See Ernst, 427 F.3d at 359-60. The State of Tennessee has represented to the court that it is the “real party in interest,” that “[a]ny judgment entered against [DHS] would ultimately be paid by the State of Tennessee,” and that DDS is not legally distinct from DHS. (Docket No. 15 at 1.) The plaintiff has made no argument to the contrary. The second factor supports a finding of immunity because the operation of DHS is controlled by the state. See Ernst, 427 F.3d at 360. DHS was created by the state legislature, see Giorgio, 1996 WL 447656, *1 (citing Tenn.Code Ann. § 4-3-1201), and DHS is identified by the Tennessee Code, the courts of the State of Tennessee, and Tennessee’s executive branch as an executive administrative agency of the state of Tennessee, see Tenn. Code Ann. § 4-3-101 (<HOLDING>); Gallaher v. Elam, 104 S.W.3d 455, 464-65
recognizing dhs as one of the states twentyfour executive administrative agencies holding that state agencies are treated as states under the eleventh amendment recognizing that administrative agencies are not bound by rules of evidence recognizing that administrative agencies lack to power to consider or determine constitutional issues holding that state attorney general as member of executive department may assert claim of executive privilege