IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JERRY L. DARRAH, No. 37444-7-II
Appellant,
v.
WASHINGTON STATE EMPLOYMENT UNPUBLISHED OPINION
SECURITY DEPARTMENT,
Respondent.
Penoyar, A.C.J. -- 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.1
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.
Penoyar, A.C.J.
We concur:
Houghton, J.
Quinn-Brintnall, J.