sos.tn.gov/products/elections/election-results#2014, but he was expelled from the
Legislature on September 13, 2016, approximately eight weeks before the fourth anniversary
of his employment.
Tennessee law provides state employees a retirement benefit under the Tennessee
Consolidated Retirement System (“TCRS”). To obtain the retirement benefit, an employee
must comply with the prescribed procedure for applying for it, but he also must meet certain

9

eligibility requirements. (Doc. No. 9, at 14–15.) As relevant here, the plaintiff does not allege
that he ever made any attempt to apply for retirement benefits under the prescribed procedure
or otherwise. Moreover, the defendants explain that the plaintiff, as a former member of the
Tennessee General Assembly, would not have become eligible for the retirement benefit
unless and until he achieved a minimum of four years of creditable service. (Doc. No. 9, at
15.) The plaintiff does not contest that assertion. (See, e.g., Doc. No. 12, at 1 (“Plaintiff
Jeremy Durham was entitled to receive his vested retirement . . . benefits after four years of
service as a state representative.”).) 1 And, although the plaintiff claims that his “entitlement
to . . . retirement benefits had already vested” (Doc. No. 12, at 10), he also concedes that he
was expelled from the General Assembly prior to the expiration of his second two-year term
and, thus, prior to reaching four years of service.
In other words, it is undisputed, for purposes of the defendants’ motion, that (1) the
plaintiff did not serve four years as a member of the Tennessee House of Representatives,
and (2) he was required to serve at least four years in order to be entitled to a retirement

1

The statutes cited by the defendants do not actually support this assertion. In
particular, Tenn. Code Ann. § 8-36-204(a) indeed states that, “[n]otwithstanding . . . any
other law to the contrary,” any state employee classified as a Group 1 employee, which the
plaintiff apparently was, “shall not be eligible for a service or early service retirement
allowance unless such member has a minimum of four (4) years of creditable service.” This
subsection, however, only applies to members of the state retirement system classified “prior
to July 1, 1979.” Id. Other subsections of the same code section provide that individuals who
become members of the state retirement system on or after July 1, 1979, must have a total of
ten years of creditable service to qualify for retirement benefits, “[i]n addition to all other
requirements for service or early service retirement,” and those who become Group 1
members on or after January 1, 1992, must have a total of five years of creditable service.
Tenn. Code Ann. § 8-34-204(b)(1) & (2). However, the statute also states that “[t]his
provision shall not apply to members of the general assembly.” Tenn. Code Ann. § 8-36204(c). Nonetheless, based on the parties’ apparent agreement on this topic, the court
presumes for purposes of the defendants’ motion that the plaintiff was required to serve a
minimum of four years as a member of the General Assembly to become eligible for
retirement benefits.

10

benefit. Because he was not a state employee for the minimum four-year period, his interest
in the state retirement system did not vest, and he did not become eligible to receive a state
pension. No action by any defendant caused that result—it followed directly and inexorably
from the plaintiff’s expulsion from the House of Representatives. That is, the sole basis for
the plaintiff’s claim that he was deprived of his right to retirement benefits is that he was
wrongfully expelled from the House of Representatives by the allegedly illegal, ultra vires
vote by that body during the September 2016 special session, not by any illegal action by the
named defendants.
Accordingly, the court finds that the plaintiff fails to show a causal connection
between his loss of any entitlement to a state retirement pension and any action or inaction by
the named defendants.
2.

Lifetime Health Insurance

The plaintiff alleges that he inquired about his health insurance coverage and was
informed that defendant Martin had “decided Plaintiff’s coverage would end on September
30, 2016.” (Compl. ¶ 25 & Ex. B.) Under state law, the plaintiff would have been entitled to
elect to retain retiree health benefits for life upon “retirement” from the legislature. See Tenn.
Code Ann. § 8-27-208(a)(1) (“Upon retirement from the general assembly, any . . .
representative . . . may elect to retain retiree health benefits by participating in the plan
authorized by the state insurance committee . . . .”). Durham, however, did not “retire” from
his position, and he does not argue otherwise. 2

Retirement is ordinarily defined as “withdrawal from one’s position or occupation or
from active working life.” See https://www.merriam-webster.com/dictionary/retirement. The
term “retirement” thus signifies a voluntary withdrawal from office. Conversely, “expel” is
defined as “to force to leave . . . by official action” and to “take away rights or privileges of
membership.” See https://www.merriam-webster.com/dictionary/expel. An expulsion, unlike
retirement, is not voluntary. Accord Jacobs v. N.J. State Highway Auth., 255 A.2d 266, 268
2

11

The plaintiff does not allege that the Tennessee law providing lifetime health
insurance to former legislators only upon “retirement” from the state legislature is itself
unconstitutional. Nor does he actually contend that the application of these state laws to his
situation—that of an expelled lawmaker—was unconstitutional. Instead, the plaintiff
complains that his expulsion from the House of Representatives was itself unlawful—that it
violated the state Constitution and, therefore, his federal right to due process. In other words,
his position appears to be that he would not have had a basis for complaining about the loss
of the health insurance benefit if he had been lawfully expelled, either during a regular
legislative session or during a special session called for that purpose. Once again, the act that
he is complaining about is his purportedly unlawful expulsion.
The Complaint itself clearly reflects the plaintiff’s understanding that the wrongs
visited upon him resulted from his wrongful expulsion from the state legislature:
2.
Plaintiff’s expulsion took place during a special session
constitutionally designated and limited by Article III, Section 9 of the
Tennessee Constitution to address federal highway funds. The House had no
authority under the Tennessee Constitution or state law to expel Plaintiff at
this special session (as opposed to a regular legislative session).
3. This violation of Article III, Section 9 of the Tennessee
Constitution, which limits special sessions to the specific purposes for which
they are convened, resulted in the deprivation of Plaintiff’s protected property
interest in his state benefits, specifically his pension and insurance benefits.
....
9.
As the direct and proximate result of his improper and
unauthorized expulsion, Plaintiff has lost his lifetime health insurance benefits
and has been so informed by the State’s Benefits Administration Division.
(N.J. 1969) (holding that “retirement” “ordinarily signifies voluntary withdrawal,” as
opposed to “discharge,” which signifies “compulsory dismissal”); Morrison v. Dep’t of
Highways, 85 So. 2d 51, 53 (La. 1955) (“Retirement is not dealt with in the amendment,
unless by mental gymnastics we could come to construe that ‘removal’ means ‘retirement.’
These words are not synonymous.”).

12

10.
Defendants’ enforcement of this denial of Plaintiff’s state
benefits is based on an unauthorized, ultra vires expulsion that violated
Article III, Section 9 of the Tennessee Constitution . . . .
(Compl. ¶¶ 2–3, 9–10 (emphasis added).)
In sum, the plaintiff’s assertions to the contrary notwithstanding, his loss of the health
insurance benefit is not fairly traceable the defendants’ actions. It is, instead, the “direct and
proximate result” (Compl. ¶ 9) of “the independent action of some third party not before the
court,” Lujan, 504 U.S. at 560—namely, the legislative body that expelled him. The
defendants, who took no part in that event, simply acted upon the facts presented to them: the
plaintiff had been expelled from the General Assembly and was thereby rendered ineligible
for lifetime health insurance. The plaintiff does not contend that he actually retired from the
state legislature, as required by the statute to render him eligible for the lifetime insurance
benefit. Thus, the action the plaintiff actually contests is his expulsion from the state
legislature, on the basis that it altered his legal status as a state employee and, thus, his
eligibility, as a matter of state law, for the benefit to which he claims an entitlement.
Suing the named defendants in this case amounts to an attempt to make an end-run
around a challenge to the expulsion itself. Because the plaintiff cannot establish a causal
connection between his alleged injuries and any action by the defendants, he lacks standing,
and, consequently, this action must be dismissed for lack of subject matter jurisdiction. 3
3

The doctrine of Ex Parte Young, 209 U.S. 123 (1908), bears mentioning here, if
only to explain why it does not afford relief in this case. The Ex parte Young exception to
sovereign immunity generally permits federal courts to enjoin state officers in their official
capacity from prospectively violating a federal statute or the Constitution. S & M Brands,
Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008) (citations omitted). Here, however, the
plaintiff does not allege that the state statutes and regulations the named defendants are
tasked with enforcing are unconstitutional or even that the defendants’ interpretation or
application of state law is incorrect or unconstitutional. Nor does he challenge the process
available for redressing a wrongful denial of state benefits. He does not claim that the
defendants themselves acted ultra vires or outside the scope of their authority. Instead, he

13

V.

Conclusion
As set forth herein, the court will grant the defendants’ motion and dismiss this case

with prejudice. An appropriate Order is filed herewith.
ENTER this 8th day of December 2017.

____________________________________
ALETA A. TRAUGER
United States District Judge

challenges the constitutionality of his expulsion from the General Assembly, and the only
relief that would achieve the plaintiff’s objectives would be to somehow nullify that
expulsion.
But the named defendants themselves are not tasked with enforcing the allegedly
illegal expulsion; instead, they are simply called upon to administer state law pertaining to
the benefits afforded state employees and legislators. Ex parte Young does not extend to this
situation. See, e.g., Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1415
(6th Cir. 1996) (“Courts have not read Young expansively.”); Ohio v. Madeline Marie
Nursing Homes, 694 F.2d 449, 459 n.9 (6th Cir. 1982) (recognizing that “an action against a
state official must be ‘based on a theory that the officer acted beyond the scope of his
statutory authority or, if within that authority, that such authority is unconstitutional’ in order
to avoid the bar of the Eleventh Amendment” (quoting Florida Dep’t of State v. Treasure
Salvors, Inc., 458 U.S. 670, 689–90 (1982))).
Although Ex parte Young is generally invoked as grounds for either dismissing, or
avoiding dismissal of, a case on the basis of sovereign immunity, in this context the doctrine
illuminates the central fault in the plaintiff’s theory of relief: because the named defendants
are not alleged to have violated any law, Ex parte Young does not afford the plaintiff an
avenue of relief.