Larry Brown v. Tennessee Department of Safety and Homeland and Security

05/13/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 10, 2022 Session

LARRY BROWN ET AL. v. TENNESSEE DEPARTMENT OF SAFETY

AND HOMELAND SECURITY

Appeal from the Chancery Court for Davidson County

No. 17-1197-III, 17-1204-III Ellen Hobbs Lyle, Chancellor

___________________________________

No. M2021-00422-COA-R3-CV

___________________________________

This case arises from the seizure of property owned by Appellants and the ensuing

forfeiture action brought against them by Appellee Tennessee Department of Safety and

Homeland Security. After Appellee voluntarily dismissed the forfeiture action, the

Administrative Law Judge awarded Appellants a portion of their requested attorney’s fees

under Tennessee Code Annotated section 4-5-325(a). The Chancery Court of Davidson

County reversed the award of fees on its finding that Appellee did not issue a “citation” as

required for recovery of attorney’s fees under section 4-5-325(a). The trial court also held

that Appellants were not entitled to recover attorney’s fees under 42 U.S.C. § 1988.

Discerning no error, we affirm.

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

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN,

and CARMA DENNIS MCGEE, JJ., joined.

Herbert S. Moncier, Knoxville, Tennessee, for the appellants, Larry Brown and Chandra

Brown.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor

General; Rob Mitchell and Mallory Kathryn Schiller, Assistant Attorneys General, for the

appellee, Tennessee Department of Safety and Homeland Security.

OPINION

I. Background

This case arises from the seizure of property owned by Larry Brown and his

daughter Chandra Brown (together, the “Browns,” or “Appellants”) and the subsequent

administrative forfeiture proceedings conducted under Tennessee Code Annotated sections

40-33-201 through 217. Law enforcement officers with the Eighth Judicial Drug Task

Force executed a search warrant on April 7, 2015, at the home shared by the Browns after

investigating Larry Brown for drug activity. During the search, officers seized property

belonging to both Larry and Chandra Brown, including a 1996 Honda Goldwing

motorcycle, a 2003 Chevrolet Z71 truck, a Troybilt pressure washer, $2,741.00 in U.S.

currency, a 1994 Winnebago Vectra motorhome, a Stihl weed eater, an Exmark Lazer Z

lawn mower, and a 1992 Ford Superduty FSD truck. Notices of seizure were issued by the

Eighth Judicial Drug Task Force, i.e., the seizing agency, and, on May 6, 2015, the circuit

court issued a forfeiture warrant under Tennessee Code Annotated section 40-33-204.

Thereafter, Appellee Tennessee Department of Safety and Homeland Security (the

“Department”) sent notice to the Browns of the issuance of the forfeiture warrant.

The Browns subsequently petitioned the Department for the return of the seized

property, and the case was assigned to an Administrative Law Judge (“ALJ”). Following

a hearing on January 26, 2017, the ALJ found that the Department failed (with one

exception, the 2003 Chevrolet Z71 truck) to show any connection between the seized

property and drug sales. Therefore, the ALJ ordered that the property be returned, except

for the truck. On appeal to the Department’s Appeals Division, the Division reversed in

part but agreed that the Department failed to carry its burden (except with regard to the

truck) and ordered that some of the property be returned. The matter was remanded to the

ALJ and set for another hearing. Before that hearing occurred, the seizing agency returned

all of the property (including the truck) to the Browns, and the Department filed a motion

for an order of voluntary dismissal of the forfeiture proceeding. The Browns opposed

dismissal and requested attorney’s fees and costs pursuant to Tennessee Code Annotated

section 4-5-325(a) and 42 U.S.C. § 1988. The ALJ granted the Department’s motion to

dismiss.

Approximately three months later, on September 13, 2017, the ALJ granted the

Browns’ motion for attorney’s fees pursuant to Tennessee Code Annotated section 4-5-

325(a), awarding them $35,000.00 of the $100,752.50 they requested. As grounds for the

award of fees, the ALJ found that there was no basis for the seizure of any of the property

except the truck, and that the Department did not fulfill its statutory obligation to “release

the property if there is no legal and factual basis for forfeiture” under Tennessee Code

Annotated section 40-33-204(g). The ALJ did not address the Browns’ claim for fees under

42 U.S.C. § 1988. The Department filed a “Petition for Reconsideration/to Alter or Amend

Language [and] Motion for Stay.” The Browns filed a Response and Cross-Petition to

Alter, Amend and Revise the September 13, 2017 Order, seeking to recover all of their

claimed attorney’s fees in the amount of $100,752.50. The ALJ denied both motions on

October 23, 2017. Thereafter, both parties filed petitions for judicial review in the

Davidson County Chancery Court (“trial court”), which petitions were consolidated into

one action.

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On March 25, 2021, the trial court entered an order reversing the ALJ’s award of

attorney’s fees. In relevant part, the trial court held:

[T]he Court orders that the petition for judicial review of [Department] is

granted; the September 13, 2017 Final Order of the ALJ awarding $35,000

in attorney’s fees under Tennessee Code Annotated section 4-5-325 is

reversed; and the Browns are not entitled to recovery of attorney’s fees under

this statute.

***

As to the Browns’ petition for judicial review for recovery from this

Court or remand to the ALJ for attorney’s fees under 42 U.S.C. §1988, it is

ORDERED that the petition is dismissed with prejudice. The Browns shall

not recover because they have failed to demonstrate on the record asserted

Fourth, Fifth and Fourteenth Amendment constitutional violations on which

to premise recovery of attorney’s fees under 42 U.S.C. section 1988. The

above ruling that [the Department] did not issue a citation and was not the

initial entity for the seizure, this Court concludes, precludes liability under

the Fourth Amendment. As to the Fifth and Fourteenth Amendment due

process claims, the Browns failed to provide sufficient analysis of the law

and facts of record under Paratt v. Taylor, 451 US. 527 (1981) doctrine to

establish a Fifth and Fourteenth Amendment violation for recovery of 42

U.S.C. § 1988 attorney’s fees.

The Browns appeal.

II. Issues

The Browns raise the following issues for review:

1. Did the Chancery Court lack subject matter jurisdiction because there was

not a Tennessee Code Annotated section 4-5-314(c) final order, or Tennessee

Code Annotated section 4-5-322(a)(1) final decision, by the Administrative

Judge, on the aspect of the Browns’ claims for attorney’s fees pursuant to 42

U.S.C. § 1988(b) made applicable to Tennessee proceedings by

Bloomingdale’s by Mail v. Huddleston, 848 S.W.2d 52 (Tenn. 1992) and

Tennessee administrative proceedings pursuant to Wimley v. Rudolph, 931

S.W.2d 513 (Tenn. 1996).

2. Did the Chancellor err by dismissing the Browns’ 42 U.S.C. § 1988(b)

claims for attorney’s fees.

3. Were letters issued by [the Department] within the meaning of Tennessee

Code Annotated section 4-5-325(a) “Citation[s]. . . for the violation of a rule,

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regulation or statute,” or the functional equivalent of “Citations[s]. . . for the

violation of a rule, regulation or statute.”

4. Should this Court reverse the Chancery Court’s denial of attorney’s fees

with instructions to remand to the Administrative Judge to render a final

order on the Browns’ pretermitted 42 U.S.C. § 1988(b) claims, and for

awards of attorney’s fees for representation in the Chancery Court, and on

appeal pursuant to Tennessee Code Annotated section 4-5-325(a) and/or 42

U.S.C. § 1988(b).

III. Standard of Review

Judicial review of civil forfeiture proceedings is primarily governed by the

Tennessee Uniform Administrative Procedures Act (“UAPA”). Nicholas v. Tenn. Dep’t

of Safety & Homeland Sec., No. M2017-01674-COA-R3-CV, 2018 WL 3831518, at *2

(Tenn. Ct. App. Aug. 13, 2018); McEwen v. Tenn. Dep’t of Safety, 173 S.W.3d 815, 819

(Tenn. Ct. App. 2005). Under the version of Tennessee Code Annotated section 4-5-322(h)

in effect when the trial court rendered its decision, the agency’s decision may be reversed

or modified if the decision is shown to be:

(1) In violation of constitutional or statutory provisions;

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

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion; or

(5)(A) Unsupported by evidence which is both substantial and

material in the light of the entire record. . . .

Tenn. Code Ann. § 4-5-322(h). In forfeiture cases, this standard is slightly modified.

Instead of the substantial-and-material-evidence standard under section 4-5-322(h)(5), the

preponderance-of-evidence standard is used in determining whether to sustain or reverse

the final agency order. Tenn. Code Ann. § 40-33-213(a) (stating that in appeals of forfeiture

cases “[t]he reviewing court shall use the preponderance of evidence standard in

determining whether to sustain or reverse the final order of the applicable agency.”);

McEwen, 173 S.W.3d at 819-20.

IV. Analysis

Before turning to the issues, we pause to review the statutory scheme applicable to

the forfeiture of Appellants’ property. Pursuant to Tennessee Code Annotated section 53-

11-451(a), certain property is subject to forfeiture, including controlled substances,

vehicles used or intended for use to transport or facilitate the transportation of controlled

substances, and all “moneys . . . used, or intended to be used, to facilitate any violation of

the Tennessee Drug Control Act. . . .” Tenn. Code Ann. § 53-11-451(a). Property seized

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under section 53-11-451(a) is subject to the forfeiture scheme outlined in Tennessee Code

Annotated section 40-33-201, et seq. (“All personal property, including conveyances,

subject to forfeiture under . . . § 53-11-451 . . . shall be seized and forfeited in accordance

with the procedure set out in this part.”). The Tennessee Supreme Court has described the

procedure applicable in this situation “as following ‘an administrative model for the

forfeiture of property.’” State v. Sprunger, 458 S.W.3d 482, 495 (Tenn. 2015) (quoting

Helms v. Tenn. Dep’t of Safety, 987 S.W.2d 545, 547 (Tenn. 1999)).

As discussed by the Tennessee Supreme Court, the procedures to which the State

must adhere are as follows:

Under [s]ection 40-33-203, the seizing officer may seize the subject

property prior to the issuance of a forfeiture warrant. Tenn. Code Ann. § 40-

33-203 (2012). To notify the affected person of the seizure, the seizing officer

must “prepare a receipt titled a ‘Notice of Seizure’” and must “provide the

person found in possession of the property” the receipt. Tenn. Code Ann. §

40-33-203(a), (c) (2012). Among other things, the Notice of Seizure must

include “[t]he procedure by which recovery of the property may be sought,

including any time periods during which a claim for recovery must be

submitted.” Tenn. Code Ann. § 40-33[-]203(c)(5) (2012).

After the initial seizure of the property, no further action may be taken

until the appropriate court issues a forfeiture warrant. Tenn. Code Ann. § 40-

33-204. The forfeiture warrant authorizes the institution of forfeiture

proceedings. Tenn. Code Ann. § 40-33-204(a). The officer who made the

seizure must apply for the forfeiture warrant “within five (5) working days

following the property seizure.” Tenn. Code Ann. § 40-33-204(b) (2012). He

or she does so “by filing a sworn affidavit.” Id. The officer’s sworn affidavit

must contain specific information detailed in the statute, including the “legal

and factual basis making the property subject to forfeiture.” Tenn. Code Ann.

§ 40-33-204(b)(1).

The court considering the seizing officer’s application for a forfeiture

warrant must conduct an ex parte hearing on the application. Tenn. Code

Ann. § 40-33-204(b). The statute mandates that the ex parte hearing “shall

be recorded” and specifies: “It is the duty of the court to maintain the

recording.” Id. The court may issue the forfeiture warrant only if it finds the

seizing officer offered proof that establishes probable cause to believe that

the property is subject to forfeiture, is owned by one whose interest is

described in public records, and that the property owner’s interest is subject

to forfeiture. Tenn. Code Ann. § 40-33-204(c)(1).

If the forfeiture court finds probable cause and issues the forfeiture

warrant, it must “have attached to [the warrant] a copy of the notice of

seizure.” Tenn. Code Ann. § 40-33[-]204(b). The forfeiture court must also

“retain the affidavit relied upon in support of the warrant.” Tenn. Code Ann.

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§ 40-33-204(g). The statute states: “By signing and issuing the forfeiture

warrant, the judge is affirming that the required finding of probable cause

necessary to issue the warrant has been made.” Id.

Within seven working days of the issuance of the forfeiture warrant,

the seizing officer must send the warrant, the notice of seizure, and a copy of

the seizing officer’s affidavit to the applicable agency. Id. In this way, the

agency becomes the forum for the forfeiture proceedings. The agency’s

receipt of the documents from the seizing officer triggers its responsibility to

inform any other potential owners of the seized property of the issuance of

the forfeiture warrant. Tenn. Code Ann. § 40-33-204(g). The agency then

considers anew the basis for the forfeiture; after considering the notice of

seizure and forfeiture warrant “and after interviewing any witnesses,” the

agency must “release the property if there is no legal and factual basis for

forfeiture.” Id.

If a claimant of the seized property wishes to contest the forfeiture,

within thirty days of being notified by the applicable agency of the issuance

of the forfeiture warrant, the property owner must file a written claim with

the applicable agency. Tenn. Code Ann. § 40-33-206 (2012). The written

claim must request a hearing and state the person’s interest in the seized

property, and the claimant must file any applicable bond. Tenn. Code Ann.

§§ 40-33[-]206(a), (b)(1), and -208 (2012). The claimant’s compliance with

the required procedures then entitles him or her to a contested hearing before

the agency under the Uniform Administrative Procedures Act. Tenn. Code

Ann. § 40-33-209(d) (2012). Within thirty days after the filing of the written

claim and any applicable bond, the agency must establish a hearing date and

set the case on its docket. See Tenn. Code Ann. § 40-33-207(a) (2012).

At the contested administrative hearing, the State must prove by a

preponderance of the evidence that the property at issue is subject to

forfeiture. Tenn. Code Ann. § 40-33-210(a) (2012); see also Helms, 987

S.W.2d at 547. The statutes detail what the State is required to prove at the

hearing:

(a) In order to forfeit any property or any person’s interest in

the property . . ., the state shall have the burden to prove by a

preponderance of evidence that:

(1) The seized property was of a nature making its possession

illegal or was used in a manner making it subject to forfeiture

under the sections set out in this subsection (a); and

(2) The owner or co-owner of the property knew that the

property was of a nature making its possession illegal or was

being used in a manner making it subject to forfeiture, or, in

the case of a secured party, that the standards set out in

subsection (f) are met.

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(b)(1) Failure to carry the burden of proof shall operate as a bar

to any forfeiture and the property shall be immediately returned

to the claimant.

Tenn. Code Ann. § 40-33-210 (2012). Any party aggrieved by the agency’s

decision then has the right to seek judicial review of the agency’s decision

by filing a written notice in either the Circuit or Chancery Court of Davidson

County. Tenn. Code Ann. § 40-33-213(a), (c) (2012). As noted in Helms,

“[j]udicial review is conducted without a jury and is limited to the

administrative record, except to the extent that Tenn. Code Ann. §§ 4-5-

322(e) and -322(g) permit the introduction of additional evidence.”, 987

S.W.2d at 547.

Sprunger, 458 S.W.3d at 495-98 (footnotes omitted). With the foregoing in mind, we turn

to address the issues in the current appeal.

A. Trial Court’s Jurisdiction

As an initial matter, the Browns challenge the trial court’s subject matter

jurisdiction. As noted above, the ALJ awarded the Browns’ attorney’s fees solely under

Tennessee Code Annotated section 4-5-325(a), but it did not address their claim for

attorney’s fees under 42 U.S.C. § 1988, which provides that “[i]n any action or proceeding

to enforce [the listed federal civil rights laws], the court, in its discretion, may allow the

prevailing party. . . a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b).

As a threshold matter, the Browns assert that the ALJ’s failure to address their 42 U.S.C.

§ 1988 theory resulted in the ALJ’s order not being final under Tennessee Code Annotated

sections 4-5-314(a), (c), which provide, in relevant part:

(a) An agency with statutory authority to decide a contested case shall render

a final order.

***

(c) A final order, initial order or decision under § 50-7-304 shall include

conclusions of law, the policy reasons therefor, and findings of fact for all

aspects of the order, including the remedy prescribed . . . .

Tenn. Code Ann. § 4-5-314(a), (c). In the alleged absence of a final order from the ALJ,

the Browns maintain that the trial court did not obtain subject matter jurisdiction over the

case. Tenn. Code Ann. § 4-5-322(a)(1) (“A person who is aggrieved by a final decision

in a contested case is entitled to judicial review under this chapter, which shall be the only

available method of judicial review.”) (emphasis added). As explained by this Court in the

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recent case of Holland v. Tennessee Department of Safety & Homeland Security, section

1988(b) “does not authorize an ALJ in an administrative proceeding to award fees. ‘[O]nly

a court in an action to enforce one of the civil rights laws listed in § 1988 may award

attorney’s fees.’” Holland v. Tenn. Dep’t. of Safety & Homeland Sec., No. M2020-01044-

COA-R3-CV, 2022 WL 852906, at *4 (Tenn. Ct. App. March 23, 2022) (quoting N.

Carolina Dep’t of Transp. v. Crest St. Cmty. Council, Inc., 479 U.S. 6, 15 (1986)).

Although it was not within the ALJ’s purview to award attorney’s fees under section

1988, Appellant contends that the ALJ’s failure to address the question resulted in its order

not being a final judgment. The Holland Court addressed the exact arguments espoused

by Appellants in this case, to-wit:

Ms. Holland argues that the order granting her fee request was not

final because the ALJ did not address whether she was entitled to fees under

the federal statute. See 42 U.S.C. § 1988(b) (Supp. 2020). Here, in a previous

order, the ALJ dismissed the forfeiture proceeding and ordered the return of

the vehicle and cost bond. Later, the ALJ awarded Ms. Holland the full

amount of her requested attorney’s fees. After entry of these two orders, there

was nothing left to adjudicate. See Ball[ v. McDowell, 288 S.W.3d [833,] at

836-37 [(Tenn. 2009) (explaining that a final judgment is a judgment “that

resolves all of the parties’ claims and leaves the court with nothing to

adjudicate”)].

We recognize that Ms. Holland claimed that she was entitled to

attorney’s fees under two different statutes. Still, she was only entitled to one

recovery. See TSC Indus., Inc. v. Tomlin, 743 S.W.2d 169, 172 (Tenn. Ct.

App. 1987) (explaining that “where there is only one injury the law permits

only one recovery”); Ford Motor Co. v. Taylor, 446 S.W.2d 521, 530 (Tenn.

Ct. App. 1969) (“[C]are should be exercised to avoid double recoveries.”).

As Ms. Holland had been fully compensated by the ALJ’s order under the

state statute, she could not also recover under the federal statute. Under the

circumstances and based on our interpretation of the federal statute, we

conclude that the failure to address fees on the alternative theory of 42 U.S.C.

§ 1988(b) did not render the ALJ’s order interlocutory.

Ms. Holland also contends that the ALJ’s order was not final because

it did not include findings of fact and conclusions of law for all aspects of

her claim. For this proposition, she cites Tennessee Code Annotated § 4-5-

314(c). Ms. Holland misapprehends the statutory requirement. The UAPA

mandates that all “final [and] initial order[s] . . . include conclusions of law,

the policy reasons therefor, and findings of fact for all aspects of the order,

including the remedy prescribed.” Tenn. Code Ann. § 4-5-314(c) (2021).

This requirement is essential for effective judicial review of administrative

decisions. See Levy v. State Bd. of Exam’rs for Speech Pathology &

Audiology, 553 S.W.2d 909, 911-12 (Tenn. 1977) (discussing predecessor

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statute); Swift Roofing, Inc. v. State, No. M2010-02544-COA-R3-CV, 2011

WL 2732263, at *6 (Tenn. Ct. App. July 13, 2011). But it has no bearing on

whether an administrative order is final.

Id. at *2-3. Under the holdings in Holland, Appellants’ arguments are unpersuasive. Once

the ALJ awarded the Browns fees under section 4-5-325(a), it was simply not necessary

for the ALJ to address whether the Browns were entitled to their fees under the alternative

theory, i.e., 42 U.S.C. § 1988. The ALJ’s order was a final decision, which conferred

subject matter jurisdiction to the trial court.

B. Fees under Tennessee Code Annotated section 4-5-325

When the Browns’ property was seized, Tennessee Code Annotated section 4-5-

325(a) provided, in relevant part:1

(a) When a state agency issues a citation to a person, local governmental

entity, board or commission for the violation of a rule, regulation or statute

and such citation results in a contested case hearing, at the conclusion of such

hearing, the hearing officer or administrative law judge may order such

agency to pay to the party issued a citation the amount of reasonable expenses

incurred because of such citation, including a reasonable attorney’s fee, if

such officer or judge finds that the citation was issued:

(1) Even though, to the best of such agency’s knowledge, information and

belief formed after reasonable inquiry, the violation was not well grounded

in fact and was not warranted by existing law, rule or regulation; or

(2) For an improper purpose such as to harass, to cause unnecessary delay

or cause needless expense to the party cited.

Tenn. Code Ann. § 4-5-325(a).

The Browns argue that they are entitled to attorney’s fees under the foregoing statute

and maintain that the trial court erred in reversing the ALJ’s award of same. As set out in

context above, a threshold requirement for the award of attorney’s fees under section 4-5-

325(a) is that the Department “issue[d] a citation” to the Browns. Before turning to that

specific question, we note that our goal in statutory construction is to “carry out legislative

intent without broadening or restricting the statute beyond its intended scope.” In re Estate

1

The statute was amended effective May 12, 2021. See 2021 Tenn. Pub. Acts, ch. 403, § 1. The

Department’s notices of forfeiture warrant were sent to the Browns in early May 2015, and the ALJ awarded

fees under the statute on September 13, 2017. Accordingly, the amended version of the statute does not

apply here. C-Wood Lumber Co. v. Wayne Cty. Bank, 233 S.W.3d 263, 282 (Tenn. Ct. App. 2007)

(“[S]tatutes are generally not given retroactive effect unless the legislature has clearly expressed an

intention that the new statute is to be applied retroactively.”).

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of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009) (citing Houghton v. Aramark Educ. Res.,

Inc., 90 S.W.3d 676, 678 (Tenn. 2002)). As such, we presume that every word contained

in a statute has both meaning and purpose and should therefore be given its full effect if

the General Assembly'’s obvious intention is not violated in doing so. Id. at 613-14 (citing

In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005)). Thus, when the language of a statute is

unambiguous, we apply its plain meaning. State v. Wilson, 132 S.W.3d 340, 341 (Tenn.

2004) (citing Carson Creek Vacation Resorts v. Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn.

1993)). Essentially, “[o]ur obligation is simply to enforce the written language.” In re

Estate of Tanner, 295 S.W.3d at 614 (citing Abels ex rel. Hunt v. Genie Indus., Inc., 202

S.W.3d 99, 102 (Tenn. 2006)).

Administrative forfeiture proceedings are actions “in rem, regarding the property.”

State v. Sprunger, 458 S.W.3d at 492. “[I]t is the property itself which is targeted, not the

owner of the property.” Stuart v. State Dep’t of Safety, 963 S.W.2d 28, 33 (Tenn. 1998);

In re Tenn. Walking Horse Forfeiture Litig., No. W2013-02804-COA-R3CV, 2015 WL

1636704, at *3 (Tenn. Ct. App. Apr. 8, 2015) (“[T]he defendant in a civil forfeiture action

is the subject property, rather than any owners or interest holders in the property.”). As

such, they do not involve the issuance of a citation to the person. Forfeiture proceedings

are commenced through the issuance of a forfeiture warrant by a judge at the request of the

seizing agency, here, the Eighth Judicial Drug Task Force. Sprunger, 458 S.W.3d at 496-

97; Tenn. Code Ann. § 40-33-204(a) (“Once personal property is seized pursuant to an

applicable provision of law, no forfeiture action shall proceed unless a forfeiture warrant

is issued in accordance with this section . . . .”). It is only after the seizing agency has

seized the property and applied to the court for a forfeiture warrant that the “applicable

agency,” here, the Department, receives the warrant, the supporting affidavit, and the notice

of seizure. Tenn. Code Ann. § 40-33-204(g) (“Upon issuance of the forfeiture warrant, the

judge shall . . . within seven (7) working days, send the warrant, a copy of the affidavit and

the notice of seizure to the applicable agency.”).

The Browns make two arguments in furtherance of their contention that they are

entitled to attorney’s fees under Tennessee Code Annotated section 4-5-325. First, they

contend that the inclusion of the notices of seizure and the notice of forfeiture warrant with

the Department’s notice letter somehow constitutes the Department’s issuance of the

“functional equivalent” of a citation. In the alternative, they argue that this Court’s holding

in American Child Care, Inc. v. State, 83 S.W.3d 148 (Tenn. Ct. App. 2001) excuses the

“citation” criterion.

The appellant in Holland made the same arguments. Concerning the “functional

equivalent of a citation” argument, the Holland Court explained:

Ms. Holland insists that the notice she received from the Department was a

citation or, at least, the functional equivalent of one. We find her argument

unavailing. The notice did not command her to appear at a certain time and

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place to do something or to defend against a charge. See Citation, BLACK’S

LAW DICTIONARY (11th ed. 2019). Rather, the notice gave her an

opportunity to file a claim alleging an interest in the seized property and

requesting a hearing. See Tenn. Code Ann. § 40-33-206.

Holland, 2022 WL 852906, at *4. The same is true here. Under the statutory scheme,

notices of seizure are provided by the seizing officer (here, an officer with the Eighth

Judicial Drug Task Force) to persons in possession of the seized property; these notices are

not provided by the Department. See Tenn. Code Ann. § 40-33-203(c) (“Upon the seizure

of any personal property subject to forfeiture pursuant to § 40-33-201, the seizing officer

shall provide the person found in possession of the property, if known, a receipt titled a

“Notice of Seizure.”). Likewise, the Department did not issue the forfeiture warrant; rather,

the warrant was issued by a circuit court judge. The Browns cite no authority for the

proposition that enclosing a document issued by another agency transforms the sender into

the issuer of the enclosure, and we find no authority to support such suggestion. In sum,

the Department did not issue a citation to the Browns.

In the alternative, the Browns rely on the case of American Child Care, where this

Court held that the Department of Human Services was liable for attorney’s fees under

Tennessee Code Annotated section 4-5-325(a). American Child Care, 83 S.W.3d at 148.

In American Child Care, the agency “skipped the citation and issued a summary

suspension under an internal zero tolerance policy that the [trial] court found to be invalid

. . .[t]hen . . . ignored the statutory requirement of meaningful hearing.” Id. at 153. We

explained that to hold that the agency did not owe attorney’s fees because it failed to issue

a formal citation would “exal[t] form over substance” and “incentivize the agency to adopt

the same procedure in the future.” Id. American Child Care is readily distinguishable

from the instant case. Unlike American Child Care, here, the Department did not “skip”

the issuing of a citation. Rather, as discussed in detail above, the Department does not

issue citations in in rem forfeiture proceedings. We conclude that the more recent case of

Groves v. Tennessee Department of Safety and Homeland Security, No. M2016-01448-

COA-R3-CV, 2018 WL 6288170 (Tenn. Ct. App. Nov. 30, 2018), perm. app. denied

(Tenn. May 16, 2019), is dispositive. In Groves, we held that the notification letter sent by

the Department on the issuance of a forfeiture warrant was not a citation. Id. at *5 (“Here,

Mr. Groves was not a ‘party issued a citation’ for ‘the violation of a rule, regulation or

statute.’ The only document sent to Mr. Groves was a notice that a forfeiture warrant had

been issued for the vehicle.”). The same is true here; the only document sent by the

Department to the Browns was the letter notifying the Browns that the forfeiture warrant

had been issued based on the notices of seizure provided to the circuit court by the law

enforcement officers conducting the seizure. The Groves case makes clear that Tennessee

Code Annotated section 4-5-325(a) does not provide for recovery of fees against the

Department under such circumstances. Id. (“[T]he statute relied on by Mr. Groves for

payment of attorney’s fees [i.e., Tennessee Code Annotated section 4-5-325(a)] did not

authorize such an award in these circumstances . . . .”); accord Holland, 2022 WL 852906,

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at *4 (citing Tenn. Code Ann. § 40-33-204; Sprunger, 458 S.W.3d at 497-98) (“Here, the

Department did not skip over the citation stage. No citations are issued to a vehicle owner

in a forfeiture proceeding. Ms. Holland was not entitled to an award of attorney’s fees

based on Tennessee Code Annotated § 4- 5- 325(a).”). For these reasons, the trial court

correctly held that the ALJ’s award of attorney’s fees under Tennessee Code Annotated

section 4-5-325(a) was error.

B. Attorney’s Fees under 42 U.S.C. § 1988

for violations of 42 U.S.C. § 1983

The Browns argue that the trial court erred in denying their claim for attorney’s fees

under 42 U.S.C. § 1988. As noted above, attorney’s fees may be awarded under 42 U.S.C.

§ 1988 to prevailing parties in an action or proceeding to enforce certain statutory or

constitutional rights, including (as relevant here) constitutional rights capable of being

enforced under 42 U.S.C. § 1983. 42 U.S.C. § 1988(b) (“In any action or proceeding to

enforce [the listed federal civil rights laws], the court, in its discretion, may allow the

prevailing party. . . a reasonable attorney’s fee as part of the costs.”). Under Tennessee law,

“[i]n order to establish a prima facie case under 42 U.S.C. § 1983, a plaintiff must

demonstrate that: (1) the defendant was acting under the color of state law; and (2) the

defendant’s conduct deprived the plaintiff of a right, privilege or immunity secured by the

Constitution or federal law.” Davidson v. Bredesen, 330 S.W.3d 876, 887 (Tenn. Ct. App.

2009) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other

grounds by Daniels v. Williams, 474 U.S. 327 (1986) (clarifying that the “[m]ere lack of

due care by a state official does not ‘deprive’ an individual of life, liberty or property under

the Fourteenth Amendment.”)).

1. Whether the Browns state a claim for violation

of the Fourth Amendment

The Fourth Amendment to the United States Constitution provides:

Unreasonable searches and seizures.—The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no warrants shall issue, but upon probable

cause, supported by oath or affirmation, and particularly describing the place

to be searched, and the person or things to be seized.

Similarly, Article 1, § 7 of the Tennessee Constitution guarantees

that the people shall be secure in their persons, houses, papers and

possessions, from unreasonable searches and seizures; and that general

warrants, whereby an officer may be commanded to search suspected places,

without evidence of the fact committed, or to seize any person or persons not

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named, whose offences are not particularly described and supported by

evidence, are dangerous to liberty and ought not to be granted.

The intent and purpose of the prohibition against unreasonable searches and seizures

found in the Tennessee Constitution has been found to be the same as that found in the

Fourth Amendment to the United States Constitution. See State v. Simpson, 968 S.W.2d

776, 779 (Tenn. 1998). According to the Supreme Court, the purpose of the prohibition

against unreasonable searches and seizures in the Fourth Amendment is to “safeguard the

privacy and security of individuals against arbitrary invasions of government officials.”

Camara v. Municipal Court, 387 U.S. 523, 528 (1967). The Fourth Amendment protects

people, not places, wherever they may have a “reasonable expectation of privacy.” Katz v.

United States, 389 U.S. 347, 361 (1967) (Harlan, J. concurring).

In its March 25, 2021 order, the trial court held that the “[Department] is not the

seizing authority so there is no Fourth Amendment violation by [the Department].”

Contrary to the trial court’s holding, in their appellate brief, the Browns argue:

The Chancellor cited T.C.A. § 40-33-204(g), however the Chancellor

did not apply, or make findings or conclusions of law, regarding the T.C.A.

§ 40-33-204(g) requirement that [the Department] review the forfeiture

warrant, that incorporated the § 40-33-204(b)(1) affidavit quoted above, and

conduct a new investigation of the factual and legal basis to continue to seize

the property for forfeiture.

The Browns claim that the requirements of T.C.A. § 40-33-204(g),

and [the Department’s] approval of the T.C.A. § 40-33-204(b) affidavit,

resulted in [the Department] becoming a “state agency” that reviewed and

approved the seizure and the Chancellor’s ruling of law that only the “seizing

agency” could violate the U.S. Const. Fourth Amendment being in error.

In Morton v. Knoxville County Sheriff’s Department, No. E2017-02077-COA-R9-

CV, 2019 WL 645042 (Tenn. Ct. App. Feb. 15, 2019), perm. app. denied (Tenn. June 19,

2019), this Court addressed the same argument that the Browns make here. As in the

instant appeal, in Morton, the appellant argued that the Knox County Sheriff’s Deputy was

the initial seizing officer, but “the department became the seizing authority and/or seizing

agency after it refused to terminate forfeiture proceedings required by § 40-33-204(g).” Id.

at *6. The Morton Court held that the “Department could be liable to Morton if it acted

in bad faith in refusing to release the seized property after discovering the valid lien. Both

[the Department and the Sheriff’s Deputy] could be ‘seizing authorities’ within the

meaning of section 40-33-215.” Id. at *7 (emphasis added).2 Under the holding in Morton,

the Department may be considered the “seizing agency” if it acted in bad faith. However,

2

We note that the Morton Court also held that Tennessee Code Annotated section 40-33-215

removes sovereign immunity. Morton, 2019 WL 645042, at *7.

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unlike in Morton, here, there was no such finding. As set out in its March 25, 2021 order,

the trial court reiterated the ALJ’s finding that the Department did not act in bad faith, to-

wit:

No bad faith but failed good faith by TDOS—“It is clear the Department did

not fulfill its statutory obligation in this case. The seizure statute directs the

Department that ‘upon receipt of the notice of seizure and forfeiture warrant

and after interviewing any witnesses, the [Department] shall release the

property if there is no legal or factual basis for forfeiture.’ T.C.A. §40-33-

204(g). If the Department had, it would have immediately learned that this

was a bad seizure and returned the property. Instead, it pursued a course of

action with a goal of winning the case at any cost. While one cannot say the

Department pursued this course of action in bad faith, it is clear it was not a

failed good faith course of action. . . .

In the absence of a finding of bad faith on the part of the Department, the trial court’s

holding that the “[Department] is not the seizing authority so there is no Fourth

Amendment violation by [the Department]” was correct.

2. Whether the Browns state a claim for violation

of the Fifth and Fourteenth Amendments.

Having determined that the Browns failed to state a Fourth Amendment claim, we

turn to the question of whether they may recover fees under § 1988(b) for Fifth and

Fourteenth Amendment violations under § 1983. A plaintiff seeking to establish a

procedural-due-process claim under § 1983 must show: “(1) the existence of a protected

property interest at issue, (2) a deprivation of that protected property interest, and (3) that

he or she was not afforded adequate procedures.” Sherman v. State of Tennessee, No. 16-

02625, 2017 WL 2589410, at *15 (W.D. Tenn. June 14, 2017) (quoting Paterek v. Village

of Armada, 801 F.3d 630, 649 (6th Cir. 2015)). To establish the third element, a plaintiff

must show “that the property deprivation resulted from either: (1) an established state

procedure that itself violates due process rights, or (2) a ‘random and unauthorized act’

causing a loss for which available state remedies would not adequately compensate the

plaintiff.” Id. (quoting Warren v. City of Athens, 411 F.3d 697, 709 (6th Cir. 2005)). In

Parratt, the United States Supreme Court held that courts may dismiss procedural-due-

process claims “if the state provides an adequate postdeprivation remedy.” 451 U.S. at 538.

As explained by the United States District Court for the Western District of Tennessee:

Under the Parratt doctrine, “[c]ourts may dismiss a procedural due process

claim if the state provides an adequate postdeprivation remedy and (1) the

deprivation was unpredictable or random; (2) predeprivation process was

impossible or impracticable; and (3) the state actor was not authorized to take

the action that deprived the plaintiff of property or liberty.” Daily Servs.,

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[LLC v. Valentino,]756 F.3d [893,] at 907 [6th Cir. 2014)] (quotation marks

omitted). “In this context, ‘unauthorized’ means that the official in question

did not have the power or authority to effect the deprivation, not that the act

was contrary to law.” Warren [v. City of Athens, Ohio,] 411 F.3d [697,] at

709-10 [(6th Cir. 2005)]. A plaintiff alleging “an established state procedure

that itself violates due process rights” does “not need to demonstrate the

inadequacy of state remedies.” Id. at 709. But for a plaintiff alleging random

and unauthorized acts, the “Parratt rule creates the requirement that plaintiffs

in such circumstances must prove that the post-deprivation process afforded

by the state is somehow inadequate to right the wrong at issue.” Macene [v.

MJW, Inc.,] 951 F.2d [700,] at 706 [(6th Cir. 1991)]. “The failure to so plead

in this circuit, therefore, renders a section 1983 complaint subject to

dismissal.” Watts v. Burkhart, 854 F.2d 839, 843 (6th Cir. 1988).

Sherman, 2017 WL 2589410, at *16.

In its March 25, 2021 order, the trial court held that “[n]either in the administrative

proceedings before the ALJ nor in this Court have the Browns provided analysis from the

record of the application of the [Parratt] doctrine.” In a footnote, the trial court clarified

that the Browns “provided no analysis and/or legal argument that the civil forfeiture

procedure in this case is inadequate to redress the alleged deprivation of the Browns’

property.” From our review, we agree. In the absence of any pleading alleging that the

forfeiture process offered by the State is inadequate, the trial court did not err in denying

the Browns attorney’s fees under § 1988(b) for Fifth and Fourteenth Amendment violations

under § 1983. Id.

Finally, the Browns request for appellate attorney’s fees is denied. As discussed

above, there is no basis for an award of attorney’s fees in this case.

V. Conclusion

For the foregoing reasons, we affirm the trial court’s order. The Browns’ request

for appellate attorney’s fees is denied, and the case is remanded for such further

proceedings as may be necessary and are consistent with this opinion. Costs of the appeal

are assessed to the Appellants, Larry Brown and Chandra Brown, for all of which execution

may issue if necessary.

s/ Kenny Armstrong

KENNY ARMSTRONG, JUDGE

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