Seattle Painting Co. v. Commissioner of Labor

OPINION

BAKER, Judge.

Appellant-petitioner Seattle Painting Co., Inc., appeals the trial court’s order dismissing its petition for judicial review of a decision by appellee-respondent Indiana Occupational Safety and Health Administration Board of Safety Review. (Review Board). Seattle raises one issue for our review: whether the trial court erred in determining it did not have subject matter jurisdiction over the petition due to Seattle’s failure to comply with IND.CODE § 4-21.5-5-13(a).

FACTS

During 1991, Seattle was painting various power line transmission towers near Nappan-nee and Freeman, Indiana. Following a safety inspection, the Indiana Occupational Safety and Health Administration issued four safety orders to' Seattle alleging violations of 29 C.F.R. § 1926. When Seattle objected to the orders, a hearing was held, after which an Administrative Law Judge recommended that the Review Board affirm the issuance of the safety orders. On September 13, 1994, the Review Board issued an administrative order affirming the issuance of the four safe*597ty orders against Seattle. In response, Seattle filed a petition for judicial review of the administrative order on November 9,1994, in the Marion Superior Court. Seattle attached the Review Board’s final order to the petition as Exhibit “A.” On December 28, 1995, the Review Board filed a motion to dismiss the petition pursuant to Ind.Trial Rule 12(B)(1), alleging that Seattle had failed to comply with the jurisdictional requirements of I.C. § 4-21.5-5-13, specifically the requirement that Seattle file a certified copy of the agency record within thirty days of filing a petition for review of an agency action. The trial court held a hearing on the Review Board’s motion, and subsequently dismissed Seattle’s petition for a lack of subject matter jurisdiction.

DISCUSSION AND DECISION

Seattle argues the trial court erred in dismissing its petition for a lack of subject matter jurisdiction. Specifically, Seattle contends that it substantially complied with the requirements of I.C. § 4-21.5-5-13, in that it filed a certified copy of the agency’s final order within the thirty day requirement.

I.C. § 4-21.5-5-13 states in pertinent 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 the 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.
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(b) ... 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 party of record to the proceeding.

Here, the record reveals that Seattle failed to file the agency record within thirty days after filing its petition for review and failed to request an extension of time to do so. I.C. § 4-21.5-5-13 expressly defines an agency record to include all agency documents expressing the agency action, as well as documents considered by the agency in reaching its decision. Although Seattle filed a document with the trial court which reflected the final agency action, it did not file any of the documents considered by the agency in making its final determination. Thus, it did not file an agency record as defined by statute.1

Nevertheless, Seattle argues that its filing of the agency’s final order was sufficient to invoke the trial court’s jurisdiction. As support for this argument, Seattle cites I.C. § 4-21.5-5-13(g), which allows the trial court to permit subsequent corrections or additions to the record. According to Seattle, this section implies that it is not necessary to file a complete agency record with the trial court to invoke the court’s jurisdiction over the matter. We disagree. We do not believe that I.C. § 4-21.5-5-13(g) was intended to encompass situations such as the present case where only a portion of the *598record was filed. On the contrary, we believe I.C. § 4-21.5-5-13(g) was intended to apply to evidence received pursuant to IND. CODE § 4-21.5-5-12(a), which permits the addition of evidence which could not, by due diligence, have been discovered and raised in the administrative proceeding giving rise to the proceeding for judicial review, or to minor additions or corrections to the record. As a result, we hold that Seattle did not file an agency record as defined and required by 1.C. § 4-21.5-5-13, and the trial court correctly determined that it lacked subject matter jurisdiction over Seattle’s petition for review.2

Judgment affirmed.

ROBERTSON, J., concurs. STATON, J., dissents with separate opinion.

. In his dissent, Judge Staton finds that Seattle’s filing of the agency order, as a portion of the agency record, was sufficient to invoke the trial court’s jurisdiction over the appeal. Were we to accept this interpretation of the statute, we would, in effect, nullify the provisions of I.C. § 4-21.5-5-13(a), which define the content of an agency record to include the agency order plus any other documents considered by the agency as a basis for its decision. This we are unwilling to do. Furthermore, we disagree with the dissent's contention that I.C. § 4 — 21.5—5—13(g), which permits additions or corrections to the record, supports a holding that the trial court’s jurisdiction is invoked upon the filing of an incomplete record. While we agree that a party may employ I.C. § 4-21.5-5-13(g) to make minor corrections or additions to the record, we do not believe the legislature intended this section to circumvent the remainder of the statute’s provisions. Here, Seattle did not even substantially comply with the requirement that it file an agency record with the trial court. Thus, we do not believe the trial court had jurisdiction over Seattle's appeal of the agency action.

. Seattle also challenges the trial court’s determination that it lacked subject matter jurisdiction because the final order attached to Seattle's petition was not an original or certified copy. We agree with Seattle that its photocopy of the agency’s original final order is sufficient to satisfy the requirement of an original or certified copy. Ind. Evidence Rule 1003. However, we note that I.C. § 4-21.5-5-13 requires a petitioner to file an original or certified copy of the entire agency record, which we have determined Seattle failed to do.