Roderick McDavis v. Metropolitan Government of Nashville and Davidson County

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 15, 2005 Session

RODERICK McDAVIS v. METROPOLITAN GOVERNMENT OF

NASHVILLE AND DAVIDSON COUNTY

Appeal from the Chancery Court for Davidson County

No. 02-3294-I Claudia Bonnyman, Chancellor

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

A Metropolitan Nashville police officer seeks judicial review of the Final Order of the Civil Service

Commission of Metropolitan Government pursuant to Tennessee Code Annotated section 4-5-322

following his termination from Metropolitan Government service. After reviewing the record, the

Chancery Court of Davidson County determined that the decision of the Civil Service Commission

was not arbitrary and capricious and was supported by substantial and material evidence. The

judgment of the Chancellor is affirmed.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which FRANK G. CLEMENT , JR., J. and

DONALD P. HARRIS, SR. J., joined.

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

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

and Davidson County.

MEMORANDUM OPINION1

Roderick McDavis (“Officer McDavis”) was a Metropolitan Nashville police officer on April

26, 2001. He, along with two other officers, Steve Bumpus and John Bourque, responded to a report

1

Tenn. R. Ct. App. 10 states:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify

the actions of the trial court by memorandum opinion when a formal opinion would have no

precedential value. W hen a case is decided by memorandum opinion it shall be designated

“MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any

reason in any unrelated case.

of criminal activity to find one Antwain Hockett (“Mr. Hockett”) present. A confrontation occurred

between Officer McDavis and Mr. Hockett during which Officer McDavis drew his service weapon

from his holster, grabbed Mr. Hockett by the throat and pushed him to the ground pointing the

weapon at his face and making a comment, the exact nature of which was disputed before the

Commission. After other police officers intervened and freed Mr. Hockett, Officer McDavis

reholstered his weapon and returned to his patrol car. Shortly thereafter McDavis placed Mr.

Hockett under arrest for several offenses including assault. The commissioner refused to issue an

assault warrant against Mr. Hockett, and Officers Bumpus and Bourque reported the entire incident

to their supervisor. On May 2, 2001, Mr. Hockett also filed a complaint, and these complaints

resulted in a disciplinary board hearing on June 14, 2001. Officer McDavis was found guilty of the

charges, and his employment was terminated. He appealed to the Civil Service Commission of

Metropolitan Nashville and Davidson County. On February 8, 2002, a hearing was held before

Administrative Law Judge Randall LeFevor after which Judge LeFevor found Officer McDavis to

have violated specified general orders of the Metropolitan Police Department and Tennessee

Criminal Statutes and upheld the termination of Officer McDavis. After Judge LeFevor denied his

Petition for Reconsideration, McDavis appealed to the Civil Service Commission, which reviewed

the matter on September 10, 2002. On October 17, 2002, the chairman of the Civil Service

Commission issued a Final Order upholding Judge LeFevor’s decision to terminate Officer McDavis.

The matter was timely appealed to the chancery court in Nashville and, upon review of the

administrative record, Chancellor Claudia Bonneyman held that Officer McDavis had not been

treated arbitrarily and capriciously and that the action of the Civil Service Commission was

supported by substantial and material evidence. Officer McDavis filed a timely appeal to this Court.

Appellant does not question the factual findings upon which his termination was based, but

limits his appeal before this Court to the severity of the sanction imposed upon him. The single issue

asserted is:

Whether the Chancellor erred by failing to find that the Civil Service Commission’s

Administrative Decision to approve the termination of Roderick McDavis was

arbitrary and capricious and an unwarranted exercise of discretion because of the

disparity of punishment between Officer McDavis and other equally situated Police

Officers.

The limited scope of review available before the judiciary in review of the decision of an

administrative tribunal is statutorily mandated and well settled:

Tenn.Code Ann. § 4-5-322(h) states that upon judicial review of an agency’s

findings

(h) The court may affirm the decision of the agency or remand the case for

further proceedings. The court may reverse or modify the decision if the

rights of the petitioner have been prejudiced because the administrative

findings, inferences, conclusions or decisions are:

(1) In violation of constitutional or statutory provisions;

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(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion; or

(5) Unsupported by evidence which is both substantial and material in the

light of the entire record.

In determining the substantiality of evidence, the court shall take into

account whatever in the record fairly detracts from its weight, but the

court shall not substitute its judgment for that of the agency as to the

weight of the evidence on questions of fact.

“Substantial and material evidence” has been defined as “ ‘such relevant

evidence as a reasonable mind might accept to support a rational conclusion and such

as to furnish a reasonably sound basis for the action under consideration.’ ” Clay

County Manor, Inc. v. State of Tennessee, 849 S.W.2d 755, 759 (Tenn.1993)

(quoting Southern Railway Co. v. State Board of Equalization, 682 S.W.2d 196, 199

(Tenn.1984)).

This Court’s review of the trial court’s decision is essentially a determination

of whether or not the trial court properly applied the foregoing standard of review.

James R. Bryant v. Tennessee State Board of Accountancy, No. 01A01-9303-CH-

00088, 1993 WL 330987, Davidson County (Tenn.Ct.App. Filed September 1, 1993

at Nashville) (citing Metropolitan Gov’t. Of Nashville v. Shacklett, 554 S.W.2d 601,

604 (Tenn.1977)).

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

Since the sole issue before this Court is the severity of the sanctions imposed upon Officer

McDavis in a case in which the controlling facts are not disputed, the standard of appellate review

is even more restricted.

The leading case relative to the standard of judicial review of sanctions

imposed by an administrative agency is Butz v. Glover Livestock Commission Co.,

411 U.S. 182, 36 L.Ed.2d 142, 93 S.Ct. 1455 (1973). The Court declares:

The applicable standard of judicial review in such cases

required review of the Secretary’s order according to the

“fundamental principle . . . that where Congress has entrusted an

administrative agency with the responsibility of selecting the means

of achieving the statutory policy ‘the relation of remedy to policy is

peculiarly a matter for administrative competence.’ ” American

Power Co. v. SEC, 329 U.S. 90, 112 (1946). Thus, the Secretary’s

choice of sanction was not to be overturned unless the Court of

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Appeals might find it ‘unwarranted in law or . . . without justification

in fact . . . .” Id., at 112-113; Phelps Dodge Corp. v. NLRB, 313 U.S.

177, 194 (1941); Moog Industries, Inc. v. FTC, 355 U.S. 411, 413-

414 (1958); FTC v. Universal-Rundle Corp., 387 U.S. 244, 250

(1967); 4 K. Davis, Administrative Law § 30.10, pp 250-251 (1958).

The Court of Appeals acknowledged this definition of the permissible

scope of judicial review but apparently regarded respondent’s

suspension as “unwarranted in law” or “without justification in fact.”

We cannot agree that the Secretary’s action can be faulted in either

respect on this record.

We read the Court of Appeals’ opinion to suggest that the

sanction was “unwarranted in law” because “uniformity of sanctions

for similar violations” is somehow mandated by the Act. We search

in vain for that requirement in the statute. The Secretary may suspend

“for a reasonable specified period” any registrant who has violated

any provision of the Act. 7 U.S.C. § 204. Nothing whatever in that

provision confines its application to cases of “intentional and flagrant

conduct” or denies its application in cases of negligent or careless

violations. Rather, the breadth of the grant of authority to impose the

sanction strongly implies a congressional purpose to permit the

Secretary to impose it to deter repeated violations of the Act, whether

intentional or negligent. Hyatt v. United States, 276 F.2d 308, 313

(CA10, 1960); G.H. Miller & Co. v. United States, 260 F.2d 286

(CA7, 1958); In re Silver, 21 Agric. Dec. 1438, 1452 (1962). The

employment of a sanction within the authority of an administrative

agency is thus not rendered invalid in a particular case because it is

more severe than sanctions imposed in other cases. FCC v. WOKO,

329 U.S. 223, 227-228 (1946); FTC v. Universal-Rundle Corp., 387

U.S., at 250, 251; G.H. Miller & Co. v. United States, supra, at 296;

Hiller v. SEC, 429 F.2d 856, 858-859 (CA2, 1970); Dlugash v. SEC,

373 F.2d 107, 110 (CA2, 1967); Kent v. Hardin, 425 F.2d 1346, 1349

(CA5, 1970).

Moreover, the Court of Appeals may have been in error in

acting on the premise that the Secretary’s practice was to impose

suspensions only in cases of “intentional and flagrant conduct.” The

Secretary’s practice, rather, apparently is to employ that sanction as

in his judgment best serves to deter violations and achieve the

objectives of that statute. Congress plainly intended in its broad grant

to give the Secretary that breadth of discretion. Therefore, mere

unevenness in the application of the sanction does not render its

application in a particular case “unwarranted in law.”

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

Mosley v. Tennessee Dept. of Comm. and Ins., No. M2003-01998-COA-R3-CV, 2004 WL 2663667

(Tenn.Ct.App. Nov. 22, 2004) (perm. app. denied May 9, 2005).

Following the lead of Butz, both the Supreme Court of Tennessee and the Sixth Circuit Court

of Appeals have asserted the same rule.

As noted by the learned Chancellor: “[t]he appropriate remedy is peculiarly

within the discretion of the [agency] . . .” Having found grounds to affirm the

procedures employed, facts found, and conclusions reached, we will not interfere

with the sanctions imposed upon Dr. McClellan. We remand for the appropriate

imposition of those sanctions and tax the costs of this appeal to Dr. McClellan.

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

In reversing the United States District Court for the Middle District of Tennessee, the United

States Court of Appeals for the Sixth Circuit held:

Determination of a sanction to be applied by an administrative agency, if

within bounds of its lawful authority, is subject to very limited judicial review.

Kulkin v. Bergland, 626 F.2d 181, 184 (1st Cir. 1980). “ ‘The relations of remedy

to policy is peculiarly a matter of administrative competence.’ ” Butz v. Glover

Livestock Commission Co., 411 U.S. 182, 185, 93 S.Ct. 1455, 1458, 36 L.Ed.2d 142

(1973) (quoting American Power Co. v. S.E.C., 329 U.S. 90, 112, 67 S.Ct. 133, 146,

91 L.Ed. 103 (1946)). The reviewing court’s function is only to “determine the

validity of the questioned administrative action,” not to review the sanctions. Martin

v. United States, 459 F.2d at 302; G.H. Miller & Co. v. United States, 260 F.2d 286,

296 (7th Cir. 1958) (en banc) cert. denied, 359 U.S. 907, 79 S.Ct. 582, 3 L.Ed.2d 572

(1959).

While the de novo provision of the Food Stamp Act raises certain problems, it does

not, in our view, call for a departure from the usual standard of review concerning

sanctions.

Kulkin v. Bergland at 184; see also Broad Street Food Market, Inc. v. United

States, 720 F.2d 217 at 220 (1st Cir. 1983). Once the trial court confirmed that there

were repeated violations of the law and regulations as determined by appellant, “the

court’s only reasoning task is to examine the sanction imposed in light of the

administrative record to judge whether the agency properly applied the regulations,

i.e., whether the sanction is ‘unwarranted in law . . . or without justification in fact.

. . .’ ” See Butz v. Glover Livestock Commission Co., 411 U.S. 182, 185-189, 93

S.Ct. 1455, 1457-1459, 36 L.Ed.2d 142 (1973), cited in Broad Street Food Market,

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supra, at 220. We agree with the First Circuit’s rationale in this respect. Cf. Cross

v. United States, 512 F.2d 1212, 1218 (4th Cir. 1975) (en banc). See also the incisive

dissent by Russel, J., in the latter case at 1222; Wolf v. United States, 662 F.2d 676,

678 (10th Cir. 1981).

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

For any of the infractions charged in the complaints before the Civil Service Commission,

the available punitive measures included termination. The trial court adopted in summary the

findings of the administrative law judge, and these findings are not disputed by Appellant. The final

order of the court states:

Mr. Roderick B. McDavis (Officer McDavis) was employed by the

Metropolitan Nashville Police Department for approximately six years. On April 26,

2001, Officer McDavis and several other officers responded to a report of criminal

activity and followed up by performing field interviews and warrant checks of several

individuals. One of the individuals interviewed was Antwain Hockett (Mr. Hockett),

who was well known to the police due to his lengthy criminal record. Officer

McDavis was eager to assist in the investigation of a recent drive-by shooting in the

area, and he believed that Mr. Hockett might have had information about the crime.

Officer McDavis questioned Mr. Hockett and in reply to one of his questions, Mr.

Hockett responded to the effect that he “would rather shoot a grown man than a

child.”

Officer McDavis then drew his service weapon from his holster and

conspicuously completed a “press-check” of his weapon within Mr. Hockett’s view

and while pointing the weapon in the direction of two other officers. Officer

McDavis then rushed toward Mr. Hockett and grabbed him by his throat, pushed him

backwards, which caused Mr. Hockett to fall over a short concrete wall. Officer

McDavis straddled Mr. Hockett on the ground and while he pointed his pistol at Mr.

Hockett’s face, he yelled at him “do you want a piece of me? Do you want to shoot

me?” Two other officers moved toward Mr. Hockett and Officer McDavis and

interrupted to the incident. [sic] The two officers reported this incident to their

supervisor.

Shortly [after] this incident, Officer McDavis arrested Mr. Hockett and put

him in the back of his patrol car. He prepared an affidavit in support of his request

for an assault warrant. The affidavit contained false and misleading statements. The

commissioner refused to issue an assault warrant against Mr. Hockett, but Officer

McDavis failed to indicate this refusal in his “Arrest Report.” He also used the same

false and misleading statements in both his “Arrest Report” and his “Use of Force

Report.”

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At his departmental-level hearing, Officer McDavis admitted that he prepared

these documents to cover up his mistakes. Officer McDavis also made other

statements at the hearing that lacked credibility. Officer McDavis either lost self-

control or deliberately attacked Mr. Hockett. His testimony suggests that he does not

appreciate the gravity of his behavior. A supervisor of Officer McDavis testified that

she had received numerous complaints regarding Officer McDavis and counseled

him about those complaints. Officer McDavis’ disciplinary history includes two

suspensions and a written reprimand.

Antwain Hockett is described by Officer Michael J. Robinson, one of the officers present on

the scene on April 26, 2001, as being a “local thug” who between the years 1998 and 2000 had been

arrested over 100 times for offenses ranging from aggravated burglary to assault, trespass, drug

trafficking and evading arrest. It must be frustrating indeed for a front-line police officer to be

confronted during an investigation with the sight of such a prolific repeat offender. The record

discloses no evidence that on this occasion Mr. Hockett was the aggressor or otherwise threatening

to Mr. McDavis, and, by his concession of the facts as found by the administrative law judge, the

Civil Service Commission and the trial court, such a conclusion is rendered indisputable. When the

facts of the case as found below are undisputed, they constitute the very substantial and material

evidence needed to uphold the administrative law decision. Neither the drastic consequences of

termination (Mosley v. Tennessee Department of Commerce and Insurance, 2004 WL 2663667) nor

the unblemished character of prior service2 (Arthur L. Lynn v. Randy C. Camp, Commissioner, No.

M2002-02708-COA-R3-CV, 2003 WL 22401280 (Tenn.Ct.App.2003)) give this Court the power

to disturb an administrative sanction that is warranted in law and justified in fact. The judgment of

the trial court is in all respects affirmed, costs of appeal are assessed against Appellant, Roderick

McDavis.

___________________________________

WILLIAM B. CAIN, JUDGE

2

Officer McDavis does not have such an unblemished record of prior services but has, in fact, suffered two prior

disciplinary suspensions and a written reprimand.

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