Teaching Our Posterity Success, Inc. v. Ind. Dep't of Educ. & Ind. State Bd. of Educ.
| Decision Date | 14 February 2014 |
| Docket Number | No. 49A05–1308–PL–386.,49A05–1308–PL–386. |
| Citation | 3 N.E.3d 1042 |
| Parties | TEACHING OUR POSTERITY SUCCESS, INC., Appellant–Plaintiff, v. INDIANA DEPARTMENT OF EDUCATION and Indiana State Board of Education, Appellees–Defendants. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
David E. Dearing, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, David L. Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Teaching Our Posterity Success, Inc., (“TOPS”) appeals the trial court's dismissal of its petition for judicial review challenging a decision by the Indiana Department of Education and Indiana State Board of Education (collectively “the DOE”). We reverse and remand.
The issue before us is whether the trial court properly dismissed TOPS's petition for judicial review because of TOPS's failure to file the agency record with the trial court.
In June 2011, the DOE approved TOPS as a Supplemental Educational Services (“SES”) provider of academic assistance to eligible schools under the federal Elementary and Secondary Education Act of 1965 and the No Child Left Behind Act of 2001. In July 2012, the DOE removed TOPS from its list of approved SES providers. TOPS appealed this determination within the DOE, which appointed a panel of staff members to review the appeal. On November 7, 2012, the DOE sent a letter to TOPS's director stating in part, App. p. 14. The letter does not contain any factual findings regarding this decision, nor does it referenceany other document that would contain such findings.
On December 7, 2012, TOPS filed a verified petition for judicial review of the DOE's decision. The petition included a copy of the November 7, 2012 letter. TOPS asserted in its petition that the DOE's decision “is arbitrary, capricious, an abuse of discretion and otherwise not in accordance in law because it fails to address any of the arguments made by TOPS in support of its appeal and makes no specific findings.” Id. at 12. TOPS also alleged that the DOE decision “is not supported by substantial evidence because it cites no supporting evidence.” Id.
TOPS never submitted any additional materials in support of its petition for judicial review, aside from a declaration from its director that it later withdrew. On January 29, 2013, TOPS filed a motion for summary judgment, arguing in part that the DOE's final decision withdrawing it from the SES list lacked necessary findings of fact. The DOE in turn filed a motion to dismiss TOPS's petition for judicial review because of its failure to timely file the complete agency record with the trial court. The DOE never asserted in its filings that the November 7, 2012 letter was not a final agency decision; in fact, the DOE referred to the letter as “the final agency decision” and faulted TOPS for only providing that decision to the trial court for review. Id. at 50.
The trial court conducted a hearing on May 29, 2013. Again, at no time did the DOE claim that the November 7, 2012 letter was not a final agency decision. On July 11, 2013, the trial court issued an order dismissing TOPS's petition for judicial review because of its failure to file the agency record. TOPS now appeals.
“We review de novo a court's ruling on motions to dismiss for failure to timely file necessary agency records where the court ruled on a paper record.” Indiana Family & Soc. Servs. Admin. v. Meyer, 927 N.E.2d 367, 370 (Ind.2010). The Indiana Administrative Orders and Procedures Act (“AOPA”) provides the exclusive means for judicial review of a final agency action. Id.Indiana Code Section 4–21.5–5–13 provides in part:
(a) Within thirty (30) days after the filing of the petition, or within further time allowed by the court or by other law, the petitioner shall transmit to the court the original or a certified copy of the agency record for judicial review of the agency action, consisting of:
(1) any agency documents expressing the agency action;
(2) other documents identified by the agency as having been considered by it before its action and used as a basis for its action; and
(3) any other material described in this article as the agency record for the type of agency action at issue, subject to this section.
(b) An extension of time in which to file the record shall be granted by the court for good cause shown. Inability to obtain the record from the responsible agency within the time permitted by this section is good cause. Failure to file the record within the time permitted by this subsection, including any extension period ordered by the court, is cause for dismissal of the petition for review by the court, on its own motion, or on petition of any party of record to the proceeding.
Under this statute, the burden is on a petitioner seeking judicial review of agency action to timely file the agency record. Meyer, 927 N.E.2d at 370–71.
It is undisputed that TOPS did not timely file the agency record. There currently is a split of authority as to the effect this failure should have on TOPS's petition for judicial review. In Meyer, Justice Boehm, joined by Justice Rucker, stated, Id. at 371 (). Justices Boehm and Rucker believed that the documents attached to the petition for judicial review—including the agency's notice of final action—together with the agency's answer to the petition, “were sufficient to decide the principal issue presented for judicial review.” Id. By contrast, Chief Justice Shepard, joined by Justice Dickson, believed it was necessary to dismiss a petition for judicial review when a petitioner fails to file a complete, certified agency record. Id. at 372–73 (citing Indiana State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 813 N.E.2d 330 (Ind.Ct.App.2004)). Justice Sullivan did not participate in Meyer, leaving an evenly divided court.
Our supreme court recently has granted transfer in two cases that again present this issue. See Brown v. Indiana Dep't of Child Servs., 993 N.E.2d 194 (Ind.Ct.App.2013); First American Title Ins. Co. v. Robertson ex rel. Indiana Dep't of Ins., 990 N.E.2d 9 (Ind.Ct.App.2013). It is possible that our currently-constituted supreme court may definitively resolve this issue one way or the other. In the meantime, it continues to be the belief of this panel that, although “the best practice is to timely file the entire agency record regardless of the nature of the case,” where the record is “not necessary for review, and the submitted materials are sufficient to permit review of the case on the merits,” then dismissal of a petition for judicial review is not warranted. Lebamoff Enter., Inc. v. Indiana Alcohol & Tobacco Comm'n, 987 N.E.2d 525, 530 (Ind.Ct.App.2013).1
To determine whether TOPS presented sufficient documentation to the trial court to permit it to rule upon the petition for judicial review, we begin by noting that a party is entitled to judicial relief from an agency action that is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence.
Ind.Code § 4–21.5–5–14(d). In TOPS's petition for judicial review, it asserted that the DOE's final order, embodied in the November 7, 2012 letter, was “arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law because it fails to address any of the arguments made by TOPS in support of its appeal and makes no specific findings” and that the order “is not supported by substantial evidence because it cites no supporting evidence.”
App. p. 12. It is possible that TOPS's complaints regarding the order's complete lack of findings might be better characterized as a failure to observe “procedure required by law....” SeeI.C. § 4–21.5–5–14(d)(4). Regardless of how the issue was framed, however, TOPS has consistently maintained in its filings and arguments before the trial court and this court that the order was defective...
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Teaching Our Posterity Success, Inc. v. Ind. Dep't of Educ.
...findings and conclusions to accompany its final order. See Teaching Our Posterity Success, Inc. v. Ind. Dept. of Educ., 3 N.E.3d 1042 (Ind.Ct.App.2014). In so doing the court determined that a timely filed agency record was not necessary in this case because the November 7 letter—which DOE ......