Darren DeLong, Appellant-Petitioner v. Indiana Professional Licensing Agency, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] The Indiana Professional Licensing Agency (“IPLA”), through the Indiana Board of Pharmacy (“the Board”), found that Darren DeLong committed fraud or material deception in renewing his pharmacist license in violation of Indiana Code Section 25-1-9-4(a). The Board sanctioned DeLong by issuing a formal letter of reprimand and fining him $1,000. DeLong sought judicial review of the Board's finding and sanction, but the trial court affirmed the Board's decision. DeLong now appeals. We affirm.

Issues

[2] DeLong presents two issues, which we reorder and restate as:

I. Whether the Board's decision to discipline DeLong was supported by a preponderance of the evidence or was arbitrary and capricious.

II. Whether the trial court used an improper evidentiary standard when considering DeLong's petition for judicial review.

Facts

[3] DeLong is a pharmacist licensed in Indiana, and he was employed as a clinical pharmacist for a facility operated by the federal Department of Veterans Affairs (“VA”) in Danville, Illinois. The VA disciplined DeLong twice during his employment. The first was a five-day suspension in September 2019 for “inappropriate conduct.” Appellant's App. Vol. II p. 94. Then, on February 4, 2020, the VA proposed terminating DeLong from his employment for failure to follow departmental policy regarding the monthly review of charts.

[4] Following his proposed termination, DeLong submitted a written reply to his director on February 20, 2020. DeLong also sought relief through his union and the Equal Employment Opportunity Commission (“EEOC”). DeLong's termination became effective March 1, 2020. DeLong received a letter from the VA on June 24, 2020, informing him that it had reported his termination to the Board.

[5] To renew his pharmacist license, DeLong, on June 28, 2020, completed an online renewal application. Both DeLong's union appeal and his EEOC discrimination complaint remained pending at the time he completed the renewal application. In the renewal application, DeLong was required to answer a series of questions. The fourth question on the application (“Question 4”) asked: “Since you last renewed, have you been disciplined, terminated, suspended, subject to any restriction, probation or have you resigned in lieu of discipline or termination from any employer related to your licensed profession?” Appellant's App. Vol. III p. 149 (emphases added). Despite the fact that DeLong had recently been disciplined and terminated by the VA, he answered Question 4 by marking a letter “N,” indicating a negative response. Id.

[6] On August 13, 2020, a case analyst with the Indiana Attorney General's Office called DeLong about the letter the Board had received from the VA. DeLong later claimed that he thought the case analyst was from the Board, not the Attorney General's Office, and he admitted to the case analyst that he had been disciplined by the VA. He also provided the case analyst with documentation showing the grounds for his appeal of his termination from the VA.

[7] On August 6, 2021, the State filed an administrative complaint with the Board alleging that DeLong had committed fraud in his license renewal application. The complaint specifically alleged that DeLong “engaged in or knowingly cooperated in fraud or material deception in order to obtain a license to practice” by failing to “disclose his 2019 suspension and 2020 termination from the VA on his 2020 Indiana Pharmacist license renewal.” Appellant's App. Vol. II p. 185. The complaint asked the Board to “impose an appropriate disciplinary sanction.” Id.

[8] On November 15, 2023, as a result of arbitration between DeLong and the VA, an arbitration award was entered in favor of DeLong and against the VA. This award required the VA to purge and rescind the discipline taken against DeLong, along with others who had been subject to similar disciplinary actions. The award gave DeLong the option to: (1) return to employment with the VA, (2) not return to employment, or (3) opt out of the arbitration award. DeLong opted not to return to the VA and received backpay, and he is now considered to have resigned from the VA.

[9] On March 11, 2024, the Board held a hearing on the State's administrative complaint. At this hearing, DeLong claimed that Question 4 had no correct answer because he believed he would ultimately prevail in his efforts to have his termination overturned. Per DeLong's line of thought:

if I answer “yes” to this question, that answer is true for the next two or three months until the termination is overturned. If I answer “no,” that answer is true for the next hundred years, so which is the most correct answer, two or three months or a hundred years? and I went with a hundred years.

Id. at 21-22 (quotation marks altered). DeLong also testified that he believed the Board was aware of his termination because the Board had received a letter from the VA informing the Board of the VA's action. DeLong claimed that he had no intent to deceive the Board and that he was not trying to hide the VA's actions from the Board.

[10] On August 14, 2024, the Board entered “Findings of Fact, Conclusions of Law, and Order,” in which it found, among other things:

8. On or about June 28, 2020, [DeLong] renewed his pharmacist license and answered “no” to question number four on the renewal application which asks, “Since you last renewed, have you been disciplined, terminated, suspended, subject to any restriction, probation or have you resigned in lieu of discipline or termination from any employer related to your licensed profession?”

9. [DeLong]’s answer in the negative at the time of his renewal application submission was a false and material statement in that [DeLong] was required to answer each of the renewal questions honestly and under oath.

10. [DeLong] had knowledge that [DeLong]’s answer was false at the time in which [DeLong] answered ‘no’ on the renewal application to question four, because [DeLong] was suspended and subsequently removed from Federal service at the VA and [DeLong]’s discipline had not been overturned as requested in his February 10 [sic], 2020, complaint of employment discrimination.

11. [DeLong] intentionally made a false representation to the Board.

12. This Board and/or IPLA rely upon true and accurate representations on the renewal application in determining whether to grant renewal or licensure.

13. [DeLong]’s fraud or material deception in the course of his renewal application operates to the detriment of this Board and/ or IPLA in the processing and subsequent approval/denial of [DeLong]’s renewal application, depriving the Board and/or IPLA of their right to assess [DeLong]’s worthiness of license renewal.

Id. at 222-23 (footnote omitted). The Board found that DeLong's conduct violated Indiana Code Section 25-1-9-4(a)(1)(A), which prohibits fraud and material deception when obtaining a license, and issued a letter of reprimand against his license and a $1,000 fine.

[11] On September 13, 2024, DeLong filed a petition for judicial review in which he claimed that: (1) the Board's decision was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law; (2) Question 4 was ambiguous; (3) “the totality of the evidence to the Board did not support the conclusion of law” that he had engaged in fraud; and (4) the Board and the Attorney General's Office violated DeLong's rights under the Fourth and Fifth Amendments to the United States Constitution.¹ Id. at 33. On April 1, 2025, DeLong submitted a brief in support of his petition for judicial review. In this brief, DeLong claimed that the Board's decision was unsupported by “substantial evidence.” Id. at 44, 46.

[12] On November 17, 2025, the trial court entered an order, including findings of facts and conclusions thereon, in which it affirmed the Board's decision. The trial court's order stated that a “Petitioner must demonstrate that he was prejudiced by an agency action that was ․ [u]nsupported by substantial evidence” and that the trial court was “bound by the agency's findings of fact as long as those findings are supported by substantial evidence.” Id. at 13.

[13] The trial court concluded that, contrary to DeLong's claim that his “suspension and removal were not susceptible to exact knowledge and, therefore, were not ‘past or existing’ facts as required for a finding of fraud or deception,” DeLong was, in fact, suspended at the time he answered Question 4. Id. at 21. The trial court also concluded that it could not reweigh the evidence regarding whether DeLong intended to deceive the Board when completing Question 4. DeLong now appeals.

Discussion and Decision

Standard of Review

[14] “For most agencies, the [Administrative Orders and Procedures Act (“AOPA”)] ‘establishes the exclusive means for judicial review of an agency action.’ ” Ind. Hous. & Cmty. Dev. Auth. v. Blanchard, 270 N.E.3d 462, 469 (Ind. Ct. App. 2025) (quoting Ind. Code § 4-21.5-5-1); see also Teaching Our Posterity Success, Inc. v. Ind. Dep't of Educ., 20 N.E.3d 149, 151 (Ind. 2014) (noting that the AOPA governs judicial review of certain State agencies). When reviewing a trial court's ruling on a petition for judicial review, instead of deferring to the trial court, “ ‘we stand in the trial court's shoes.’ ” Blanchard, 270 N.E.3d at 469 (quoting Brookston Res., Inc. v. Dep't of Nat. Res., 243 N.E.3d 1127, 1139 (Ind. Ct. App. 2024)), trans. denied. “In other words, ‘[w]e review an administrative agency's order using the same standard as the trial court.’ ” Id. (quoting Ind. Dep't of Nat. Res. v. Prosser, 132 N.E.3d 397, 401 (Ind. Ct. App. 2019)).

Our review of an agency's action is purposely limited in recognition of the agency's expertise in its field and the public's reliance on its authority to govern in that area. Accordingly, when we review an agency's decision, we do not reweigh the evidence, judge witness credibility, or substitute our judgment for that of the agency. And we are bound by the agency's findings of fact ․ The party seeking judicial review bears the burden of demonstrating the invalidity of the agency's action.

Fike Invs., LLC v. Wilson, 251 N.E.3d 1095, 1098 (Ind. Ct. App. 2025) (citations omitted), trans. denied. The reviewing court, whether the trial court or the court on appeal, must consider the evidence in the light most favorable to the administrative proceedings. Ind. Law Enf't Training Bd. v. Comer, 26 N.E.3d 57, 60 (Ind. Ct. App. 2015).

[15] Prior to July 1, 2024, Indiana Code Section 4-21.5-5-14 (the portion of the AOPA governing judicial review of agency decisions) provided that a court could set aside an agency action if the party seeking judicial relief 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.

I.C. § 4-21.5-5-14(d) (1987) (emphasis added).

[16] Effective July 1, 2024, subsection (d)(5) of this statute was amended to read: “unsupported by a preponderance of the evidence.” I.C. § 4-21.5-5-14(d) (2024) (emphasis added); see also Fike Invs., 251 N.E.3d at 1098 n.2 (noting amendment). This is a substantive change, and DeLong's petition for judicial review was filed after this amendment.

[17] Our courts have held that, for purposes of judicial review, the term “substantial evidence” means evidence that “is more than a scintilla, but something less than a preponderance of the evidence.” J.R. v. Ind. Dep't of Child Servs., 233 N.E.3d 1069, 1075 (Ind. Ct. App. 2024) (citing Ind. High Sch. Athletic Ass'n, Inc. v. Watson, 938 N.E.2d 672, 680-81 (Ind. 2010); Prosser, 132 N.E.3d at 401), trans. denied. In contrast, “[p]reponderance of the evidence simply means the greater weight of the evidence.” Kishpaugh v. Odegard, 17 N.E.3d 363, 373 (Ind. Ct. App. 2014) (citing Travelers Indem. Co. v. Armstrong, 442 N.E.2d 349, 361 (Ind. 1982)) (internal quotation marks omitted). That is, to prove something by a preponderance of the evidence requires a showing that the facts are more likely true than not. Geels v. Flottemesch, 243 N.E.3d 1069, 1071 (Ind. 2024).

I. The Board's determination that DeLong engaged in renewal fraud was supported by a preponderance of the evidence and was not arbitrary or capricious.

A. The Board's determination was supported by a preponderance of the evidence.

[18] DeLong claims that the Board's determination that he engaged in renewal fraud and, therefore, violated Indiana Code Section 25-1-9-4(a)(1)(A)—which prohibits fraud or material deception when obtaining a professional license—was not supported by a preponderance of the evidence. This statute provides in relevant part:

(a) A practitioner shall conduct the practitioner's practice in accordance with the standards established by the board regulating the profession in question and is subject to the exercise of the disciplinary sanctions under section 9 of this chapter if, after a hearing, the board finds:

(1) a practitioner has:

(A) engaged in or knowingly cooperated in fraud or material deception in order to obtain a license to practice, including cheating on a licensing examination;

I.C. § 25-1-9-4(a)(1)(A) (emphasis added).

[19] Although this statute does not define “fraud,” the elements of the tort of common-law fraud are: “ ‘(1) a material misrepresentation of past or existing fact which (2) was untrue, (3) was made with knowledge or in reckless ignorance of its falsity, (4) was made with the intent to deceive, (5) was rightfully relied upon by the complaining party, and (6) which proximately caused injury.’ ” Gasbi, LLC v. Sanders, 120 N.E.3d 614, 621 (Ind. Ct. App. 2019) (quoting Boots v. D. Young Chevrolet, LLC, 93 N.E.3d 793, 799 (Ind. Ct. App. 2018)), trans. denied. Fraud may also include the failure to disclose all material facts. Id.; see also Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327, 335 (Ind. 2013) (“[F]raud is not limited only to affirmative representations; the failure to disclose all material facts can also constitute actionable fraud.”).

“[B]ecause intent is a mental state, a trier of fact must usually resort to reasonable inferences based upon examination of surrounding circumstances to determine whether, from the person's conduct and the natural consequences that might be expected from that conduct, a showing or inference of intent to commit that conduct exists.”

Johnson v. Naugle, 557 N.E.2d 1339, 1347 n.3 (Ind. Ct. App. 1990) (quoting Metzler v. State, 540 N.E.2d 606, 609 (Ind. 1989)).

[20] The facts most favorable to the Board's decision show that DeLong was well aware of the fact that he had been terminated from his employment with the VA at the time he submitted his license renewal application. Despite this, when asked in Question 4 whether, since his last license renewal, he had “been disciplined, terminated, suspended, subject to any restriction, probation or [had] resigned in lieu of discipline or termination from any employer related to [his] licensed profession,” DeLong answered in the negative. Appellant's App. Vol. III p. 149. This was clearly a factually incorrect answer at the time DeLong submitted his renewal application.

[21] “If a statement is susceptible of exact knowledge when made, it is a statement of fact rather than opinion.” Watters v. Cole, 280 N.E.3d 299, 306 (Ind. Ct. App. 2026) (quoting CoMentis, Inc. v. Purdue Research Found., 765 F. Supp. 2d 1092, 1106 (N.D. Ind. 2011)). DeLong's negative answer to Question 4 was not a matter of opinion; it was a statement of fact, and an incorrect statement of fact. Regardless of whether DeLong truly believed that his termination would be overturned—as was eventually the case—at the time he answered Question 4, he had been terminated from his employment. We reject DeLong's claim that there was no way for him to accurately answer Question 4. To the contrary, there was a simple, correct answer: at the time he completed his license renewal application, he had been terminated from his employment with the VA. To state otherwise was factually incorrect.

[22] Moreover, it is apparent that DeLong's negative response to Question 4 was purposeful. That is, DeLong did not respond to the question in the negative accidentally or because he misunderstood the question. Instead, he responded in the negative because he believed that he would ultimately prevail in his efforts to overturn his termination. Despite the fact that DeLong was ultimately correct in his belief that he would prevail in his efforts to have his termination overturned, the fact remains that, at the time he answered Question 4, his termination had not yet been overturned (and was not overturned until years later). DeLong had, in fact, been terminated from and disciplined at employment related to his licensed profession as a pharmacist. Indeed, the fact that DeLong knew to appeal and arbitrate his discipline demonstrates that he knew he had been subject to adverse professional discipline, contrary to his answer to Question 4. We agree with the Board that DeLong “made the conscious choice not to disclose past professional discipline because he thought that the proceedings would ultimately render a favorable result.” Appellee's Br. p. 19.

[23] DeLong's claims that he had no intention to deceive the Board, and that he, therefore, did not engage in fraud, are simply requests that we consider evidence that is not favorable to the Board's decision, assess the credibility of his testimony, and weigh his testimony in a manner differently than did the Board. This is prohibited by our well-settled standard of review. Indeed, even if DeLong's testimony was uncontradicted, the Board was not required to believe it. In re Paternity of A.B., 267 N.E.3d 510, 519 (Ind. Ct. App. 2025) (noting that a fact-finder is not required to credit a witness's uncontradicted testimony) (citing Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004)).

[24] The Board's findings that DeLong made a false statement in his renewal application, that he knew the statement was false when he made it, and that he did so with the intent to deceive the Board are supported by a preponderance of the evidence.

B. The Board's determination was not arbitrary or capricious.

[25] DeLong also claims that the Board's determination that he engaged in renewal fraud was arbitrary and capricious.² To show that the Board's decision was arbitrary or capricious, DeLong bears the burden of showing that the Board disciplined him “without consideration of the facts” in a manner that “lacks any basis that may lead a reasonable person” to reach the same decision. Hotmer v. Ind. Family & Soc. Servs. Admin., 150 N.E.3d 705, 708 (Ind. Ct. App. 2020).

[26] We cannot say that the Board's decision was arbitrary or capricious. The Board held a hearing at which DeLong appeared, testified, and offered his explanation for his negative answer to Question 4. The Board considered that explanation, along with other evidence, such as the VA's letter, DeLong's application, and the surrounding circumstances; it then concluded that DeLong knowingly made a false statement with the intent to deceive. Thus, the Board's decision was not made “without consideration of the facts.” Id. at 708.

II. The trial court's reference to “substantial evidence” is not reversible error.

[27] DeLong also claims that the trial court committed reversible error by referring to the old “substantial evidence” standard that has since been replaced by the preponderance of the evidence standard, as noted above. To be sure, the trial court did reference the old standard in its order. See Appellant's App. Vol. II p. 13 (citing prior version of Indiana Code Section 4-21.5-5-14); id. (stating that the court was “bound by the agency's findings of fact as long as those findings are supported by substantial evidence”).³

[28] The fact that the trial court applied the old standard is immaterial to our review. As set forth above, when reviewing a trial court's ruling on a petition for judicial review, we do not defer to the trial court and, instead, “ ‘stand in the trial court's shoes.’ ” Blanchard, 270 N.E.3d at 469 (quoting Brookston Res., Inc. 243 N.E.3d at 1139). And, here, we have identified and applied the correct preponderance-of-the-evidence standard in our review of the Board's decision. It is, therefore, not reversible error that the trial court applied the older standard.

Conclusion

[29] The Board's finding that DeLong engaged in fraud was not arbitrary or capricious and was supported by a preponderance of the evidence. And even though the trial court appears to have applied the old standard of review, we have applied the correct, preponderance-of-the-evidence standard to our review of the Board's decision, and the trial court's usage of the older standard is, therefore, immaterial. Accordingly, we affirm.

[30] Affirmed.

FOOTNOTES

1.   DeLong has abandoned these constitutional claims on appeal.

2.   An agency's action may also be set aside as an abuse of discretion if it is “against the logic and effect of the facts and circumstances before the court,” or is based on a misinterpretation of the law. Blanchard, 270 N.E.3d at 468. DeLong's claim that the Board abused its discretion is, however, little more than a claim that the evidence does not support the Board's findings. We addressed this sufficiency claim above.

3.   The Board claims that DeLong invited any error by citing the older, “substantial evidence” standard in his briefing to the trial court. See Appellant's App. Vol. II p. 18 (noting DeLong's claim that the Board's decision was not supported by “substantial evidence.”); id. at 44, 46-47 (DeLong's brief in support of his petition for judicial review citing to the “substantial evidence” standard and prior version of Indiana Code Section 4-21.5-5-14). It is well settled that “[A] party may not take advantage of an error that she commits, invites, or which is the natural consequence of her own neglect or misconduct.” Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005). Thus, the Board contends, DeLong cannot now claim on appeal that the trial court erred by applying the old standard he asked the trial court to apply. We need not decide here whether DeLong invited the error because, as discussed below, any error by the trial court regarding the standard of review is immaterial to our review on appeal.

Tavitas, Chief Judge.

Bradford, J., and Felix, J., concur.