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Durham v. Martin

United States District Court, M.D. Tennessee, Nashville Division

May 14, 2019

JEREMY R. DURHAM, Plaintiff,
LARRY MARTIN, in his official capacity, et al., Defendants.


          Aleta A. Trauger, United States District Judge.

         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 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 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 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 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”- 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 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).

         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 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 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:
(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.

         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 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 ...

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