MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                FILED
this Memorandum Decision shall not be                                      Jan 17 2018, 8:46 am

regarded as precedent or cited before any                                       CLERK
                                                                            Indiana Supreme Court
court except for the purpose of establishing                                   Court of Appeals
                                                                                 and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                      Matthew G. Langenbacher
Attorney General of Indiana                              Indianapolis, Indiana
Andrea E. Rahman
Deputy Attorney General
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana Board of                                January 17, 2018
Firefighting and Personnel                               Court of Appeals Case No.
Standards,                                               49A04-1707-PL-1670
Appellant,                                               Appeal from the Marion Superior
                                                         Court
        v.                                               The Honorable James A. Joven,
                                                         Judge
John T. Cline,                                           Trial Court Cause No.
Appellee.                                                49D13-1604-PL-12184




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018             Page 1 of 15
                                          Case Summary
[1]   The State of Indiana Board of Firefighting and Personnel Standards (“the

      Board”) appeals the trial court’s denial of the Board’s motion to dismiss the

      petition for judicial review filed by John T. Cline (“Cline”). The Board presents

      the sole issue of whether the trial court was required to dismiss the petition for

      judicial review when Cline failed to timely file the agency record. We reverse.



                            Facts and Procedural History
[2]   On October 6, 2014, the Indiana Department of Homeland Security (“the

      IDHS”), as records custodian for the Board, received an anonymous letter

      regarding Cline, who was then serving as the Deputy Fire Chief of the

      Sellersburg Volunteer Fire Department (“the Department”). The letter

      contained accusations that Cline had pled guilty to charges of Child

      Exploitation and Possession of Child Pornography and had received an eight-

      year sentence, almost fully-suspended. The enclosed Chronological Case

      Summary indicated that Cline had been charged with the commission of

      criminal conduct in 1999 and had pled guilty in 2001 to one Class C felony and

      one Class A misdemeanor.


[3]   On November 3, 2014, the Board met and voted to revoke the following

      firefighting certifications possessed by Cline: Driver Operator Mobile Water

      Supply; Fire Inspector I/II; Fire Investigator; Fire Officer I and II; First Class

      Firefighter; Hazmat Awareness, Operations and Technician; Instructor I;


      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018   Page 2 of 15
      Second Class Firefighter; Strategy and Tactics; and Technical Rescue

      Awareness. (App. Vol. II, pg. 129.)1 Cline was notified of the revocation order,

      and filed a petition for administrative review.2 On December 8, 2014, Cline

      was re-elected to a four-year term as Deputy Chief for the Department.


[4]   On July 17, 2015, an Administrative Law Judge of the IDHS (“the ALJ”)

      issued a non-final decision reversing the Board’s revocation of Cline’s

      certifications. The Board issued a letter to the parties requesting their

      submissions of briefs addressing five questions. On March 14, 2016, following

      the submission of briefs, the Board issued a final order, adopting in part and

      reversing in part the ALJ decision, and revoking Cline’s firefighting

      certifications.


[5]   On April 7, 2016, Cline filed a petition for judicial review; the agency record

      was due on May 9, 2016.3 On May 2 or 3, 2016, Cline’s counsel called the




      1
        The appealed order states that the revoked certifications are not required for Cline to continue his
      employment, fire certifications are voluntary and the necessity therefor may be waived by a majority vote of
      the Department’s Board of Directors; thus, “the status of Cline’s employment with the Department will
      require a determination by the Department Board, and is not an immediate result of the certification
      revocations.” (App. Vol. II, pg. 248.) However, the Department By-Laws require that an officer have a Fire
      Officer II certification. Even if Cline served out his elected term, he would be ineligible to run for election
      again, without the requisite certification or a Board waiver.
      2
       The revocation action was based upon 655 IND. ADMIN. CODE § 1-1-7(b)(2) providing in relevant part:
      “The [State Board] may take action with respect to the … certification of any fire service person … in
      accordance with the provisions of IC 4-21.5-3-6 and IC 22-12-7-7(4) upon information provided to the [State
      Board] that the fire service person has: been convicted of an offense if the acts that resulted in the conviction
      have direct bearing on whether or not the person shall be entrusted to perform the activities permitted under
      any certification held by the fire service person[.]” Certain convictions are specified, including child
      molestation. See id.
      3
          The thirtieth day fell on Sunday, May 8, 2016.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018              Page 3 of 15
      Board’s counsel and left a message to inquire about the status of the record. A

      day later, the Board’s counsel advised that the record would be available that

      week or the following week.


[6]   On Friday afternoon, May 6, 2016, at around 3:00 p.m., Cline’s counsel

      received a message from counsel for the IDHS stating that the agency record

      was ready. Cline’s counsel decided to pick up the record, as opposed to having

      it mailed. On Monday, May 9, 2016 – the day the agency record was due –

      Cline’s counsel picked it up from the IDHS office. However, he did not file the

      record until May 10, 2016.


[7]   The Board moved to dismiss Cline’s petition for judicial review, based on the

      failure to timely file the record, and Cline filed a response in opposition. On

      June 7, 2016, the trial court issued an order denying the motion to dismiss. The

      trial court acknowledged that the filing of the agency record had been one day

      late, but concluded that dismissal was not mandatory:


              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. …” IND. CODE §
              4-21.5-5-13(b) (emphasis added). While the untimely filing of the
              agency record might be cause for dismissal, dismissal is not
              warranted in this case. Cline filed the record only one day late.
              The Board has not contended that it suffered any prejudice from
              the one-day delay. The Act does not mandate dismissal for
              failure to meet the filing deadline, so it is within this Court’s
              discretion to allow the petition to move forward despite the one-
              day delay in filing.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018   Page 4 of 15
      (App. Vol. II, pgs. 19-20). The Board’s motion to reconsider was denied. Its

      motion for substitution of a properly paginated agency record was granted.


[8]   The parties appeared for a hearing on January 24, 2017, at which argument of

      counsel was heard. On June 29, 2017, the trial court issued its order declaring

      the Board’s revocation order invalid and remanding the matter for further

      proceedings. The trial court concluded that the revocation of Cline’s

      certifications had been arbitrary and capricious because the Board had failed to

      comply with statutory procedures.4 The Board now appeals, challenging the

      denial of its motion to dismiss.



                                  Discussion and Decision
                                          Standard of Review
[9]   We review de novo a trial court’s ruling on a motion to dismiss for failure to

      timely file necessary agency records where the court has ruled on a paper

      record. Wayne County Prop. Tax Assessment Bd. of Appeals v. United Ancient Order

      of Druids-Grove # 29, 847 N.E.2d 924, 926 (Ind. 2006).




      4
       In part, the trial court concluded: “The Final Order does not contain any discussion that indicates the State
      Board examined the acts that gave rise to Cline’s convictions. Moreover, the Final Order does not contain
      any discussion to show if or how those acts have any bearing on the activities permitted under Cline’s
      certifications.” (App. Vol. II, pg. 17.)

      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018           Page 5 of 15
                                                   Analysis
[10]   The Administrative Orders and Procedures Act (“AOPA”) governs

       administrative proceedings and judicial review of decisions of the Board. See

       Ind. Code § 4-21.5-3-6; 22-12-7-7(4). A person aggrieved by an agency action

       may file a petition for review in the trial court, and may show that the agency

       action was invalid by demonstrating the party was prejudiced by an agency

       action that was:


               (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.


       Teaching our Posterity Success v. Ind. DOE, 20 N.E.3d 149, 151 (Ind. 2014) (citing

       I.C. § 4-21.5-5-14) [hereinafter “TOPS”].


[11]   Indiana Code Section 4-21.5-5-13 governs the transmittal of the agency record

       to the trial court. Subsection (c) provides in relevant part: “Upon a written

       request by the petitioner, the agency taking the action being reviewed shall

       prepare the agency record for the petitioner.” Subsection (a) requires that,

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018   Page 6 of 15
       “[w]ithin 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[.]” Subsection (b) addresses extensions of time and the

       availability of dismissal:


               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.


[12]   The Board contends “it is a bright line rule that a petitioner seeking judicial

       review under AOPA must file the complete administrative record within 30

       days of filing the petition or within an extension of time granted by the trial

       court.” Appellant’s Brief at 10. The Board directs our attention to TOPS for

       the proposition that dismissal is mandatory when filing is untimely. In

       response, Cline argues that there is a narrow exception to the bright-line rule of

       TOPS, and that his circumstances fall within the exception. He argues that he

       has prevailed on the merits and should not be penalized for a one-day late filing

       of the agency record. He directs our attention to Indiana Family & Soc. Servs.

       Admin. v. Meyer, 927 N.E.2d 367 (Ind. 2010) [hereinafter “Meyer”].


[13]   In denying the Board’s motion to dismiss Cline’s petition, the trial court

       considered TOPS and First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018   Page 7 of 15
       2014) (handed down on the same day and citing TOPS.) The Robertson decision

       reversed the denial of a motion to dismiss a petition for judicial review where

       the petitioner had attached documents to its petition for judicial review but

       failed to file a certified agency record. See id. at 762-63. However, the trial

       court herein distinguished those decisions on the basis that “both cases

       addressed situations where the petitioners wholly failed to file an agency record

       for the reviewing court to consider.” (App. Vol. II, pg. 48.) The trial court

       concluded that neither case stood “for the proposition that a trial court must

       dismiss a petition for judicial review when the petitioner files the agency record

       late.” (App. Vol. II, pg. 48.)


[14]   The TOPS Court initially explained its holding thus:


               Resolving a long-standing lack of consensus on the subject, today
               we hold that a petitioner seeking judicial review of an agency
               action must file with the trial court the agency record as defined
               by [AOPA]. Failure to do so results in dismissal of the petition.


       20 N.E.3d at 150. The case did, as the trial court observed, involve a complete

       failure to file an agency record. Yet the TOPS Court discussed, at some length,

       the Meyer case, in which four justices had agreed that the trial court could not

       extend the statutory filing deadline absent a timely motion.


[15]   The parties to the TOPS appeal were the Indiana Department of Education

       (“the DOE”) and TOPS, an educational services provider. TOPS was removed

       from a provider list and was unsuccessful in achieving reinstatement during

       administrative proceedings. See id. TOPS filed a petition for judicial review but

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018   Page 8 of 15
       did not file an official agency record or request an extension of time to do so.

       See id. at 150-51. The petition for judicial review was dismissed, TOPS

       appealed, and a panel of this Court reversed the dismissal and remanded for

       statutorily-mandated findings and conclusions to accompany the final order.

       See id. at 151. On remand, the trial court determined that a timely filed agency

       record was not necessary because the letter deemed to be a final agency order

       was facially defective. The DOE sought transfer, which our supreme court

       granted “to address the question of whether an official agency record is required

       to adjudicate a petition for review under [AOPA].” Id.


[16]   The Court observed that both the DOE and TOPS supported their respective

       positions by relying on the evenly-divided decision in Meyer. TOPS, 20 N.E.3d

       at 153. The Court then summarized the Meyer decision:


               Meyer involved a Medicaid claimant’s appeal of the Family and
               Social Services Administration’s (“FSSA”) decision to deny her
               benefits. Meyer appealed the decision, contending the agency’s
               final order was erroneous in part because it was based on a
               clerical error in the valuation of Meyer’s assets. Meyer attached
               to her petition for judicial review copies of several agency
               documents including the final action and the ALJ’s decision.
               Although Meyer had been granted an extension of time in which
               to file the agency record as permitted by statute, she failed to file
               the record within the extended time period. [927 N.E.2d] at 369.
               After time to file the record had expired, FSSA answered
               Meyer’s petition and admitted the valuation error. Id. Four
               weeks after filing its answer, FSSA moved to dismiss the petition
               on the grounds that Meyer had failed to file the agency record
               timely. The trial court then granted Meyer’s petition to extend
               retroactively the time period for filing the record, and Meyer

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018   Page 9 of 15
               thereafter filed the agency record. FSSA appealed and in a
               divided opinion the Court of Appeals affirmed the judgment of
               the trial court. See Ind. Family & Soc. Svcs. Admin. v. Meyer, 900
               N.E.2d 74, 80 (Ind. Ct. App. 2009).


               On transfer this Court was unanimous in holding that the
               relevant provisions of AOPA do not permit untimely filing of the
               agency record or nunc pro tunc extensions of the filing deadline.
               See Meyer, 927 N.E.2d at 370, 372. Reviewing the statutory
               language “[f]ailure to file the record within the time permitted by
               this subsection … is cause for dismissal …” the Court found that
               “the statute is clear” in placing the responsibility on the petitioner
               to file the agency record timely, and that any request for an
               extension of time must be made within the statutory time period.
               Id. at 370, 371.


               ...


               Two important facts distinguish Meyer from the case before us
               and from most AOPA appeals. First, the contested issue was the
               existence of what was essentially an arithmetic error in the
               agency decision, albeit one that affected the outcome. Second,
               and most importantly, the State conceded its error on the contested
               issue before it moved to dismiss for lack of a record. So to the
               extent Meyer represents the possibility of an exception to the filing
               requirement, thus triggering the permissive “cause for dismissal”
               language in Indiana Code section 4-21.5-5-13(b), any such
               exception is extremely narrow.


       TOPS, 20 N.E.3d at 153-54.


[17]   The TOPS Court went on to recognize that, despite the lack of a majority

       opinion in Meyer, “[a]ll four justices in Meyer agreed that the trial court lacked

       authority to extend the filing deadline for an agency record that was not filed
       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018   Page 10 of 15
       within the required statutory period or an authorized extension thereof.” 20

       N.E.3d at 155. The Court reviewed the reasoning underlying that conclusion in

       Meyer (that is, “the purpose of AOPA section 13 is to ensure that the review of

       agency action proceeds in an efficient and speedy manner, and that the

       reviewing trial court has access to the record before rendering its decision” and

       “the filing requirement also ensures that no relevant evidence or materials are

       hidden”). Id. The Court then clarified “This reasoning applies with equal force

       to a requirement that the official agency record must be filed with the trial court

       in order for judicial review to proceed.” Id.


[18]   Finally, the TOPS Court announced its intention to adopt a bright-line rule:


               In sum we hold a petitioner for review cannot receive
               consideration of its petition where the statutorily-defined agency
               record has not been filed. In our view this bright-line approach
               best serves the goals of accuracy, efficiency, and judicial
               economy.


       Id.


[19]   Subsequently, in Allen Cty. Plan Comm’n v. Olde Canal Place Ass’n, 61 N.E.3d

       1266 (Ind. Ct. App. 2016), a panel of this Court applied that bright-line rule to

       hold that dismissal is mandatory when a petitioner fails to timely file the agency

       record. The trial court had granted Old Canal Place Association (“OCPA”) an

       extension of time to file an agency record but OCPA did not file the agency

       record by the extended deadline. See id. at 1270. The opposing party, MRK,

       filed a motion to dismiss but OCPA then filed a complete agency record, eight


       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018   Page 11 of 15
       days late. The matter was dismissed and OCPA filed a Trial Rule 60(B)(1)

       motion. The trial court granted the motion, reinstated the case, and MRK

       appealed. We held that the trial court’s action setting aside the dismissal was

       an “empty exercise,” explaining:


               In Robertson and TOPS, our Supreme Court … set forth a bright-
               line rule. Specifically, the Court held that the statutory language
               makes dismissal mandatory when the agency record is not timely
               filed. TOPS, 20 N.E.3d at 155 (holding that “a petitioner for
               review cannot receive consideration of its petition where the
               statutorily-defined agency record has not been filed”); Robertson,
               19 N.E.3d at 762-63 (same). Additionally, in TOPS, the Court
               reaffirmed its prior holding that “the relevant provisions of
               AOPA do not permit untimely filing of the agency record or nunc
               pro tunc extensions of the filing deadline.” TOPS, 20 N.E.3d at
               153 (quoting [Meyer], 927 N.E.2d 367, 372 (Ind. 2010)). . . .


               Because OCPA is not permitted to belatedly file the Record, the
               Record is not, and will never be, properly before the trial court.
               Without the Record, OCPA’s petition cannot be considered.


       Allen Cty., 61 N.E.3d at 1269-70.


[20]   The law is thus clear. Our Indiana Supreme Court has examined the relevant

       statutory language, balanced the preference for deciding cases on the merits

       against the need for judicial efficiency, and concluded that this “bright-line

       approach best serves the goals of accuracy, efficiency, and judicial economy.”

       TOPS, 20 N.E.3d at 155.


[21]   Cline recognizes the bright-line rule but argues that our legislature must have

       intended that its statutory language be “applied logically and not to bring about
       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018   Page 12 of 15
       an unjust or absurd result.” Appellee’s Brief at 9. He asserts that his case is

       similar to that of Meyer, because the Board is not undertaking on appeal to

       contest the merits of the trial court’s decision. To the extent that Meyer and

       TOPS recognize a very limited exception where AOPA proceedings might

       continue without a timely-filed agency record, this precedent is not helpful to

       Cline.


[22]   Meyer involved extraordinarily unusual circumstances, where a mathematical

       error had already been conceded by the party moving for dismissal. Thus, the

       trial court, and the appellate courts, were not dependent upon a later-filed

       agency record to reach the merits of the case and ascertain whether the

       appealed decision was erroneous. See TOPS, 20 N.E.3d at 154. Here, at most,

       Cline has shown procedural error on the part of the Board in failing to make

       more specific findings. The Board has not conceded error in the certification

       revocation decision, and the trial court could not reach the merits of that

       decision without an agency record.


[23]   To effect statutory compliance, Cline was required to file the agency record or

       file a motion for an extension of time by May 9, 2016. He did not do so and the

       trial court should have dismissed the petition for judicial review.



                                                  Conclusion
[24]   The Board has demonstrated its entitlement to dismissal of Cline’s petition for

       judicial review.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018   Page 13 of 15
[25]   Reversed.


       Pyle, J., concurs.
       Kirsch, J., concurs with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018   Page 14 of 15
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       State of Indiana Board of                                Court of Appeals Case No.
       Firefighting and Personnel                               49A04-1707-PL-1670
       Standards,
       Appellant,

               v.

       John T. Cline,
       Appellee.



       Kirsch, Judge, concurring, with separate opinion.


[26]   I concur, albeit with much reluctance. As the trial court noted, the filing of the

       record was only one day late, and no party sustained any prejudice from the

       delay. When the delay is minimal, and when no prejudice results, courts

       should chastise the tardy filer but should then decide the case on the merits or

       on the lack thereof.


[27]   In Teaching our Posterity Success v. Ind. DOE, 20 N.E.3d 149, 151 (Ind. 2014),

       however, our Supreme Court set forth as a “bright line rule” that a petitioner

       seeking judicial review “must file the complete administrative record within

       thirty days of filing the petition or within an extension of time granted by the

       trial court.” It is that bright line rule that we apply here.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018   Page 15 of 15
