MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Sep 30 2015, 9:37 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
William R. Groth                                        Gregory F. Zoeller
David R. Vlink                                          Attorney General of Indiana
Fillenwarth Dennerline Groth & Towe,
LLP                                                     Abigail R. Recker
Indianapolis, Indiana                                   Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David Moss,                                             September 30, 2015
Appellant-Respondent,                                   Court of Appeals Cause No.
                                                        49A02-1501-PL-7
        v.                                              Appeal from the Marion Circuit
                                                        Court
Indianapolis Department of                              The Honorable Louis F.
Natural Resources,                                      Rosenberg, Judge
Appellee-Petitioner.                                    Trial Court Cause No.
                                                        49C01-1405-PL-17919



Barnes, Judge.




Court of Appeals of Indiana|Memorandum Decision on Rehearing 49A02-1501-PL-7 September 30, 2015 Page 1
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[1]   David Moss and the Indiana Department of Natural Resources (“DNR”) both

      petition for rehearing following our memorandum decision in Moss v. Indiana

      Department of Natural Resources, No. 49A02-1501-PL-7 (Ind. Ct. App. July 9,

      2015). We grant rehearing for the limited purpose of addressing DNR’s

      argument regarding waiver but affirm our decision in all regards.


[2]   In our decision, we concluded that, based on the limited record before us, it was

      not clear whether the issues raised by DNR in its petition for judicial review

      were first raised to the NRC so as to preserve them for judicial review pursuant

      to Indiana Code Section 4-21.5-5-10. In its petition for rehearing, DNR

      contends that we improperly addressed this issue because it was not raised by

      either party. In making this argument, DNR appears to confuse the concepts of

      waiver as an affirmative defense and waiver as procedural default or forfeiture.

      The former places the burden of proof on the party required to plead the matter.

      See Bunch v. State, 778 N.E.2d 1285, 1287 (Ind. 2002). The later, however, is “a

      discretionary judicial doctrine that forecloses an issue on appeal.” Id.

      Procedural default or forfeiture is “a doctrine of judicial administration

      whereby appellate courts may sua sponte find an issue foreclosed under a

      variety of circumstances in which a party has failed to take the necessary steps

      to preserve the issue.” Id.


[3]   It is the procedural default or forfeiture concept of waiver that is relevant to our

      decision and available to us sua sponte. As we explained in our decision, “a

      party may only obtain judicial review of issues that were raised before the

      administrative agency and preserved for review.” Moss, No. 49A02-1501-PL-7,
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      slip op. at 8 (citing Dev. Servs. Alternatives, Inc. v. Indiana Family & Soc. Servs.

      Admin., 915 N.E.2d 169, 178 (Ind. Ct. App. 2009)).


[4]   We described the statutory requirement and policy reasons for requiring a party

      to raise an issue to an administrative agency first, and these policy reasons

      come into play here. After Moss’s termination, an ALJ conducted a full

      evidentiary hearing, and DNR challenged the ALJ’s decision to the NRC,

      which conducted a quasi-appellate review of the ALJ’s decision. As a matter of

      judicial economy, DNR should not be permitted to raise issues in its petition for

      judicial review that were not raised to and addressed by the NRC in the

      administrative proceedings.


[5]   We also decline the parties’ requests to supplement the appellate record and

      decide the case on the merits because the trial court, which remanded the case

      to the NRC based on its conclusion that NRC failed to properly identify the

      “just cause” standard, has yet to address the merits of DNR’s petition.

      Accordingly, remand is appropriate so that the trial court can consider any

      properly preserved issues and make the necessary findings. See Ind. Code § 4-

      21.5-5-14 (c) (requiring a trial court in a judicial review proceeding to “make

      findings of fact on each material issue on which the court’s decision is based”);

      Regester v. Indiana State Bd. of Nursing, 703 N.E.2d 147, 151 (Ind. 1998)

      (observing that “judicial review findings must be adequate to demonstrate that

      the court has undertaken to assess the claims for judicial relief that are before

      it.”). We affirm our decision in all regards.


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[6]   Bailey, J., concurs.

      Riley, J., would deny petition for Rehearing.




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