Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PL-1670 | January 17, 2018 Page 1 of 15

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

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

Curtis T. Hill, Jr.

Attorney General of Indiana

Andrea E. Rahman

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Matthew G. Langenbacher

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

State of Indiana Board of 

Firefighting and Personnel 

Standards,

Appellant,

v.

John T. Cline,

Appellee.

January 17, 2018

Court of Appeals Case No.

49A04-1707-PL-1670

Appeal from the Marion Superior 

Court

The Honorable James A. Joven, 

Judge

Trial Court Cause No.

49D13-1604-PL-12184

Bailey, Judge.
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Case Summary

[1] The State of Indiana Board of Firefighting and Personnel Standards (“the 

Board”) appeals the trial court’s denial of the Board’s motion to dismiss the 

petition for judicial review filed by John T. Cline (“Cline”). The Board presents 

the sole issue of whether the trial court was required to dismiss the petition for 

judicial review when Cline failed to timely file the agency record. We reverse.

Facts and Procedural History

[2] On October 6, 2014, the Indiana Department of Homeland Security (“the 

IDHS”), as records custodian for the Board, received an anonymous letter 

regarding Cline, who was then serving as the Deputy Fire Chief of the 

Sellersburg Volunteer Fire Department (“the Department”). The letter 

contained accusations that Cline had pled guilty to charges of Child 

Exploitation and Possession of Child Pornography and had received an eightyear sentence, almost fully-suspended. The enclosed Chronological Case 

Summary indicated that Cline had been charged with the commission of 

criminal conduct in 1999 and had pled guilty in 2001 to one Class C felony and 

one Class A misdemeanor.

[3] On November 3, 2014, the Board met and voted to revoke the following 

firefighting certifications possessed by Cline: Driver Operator Mobile Water 

Supply; Fire Inspector I/II; Fire Investigator; Fire Officer I and II; First Class 

Firefighter; Hazmat Awareness, Operations and Technician; Instructor I; 
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Second Class Firefighter; Strategy and Tactics; and Technical Rescue 

Awareness. (App. Vol. II, pg. 129.)1 Cline was notified of the revocation order, 

and filed a petition for administrative review.2 On December 8, 2014, Cline 

was re-elected to a four-year term as Deputy Chief for the Department.

[4] On July 17, 2015, an Administrative Law Judge of the IDHS (“the ALJ”) 

issued a non-final decision reversing the Board’s revocation of Cline’s 

certifications. The Board issued a letter to the parties requesting their 

submissions of briefs addressing five questions. On March 14, 2016, following 

the submission of briefs, the Board issued a final order, adopting in part and 

reversing in part the ALJ decision, and revoking Cline’s firefighting 

certifications.

[5] On April 7, 2016, Cline filed a petition for judicial review; the agency record 

was due on May 9, 2016.

3

 On May 2 or 3, 2016, Cline’s counsel called the 

 

1 The appealed order states that the revoked certifications are not required for Cline to continue his 

employment, fire certifications are voluntary and the necessity therefor may be waived by a majority vote of 

the Department’s Board of Directors; thus, “the status of Cline’s employment with the Department will 

require a determination by the Department Board, and is not an immediate result of the certification 

revocations.” (App. Vol. II, pg. 248.) However, the Department By-Laws require that an officer have a Fire 

Officer II certification. Even if Cline served out his elected term, he would be ineligible to run for election 

again, without the requisite certification or a Board waiver.

2 The revocation action was based upon 655 IND. ADMIN. CODE § 1-1-7(b)(2) providing in relevant part: 

“The [State Board] may take action with respect to the ... certification of any fire service person ... in 

accordance with the provisions of IC 4-21.5-3-6 and IC 22-12-7-7(4) upon information provided to the [State 

Board] that the fire service person has: been convicted of an offense if the acts that resulted in the conviction 

have direct bearing on whether or not the person shall be entrusted to perform the activities permitted under 

any certification held by the fire service person[.]” Certain convictions are specified, including child 

molestation. See id.

3 The thirtieth day fell on Sunday, May 8, 2016.
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Board’s counsel and left a message to inquire about the status of the record. A 

day later, the Board’s counsel advised that the record would be available that 

week or the following week.

[6] On Friday afternoon, May 6, 2016, at around 3:00 p.m., Cline’s counsel 

received a message from counsel for the IDHS stating that the agency record 

was ready. Cline’s counsel decided to pick up the record, as opposed to having 

it mailed. On Monday, May 9, 2016 – the day the agency record was due –

Cline’s counsel picked it up from the IDHS office. However, he did not file the 

record until May 10, 2016.

[7] The Board moved to dismiss Cline’s petition for judicial review, based on the 

failure to timely file the record, and Cline filed a response in opposition. On 

June 7, 2016, the trial court issued an order denying the motion to dismiss. The 

trial court acknowledged that the filing of the agency record had been one day 

late, but concluded that dismissal was not mandatory:

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. ...” IND. CODE § 

4-21.5-5-13(b) (emphasis added). While the untimely filing of the 

agency record might be cause for dismissal, dismissal is not 

warranted in this case. Cline filed the record only one day late. 

The Board has not contended that it suffered any prejudice from 

the one-day delay. The Act does not mandate dismissal for 

failure to meet the filing deadline, so it is within this Court’s 

discretion to allow the petition to move forward despite the oneday delay in filing.
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(App. Vol. II, pgs. 19-20). The Board’s motion to reconsider was denied. Its 

motion for substitution of a properly paginated agency record was granted. 

[8] The parties appeared for a hearing on January 24, 2017, at which argument of 

counsel was heard. On June 29, 2017, the trial court issued its order declaring 

the Board’s revocation order invalid and remanding the matter for further 

proceedings. The trial court concluded that the revocation of Cline’s 

certifications had been arbitrary and capricious because the Board had failed to 

comply with statutory procedures.4 The Board now appeals, challenging the 

denial of its motion to dismiss. 

Discussion and Decision

Standard of Review

[9] We review de novo a trial court’s ruling on a motion to dismiss for failure to 

timely file necessary agency records where the court has ruled on a paper 

record. Wayne County Prop. Tax Assessment Bd. of Appeals v. United Ancient Order 

of Druids-Grove # 29, 847 N.E.2d 924, 926 (Ind. 2006).

 

4

In part, the trial court concluded: “The Final Order does not contain any discussion that indicates the State 

Board examined the acts that gave rise to Cline’s convictions. Moreover, the Final Order does not contain 

any discussion to show if or how those acts have any bearing on the activities permitted under Cline’s 

certifications.” (App. Vol. II, pg. 17.)
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Analysis

[10] The Administrative Orders and Procedures Act (“AOPA”) governs 

administrative proceedings and judicial review of decisions of the Board. See

Ind. Code § 4-21.5-3-6; 22-12-7-7(4). A person aggrieved by an agency action 

may file a petition for review in the trial court, and may show that the agency 

action was invalid by demonstrating the party was prejudiced by an agency 

action that was:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law;

(2) contrary to constitutional right, power, privilege, or 

immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or 

short of statutory right;

(4) without observance of procedure required by law; or

(5) unsupported by substantial evidence.

Teaching our Posterity Success v. Ind. DOE, 20 N.E.3d 149, 151 (Ind. 2014) (citing

I.C. § 4-21.5-5-14) [hereinafter “TOPS”]. 

[11] Indiana Code Section 4-21.5-5-13 governs the transmittal of the agency record 

to the trial court. Subsection (c) provides in relevant part: “Upon a written 

request by the petitioner, the agency taking the action being reviewed shall 

prepare the agency record for the petitioner.” Subsection (a) requires that, 
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“[w]ithin 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[.]” Subsection (b) addresses extensions of time and the 

availability of dismissal:

An extension of time in which to file the record shall be granted 

by the court for good cause shown. Inability to obtain the record 

from the responsible agency within the time permitted by this 

section is good cause. 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 any 

party of record to the proceeding.

[12] The Board contends “it is a bright line rule that a petitioner seeking judicial 

review under AOPA must file the complete administrative record within 30 

days of filing the petition or within an extension of time granted by the trial 

court.” Appellant’s Brief at 10. The Board directs our attention to TOPS for 

the proposition that dismissal is mandatory when filing is untimely. In 

response, Cline argues that there is a narrow exception to the bright-line rule of 

TOPS, and that his circumstances fall within the exception. He argues that he 

has prevailed on the merits and should not be penalized for a one-day late filing 

of the agency record. He directs our attention to Indiana Family & Soc. Servs. 

Admin. v. Meyer, 927 N.E.2d 367 (Ind. 2010) [hereinafter “Meyer”]. 

[13] In denying the Board’s motion to dismiss Cline’s petition, the trial court 

considered TOPS and First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind. 
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2014) (handed down on the same day and citing TOPS.) The Robertson decision 

reversed the denial of a motion to dismiss a petition for judicial review where 

the petitioner had attached documents to its petition for judicial review but 

failed to file a certified agency record. See id. at 762-63. However, the trial 

court herein distinguished those decisions on the basis that “both cases 

addressed situations where the petitioners wholly failed to file an agency record 

for the reviewing court to consider.” (App. Vol. II, pg. 48.) The trial court 

concluded that neither case stood “for the proposition that a trial court must 

dismiss a petition for judicial review when the petitioner files the agency record 

late.” (App. Vol. II, pg. 48.)

[14] The TOPS Court initially explained its holding thus:

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 [AOPA]. Failure to do so results in dismissal of the petition.

20 N.E.3d at 150. The case did, as the trial court observed, involve a complete 

failure to file an agency record. Yet the TOPS Court discussed, at some length, 

the Meyer case, in which four justices had agreed that the trial court could not 

extend the statutory filing deadline absent a timely motion.

[15] The parties to the TOPS appeal were the Indiana Department of Education 

(“the DOE”) and TOPS, an educational services provider. TOPS was removed 

from a provider list and was unsuccessful in achieving reinstatement during 

administrative proceedings. See id. TOPS filed a petition for judicial review but 
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did not file an official agency record or request an extension of time to do so. 

See id. at 150-51. The petition for judicial review was dismissed, TOPS 

appealed, and a panel of this Court reversed the dismissal and remanded for 

statutorily-mandated findings and conclusions to accompany the final order. 

See id. at 151. On remand, the trial court determined that a timely filed agency 

record was not necessary because the letter deemed to be a final agency order 

was facially defective. The DOE sought transfer, which our supreme court 

granted “to address the question of whether an official agency record is required 

to adjudicate a petition for review under [AOPA].” Id.

[16] The Court observed that both the DOE and TOPS supported their respective 

positions by relying on the evenly-divided decision in Meyer. TOPS, 20 N.E.3d 

at 153. The Court then summarized the Meyer decision:

Meyer involved a Medicaid claimant’s appeal of the Family and 

Social Services Administration’s (“FSSA”) decision to deny her 

benefits. Meyer appealed the decision, contending the agency’s 

final order was erroneous in part because it was based on a 

clerical error in the valuation of Meyer’s assets. Meyer attached 

to her petition for judicial review copies of several agency 

documents including the final action and the ALJ’s decision. 

Although Meyer had been granted an extension of time in which 

to file the agency record as permitted by statute, she failed to file 

the record within the extended time period. [927 N.E.2d] at 369. 

After time to file the record had expired, FSSA answered 

Meyer’s petition and admitted the valuation error. Id. Four 

weeks after filing its answer, FSSA moved to dismiss the petition 

on the grounds that Meyer had failed to file the agency record 

timely. The trial court then granted Meyer’s petition to extend 

retroactively the time period for filing the record, and Meyer 
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thereafter filed the agency record. FSSA appealed and in a 

divided opinion the Court of Appeals affirmed the judgment of 

the trial court. See Ind. Family & Soc. Svcs. Admin. v. Meyer, 900 

N.E.2d 74, 80 (Ind. Ct. App. 2009).

On transfer this Court was unanimous in holding that the 

relevant provisions of AOPA do not permit untimely filing of the 

agency record or nunc pro tunc extensions of the filing deadline. 

See Meyer, 927 N.E.2d at 370, 372. Reviewing the statutory 

language “[f]ailure to file the record within the time permitted by 

this subsection ... is cause for dismissal ...” the Court found that 

“the statute is clear” in placing the responsibility on the petitioner 

to file the agency record timely, and that any request for an 

extension of time must be made within the statutory time period. 

Id. at 370, 371.

. . .

Two important facts distinguish Meyer from the case before us 

and from most AOPA appeals. First, the contested issue was the 

existence of what was essentially an arithmetic error in the

agency decision, albeit one that affected the outcome. Second, 

and most importantly, the State conceded its error on the contested 

issue before it moved to dismiss for lack of a record. So to the 

extent Meyer represents the possibility of an exception to the filing 

requirement, thus triggering the permissive “cause for dismissal” 

language in Indiana Code section 4-21.5-5-13(b), any such 

exception is extremely narrow.

TOPS, 20 N.E.3d at 153-54. 

[17] The TOPS Court went on to recognize that, despite the lack of a majority 

opinion in Meyer, “[a]ll four justices in Meyer agreed that the trial court lacked 

authority to extend the filing deadline for an agency record that was not filed 
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within the required statutory period or an authorized extension thereof.” 20 

N.E.3d at 155. The Court reviewed the reasoning underlying that conclusion in 

Meyer (that is, “the purpose of AOPA section 13 is to ensure that the review of 

agency action proceeds in an efficient and speedy manner, and that the 

reviewing trial court has access to the record before rendering its decision” and 

“the filing requirement also ensures that no relevant evidence or materials are 

hidden”). Id. The Court then clarified “This reasoning applies with equal force 

to a requirement that the official agency record must be filed with the trial court 

in order for judicial review to proceed.” Id.

[18] Finally, the TOPS Court announced its intention to adopt a bright-line rule:

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. 

Id.

[19] Subsequently, in Allen Cty. Plan Comm’n v. Olde Canal Place Ass’n, 61 N.E.3d 

1266 (Ind. Ct. App. 2016), a panel of this Court applied that bright-line rule to 

hold that dismissal is mandatory when a petitioner fails to timely file the agency 

record. The trial court had granted Old Canal Place Association (“OCPA”) an 

extension of time to file an agency record but OCPA did not file the agency 

record by the extended deadline. See id. at 1270. The opposing party, MRK, 

filed a motion to dismiss but OCPA then filed a complete agency record, eight 
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days late. The matter was dismissed and OCPA filed a Trial Rule 60(B)(1) 

motion. The trial court granted the motion, reinstated the case, and MRK 

appealed. We held that the trial court’s action setting aside the dismissal was 

an “empty exercise,” explaining:

In Robertson and TOPS, our Supreme Court ... set forth a brightline rule. Specifically, the Court held that the statutory language 

makes dismissal mandatory when the agency record is not timely 

filed. TOPS, 20 N.E.3d at 155 (holding that “a petitioner for 

review cannot receive consideration of its petition where the 

statutorily-defined agency record has not been filed”); Robertson, 

19 N.E.3d at 762-63 (same). Additionally, in TOPS, the Court 

reaffirmed its prior holding that “the relevant provisions of 

AOPA do not permit untimely filing of the agency record or nunc 

pro tunc extensions of the filing deadline.” TOPS, 20 N.E.3d at 

153 (quoting [Meyer], 927 N.E.2d 367, 372 (Ind. 2010)). . . .

Because OCPA is not permitted to belatedly file the Record, the 

Record is not, and will never be, properly before the trial court. 

Without the Record, OCPA’s petition cannot be considered.

Allen Cty., 61 N.E.3d at 1269-70.

[20] The law is thus clear. Our Indiana Supreme Court has examined the relevant 

statutory language, balanced the preference for deciding cases on the merits 

against the need for judicial efficiency, and concluded that this “bright-line 

approach best serves the goals of accuracy, efficiency, and judicial economy.” 

TOPS, 20 N.E.3d at 155.

[21] Cline recognizes the bright-line rule but argues that our legislature must have 

intended that its statutory language be “applied logically and not to bring about 
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an unjust or absurd result.” Appellee’s Brief at 9. He asserts that his case is 

similar to that of Meyer, because the Board is not undertaking on appeal to 

contest the merits of the trial court’s decision. To the extent that Meyer and 

TOPS recognize a very limited exception where AOPA proceedings might 

continue without a timely-filed agency record, this precedent is not helpful to 

Cline. 

[22] Meyer involved extraordinarily unusual circumstances, where a mathematical 

error had already been conceded by the party moving for dismissal. Thus, the 

trial court, and the appellate courts, were not dependent upon a later-filed 

agency record to reach the merits of the case and ascertain whether the 

appealed decision was erroneous. See TOPS, 20 N.E.3d at 154. Here, at most, 

Cline has shown procedural error on the part of the Board in failing to make 

more specific findings. The Board has not conceded error in the certification 

revocation decision, and the trial court could not reach the merits of that 

decision without an agency record. 

[23] To effect statutory compliance, Cline was required to file the agency record or 

file a motion for an extension of time by May 9, 2016. He did not do so and the 

trial court should have dismissed the petition for judicial review.

 Conclusion

[24] The Board has demonstrated its entitlement to dismissal of Cline’s petition for 

judicial review.
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[25] Reversed.

Pyle, J., concurs.

Kirsch, J., concurs with separate opinion.
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I N T H E

COURT OF APPEALS OF INDIANA

State of Indiana Board of 

Firefighting and Personnel 

Standards,

Appellant,

v.

John T. Cline,

Appellee.

Court of Appeals Case No.

49A04-1707-PL-1670

Kirsch, Judge, concurring, with separate opinion.

[26] I concur, albeit with much reluctance. As the trial court noted, the filing of the 

record was only one day late, and no party sustained any prejudice from the 

delay. When the delay is minimal, and when no prejudice results, courts 

should chastise the tardy filer but should then decide the case on the merits or 

on the lack thereof.

[27] In Teaching our Posterity Success v. Ind. DOE, 20 N.E.3d 149, 151 (Ind. 2014), 

however, our Supreme Court set forth as a “bright line rule” that a petitioner 

seeking judicial review “must file the complete administrative record within 

thirty days of filing the petition or within an extension of time granted by the 

trial court.” It is that bright line rule that we apply here.