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Teaching Our Posterity Success, Inc. v. Indiana Department of Education

Supreme Court of Indiana

November 13, 2014

TEACHING OUR POSTERITY SUCCESS, INC., Appellant (Petitioner below),

Appeal from the Marion Superior Court, Civil Division 4. No. 49D04-1212-PL-047002. The Honorable Cynthia J. Ayers, Judge. On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-1308-PL-386.

ATTORNEY FOR APPELLANT: David E. Dearing, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General, David L. Steiner, Deputy Attorney General, Heather Hagan McVeigh, Deputy Attorney General, Indianapolis, Indiana.

Rucker, Justice. Rush, C.J. and Dickson, David and Massa, JJ., concur.


Page 150

Rucker, Justice.

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 the Administrative Orders and Procedures Act. Failure to do so results in dismissal of the petition.

Facts and Procedural History

In 2011 the Indiana Department of Education and the Indiana State Board of Education (collectively " DOE" ) approved Teaching Our Posterity Success, Inc. (" TOPS" ), as a Supplemental Educational Services (" SES" ) provider.[1] The following year DOE removed TOPS from its list of approved providers, and TOPS sought administrative review of that removal. DOE appointed a panel of staff members to perform the review and on November 7, 2012 sent TOPS a letter on DOE stationery declaring in pertinent part:

Pursuant to your appeal of the decision to remove [TOPS] from Indiana's list of approved SES providers, Indiana Department of Education staff members were appointed to review the appeal. 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. at 14.

TOPS timely filed a petition for judicial review in the Marion Superior Court. In support of its petition TOPS included a copy of the November 7 letter. However, TOPS neither filed an official agency record

Page 151

 nor requested an extension of time to do so. TOPS subsequently moved for summary judgment arguing in part that DOE's letter removing it from Indiana's SES provider list was a final agency order that lacked necessary findings of fact. In response DOE filed a motion to dismiss the petition on grounds of TOPS' failure to file with the trial court a timely and complete agency record. After a hearing the trial court agreed with DOE, dismissed TOPS' petition, and denied its motion for summary judgment. TOPS appealed and the Court of Appeals reversed the dismissal and remanded the case with instructions directing the trial court to remand the matter to DOE for entry of statutorily-mandated 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 did not contest is a final agency order--was facially defective. DOE seeks transfer which we now grant to address the question of whether an official agency record is required to adjudicate a petition for review under Indiana's Administrative Orders and Procedures Act. In all other respects we summarily affirm the Court of Appeals opinion. Additional facts are set forth below as necessary.

Standard of Review

The standard of appellate review for motions to dismiss under Rule 12(B) depends on whether the trial court resolved disputed facts, and if so, whether there was an evidentiary hearing. See Wayne Cnty. Prop. Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove # 29, 847 N.E.2d 924, 926 (Ind. 2006). 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. See id.


The Administrative Orders and Procedures Act (" AOPA" ) governs administrative proceedings and judicial review of decisions of DOE and certain other State agencies. See Ind. Code § § 4-21.5-2-0.1 to 6. For the agencies to which it applies, AOPA includes extensive procedural requirements for adjudications under the Act. See, e.g., I.C. § 4-21.5-3-1 (governing notice of agency action); I.C. § 4-21.5-3-13 (governing qualifications of adjudicators); I.C. § 4-21.5-3-18 (governing notice and conduct of prehearing conferences); I.C. § 4-21.5-3-22 (governing conduct of discovery); I.C. § 4-21.5-3-25 (governing conduct of hearings); I.C. § 4-21.5-3-26 (governing presentation of evidence); I.C. § 4-21.5-3-27 (governing contents of orders); I.C. § 4-21.5-3-33 (governing maintenance of records of proceedings).

In addition to these procedural requirements for agency actions, AOPA includes its own provisions for judicial review of agency actions. See I.C. § § 4-21.5-5-1 to 16. A person aggrieved by an agency action may file a petition for review in the appropriate trial court, and can show the agency action ...

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