Casey Phillips v. Chattanooga Fire and Police Pension Fund ( 2022 )

11/02/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 3, 2022
CASEY PHILLIPS v. CHATTANOOGA FIRE AND POLICE PENSION
FUND
Appeal from the Chancery Court for Hamilton County
No. 210682 Jeffrey M. Atherton, Chancellor
___________________________________
No. E2022-00296-COA-R3-CV
___________________________________
Appellant filed for disability benefits with the Appellee, Chattanooga Fire and Police
Pension Fund (“CFPPF”). The CFPPF board denied Appellant’s application by letter dated
October 27, 2020. On June 28, 2021, Appellant filed a request for rehearing with the board;
the board denied rehearing by letter dated August 19, 2021. On September 10, 2021,
Appellant filed a petition for writ of certiorari seeking review in the trial court, and the
CFPPF moved to dismiss under Tennessee Rule of Civil Procedure 12.02. The trial court
held that the Uniform Administrative Procedures Act (“UAPA”) applied and further held
that the board’s October 27, 2020 was not compliant with the UAPA requirements for final
orders. Nonetheless, the trial court held that the October 27, 2020 letter was a final order
so as to trigger the sixty-day time for filing for review in the trial court and dismissed
Appellant’s petition with prejudice. Because the October 27, 2020 order was not UAPA-
compliant, it did not constitute a final order so as to trigger the running of the sixty-day
statute of limitations. As such, the trial court erred in dismissing Appellant’s petition with
prejudice. Reversed and remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.
Hudson T. Ellis, Chattanooga, Tennessee, for the appellant, Casey Phillips.
William E. Robinson, Cameron Hill, and Ashley B. Gibson, Chattanooga, Tennessee, for
the appellee, Chattanooga Fire and Police Pension Fund.
OPINION
I. Background
The relevant facts are not disputed and are taken from Appellant Casey Phillips’
petition for writ of certiorari. Appellee CFPPF was established for the benefit of
firefighters and police officers who work for the City of Chattanooga. The CFPPF is a
defined-benefit plan and provides members of the Chattanooga Police and Fire Department
with certain retirement, disability, and death benefits. These benefits include coverage for
job-related disability when a member is “unable to perform his/her duties as a Firefighter
or Police Officer due to an injury or illness that is the result of the performance of sworn
duties.” The CFPPF is administered and governed by a Board of Directors (the “Board”),
consisting of three active members of the Chattanooga Police Department, a member
appointed by the Mayor of Chattanooga, and a member appointed by the Chattanooga City
Council.
Mr. Phillips worked as a Chattanooga firefighter for approximately twenty years.
During his tenure, and as enumerated in detail in his petition, Mr. Phillips witnessed many
“horror inducing events.” As a result of “his prolonged exposure to tragedy and trauma at
work, he [allegedly] developed permanent and chronic PTSD.” On January 31, 2020, Mr.
Phillips submitted an application for job-related disability benefits to the CFPPF. The
Board held a hearing on October 20, 2020; Mr. Phillips attended the hearing and presented
evidence to support his claim. By letter of October 27, 2020, which is set out below, the
Board denied Mr. Phillips’ application.
Approximately eight months after the Board denied his claim, on June 28, 2021,
Mr. Phillips requested that the Board reconsider its decision based on alleged new
evidence. By letter of August 19, 2021, which is set out below, the Board denied Mr.
Phillips’ request for rehearing.
On September 10, 2021, Mr. Phillips filed a petition for writ of certiorari in the
Chancery Court for Hamilton County (the “trial court”). Mr. Phillips’ petition was brought
under Tennessee Code Annotated section 27-8-101 (“The writ of certiorari may be granted
whenever authorized by law, and also in all cases where an inferior tribunal, board, or
officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting
illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate
remedy.”), and Tennessee Code Annotated section 27-9-101 (“Anyone who may be
aggrieved by any final order or judgment of any board or commission functioning under
the laws of this state may have the order or judgment reviewed by the courts, where not
otherwise specifically provided, in the manner provided by this chapter.”).
On October 15, 2021, CFPPF moved to dismiss the petition under Tennessee Rule
of Civil Procedure 12.02 for lack of subject matter jurisdiction. Specifically, CFPPF
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argued that Mr. Phillips’ petition was filed outside the sixty-day time limit for filing
petitions for writs of certiorari. Tenn. Code Ann. § 27-9-102 (“Such party shall, within
sixty (60) days from the entry of the order or judgment, file a petition of certiorari in the
chancery court . . . .”). CFPPF’s motion was premised on its position that the Board’s
October 27, 2020 letter constituted a final order, which began the running of the sixty-day
time limit. Thus, CFPPF argued that Mr. Phillips’ September 10, 2021 petition was
untimely. Mr. Phillips opposed the motion to dismiss, arguing, inter alia, that the Board’s
August 19, 2021 letter constituted its final order so as to render his September 10, 2021
petition timely.
Following a hearing, the trial court granted CFPPF’s motion to dismiss by order of
December 22, 2021. The trial court’s order incorporates, by reference, a portion of the
transcript outlining the reasons for its ruling. In pertinent part, the transcript provides:
This Court finds that that Exhibit C that was presented attached to the motion
to dismiss [i.e., the Board’s] October the 27th, 2020 [letter], represents a final
order of this [B]oard.
***
The Court is satisfied that the Uniform Administrative Procedures Act does,
in fact, apply to those proceedings before this [B]oard.
The Court is quite satisfied that in terms of the language contained in
the October 27th, 2020 order[, it] is clearly, facially, and statutorily
deficient[, which] appear[s] to render that order [] noncompliant, if not
defective. However, the Court also considers the provisions[, and] I start with
27-9-114. . . . [a]nd specifically under (b)(1), it sends me over to T.C.A. 4-5-
322, which then sends me over to 4-5-322(b)(1)(A)(i)(iv), petitions seeking
judicial review shall be filed within 60 days after the entry of the agency’s
final order thereon. This Court considers that particular time provision to be
jurisdictional in nature. So this Court reluctantly grants the motion to dismiss.
On January 18, 2022, Mr. Phillips filed a motion to alter or amend the judgment, which the
trial court denied by order of February 24, 2022. Mr. Phillips appeals.
II. Issues
Mr. Phillips raises the following issues for review as stated in his brief:
1. The Trial Court erred in failing to remedy the appellee’s violation of the
administrative procedure act
2. In the alternative, the Trial Court erred in finding Appellee’s procedures
do not provide an appeal right.
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III. Standard of Review
The trial court dismissed Mr. Phillips’ petition for lack of subject matter jurisdiction.
The Tennessee Supreme Court has explained the standard of review applicable to such
motions:
A motion to dismiss for lack of subject matter jurisdiction falls within
the purview of Tenn. R. Civ. P. 12.02(1). Challenges to a court’s subject
matter jurisdiction call into question the court’s “lawful authority to
adjudicate a controversy brought before it,” Northland Ins. Co. v. State, 33
S.W.3d 727, 729 (Tenn. 2000), and, therefore, should be viewed as a
threshold inquiry. Schmidt v. Catholic Diocese of Biloxi, 2008-CA-00416-
SCT (¶ 13), 18 So.3d 814, 821 (Miss. 2009). Whenever subject matter
jurisdiction is challenged, the burden is on the plaintiff to demonstrate that
the court has jurisdiction to adjudicate the claim. See Staats v. McKinnon,
206 S.W.3d 532, 543 (Tenn. Ct. App. 2006); 1 Lawrence A. Pivnick,
Tennessee Circuit Court Practice § 3:2 (2011 ed.) . . . .
Litigants may take issue with a court’s subject matter jurisdiction
using either a facial challenge or a factual challenge. See, e.g., Schutte v.
Johnson, 337 S.W.3d 767, 769-70 (Tenn. Ct. App. 2010); Staats v.
McKinnon, 206 S.W.3d at 542. A facial challenge is a challenge to the
complaint itself. See Schutte v. Johnson, 337 S.W.3d at 769. Thus, when a
defendant asserts a facial challenge to a court’s subject matter jurisdiction,
the factual allegations in the plaintiff’s complaint are presumed to be true.
See, e.g., Staats v. McKinnon, 206 S.W.3d at 542-43.
Alternatively, “[a] factual challenge denies that the court actually has
subject matter jurisdiction as a matter of fact even though the complaint
alleges facts tending to show jurisdiction.” Staats v. McKinnon, 206 S.W.3d
at 543. Thus, the factual challenge “attacks the facts serving as the basis for
jurisdiction.” Schutte v. Johnson, 337 S.W.3d at 770.
Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 445-46 (Tenn.
2012) (footnotes omitted). As noted above, in its motion to dismiss, CFPPF does not
challenge the facts set out in Mr. Phillips’ petition; rather, it asserts that the petition was
not filed within sixty days of entry of the Board’s final decision, as required by Tenn. Code
Ann. § 27-9-102. As such, we consider this a facial challenge to the trial court’s subject
matter jurisdiction, and the determination of whether the trial court had subject matter
jurisdiction is a question of law, which we review de novo, with no presumption of
correctness. Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000).
IV. Analysis
In its October 27, 2020 letter denying Mr. Phillips’ application for disability
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benefits, the Board stated:
The Chattanooga Fire and Police Pension Board held a disability
application review hearing on October 27, 2020, regarding the application of
Firefighter Senior Casey Phillips for a Job-related disability. During the
application process, all medical records, information provided by the
applicant, information gathered by the Pension Board, the application, and
other related documents and information were reviewed and considered by
sworn board members . . . . Per the Disability Benefit Policy, the Board also
opted to hold a transcribed hearing at which time Firefighter Senior Casey
Phillips was given the opportunity to testify and offer comments in support
of his application.
For the reasons which follow, having considered the pension
legislation, the pension policies and procedures, all medical records,
information provided by the applicant, information gathered by the Pension
Board, the application, and other related documents and information, having
heard the testimony of Firefighter Senior Casey Phillips, and having
reasonably considered the merits, opinions, and credibility of all such
documents, information, and testimony, the application for Firefighter Senior
Casey Phillips is DENIED.
The effective date of the decision regarding disability shall be October
27, 2020.
At Tennessee Code Annotated section 4-5-314(c), the Uniform Administrative
Procedures Act (“UAPA”) provides:
(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 and, if applicable, the
action taken on a petition for stay of effectiveness. Findings of fact, if set
forth in language that is no more than mere repetition or paraphrase of the
relevant provision of law, shall be accompanied by a concise and explicit
statement of the underlying facts of record to support the findings. The final
order, initial order or decision must also include a statement of the available
procedures and time limits for seeking reconsideration or other
administrative relief and the time limits for seeking judicial review of the
final order. An initial order or decision shall include a statement of any
circumstances under which the initial order or decision may, without further
notice, become a final order.
At the hearing on the motion to dismiss, Appellee’s attorney conceded that the Board’s
October 27, 2020 ruling did not comply with the foregoing statute:
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THE COURT: All right. So we’ll back up a second. I’m assuming that
since this document that was attached to the motion specifically as Exhibit C
[i.e., the October 27, 2020 ruling] represents the entirety of the order from
the board, I’m assuming we’ll agree that there are certain things that are
discussed in 4-5-314(c) that do not exist in the order hand delivered to the
plaintiff on October the 27th, 2020. Can we agree on that?
MS. GIBSON [Attorney for Appellee]: Your Honor, we would agree,
but I think this brings us back to the question as to whether all of the
provisions of UAPA apply.
Appellee’s counsel later clarified that the Board’s ruling “did not provide a deadline, [or]
timing information.” Furthermore, in the transcript of its ruling, supra, the trial court held
that the October 27, 2020 letter was “facially, and statutorily deficient,” which “appear[s]
to render that order [] noncompliant, if not defective.” Nonetheless, CFPPF maintained that
not all of the UAPA provisions were applicable to the Board’s order because Appellant
sought review by writ of certiorari. Tenn. Code Ann. §§ 27-8-101, et seq. As such, CFPPF
argued that the Board’s failure to include all of the section 4-5-314(c) requirements in its
October 27, 2021 letter did not bear on the finality of the Board’s ruling. Mr. Phillips,
however, maintained that the October 27, 2020 was not a final order under the UAPA so
as to trigger the sixty-day time limit under Tennessee Code Annotated section 27-9-102.
Rather, he argued that the Tennessee Code Annotated section 27-9-102, sixty-day time
limit ran from August 10, 2021, the date of the Board’s denial of his petition for rehearing.
Thus, Mr. Phillips contends that his September 10, 2021 petition for writ of certiorari was
timely. For the reasons discussed below, neither party’s argument is correct.
From our review of the record and the parties’ respective briefs, it appears that there
is some confusion as to whether Mr. Phillips’ appeal to the trial court arose under a
common law writ of certiorari, or under the UAPA. Although, in the transcript of its ruling,
supra, the trial court stated that it was “satisfied that the Uniform Administrative
Procedures Act does, in fact, apply to those proceedings before this [B]oard,” it did not
address how or whether this finding bears on the fact that Mr. Phillips was proceeding
under a petition for writ of certiorari. Accordingly, we first address whether the UAPA is
applicable to Mr. Phillips’ case.
Tennessee Code 27-9-114 provides, in relevant part:
(a)(1) Contested case hearings by civil service boards of a county or
municipality which affect the employment status of a civil service employee
shall be conducted in conformity with contested case procedures under the
Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part
3.
***
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(b)(1) Judicial review of decisions by civil service boards of a county or
municipality which affects the employment status of a county or city civil
service employee shall be in conformity with the judicial review standards
under the Uniform Administrative Procedures Act, § 4-5-322.
In Tidwell v. City of Memphis, 193 S.W.3d 555 (Tenn. 2016), the Tennessee
Supreme Court explained:
[Tennessee Code Annotated] section 27-9-114 originally provided that the
common law writ of certiorari was the appropriate method of judicial review
of administrative determinations affecting the employment status of
municipal employees. See Huddleston v. City of Murfreesboro, 635 S.W.2d
694, 695-96 (Tenn. 1982) (holding that section 27-9-114 is the “exclusive
remedy for judicial review of administrative determinations respecting the
employment status of such employees”). Effective January 1, 1989, however,
the legislature amended section 27-9-114 by deleting the provision requiring
review by common law certiorari and replacing it with the current provision
providing for judicial review under the UAPA. See Tenn. Code Ann. § 27-
9-114(b)(1). The amendment also mandated that the contested case
procedures of the UAPA be applied to those cases falling within the scope of
section 27-9-114(a)(1). Id.In order for section 27-9-114(a)(1) to apply, there must (1) be a
proceeding before a “civil service board” and (2) a decision that affects the
“employment status” of a civil service employee. In the absence of either of
these two prerequisites, the provisions of section 27-9-114 do not apply. If
section 27-9-114 does not apply, then review is under the common law writ
of certiorari, which limits the review to whether the administrative agency
has exceeded its authority or has acted illegally, arbitrarily, or fraudulently.
See McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn.1990).
On the other hand, if section 27-9-114 does apply, the UAPA governs.
Under the UAPA, an administrative agency’s decision may be reversed if the
court determines that the decision was, among other things, “made upon
unlawful procedure.” See Tenn. Code Ann. § 4-5-322(h)(3) (2005).
Tidwell, 193 S.W.3d at 559-560 (holding that the “On the Job Injury Appeals Panel” for
the City of Memphis is subject to the contested case procedures set forth in the UAPA).
The Tidwell Court went on to explain that “[a]fter the 1988 amendment, the courts
continued to apply section 27-9-114 to the decisions of municipal entities that, while not
called civil service boards, effectively sat as civil service boards by making decisions that
affected a worker’s employment status.” Id. at 561 (citing, inter alia, Bullard v. City of
Chattanooga Firemen's & Policemen Ins. & Pension Fund, No. 03A01-9705-CH-00193,
1998 WL 90834 (Tenn. Ct. App. Mar. 3, 1998) (applying the UAPA to the denial of
pension benefits by a pension fund board)). Concerning what constitutes a “decision that
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affects the ‘employment status’ of a civil service employee” for purposes of applicability
of section 27-9-114(a)(1), the Tidwell Court reasoned that:
Like the phrase “civil service board,” the phrase “employment status” is not
defined in section 27-9-114. In addition, unlike the phrase “civil service
board,” there are no other statutes that offer insight into the meaning of
employment status. However, at the time of the amendment to section 27-9-
114, there was a judicial definition of employment status for purposes of
section 27-9-114. Under the case law existing at the time of the statute’s
revision, employment status encompassed the “entire legal relation of the
employee to the employer.” Love v. Ret. Sys. of the City of Memphis, 1987
WL 17246 at *1 (Tenn. Ct. App. Sept.21, 1987).
Tidwell, 193 S.W.3d at 563. “The court in Love stated that ‘we are of the opinion that
[section 27-9-114] is not limited to [employee discharges and suspensions]. The term
‘employment status' encompasses the entire legal relation of the employee to the employer.
An employee’s eligibility for retirement benefits is an important aspect of that relation.”
Id. at fn. 9 (citing Love, 1987 WL 17246 at *1).
Relying on Tidwell, this Court has held that the UAPA governs pension board
decisions:
Under prior law, the common law writ was the proper method of review for
Pension Board decisions. See Tidwell v. City of Memphis, 193 S.W.3d 555,
559 (Tenn. 2006) (discussing prior version of Tenn. Code Ann. § 27-9-114).
But effective January 1, 1989, the UAPA became the governing standard.
See id.; see also Tenn. Code Ann. § 27-9-114(b)(1) (2017); Marino v. Bd. of
Admin. City of Memphis Ret. Sys., W2015-00283-COA-R9-CV, 2015 WL
7169796, at *5 (Tenn. Ct. App. Nov. 16, 2015) (holding that the UAPA
governed Pension Board decisions).
Murell v. Board of Administration City of Memphis Pension and Retirement System, No.
W2020-00187-COA-R3-CV, 2021 WL 1233500, at *3 (Tenn. Ct. App. March 21, 2021).
In Montgomery v. Metropolitan Gov’t of Nashville and Davidson County, No.
M2005-02824-COA-R3-CV, 2007 WL 3072774 (Tenn. Ct. App. Oct. 22, 2007), this Court
clarified that:
It is important to recognize that the conclusion that the Administrative
Procedures Act applies to [appellant’s] application for disability benefits
affects not only the standard of review to be applied in the trial court and this
court, it also changes the fundamental nature of the proceedings before
the Board.
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Montgomery, 2007 WL 3072774, at *4 (emphasis added). In other words, if the UAPA
applies, it applies at all stages of the proceedings from the board through the appellate
process. Tidwell, 193 S.W.3d at 559 (“The [1989] amendment also mandated that the
contested case procedures of the UAPA be applied to those cases falling within the scope
of section 27-9-114(a)(1)”); see also Murell, 2021 WL 1233500, at *4 (“The UAPA is the
governing standard[, and] [i]t is undisputed that the Pension Board was required to provide
a UAPA-compliant contested case hearing.”). So, from the foregoing, we hold that the
UAPA applies to Appellant’s claim for disability benefits, and the Board “was required to
provide a UAPA-compliant contested case hearing.” Murell, 2021 WL 1233500, at *4.
The fact that Appellant erroneously proceeded on a writ of certiorari is not fatal. In
Murrell, this Court addressed a similar scenario. In that case, police officers filed a petition
for writ of certiorari seeking judicial review of a municipal board’s decision to approve a
monthly amount of pension benefits for each officer. Murrell, 2021 WL 1233500, at *1.
The trial court ruled that the UAPA, not the common-law writ of certiorari, governed
judicial review of the pension board’s decision and dismissed the “improper” petition. Id.
at *2. This Court reversed the trial court’s decision, reasoning that:
Without question, the petition was filed on the wrong basis. . . . Even so,
dismissal was not mandatory. The trial court had discretion to treat the
“improper” petition as a petition for judicial review under the UAPA. See
Fallin v. Knox Cty. Bd. of Comm'rs, 656 S.W.2d 338, 342 (Tenn. 1983)
(explaining that “rather than dismiss the action” a trial court may treat the
petition as if it were filed on the proper basis). The title of a pleading is not
binding on the court. Norton [v. Everhart], 895 S.W.2d [317,] at 319 [(Tenn.
1996)]; Tolliver v. Tellico Village Property Owners Ass’n, 579 S.W.3d 8,
16 (Tenn. Ct. App. 2019). Our courts give effect to the substance of a
pleading. See Tolliver, 579 S.W.3d at 16; Cooper v. City of Memphis Civil
Serv. Comm'n, W2018-01112-COA-R3-CV, 2019 WL 3774086, at *2 & n.2
(Tenn. Ct. App. Aug. 12, 2019) (treating petition styled as a “Petition for
Writ of Certiorari” as a petition for judicial review under the UAPA).
In substance, the petition sought judicial review of the Pension
Board’s decision. The petitioners chose the wrong review mechanism. But
there is clear precedent for disregarding this mistake. See Fallin, 656 S.W.2d
at 342.
Murrell, 2021 WL 1233500, at *3-*4. The Murrell Court went on to hold that “the proper
remedy was to remand the matter to the Pension Board with ‘an appropriate order directing
the City to comply with the UAPA . . . .’” Id. at *4 (citing Tidwell, 193 S.W.3d at 564).
Here, however, the trial court was faced with the question of subject matter jurisdiction
based on Appellant’s alleged failure to file his petition for writ of certiorari within the sixty-
day time limit under Tennessee Code Annotated section 27-9-102. Based on the foregoing
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analysis, Tennessee Code Annotated section 27-9-102 is not applicable here. However,
the UAPA outlines similar procedure. Tennessee Code Annotated section 4-5-322(a)(1)
states that “[a] person who is aggrieved by a final decision in a contested case is entitled
to judicial review under this chapter. . . .” (emphasis added). “Petitions seeking judicial
review shall be filed within sixty (60) days after the entry of the agency’s final order
thereon.” Tenn. Code Ann. § 4-5-322(b)(1)(A)(iv) (emphasis added). This, of course,
brings us back to the same question that began our analysis, i.e., whether Appellant’s sixty-
day time period ran from the Board’s October 27, 2020 letter denying Mr. Phillips’
application for benefits, or from its August 10, 2021 letter denying rehearing. Based on
the following analysis, we conclude that neither letter triggered the 60-day time limit.
Turning to the October 27, 2020 letter, CFPPF admitted both that the letter
“represents the entirety of the order from the board,” and that this ruling failed to comply
with the requirements for finality of orders under Tennessee Code Annotated section 4-5-
314(c). We agree. As set out in full context above, the October 27, 2020 order fails the
requirements of section 4-5-314(c) in several regards. First, as admitted by Appellee’s
counsel at the hearing, the letter failed to “include a statement of the available procedures
and time limits for seeking reconsideration or other administrative relief and the time limits
for seeking judicial review of the final order.” Tenn. Code Ann. § 4-5-314(c). However,
from our review, the letter also failed to “include a statement of any circumstances under
which the initial order or decision may, without further notice, become a final order.” Id.Furthermore, the Board’s letter merely recites the evidence adduced at the hearing, i.e., “all
medical records, information provided by the applicant, information gathered by the
Pension Board, the application, and other related documents and information were
reviewed and considered by sworn board members.” The letter goes on to recite that the
Board also “considered the pension legislation, the pension policies and procedures” in
reaching its decision to deny Mr. Phillips’ application. The letter concludes broadly that,
“having reasonably considered the merits, opinions, and credibility of all such documents,
information, and testimony, the application for Firefighter Senior Casey Phillips is
DENIED.” What is absent from the letter is the required “concise and explicit statement
of the underlying facts of record to support the findings.” Id. A simple recitation of the
documents and information considered, without more, does not constitute findings of fact.
The requirements set out at Tennessee Code Annotated section 4-5-314(c) are mandatory,
i.e., “shall be accompanied by a concise and explicit statement of the underlying facts of
record to support the findings”; “must also include a statement of the available procedures
and time limits for seeking reconsideration or other administrative relief and the time limits
for seeking judicial review of the final order”; and “shall include a statement of any
circumstances under which the initial order or decision may, without further notice,
become a final order.” The Tennessee Supreme Court has recognized that when the word
“shall” is used in a statute or rule, it is ordinarily construed as being mandatory and not
discretionary. Gabel v. Lerma, 812 S.W.2d 580 (Tenn. 1990); accord Stubbs v. State, 393
S.W.2d 150 (Tenn. 1965). Here, the Board “was required to provide a UAPA-compliant
contested case hearing,” Tidwell, 193 S.W.3d at 559; Murrell, 2021 WL 1233500, at *4
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(citation omitted). Because it failed to comply with the mandates of the UAPA concerning
entry of final orders, Tenn. Code Ann. § 4-5-314(c), the October 27, 2020 letter does not
constitute “a final order” so as to give rise to a right of judicial review under Tennessee
Code Annotated 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. . . ”). Because the October
27, 2020 order was not a final order, the sixty-day time period was not triggered under
Tennessee Code Annotated section 4-5-322(b)(1)(A)(iv) (“Petitions seeking judicial
review shall be filed within sixty (60) days after the entry of the agency’s final order
thereon.”).
We further note that the mandatory requirements of Tennessee Code Annotated
section 4-5-314(c) apply not only to a board’s final order, but also to any initial orders, to-
wit:
[an] initial order or decision must also include a statement of the available
procedures and time limits for seeking reconsideration or other
administrative relief and the time limits for seeking judicial review of the
final order. An initial order or decision shall include a statement of any
circumstances under which the initial order or decision may, without further
notice, become a final order.
Tenn. Code Ann. § 4-5-314(c). Therefore, the October 27, 2020 letter constitutes neither
a final order, nor an initial order.
Concerning Mr. Phillips’ argument that the Board’s August 10, 2021 letter denying
rehearing constitutes the final order of the Board, we disagree. The August 10, 2021 letter
states:
The Chattanooga Fire & Police Pension Fund [is] in receipt of your
letter dated June 28, 2021 regarding Mr. Phillips. At its regularly scheduled
meeting held on August 5, 2021, the Board denied your request for a new
hearing, relying on the applicable pension policies and procedures and
pension legislation.
The applicable Member’s Guide to Disability Benefits and the
Summary Plan Description provide the following:
If the disability is denied or an alternative type of disability is
granted, there is no appeal process to the Board unless the
Applicant can produce new information that the Board has not
considered. If the Applicant produces new information, the
Board will review it and decide whether to conduct a new
hearing. Any new hearing will be conducted in accordance to
this Guide. The Board’s decision shall be the final
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determination in all disability cases.
The applicable Disability Benefit Policy similarly provides the
following:
If the disability is denied or an alternative type of disability is
granted, there is no appeal to the Board unless the Applicant
can produce new information that the Board has not
considered. If the Applicant produces new information, the
Board will review it and decide whether to conduct a new
hearing. Any new hearing will be conducted in accordance
with the terms of this policy.
Upon the Board’s review and discussion of your June 28, 2021 letter, in
adherence to the applicable pension policies and procedures and pension
legislation, the Board determined that your letter contained no new
information and, therefore, the request for a new hearing to be unwarranted.
The request was therefore denied.
(Emphases added).
As highlighted above, the parties dispute the word “appeal” as used in the CFPPF
policies—Appellant maintains that the language gives rise to a right of appeal, and
Appellee maintains that the language merely allows an employee to petition for rehearing.
Here, the distinction is not important as the question of whether Mr. Phillips had a right of
appeal would go to the question of whether a writ of certiorari would lie. Tenn. Code Ann.
§ 27-8-102(a)(2) (“Certiorari lies . . . (2) Where no appeal is given . . . .”). Conversely,
judicial review under the UAPA requires a final order in a contested case, Tenn. Code Ann.
§ 4-5-322(a)(1), and (in some cases) exhaustion of administrative remedies. See, generally,
Chattanooga-Hamilton County Hospital Auth. v. UnitedHealthcare Plan of River
Valley, Inc., 475 S.W.3d 746 (Tenn. 2015).
Turning back to Appellant’s petition for “appeal” or “rehearing,” which was filed
on June 28, 2021, and the Board’s subsequent letter of August 10, 2021 denying the
petition, we first note that the trial court was troubled by the fact that the internal policies
set out above do not specify a time-frame for filing “new evidence” motions. Applying the
provisions of the UAPA to resolve this omission in the policy, Tennessee Code Annotated
section 4-5-317(a) states that “[a] party, within fifteen (15) days after entry of an initial
or final order, may file a petition for reconsideration, stating the specific grounds upon
which relief is requested” (emphasis added). Although Appellant’s “new evidence” motion
was filed well outside the fifteen days contemplated in Tennessee Code Annotated section
4-5-317(a), his filing was premature and of no effect due to the fact that, to date, the Board
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has not entered a final or an initial order that is compliant with the UAPA. As set out in
context above, the Board’s August 10, 2021 letter, like its October 27, 2020 letter, fails to
comply with the UAPA requirements for entry of final orders. Tenn. Code Ann. § 4-5-
314(c). As such, there is no final order from the Board that would trigger either the sixty-
day time limit for judicial review, or the fifteen-day time limit for filing a petition for
rehearing.
Turning to the trial court’s grant of Appellee’s motion to dismiss, as discussed
above, the trial court held that Appellant failed to appeal the final order of the Board within
the sixty-day time limit. Thus, the trial court held that it lacked subject matter jurisdiction.
For the reasons discussed above, the trial court’s ruling was based on erroneous reasoning.
Although the trial court correctly held that Mr. Phillips’ case was governed by the UAPA,
and that the October 27, 2020 letter was not UAPA-compliant, it nonetheless held that the
letter constituted a final order from the Board. In other words, the trial court held that the
Board proceedings were governed by the UAPA, but it failed to hold the Board to the
contested-case procedures outlined in the UAPA. Having determined that, to date, the
Board has not entered a final order (or an initial order) in this case, the sixty-day time limit
remains untriggered. So, the trial court does lack subject matter jurisdiction, but not
because Mr. Phillips missed a filing deadline. The trial court lacks subject matter
jurisdiction because the Board has not entered a UAPA-compliant final order from which
judicial review will lie. 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. . . .”)
(emphasis added). As such, the trial court dismissal of Appellant’s petition with prejudice
was error. We reverse the trial court’s dismissal of Appellant’s petition with prejudice and
remand for entry of an order dismissing the petition without prejudice, and for remand to
the Board for entry of a UAPA-compliant order (the Board should not be precluded from
re-opening proof or conducting additional hearing on Mr. Phillips’ application). Once the
Board issues a UAPA-compliant, final order, the time limits set out at Tennessee Code
Annotated section 4-5-322(b)(1)(A)(iv) and 4-5-317(a) will trigger, and the parties may
proceed accordingly.
V. Conclusion
For the foregoing reasons, we reverse the trial court’s order. The case is remanded
for entry of an order dismissing Appellant’s petition without prejudice, remand to the
Board for entry of a UAPA-compliant order, and for such further proceedings as may be
necessary and are consistent with this opinion. Costs of the appeal are assessed to the
Appellee, Chattanooga Fire and Police Pension Fund, for all of which execution may issue
if necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
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