Stay of Agency Enforcement Application - Indiana

APPLICATION FOR STAY OF AGENCY ENFORCEMENT ACTION

STATE OF INDIANA

PART ONE: COVER LETTER TO AGENCY

[__/__/____]

[________________________________]
[Agency Name]
[________________________________]
[Agency Address]
[________________________________]
[City, State ZIP]

Re: Application for Stay of Enforcement Action
Agency Case/Docket No.: [________________________________]
Order/Action at Issue: [________________________________]
Date of Order/Action: [__/__/____]

Dear [________________________________] [Agency Head / Administrative Law Judge / Ultimate Authority]:

Enclosed please find the Application for Stay of Agency Enforcement filed on behalf of [________________________________] ("Applicant") pursuant to the Indiana Administrative Orders and Procedures Act ("AOPA"), IC 4-21.5-3-6 and related provisions.

Applicant respectfully requests that the Agency stay enforcement of the [________________________________] [describe order/action] dated [__/__/____] pending resolution of [________________________________] [petition for review / administrative appeal / judicial review proceedings].

The enclosed Application sets forth the legal and factual basis for the requested stay. In light of the imminent enforcement date and the potential for irreparable harm, Applicant requests expedited consideration of this Application.

Should you have questions or wish to schedule a preliminary hearing on this Application, please contact the undersigned.

Respectfully submitted,

[________________________________]
Attorney for Applicant
[________________________________]
[Address]
[________________________________]
[City, State ZIP]
[________________________________]
[Phone / Email]
Indiana Attorney No. [________________________________]

PART TWO: FORMAL APPLICATION FOR STAY OF AGENCY ENFORCEMENT

BEFORE THE [________________________________]
STATE OF INDIANA

APPLICATION FOR STAY OF ENFORCEMENT ACTION

[________________________________] ("Applicant"), by and through counsel, [________________________________], respectfully submits this Application for Stay of Enforcement Action pursuant to the Indiana Administrative Orders and Procedures Act, IC 4-21.5-3-6, IC 4-21.5-3-7, and IC 4-21.5-5-6, and in support thereof states as follows:

I. INTRODUCTION AND PROCEDURAL BACKGROUND

1. Applicant is [________________________________] [individual/corporation/LLC/partnership], with its principal address at [________________________________], in the State of Indiana.

2. On [__/__/____], the [________________________________] [Agency Name] issued [________________________________] [describe the enforcement action: order, notice of violation, cease and desist order, license revocation/suspension, civil penalty, emergency order, etc.] (the "Enforcement Order"), a true and correct copy of which is attached as Exhibit A.

3. The Enforcement Order requires Applicant to [________________________________] [describe the specific actions required or prohibited by the order].

4. The Enforcement Order becomes effective on [__/__/____], or ☐ is already effective as of the date of this filing.

5. On [__/__/____], Applicant filed a [________________________________] [petition for review of the order / petition for administrative review / notice of appeal] (the "Petition for Review"), a copy of which is attached as Exhibit B.

6. This Application is filed:

☐ Pursuant to IC 4-21.5-3-6 -- requesting a stay and preliminary hearing before an administrative law judge on the effectiveness of the order
☐ Pursuant to IC 4-21.5-3-7 -- requesting a stay pending review by the ultimate authority
☐ Pursuant to IC 4-21.5-5-6 -- requesting a stay pending judicial review
☐ Pursuant to IC 4-21.5-4-1 et seq. -- challenging an emergency or interim order and requesting a stay

II. STATEMENT OF FACTS

7. [________________________________]
   [Describe the factual background, including:

• Nature of Applicant's business, license, or regulated activity
• Regulatory history with the Agency
• Events leading to the enforcement action
• Timeline of the Agency's investigation, notice, and proceedings
• Any prior compliance efforts by Applicant
• Current status of the underlying proceedings]

8. [________________________________]

9. [________________________________]

10. [________________________________]

III. LEGAL STANDARD FOR STAY UNDER INDIANA LAW

A. Stay and Preliminary Hearing Under IC 4-21.5-3-6

11. Under IC 4-21.5-3-6, if a petition for review of an order is filed and a petition for stay of effectiveness is also filed, an administrative law judge shall, as soon as practicable, conduct a preliminary hearing to determine whether the order should be stayed in whole or in part.

12. The burden of proof in the preliminary hearing is on the person seeking the stay. IC 4-21.5-3-6.

13. The administrative law judge may stay the order in whole or in part. The order concerning the stay may be issued after the underlying order has become effective. The resulting stay order must include a statement of the facts and law on which it is based.

B. Stay Pending Review by Ultimate Authority Under IC 4-21.5-3-7

14. A party may petition the ultimate authority for an agency for a stay of effectiveness of a final order pending review. The ultimate authority may stay the order in whole or in part.

C. Stay Pending Judicial Review Under IC 4-21.5-5-6

15. Under IC 4-21.5-5-6, filing a petition for judicial review does not automatically stay enforcement of the agency action. However, the agency may grant a stay, or the reviewing court may order a stay, upon appropriate terms.

D. Traditional Stay Factors

16. Indiana agencies and courts apply the following factors in evaluating stay applications:

(a) The applicant's likelihood of success on the merits or the existence of substantial questions going to the merits;

(b) Whether the applicant will suffer irreparable harm absent a stay;

(c) Whether the balance of hardships tips in the applicant's favor; and

(d) Whether the public interest supports granting the stay.

IV. GROUNDS FOR STAY

A. Likelihood of Success on the Merits

17. Applicant is likely to succeed on the merits of the underlying petition for review for the following reasons:

☐ The Enforcement Order is based on an erroneous interpretation of [________________________________] [cite statute/regulation]
☐ The Agency's findings of fact are not supported by substantial evidence in the record
☐ The Agency exceeded its statutory authority under IC [________________________________]
☐ The Agency failed to follow required AOPA procedures, including adequate notice and opportunity to be heard
☐ The Enforcement Order is arbitrary, capricious, or an abuse of discretion
☐ The Agency applied an incorrect legal standard
☐ The Agency failed to consider relevant evidence or arguments
☐ The Enforcement Order violates Applicant's constitutional rights under the Indiana Constitution, Art. [________________________________]
☐ Other: [________________________________]

18. Specifically, [________________________________]
    [Provide detailed argument on the merits]

19. [________________________________]

B. Irreparable Harm to Applicant

20. Absent a stay, Applicant will suffer irreparable harm that cannot be remedied by a later favorable decision on the merits, including:

☐ Permanent loss of business operations or going-concern value
☐ Revocation or suspension of professional or occupational license essential to livelihood
☐ Termination of employees and dissolution of workforce
☐ Loss of established client or customer relationships that cannot be rebuilt
☐ Reputational injury and stigma in the professional community
☐ Financial hardship beyond Applicant's capacity to absorb or recover
☐ Forfeiture of contractual obligations or business opportunities
☐ Loss of real property or leasehold interests
☐ Health, safety, or welfare impacts on Applicant or Applicant's family
☐ Constitutional deprivation (due process, property rights, etc.)
☐ Other: [________________________________]

21. [________________________________]
    [Describe with specificity the irreparable harm]

22. [________________________________]

C. Balance of Equities

23. The balance of equities favors granting the stay because:

☐ The harm to Applicant from enforcement vastly exceeds any harm to the Agency or public from a temporary stay
☐ Applicant is prepared to comply with reasonable interim conditions
☐ The Agency's interests can be adequately protected by conditions or security
☐ Applicant has a clean compliance history and has acted in good faith
☐ The enforcement action does not involve an imminent threat to public health or safety
☐ The status quo can be maintained without prejudice to any party
☐ Other: [________________________________]

24. [________________________________]

D. Public Interest

25. The public interest supports granting the stay because:

☐ Applicant provides essential services, employment, or economic benefit to the community
☐ Enforcement would disrupt services relied upon by the public
☐ A stay allows orderly adjudication of disputed issues before imposition of penalties
☐ The public benefits from the full and fair application of AOPA procedural protections
☐ No imminent risk to public health, safety, or welfare exists during the stay period
☐ Applicant proposes protective measures to address any public interest concerns
☐ Other: [________________________________]

26. [________________________________]

V. BOND OR SECURITY OFFER

27. Applicant acknowledges that the Agency or administrative law judge may condition a stay upon the posting of bond, security, or other financial assurance.

28. Applicant offers the following:

☐ Surety bond in the amount of $[________________________________]
☐ Cash deposit or escrow in the amount of $[________________________________]
☐ Irrevocable letter of credit in the amount of $[________________________________]
☐ Personal or corporate guarantee of [________________________________]
☐ Real property security on property at [________________________________]
☐ Other form of security: [________________________________]
☐ Applicant requests waiver of bond/security requirement because: [________________________________]

VI. PROPOSED CONDITIONS OF STAY

29. Applicant proposes the following conditions during the stay period:

☐ Continued compliance with all statutes and regulations not at issue in this action
☐ Periodic reporting to the Agency at intervals of [________________________________]
☐ Maintenance of current insurance coverage at levels of $[________________________________]
☐ Restricted operations as follows: [________________________________]
☐ Submission to interim inspections or audits by the Agency
☐ Escrow of disputed funds in the amount of $[________________________________]
☐ Partial compliance with the Enforcement Order as follows: [________________________________]
☐ Appointment of a monitor or third-party compliance officer
☐ Other conditions: [________________________________]

VII. REQUEST FOR PRELIMINARY HEARING

30. Pursuant to IC 4-21.5-3-6, Applicant requests that an administrative law judge schedule a preliminary hearing on this Application as soon as practicable.

31. Applicant further requests:

☐ That the preliminary hearing be scheduled within [____] business days of the filing of this Application
☐ That the hearing be conducted in person at [________________________________]
☐ That the hearing be conducted by telephone or video conference
☐ That the Agency rule on this Application based on the written submissions without an oral hearing
☐ That an interim stay be issued pending the preliminary hearing

32. Applicant estimates that the preliminary hearing will require approximately [____] hours and will involve [____] witnesses.

VIII. EMERGENCY / EXPEDITED RELIEF REQUEST

33. ☐ Applicant requests emergency or expedited consideration because:

☐ The Enforcement Order takes effect on [__/__/____], leaving only [____] days for Agency action
☐ Immediate and irreversible consequences will result if enforcement proceeds
☐ The nature of the harm precludes waiting for a hearing in the ordinary course
☐ Emergency or interim order was issued without prior notice or hearing under IC 4-21.5-4-1
☐ Other exigent circumstances: [________________________________]

34. Applicant respectfully requests that the Agency or ALJ:

☐ Issue an immediate interim stay pending the preliminary hearing
☐ Schedule the preliminary hearing on an expedited basis
☐ Rule on this Application ex parte in light of exigent circumstances, subject to the Agency's right to move for dissolution

IX. PRAYER FOR RELIEF

WHEREFORE, Applicant respectfully requests that the [________________________________] [Agency Name / Administrative Law Judge / Ultimate Authority]:

A. Stay enforcement of the Enforcement Order dated [__/__/____] in its entirety pending final disposition of Applicant's [________________________________] [petition for review / appeal / judicial review proceedings];

B. In the alternative, stay enforcement of the following portions of the Enforcement Order: [________________________________];

C. Schedule a preliminary hearing on this Application as soon as practicable pursuant to IC 4-21.5-3-6;

D. Set reasonable conditions for the stay, if any, consistent with the proposals set forth herein;

E. Grant such other and further relief as is just and equitable.

Respectfully submitted,

Date: [__/__/____]

[________________________________]
Attorney for Applicant
[________________________________]
[Address]
[________________________________]
[City, State ZIP]
[________________________________]
[Phone / Email]
Indiana Attorney No. [________________________________]

VERIFICATION

STATE OF INDIANA )
) ss.
County of [________________________________] )

I, [________________________________], being duly sworn upon oath, say that I am the Applicant (or authorized representative of the Applicant) in the above-captioned matter, that I have read the foregoing Application for Stay of Enforcement Action, and that the statements of fact contained therein are true and correct to the best of my knowledge, information, and belief.

[________________________________]
Applicant / Authorized Representative

SUBSCRIBED AND SWORN to before me this [____] day of [________________________________], 20[____].

[________________________________]
Notary Public in and for the State of Indiana
County of Residence: [________________________________]
My Commission Expires: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served a true and correct copy of this Application for Stay of Enforcement Action and all attached exhibits upon the following persons by the method indicated:

☐ First class U.S. Mail, postage prepaid
☐ Hand delivery
☐ Electronic mail to: [________________________________]
☐ Facsimile to: [________________________________]
☐ Agency electronic filing system (Indiana Courts E-Filing System, if applicable)
☐ Certified mail, return receipt requested

Agency Counsel / Representative:
[________________________________]
[________________________________]
[________________________________]

Other Parties / Intervenors:
[________________________________]
[________________________________]
[________________________________]

[________________________________]
Signature

PART THREE: PROPOSED STAY ORDER

BEFORE THE [________________________________]
STATE OF INDIANA

ORDER ON APPLICATION FOR STAY OF ENFORCEMENT

This matter comes before the [________________________________] [Administrative Law Judge / Agency Head / Ultimate Authority] on the Application for Stay of Enforcement Action filed by [________________________________] ("Applicant") on [__/__/____].

Having conducted a preliminary hearing on [__/__/____] [OR: Having reviewed the written submissions of the parties], and being duly advised in the premises, the [ALJ / Agency] now finds and orders as follows:

FINDINGS OF FACT AND LAW:

1. [________________________________]
2. [________________________________]
3. [________________________________]

ORDER:

1. The Application for Stay is GRANTED [in whole / in part].

2. The [________________________________] [Enforcement Order] dated [__/__/____] is STAYED pending [________________________________] [final administrative disposition / judicial review / further order].

3. The following conditions apply during the stay period:
   a. [________________________________]
   b. [________________________________]
   c. [________________________________]

4. Applicant shall post [________________________________] [bond/security] in the amount of $[________________________________] within [____] days. [OR: No bond or security is required.]

5. Either party may petition to modify or dissolve this stay upon a showing of changed circumstances.

6. This Order is effective [immediately / on __/__/____].

SO ORDERED this [____] day of [________________________________], 20[____].

[________________________________]
[Title]
[________________________________]
[Agency Name]

DOCUMENT CHECKLIST

Required Documents

☐ Cover letter to Agency
☐ Formal Application for Stay of Enforcement Action
☐ Verification (notarized)
☐ Certificate of Service
☐ Copy of the Enforcement Order (Exhibit A)
☐ Copy of the Petition for Review (Exhibit B)

Supporting Evidence

☐ Declaration(s) of Applicant regarding irreparable harm
☐ Declaration(s) of employees, customers, or other affected persons
☐ Financial statements or projections demonstrating economic harm
☐ Business records showing compliance history
☐ Expert report(s) or affidavit(s), if applicable
☐ Documentation of proposed bond or security
☐ Relevant statutory and regulatory provisions
☐ Pertinent case law or prior agency precedent

Additional Documents (as applicable)

☐ Proposed Stay Order
☐ Request for preliminary hearing scheduling
☐ Request for emergency interim stay
☐ Proof of insurance or bonding capacity
☐ Correspondence with Agency regarding compliance
☐ Prior agency inspection reports or compliance records
☐ Letters of support from community or industry

PRACTICE TIPS FOR INDIANA PRACTITIONERS

Key Statutory Framework

• IC 4-21.5-3-6 is the primary provision for stays during administrative proceedings. It mandates a preliminary hearing before an ALJ when both a petition for review and a petition for stay are filed. The burden of proof is on the person seeking the stay.
• IC 4-21.5-3-5 addresses stays in the context of licensing decisions specifically. An agency that issues an order denying, revoking, suspending, or otherwise limiting a license must provide notice with specific content and allow a stay request.
• IC 4-21.5-3-7 provides that a party may petition the ultimate authority for a stay of a final order pending further review.
• IC 4-21.5-5-6 governs stays pending judicial review. Filing a petition for judicial review does NOT automatically stay agency action. The agency may grant a stay, or the court may order one.
• IC 4-21.5-4-1 et seq. governs emergency and interim orders, which have separate procedural requirements including the right to a prompt hearing.

Timing and Filing

• File the stay application simultaneously with (or promptly after) the petition for review.
• Under IC 4-21.5-3-7, a petition for review of an initial order must be filed within 15 days after service.
• Under IC 4-21.5-5-3, a petition for judicial review must be filed within 30 days of the date the party receives notice of the agency's final order.
• The ALJ must conduct the preliminary hearing "as soon as practicable" -- but define urgency in your application to ensure prompt action.

Preliminary Hearing Preparation

• The preliminary hearing under IC 4-21.5-3-6 is a formal proceeding with evidentiary requirements. Prepare declarations and exhibits.
• The resulting stay order must include "a statement of the facts and law on which it is based," so provide the ALJ a clear record.
• Be prepared to present witnesses if the ALJ requires live testimony.

Agency-Specific Considerations

• Indiana agencies (e.g., Indiana Department of Environmental Management, Indiana Professional Licensing Agency, Indiana Department of Revenue) may have supplemental rules.
• The Indiana Office of Administrative Law Proceedings (OALP) conducts hearings for many state agencies. Check whether OALP procedures apply.
• Some agencies have specific forms or electronic filing requirements.

Emergency Orders

• Emergency orders under IC 4-21.5-4-1 can be issued without prior notice or hearing if an agency finds that immediate danger to public health, safety, or welfare requires emergency action.
• Upon request, an agency must promptly set a date for a hearing on the emergency order. Use the stay application to challenge the factual basis for the emergency finding.

Appeal of Stay Denial

• If the ALJ or agency denies the stay, consider filing for a stay in the trial court under IC 4-21.5-5-6.
• Preserve all arguments and the record for potential judicial review.

SOURCES AND REFERENCES

• Indiana Code Article 4-21.5 -- Administrative Orders and Procedures Act
  https://iga.in.gov/laws/2024/ic/titles/4#4-21.5

• IC 4-21.5-3-6 -- Notice; Stay, Preliminary Hearing, and Resulting Order
  https://law.justia.com/codes/indiana/title-4/article-21-5/chapter-3/section-4-21-5-3-6/

• IC 4-21.5-3-22 -- Administrative Orders; Enforcement
  https://law.justia.com/codes/indiana/title-4/article-21-5/chapter-3/section-4-21-5-3-22/

• IC 4-21.5-5-6 -- Stay Pending Judicial Review
  https://law.justia.com/codes/indiana/title-4/article-21-5/chapter-5/

• Indiana Office of Administrative Law Proceedings (OALP)
  https://www.in.gov/oalp/

• Indiana Administrative Procedure Act -- Ballotpedia Overview
  https://ballotpedia.org/Indiana_Administrative_Procedure_Act