                                               Feb 14 2014, 6:20 am
FOR PUBLICATION



ATTORNEY FOR APPELLANT:                   ATTORNEYS FOR APPELLEE:

DAVID E. DEARING                          GREGORY F. ZOELLER
Indianapolis, Indiana                     Attorney General of Indiana

                                          DAVID L. STEINER
                                          Deputy Attorney General
                                          Indianapolis, Indiana


                           IN THE
                 COURT OF APPEALS OF INDIANA

TEACHING OUR POSTERITY SUCCESS, INC., )
                                      )
     Appellant-Plaintiff,             )
                                      )
            vs.                       )        No. 49A05-1308-PL-386
                                      )
INDIANA DEPARTMENT OF EDUCATION and )
INDIANA STATE BOARD OF EDUCATION,     )
                                      )
     Appellees-Defendants.            )


                  APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Cynthia J. Ayers, Judge
                         Cause No. 49D04-1212-PL-47002


                               February 14, 2014

                         OPINION - FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       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.

                                           Issue

       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.

                                           Facts

       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,

“the panel reviewed the request for appeal and all applicable documentation. Based on its

review, the panel determined that TOPS failed to submit sufficient evidence to overturn

the initial removal decision. As such, TOPS will remain removed from Indiana’s SES

Provider List.” App. p. 14. The letter does not contain any factual findings regarding this

decision, nor does it reference any 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

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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.

                                           Analysis

       “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

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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, “imperfect compliance

with the filing requirement is not always fatal. A petition for review may be accepted if

the materials submitted provide the trial court with ‘all that is necessary . . . to accurately

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assess the challenged agency action.’” Id. at 371 (quoting Izaak Walton League of

America, Inc. v. DeKalb County Surveyor’s Office, 850 N.E.2d 957, 965 (Ind. Ct. App.

2006), trans. denied, and citing Reedus v. Indiana Dep’t of Workforce Dev., 900 N.E.2d

481, 487 (Ind. Ct. App. 2009); MicroVote General Corp. v. Office of the Secretary of State,

890 N.E.2d 21, 26-27 (Ind. Ct. App. 2008), trans. denied). 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



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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 . . . .” See I.C. § 4-21.5-5-14(d)(4). Regardless of how the



1
 The Alcohol and Tobacco Commission attempted to file a petition to transfer in Lebamoff, but it was
untimely.

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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 for failing to contain any

findings.

       It is abundantly clear that “[u]nder AOPA, a final order by an administrative agency

must present written findings of fact, including ‘findings of ultimate fact . . . accompanied

by a concise statement of the underlying basic facts of record to support the findings’ as

well as ‘conclusions of law for all aspects of the order.’” Pack v. Indiana Family & Soc.

Servs. Admin., 935 N.E.2d 1218, 1222 (Ind. Ct. App. 2010) (quoting I.C. § 4-21.5-3-

27(b) & (c)). Such findings serve a variety of purposes, including “‘facilitating judicial

review, avoiding judicial usurpation of administrative functions, assuring more careful

administrative consideration, helping parties plan their cases for rehearings and judicial

review, and keeping agencies within their jurisdiction.’” Id. (quoting Perez v. U.S. Steel

Corp., 426 N.E.2d 29, 31 (Ind. 1981)). In other words, the statutory requirement for written

findings and conclusions helps preserve the due process rights of those affected by the

actions of administrative agencies. Id. “Properly drafted orders lead to prompt judicial

review, fewer reversals and remands, more efficiency, and better use of the resources

afforded to the government by the public.” Id. at 1224.

       The DOE makes no argument that it was somehow exempt from not issuing a final

order in TOPS’s case that contained written findings and conclusions or that the November

7, 2012 letter somehow fulfilled that statutory requirement. The DOE instead refers to the

November 7, 2012 letter as a “purported” order and also states, “we do not know if the

letter . . . is even genuine, let alone a final agency order,” and also that another document

                                             7
could exist somewhere that provided the necessary findings and conclusions. Appellee’s

Br. pp. 13, 15-16. The DOE’s argument seems to suggest either of the following: that

counsel for TOPS, an officer of the court, knowingly filed a verified petition for judicial

review, under penalties for perjury, falsely identifying the letter as DOE’s final agency

action, or the DOE has somewhere hidden away in its records a document that lists its

findings and conclusions regarding TOPS but never provided it to TOPS.

       Neither option is palatable and we decline to entertain them, particularly given that

the DOE did not make any such arguments regarding the letter before the trial court.

Indeed, the DOE acknowledged before the trial court that the letter as attached to TOPS’s

petition for judicial review was “the final agency decision” and gave no indication that

another such decision existed. App. p. 50 (emphasis added). An agency cannot make an

argument on appeal that it did not present to the trial court. See Izaak Walton League, 850

N.E.2d at 962.

       Thus, in the present case, we are faced with a final agency order that is defective on

its face for lacking any statutorily-mandated findings of fact and conclusions of law, as

consistently argued by TOPS. Although the better practice would be to timely file the

agency record, we conclude that it was not necessary here, where the order was facially

defective. The trial court erred in dismissing TOPS’s petition for judicial review.

       TOPS also argues that, because of the DOE order’s lack of findings, it should be set

aside. We disagree with TOPS on this point. In cases where an agency has failed to enter

sufficient findings and conclusions with its final order, the proper procedure is to remand

to the agency to provide it the opportunity to make the necessary findings. See Pack, 935

                                             8
N.E.2d at 1227-28; Stokely-Van Camp, Inc. v. State Bd. of Tax Comm’rs, 182 Ind. App.

91, 94, 394 N.E.2d 209, 211 (1979). We therefore direct that this case be remanded to the

DOE to make the necessary findings and conclusions related to TOPS’s removal from the

list of approved SES providers.

                                      Conclusion

      We reverse the dismissal of TOPS’s petition for judicial review and direct that this

case be remanded to the DOE for the entry of statutorily-mandated findings and

conclusions to accompany its final order regarding TOPS.

      Reversed and remanded.

ROBB, J., and BROWN, J., concur.




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