Agency record required for judicial review of agency action

Jennifer Nelson for www.theindianalawyer.com

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. Not doing so will result in dismissal of the petition, the Indiana Supreme Court unanimously ruled Thursday.

The justices accepted Teaching Our Posterity Success, Inc. v. Indiana Department of Education and Indiana State Board of Education, 49S05-1411-PL-700, to address the question of whether an official agency record is required to adjudicate a petition for review under the AOPA. Teaching Our Posterity Success Inc. was approved by the Department of Education and State Board of Education as a Supplemental Educational Services provider, but the DOE removed TOPS from its list of approved providers a year later. TOPS sought administrative review, in which the DOE sent a letter affirming the decision. TOPS then sought judicial review but did not file an official agency record or request extension of time to do so.

The trial court dismissed TOPS’ petition, agreeing with the DOE that failure to file a timely and complete agency record with the trial court warranted dismissal. The Court of Appeals reversed.

The justices acknowledged a long-standing lack of consensus on the subject. Justice Robert Rucker wrote that caselaw can be summarized in two ways. If the trial court can’t decide the issue based on the documents before it, then “cause for dismissal” is read to mean the appeal “shall be dismissed.” But if the documents before the court provide enough information for it to decide the issue, even if it is not the agency record, the lack of an official record simply permits dismissal, but does not mandate it.

“At first blush concerns of judicial economy seem to weigh in favor of the foregoing view. After all, why should the parties expend the time and resources necessary to compile an agency record where the relevant facts are all contained in a few documents?” Rucker questioned. “On the other hand whether the documents before the trial court provide enough information enabling the court to decide an issue in a given case will likely be contested by the parties. The judicial economy argument thus swings in the other direction.”

“It appears to the Court that submitting the record up front diminishes the potential for time and resource-consuming satellite litigation such as we have in this case. It further obviates the necessity for the trial court to ascertain blindly whether the documents before it are enough or whether other documents in the official record — to which it does not have access — are relevant to the issues on review. Further, AOPA explicitly provides a mechanism by which the parties may condense the record by agreement potentially saving both sides time and expense,” he continued.

“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.”

Because TOPS did not file an agency record as anticipated by AOPA, the trial court properly dismissed its petition for judicial review.

The justices relied on their decision in TOPS to reverse the trial court decision denying Indiana insurance commissioner’s motion to dismiss First American Title Insurance Co.’s request for judicial review. In First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, in his official capacity, On Behalf of the Indiana Department of Insurance, 49S04-1311-PL-732, First American challenged the Department of Insurance’s report on the company, seeking judicial review by the trial court of the commissioner’s order. The company did not submit the agency record as required by AOPA, thus its petition for judicial review cannot be considered.