Opinion
No. 37444-7-II.
April 14, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-2-01654-3, Gary Tabor, J., entered February 15, 2008.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Houghton and Quinn-Brintnall, JJ .
UNPUBLISHED OPINION
Jerry Darrah appeals from a superior court order affirming an Employment Security Department Commissioner's delegate's order denying a petition for review of an adverse unemployment compensation decision. We affirm.
Facts
On February 6, 2007, the Washington State Employment Security Department (ESD) informed Zetec, Inc. that Darrah had applied for unemployment benefits. It indicated that Darrah expected Zetec to recall him to work and that he asked the ESD to consider him on standby status.
Zetec responded that it had terminated Darrah on January 24, 2007, while he was on standby status. Zetec explained:
He was on standby originally from 12/17/06 to 02/03/07. We called him on 01/05/07, and asked if he was interested in the job starting on 01/22/07. He said that he was excited about it. He ended up being a no-show. We had called an[d] left him messages that it was confirmed that he would be starting on 1/21/07. He confirmed with us on 01/11/07, that he got the word that the job would start on 01/21/07. The travel agent contacted him confirming the travel arrangements and accommodations. We even e-mailed him the confirmation of the start of the job.
On 1/22/07 we got word that he was a no-show. We attempted to call and leave messages to see if he was OK. We sent him several e-mails the same day
asking him to contact us and let us know how he was. We followed up on 1/23 with more voice mails and e-mails.
Finally he called the dispatcher and let him know that it had slipped his mind. He also said that he had changed his phone number a week before and we were using the wrong phone number. In our handbook they are instructed that they have to let us know immediately when there is a contact change. He failed to let us know.
We e-mailed him on 1/24/07 that he was discharged for being a no-show at the job site, especially after all the confirmations and travel arrangement confirmations.
Administrative Record (AR) at 16.
The ESD sent Darrah a discharge questionnaire. In it, Darrah confirmed that Zetec discharged him for missing a job start date. On March 20, 2007, the ESD issued a determination notice, finding that Zetec discharged Darrah for misconduct, that he had not given the correct reason for his discharge, and that he would have to refund the benefits paid to him. The determination notice informed Darrah that he could appeal the decision to the Office of Administrative Hearings (OAH) and that his appeal needed to be received or postmarked by April 19, 2007. The determination notice then explained that if he missed the deadline, he should explain why it was late and that the Administrative Law Judge (ALJ) would decide if he had good cause for a late appeal.
The OAH received Darrah's notice of appeal on April 2, 2007. On April 24, 2007, the OAH sent notice that a telephonic hearing would take place on Friday, May 4, 2007, and informed Darrah that he needed to call 10 minutes before the scheduled hearing time.
On May 4, 2007, the ALJ for the OAH entered a default order, finding that Darrah failed to appear and failed to make a timely request for postponement. The ALJ found that all parties were "afforded a reasonable opportunity for a fair hearing and has found no apparent material error in the Determination." AR at 19. It then affirmed the ESD's determination notice. The ALJ's order further informed Darrah that he had a right to petition for review, told him where to file the petition, and that he had to have it postmarked on or before June 4, 2007. It also informed Darrah, "Do not mail your Petition to any location other than the Agency Records Center." AR at 20. The order set out the Agency Records Center address in bold inset text.
On June 29, 2007, the Agency Records Center received Darrah's petition, bearing a June 1, 2007 date. Darrah's petition explained that he did not receive the OAH hearing notice until May 7, 2007, because his former landlord was withholding his mail and that he was requesting a formal hearing. Attached to his petition was a copy of his petition that he had mistakenly mailed to the OAH instead of the Agency Records Center. That copy indicates that the OAH received it on June 5, 2007.
On July 20, 2007, an ESD Commissioner's delegate issued an order dismissing the petition for review. The order explained:
The claimant's petition for review rights and the deadline date of June 4, 2007, for filing a timely petition for review were clearly set forth on the face of the default order of the Office of Administrative Hearings. However, the claimant did not file his petition for review until June 27, 2007, which was 23 days late. Although the claimant dated his petition for review June 1, 2007, it was not timely mailed as evidenced by the June 27, 2007 postmark date on the envelope in which it was mailed. The postmark date is deemed the filing date of the petition for review. RCW 50.32.025. No reason for this delay is alleged in the petition for review.
Under the circumstances, we have no basis for finding that the delay of 23 days in the filing of the petition for review is based on an excusable reason. Consequently, the petition for review must be dismissed as late filed without good cause pursuant to RCW 50.32.075.
AR at 28. This dismissal order informed Darrah that he had ten days to file a motion for reconsideration or thirty days to file an appeal in the superior court.
At this point, Darrah hired counsel to represent him. Darrah's counsel mailed a timely petition for reconsideration to the Commissioner's Review Office as instructed, but it was returned to him as the envelope did not contain the fifth line of the address, that being the City of Olympia. Counsel re-sent the letter and the Commissioner's Review Office received it on August 9, 2007. The Review Judge dismissed the petition for reconsideration as untimely as it was not filed within 10 days of mailing of the July 20, 2007 Commissioner's delegate's decision.
Darrah then filed a timely petition for judicial appeal in the Thurston County Superior Court on August 16, 2007. The superior court denied the appeal, affirming the Commissioner's delegate's decision on the basis that nothing before the delegate showed good cause for Darrah filing his petition for review 23 days late. The superior court also denied a timely motion for reconsideration under LCR 59(a)(3), finding that Darrah raised no new issues of law or fact that were not adequately considered in the original decision.
Darrah presents two issues for our consideration: (1) Did the ESD Commissioner's delegate err in dismissing Darrah's petition for review as untimely filed? (2) Did the ESD Commissioner's delegate err in dismissing Darrah's petition for reconsideration as untimely filed?
ANALYSIS
I. Standard of Review
We review the Commissioner's delegate's findings under chapter 34.05 RCW, the Administrative Procedure Act. We do not review the underlying ALJ order. Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 405-06, 858 P.2d 494 (1993); Rasmussen v. Employment Sec. Dep't, 98 Wn.2d 846, 849, 658 P.2d 1240 (1983).
We presume the Commissioner's delegate's decision is prima facie correct and the petitioner has the burden of proving otherwise. Safeco Ins. Cos. v. Meyering, 102 Wn.2d 385, 391, 687 P.2d 195 (1984). Although we give deference to the agency's interpretation of its own regulations, we have the ultimate responsibility to see that the rules are applied consistently with the policy underlying the statute. Safeco Ins. Co., 102 Wn.2d at 392.
We review the Commissioner's delegate's factual findings under the "substantial evidence" standard as described in RCW 34.05.570(3)(e). We grant relief from an agency order only where we determine that:
The order is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this chapter.
RCW 34.05.570(3)(e). "'Substantial evidence' is evidence sufficient to persuade a fair-minded, rational person of the truth of the declared premises." Price v. Kitsap Transit, 125 Wn.2d 456, 464, 886 P.2d 556 (1994) (citing World Wide Video, Inc. v. City of Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991), cert. denied, 503 U.S. 986 (1992).
II. Good Cause
Under RCW 50.32.075, the ESD Commissioner may waive the 30-day time limitation for filing a petition for review if the petitioner can establish good cause for the delay. See also RCW 50.32.070 (petition for review must be filed "within thirty days from the date of mailing the appeal tribunal decision, or notification thereof, whichever is the earlier").
Whether good cause exists is a mixed question of law and fact that we review under the error of law standard. Rasmussen, 98 Wn.2d at 849-50; Devine v. Employment Sec. Dep't, 26 Wn. App. 778, 781, 614 P.2d 231 (1980). Once the facts are established, our review is de novo. Hanratty v. Employment Sec. Dep't, 85 Wn. App. 503, 505, 933 P.2d 428 (1997) (citing Rasmussen, 98 Wn.2d at 850). Although we have "inherent and statutory authority to make a de novo review of the record independent of the agency's actions," we do not review witness credibility and we deem the decision prima facie correct. RCW 50.32.150; Rasmussen, 98 Wn.2d at 850 (quoting Devine, 26 Wn. App. at 781). Our review is limited to the administrative record and, as the party challenging the validity of the agency action, Darrah bears the burden of establishing error. RCW 34.05.570(1)(a); RCW 50.32.120; RCW 50.32.150; Devine, 26 Wn. App. at 781. We review only the Commissioner's delegate's decision, not the administrative law judge's decision or the superior court's ruling. Markum Group Inc. v. Employment Sec. Dep't, ___ Wn. App. ___, 200 P.3d 748, 750 (2009) (citing Verizon Nw., Inc. v. Employment Sec. Dep't, 164 Wn.2d 909, 915, 194 P.3d 255 (2008)).
We consider three factors in assessing good cause: (1) the length of the delay; (2) the absence of prejudice to the parties; and (3) the excusability of the delay. WAC 192-04-090(1); see also Rasmussen, 98 Wn.2d at 850; Devine, 26 Wn. App. at 781-82. Here, the Commissioner's delegate found that Darrah had filed his petition for review 23 days late and that he had failed to assert any reason for the delay. He did not address whether any party suffered prejudice due to the delay.
In his petition for review, Darrah gave eleven reasons why he disagreed with the employer's decision to discharge him. But he gave no reason why he filed his petition 23 days late.
Without this information, the Commissioner's delegate could not determine whether Darrah had good cause for filing his petition late and as Darrah had the burden of showing good cause, the Commissioner's delegate dismissed the petition. See Graves v. Employment Sec. Dep't, 144 Wn. App. 302, 310, 182 P.3d 1004 (2008) (writing wrong hearing date on calendar not good cause for setting aside a default order).
Darrah argues here and in the superior court that he mailed his petition to the wrong address and, immediately upon its return, re-sent it to the correct address. He did not give this information to the Commissioner's delegate and as such there is no evidence in the administrative record from which the Commissioner's delegate could find good cause for the late filing.
We are bound to review the decision solely on the record that was before the Commissioner's delegate, not on the basis of assertions Darrah presents for the first time on appeal to either the superior court or this court. See RAP 2.5(a); Devine, 26 Wn. App. at 781.
Because Darrah was the petitioner, it was his burden to establish that the delay was excusable and he failed to do so. As Darrah failed to establish any reason for the delay, the issue of potential prejudice was irrelevant and the Commissioner's delegate properly dismissed the petition.
The ESD argues that it would be prejudiced because "[a]llowing claimants to make hindsight arguments to justify a late filing would create serious difficulties for the Department to administer its appeal docket, eliminating for all practical purposes the thirty day time limited adopted by the legislature in RCW 50.32.0070." Resp't's Br. at 25. The ESD also notes that such a result would be contrary to strong public policy in favor of the finality of judgments.
Darrah argues that the record contains his reasons for the late filing because he included them with his petition for reconsideration. The Commissioner's delegate entered the order dismissing Darrah's petition for review on July 20, 2007. The petition for reconsideration was thus due within ten days of that order. Yet the petition for reconsideration was postmarked August 8, 2007. Because it was late, the Commissioner's delegate refused to consider it. Furthermore, a decision denying a petition for reconsideration is not subject to appellate review. RCW 34.05.470(5). The agency record supports the Commissioner's delegate's decision and the record fails to demonstrate that Darrah had good cause for filing his late petition for review.
WAC 192-04-190 provides that the Commissioner's delegate may only grant a motion for reconsideration if "(a) there is obvious material, clerical error in the decision or (b) the petitioner, through no fault of his or her own, has been denied a reasonable opportunity to present argument or respond to argument." The Department argues that even if the Commissioner's delegate erred in refusing to consider the motion for reconsideration, Darrah failed to show either circumstance that permitted granting such a petition. To the extent the Commissioner's delegate believed that he lacked jurisdiction to consider the motion, he was incorrect. RCW 50.32.070 (petition for review gives commissioner jurisdiction of proceedings for review purposes). Nonetheless, the Department is correct that even if the Commissioner's delegate had considered the late-filed petition, he would have denied it.
Darrah cites the preamble to Employment Security Act, RCW 50.01.010, which states that "this title shall be liberally construed for the purpose of reducing involuntary unemployment and the suffering caused thereby to the minimum." This does not mean, however, that we can ignore specific requirements that the legislature has written into the act for one to obtain review of an adverse decision. See B J Roofing, Inc. v. Industrial Ins. Appeals Bd., 66 Wn. App. 871, 832 P.2d 1386 (1992) (court lacks authority to enlarge statutory filing period).
III. Attorney Fees
Because he does not prevail in this appeal, Darrah is not entitled to attorney fees under RCW 50.32.160. See RAP 14.2.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and QUINN-BRINTNALL, J., concur.