Durham v. Martin et al
Filing
46
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 5/14/2019. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JEREMY R. DURHAM,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
LARRY MARTIN, in his official
capacity, et al.,
Defendants.
Case No. 3:17-cv-01172
Judge Aleta A. Trauger
MEMORANDUM
Before the court is the defendants’ Motion to Dismiss (Doc. No. 35) Jeremy R. Durham’s
Amended Complaint for Declaratory and Injunctive Relief (Doc. No. 33). For the reasons set
forth herein, the motion will be granted in part and denied in part.
I.
Factual and Procedural Background
Plaintiff Jeremy Durham was elected to the 108th General Assembly of the Tennessee
House of Representatives in November 2012 and again in November 2014, for the 109th General
Assembly, where he served until his expulsion on September 13, 2016. (Am. Compl., Doc. No.
33 ¶¶ 6, 34.) As a result of the expulsion, Durham was removed from the House membership roll
before the end of the 109th General Assembly. (Id. ¶ 6.) He was later informed by the defendants
that his expulsion resulted in the termination of certain state benefits in which he claims he had a
vested interest. This lawsuit stems from the expulsion and ensuing events, in particular the denial
of the state benefits. Durham asserts that his expulsion violated Article 1, Section 10 of the
United States Constitution, which prohibits bills of attainder, and his right to due process under
the Fourteenth Amendment. He also claims it was in violation of state law. He alleges that the
2
unauthorized expulsion and bill of attainder led to further constitutional deprivations when his
benefits were terminated. He brings suit to vindicate the federal constitutional violations under
42 U.S.C. § 1983, seeking his reinstatement on the membership roll of the 109th General
Assembly and reinstatement of his state benefits.
As set forth in the Amended Complaint, the Tennessee Attorney General’s Office issued
a report in July 2016 on Durham’s alleged “disorderly conduct” while in office. (Doc. No. 33 ¶
35.)1 Shortly thereafter, Representative Mike Stewart called for a special session vote to expel
Durham. The stated purpose of the session was to ensure that Durham’s lifetime pension would
not vest in November. (Id.) House Majority Leader Gerald McCormick sponsored a petition in
support of the special session. (Id. ¶ 38.) Only twenty-seven representatives signed the petition,
as a result of which the call for a special legislative session failed. (Id.) House Republican
Caucus Chair Glen Casada and Representative Joe Armstrong circulated a second petition to call
a special legislative session to oust Durham. That petition failed as well. (Id. ¶ 40.)
On July 14, 2016, Durham announced at a press conference that he had withdrawn from
the GOP primary for his seat in the upcoming term. On August 4, 2016, Sam Whitson won the
GOP primary in Durham’s district, thus ensuring that Durham would not be re-elected to serve a
third term in the General Assembly. (Id. ¶ 42.) As of that date, there was no plan for the House of
Representatives to convene again until after the election of the next General Assembly.
Durham’s service in the House was over, and he had “effectively retired from the legislature.”
(Id. ¶ 43.)
However, on September 2, 2016, then-Governor Bill Haslam issued a proclamation to
1
Without making any findings of fact as to the truthfulness thereof, the court takes
judicial notice that the Tennessee Attorney General’s Office reported that Durham had sexually
harassed at least 22 women between 2012 and 2016.
3
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” and, generally, to ensure compliance with federal law relating to federal-aid highway
funding, in order for the State to avoid losing up to $60 million in federal highway funds. (Doc.
No. 33 ¶¶ 10, 44; Proclamation, Doc. No. 33-1.)
The special legislative session was authorized by Article III, Section 9 of the Tennessee
Constitution. (Doc. No. 33 ¶ 9.) 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. In a press release dated September 2, 2016, Governor
Haslam confirmed that an effort to expel Durham was not on the agenda for the special session.
(Doc. No. 33 ¶¶ 11, 45.)
Nonetheless, on September 12, 2016, the first day of the special session, which Durham
did not attend, Representative Susan Lynn gave notice that she intended to make a motion the
next day to expel Durham from the House for “disorderly behavior.” (Id. ¶¶ 14, 48.) Durham,
notified by media reports about Lynn’s announcement, attended the special session the following
morning. (Id. ¶ 52.) That morning, as the House reconvened for the special session to deal with
federal highway funds, Lynn introduced her motion and “debate ensued.” (Id. ¶ 53.) Durham
spoke on his own behalf, arguing that the action was unconstitutional and that he had not been
accorded due process. (Id. ¶ 54.) The Tennessee House of Representatives nonetheless voted on
4
the motion and approved it by a margin of seventy votes in favor of expulsion to two against.
Durham was not present for the vote. (Id. ¶ 56.) Durham was immediately expelled from the
House of Representatives and his name was removed from the House membership roll. (Id. ¶¶
16, 57.) Durham maintains that his expulsion violated state and federal law.
Shortly after his expulsion from the legislature, Durham inquired about the status of his
state 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. (Id. ¶¶ 18, 60–61; Doc.
No. 33-2.) An email attached to the Amended 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. 33-2.)
In addition to the loss of his healthcare benefit, Durham claims that, “[a]s a direct and
proximate result of his improper and unauthorized expulsion,” he lost his state “pension and has
been so informed by the State’s Benefits Administration Division.” (Doc. No. 33 ¶ 19.)
Based on these factual allegations, Durham originally filed suit in this court on August
21, 2017, naming as defendants Larry Martin, in his official capacity as Tennessee
Commissioner of Finance and Administration; Connie Ridley, in her official capacity as Director
of Legislative Administration; and David H. Lillard, Jr., in his official capacity as Treasurer of
the State of Tennessee. The original Complaint asserted a single “Count”: that the plaintiff had a
5
protected property interest in his state benefits and was denied due process through the
deprivation of these benefits, based on his ultra vires expulsion from the House of
Representatives. (Doc. No. 1.)
This court, construing the original Complaint as asserting a claim based on the plaintiff’s
unlawful expulsion from the legislature, dismissed the Complaint for lack of standing, as the
named defendants did not participate in that action. The Sixth Circuit reversed and remanded,
finding that the plaintiff Durham had standing to sue the administrators named as defendants,
because the injuries he seeks to remedy are fairly traceable to the administrators’ conduct, as he
adequately alleged that he is not receiving benefits that the defendant administrators should pay.
Durham v. Martin, 905 F.3d 432, 433 (6th Cir. 2018).
Following remand, the plaintiff was granted leave to amend his Complaint. In the
Amended Complaint, he names four new defendants: Joe McCord, in his official capacity as the
former Chief Clerk of the Tennessee House of Representatives; Victor Thompson, in his official
capacity as the former Chief Sergent-At-Arms of the Tennessee House of Representatives;
Tammy Letzler, in her official capacity as the current Chief Clerk of the Tennessee House of
Representatives; and William C. Howse, in his official capacity as the current Sergent-At-Arms
of the Tennessee House of Representatives.2 (Doc. No. 33.)
The Amended Complaint includes a new cause of action as well. In Count I, Durham
claims that his expulsion by the House of Representatives constituted a legislative action that
punished him by taking away his vested health insurance and pension benefits without a judicial
trial. He asserts that, as such, the action constituted a bill of attainder, which is expressly barred
by Article I, Section 10 of the United States Constitution. He claims that the “defendants”—
2
The State of Tennessee is also identified as a defendant in the Amended Complaint, but
the claims against it have been dismissed by stipulation. (Doc. No. 45.)
6
without identifying which of them—deprived him of his constitutional right to not have a bill of
attainder passed against him, a violation he seeks to vindicate under 42 U.S.C. § 1983. (Doc. No.
33 ¶¶ 62–72.)
In Count II, “Denial of Due Process,” Durham asserts, as he had in the original
Complaint, that he had a protected property interest in his state benefits and was deprived of
those benefits without due process. (Id. ¶ 74.) He claims that, based on the plain language of
Article III, Section 9 of the Tennessee Constitution and the prior failed attempts to call a special
session for the specific purpose of expelling him, he had a reasonable expectation under state law
that he would retain his state benefits (lifetime health insurance and a state pension) following
the expiration of his term. (Doc. No. 33 ¶ 75.) He could not have anticipated a vote on his
expulsion during the special session called to prevent the state’s loss of federal highway funds,
given that state law prohibited the legislature from conducting any other business during that
session, and Durham’s only notice of Representative Lynn’s intent to make a motion to expel
him was through the media’s coverage of the special session. Durham alleges that he was not
given a meaningful opportunity to be heard and was afforded no post-deprivation remedy to
challenge his expulsion or the deprivation of his state benefits. He brings this claim under 42
U.S.C. § 1983 as well, claiming that the defendants, acting under color of state law, deprived him
of his right to due process.
In his Prayer for Relief, Durham demands that the court issue (1) a declaration that the
State of Tennessee’s action, through the House’s “illicit and unjustified expulsion” of him,
constitutes an unconstitutional bill of attainder; (2) a declaration that he had a “potential property
interest in his state benefits” that the defendants denied him without due process of law (Doc.
No. 33, at 13); and (3) an injunction requiring the defendants to reinstate the plaintiff to the
7
House membership roll of the 109th General Assembly and to reinstate his state pension and
health insurance coverage.
The defendants thereafter filed their Motion to Dismiss Amended Complaint and
supporting Memorandum of Law, arguing that the dismissal is required under Rules 12(b)(1) and
12(b)(6) for lack of subject-matter jurisdiction and for failure to state a claim for which relief
may be granted. (Doc. Nos. 35, 36.) The plaintiff has filed his Response in opposition thereto,
and the defendants filed a Reply. (Doc. Nos. 40, 43.)
II.
Legal Standards
A.
Rule 12(b)(1)
A court’s subject matter jurisdiction is a “threshold determination” that may be
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).
A facial attack “questions merely the sufficiency of the pleadings.” Gentek Bldg. Prods.,
Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). In reviewing a factual attack,
however, the court may consider evidence outside the pleadings, and both parties are free to
supplement the record by affidavits. Id. See Rogers v. Stratton Indus., 798 F.2d 913, 916 (6th
Cir. 1986). A State’s assertion of sovereign immunity constitutes a factual attack. Hornberger v.
Tennessee, 782 F. Supp. 2d 561, 564 (M.D. Tenn. 2011).
8
B.
Rule 12(b)(6)
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court
must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487
F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The
Federal Rules of Civil Procedure require that a plaintiff provide “‘a short and plain statement of
the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds
upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed. R. Civ. P. 8(a)(2)).
The court must determine whether “the claimant is entitled to offer evidence to support the
claims,” not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial
plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal
conclusions” or “[t]hreadbare recitals of the elements of a cause of action”; instead, the plaintiff
must plead “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III.
Discussion
The defendants’ motion argues that (1) the claims against the newly added defendants are
time-barred; (2) Count I of the Amended Complaint should be dismissed under Rule 12(b)(6),
because the action of the Tennessee House of Representatives does not constitute a Bill of
Attainder; (3) the plaintiff’s due process claim is barred by the Eleventh Amendment; and (4)
alternatively, even if the due process claim is not barred by immunity, it should be dismissed
9
under Rule 12(b)(6). The plaintiff opposes each of these arguments.
A.
Statute of Limitations
The defendants argue, first, that the plaintiff’s claims against the four newly named
defendants—Joe McCord, Victor Thompson, Tammy Letzler, and William C. Howse—are
barred by the statute of limitations and that those claims do not “relate back” under Rule 15(c)(1)
of the Federal Rules of Civil Procedure.3
As an initial matter, the court notes that the Amended Complaint, in effect, names only
two new defendants. That is because a claim against an official in his or her official capacity is,
by definition, a claim against the official’s office. A former official no longer holds the office
and cannot be sued in his official capacity. See Kentucky v. Graham, 473 U.S. 159, 166 n.11
(1985) (“In an official-capacity action in federal court, death or replacement of the named
official will result in automatic substitution of the official’s successor in office.” (citing Fed. R.
Civ. P. 25(d))). Naming the former officials in their official capacity only, while also naming the
current officials in their official capacity only, is therefore both improper and redundant, as the
former officials are automatically replaced by their successors by operation of Rule 25.
Regarding the claims against the current officials, because Congress did not enact a
statute of limitations for actions brought under 42 U.S.C. § 1983, federal courts look to state
statutes of limitation to determine the appropriate limitations period. Wallace v. Kato, 549 U.S.
384, 387 (2007); Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005). The one-year statute
of limitations in Tenn. Code Ann. § 28-3-104(a)(3) applies to civil rights claims arising in
3
The Amended Complaint also adds a new claim for relief under 42 U.S.C. § 1983,
based on the theory that plaintiff’s expulsion from the legislature was an unconstitutional bill of
attainder. The defendants apparently concede that this claim relates back to the claims in the
original Complaint and is not barred by the statute of limitation. As discussed below, they argue
for its dismissal on other grounds.
10
Tennessee. Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843, 2015 WL 480239
(6th Cir. 2015). Although the limitations period for § 1983 actions is borrowed from state law,
federal law governs when the limitations period begins to run. Wallace, 549 U.S. at 388. Accrual
occurs “when the plaintiff has a complete and present cause of action, that is, when the plaintiff
can file suit and obtain relief.” Id. (internal quotation marks and citations omitted).
In this case, the defendants assert that the plaintiff’s causes of action relating to his
expulsion accrued on September 13, 2016, the date of the expulsion, and the plaintiff does not
refute that proposition.4 The filing date for the original Complaint was August 21, 2017, well
within the one-year statute of limitations. The Amended Complaint was filed on January 23,
2019, well outside the limitations period. The plaintiff’s claims against the new defendants are
time-barred unless the Amended Complaint relates back to the filing of the original Complaint.
The plaintiff argues that his claims are not time-barred, because they are protected by the
relation-back provisions in Rule 15 of the Federal Rules of Civil Procedure. Rule 15(c)(1)
provides that an amendment “relates back” to the date of the original filing, for statute of
limitation purposes, when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the original
pleading; or
(C) the amendment changes the party or the naming of the party against whom a
claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided
by Rule 4(m) for serving the summons and complaint, the party to be brought in
by amendment:
4
The question of whether the claims accrued the day of the expulsion, the day the
plaintiff was notified that his benefits would terminate, or the day they actually terminated, is not
relevant to the question of whether the claims against the new defendants are time-barred, as all
of these events occurred more than one year prior to the filing of the Amended Complaint.
11
(i) received such notice of the action that it will not be prejudiced in defending
on the merits; and
(ii) knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party's identity.
Fed. R. Civ. P. 15(c)(1)(A)–(C).
The defendants argue that Rule 15(c)(1)(A) does not apply, because Tenn. Code Ann. §
28-3-104(a)(3) contains no relation-back provision. They argue that Rule (c)(1)(B) pertains only
to the relation back of “an amendment asserting a ‘claim or defense,’ but it does not authorize the
relation back of an amendment adding a new party.” (Doc. No. 36, at 5 (citations omitted).)
Finally, they contend that subsection (C) does not apply, first, because the requirements of Rule
15(c)(1)(B) are not met and, second, because the plaintiff has not shown that the new defendants
received notice of the institution of this action within 90 days of the filing of the original
Complaint or that the plaintiff’s failure to name these defendants is the result of some “mistake”
concerning the proper party’s identity.
Durham, in response, maintains that the claims in the Amended Complaint against the
new defendants “are based on and relate back to the very same set of operative facts originally
plead[ed].” (Doc. No. 40, at 2.) He characterizes the defendants’ position as “a technical
argument” and a “formality that misses the substance and spirit” of Rule 15(c)(1). (Doc. No. 40,
at 3.) The operative inquiry, he insists, is whether the additional defendants were on notice when
the original Complaint was filed because of their involvement in carrying out the improper
expulsion.” (Id. at 3.) Alternatively, he argues that, because he sues state officials in their official
capacity only, under Ex parte Young, “the real party-in-interest . . . [has] remained constant.”
(Doc. No. 40, at 4.) That is, regardless of who the named officials are, the State is and always has
been the real party-in-interest in this case.
12
The defendants are correct that Rule 15(c)(1)(A) is of no help to the plaintiff, since §
1983 has no relation-back provision. Accord Reiner v. Canale, 301 F. Supp. 3d 727, 734 (E.D.
Mich. 2018); see also 42 U.S.C. § 1983. Rule 15(c)(1)(B) is likewise inapplicable, because it
“allows relation back of an amendment asserting a ‘claim or defense,’ but it does not authorize
the relation back of an amendment adding a new party.” Asher v. Unarco Material Handling,
Inc., 596 F.3d 313, 318 (6th Cir. 2010); see also 6A Charles Alan Wright et al., Fed. Prac. &
Proc. Civ. § 1497 (3d ed.) (recognizing that Rule 15(c)(1)(B) only pertains to amendments
“alleging a new or different claim or defense”).
Regarding Rule 15(c)(1)(C), the first requirement is that 15(c)(1)(B) be “satisfied,”
meaning that “the amended claim arose out of the same conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading.” 6A Wright et al., Fed. Prac. & Proc.
Civ. § 1498 (3d ed.). The next requirement is timely notice, under 15(c)(1)(C)(i). Even assuming
these prerequisites are met, however, “Sixth Circuit precedent clearly holds that new parties may
not be added after the statute of limitations has run, and that such amendments do not satisfy the
‘mistaken identity’ requirement of Rule 15(c)(3)(B).” Cox v. Treadway, 75 F.3d 230, 240 (6th
Cir. 1996). Adding a new party is not the same as “chang[ing] the party or the name of the party”
against whom a claim is asserted. See Asher, 596 F.3d at 318 (noting that the type of changes
permitted under Rule 15(c)(1)(C) are “limited to corrections of misnomers or misdescriptions”
(citations omitted)).
Here, the plaintiff impermissibly seeks to add new parties. To avoid that conclusion, he
insists that, in reality, he is not adding new parties, because the real party in interest in this
official-capacity suit is, and always has been, the State of Tennessee. The plaintiff, however, did
not sue the State of Tennessee itself until he filed the Amended Complaint, and the State has now
13
been dismissed by stipulation. Instead, he has sued individuals who are deemed to represent
specific state agencies tasked with administering a limited array of state functions. In the Sixth
Circuit, in order to avail himself of Ex parte Young, a plaintiff must identify and sue the state
officer or officers appropriate to his particular claim. “General authority to enforce the laws of
the state is not sufficient to make government officials the proper parties to litigation challenging
the law.” Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir.
1996) (quoting 1st Westco Corp. v. Sch. Dist. of Philadelphia, 6 F.3d 108, 113 (3d Cir. 1993));
see id. at 1415 (“Young does not apply when a defendant state official has neither enforced nor
threatened to enforce the allegedly unconstitutional state statute.”).
In other words, the fact that a suit against a state official in his official capacity is, in
reality, a suit against the state does not mean that a plaintiff can just name any state official as a
defendant and proceed with official-capacity claims against her, regardless of whether she had
any authority over the actions or laws the plaintiff challenges. It would make no sense, for
example, to permit the plaintiff to sue the Tennessee Commissioner of Education based on
unconstitutional policies adopted by the Tennessee Highway Patrol. State officials sued in their
official capacity are not interchangeable, absent some allegation of mistake that would fall within
the purview of Rule 15(c)(1)(C)(ii). The plaintiff alleges no such mistake here. The court
therefore finds that the newly named defendants, even though they are named in their official
capacity, do not have the requisite identity with the previously named state official defendants to
permit relation back for statute of limitation purposes. Accord Messina v. Mazzeo, 854 F. Supp.
116, 147 (E.D.N.Y. 1994) (holding that the purpose of the “legal construct” pursuant to which an
official capacity-suit against a government official is treated as a suit against the entity the
official represents “is not to avoid a statute of limitations on one cause of action against a
14
government entity by asserting a claim against a person in his official capacity on an entirely
different cause of action” but, rather, “to allow the real party in interest to assert the immunities
and defenses to which they are entitled”).
In sum, the court finds that the claims asserted against the newly named defendants are
barred by the statute of limitations and are not saved by the relation-back provisions in Rule
15(c)(1)(A), (B), or (C). The court will dismiss the claims against the newly named former
officials as redundant of the claims against the newly named current officials and will dismiss
the claims against the latter as barred by the statute of limitations.5
B.
Count I – Was the House Resolution a Bill of Attainder?
In one of its “few explicit limitations on both federal and state action,” the United States
Constitution prohibits Congress and the States from passing any “Bill of Attainder.” Note, The
Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause, 72
Yale L.J. 330, 332 (1962); U.S. Const, art. I, §§ 9, 10. A bill of attainder is a “law that
legislatively determines guilt and inflicts punishment upon an identifiable individual without
provision of the protections of a judicial trial.” Zilich v. Longo, 34 F.3d 359, 362 (6th Cir. 1994)
(quoting Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 846–47
(1984)). There are three essential elements to a bill of attainder: “specificity . . . , punishment,
and lack of a judicial trial.” Id. (quoting Selective Serv., 468 U.S. at 847).
In Zilich, the plaintiff argued that a resolution and ordinance passed by a city council
5
The plaintiff appears to have named the new defendants because one of the duties with
which their offices are tasked is maintenance of the membership roll for the House of
Representatives, and one of the forms of relief the plaintiff seeks is the reinstatement of his name
on the membership roll. It is not clear, however, whether reinstatement on the roll is necessary to
the provision of the relief the plaintiff is actually concerned about, which is the reinstatement of
his state benefits. The court understands the plaintiff’s request for reinstatement on the
membership roll as simply a potential alternative route to that destination. Thus, it is unclear
what effect, if any, the dismissal of the claims against these defendants will have on this case.
15
constituted a bill of attainder adopted in violation of Article 1 § 10 of the Constitution. The
district court agreed, but the Sixth Circuit reversed, on several grounds. In particular, the court
noted that the charter of the town of Garfield Heights specifically provided that the city council
itself “shall be the judge of the election and qualifications of its members.” Zilich, 34 F.3d at
362. This provision “reflect[ed] the well-settled principle that a legislature traditionally has the
power to judge the so-called ‘standing’ qualifications . . . of its membership.” Id. (citations
omitted). The court continued:
Plaintiff has not cited, and our research has not disclosed, a single case in which a
court has held that judging a member’s qualifications constitutes a bill of
attainder. The Bill of Attainder Clause is a safeguard against legislative exercise
of the judicial function, or more simply—trial by legislature. The “section
proscribing bills of attainder . . . establishes that there are certain types of decision
that are . . . inappropriate for legislative resolution. . . . [T]he bill of attainder
clause should be viewed . . . as necessary to the effective separation of powers.”
The legislative act of judging one’s own members cannot be deemed a matter
inappropriate for legislative resolution when the city charter specifically grants
the council this power. Where the role is traditionally a legislative function, not a
judicial function, the Bill of Attainder Clause does not outlaw legislative action
against a specific legislator. Legislative bodies may censure, suspend or
otherwise discipline a member. They have done so under English and American
law for centuries. The absence of a trial here is not problematic or even surprising
because judging a member’s qualifications is a legislative function, not a judicial
one.
Id. at 362–63 (quoting Note, supra, at 343; other citations and internal quotation marks omitted)
(emphasis added). That is, the Sixth Circuit has expressly recognized that, where a legislative
body is granted the power to discipline its own members, an action taken based on that
authorization is legislative in nature, rather than the exercise of a forbidden judicial function. As
such, it does not qualify as a bill of attainder. To this court’s knowledge, every court to consider
this issue has concluded that legislative bodies have the power to discipline their own members.
See, e.g., Berry v. Crawford, 990 N.E.2d 410, 413 (Ind. 2013) (holding that the judicial branch
had no authority to review the decision of the Indiana House of Representatives to collect fines
16
from House members in punishment for their leaving the state to prevent the formation of a
quorum, where the Indiana Constitution expressly assigned to the legislature the authority to
establish internal rules to govern its internal operations and to impose discipline against any
member); Gerald v. La. State Senate, 408 So. 2d 426, 429 (La. Ct. App. 1981) (“The
overwhelming weight of opinion as expressed by not only the courts of this State, but the opinion
of the courts of our sister states is that the discipline and removal of a legislator is within the sole
province of the body in which he serves as a member.” (collecting cases)); French v. Senate of
State of Cal., 80 P. 1031, 1034 (Cal. 1905) (“The proposition that a resolution or other action of
the Senate resulting in the expulsion of a member is in substance a bill of attainder, and therefore
a violation of section 16, art. 1, of the state Constitution, and of section 10, art. 1, of the
Constitution of the United States, is scarcely worthy of notice. The charges upon which a
member is expelled may or may not constitute a charge of crime, but the resolution expelling
him has not the force of law, and it cannot by any stretch of construction be denominated a bill of
attainder.”).
The plaintiff’s arguments to the contrary are not persuasive. He insists that a legislative
action need not have the force of “law” or be a “judicial act” to be deemed a bill of attainder, in
light of Supreme Court precedent defining a bill of attainder as any “legislative act” that inflicts
punishment without trial. (Doc. No. 40, at 5 (quoting Cummings v. Missouri, 71 U.S. 277, 323
(1867)).) See also United States v. Lovett, 329 303, 315 (1946) (“[Our cases] stand for the
proposition that legislative acts, no matter what their form, that apply either to named individuals
or to easily ascertainable members of a group in such a way as to inflict punishment on them
without a judicial trial are bills of attainder prohibited by the Constitution.”)). This court,
however, is bound by the Sixth Circuit’s interpretation of the Supreme Court’s rulings. See, e.g.,
17
United States v. Matos, No. 3:13-cr-98, 2014 WL 1922866, at *3 (W.D. Ky. May 14, 2014)
(explaining that a “district court is bound to follow the holding of a prior decision of the Court of
Appeals for the circuit in which the district court is located until that binding precedent is
expressly overruled.” (citation omitted)); accord D’Ambrosio v. Bagley, 688 F. Supp. 2d 709,
721 (N.D. Ohio 2010) (“This is a district court, and it must follow binding precedent when such
precedent exists.”). And, as Zilich indicates, the Sixth Circuit has not construed the Supreme
Court cases upon which the plaintiff relies as applying to a legislature’s punishment of its own
member. Rather, the Bill of Attainders Clause “should be viewed . . . as necessary to the
effective separation of powers.” Zilich, 34 F.3d at 362–63. Thus, where the action complained of
is “traditionally a legislative function,” and interference with such an action by the judiciary
would itself constitute a separation-of-powers intrusion, such action is not prohibited by the Bill
of Attainder Clause. Id. at 363 (“[T]he Bill of Attainder Clause does not outlaw legislative action
against a specific legislator.”).
The plaintiff argues that the action in question was not truly “legislative” and, further,
that the House did not actually have the power to remove him, because it violated another
provision of the Tennessee Constitution by voting on his removal at a time when it was not
authorized to do so. The Tennessee Constitution, however, specifically assigns to the state
legislature the power to “determine the rules of its proceedings, punish its members for
disorderly behavior, and, with the concurrence of two-thirds, expel a member.” Tenn. Const. art.
II, § 12. Because the Tennessee Constitution confers that power on the legislature, it is a
legislative power. The fact that the vote on the motion introduced by Representative Lynn was
arguably procedurally improper does not detract from the essential fact that the legislature is
granted the power to discipline and expel its own members. Accord Rangel v. Boehner, 785 F.3d
18
19 (D.C. Cir. 2015) (rejecting the plaintiff’s request that the court “review a congressional
disciplinary proceeding—a ‘legislative’ matter that ‘the Constitution places within the
jurisdiction of [the] House’”—and noting that “[a]n act does not lose its legislative character
simply because a plaintiff alleges that it violated the House Rules or even the Constitution”
(citations omitted)).6
Durham’s attempt to distinguish the facts here from those in Zilich is likewise unavailing.
The Sixth Circuit, indeed, made it clear that one of the grounds for its dismissal of Zilich’s claim
was that the city council’s action in that case was not actually punitive, since it merely directed
the institution of judicial proceedings against him. Zilich, 34 F.3d at 362. But that ground for the
holding was separate from the court’s determination that the City Council’s action in removing
its own member did not qualify as a bill of attainder where the City Charter expressly granted it
that authority. Id. at 362–63.
In sum, in accordance with Zilich, the court finds that the resolution to expel Durham
from the Tennessee House of Representatives was not a bill of attainder. The motion to dismiss
Count I of the Amended Complaint under Rule 12(b)(6) will be granted on that basis.
C.
Count II – Eleventh Amendment Immunity
The defendants in this action are all state officials sued only in their official capacity as
representatives of the State of Tennessee. They argue that the Eleventh Amendment bars the due
process claims against them. In the Sixth Circuit, sovereign immunity is a jurisdictional matter
that “must be addressed prior to reaching the merits.” Russell v. Lundergan-Grimes, 784 F.3d
1037, 1045–46 (6th Cir. 2015).
The Eleventh Amendment “deprives federal courts of subject-matter jurisdiction when a
6
Rangel concerned the application of absolute immunity under the Speech or Debate
Clause, Article 1, Section 6, Clause 1 of the United States Constitution.
19
citizen sues his own State unless the State waives its immunity or Congress abrogates that
sovereign immunity.” Id. at 1046 (citation omitted). The State has not waived its immunity to
this suit or generally to suits under § 1983, Berndt v. Tennessee, 796 F.2d 879, 881 (6th Cir.
1986), nor has Congress abrogated the State’s immunity. Quern v. Jordan, 440 U.S. 332, 345
(1979). “[A] suit against a state official in his or her official capacity is not a suit against the
official but rather is a suit against the official’s office.” Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989). As such, it is in actuality a suit against the State itself and, therefore,
generally barred by the Eleventh Amendment. Kentucky v. Graham, 473 U.S. 159, 165–66
(1985).
However, the doctrine announced in Ex parte Young, 209 U.S. 123 (1908), provides
another exception to sovereign immunity asserted by states. In order to fall within the Ex parte
Young exception, a claim must seek prospective relief to end a continuing violation of federal
law. Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 964 (6th Cir. 2013); see, e.g., Carten v. Kent
State Univ., 282 F.3d 391, 396 (6th Cir. 2002) (“[C]laims for reinstatement are prospective in
nature and appropriate subjects for Ex parte Young actions.”).
In Carten, a student dismissed from a state university for poor academic performance
brought suit against various individual university representatives in their official capacity under
Title II of the ADA, asserting, among other claims, that the defendants had refused to
accommodate his learning disability and had expelled him based on that disability. In addition to
other relief, he sought reinstatement. The defendants argued that the request for reinstatement
was not truly prospective in nature, because the plaintiff did not allege a continuing violation of
law and sought a “retrospective reversal of a completed state decision to expel him.” Carten, 282
F.3d at 396. The Sixth Circuit rejected that argument, holding that reinstatement constituted
20
prospective relief designed to end a continuing violation of federal law. Id.
On the other hand, “all retroactive relief,” and not merely “retroactive monetary relief,” is
barred by the Eleventh Amendment. S&M Brands, Inc. v. Cooper, 527 F.3d 500, 509 (6th Cir.
2008) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103 (1984)). In S&M
Brands, although the plaintiffs claimed that they sought an order requiring the state attorney
general, “upon request by the manufacturers sometime in the future,” to release certain escrow
funds associated with past cigarette sales, S&M Brands, 527 F.3d at 509, the Sixth Circuit found
that the relief sought was actually retrospective, based on a prior decision made by the attorney
general, and therefore barred by the Eleventh Amendment: “The alleged constitutional
deficiency here is a one-time, past event; the Plaintiffs do not seek a prospective injunction that
requires the Attorney General to conform his conduct in an ongoing, continuous fashion.” Id. at
510.
The defendants in this case argue that the plaintiff’s claims in this case do not fall within
the Ex parte Young exception, because (1) he seeks a declaration that the state officers violated
federal law in the past; (2) he does not allege an ongoing violation; (3) Ex parte Young does not
extend to prospective declaratory or injunctive relief based on alleged violations of state law; and
(4) the relief he seeks is essentially monetary insofar as it seeks the payment of retirement and
health insurance benefits, as the effect of any relief granted would be to force the defendants to
withdraw funds from the State Treasury. (Doc. No. 36, at 11–13.)
In response, the plaintiff argues only that he has sued the appropriate state officials as
permitted by Ex parte Young. (Doc. No. 40, at 9–10.) In support of this contention, the plaintiff
cites his own case, Durham v. Martin, 905 F.3d 432, 433 (6th Cir. 2018), which held that the
plaintiff had standing to sue the particular defendants named in the original Complaint. The Sixth
21
Circuit, however, expressly did not reach the question of whether the suit should survive on the
merits. Id. at 436. Regrettably, Durham has not addressed the questions of whether the relief he
seeks is retrospective or prospective in nature or what effect it would have on the State Treasury.
Instead, he simply argues that he states a claim against the named defendants. (See Doc. No. 40,
at 9 (“All of these defendants played a role in implementing the actions that led to the
deprivation of Plaintiff’s constitutional rights . . . .”).)
The court nonetheless construes the Amended Complaint as seeking prospective relief.
The plaintiff specifically seeks the “[i]ssu[ance of] an injunction requiring Defendants to
reinstate . . . Plaintiff’s state pension and health insurance coverage.” (Id. at 14.)7 As set forth
above, the Sixth Circuit has held that reinstatement generally is prospective relief of the type that
falls within the scope of Ex parte Young. Carten, 282 F.3d at 396. The request that the plaintiff’s
right to a state pension and state-provided healthcare be reinstated and that he maintain those
benefits going forward seeks prospective relief, regardless of the fact that the relief, if afforded,
might cost the State money. See S&M Brands, 527 F.3d at 507 (“Under the Ex parte Young
exception, a federal court can issue prospective injunctive and declaratory relief compelling a
state official to comply with federal law, regardless of whether compliance might have an
ancillary effect on the state treasury.” (citations omitted)).
The court therefore finds that the § 1983 claim set forth in Count II of the Amended
Complaint, insofar as the plaintiff requests prospective injunctive and declaratory relief only, is
not barred by the Eleventh Amendment.
7
As stated above, the plaintiff also demands an injunction requiring “Defendants to
reinstate Plaintiff to the House membership roll for the remainder of the 109th General
Assembly.” (Doc. No. 33, at 14.) The claims against the individuals responsible for maintenance
of the roll are barred by the statute of limitations, and it does not appear that the originally named
defendants in their official capacity have the authority to perform this task.
22
D.
Count II – Whether the Amended Complaint States a Colorable Claim under
42 U.S.C. § 1983 for the Deprivation of Due Process
Next, the defendants argue that the plaintiff fails to state a claim for which relief can be
granted under 42 U.S.C. § 1983 for violation of his right to due process.
Under the Fourteenth Amendment, “[n]o State shall . . . deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The due process
clause has both procedural and substantive components, EJS Props., LLC v. City of Toledo, 698
F.3d 845, 855 (6th Cir. 2012), but the court construes the Amended Complaint as intending to
state a claim for violation of the right to procedural due process.
“To establish a procedural due process claim, a plaintiff must show that (1) [he] had a
life, liberty, or property interest protected by the Due Process Clause; (2) [he] was deprived of
this protected interest; and (3) the state did not afford [him] adequate procedural rights.” Daily
Servs., LLC v. Valentino, 756 F.3d 893, 904 (6th Cir. 2014). A plaintiff can prevail if he
demonstrates either that he was deprived of a liberty or property interest as a result of an
“established state procedure” that itself violates procedural due process rights or that he was
deprived of a liberty or property interest “pursuant to a random and unauthorized act,” and
available state remedies would not adequately compensate him for the loss. Wedgewood Ltd.
P’ship I v. Twp. of Liberty, Ohio, 610 F.3d 340, 349–50 (6th Cir. 2010).
The defendants here argue that the plaintiff fails to state a due process claim, because (1)
the plaintiff cannot establish as a legal matter that he had a protected property interest in
“lifetime state benefits” and that, even if he could, (2) he has not shown that the available state
procedures for redressing the deprivation of those benefits are inadequate. (Doc. No. 36, at 14.)
The plaintiff contends that he had a protected property interest in the state benefits and that there
is no available state procedure to redress expulsion from the legislature.
23
1.
Legal Standards
a.
Protected Property Interest
Property interests protected by the Fourteenth Amendment “are created and their
dimensions are defined by existing rules or understandings that stem from an independent source
such as state law—rules or understandings that secure certain benefits and that support claims of
entitlement to those benefits.” Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir.
2006) (quoting Board of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)); see also
Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982) (“The hallmark of property . . . is an
individual entitlement grounded in state law, which cannot be removed except ‘for cause’. . . .”).
However, “[a]lthough the underlying substantive interest is created by an independent source
such as state law, federal constitutional law determines whether that interest rises to the level of a
legitimate claim of entitlement protected by the Due Process Clause.” Town of Castle Rock v.
Gonzales, 545 U.S. 748, 757 (2005) (internal quotation marks omitted). The Supreme Court has
explained that, “[t]o have a property interest in a benefit, a person clearly must have more than
an abstract need or desire for it. He must have more than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577. “A statute creates a
protected property interest when it ‘both confers [a] benefit and limits the discretion of the
[government] to rescind the benefit.’” Am. Premier Underwriters, Inc. v. Nat’l R.R. Passenger
Corp., 709 F.3d 584, 594 (6th Cir. 2013) (quoting Med Corp., Inc. v. City of Lima, 296 F.3d 404,
410 (6th Cir. 2002)); see Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (“[T]he interest of an
individual in continued receipt of [Social Security disability benefits] is a statutorily created
‘property’ interest protected by the Fifth Amendment.”); EJS Props., LLC v. City of Toledo, 698
F.3d 845, 856–57 (6th Cir. 2012) (no property interest if the government has the discretion to
24
rescind the benefit entirely).
b.
The Adequacy of State Procedures for Redress
Determining that the plaintiff has vested property interests is just the first step of the
required analysis. “[I]n order to state a procedural due process claim under section 1983 ‘the
plaintiff must attack the state’s corrective procedure as well as the substantive wrong.’” Nunn v.
Lynch, 113 F. App’x 55, 61 (6th Cir. 2004) (quoting Meyers v. City of Cincinnati, 934 F.2d 726,
731 (6th Cir. 1991)). “If satisfactory state procedures are provided in a procedural due process
case, then no constitutional deprivation has occurred despite the injury.” Jefferson v. Jefferson
Cty. Pub. Sch. Sys., 360 F.3d 583, 587–88 (6th Cir. 2004) (citations omitted). That is, the
absence of a state procedural remedy is an element of a plaintiff’s procedural due process claim
that must be pleaded and proved by the plaintiff. See id. at 588 (“The plaintiff must prove the
inadequacy of state remedies as an element of her constitutional tort.” (citations omitted); Farhat
v. Jopke, 370 F.3d 580, 597 (6th Cir. 2004) (“[Appellant] has failed to allege and prove the
inadequacy of state remedies, which failure is fatal to his procedural due process claim.”); Allen
v. Louisville City Police Dep’t, 972 F.2d 346 (6th Cir. 1992) (“Where a plaintiff alleges the
deprivation of a property or liberty interest without procedural due process of law, then the
plaintiff must plead that no adequate state remedies exist before we will consider the claim.”).
In short, to meet this burden, the plaintiff must allege and prove that (1) the state did not
have a remedy; (2) the state had a remedy but it was inadequate; or (3) the state had an “adequate
remedy in form, both procedurally and in damages, but the state did not apply it or misapplied its
remedy.” Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999) (citation omitted).
2.
The Alleged Deprivation of Vested State-Created Interests
The plaintiff alleges that he has a protected property interest in benefits accorded certain
25
state employees, specifically a lifetime health insurance benefit and retirement pension benefit.
Regarding these benefits, the Amended Complaint contains only the most cursory and
conclusory assertions, consisting, in their entirety, of the following:
Plaintiff Jeremy Durham brings this action to challenge the State of Tennessee’s
unconstitutional action inflicting punishment on him without a judicial trial and
depriving him of his protected property interests in his state benefits via an illicit
and unjustified expulsion from the Tennessee House of Representatives (the
“House”) on September 13, 2016.
(Doc. No. 33 ¶ 1.)
[The House expulsion vote violated] Article III, Section 9 of the Tennessee
Constitution . . . , and it resulted in the deprivation of Plaintiff’s protected
property interest in his state benefits, specifically his pension and insurance
benefits.
(Doc. No. 33 ¶ 4.)
After the expulsion vote, Plaintiff made an inquiry regarding the premiums on his
insurance coverage. On September 26, 2016, Plaintiff received a response from
Angie Gargaro from the State’s Benefits Administration Division. Ms. Gargaro
informed Plaintiff that his health insurance coverage would terminate on
September 30, 2016. She stated that Defendant Commissioner Martin, after
consultation with Defendant Attorney General Slattery, decided that Plaintiff was
not entitled to lifetime coverage benefits.
As the direct and proximate result of his improper and unauthorized expulsion,
Plaintiff has lost his lifetime health insurance benefits and pension and has been
so informed by the State’s Benefits Administration Division.
(Doc. No. 33 ¶¶ 18, 19; see also ¶¶ 60, 61.)
The House’s expulsion of Plaintiff was a legislative action that punished Plaintiff
by expelling him from office and taking away his vested health insurance and
pension benefits without a judicial trial.
(Doc. No. 33 ¶ 67.)
Plaintiff Durham had a protected property interest in his state benefits and was
denied due process through the deprivation of these benefits.
(Id. ¶ 74.)
26
Based on the plain language of Article III, Section 9 and the prior failed attempts
to call a special session for the specific purpose of expelling Durham, Plaintiff
had the reasonable understanding that he would retain his state benefits (lifetime
health insurance and a state pension) at the end of his term.
(Id. ¶ 75.)
The defendants argue that the plaintiff’s reasonable understanding that he would retain
his state benefits at the end of his term is not sufficient to create an entitlement to those benefits
and that the state statutes creating and defining the right to retirement and health insurance
benefits make clear that the plaintiff does not have a legitimate claim of entitlement to either
benefit. (Doc. No. 36, at 15.) They also argue that the plaintiff has not shown that the State’s
remedies for redressing the deprivation of these benefits was inadequate.
The court addresses the question of whether the Amended Complaint states a claim
related to the deprivation of the state health insurance benefit and the retirement benefit
separately, as the analysis pertaining to each differs substantially.
a.
Health Insurance Benefit
Did Plaintiff Have a Protected Property Interest?
Regarding the plaintiff’s claim that he was deprived of his entitlement to state-provided
health insurance, the defendants argue, first, that the plaintiff does not have a protected property
interest in a lifetime health insurance benefit, because the statute providing such a benefit does
not apply to his situation. That statute says, in relevant part:
Upon retirement from the general assembly, any senator or representative . . . may
elect to retain retiree health benefits by participating in the plan authorized by the
state insurance committee . . . .
Tenn. Code Ann. § 8-27-208(a)(1) (2015) (emphasis added).
The defendants maintain that the plaintiff did not “retire” from the General Assembly
and, therefore, is not eligible for health insurance benefits under this provision, based on the
27
ordinary and common definition of the term “retire.” He was, instead, expelled. (Doc. No. 36, at
19–20.) Consequently, they argue, Durham does not have a legitimate expectation of insurance
coverage under § 8-27-208 and no constitutionally protected property interest in such benefits.
The plaintiff responds that (1) defendant Ridley, who is responsible for all administrative
matters and member benefits for the General Assembly, publicly stated that the plaintiff would
keep his health benefits, even if he were expelled from the house, thus giving rise to a
“reasonable expectation” that he remained eligible for such benefits; (2) the defendants’
proposed interpretation of “retire” would lead to an absurd result, since it would mean that
representatives who lost re-election campaigns should not be eligible for coverage either, but
“there is no question that such individuals are still entitled to health insurance benefits” under §
8-27-208 (Doc. No. 40, at 12); and (3) if he had not been “unconstitutionally expelled,” he would
have effectively retired from the legislature, having decided not to run for re-election (id.).
The plaintiff’s first argument is unavailing. A statement by defendant Ridley cannot
create a binding property interest if it is in fact contradicted by state law, as indicated above. See
Logan, 455 U.S. at 430 (“The hallmark of property . . . is an individual entitlement grounded in
state law.”); see also Puckett v. Lexington-Fayette Urban Cty. Gov’t, 566 F. App’x 462, 468 (6th
Cir. 2014) (“[R]epresentations and customs may not create a property right where they are
contrary to an existing statute or regulation.”).
With his second argument, the plaintiff suggests that “retirement” has been extended to
apply to state legislators who lose re-election bids, meaning that they are entitled to keep their
health insurance, even though they do not “retire” from the legislature in the sense of leaving it
voluntarily. The plaintiff appears to argue that, because legislators in that situation are permitted
to keep their health insurance, the statute should extend to cover his situation as well. In other
28
words, he is suggesting that, even though he was expelled, he had a reasonable expectation that
he would keep his benefits, because expulsion is a form of retirement.8 The court notes that there
is actually no proof in the record regarding whether legislators who lose re-election bids are
permitted to keep their health insurance benefit. Even assuming that they are, however, there is
no obvious absurdity in treating a state representative who has been expelled from the General
Assembly differently from one who merely loses re-election. And as a matter of simple statutory
construction, the court finds that the term “retirement” does not encompass an involuntary
expulsion from the legislature. As the defendants argue, “retirement” is ordinarily defined as
“withdrawal from one’s position or occupation or from active working life,”9 and it implies a
voluntary action on the part of the person withdrawing. Conversely, “expel” is defined as “to
force to leave (a place, an organization, etc.) by official action[;] take away rights or privileges of
membership.”10 The terms are not remotely synonymous. Accord Brown v. Little, Brown & Co.,
168 N.E. 521, 526 (Mass. 1929) (“When . . . used [in the intransitive sense, retirement] means
voluntary withdrawal and not compulsory discharge. This is the c[o]nsensus of opinion among
lexicographers as to its signification. Often it carries the implication of recognition of honorable
service. It is the antithesis of enforced resignation. It is not synonymous with ‘expel,’ ‘remove,’
‘dismiss,’ or words of similar import.”); see also Jacobs v. N.J. Highway Auth., 255 A.2d 266,
268 (N.J. 1969) (“Retirement from employment has a connotation different from discharge. The
former ordinarily signifies voluntary withdrawal, the latter compulsory dismissal.”). It is clear
that, as a result of his expulsion, the plaintiff did not simply retire from the General Assembly,
and this comparison does not further his claim regarding the existence of a protected property
8
This argument is actually contrary to the plaintiff’s own interests. See Note 11, infra.
9
See https://www.merriam-webster.com/dictionary/retirement.
10
See https://www.merriam-webster.com/dictionary/expel.
29
interest.
Nonetheless, regarding the third argument, which is contrary to his second, Durham’s
position all along has been that his unconstitutional expulsion actually prevented his retirement
from the legislature and that the defendants’ determination that he was not entitled to health
insurance benefits resulted directly from his ouster. (See, e.g., Doc. No. 33 ¶ 19 (“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.”).) More specifically, he alleges that he was expelled without due process and for the
express purpose of preventing his “retirement” from the legislature in order to effect the
deprivation of his continued right to health insurance coverage. And the defendants actually do
not dispute that, if Durham had not been forcibly expelled from the legislature, his right to health
insurance would have continued unabated following the expiration of his second term in the
legislature. (See Doc. No. 36, at 1 (“As a result of this expulsion, Plaintiff is not entitled to
lifetime health insurance . . . benefits under state law.”).) In that sense, it was potentially a
property right created and protected by state statute that was not subject to arbitrary or unilateral
termination.
In addition, the plaintiff adequately alleges that his ouster from the state legislature was
in violation of his federal due process rights, given, in particular, that he was not provided
advance notice of the resolution to expel him and that the bringing of the motion violated the
procedure established by the state constitution, providing that special sessions are to deal only
with the purposes for which they are called. Accord Gerald v. La. State Senate, 408 So. 2d 426,
429 (La. Ct. App. 1981) (recognizing that the discipline and removal of a legislator was “within
the sole province of the body in which he serves as a member” and not subject to judicial review,
30
unless “the legislative body clearly violates some express constitutional requirement, such as the
requirement of due process mandated by Article XIV of the United States Constitution”); see
also McCarley v. Sanders, 309 F. Supp. 8, 11–12 (M.D. Ala. 1970) (vacating a state senator’s
expulsion from the Alabama State Senate based on the violation of his right to due process (but
without addressing the Eleventh Amendment), based on the lack of “adequate notice,” no formal
charges, and no hearing).
Thus, the court finds, for purposes of the Motion to Dismiss, that the plaintiff has
sufficiently alleged that he had a vested property interest in the state health insurance benefit.
Accord Jackson v. Roslyn Bd. of Educ., 652 F. Supp. 2d 332, 343 (E.D.N.Y. 2009) (“[I]n light of
statutory protections afforded to retirees of the State, the Court finds that Jackson has a
constitutionally protected property interest in health insurance benefits.”).
Were the State’s Remedies Inadequate?
But this answers only half the question. The second part of the inquiry is whether the
plaintiff adequately alleges that the State’s procedure for redressing the deprivation of his
protected property interest was inadequate. Regarding this question, the plaintiff alleges
generally that he was not provided with appropriate or meaningful notice or an opportunity to be
heard prior to the expulsion vote and that the State did not provide any post-expulsion process.
(Doc. No. 33 ¶¶ 3, 79.) He claims that, “as a direct and proximate result of his improper and
unauthorized expulsion, [he] lost his lifetime health insurance benefits.” (Id. ¶ 19).
The defendants argue that Tenn. Code Ann. § 8-27-102 authorizes an informal appeal
process for resolving disputes over health insurance plan eligibility and that the Uniform
Administrative Procedures Act (“APA”) authorizes an “affected person” to petition an agency
for a declaratory order as to the validity or applicability of a statute, rule or order within the
31
primary jurisdiction of the agency, such agency decision being subject to judicial review, Tenn.
Code Ann. §§ 4-5-322 through -325.
The plaintiff does not address these statutes but maintains that the defendants’ assertion
that post-deprivation remedies existed in his situation is misleading. Specifically, he claims that
there is no procedure for undoing his expulsion or reconvening another special session in order
to be reinstated. He also claims that there is no state or administrative procedure that would
“compensate Plaintiff for the deprivation of his benefits.” (Doc. No. 40, at 12–13.) Of course,
this court cannot order the state to compensate Durham for the deprivation of his benefits either.
That is precisely the type of retroactive monetary relief barred by the Eleventh Amendment. But
the plaintiff’s broader point is well taken. Section 8-27-102, cited by the defendants, provides
only for the administrative resolution of “disputes regarding eligibility and enrollment for the
plans and the benefit structure of the plans administered by those committees.” And the APA
itself, while providing for judicial review of an administrative decision, limits such review to the
“record” and confines relief to situations where the agency decision itself has prejudiced a
claimant’s rights
because the administrative findings, inferences, conclusions or decisions are:
(1) In violation of constitutional or statutory provisions;
(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)(A) Unsupported by evidence which is both substantial and material in the light
of the entire record.
Publix Super Markets, Inc. v. Tenn. Dep’t of Labor & Workforce Dev., 402 S.W.3d 218, 222
32
(Tenn. Ct. App. 2012) (quoting Tenn. Code Ann. § 4-5-322(h)(1)–(5)(A)). In other words, where
the administrative decision itself is reasonable, based on existing law, these statutes would not
provide relief. Here, the administrative decision to deny Durham health benefits because he did
not “retire” from the General Assembly, in all likelihood, would have been found to be a
reasonable interpretation of the applicable statutes.
Durham’s position is that it was the ouster itself, and not the defendants’ incorrect or
unreasonable interpretation of Tenn. Code Ann. § 8-27-208(a)(1), that led directly to the
deprivation of his protected property interest in his health benefits.11 In other words, precisely
because he did not “retire” from the legislature, and because the vote to expel him was made for
the express purpose of depriving him of the health insurance benefit, pursuing the administrative
procedures established by the APA would have been futile in his case. The Amended Complaint
adequately alleges that the state procedures would not have provided an avenue for reversing the
expulsion or reinstating the plaintiff to the General Assembly in order to render the plaintiff
eligible under the statute for continued health insurance coverage, and thus would not have been
adequate to protect his rights.
Based on this argument, the court finds that the Amended Complaint states a colorable
claim under § 1983, based on the deprivation of due process, which allegedly led to the
As indicated above, Durham’s Response to the Motion to Dismiss actually suggests that
defendant Ridley, at least, believed that expulsion should not result in the termination of the
plaintiff’s health insurance benefit and that “retirement” as used in Tenn. Code Ann. § 8-27208(a)(1) should extend to an expelled legislator, since the State has construed it to mean that
legislators who lose re-election bids can maintain their coverage. If that were the case, however,
then there would be no apparent reason why the plaintiff could not have brought an
administrative challenge to the denial of the benefit in his case, following the APA-prescribed
procedures. The court has found, however, that the statutory use of the term “retirement” cannot
reasonably be construed to encompass an expulsion. Consequently, it seems clear, at this
juncture at least, that the administrative decision itself—the denial of continued coverage
because the plaintiff had not “retired”—was reasonable based on existing law. As a result, the
APA would not have provided relief.
11
33
plaintiff’s being denied lifetime health insurance benefits in which he has sufficiently established
a vested property interest, for purposes of defeating a motion to dismiss.
b.
Retirement Benefit
The plaintiff’s factual allegations in the Amended Complaint regarding the alleged
deprivation of his right to a state retirement benefit are more amorphous than those pertaining to
the health insurance benefit. The plaintiff does not specifically allege that he made a claim for
these benefits. Instead, as indicated above, he asserts only that his expulsion from the legislature
per se “resulted in the deprivation of Plaintiff’s protected property interest in his . . . pension
[benefit].” (Doc. No. 33 ¶ 4; see also id. ¶¶ 19, 67.) Regarding this claim, the defendants argue,
first, that the plaintiff fails even to allege that he elected to participate in the Tennessee
Consolidated Retirement System (“TCRS”), that he applied for retirements benefits pursuant to
Tenn. Code Ann. § 8-36-202, or that his application was denied by any defendant or anyone else.
Second, they contend that, under the statutes creating and governing the TCRS, the plaintiff, a
“general employee” as defined by Tenn. Code Ann. § 8-34-101(18) and thus a member of
“Group 1,” Tenn. Code Ann. § 8-35-105(a)(1), never became eligible for retirement benefits
because he did not achieve the five years of creditable service required by Tenn. Code Ann. § 836-201(a)(1). In other words, the defendants’ position is that the plaintiff did not have a vested
property interest in retirement benefits and would not have had such a property interest, even if
he had continued to serve in the General Assembly until his term expired at the end of 2016,
because he still would not have had five years of creditable service as a state employee at that
point.12 They also argue that he has failed to allege that the state lacked an adequate remedy to
address the deprivation of any purported property interest.
12
A stated above, the plaintiff was first elected to the Tennessee General Assembly in
November 2012.
34
The court accepts, for purposes of the Motion to Dismiss, that the plaintiff has adequately
alleged that he elected to participate in the state retirement system. Otherwise, however, the
plaintiff’s factual allegations in support of this claim are utterly insufficient. He does not allege
that he ever made a claim for retirement benefits, that some particular statute operated to
terminate his retirement benefit as a result of his expulsion, or that the state lacked a procedure
for remedying the allegedly wrongful deprivation of a vested interest. On this basis alone, the
court finds that the Amended Complaint fails to state a colorable claim based on the alleged
deprivation of due process in connection with a vested interest in a state retirement benefit.
Even if the court accepts, for purposes of the motion to dismiss, that the Amended
Complaint adequately alleges that the plaintiff made a claim for benefits that was denied by the
defendants, he has not responded at all to the defendants’ argument that, under Tennessee law, he
did not have a vested interest in a state retirement benefit and, further, that his expulsion from the
legislature had no effect on his right to a state retirement benefit. Rather than addressing this
issue, the plaintiff asserts only that he had a “reasonable understanding,” based on “numerous
representations as well as long-standing custom and practice,” that “his time in the General
Assembly entitled him to these benefits.” (Doc. No. 40, at 10–11.) He claims that “[e]vidence
such as representations and customs may be used to determine whether a party has a legitimate
expectation to retirement benefits” and insists that he had “no reason to believe that he would not
be entitled to his benefits.” (Id.) Without providing a citation to any particular statute, he claims,
in a wholly conclusory fashion, that he “met the statutory eligibility requirements for retirement
benefits.” (Doc. No. 40, at 11.) As stated above, however, custom and representations alone are
not sufficient to create a protected property interest. Puckett, 566 F. App’x at 468. Instead, the
entitlement must be grounded in state law. Logan, 455 U.S. at 430. And the plaintiff simply fails
35
to address the applicable state law.
The code provision cited by the defendants states:
(1) Any member in Group 1 shall be one hundred percent (100%) vested in the
member’s service retirement benefit upon attainment of sixty (60) years of age or
upon completion of thirty (30) years of creditable service; provided, that any
member of Group 1 who became a member of the retirement system on or after
January 1, 1992, must have five (5) years of creditable service.
Tenn. Code Ann. § 8-36-201(a)(1). On its face, this provision appears to mean that, even if his
legislative term had simply expired at the end of 2016, the plaintiff’s retirement benefit would
not have vested 100%, because he would not have achieved five years of creditable service.13
However, in response to the defendants’ assertion that this provision pertains to the plaintiff and
establishes that he did not have a vested interest in retirement benefits, the plaintiff states only:
“Plaintiff met the statutory eligibility requirements for retirement benefits.” (Doc. No. 40, at 11.)
He does not suggest an alternative interpretation of the statute or attempt to explain why it might
not pertain to him.
The defendants, likewise, do not explain how § 8-36-201(a)(1) is construed by the TCRS
regulations, what it means to be less than 100% vested, or how § 8-36-201(a)(1) should be read
in conjunction with other parts of the statutory scheme, in particular § 8-36-204,14 but the court’s
13
The statute also provides that “[a] member shall be one hundred percent (100%) vested
in the member’s accumulated contributions at all times.” Tenn. Code Ann. § 8-36-201(h). In
addition, in the event “of a full or partial termination of, or a compete discontinuance of
employer contributions to, the plan, the accrued benefits of the affected members under the plan
shall be one hundred percent (100%) vested and nonforfeitable to the extent funded and to the
extent required by federal law.” Id. § 8-36-201(i). The court does not construe the Amended
Complaint as alleging that the plaintiff was deprived of his own contributions or accrued
employer contributions to the state retirement system.
14
Section 8-36-204 states in pertinent part:
(b) . . . (2) Notwithstanding this section or any other provision to the contrary, any
individual who is a Group 1 member of the retirement system on or after January 1, 1992,
must have, in addition to all other requirements for service or early service retirement, a
total of five (5) years of creditable service to qualify for retirement benefits . . . .
36
limited understanding of these provisions indicates that, regardless of whether the plaintiff had a
vested property interest in a retirement benefit, that interest was not affected by his expulsion
from the state legislature. If the language of § 8-34-201, upon which the defendants rely, indeed
requires five creditable years of service before an official’s right to a retirement benefit vests,
then the plaintiff’s interest had not yet vested at the time of his expulsion and would not have
vested even if he had not been expelled, because he would not have had five years of service
upon the expiration of his term in the General Assembly at the end of 2016. On the other hand, if
the language of § 8-34-204(c) applies instead, see Note 14, then state legislators may not have
been subject to any requirement pertaining to length of service in order for their retirement
benefits to vest. In that event, the plaintiff may have had a vested interest, but it was not affected
by his expulsion. In other words, the plaintiff’s expulsion had no apparent effect on his eligibility
for retirement benefits.
As indicated above, the plaintiff does not actually allege that he made a request or even
inquired about his retirement benefit. He also does not allege that the state remedy for addressing
an allegedly wrongful denial of the benefits was inadequate. Instead, he alleges only that there
was no post-deprivation remedy to address his expulsion from the General Assembly. However,
because his expulsion from the legislature apparently had no effect on his right to a retirement
benefit, that argument is beside the point. Instead, the relevant question is: what remedies were
available to Durham specifically pertaining to the purportedly wrongful denial of the state
retirement benefit under the statutory scheme (again assuming he made a request that was
actually denied).
The plaintiff does not allege that the State does not have any pre- or post-deprivation
(c) This provision shall not apply to members of the general assembly.
Tenn. Code Ann. § 8-36-204(b)(2)–(c).
37
remedy pertaining to the denial of the retirement benefit, that it has a remedy but not an adequate
one, or that an adequate remedy existed but it was misapplied in his case. Hahn, 190 F.3d on
716. The defendants, on the other hand, point out that state administrative rules specifically
provide that
[a]ny person who is aggrieved by an action or decision made within the discretion
or control of the TCRS, may appeal the action or decision to the director.
Grievances shall address the TCRS’s interpretations of the law and the validity
and applicability of the policies promulgated under the law as they apply to each
individual’s situation.
Tenn. Comp. R. & Regs. Ch. 1700-03-2-.03(1). The available procedure also encompasses
judicial review under the APA. See, e.g., Tenn. Code Ann. § 4-5-322 (providing for judicial
review in Chancery Court).15 The plaintiff does not allege that he attempted to avail himself of
this procedure or that it was inadequate.
In light of the language of the statute pertaining to the vesting of benefits and the statutes
and regulations creating a process for challenging the denial of benefits, the court does not accept
as true the plaintiff’s conclusory assertion that he was “afforded no post-deprivation remedy to
challenge [the] . . . deprivation of his state benefits.” (Doc. No. 33 ¶ 79.) Because the Amended
Complaint does not allege as a factual matter that the plaintiff availed himself of the statutory
remedy, that the remedy is inadequate in his case, or that the State misapplied the remedy, the
court finds on this basis too that the Amended Complaint fails to state a procedural due process
claim for which relief may be granted as it pertains to the purported deprivation of a state
retirement benefit.
IV.
Conclusion
For the reasons set forth herein, the defendants’ Motion to Dismiss will be granted in part
15
This code section was amended effective July 1, 2018, but both versions provide for
judicial review of administrative decisions.
38
and denied in part. The claims against the newly named defendants will be dismissed as barred
by the statute of limitations. Count I of the Amended Complaint will be dismissed, because the
House Resolution to expel the plaintiff was not a bill of attainder. Count II of the Amended
Complaint will be dismissed in part. The court finds that the plaintiff has failed to show that he
was deprived of a vested state interest in a state retirement benefit or that, even if he was, there
was no adequate state procedure to remedy the allegedly unconstitutional deprivation of that
benefit. However, he has stated a colorable due process claim related to the termination of his
state health insurance benefit. Count II of the Amended Complaint related to that deprivation
will be permitted to proceed.
An order consistent with this Memorandum is filed herewith.
____________________________________
ALETA A. TRAUGER
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?