American Federation of State, County, Municipal Employees Local 1733 et al v. City of Memphis

Filing 82

ORDER granting in part and denying in part the City's Motion to Dismiss for Failure to State a Claim; granting Wharton's Motion to Dismiss for Failure to State a Claim. Signed by Judge Samuel H. Mays, Jr on 3/26/2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

AMERICAN FEDERATION OF STATE,
COUNTY, MUNICIPAL EMPLOYEES
LOCAL 1733, et. al,

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

Plaintiffs,
v.
CITY OF MEMPHIS and A C
WHARTON, JR., in his
individual capacity,
Defendants.

No. 11-2577

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS

This action is brought against the City of Memphis (the
“City”)

and

City

Mayor

A

C

Wharton,

Jr.

(“Wharton”)

in

his

individual capacity (collectively, “Defendants”) by Plaintiffs
American Federation of State, County, Municipal Employees Local
1733; Communication Workers of America Local 3806; International
Association

of

Association

of

International

Fire

Fighters

Machinists

Brotherhood

and
of

Local
Aerospace

Electrical

1784;

International

Workers
Workers

Lodge
Local

3;
474;

International Union of Bricklayers and Allied Craftworkers Local
5; International Union of Operating Engineers Local 369; Memphis
Police

Association;

Operative

Plasterers

and

Cement

Masons

International Association Local 908; Painters and Allied Trades
Local

49;

Sprinkler

United
Fitters

Association
Local

of

Union

Plumbers,

No.

17;

Pipefitters

United

and

Brotherhood

of

Carpenters Local 345; United Union of Roofers, Waterproofers and
Allied
Essica

Workers

Local

Littlejohn,

115
in

(collectively,
her

the

individual

“Unions”);

capacity

and

and
as

representative for all others similarly situated (together with
the Unions, “Plaintiffs”).

(See Sec. Am. Supp. Compl., ECF No.

67) (the “Second Amended Supplemental Complaint.”)
Plaintiffs bring suit under 42 U.S.C. § 1983, alleging that
Defendants’
violated

unilateral

municipal

Fourteenth

implementation

employees’

Amendments

to

the

of

rights
United

a

wage

under

States

the

reduction
First

and

Constitution,

and

under § 5-4-13 of the City of Memphis Code of Ordinances (the
“Impasse Ordinance”).

Plaintiffs seek monetary, injunctive, and

declaratory relief.
On July 11, 2011, Plaintiffs filed the original complaint.
(Compl., ECF No. 1.)

Plaintiffs sought and obtained leave to

file an Amended Complaint.

(ECF No. 49.)

On February 14, 2012,

the City filed a motion to dismiss the Amended Complaint.

(Mot.

to

2012,

Dismiss

Plaintiffs
Complaint.

Am.

Compl.,

sought

and

ECF

No.

obtained

51.).

leave

to

On

March

file

a

Supplemental

(Mot. for Supp. Am. Compl., ECF No. 54.)

23, 2012, the Court granted Plaintiffs’ request.
2

19,

On March

(ECF No. 57.)

On March 26, 2012, Plaintiffs moved for leave to file the Second
Amended Supplemental Complaint.
No. 59.)

(Mot. for Sec. Am. Compl., ECF

At a scheduling conference on May 2, 2012, the Court

granted Plaintiffs’ motion for leave to file the Second Amended
Supplemental Complaint and denied all pending motions to dismiss
as

moot.

(ECF

No.

74.)

The

Second

Amended

Supplemental

Complaint was entered on May 4, 2012, and added Wharton as a
party.
Before

the

Court

are

Defendants’

Motions

to

Dismiss.

(City’s Mot. to Dismiss Sec. Am. Supp. Compl., ECF No. 75);
(City of Memphis’ Mem. in Supp. of Mot. to Dismiss, ECF No. 751) (“City’s Mem.”); (Wharton’s Mot. to Dismiss, ECF No. 76);
(Mem. in Supp. of Mayor A C Wharton, Jr.’s Mot. to Dismiss, ECF
No.

76-1)

(“Wharton’s

Mem.”).)

The

City

seeks

to

dismiss

Plaintiffs’ claims under the First and Fourteenth Amendments and
the Impasse Ordinance.
claims

against

him

immunity grounds.
on July 5, 2012.
(“Pls.’

in

Wharton seeks to dismiss Plaintiffs’
his

individual

capacity

on

qualified

Plaintiffs responded to Defendants’ Motions
(Resp. in Opp. to Mot. to Dismiss, ECF No. 78)

Resp.”).)

Defendants

replied

on

July

23,

2012.

(Wharton’s Rep. to Pls.’ Resp., ECF No. 79); (City’s Rep. to
Pls.’

Resp.,

ECF

No.

80.)

For

the

following

reasons,

Defendant’s Motions are GRANTED in part and DENIED in part.
I.

Background
3

The

Unions

represent

more

than

5,000

City

employees

collective bargaining negotiations with the City.
Supp. Compl.

¶¶

21-22.)

Plaintiffs

allege

in

(See Sec. Am.

that,

in

October

2010, the City notified Union leaders of its intent to negotiate
changes to the Memorandum of Understanding (“MOU”) governing the
City’s employment conditions with municipal employees.
36.)

The Unions and the City began negotiating in February 2011

and reached mutually agreeable terms in March 2011.
39.)

(Id. ¶

(Id. ¶¶ 37-

Plaintiffs allege that, after those terms had become the

final MOU on April 1, 2011, the City violated the MOU on June
27, 2011, by reducing wages, eliminating certain benefits, and
offering “buy out” packages to some employees.

(Id. ¶¶ 39-48.)

Plaintiffs

violated

allege

that

the

City’s

actions

their

constitutional rights and Section 5-4-13 of the City Ordinances.
(Id. ¶¶ 49-62.)
On

November

7,

1978,

City

voters

adopted

by

referendum

Ordinance No. 2766, which required the Memphis City Council to
“set

up

procedures

municipal

labor

for

arbitration

disputes.”

subsequently

adopted

the

arbitration

procedures

City and its employees.

if

(Id.

Impasse
“total
(Id.

of
¶¶

economic
31-32.)

Ordinance,
impasse”

¶ 31.)

which

occurs

issues
The

of
City

establishes
between

the

“Total impasse” is the

point during negotiations when “each party declares its last

4

position in economic matters to be final and each party declares
such position to be unacceptable, or the parties do not reach
agreement by midnight of the negotiations deadline.”

§ 5-4-

13(A)(1).
If total impasse lasts for seven days, § 5-4-13 directs
each party to submit its “last best offer” to a three-member
impasse resolution committee appointed by the City Council.
§

5-4-13(B)(1).

The

committee

investigates

each

Id.

party’s

proposal and recommends final MOU terms for consideration by the
City Council.

Id. § 5-4-13(B)(2)-(5).

The City Council can

adopt the committee’s recommendations in their entirety or hold
a hearing.

Id. § 5-4-13(6).

summarize its position.
allegedly

followed

Each party is given an hour to

Id.

these

The Unions and the City have

procedures

since

1978

and

have

negotiated MOUs that “control the terms and conditions of the
employees represented by the Unions.”

(Sec. Am. Supp. Compl. ¶

35.)
Defendants

purportedly

violated

its

employees’

First

Amendment petition rights by failing to present the MOU’s final
economic

proposals

to

Reducing

workers’

salaries

procedures

in

§

the

5-4-13

opportunity to seek redress.
that

the

Impasse

Ordinance

City

Council.

without
allegedly

following
denied

(Id. ¶ 52.)
specifies
5

that,

¶

53-54.)

the

impasse

(Id.

Plaintiffs

the

Plaintiffs contend
if

there

is

no

impasse before the final day of negotiations, a deal is reached
and the terms agreed between the Unions and the City constitute
the final MOU.
Plaintiffs
Fourteenth

(Id. at ¶ 51-52.)
allege

Amendment

that

the

rights

City

by

violated

unilaterally

its

employees’

reducing

the

compensation and benefits of its employees in violation of the
economic terms of the MOU.

(Id. ¶ 52.)

Plaintiffs assert that

City employees have a “legitimate claim of entitlement to []
economic terms determined pursuant to the [I]mpasse [O]rdinance
and documented in the [MOU].”

(Id. ¶ 58.)

Plaintiffs allege

that the MOU prohibited wage adjustments for one year.
57.)

They

allege

that

the

City

violated

their

due

(Id. ¶
process

rights when it reduced wages before the one-year deadline.

(Id.

¶ 59.)
Plaintiffs

allege

that

conditions of the MOU.

the

City

(Id. ¶ 61.)

violated

the

terms

and

They seek a declaratory

judgment that the City has violated the Impasse Ordinance.
II.

Jurisdiction

The Court has subject matter jurisdiction under 28 U.S.C. §
1331

because

Plaintiffs’

under 42 U.S.C. § 1983.

Complaint

raises

federal

questions

The City disputes jurisdiction.

It

argues that the Second Amended Supplemental Complaint asserts no
cognizable claims under the First or Fourteenth Amendments, and
without

those

claims,

there
6

is

no

basis

for

federal

jurisdiction.
horse.

The

The

Second

constitutional
Amendments,

City’s

Amended

violations

which

is

argument

puts

the

Supplemental

under

“sufficient

the
to

cart

before

Complaint

First
invoke

jurisdiction pursuant to 28 U.S.C. § 1331.”

and

the

alleges

Fourteenth

federal

question

Janis v. Ashcroft,

348 F.3d 491, 493 (6th Cir. 2003); (see also Sec. Am. Supp.
Compl. ¶¶ 49-59.)
The

Court

The Court has jurisdiction.

has

supplemental

jurisdiction

over

Plaintiffs’

claim for declaratory relief because it derives from the same
“common

nucleus

of

operative

fact”

as

Plaintiffs’

federal

claims.

See 28 U.S.C. § 1367(c); United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 725 (1966).
III. Standard of Review
In addressing a motion to dismiss for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6), the court
must construe the complaint in the light most favorable to the
plaintiff and accept all well-pled factual allegations as true.
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523,
527

(6th

Cir.

2007).

A

plaintiff

can

support

a

claim

“by

showing any set of facts consistent with the allegations in the
complaint.”
(2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563

This standard requires more than bare assertions of

legal conclusions.

Bovee v. Coopers & Lybrand C.P.A., 272 F.3d

356, 361 (6th Cir. 2001).

“[A] formulaic recitation of the
7

elements of a cause of action will not do.”
at 555.

Twombly, 550 U.S.

Any claim for relief must contain “a short and plain

statement of the claim showing that the pleader is entitled to
relief.”
curiam).

Erickson

v.

Pardus,

551

U.S.

89,

93

(2007)

(per

“Specific facts are not necessary; the statement need

only ‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.’”

Id. (quoting Twombly,

550 U.S. at 555).
Nonetheless, a complaint must contain sufficient facts “to
‘state a claim to relief that is plausible on its face’” to
survive a motion to dismiss.

Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570).
plausibility

standard

is

not

akin

to

a

“The

‘probability

requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.”
U.S. at 556).
of

action,

Id. (citing Twombly, 550

“Threadbare recitals of the elements of a cause

supported

by

mere

conclusory

statements,

do

not

suffice.”

Id. at 1949 (citation omitted).

A plaintiff with no

facts

“armed

conclusions”

and

with

nothing

more

Analysis

The

City

cannot

Id. at 1950.

“unlock the doors of discovery.”
IV.

than

argues

that:

1)

Plaintiffs

do

not

assert

cognizable claims under 42 U.S.C. § 1983 for violations of the
First and Fourteenth Amendments; (2) the Court lacks subject8

matter jurisdiction; and (3) Plaintiffs have failed to state a
claim under § 5-4-13 of the Code of Ordinances because the MOU
entered into by the Unions and the City is unenforceable under
Tennessee law.
Wharton argues that he has qualified immunity.
A. § 1983 Claims
“Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States . . .
to

the

deprivation

of

any

rights,

privileges,

or

immunities

secured by the Constitution and laws . . . shall be liable to
the party injured in an action at law, suit in equity, or other
proper proceeding to redress.”
The

City

alleges

that

42 U.S.C. § 1983.
the

“Impasse

Ordinance

is

not

a

federal right, privilege, or immunity” and that Plaintiffs’ §
1983 claims under the First and Fourteenth Amendments must be
dismissed for failure to state a claim.

(Def.’s Mem. 3.)

1. The First Amendment
“Congress shall make no law respecting . . . the right of
the people . . . to petition the Government for a redress of
grievances.”
debates
Petition
their

on

U.S. Const. amend. I.
the

Clause

will’

First
was

through

Amendment,
drafted
direct

so

James

Madison

“people

petitions
9

During the Congressional

to

said

‘[could]
the

that

the

communicate

legislature

and

government officials.”

McDonald v. Smith, 472 U.S. 479, 482

(1985) (citing 1 Annals of Cong. 738 (1789)).

Implicit in “the

very idea of [republican] government,” protected petitions are
“assurance[s] of a particular freedom of expression” whose roots
“antedate

the

Constitution.”

Id.

(quoting

United

States

v.

Cruikshank, 92 U.S. 542, 552 (1876)).
Petition

Clause

challenges

are

analyzed

within

the

same

framework as claims arising under the First Amendment’s Speech
Clause.
776,

See Campbell v. PMI Food Equip. Group, Inc., 509 F.3d

789

(6th

Cir.

2007).

Only

petitions

trigger

First

Holzemer v. City of Memphis, 621 F.3d

Amendment protections.
512, 521 (6th Cir. 2010).

To state a valid cause of action, the

threshold inquiry is “‘whether the plaintiffs’ conduct deserves
constitutional protection.’”

Id.

“[W]hen one files a ‘petition’ one is addressing government
and asking government to fix what, allegedly, government has
broken or has failed in its duty to repair.”

Id. (quoting

Foraker v. Chaffinch, 501 F.3d 231 (3d Cir. 2007), overruled on
other grounds by Borough of Duryea v. Guarnieri, 131 S. Ct.
2488,

2491

(2011)).

Petitions

Government” are protected.

Id.

to

“all

departments

of

the

Formal petitions are defined by

their invocation of an official mechanism of redress.

10

See id.

Plaintiffs

allege

that

the

procedures

in

the

Impasse

Ordnance, under which the parties negotiated the MOU, are formal
mechanisms of redress to the Memphis City Council.
Supp. Compl. ¶¶ 50-51.)
cease

because

of

(Sec. Am.

If, upon total impasse, negotiations

material

differences

in

the

parties’

final

economic proposals, the City Council is required to accept the
economic

terms

parties.

proposed

(Id. ¶ 51.)

either proposal.”

by

at

least

one

of

the

negotiating

“The Council cannot modify the terms of

(Id. ¶ 51.)

The gravamen of Plaintiffs’ First Amendment claim is that
Defendants’

actions

were

calculated

maneuvers

to

avoid

total

impasse, which limited the breadth and depth of review before
the

City

Council.

Plaintiffs

base

their

allegations

on

Defendants’ representations that negotiations had successfully
concluded and that wages would not be reduced, which Plaintiffs
claim induced their reasonable reliance.

(Id. ¶ 35, 52.)

The procedures established in the Impasse Ordinance are a
protected form of speech.
letters

to

the

“The Supreme Court has found informal

President,

a

protest

including

placards

and

singing, and a publicity campaign ‘ostensibly directed toward
influencing

government

petitioning activity.”
omitted);

see

also

action’

to

constitute

protected

Holzemer, 621 F.3d at 521 (citations

McDonald,

472

11

U.S.

at

485;

Eastern

R.

Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S.
127, 144 (1961); United Mine Workers v. Pennington, 381 U.S.
657,

670

(1965)

(the

Petition

Clause

protects

effort to influence public officials.”).

“a

concerted

Plaintiffs have also

alleged that Defendants deprived them of the procedures under
the

Impasse

Ordinance.

Plaintiffs’

allegations

“give

the

defendant fair notice of what the . . . claim is and the grounds
upon which it rests.”

Twombly, 550 U.S. at 555.

A well-pled action, however, must also state a claim to
relief that is plausible on its face.
1949.

Iqbal, 129 S. Ct. at

Defendants argue that Plaintiffs’ First Amendment claim

fails because the First Amendment does not encompass the redress
of grievances in a specific manner or guarantee the adequacy of
an established mechanism of redress.

Plaintiffs argue that they

do not rely on the inadequacy of the Impasse Ordinance, but
rather

on

actions

that

prevented

the

Impasse

Ordinance

from

functioning as it was designed.
The Petition Clause protects the communication of “direct
petitions

to

the

legislature

and

government

officials.”

McDonald, 472 U.S. at 482 (internal citation and quotation marks
omitted).

A public employee “surely can associate, and speak

freely and petition openly, and he is protected by the First
Amendment.”

Minn. State Bd. of Comm. Colleges. v. Knight, 465

12

U.S. 271, 313 (1984) (citing Pickering v. Board of Education,
391 U.S. 563, 574-75 (1968)).

The Petition Clause prohibits the

government

“a

certain

from

forms

implementing
of

advocacy”

prohibition

“imposing

or

general

sanctions

expression of particular views it opposes.”

to

ignores

Petition
that

is

person

not
[or

“infringed
group]

while

when

for

the

Smith v. Arkansas

State Highway Employees, 441 U.S. 463, 464 (1979).
Right

against

However, the

government

listening

to

simply

others.”

Knight, 465 U.S. at 315.
The

Impasse

entirety,

Ordinance’s

establish

a

procedures,

system

for

considered

negotiating

and

in

their

resolving

employment terms between the City and labor organizations.

The

Unions and the City successfully negotiated an MOU under the
Impasse

Ordinance,

but

the

inconsistent with the MOU.

City

Council

adopted

a

budget

Plaintiffs argue they were denied

access to the Impasse Ordinance’s procedures, but the facts pled
do not establish that the Impasse Ordinance’s procedures were
implicated.

Total impasse triggers review by the City Council

in the manner sought, see § 5-4-13(B), but total impasse was not
declared.

Nothing in the Impasse Ordinance provides that its

procedures must be followed in the absence of total impasse.
The Petition Clause does not guarantee a “formal mechanism of
redress”

if

never occur.

the

procedures

triggering

that

formal

mechanism

Cf. Smith, 441 U.S. at 464-466 (the Arkansas State
13

Highway

Commission’s

refusal

to

consider

employee

grievances

when filed by the union rather than the employee did not violate
the Petition Clause).
The Unions and the City employees had the right and the
opportunity
process.
greater

to

petition

the

City

Council

during

the

budget

“When government makes general policy, it is under no
constitutional

obligation

to

listen

to

any

specially

affected class than it is to listen to the public at large.”
Knight, 465 U.S. at 287.

When the City and the Unions executed

the MOU and it was presented to the City Council, Plaintiffs
were entitled to open access to the City Council’s proceedings
just as “the public at large.”

The City Council was under no

obligation to listen to or agree with those who petitioned.

Id.

at 315.
Plaintiffs
distinguishable
Defendants rely.

argue
from

those

that

these

addressed

in

circumstances
the

cases

on

are
which

Plaintiffs argue that Smith and Knight are

inapposite because they addressed statutory schemes functioning
as intended, rather than actions like the Defendants’, which
allegedly were undertaken to circumvent the Impasse Ordinance.
(Pls.’ Resp 13) (“None of those cases arose in the context of a
governmental

entity

affirmatively

14

preventing

parties

from

seeking

redress

through

procedures

specifically

tailored

for

that purpose.”)
As

a

threshold

matter,

Plaintiffs’

consistent with their allegations.

argument

is

not

Plaintiffs allege that: (1)

the parties negotiated and executed the MOU in March and April
2011; (2) Defendants subsequently proposed a budget that did not
incorporate the MOU; and (3) the City Council adopted a budget
that

incorporated

employees.
all

of

a

4.6%

pay

reduction

for

all

(Sec. Am. Supp. Compl. ¶¶ 38-44.)

Plaintiffs’

allegations

as

true

municipal

Even accepting

and

resolving

all

inferences in their favor, it is impossible to conclude that
Defendants

“affirmatively”

prevented

Plaintiffs

redress under the Impasse Ordinance.
establish

that,

circumstances

at

some

changed

point

such

the

seeking

Plaintiffs’ allegations

between

that

from

April

MOU’s

and

June

economic

were not incorporated into the proposed budget.

2011,

proposals

That does not

mean that Defendants “affirmatively” prevented Plaintiffs from
using the Impasse Ordinance or petitioning the City Council.
Even

if

Plaintiffs’

arguments

Smith and Knight would apply.

and

allegations

aligned,

Smith addressed whether a public

employees’ union’s First Amendment rights were violated when the
public

employer

required

employees’

grievances

to

be

filed

directly with the employer and refused to consider the union’s

15

communications.

441 U.S. at 464-66.

Knight addressed a state

law that gave a union exclusive bargaining rights with the state
to the exclusion of individuals who refused to join the union.
See 465 U.S. at 274.

In each case, the Supreme Court declined

to find a constitutional violation, reasoning that, because the
government had neither implemented general prohibitions on nor
imposed
interest

sanctions
in

for

petitioning,

legislative

the

discretion

government’s

took

precedence

individual’s preferred method of petitioning.
at 464; see also Knight, 465 U.S. at 287.

strong
over

an

Smith, 441 U.S.
Plaintiffs’ claim

that Defendants’ actions prevented the Impasse Ordinance from
functioning as intended is subordinate to the City Council’s
budgetary

priorities.

priorities,

Plaintiffs

When
had

the

and

Council

exercised

established
the

those

opportunity

to

petition the Council.
Plaintiffs also attempt to distinguish cases focusing on
time and place restrictions under the First Amendment, and not
the Petition Clause specifically.
that

First

Amendment

claims

The Sixth Circuit has stated

under

the

analyzed within the Free Speech framework.
at 789.

Petition

Clause

are

Campbell, 509 F.3d

Thus, although addressing different dimensions of the

First Amendment, the legal framework is the same.

16

Plaintiffs allege that impasse was never invoked because
they

“reasonably

relied

on

the

City’s

execution

of

the

Memoranda, as well as the provisions of the impasse ordinance,
to accept the negotiations as successfully concluded.”
Am. Supp. Compl. ¶ 45.)

(Sec.

Plaintiffs’ claim is implausible.

The

First Amendment “protects the right of an individual to . . .
petition his government for redress of grievances.”
U.S. at 286 (citing Smith, 441 U.S. at 464).
infringed that right.
Plaintiffs allege.

Knight, 465

The City has not

The Petition Clause does not function as

Although they were unable to use the Impasse

Ordinance, they were not precluded from petitioning the City
Council to challenge the City’s budget measures.

Plaintiffs’

First Amendment claim is DISMISSED.
2. The Fourteenth Amendment
The

City

argues

that:

(1)

Plaintiffs

do

not

have

a

protectible property interest in the economic terms of the MOU;
(2) the adoption of the 2011-2012 budget did not violate the
City’s ordinances; and (3) Plaintiffs were afforded due process.
The Fourteenth Amendment states that “no . . . State . . .
shall deprive any person of life, liberty, or property, without
due process of law.”

U.S. CONST. amend. XIV, § 1.

interests are not created by the Constitution.

“Property

Rather, they are

created and their dimensions are defined by existing rules or

17

understandings that stem from an independent source[,] such as
state law . . . rules or understandings that secure certain
benefits

and

benefits.”

that

support

claims

of

entitlement

to

those

Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972);

accord Aldridge v. City of Memphis, 404 F. App’x 29, 34-35 (6th
Cir. 2010).

The independent source may be a statute, policy,

practice, regulation, or guideline.
555, 564 (6th Cir. 1991).
not

be

a

formal

[]

Woolsey v. Hunt, 932 F.2d

“The rules and understandings need

system

or

even

an

explicit

contractual

provision,” but agreements implied from the defendants’ words
and conduct in light of the surrounding circumstances.

Id.; see

also Aldridge, 404 F. App’x at 34-35 (“Such independent sources
include

state

statutes

and

regulations,

explicit

contractual

guarantees, or even “agreements implied from ‘the [defendants’]
words and conduct in the light of the surrounding circumstances
.

.

.

.’”)

(1972)).

(quoting

If

the

employee

cannot

interest

possesses

employer
process.”

Perry

v.
is

Sinderman,
recognized

a

property

deprive

the

interest

employee

408
by

of

U.S.

state
which

without

593,
law,
the

providing

602
“the

state
due

Lisle v. Metro Gov’t of Nashville, 73 F. App’x 782,

785 (6th Cir. 2003).
Plaintiffs

allege

that

the

Impasse

Ordinance

creates

a

property interest violated by the 4.6% reduction in employee
salaries.

Plaintiffs’ claim “hinges on whether anything in
18

Tennessee

statute,

common

law,

or

regulation

creates

[a

property] interest[,]” or whether the surrounding circumstances
highlight

policies,

property rights.

practices,

or

understandings

that

create

See Aldridge, 404 F. App’x at 35 (quoting

Lisle, 73 F. App’x at 785); see also Woolsey, 932 F.2d at 564.
Tennessee

law

specifically

permits

bargaining only for transit workers.
56-101.

Tennessee

has

no

municipal

collective

See Tenn. Code. Ann. § 7-

general

statutory

provision

authorizing municipalities to engage in collective bargaining.
See Kraemer v. Luttrell, 189 F. App’x 361, 365 (6th Cir. 2006);
see also Fulenweider v. Firefighters Ass’n Local Union 1784, et
al., 649 S.W.2d 268, 270 (Tenn. 1982).

Since Weakley Cnty. Mun.

Elec.

800-05

1957),

Sys.

v.

held

Vick,

that

Tennessee

courts

permitted

by

309

S.W.2d

collective
have

noted

municipal

792,

agreements
that

charters.

were

labor
See

(Tenn.

Ct.

App.

unenforceable,

agreements
Simerly

v.

may

be

City

of

Elizabethton, No. E2009-01694-COA-R3-CV, 2011 Tenn. App. LEXIS
1,

*31-32

(Tenn.

Ct.

App.,

Jan.

5,

2011)

(“[A]

municipality

cannot enter into an enforceable collective bargaining agreement
with its employees absent some express authority granted by a
municipal charter or state statute.”) (emphasis added).
“A property interest in employment can [] be created by
ordinance.”

Bishop v. Wood, 426 U.S. 341, 344-45 (1976).

19

The

Memphis City Council passed the Impasse Ordinance after the City
Charter had been amended to permit collective bargaining.
Sec.

Am.

Supp.

Compl.

¶¶

30-31.)

The

City

and

the

(See
Unions

allegedly negotiated the MOU under the Impasse Ordinance.
¶ 37.)

(Id.

Plaintiffs contend that the MOU included benefits,

salaries, wages, and other forms of compensation.

(Id. ¶ 38.)

Those terms were to remain unchanged “during their effective
period[,]” and the parties were permitted to reopen negotiations
after one year to negotiate wages.

(Id.)

Before the one-year

period expired, the City reduced employees’ wages by 4.6% and
eliminated death benefits paid to families of active and retired
employees.
favorable

(Id. ¶ 40.)
to

the

Accepting those facts in the light most

Plaintiffs,

Plaintiffs

“possess

a

property

interest [that the City] cannot deprive . . . without providing
due process.”
The

Lisle, 73 F. App’x at 785.

dimensions

of

property

rights

informal “understandings” and practices.

may

followed

the

procedures

defined

by

See Roth, 408 U.S. at

577; see also Woolsey, 932 F.2d at 564.
“have

be

established

Plaintiffs claim to
by

the

[I]mpasse

[O]rdinance to negotiate the [MOU] that control[s] the terms and
conditions of the employees represented by the Unions.”
¶ 34.)

20

(Comp.

Plaintiffs’ claim must be plausible.

The City contends

that Plaintiff’s claim is implausible because any MOU executed
before the adoption of a budget is contrary to the City Charter
and therefore ultra vires.
by

and

through

Wharton,

In other words, although the City,
mutually

agreed

with

the

Unions

on

economic and non-economic terms, Wharton lacked authority under
the City Charter to bind the City to the economic terms in the
MOU.

Consequently, the City argues that the Court need not

decide

whether

the

non-economic

provisions

of

the

MOU

are

enforceable collective bargaining agreements.
Central

to

the

City’s

argument

is

Tennessee’s

characterization of the balance between municipal charters and
ordinances.
charter
limiting

is

“It is well settled in Tennessee that a municipal
mandatory,

the

actions

follow the charter.”

taking
of

precedence

the

over

municipality’s

ordinances

agents,

who

and
must

Fox v. Miles, 164 S.W.3d 593, 598 (Tenn.

Ct. App. 2004); see also City of Lebanon v. Baird, 756 S.W.2d
236, 241 (Tenn. 1998) (“The charter is the organic law of the
municipality to which all its actions are subordinate.”).
Under
disbursement
excess

of

the
of
that

City
funds

Charter,
shall

provided

in

operations or capital fund.”

“all

be

contracts

limited

the

in

an

appropriate

requiring
amount
budget,

not

the
in

either

Charter of the City of Memphis No.

21

1852 § 14.

The Mayor prepares and submits proposed budgets to

“the Council, which shall approve or amend any and all said
budgets prior to the adoption of a tax rate as now provided, and
said

budgets

as

approved

established budgets.”

or

as

amended

shall

be

the

duly

Id. § 12.

Relying on those provisions and Allmand v. Pavletic, 292
S.W.3d

618

(Tenn.

2009),

Defendants

argue

that

the

economic

terms of the MOU are ultra vires and unenforceable because they
exceeded the Mayor’s authority.

Stated differently, because the

wage provision in the MOU was greater than the amount provided
in the final budget, the MOU is unenforceable, and Plaintiffs
have no protectable property interest.
In

Allmand,

the

Tennessee

Supreme

Court

stated

that

a

municipal action may be declared ultra vires because “the action
was wholly outside the scope of the city’s authority under its
charter

or

undertaken

a

statute,

consistent

charter or a statute.”

or
with

.

.
the

.

because
mandatory

the

action

was

not

provisions

of

its

292 S.W.3d at 626 (citation omitted).

A

municipality acts legally when “(1) the power is granted in the
‘express words’ of the statue, private act, or charter creating
the

municipal

corporation;

(2)

the

power

is

‘necessarily

or

fairly implied in, or incidental to the powers granted’; or (3)
the power is one that is neither expressly granted nor fairly

22

implied

from

the

express

grants

of

power,

but

is

otherwise

implied ‘as essential to the declared objects and purposes of
the corporation.’”

Id. at 627 (quoting Arnwine v. Union Cnty.

Bd. of Educ., 120 S.W.3d 804, 807-08 (Tenn. 2003)).
Section 14 of the City Charter expressly provides “that the
power to contract . . . shall remain with the Mayor,” subject to
financial constraints in the final budget.

Section 12 requires

the Mayor to prepare and submit a budget to the City Council.
Charter of the City of Memphis No. 1852 § 12.

The Mayor’s

authority

implied

to

contract

is

“necessarily

or

fairly

in”

Ordinance No. 2766, which provides that the City Council must
establish

“procedures

for

municipal labor disputes.”

arbitration

or

economic

issues

of

Those procedures were established in

the Impasse Ordinance.
Plaintiffs allege that the parties negotiated and executed
the MOU under the Impasse Ordinance, an exercise that has been
undertaken for at least three decades.
35.)

(Sec. Am. Supp. Compl. ¶

Wharton was ultimately responsible for negotiating the MOU

and preparing the budget.

The MOU is not ultra vires because,

at a minimum, Wharton’s power to negotiate was “necessarily or
fairly implied” from his statutory duty to prepare a budget.

“A

property interest in employment can [] be created by ordinance.”
Bishop, 426 U.S. at 344-34.

If long-term financial obligations

23

were not included in a final budget, from salaries to leases to
bond indebtedness, those obligations would be “in excess” of the
budget and void.

Under Defendants’ logic, individuals would

have

interest

no

property

in

those

long-term

obligations,

meaning that due process claims related to the negotiation of
public contracts would effectively be foreclosed.
The

law

not

interests

property

does

allow

can

that

arise

from

conclusion.
many

Protectible

sources,

from

formal

agreements and statutes to more ephemeral sources like words,
understandings
F.2d at 564.

and

circumstantial

conduct.

See

Woolsey,

932

Plaintiffs’ due process claim is anchored in the

concrete and the ephemeral.
B.

It is plausible.

Section 5-4-13

Defendants argue that Tennessee law forbids employees and
unions
respond

from

engaging

that

Memphis

explicitly

permitted

Plaintiffs

seek

municipal

a

salaries

in
is

collective
a

“Home

collective

declaration
violated

bargaining.

Rule”

jurisdiction

bargaining
that

the

the

express

Plaintiffs

under

City’s
terms

that
§

5-4-13.

reduction
of

§

has

of

5-4-13.

Plaintiffs have stated a valid cause of action.
Article XI, Section 9 of the Constitution of the State of
Tennessee provides, in relevant part:

24

Any municipality may by ordinance submit to its
qualified voters in a general or special election the
question: "Shall this municipality adopt home rule?"
In the event of an affirmative vote by a majority of
the qualified voters voting thereon, and until the
repeal
thereof
by
the
same
procedure,
such
municipality shall be a home rule municipality, and
the General Assembly shall act with respect to such
home rule municipality only by laws which are general
in terms and effect.
Any municipality after adopting home rule may continue
to operate under its existing charter, or amend the
same, or adopt and thereafter amend a new charter to
provide for its governmental and proprietary powers,
duties and functions, and for the form, structure,
personnel and organization of its government, provided
that no charter provision except with respect to
compensation of municipal personnel shall be effective
if inconsistent with any general act of the General
Assembly and provided further that the power of
taxation of such municipality shall not be enlarged or
increased except by general act of the General
Assembly. The General Assembly shall by general law
provide the exclusive methods by which municipalities
may be created, merged, consolidated and dissolved and
by which municipal boundaries may be altered.
Tenn Const., Art. XI, Sec. 9.

Adopted in 1953 to “strengthen

local self-government,” the Home Rule Amendment vested control
of local affairs in local government to the “maximum permissible
extent.”
728-29

Civil Service Merit Bd. v. Burson, 816 S.W.2d 725,

(Tenn.

1991);

Farris

v.

Blanton,

528

S.W.2d

549,

551

(Tenn. 1975).
The City of Memphis is a Home Rule jurisdiction.

Citizens

of the City voted to adopt Home Rule by passing Ordinance No.
1852 in a referendum election on November 8, 1966.

25

The effect

of

the

City’s

referendum

was

“to

fundamentally

change

the

relationship between the General Assembly and these types of
municipalities,

because

such

entities

now

derive

their

power

from sources other than the prerogative of the legislature.”

S.

Constructors, Inc. v. Loudon Cnty. Bd. Of Educ., 58 S.W.3d 706,
714

(Tenn.

2001).

Under

its

Home

Rule

authority,

the

City

amended its Charter in 1978 to reflect that “the people of the
City

of

Memphis

desire

that

all

negotiation

of

employment

agreements between the City . . . and its employees be conducted
in

a

spirit

of

good

faith

and

with

the

intent

to

equitable agreement in a reasonable period of time.”
31.)

reach

an

(Compl. ¶

The City does not dispute that Memphis is a Home Rule

jurisdiction

or

that

the

1978

Charter

amendment

permits

collective bargaining.
The City argues that Home Rule is not dispositive.

It

contends that, absent some express authority, local governments
lack the power to enter into collective bargaining agreements.
Fulenweider, 649 S.W.2d at 279.

The City submits that Tennessee

law does not expressly permit collective bargaining, see Weakley
Cnty.,

309

S.W.2d

at

800-05,

and

that

Tennessee

courts

have

uniformly invalidated collective bargaining agreements between
local governments and labor organizations.

See Fulenweider, 649

S.W.2d at 270; Simerly, 2011 Tenn. App. LEXIS 1, at *31-32;
Local Union 760 of the IBEW v. City of Harriman, No. E200026

00367-COA-R3-CV, 2000 Tenn. App. LEXIS 792, at *1-2 (Tenn. Ct.
App.

Dec.

8,

2000).

The

Sixth

Circuit

has

recognized

Tennessee’s strong public policy against collective bargaining.
See Kraemer v. Luttrell, 189 F. App’x at 364 (the plaintiff “had
no

right

to

file

municipalities

a

cannot

grievance
enter

under

into

the

MOU

enforceable

because

collective

bargaining agreements under Tennessee law.”); see also Aldridge
v. City of Memphis, 2009 U.S. Dist. LEXIS 36106, at *13 (W.D.
Tenn. Apr. 28, 2009) (“[A] municipality cannot enter into an
enforceable collective bargaining agreement with its employees
absent some express authority granted by a municipal charter or
state statute.”).
Although the City is correct that no Tennessee authorities
have upheld collective bargaining agreements, the issue before
the Court is one of first impression.

The authorities on which

the City relies do not address counties and municipalities that
have expressly permitted collective bargaining under Home Rule
authority.

See Kraemer, 189 F. App’x at 365 (Shelby County had

not permitted collective bargaining under Home Rule); see also
Simerly,

2011

Tenn.

App.

LEXIS

1,

at

*31-32

(municipal

ordinances did not expressly permit collective bargaining).
City’s

1978

amendment

to

its

Charter

permits

bargaining between the City and its employees.

The

collective

(Compl. ¶ 31.)

The 1978 amendment is “express authority granted by a municipal
27

charter.”

See Aldridge, 2009 U.S. Dist. LEXIS 36106, at *13.

This is not a case in which the Court finds “nothing in the
Charter [] that either expressly or impliedly grants the City
[], . . . the power to engage in collective bargaining or to
enter into a collective bargaining agreement.”

Local Union 760

of the IBEW, 2000 Tenn. App. LEXIS 792, at *1-2.

Plaintiffs

have pled a cognizable claim.
C.

Quantum Meruit and Promissory Estoppel

In their March 23, 2012 Response, Plaintiffs argue that
Defendants

are

liable

and/or

quantum

meruit.

quantum

meruit

claims

under

theories

Plaintiffs’
do

Supplemental Complaint.

not

of

promissory

promissory

appear

in

the

estoppel

estoppel

Second

and

Amended

Indeed, they do not appear in any of

the pleadings before the Court.
Rule 8 of the Federal Rules of Civil Procedure states the
general rules for pleadings.

See Fed. R. Civ. P. 8(a)(2) (“A

pleading that states a claim for relief must contain . . . a
short and plain statement of the claim showing that the pleader
is entitled to relief.”).

Rule 7 provides an exclusive list of

documents that qualify as pleadings.

See Fed. R. Civ. P. 7(a).

Legal memoranda are not included on that list.
“Under

the

well-settled

doctrine

of

inclusio

unius,

exclusion alterius, the listing of some things implies that all
28

things not included in the list were purposefully excluded.”
Burns v. Lawther, 53 F.3d 1237, 1241 (11th Cir. 1995) (citation
omitted)); cf. United States v. Booth, 551 F.3d 535, 540 (6th
Cir. 2009) (“[T]he canon of construction expressio unius est
exclusio alterius, mean[s] the expression of one thing implies
the

exclusion

of

another

thing”)

(citation

and

internal

quotation marks omitted).

Because Plaintiffs have used legal

memoranda

pleadings

rather

than

the

listed

in

Rule

7(a)

to

introduce theories of quantum meruit and promissory estoppel,
those claims are not properly before the Court.

A memorandum

supporting a motion is not a “pleading” for purposes of Rule
7(a).

See, e.g., Lockert v. Faulkner, 574 F. Supp. 606, 609 n.3

(N.D. Ind. 1983) (“[A] memorandum in support of a motion is not
a ‘pleading’ for purposes of a binding judicial admission.”);
see also Miller v. Brown & Williamson Tobacco Corp., 679 F.
Supp.

485,

memorandum

487
nor

pleadings”).
quantum

(E.D.
any

Pa.

filed

1988)

or

(“[N]either

unfiled

the

supplements

pretrial

to

it

are

Insofar as Plaintiffs seek to pursue claims of

meruit

and

promissory

estoppel,

those

claims

are

DISMISSED.
D.

Qualified Immunity

Plaintiffs
capacity.

bring

suit

against

Wharton

in

his

individual

(Sec. Am. Supp. Compl. 2) (“Come now the Plaintiffs,

29

and

hereby

against

file

.

.

capacity.”)
against

.

their

Second

Mayor

A

C

Amended

Supplemental

Wharton,

Jr.

in

his

Complaint
individual

As a threshold matter, Plaintiffs do not bring suit

Wharton

in

his

official

capacity.

A

suit

against

Wharton in his official capacity would be a suit against the
City.
446

See Hanner v. City of Dearborn Heights, 450 F. App’x 440,

(6th

Cir.

2011)

(“Any

claim

against

the

Mayor

in

his

official capacity is simply a claim against the City . . .
itself.”).

For

Plaintiffs

to

state

an

independent

cause

of

action against Wharton, they must allege that he acted in his
individual capacity.
Wharton argues that he is entitled to qualified immunity
for

actions

immunity

taken

exists

discretionary
for

civil

in
so

his

individiual

capacity.

Qualified

that

“government

officials

performing

functions

damages

generally

insofar

as

are

their

shielded
conduct

from

does

liability

not

violate

clearly established statutory or constitutional rights of which
a reasonable person would have known.”
457

U.S.

800,

818

(1982)

(internal

Harlow v. Fitzgerald,
citations

omitted).

Qualified immunity is an “immunity from suit rather than a mere
defense

to

liability;

and

like

an

absolute

immunity

it

is

effectively lost if a case is erroneously permitted to go to
trial.”
(citation

Marvin v. Taylor, 509 F.3d 234, 243 (6th Cir. 2007)
and

internal

quotation
30

marks

omitted).

The

Sixth

Circuit presumes that qualified immunity applies.

See Chappell

v.

Cir.

City

of

Cleveland,

585

F.3d

901,

907

(6th

2009).

Plaintiffs bear the burden of showing that a defendant is not
entitled to qualified immunity.

Id.

The “requisites of a qualified immunity defense must be
considered in proper sequence.”
200 (2001).
favorable

to

Saucier v. Katz, 533 U.S. 194,

The threshold question is, taken “in the light most
the

party

asserting

the

injury,

do

the

facts

alleged show the [official’s] conduct violated a constitutional
right?”

Id. at 201 (citing Siegert v. Gilley, 500 U.S. 226, 232

(1991)).

“In the course of determining whether a constitutional

right was violated on the premises alleged, a court might find
it necessary to set forth principles which will become the basis
for

a

holding

that

a

right

is

clearly

established.”

Id.

Whether a right is clearly established is determined “in light
of

the

specific

context

of

the

case,

not

a

broad

general

proposition; and it too serves to advance understanding of the
law and to allow [officials] to avoid the burden of trial if
qualified immunity is applicable.”

Id.

The dispositive inquiry

“is whether it would be clear to a reasonable [official] that
his conduct was unlawful in the situation he confronted.”

Id.

at 202; see also DePiero v. City of Macedonia, 180 F.3d 770,
785-86 (6th Cir. 1999) (“[G]overnment officials acting in their
official

capacities

are

protected
31

from

being

sued

in

their

individual

capacities

for

damages

if

their

actions

did

not

violate clearly established statutory or constitutional rights
of which a reasonable person would have known.”) (citation and
quotation marks omitted).
1. The First Amendment
To the extent Plaintiffs assert a Petition Clause violation
against

Wharton,

the

inquiries

case

established,

concerning

for

there

qualified

a

Plaintiffs’

If no constitutional right is “violated [according

further

a

that

violation.

allegations

out

decided

do

the

make

has

allegations

to]

not

Court

is

constitutional

no

necessity

immunity.”

Katz,

for
533

U.S. at 201.
2.
The

Court

Fourteenth
whether

The Fourteenth Amendment
has

decided

Amendment

a

violation.

reasonable

executing

an

MOU,

that

pled

a

immunity

turns

on

have

known

that,

in

process

rights

would

be

Qualified

official

Plaintiffs’

Plaintiffs

would
due

have

violated if the terms of the MOU were not incorporated into the
budget.
Plaintiffs
responsible

argue

for

that

executing

Wharton,

as

contracts

on

the

public

behalf

of

official
the

City,

agreed to the economic terms of the MOU, which “avoided having
to

fight

the

Unions

through

the
32

impasse

procedure.”

(Pls.’

Resp.
Second

11.)

Plaintiffs’

Amended

argument

Supplemental

tracks

allegations

Complaint,

which

in

states

the
that

Defendants, by “unilaterally proposing and implementing [a 4.6%
reduction in pay] in conflict with the economic terms mutually
agreed pursuant to the impasse ordinance, . . . deprived its
employees of a property interest without due process.”

(Sec.

Am. Supp. Compl. ¶ 59.)
Plaintiffs’

briefs

elaborate

on

the

allegations.

Plaintiffs argue that, when the MOU was executed, Wharton “was
deliberately considering action to repudiate the agreed terms in
the [MOU], but his representatives assured the Unions that there
would be no changes in pay or benefits.”

(Pls.’ Resp. 11-12.)

The repudiation was Wharton’s presentation of “a budget that
specifically eliminated funding for the economic terms to which
[Wharton] had just agreed.”
of

deliberate

Complaint.

conduct

in

Plaintiffs’

(Id. 12.)
the
due

There are no allegations

Second
process

Amended

Supplemental

allegation

rests

on

Wharton’s simple “fail[ure] to disclose during negotiations that
[the City] would implement a 4.6% reduction in pay.”

(Sec. Am.

Supp. Compl. ¶ 59.)
Plaintiffs base their claim on representations made during
labor negotiations.
61-64,

ECF

No.

(See Mar. 25, 2011 Labor Negotiations Tr.

44-1)

(“Labor

Negotiations

33

Tr.”)

Plaintiffs

argue that the Court can rely on the March 25, 2011 transcript
(the “March 25, 2011 Transcript”) because it is a public record.
They

contend

that

the

transcript

confirms

“the

Unions’

allegations that the Mayor’s budget proposal reduced employee
pay by 4.6%.”

(Pls.’ Resp. 7.)

“[A]s a general rule, matters outside the pleadings may not
be considered in ruling on a 12(b)(6) motion to dismiss unless
the motion is converted to one for summary judgment under Fed.
R. Civ. P. 56.”

Jackson v. City of Columbus, 194 F.3d 737, 745

(6th Cir. 1999) (citation omitted), overruled on other grounds
by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 n.2 (2002).
As an exception to the general rule, courts may “consider public
records, matters of which a court may take judicial notice, and
letter decisions of governmental agencies.”

Id. (citing Nieman

v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)); see also
Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008)
(“A court may consider public records without converting a Rule
12(b)(6) motion into a Rule 56 motion.”).
Negotiations

and

local

governments are open to the public under Tennessee law.

Tenn.

Code

Ann.

§

between

8-44-201

labor

organizations

(“[L]abor

negotiations

between

representatives of public employee unions or associations and
representatives of a state or local governmental entity shall be

34

open to the public.”).
public

records.

The

Transcripts of public proceedings are
Court

may

consider

the

March

25,

2011

Transcript

must

Transcript.
To

help

establish

Plaintiffs,

that

Wharton

the
should

violated the Constitution.
right

violated

must

March

be

25,

have

2011

known

that

his

actions

See DePiero, 180 F.3d 785-86.
clearly

established

in

a

The

fairly

“particularized . . . sense: the contours of the right must be
sufficiently clear that a reasonable official would understand
that

what

he

is

doing

violates

that

Creighton, 483 U.S. 635, 640 (1987).
on

the

presence

of

identical

right.”

Anderson

v.

The analysis does not turn

issues

or

facts

that

have

“previously been held unlawful,” but the unlawfulness of the
challenged actions must be apparent “in light of pre-existing
law.”

Anderson, 483 U.S. at 640; see also Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2083 (2011) (“We do not require a case directly
on point, but existing precedent must have placed the statutory
or constitutional question beyond debate.”)
The qualified immunity test is a “fair warning” standard.
Hope v. Pelzer, 536 U.S. 730, 741 (2002); see also United States
v. Bunke, 412 F. App’x 760, 764 (6th Cir. 2011) (“When assessing
whether

a

defendant

had

notice

that

his

conduct

violated

established constitutional law, the salient question . . . is

35

whether the state of the law [at the time of the violation] gave
[the defendant] fair warning that [his] alleged treatment of
[the plaintiff] was unconstitutional.”) (internal citation and
quotation marks omitted).

The Sixth Circuit has explained that

a plaintiff has “two paths for showing that [officials were] on
notice

that

they

constitutional

were

violating

right—where

the

a

‘clearly

violation

was

established’
sufficiently

obvious under the general standards of constitutional care that
the plaintiff need not show a body of materially similar case
law . . . and where the violation is shown by the failure to
adhere

to

a

particularized

governs the case here.”
579

(6th

Cir.

2005);

body

of

precedent

that

squarely

Lyons v. City of Xenia, 417 F.3d 565,
see

also

Stoudemire

v.

Mich.

Dep’t

of

Corr., No. 11-1588, 2013 U.S. App. LEXIS 2159, at *14 (6th Cir.
Jan. 31, 2013).
The parties have not provided, and the Court has not found,
materially
whether

similar

Plaintiffs

case
can

law

governing

overcome

the

these

issues.

presumption

of

Thus,

qualified

immunity depends on whether the unreasonableness of Wharton’s
actions “was sufficiently obvious under the general standards of
constitutional care that the plaintiff need not show a body of
materially similar case law.”

Lyons, 417 F.3d at 579.

36

Plaintiffs rely on the incongruity between representations
made during the March 25 negotiations and the budget proposed by
Wharton and adopted by the City Council.
portions

of

the

March

25,

2011

Plaintiffs argue that

Transcript

capture

Wharton’s

alleged violation of clearly established law:
City Representative: Effective July 1st, 2011, through
June 30th, 2012, the current wage rates of employees
covered by the [proposed MOU] will be increased by
zero percent.
Effective July 1st, 2012 through June
30th, 2013, by February 1st, 2012, either party must
request to reopen the wage article for negotiations.
The negotiations will be conducted in accordance with
the impasse ordinance
For the record, zero means zero.
decrease. It doesn’t mean increase.

It

doesn’t

mean

Looking into the future comments were made on the – on
the City’s side.
There’s nothing in this proposal
that – in other words, there’s not – we’re not – the
City is not trying to pull the wool over your eyes.
This means there’s no proposed decreases, there’s no
proposed increases for those in the Memphis Police
Services Association.
Union Representative: It means that the wage rates
that are set forth in the 2008 to 2010 MOU will remain
the same for the next year. Is that correct?
City Representative: Yes.
Until renegotiated next
year on a date that – now, it does say – there is one
thing different. It says that either side has to ask
for them to be open. Y’all are free to talk about it.
. . .
So once y’all ask for them to be open, the City will
come back to the table with the Memphis Police
Association and negotiate any new wages beginning July
1st of 2012.
(Mar. 25, 2011 Transcript 61-62.)

Under Plaintiffs’ theory,

Wharton proposed a budget that included a wage reduction and
37

that circumvented the Impasse Ordinance.

Plaintiffs argue that

Wharton’s proposal rises to the level of a clearly established
constitutional violation.
The

March

25,

2011

Transcript

and

the

Second

Amended

Supplemental Complaint do not show that Wharton’s alleged role
in wage reductions violated general standards of constitutional
care.

Plaintiffs rely on rules or understandings that govern

labor negotiations, but that reliance rests on a general legal
principle.
interest,

Plaintiffs’ identification of a protectible property
considered

in

isolation,

Anderson, 483 U.S. at 640.
allegedly

engaged

must

is

insufficient.

See

The type of conduct in which Wharton
be

shown

to

have

violated

general

constitutional provisions “with obvious clarity to the specific
conduct in question.”

Pelzer, 536 U.S. at 741.

There is no obvious clarity in this case.

Not only is the

enforceability of the MOU at issue, Simerly, 2011 Tenn. App.
LEXIS

1,

at

*31-32,

but

Wharton

acted

negotiator of municipal labor agreements.

in

his

capacity

as

Three months after

the execution of the MOU, a salary reduction was adopted.

The

Sixth

are

Circuit

afforded
concerns.
F.3d

197,

has

concluded

considerable

that

discretion

government
in

officials

resolving

budgetary

Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs., 641
217

(6th

Cir.

2011)

(budgetary

priorities

are

“discretionary, policymaking decision[s]” that have far-reaching
38

consequences).

The reasons for that discretion are obvious: the

adoption and implementation of a budget require officials to
impose

sacrifices

and

weigh

Constitutionalizing

municipal

personal

in

liability

compromise

the

discretion.

the

ability

competing

budgetary

matters

circumstances

of

interests.
by

presented

decision-makers

to

permitting
here

would

exercise

their

“Public officials are not liable for bad guesses in

gray areas; they are liable for transgressing bright lines.”
Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992); see
also Colbert v. City of Toledo, No. 3:07-CV-493, 2010 U.S. Dist.
LEXIS 13268, at *6 (N.D. Ohio Feb. 16, 2010).

Wharton did not

transgress

is

bright

constitutional

lines.

He

entitled

to

qualified immunity.
3.
Wharton

is

Section 5-4-13
also

entitled

to

qualified

Plaintiffs’ claims under the Impasse Ordinance.
is

enforceable

impression.

under

Tennessee

law

is

from

Whether the MOU

an

issue

Plaintiffs have admitted as much.

154:18-19, ECF No. 42.)

immunity

of

first

(See Hr’g Tr.

An unsettled issue of first impression

is not clearly established law.
V.

Conclusion

For the foregoing reasons, the City’s Motion to Dismiss is
GRANTED

IN

PART

and

Dismiss

Plaintiffs’

DENIED
First

IN

PART.

Amendment
39

The
claim

City’s
is

Motion

GRANTED.

to
The

City’s Motion to Dismiss Plaintiffs’ claims under the Fourteenth
Amendment and § 5-4-13 is DENIED.

Wharton’s Motion to Dismiss

Plaintiffs’ claims against him in his individual capacity is
GRANTED.
So ordered this 26th day of March, 2013.

/s Samuel H. Mays, Jr._______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

40