Rhea v. West TN Violent Crime & Drug Task Force, et al

MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim

W.D. Tenn.April 25, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION MILTON RHEA, ) ) Plaintiff, ) ) No. 2:17-cv-02267 ) District Judge McCalla v. ) Magistrate Judge Claxton ) WEST TENNESSEE VIOLENT ) CRIME & DRUG TASK FORCE, ) and SHELBY COUNTY ) GOVERNMENT, ) ) Defendants. ) MOTION TO DISMISS OF DEFENDANT WEST TENNESSEE CRIME & DRUG TASK FORCE Defendant, West Tennessee Violent Crime & Drug Task Force (“Task Force”), through its counsel, the Tennessee Attorney General and Reporter, moves this Court to dismiss Plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). As an arm of the state, the Task Force is entitled to sovereign immunity under the Eleventh Amendment and is not subject to suit by private actors under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and state common-law claims asserting retaliatory discharge. Additionally, Plaintiff has failed to state a claim upon which relief can be granted under Tenn. Code Ann. § 50-2-103(h) or the Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-1-304. As a result, this Court should dismiss Plaintiff’s FLSA and state common-law claims pursuant to Fed. R. Civ. P. 12(b)(1). This Court should also dismiss Plaintiff’s Tenn. Code Ann. § 50-2-103(h) and TPPA claims pursuant to Fed. R. Civ. P. 12(b)(6). A Memorandum in Support of the Motion to Dismiss is filed Case 2:17-cv-02267-JPM-cgc Document 10 Filed 04/25/17 Page 1 of 2 PageID 53 2 herewith. The Task Force’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) is further supported by the Declaration of Thomas J. Helldorfer, Jr., also filed herewith. Respectfully submitted, HERBERT H. SLATERY III Attorney General and Reporter s/ James R. Newsom III James R. Newsom III, BPR #6683 Jim.Newsom@ag.tn.gov Special Counsel Robert W. Wilson Assistant Attorney General Robert.Wilson@ag.tn.gov Office of the Attorney General and Reporter 40 South Main Street, Suite 1014 Memphis, TN 38103-1877 (901) 543-2473 CERTIFICATE OF SERVICE I hereby certify that on the 25th day of April, 2017 a copy of the foregoing document was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. Parties may access this filing through the Court’s electronic filing system. s/ James R. Newsom III James R. Newsom, BPR #6683 Special Counsel Office of the Attorney General and Reporter 40 South Main Street, Suite 1014 Memphis, TN 38103-1877 (901) 543-2473 Jim.Newsom@ag.tn.gov Case 2:17-cv-02267-JPM-cgc Document 10 Filed 04/25/17 Page 2 of 2 PageID 54 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION MILTON RHEA, ) ) Plaintiff, ) ) No. 2:17-cv-02267 ) District Judge McCalla v. ) Magistrate Judge Claxton ) WEST TENNESSEE VIOLENT ) CRIME & DRUG TASK FORCE, ) and SHELBY COUNTY ) GOVERNMENT, ) ) Defendants. ) MEMORANDUM OF DEFENDANT WEST TENNESSEE VIOLENT CRIME & DRUG TASK FORCE IN SUPPORT OF ITS MOTION TO DISMISS Defendant, West Tennessee Violent Crime & Drug Task Force (“Task Force”), through its counsel, the Tennessee Attorney General and Reporter, files this Memorandum in Support of its Motion to Dismiss. The Task Force, as a state agency, is immune from suit as to claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and state common-law claims regarding retaliatory discharge. Additionally, Plaintiff has failed to state a claim upon which relief can be granted under Tenn. Code Ann. § 50-2-103(h) or the Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-1-304. As a result, this Court should dismiss Plaintiff’s FLSA and state common-law claims pursuant to Fed. R. Civ. P. 12(b)(1). This Court should also dismiss Plaintiff’s Tenn. Code Ann. § 50-2-103(h) and TPPA claims pursuant to Fed. R. Civ. P. 12(b)(6). Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 1 of 18 PageID 55 2 STATEMENT OF THE CASE Plaintiff asserts FLSA and state-law retaliatory discharge claims regarding his employment by the Task Force during the previous three years. See Complaint, ECF No. 1-3 at ¶ 50. During that period, the Tennessee District Attorneys General for the Twenty-Eighth, Twenty-Ninth, and Thirtieth Judicial Districts (“District Attorneys General”) operated the Task Force pursuant to a joint cooperation agreement. Declaration of Thomas (“Tim”) Helldorfer (Helldorfer Decl.), at p. 1, ¶¶ 4, 5. Tennessee statutes authorize district attorneys general to enter into such agreements. Tenn. Code Ann. § 12-9-104(b). The District Attorneys General created the Task Force for the purpose of “investigat[ing] violent crimes and drug crimes, and to enforce the laws prohibiting such conduct.” Helldorfer Decl. at p. 2, ¶ 9. The Task Force is financed by grants, asset forfeitures, and fines. Id. at p. 2, ¶ 12. It acquires property as a seizing agency pursuant to and in accordance with the asset forfeiture laws of Tennessee and the United States. Id. Upon termination of the Task Force Agreement, property not used to satisfy debts will be “assigned to the District Attorney for each District that generated the proceeds.” Id. at p. 2, ¶ 13. As the Task Force is an extension of the offices of the District Attorneys General, the Task Force Agreement does not create a separate legal entity. Id. at p. 2, ¶¶ 7, 8. The Task Force is governed by a board of directors consisting of the District Attorneys General and an appointed director. Id. at p. 2, ¶ 11. The District Attorneys General appoint the Task Force’s Director to oversee management and hiring, with the approval of the board of directors. Id. at p. 2, ¶ 11, p. 3, ¶ 14. Plaintiff was employed as a canine handler for the Task Force from November 2, 2009, until April 20, 2016. ECF No. 1-3 at ¶¶ 4, 18-19, 46-47. Plaintiff alleges that he was not compensated for time spent caring or training his canine (id. at ¶¶ 21-37), or for performing “the Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 2 of 18 PageID 56 3 general functions of a law enforcement officer” while off-duty. Id. at ¶¶ 39, 40-44. He also asserts that the Task Force terminated his employment on April 20, 2016, after he requested to be compensated for his “off-duty work.” Id. at ¶¶ 38, 46. According to Plaintiff, he was two months away from receiving his pension. Id. at ¶ 38. He claims that the denial of his pension “was another motivating force” for his termination. Id. Plaintiff claims that the Task Force violated the FLSA and the TPPA, and improperly committed common-law retaliatory discharge. Id. at ¶¶ 3, 49-69. Plaintiff requests that the Court award him a declaratory judgment regarding his claims under the FLSA and a compensatory judgment for such items as unpaid overtime compensation, punitive damages, liquidated damages, back and front pay damages, reasonable attorney’s fees and expenses, and punitive damages. Id. at pp. 11-12. Plaintiff further seeks an injunction enjoining the Task Force from “allowing such discrimination to occur in the future….” Id. at p. 11. Plaintiff’s claims against the Task Force should be dismissed either for lack of subject matter jurisdiction or for failing to state a claim upon which relief can be granted. ARGUMENT I. STANDARD OF REVIEW FOR MOTIONS TO DISMISS A. Rule 12(b)(1): Lack of Subject Matter Jurisdiction. Federal courts are courts of limited jurisdiction, possessing “only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). Therefore, subject matter jurisdiction is a threshold issue, which the Court must consider prior to reaching the merits of a case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998); see also Fed. R. Civ. P. 12(h)(3) (stating “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Unlike a motion Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 3 of 18 PageID 57 4 to dismiss on the merits under Rule 12(b)(6), “where subject matter jurisdiction is challenged under Rule 12(b)(1) … the plaintiff has the burden of proving jurisdiction in order to survive the motion.” RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996) (internal quotation marks and citation omitted). Fed. R. Civ. P. 12(b)(1) motions come in two varieties, either: a facial attack on the pleadings, or a factual attack on a federal court’s jurisdiction. Wayside Church v. Van Buren Cty., 847 F.3d 812, 816 (6th Cir. 2017). “A factual attack … is not a challenge to the sufficiency of the pleading’s allegations, but a challenge to the factual existence of the subject matter jurisdiction.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). “A state’s assertion of sovereign immunity constitutes a factual attack.” Heithcock v. Tenn. Dep’t of Children’s Servs., No. 3:14- CV-2377, 2015 WL 4879107, at *4 (M.D. Tenn. Aug. 14, 2015). A factual attack challenges the factual existence of subject matter jurisdiction, and a court has “broad discretion with respect to what evidence to consider in deciding whether subject matter jurisdiction exists, including evidence outside of the pleadings.” Cartwright v. Garner, 751 F.3d 752, 759-60 (6th Cir. 2014). Thus, this Court may look beyond Plaintiff’s complaint to determine whether it has subject matter jurisdiction. The Task Force, a Tennessee State entity, asserts sovereign immunity in regard to Plaintiff’s FLSA and common-law retaliatory discharge claims, and challenges this Court’s authority to adjudicate those claims against it. This constitutes a factual attack upon the Court’s jurisdiction, which allows the Court to consider documents outside of Plaintiff’s complaint. See Cartwright, 751 F.3d at 759-60. Thus, to determine whether the Task Force is entitled to sovereign immunity, this Court may look to the District Attorneys General’s joint cooperation agreement creating the Task Force to determine whether it has subject-matter jurisdiction. As shown herein, Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 4 of 18 PageID 58 5 the Task Force has sovereign immunity from Plaintiff’s FLSA and common law retaliatory discharge claims. B. Rule 12(b)(6): Failure to State a Claim upon which Relief Can be Granted. A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief” and give an opposing party “‘fair notice of what the . . . claim is and the grounds upon which it rests.’” Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although detailed factual allegations are not required, the complaint must offer more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Under Fed. R. Civ. P. 12(b)(6), a defendant may move to dismiss a complaint for “fail[ing] to state a claim upon which relief can be granted.” In determining whether to dismiss a complaint for failure to state a claim, a court will construe the complaint in the light most favorable to the plaintiff, accepting its allegations as true, and drawing all reasonable inferences in favor of the plaintiff. Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007), cert denied, 532 U.S. 1311 (2008). To survive a Rule 12(b)(6) motion to dismiss, a complaint must “‘state a claim to relief that rises above the speculative level’” and is “‘plausible on its face.’” Luis v. Zang, 833 F.3d 619, 625 (6th Cir. 2016) (quoting Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)). “A claim has facial plausibility when the plaintiff pleads 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). A plaintiff falls to state a plausible claim for relief where the complaint merely alleges facts that are consistent with a defendant’s liability, or fails to permit the court to infer more than the mere possibility of misconduct. Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (citing Iqbal, 556 U.S. at 678-79). Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 5 of 18 PageID 59 6 II. STATE ACTOR SOVEREIGN IMMUNITY “The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities.” Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002). The Eleventh Amendment to the United States Constitution provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. Sovereign immunity, which is neither derived from nor limited by the terms of the Eleventh Amendment, Alden v. Maine, 527 U.S. 706, 713 (1999), prevents courts from entertaining actions brought against the State by its own citizens without consent of the state. Hans v. Louisiana, 134 U.S. 1, 15 (1890). The Court has recognized that the significance of the Amendment “lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III” of the Constitution. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984). Accordingly, the Eleventh Amendment has been construed to prohibit citizens from suing their own states in federal court, even though the express terms of the Amendment refer only to suits by citizens of another State. Welch v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472 (1987). While several exceptions to such immunity exist-consent to the suit, League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 474 (6th Cir. 2008), congressional abrogation of the state’s immunity in legislation pursuant to its powers under the Fourteenth Amendment, Barton v. Summers, 293 F.3d 944, 948 (6th Cir. 2002), and suits for purely injunctive relief, Brunner, 548 F.3d at 474 (citing Ex parte Young, 209 U.S. 123, 155-56 (1908))-none apply in the current case. Moreover, the Tennessee General Assembly has not waived the State’s immunity to suit under 42 Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 6 of 18 PageID 60 7 U.S.C. § 1983. See Mich. Corr. Org. v. Mich. Dep’t of Corr., 774 F.3d 895, 904 (6th Cir. 2014). Tenn. Code Ann. § 20-13-102(a) provides: No court in the state shall have any power, jurisdiction or authority to entertain any suit against the state, or against any officer of the state acting by authority of the state, with a view to reach the state, its treasury, funds or property, and all such suits shall be dismissed as to the state or such officers, on motion, plea or demurrer of the law officer of the state, or counsel employed for the state. See also S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008). III. THE TASK FORCE IS AN ARM OF THE STATE. The Eleventh Amendment bars a private party from commencing suit against a State or “an arm of the State” in federal court. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429-30 (1997). To determine whether an entity is an “arm of the State,” a federal court employs four factors: (1) the State’s potential liability for a judgment against the entity; (2) the language by which State statutes and State courts refer to the entity, and the degree of State control and veto power over the entity’s actions; (3) whether State or local officials appoint the board members of the entity; and (4) whether the entity’s functions fall within the traditional purview of State or local government. Ernst v. Rising, 427 F.3d 351, 359 (6th Cir. 2005). A State’s potential legal liability for a judgment “is the foremost factor . . . and . . . controls the inquiry.” Id. Potential Liability. The Task Force is an “arm of the State.” First, hypothetically speaking, the State would be subject to potential legal liability if the Task Force did not have sufficient funds to satisfy a judgment awarded against it, making the State potentially liable for a judgment against the Task Force. See Gaffney v. Kentucky Higher Educ. Student Loan Corp., No. 3:15-cv-01441, 2016 WL 3688934, at *3 (M.D. Tenn. July 12, 2016) (citing Ernst, 427 F.3d at 359). The District Attorneys General’s offices, as state entities, created the Task Force as an extension of their offices Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 7 of 18 PageID 61 8 to investigate violent crimes and drug crimes, and to enforce criminal laws prohibiting such conduct. Helldorfer Decl. at p. 2, ¶¶ 8, 9; see Lee v. Knox Cnty. Sheriff’s Office, No. 3:05-CV- 571, 2006 WL 1075204, at *3 (E.D. Tenn. Apr. 21, 2006) (finding that “the Office of the District Attorney General is a state entity”). The Task Force acquires property through asset forfeitures and fines as a state entity in accordance with the laws of Tennessee and the United States. Helldorfer Decl. at p. 2, ¶ 12. Upon the Task Force Agreement’s termination, and after satisfying its debts, the Task Force is to distribute surplus property to the district attorney in the district where the Task Force obtained the property. Id. at p. 2, ¶ 13. This factor favors classifying the Task Force as an arm of the State. Tennessee law. Second, the Task Force is a state entity under Tennessee law. The District Attorneys General created the Task Force pursuant to Tennessee law. Tenn. Code Ann. § 12-9- 104(b); Helldorfer Decl. at p. 2, ¶ 6. Tennessee Code Annotated § 8-7-110(c) provides: Notwithstanding any other law to the contrary concerning members of judicial district task forces relating to the investigation and prosecution of alleged drug violations, if a claim or suit should be filed against an individual and it is proven that: (1) At the time of the alleged incident the individual was a member of such task force who was properly certified to the board of claims pursuant to [Tenn. Code Ann.] § 8-42-101(3)(C); and (2) The alleged liability arose out of the individual’s activities as a task force member; Then it shall be conclusively deemed that the individual was not an employee, agent or servant of a local government but was a volunteer to the state. “State employee” includes a volunteer “designated by the district attorney general of each judicial district as a member of a judicial district task force relating to the investigation and prosecution of drug cases.” Tenn. Code Ann. § 8-42-101(3)(C). Both federal district courts and Tennessee state courts have concluded that a drug task force is a state entity entitled to assert sovereign immunity. Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 8 of 18 PageID 62 9 Perez v. Wade, 652 F. Supp.2d 901, 904-05 (W.D. Tenn. 2009); see Coleman v. State, No. 01A01- 9805-BC-00239, 1999 WL 140568, at *3-4 (Tenn. Ct. App. Mar. 17, 1999) (finding that members of a judicial district drug task force are state employees), perm. app. denied (Tenn. Oct. 4, 1999); see also Jones v. Tennessee, No. 1:09-cv-171, 2010 WL 1417876, at *5 (E.D. Tenn. 2010) (concluding that a Tennessee judicial district task force is a state entity). The “Task Force is a state entity, and its members are state employees.” Perez, 652 F. Supp.2d at 905 (quoting Willis. v. Neal, No. 1:04-cv-305, 2006 WL 270288 (E.D. Tenn. Feb. 1, 2006), vacated in part on recons., 2006 WL 1129388 (E.D. Tenn. Apr. 24, 2006)). State Appointment of Members. Next, State officials appoint and hire members of the Task Force. The District Attorneys General appoint the Task Force’s director to oversee management and hiring. Helldorfer Decl. at p. 1, ¶ 5, Exh. 1 at p. 2, Art. II; p. 2, ¶ 11; p. 3, ¶ 14. The District Attorneys General, as Task Force board members, must approve the director’s hiring decisions, and new members hired exclusively by the Task Force are assigned to the Task Force by a District Attorney General. Id. at p. 3, ¶ 14, Exh. 1 at p. 2, Art. II. This factor also favors a finding that the Task Force is an arm of the State. State Purview over Function. Finally, the Task Force’s function falls within the traditional purview of State government. The Task Force was created by the District Attorneys General as an extension of their offices. Id. at p. 2, ¶ 8. The Task Force operates in multiple jurisdictions within West Tennessee to enforce criminal laws that prohibit violent crimes and drug crimes. Id. at p. 2, ¶¶ 9, 10. Applying the four factors identified in Ernst v. Rising, the Court should conclude that the Task Force is an “arm of the State” to which sovereign immunity applies. Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 9 of 18 PageID 63 10 IV. SOVEREIGN IMMUNITY BARS PLAINTIFF’S FLSA CLAIM AGAINST THE TASK FORCE. As an “arm of the State,” the Task Force may assert its sovereign immunity to bar suit in federal court. Mich. Corr. Org., 774 F.3d at 899-901. Although three exceptions are recognized to a state entity’s sovereign immunity, none of the exceptions apply to Plaintiff’s suit against the Task Force. Because the Task Force has sovereign immunity from suit, this Court lacks jurisdiction to adjudicate Plaintiff’s FLSA and common-law retaliatory discharge claims against the Task Force. A. The Task Force Has Neither Consented to Suit nor Waived Its Sovereign Immunity. The first exception applies when a State has waived its sovereign immunity. Lawson v. Shelby Cnty., 211 F.3d 331, 334 (6th Cir. 2000). Consent to suit in federal court may occur by a State’s express waiver or by defending the action on the merits. Id. Here, the Task Force, as an arm of the State of Tennessee, has neither consented to suit nor waived its sovereign immunity. See Fouse v. Tennessee, No. 1:15-1201, 2016 WL 4194245, at *2 (W.D. Tenn. Aug. 8, 2016) (“Tennessee has neither consented to suit nor waived its sovereign immunity.”). B. Congress Has Not Abrogated the Task Force’s Sovereign Immunity under the FLSA. The second exception to sovereign immunity applies where Congress enacts a statute to abrogate a State’s sovereign immunity. Lawson, 211 F.3d at 334. Congress effectively abrogates a state’s sovereign immunity by: (1) making a clear legislative statement to unequivocally express its intent to abrogate immunity; and (2) acting pursuant to a valid exercise of power. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996). The FLSA satisfies the first requirement, but not the second. Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 10 of 18 PageID 64 11 Under the FLSA, a party may bring suit against an employer, including a public agency, for violating the FLSA’s overtime provisions. See 29 U.S.C. § 216(b). The FLSA includes public agencies within its definition of “employer:” a “public agency” includes “any agency of . . . a State, or a political subdivision of a State.” 29 U.S.C. § 203(d), (x). Congress intended to enforce the FLSA through “its power to regulate commerce among the several states.” 29 U.S.C. § 202(b). By enacting these provisions, Congress sought to abrogate a State’s immunity and allow a party to sue a State in federal court for violating the FLSA. But Congress did not act pursuant to a valid exercise of power in attempting to abrogate a State’s sovereign immunity under the FLSA. Congress may not abrogate a State’s sovereign immunity by acting pursuant to its Article I commerce clause power. Alden v. Maine, 527 U.S. 706, 712 (1999); Mich. Corr. Org., 774 F.3d at 901 (“The Commerce Clause does not allow Congress to abrogate the States’ constitutional immunity from lawsuits by individuals.”). Since Congress failed to act pursuant to a proper power in enacting the FLSA, the second exception to the Task Force’s sovereign immunity does not apply. C. Plaintiff Is Not Entitled to Injunctive or Declaratory Relief. The final exception to sovereign immunity occurs when a federal court enjoins a state official from violating federal law under the doctrine announced in Ex parte Young, 209 U.S. 123 (1908). Lawson, 211 F.3d at 335. “The exception rests on the theory that . . . a state official who violates federal law is ‘stripped of his official or representative character.’” Mich. Corr. Org., 774 F.3d at 904 (quoting Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 254 (2011)). Here, Plaintiff sued the Task Force, a state entity. The Task Force is not a state official, and Plaintiff has not named a state official in his lawsuit. See ECF No. 1-3. Since the Ex parte Young doctrine only prevents state officials from violating federal law (see Mich. Corr. Org., 774 F.3d at 904), and the Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 11 of 18 PageID 65 12 Task Force is merely a state entity, Plaintiff is not entitled to injunctive relief under the Ex parte Young doctrine. Nor can Plaintiff establish injunctive relief pursuant to the FLSA. The FLSA does not create a private right of action for injunctive relief. Mich. Corr. Org., 774 F.3d at 903. The FLSA only allows the Administrator of the U.S. Department of Labor’s Wage and Hour Division to bring an action for injunctive relief. 29 U.S.C. § 211(a); Mich. Corr. Org., 774 F.3d at 903. Because Congress did not give Plaintiff a private right to bring injunctive relief under the FLSA, Plaintiff is not entitled to enjoin the Task Force Finally, Plaintiff is also not entitled to declaratory relief under the FLSA. The Declaratory Judgment Act allows a federal court to “declare the rights and other legal relations of any interested party” without granting other relief. 28 U.S.C. § 2201(a). However, the Act is not an independent basis for subject-matter jurisdiction. Toledo v. Jackson, 485 F.3d 836, 839 (6th Cir.), cert. denied, 552 U.S. 1037 (2007). To invoke the Act, “a federal court must ‘have jurisdiction already’ under some other federal statute.” Id. (quoting Heydon v. MediaOne of S.E. Mich., Inc., 327 F.3d 466, 470 (6th Cir. 2003). The Declaratory Judgment Act was only meant to “enlarge[] the range of remedies available in the federal courts but . . . not extend their jurisdiction.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950). “The FLSA does not provide a basis for [a] declaratory judgment action.” Mich. Corr. Org., 774 F.3d at 902-03. Here, this Court does not have the authority to grant Plaintiff’s request for declaratory relief. As shown above, the Task Force has sovereign immunity from Plaintiff’s suit, which prevents a federal court from asserting jurisdiction. This also prohibits a federal court from subjecting the Task Force to suit for declaratory relief. Id. at 903. And Plaintiff has no basis in Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 12 of 18 PageID 66 13 the FLSA to seek declaratory relief. Id. at 902-03. Plaintiff has no right to injunctive or declaratory relief through his FLSA claim. V. THIS COURT SHOULD EXERCISE SUPPLEMENTAL JURISDICTION OVER PLAINTIFF’S STATE LAW CLAIMS. A federal district court has “supplemental jurisdiction over all other claims other claims that are so related to claims in the action [the court’s] original jurisdiction that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). A court may decline to exercise supplemental jurisdiction if “the claim raises a novel or complex issue of State law,” or “the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(1), (3). A district court should consider such factors as comity, judicial economy, convenience, and fairness in determining whether to exercise supplemental jurisdiction. Pinney Dock & Transp. Co. v. Penn Cen. Corp., 196 F.3d 617, 620-21 (6th Cir. 1999). In general, a district court which has dismissed a plaintiff’s federal-law claim should not reach a plaintiff’s state-law claim unless the “interests of judicial economy and the avoidance of multiplicity of litigation” outweighs the concern over “needlessly deciding state law issues.” Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006) (quoting Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993)). The interests of judicial economy favors the exercise of supplemental jurisdiction. Plaintiff’s state-law claims-for statutory and common-law retaliatory discharge-are not “novel or complex” claims of state law. 28 U.S.C. § 1367(c)(1). Regarding Plaintiff’s common-law retaliatory discharge claim, the Task Force, as an arm of Tennessee, is immune from suit. See infra Part VI. In asserting a violation of the TPPA, Plaintiff failed to plead the elements of the claim, and failed to inform a person other than his supervisors regarding the Task Force’s alleged illegal activities. See infra Part VII. Plaintiff’s state-law claims are highly probable to result in Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 13 of 18 PageID 67 14 dismissal regardless of whether this Court or a state court exercises jurisdiction over the claims. Since the interests of judicial economy outweighs any concern over needlessly deciding state-law issues, this Court should exercise supplemental jurisdiction over Plaintiff’s state-law claims. VI. SOVEREIGN IMMUNITY BARS PLAINTIFF’S COMMON-LAW RETALIATORY DISCHARGE CLAIM AGAINST THE TASK FORCE. Petitioner’s common-law retaliatory discharge claim should be dismissed for lack of subject matter jurisdiction. Since Tennessee has not waived its sovereign immunity with regard to common-law retaliatory discharge claims, such claims are only available to private-sector employees. Williams v. City of Burns, 465 S.W.3d 96, 110 n.12 (Tenn. 2015) (“The common-law cause of action [for retaliatory discharge] is not available to public employees in Tennessee because Tennessee’s Legislature did not remove sovereign immunity for such actions.”) (citing Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 537 (Tenn. 2002)). As shown above, the Task Force is an arm of the state and not subject to those suits in which Tennessee has not waived its sovereign immunity. See supra, Part III. Thus, Plaintiff is barred from suing the Task Force for a common-law retaliatory discharge claim. VII. PLAINTIFF’S TPPA CLAIM SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. Count 2 of Plaintiff’s Complaint contains the heading “Violation of the Tennessee Public Protection Act T.C.A. §50-2-103(h).” ECF No. 1-3 at p. 9. Tenn. Code Ann. § 50-2-103(h) relates to the manner of wage payment and break periods. Hardy v. Tournament Players Club at Southwind, Inc., No. W2014-02286-SC-R11-CV, 2017 WL 922482, at *7, ___ S.W.3d ____ (Tenn. Mar. 8, 2017). Tenn. Code Ann. § 50-2-103 as a whole relates to “wages or compensation in private employments,” not to public employment. Tenn. Code Ann. § 50-2-103(a). “Private Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 14 of 18 PageID 68 15 employment” includes “all employments in concerns where five . . . or more employees are employed, except those under the direct manage, supervision and control of . . . this state.” Tenn. Code Ann. § 50-2-103(b). And only the “department of labor and workforce development” has the authority to “enforce th[e] section.” Tenn. Code Ann. § 50-2-103(j). Plaintiff fails to state a claim pursuant to Tenn. Code Ann. § 50-2-103(h) upon which relief can be granted. Assuming that Plaintiff seeks to state a claim against the Task Force pursuant to the TPPA, his claims should be dismissed. The TPPA prohibits an employer from discharging or terminating an “employee . . . solely for refusing to participate in, or for refusing to remain silent about, illegal activities.” Tenn. Code Ann. § 50-1-304(b). An employee has a cause of action against an employer for the discharge or termination. See Tenn. Code Ann. § 50-1-304(c)(1). An “employee” includes “[a] person employed by the state . . . or any other entity of the state;” an “employer” includes “[t]he state or . . . any other entity of the state.” Tenn. Code Ann. § 50-1-304(a)(1)-(2). To state a claim under the TPPA, a plaintiff must show that: (1) he was an employee of the defendant; (2) the plaintiff refused to participate in or remain silent about illegal activity; (3) the defendant discharged or terminated the plaintiff’s employment; and (4) the defendant terminated the plaintiff’s employment solely for the plaintiff’s refusal to participate in or remain silent about the illegal activity. Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 27 (Tenn. 2011). By requiring the plaintiff to establish that his discharge or termination was due solely for refusing to participate in or for refusing to remain silent about illegal activities, “the legislature has chosen to enact a stringent standard and set the bar high for recovery under a retaliatory discharge claim pursuant to the [TPPA].” Id. at 28. A plaintiff’s whistleblowing action must not be for merely private or proprietary gain, but must “serve[] a public purpose” and seek to further the public good. Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 537 n.4 (Tenn. 2002) (quoting Wagner v. City Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 15 of 18 PageID 69 16 of Globe, 722 P.2d 250, 257 (Ariz. 1986)). A plaintiff fails to further the public good by “merely report[ing] unlawful activity to the person responsible” for the illegal activity, including managers, owners, or the highest authority within a company. Haynes v. Formac Stables, Inc., 463 S.W.3d 34, 40-41 (Tenn. 2015). Plaintiff has failed to state a claim upon which relief can be granted under the TPPA. First, Plaintiff merely reported the alleged unlawful activity to those responsible for the activity. According to his complaint, Plaintiff reported to his commanding officers that he was not compensated for his off-duty work in caring for and training his canine, and for issuing traffic tickets while “off the clock.” ECF No. 1-3 at ¶¶ 36-38, 42-43. Plaintiff informed his commanding officers who had “the authority to determine the work schedules” about his complaints. Id. at ¶¶ 10, 36-37. Plaintiff’s commanding officers “repeatedly told” Plaintiff that he was not entitled to such compensation. Id. at ¶¶ 36-37. By “merely report[ing] unlawful activity to the person[s] responsible,” Plaintiff failed to state a claim that would entitle him to relief. Haynes, 463 S.W.3d at 40-41. To properly assert a TPPA claim, Plaintiff was required to inform a person not responsible for the alleged illegal activity. Id. He asserts no such claim. Only Plaintiff’s commanding officers who had supervising and schedule-making authority over Plaintiff knew about his complaints. ECF No. 1-3 at ¶¶ 36- 38. Secondly, Plaintiff fails to assert that the reason for his termination was due “solely for refusing to participate in, or for refusing to remain silent about, illegal activities.” Tenn. Code Ann. § 50-1-304(b). In his complaint, Plaintiff asserted that the Task Force “[d]enying . . . Plaintiff . . . his pension was another motivating force by the [Task Force] to terminate him.” ECF No. 1- 3 at ¶ 38. The TPPA “require[s] the plaintiff to demonstrate that his whistleblowing behavior was Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 16 of 18 PageID 70 17 the sole reason for his termination.” Guy, 79 S.W.3d at 537. Plaintiff has asserted two separate motivating factors as to why the Task Force fired him. Thus, Plaintiff has failed to state a statutorily cognizable claim for retaliatory discharge under the TPPA. In his complaint, Plaintiff also asserts that the Task Force’s actions violate Tenn. Code Ann. § 50-2-103(h). ECF No. 1-3 at pp. 9-10. However, that section only applies to “employees in private employments.” Tenn. Code Ann. § 50-2-103(a). CONCLUSION Since this Court is without jurisdiction to hear Plaintiff’s FLSA and common-law retaliatory discharge claims, Plaintiffs’ claims against the West Tennessee Violent Crime & Drug Task Force should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Because Plaintiff has failed to state a Tenn. Code Ann. § 50-2-103(h) or TPPA claim upon which relief can be granted, this Court should dismiss Plaintiff’s claims against the West Tennessee Violent Crime & Drug Task Force pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 17 of 18 PageID 71 18 Respectfully submitted, HERBERT H. SLATERY III Attorney General and Reporter s/ James R. Newsom III James R. Newsom III, BPR #6683 Jim.Newsom@ag.tn.gov Special Counsel Office of the Attorney General and Reporter 40 South Main Street, Suite 1014 Memphis, TN 38103-1877 (901) 543-2473 s/ Robert W. Wilson Robert W. Wilson, BPR #034492 Robert.Wilson@ag.tn.gov Assistant Attorney General Office of the Attorney General and Reporter 500 Charlotte Avenue Nashville, Tennessee 37243 (615) 532-7911 CERTIFICATE OF SERVICE I hereby certify that on the 25th day of April, 2017 a copy of the foregoing document was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. Parties may access this filing through the Court’s electronic filing system. s/ James R. Newsom III James R. Newsom III, BPR #6683 Special Counsel Office of the Attorney General and Reporter 40 South Main Street, Suite 1014 Memphis, TN 38103-1877 (901) 543-2473 Jim.Newsom@ag.tn.gov Case 2:17-cv-02267-JPM-cgc Document 10-1 Filed 04/25/17 Page 18 of 18 PageID 72 Case 2:17-cv-02267-JPM-cgc Document 10-2 Filed 04/25/17 Page 1 of 4 PageID 73 Case 2:17-cv-02267-JPM-cgc Document 10-2 Filed 04/25/17 Page 2 of 4 PageID 74 Case 2:17-cv-02267-JPM-cgc Document 10-2 Filed 04/25/17 Page 3 of 4 PageID 75 Case 2:17-cv-02267-JPM-cgc Document 10-2 Filed 04/25/17 Page 4 of 4 PageID 76 Case 2:17-cv-02267-JPM-cgc Document 10-3 Filed 04/25/17 Page 1 of 4 PageID 77 Case 2:17-cv-02267-JPM-cgc Document 10-3 Filed 04/25/17 Page 2 of 4 PageID 78 Case 2:17-cv-02267-JPM-cgc Document 10-3 Filed 04/25/17 Page 3 of 4 PageID 79 Case 2:17-cv-02267-JPM-cgc Document 10-3 Filed 04/25/17 Page 4 of 4 PageID 80