Opinion
No. 61592-1-I.
December 1, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-2-21683-9, Monica Benton, J., entered March 28, 2008.
Affirmed by unpublished per curiam opinion.
Scott A. Anderson challenges the Washington Employment Security Department's order dismissing his untimely appeal of the Department's decision to deny him unemployment benefits. He argues that (1) substantial evidence does not support that the Department mailed the order on April 4, 2007, and (2) the Department erred when it concluded that Anderson failed to show good cause for filing an untimely appeal. Finding no error, we affirm.
Background
On February 26, 2005, the Department mailed Anderson a determination notice and overpayment letter for fraudulently obtaining unemployment benefits. Anderson filed an appeal, which the Office of Administrative Hearings (OAH) heard on March 6 and March 27, 2007. On April 4, 2007, the administrative law judge (ALJ) affirmed the Department's decision. Following the conclusions of law, the ALJ signed a certificate of service, in which he stated: "I certify that I mailed a copy of this order to the within-named interested parties at their respective addresses postage prepaid on the date stated herein." The order was dated April 4, 2007, and listed Anderson's address in the last section. The order further explained that the decision was final unless a written petition for review was mailed to the Agency Records Office and "postmarked on or before May 4, 2007." The OAH claims that it mailed the order to Anderson on April 4, 2007.
However, Anderson alleges he did not receive notification of the order until April 30, 2007, when he telephoned the OAH to ask about the decision regarding his appeal. On that day, Anderson requested a copy of the decision, which he received on May 2, 2007. On May 30, 2007, Anderson filed a written petition for review. As this exceeded the 30-day time limit set forth in RCW 50.32.070, the Department dismissed Anderson's petition as untimely. Anderson appealed to the superior court, which affirmed the Department's order.
Standard of Review
"Judicial review of a final administrative decision of the Commissioner of the Employment Security Department is governed by the Washington Administrative Procedure Act (WAPA)." Under WAPA, a reviewing court may reverse an administrative decision when "(1) the administrative decision is based on an error of law; (2) the decision is not based on substantial evidence; or (3) the decision is arbitrary or capricious."
Tapper v. Employment Sec. Dep't, 122 Wn.2d 39, 402, 858 P.2d 494 (1993).
Tapper, 122 Wn.2d at 402.
"In reviewing administrative action, this court sits in the same position as the superior court, applying the standards of the WAPA directly to the record before the agency." "[T]he error of law standard allows the reviewing court to essentially substitute its judgment for that of the administrative body, though substantial weight is accorded the agency's view of the law." "Evidence is substantial if it is sufficient to persuade a fair-minded person of the truth of the fact a party seeks to prove." Whether good cause exists to excuse an untimely appeal is a mixed question of law and fact, so after establishing the facts of the delay, this court applies the error of law standard.
Tapper, 122 Wn.2d at 402.
Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317, 325, 646 P.2d 113 (1982).
Scheeler v. Employment Sec. Dep't, 122 Wn. App. 484, 488, 93 P.3d 965 (2004) (citing Heinmiller v. Dep't of Health, 127 Wn.2d 595, 607, 903 P.2d 433 (1995)).
Rasmussen v. Dep't of Employment Sec., 98 Wn.2d 846, 850 , 658 P.2d 1240, (1983).
Discussion
1. Proof of Mailing
RCW 50.32.070, which establishes the time limit for filing a petition for review by the Commissioner of the Employment Security Department, provides:
Within thirty days from the date of notification or mailing, whichever is the earlier, of any decision of an appeal tribunal, the commissioner on his or her own order may, or upon petition of any interested party shall, take jurisdiction of the proceedings for the purpose of review thereof. Appeal from any decision of an appeal tribunal may be perfected so as to prevent finality of such decision if, within thirty days from the date of mailing the appeal tribunal decision, or notification thereof, whichever is the earlier, a petition in writing for review by the commissioner is received by the commissioner or by such representative of the commissioner as the commissioner by regulation shall prescribe.
Under this statute, the Department asserts that Anderson's petition is untimely because it was filed 26 days after the 30-day deadline. Relying on Scheeler v. Employment Security Department, Anderson argues that substantial evidence does not establish that the ALJ's order was mailed on April 4, 2007. As a result, he disputes that the appeal period ended on May 4, 2007.
122 Wn. App. 484, 93 P.3d 965 (2004).
In Scheeler, this court held that the claimant's petition was timely because the evidence failed to establish proof of mailing during the appeal period. In that case, the Department determined that the claimant was ineligible to receive unemployment benefits and sent a final determination notice stating he could appeal the decision by mailing or faxing a written notice of appeal that had to "be received or postmarked by 01/07/2002." The notice stated that "[a] copy of this determination notice was mailed to the interested parties at their address [sic] on 12/07/2001" and listed the claimant's address at the top of the notice.
Scheeler, 122 Wn. App. at 486.
Scheeler, 122 Wn. App. at 487.
Scheeler, 122 Wn. App. at 489.
When the claimant mailed a written notice of appeal on February 22, 2002, the OAH conducted a hearing to determine whether the claimant had good cause for filing an untimely appeal. The ALJ concluded that the claimant had failed to (1) overcome the presumption that he had received the notice and (2) show good cause for filing an untimely appeal. On appeal, the Department denied the claimant's petition for review, and the superior court affirmed the denial. This court reversed, holding that the ALJ erred as a matter law by concluding that the claimant had not overcome the presumption that he received the notice because "there was no proof of mailing from which the presumption arises." The court further held that while the language in the notice, by itself, was insufficient to establish proof of mailing, "[a]n affidavit of mailing, commonly used in litigation, would suffice and would not require any additional evidence."
Scheeler, 122 Wn. App. at 487 Although the claimant testified that he did not receive notice that benefits were denied until mid-February, the ALJ dismissed his testimony as "non-credible." Scheeler, 122 Wn. App. at 49.0
Scheeler, 122 Wn. App. at 487.
Scheeler, 122 Wn. App. at 487.
Scheeler, 122 Wn. App. at 490.
Scheeler, 122 Wn. App. at 490 n. 14. The court stated that "a time/date stamp, signature, or other internal indication that the notice was mailed" was also insufficient and "must be accompanied by evidence that it is part of an `office custom.'" Scheeler, 122 Wn. App. at 490 n. 14.
Anderson's reliance on Scheeler is misplaced because the evidence in that case was only language in the determination notice stating that it was mailed on a particular date. Here, the order contains a certificate of service signed by the ALJ, which states: "I certify that I mailed a copy of this order to the within-named interested parties at their respective addresses postage prepaid on the date stated herein." As the order is dated April 4, 2007, and lists Anderson's address in the last section, the certificate of service constitutes sufficient proof that the order was mailed on that date. Although the Department did not directly address the proof of mailing issue, substantial evidence supports the Department's finding that the order was mailed on April 4, 2007, and, thus, the appeal period ended on May 4, 2007. Because Anderson filed a written notice of appeal on May 30, 2007, his petition is untimely under RCW 50.32.070.
The certificate of service here is sufficient when viewed in other contexts. For example, "[s]ervice by mail [of papers after the action has been commenced] is verified by filing . . . an affidavit (or declaration) of service by the person who mailed the documents." 15 Karl B. Tegland, Washington Practice: Civil Procedure § 50.6, at 370 (2003).
The commissioner states: "Although the claimant did not receive his copy of the decision of the Office of Administrative Hearings in due course of the mail, it remains that he received it prior to the deadline date for timely filing a petition for review."
2. Good Cause
Anderson next argues that the Department erred when it concluded that Anderson did not show good cause for filing an untimely appeal.
In deciding whether good cause exists to excuse an untimely appeal, our courts consider (1) the length of the delay, (2) the prejudice to both parties, and (3) the excusability of the error. For example, our Supreme Court in the consolidated case of Rasmussen v. Department of Employment Security applied these three factors to conclude that the claimants failed to show good cause for their untimely appeals. In that case, claimant Rasmussen received a notice stating that her benefits had been denied and that the decision was final "unless an appeal is filed in writing within ten days." Rasmussen filed her notice of appeal three days after the time limit had run. She argued that the delay was excusable because (1) she thought she had 10 working days from the date of the notice and (2) she wanted to talk with other people who had been denied benefits.
Rasmussen, 98 Wn.2d at 850.
98 Wn.2d 846, 658 P.2d 1240 (1983).
Rasmussen, 98 Wn.2d at 851-52.
Rasmussen, 98 Wn.2d at 848.
Rasmussen, 98 Wn.2d at 848.
Rasmussen, 98 Wn.2d at 848.
Claimant Bauer was also sent a determination notice, which informed him of his ineligibility for benefits and the 10-day appeal period. Receiving the notice only three days before the deadline, Bauer filed his claim eight days after the deadline. Bauer argued that the delay was excusable because (1) he believed he had 10 working days to appeal and (2) he was investigating his right to appeal. Both appeals by Rasmussen and Bauer were dismissed as untimely.
Rasmussen, 98 Wn.2d at 848.
Rasmussen, 98 Wn.2d at 848-49.
Rasmussen, 98 Wn.2d at 849.
Rasmussen, 98 Wn.2d at 848-49.
Our Supreme Court affirmed. The court observed that the first two factors in the good cause analysis, the length of the delay and prejudice to the parties, were not at issue since the Department conceded that the delays were short and no parties were prejudiced by the delays. The third factor, the excusability of the error, was therefore dispositive. In rejecting the claimants' argument that they honestly believed that the 10 days referred to working days, the court reasoned that "[n]othing contained in the . . . notice suggests the 10 days refers to working days. Absent an allegation that they were misled by Department personnel, we are unable to find their good faith belief sufficient to establish good cause." The court also dismissed the claimants' argument that they needed more time to prepare their appeals as insufficient.
Rasmussen, 98 Wn.2d at 850.
Rasmussen, 98 Wn.2d at 849.
Rasmussen, 98 Wn.2d at 851-52.
Rasmussen, 98 Wn.2d at 852.
Here, as in Rasmussen, the excusability of the error is dispositive. Anderson asserts that he filed his appeal late because (1) he mistakenly thought that he had 30 days from the day he telephoned the Department regarding his appeal and (2) he did not have enough time to adequately prepare an appeal before the May 4, 2007, deadline due to the volume of the record. As in Rasmussen, Anderson's mistaken belief is insufficient because the Department clearly stated the time limit of the appeal period in the order; nothing in the order misled Anderson into believing that the deadline had been pushed back to May 30, 2007. Similarly, Anderson's argument that he did not have adequate time to prepare his appeal due to the volume of the record is insufficient under Rasmussen. Accordingly, we hold that the Department did not err in finding that Anderson failed to show good cause for his untimely appeal.
Under the first factor in the good cause analysis, the length of the delay, we note that the delay in this case, 26 days, is longer than the three-day and eight-day delays in Rasmussen. As a longer delay requires a more compelling reason than a shorter one, and Anderson only offers reasons similar to the ones offered by the Rasmussen claimants, the length of the delay here supports our finding that Anderson fails to show good cause. See Wells v. Employment Sec. Dep't, 61 Wn. App. 306, 314, 809 P.2d 1386 (1991).
Anderson argues that the proper deadline for the appeal is May 30, 2007, because he received notice when he called the Department on April 30, 2007.
Affirmed.