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COA upholds dismissal of fired DOT employee’s untimely petition for review

December 29, 2016

A former employee of the Indiana Department of Transportation, who was fired in 2013, untimely filed his petition for judicial review after he was unsuccessful in his administrative appeals and the trial court correctly dismissed his petition, the Indiana Court of Appeals affirmed Thursday.

Andrew Hunter was terminated in November 2013 and exhausted his administrative appeals before firing his petition for judicial review Sept. 16, 2015. This came after the State Employees’ Appeal Commission issued and served by mail on Aug. 13, 2015, a final order affirming the administrative law judge’s ruling in favor of INDOT.

INDOT claimed in its motion to dismiss for failure to state a claim under Ind. Trial R. 12(B)(6), for the first time, that Hunter’s petition was untimely filed. The trial court granted INDOT’s motion after holding a hearing. Hunter filed a motion to correct error, which was denied, leading to this appeal.

The appellate court found Hunter’s petition for judicial review was untimely filed. Under the statute, the 33-day period to file, which includes the three days for service being mailed, the period began on Aug. 14 and ended Sept. 15. Thus, Hunter’s petition filed Sept. 16 was untimely.

Hunter also claimed that untimeliness is an affirmative defense that INDOT had to plead in its response, and therefore, by not doing so, failed to preserve the issue. But even if INDOT failed to preserve the timeliness issue, the trial court nevertheless could have considered the issue and found that Hunter waived his right to judicial review, Judge Terry Crone wrote.   

Hunter also maintained that the trial court should give him a chance to demonstrate good cause to excuse the untimely filing, citing O.R., 16 N.E.3d 965.

“But we find it significant that (Administrative Orders and Procedures Act) ‘establishes the exclusive means for judicial review of an agency action,’ Ind. Code § 4-21.5-5-1, and it does not include a provision similar to Appellate Rule 1 that permits deviation from AOPA’s procedural rules. In fact, Indiana Code Section 4-21.5-2-2 provides, ‘Except to the extent precluded by a law, a person may waive any right conferred upon that person by this article. This section does not permit the waiver of any procedural duty imposed by this article,’” Crone wrote. “Thus, there is no mechanism allowing the trial court to resurrect a waived right to judicial review.”

The case is Andrew Hunter v. State of Indiana, Department of Transportation, 49A02-1604-PL-978.

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