David Moss v. Indianapolis Dept. of Natural Resources (mem. dec.)

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.

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[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,
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 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.

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[6] Bailey, J., concurs.

Riley, J., would deny petition for Rehearing.

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