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
of 4
[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,
Court of Appeals of Indiana|Memorandum Decision on Rehearing 49A02-1501-PL-7 September 30, 2015 Page 2
of 4
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.
Court of Appeals of Indiana|Memorandum Decision on Rehearing 49A02-1501-PL-7 September 30, 2015 Page 3
of 4
[6] Bailey, J., concurs.
Riley, J., would deny petition for Rehearing.
Court of Appeals of Indiana|Memorandum Decision on Rehearing 49A02-1501-PL-7 September 30, 2015 Page 4
of 4