                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                       January 4, 2017




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II
    DAMEAS DURANZAN,                                              No. 47788-2-II

                              Appellant,                    UNPUBLISHED OPINION

         v.

    STATE OF WASHINGTON, DEPARTMENT
    OF SOCIAL & HEALTH SERVICES,

                              Respondent.

        SUTTON, J. — Dameas Duranzan appeals the superior court’s refusal to consider his

petition for review of the Department of Social and Health Services’ (DSHS) termination of his

interim Aged, Blind, and Disabled (ABD) cash assistance based on his failure to exhaust

administrative remedies.1 We hold that Duranzan does not show that the Board of Appeals erred

when it refused to consider his untimely petition for review. We also hold that Duranzan fails to

show that exhaustion of his administrative remedies would have been futile. Accordingly, we

affirm the superior court’s decision to dismiss Duranzan’s petition for review, and we affirm the

Board’s order affirming the termination of Duranzan’s ABD benefits.



1
 The DSHS also terminated Duranzan’s medical assistance benefits. On appeal, Duranzan does
not raise any issues related to that decision.
No. 47788-2-II


                                             FACTS

                 I. TERMINATION OF ASSISTANCE AND ADMINISTRATIVE APPEAL

       In 2013, Duranzan started receiving ABD cash assistance from the DSHS. When Duranzan

refused to sign a reimbursement agreement that would allow the DSHS to recoup payments if

Duranzan received any retroactive federal Supplemental Security Income (SSI) benefits, the DSHS

terminated his ABD assistance.

       Duranzan requested administrative review. Duranzan asserted that he was unwilling to

sign the reimbursement agreement because he had a previous agreement with his landlord, Rainier

Rentals, that provided that he would reimburse Rainier Rentals for deferred rent and utility

payments out of his retroactive SSI benefits when he was approved for benefits. Duranzan argued

that his obligation to repay “Rainier Rentals [was] the equivalent of an attorney being reimbursed

out [of] the lump sum award from SSI.” Clerk’s Papers (CP) at 6.

       The administrative law judge (ALJ) rejected this argument, noting that attorney

reimbursements were limited to work performed in representing an SSI applicant and that, based

on the record before him, Duranzan’s agreement with Rainier Rentals was merely an unsecured

signature loan. The ALJ concluded that the DSHS was not obligated to make an exception to the

requirement that Duranzan sign the reimbursement agreement because he voluntarily entered into

a financial agreement with his landlord.

       On January 30, 2014, the ALJ mailed the initial order to Duranzan. This order contained

the following statement:




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No. 47788-2-II


       NOTICE TO PARTIES: THIS ORDER BECOMES FINAL ON THE DATE OF
       MAILING UNLESS WITHIN 21 DAYS OF MAILING OF THIS ORDER A
       PETITION FOR REVIEW IS RECEIVED BY THE BOARD OF APPEALS, PO
       BOX 45803, OLYMPIA, WA 98504-5803. A PETITION FORM AND
       INSTRUCTIONS ARE ENCLOSED.

CP at 10. But the petition form and instructions were not included with this order.

       Duranzan contacted the office of administrative hearings about this defect, and the ALJ

issued a corrected initial order on February 6, 2014. The content of the corrected initial order was

unchanged, but this mailing included the petition form and instructions omitted from the original

order. The enclosed form reiterated that any petition for review must be “[r]eceived on or before

21 days from mail date of Initial Decision.” CP at 10. According to the DSHS, when Duranzan

contacted the hearings office about the initial order, he spoke to an ALJ who informed Duranzan

that a corrected order would be issued and “that the appeal period would run from the date that the

corrected order was issued.” CP at 44.

                 II. ATTEMPT TO FILE PETITION FOR REVIEW WITH BOARD OF APPEALS

       On February 26, Duranzan contacted the Board and asked for an extension of time in which

to file a petition for review. On February 27, the Board advised Duranzan that it would not grant

the extension.

       Despite the Board’s denial of his request for an extension of time, Duranzan faxed a petition

for review on March 21. The fax was received 50 days from the mailing of the original initial

order and 43 days from the date of the corrected initial order. The Board refused to accept

Duranzan’s petition because it was untimely, affirmed the ALJ’s initial decision, and ordered that

the ALJ’s initial decision became the final order 21 days after it was mailed on January 30, 2014.




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No. 47788-2-II


       In its decision, the Board stated that Duranzan asserted that the due date for the petition

should have been calculated from the date of the second mailing, February 6, 2014, not the January

30, 2014 mailing. But the Board noted that Duranzan did not explain why he failed to timely file

his petition on February 27, 2014, 21 days after the second mailing, after the Board notified him it

would not grant him an extension of time. Thus, the Board concluded that Duranzan’s petition for

review was not timely even if the due date was calculated from the February 6 mailing. It also

concluded that Duranzan had not established good cause for the delay.

                          III. PETITION FOR REVIEW IN SUPERIOR COURT

       A month after the Board denied Duranzan’s petition for review by the Board, Duranzan

petitioned for review in the superior court. In his brief to the superior court, he asked the superior

court to reverse the ALJ’s decision and asserted that the DSHS could not “compel [him] to commit

a crime,” apparently by requiring him to sign the reimbursement agreement. CP at 24, 30. He

characterized this argument as a constitutional argument or an “individual challenge[] to the rules,”

that was beyond the ALJ’s authority to consider. CP at 24-25, see also CP at 53.

       Duranzan also argued that the Board had erred when it found that he did not have good

cause for filing the late petition for review. He alleged that on February 26, 2014, he had sought

additional time to file his petition for review “because of difficulties seeking legal counsel,” but

he was informed that his petition had been due 21 days after the January 30, 2014 initial order was

mailed. CP at 26. He asserted that had the Board granted his request for additional time, his March

21, 2014 petition for review would have been timely. In addition, he argued that the DSHS had

failed to “provide reasonable access” based on his mental health and physical issues under its own

rules. CP at 27-29.


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No. 47788-2-II


       The DSHS responded that the issue before the superior court was whether the Board erred

in concluding Duranzan’s request for review was untimely and that Duranzan had not established

good cause for the delay.

       When Duranzan failed to appear for oral argument, the DSHS agreed to allow the superior

court to rule without oral argument. The superior court dismissed Duranzan’s petition for review.

It concluded that (1) substantial evidence supported the review decision and final order’s

determination that the petition for review by the Board was untimely and without good cause and

(2) Duranzan failed to exhaust all available administrative remedies, so judicial review was

unavailable under RCW 34.05.534.

       Duranzan moved for a rehearing to allow him to present oral argument. He explained that

he was unable to attend oral argument because he had been ill, could not travel by foot, and had

been deprived of resources he had needed to “barter” for travel assistance. CP at 35. The superior

court denied the motion for a rehearing. Duranzan appeals.

                                           ANALYSIS

       Duranzan argues that the Board erred when it concluded that his petition for review was

untimely and that the superior court erred when it determined that he failed to exhaust his

administrative remedies.2 We hold that (1) the Board did not err when it concluded that his petition




2
  Duranzan also argues that (1) the superior court violated his right to due process by denying his
motion for a new trial and (2) the DSHS had previously made inconsistent decisions with respect
to recoupment of ABD reimbursements, demonstrating that its requirement that he sign the
reimbursement agreement was unreasonable. We do not reach these additional arguments because
our holding that Duranzan failed to exhaust his administrative remedies is dispositive.



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No. 47788-2-II


for review by the Board was untimely3 and (2) the superior court did not err when it determined

that Duranzan failed to exhaust his administrative remedies.

                                     I. STANDARD OF REVIEW

       When reviewing an administrative action, we sit in the same position as the superior court,

applying the standards of the Administrative Procedure Act (APA), chapter 34.05 RCW, directly

to the agency record. Brighton v. Dep’t of Transp., 109 Wn. App. 855, 861-62, 38 P.3d 344 (2001).

The person challenging an agency’s action bears the burden of demonstrating the invalidity of the

decision. Brighton, 109 Wn. App. at 862. We review findings of fact to determine if they are

supported by substantial evidence, and we review conclusions of law de novo to determine if the

reviewing judge correctly applied the law. RCW 34.05.570(3)(d), (e).

                       II. UNTIMELY PETITION FOR REVIEW TO THE BOARD

       Because the superior court relied on the Board’s conclusion that Duranzan’s petition for

review to the Board was untimely, we briefly review whether Duranzan has shown that the Board’s

decision was incorrect. We hold that he has not.

       To obtain an extension of time in which to file for administrative review, the petitioner

must establish good cause. WAC 182-526-0580(3)(b). A good cause finding is a factual finding

that we review for substantial evidence. RCW 34.05.570(3)(e).




3
  Although Duranzan does not argue in his opening brief that the Board’s decision was incorrect
and only mentions this issue briefly in his reply, we have chosen to address this issue because it is
the basis of the superior court’s decision. See RAP 1.2(c) (“The appellate court may waive or alter
the provisions of any of [the rules of appellate procedure] in order to serve the ends of justice,”
subject to exceptions that do not apply here).


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No. 47788-2-II


       The Board found that even if Duranzan’s petition was not due until 21 days from the date

of the ALJ’s second decision, Duranzan failed to establish good cause as to why he did not file his

petition by February 27, 2014, after he knew that the Board had denied his request for additional

time. At best, the record shows that Duranzan had requested additional time to obtain counsel.

But it does not establish why Duranzan waited until the day before the petition was due to request

an extension, nor does it contain any information about Duranzan’s attempts to obtain counsel or

why he needed additional time to find counsel. Thus, based on this record, there is substantial

evidence supporting the Board’s finding that Duranzan failed to establish good cause and,

therefore, the Board did not err in dismissing his petition for review as untimely. We now turn to

whether the superior court properly required that Duranzan exhaust his administrative remedies in

light of the Board’s refusal to consider Duranzan’s petition for review by the Board.

                     III. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

       Duranzan argues that his “constitutional right to substantive due process was violated

because no impartial decision maker has heard testimony and oral argument.” Br. of Appellant at

6-7. He appears to contend that because some of the issues he raised were constitutional issues or

challenges to the DSHS’s rules, the first impartial decision-maker who could have considered them

was the superior court, so exhaustion of his administrative remedies would have been futile. We

disagree.

       A party must generally exhaust all available administrative remedies before the superior

court can grant relief. RCW 34.05.534; Citizens for Mount Vernon v. City of Mount Vernon, 133

Wn.2d 861, 866, 947 P.2d 1208 (1997). Exhaustion requires the petitioner to take advantage of

all remedies within the administrative process before seeking judicial relief. State v. Tacoma-


                                                7
No. 47788-2-II


Pierce County Multiple Listing Serv., 95 Wn.2d 280, 283-84, 622 P.2d 1190 (1980). “The court

will not intervene and administrative remedies need to be exhausted when the ‘relief sought . . .

can be obtained by resort to an exclusive or adequate administrative remedy.’” Citizens for Mount

Vernon, 133 Wn.2d at 866 (alteration in original) (quoting S. Hollywood Hills Citizens Ass’n v.

King County, 101 Wn.2d 68, 73, 677 P.2d 114 (1984)). “The [exhaustion] principle is founded

upon the belief that the judiciary should give proper deference to that body possessing expertise in

areas outside the conventional expertise of judges.” Citizens for Mount Vernon, 133 Wn.2d at 866.

       A court can relieve a petitioner of the requirement to exhaust administrative remedies if

the petitioner shows that “[t]he exhaustion of remedies would be futile.” RCW 34.05.534(3). But

merely raising a constitutional issues or other issues that an ALJ could not have considered does

not necessarily demonstrate that exhaustion is not required.       Instead, if “‘an administrative

proceeding might leave no remnant of the constitutional question, the administrative remedy

plainly should be pursued.’” Evergreen Wash. Healthcare Frontier, LLC v. Dep’t of Soc. & Health

Svcs., 171 Wn. App. 431, 451, 287 P.3d 40 (2012) (quoting Ackerley Commc’ns, Inc. v. City of

Seattle, 92 Wn.2d 905, 909, 602 P.2d 1177 (1979)).

       Here, even presuming that the ALJ could not have considered some of the issues Duranzan

raised, he fails to show that an administrative proceeding could not have resolved this case. For

instance, the ALJ considered and resolved the issues of whether Duranzan was required to sign the

reimbursement agreement and whether his agreement with Rainier Rentals precluded him from

signing the reimbursement agreement. If the ALJ had ruled the other way on these issues, it would

have provided Duranzan with an administrative remedy, regardless of whether he also raised

additional issues the ALJ could not have addressed. Thus, Duranzan does not show that the


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No. 47788-2-II


superior court erred when it found he had failed to exhaust his administrative remedies and

dismissed his petition for review.

        We hold that Duranzan does not show that the Board erred when it refused to consider his

untimely petition for review by the Board or that the superior court erred when it refused to

consider his petition for review because he failed to exhaust his administrative remedies.

Accordingly, we affirm the superior court’s decision to dismiss Duranzan’s petition for review,

and we affirm the Board’s order affirming the termination of Duranzan’s ABD benefits.

        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 in accordance with RCW 2.06.040,

it is so ordered.



                                                    SUTTON, J.
 We concur:



 WORSWICK, P.J.




 LEE, J.




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