          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


DAVID HALL,                              )      No. 76402-1-1
                                         )                                                     c-)
                    Appellant,           )                                                         --
                                         )      DIVISION ONE                        co       __J....,
                    V.                   )

STATE OF WASHINGTON                      )
DEPARTMENT OF EMPLOYMENT                 )
SECURITY,                                )                                              co
                                                                                        ••
                                         )      PUBLISHED OPINION                     0        9.
                                                                                      C."1
                                         )
                    Respondent.          )      FILED: August 6, 2018
                                         )

       MANN, A.C.J. —The Employment Security Department(Department) denied

David Hall unemployment benefits after finding Hall voluntarily quit his job without good

cause. On appeal to the superior court, Hall did not dispute this conclusion, and instead

raised new legal issues that he had not argued during the adjudicative process. The

superior court affirmed the Department's decision, but remanded for fact-finding on the

newly raised issues. The superior court denied Hall's request for attorney fees. Hall

appeals the ruling denying attorney fees. We affirm.
No. 76402-1-1/2


                                          FACTS

       Hall worked as a salesperson for C&R Boger Construction for three months

before he voluntarily quit. After quitting, Hall applied for unemployment benefits. The

Department denied Hall's application for benefits after determining Hall did not have

good cause to quit his job under RCW 50.20.050(2)(a). Hall appealed and an

administrative law judge(AU)affirmed. Hall appealed the AU decision to the

Department's commissioner. The commissioner affirmed, concluding Hall was ineligible

for benefits because he did not have statutory good cause to quit his job. Hall filed a

petition for review before the King County Superior Court under RCW 50.32.120 and

RCW 34.05.570.

       On appeal, Hall did not challenge the commissioner's conclusion that he quit his

job without good cause. Hall instead raised two new legal issues that he had not

argued at the administrative level:(1) that Hall's job at his former employer is not

covered employment under RCW 50.04.235 because Hall worked as an "outside

salesperson," and (2) that Hall's job as a commissioned salesperson was not "suitable"

work under RCW 50.20.100 and 50.20.110. The Department objected to the

introduction of the two new issues, arguing they were barred under RCW 34.05.554(1).

The Department also argued the newly raised issues would not have changed the

Department's decision.

       The superior court affirmed the commissioner's findings and conclusions.

However, the superior court remanded the matter to the Department to consider the two




                                          -2-
No. 76402-1-1/3


new issues raised by Hall pursuant to RCW 34.05.554(1)(a),(b), and (d).1 After filing an

unsuccessful motion for reconsideration, the Department did not appea1.2

        Hall then requested attorney fees under the Employment Security Act, RCW

50.32.160. The superior court denied the request, reserving the issue of fees until after

remand, but only if further judicial review is taken. Hall moved for reconsideration,

arguing, in the alternative, that he was entitled to fees under the equal access to justice

act, RCW 4.84.350. The superior court denied Hall's motion for reconsideration. Hall

appeals the superior court's order declining to award attorney fees and costs.

                                                ANALYSIS

        Hall argues he is owed attorney fees and costs under RCW 50.32.160, or

alternatively, RCW 4.84.350. Whether a statute authorizes attorney fees is a question

of law that we review de novo. Albertson's, Inc. v. Emp't Sec. Dep't, 102 Wn. App. 29,

45, 15 P.3d 153(2000).

                                            RCW 50.32.160

        We first address whether Hall was entitled to his attorney fees and costs under

RCW 50.32.160. RCW 50.32.160 provides for an award of attorney fees and costs on


    1 RCW 34.05.554 provides:
    (1) Issues not raised before the agency may not be raised on appeal, except to the extent that:
    (a) The person did not know and was under no duty to discover or could not have reasonably
discovered facts giving rise to the issue;
    (b) The agency action subject to judicial review is a rule and the person has not been a party in
adjudicative proceedings that provided an adequate opportunity to raise the issue;
    (c) The agency action subject to judicial review is an order and the person was not notified of the
adjudicative proceeding in substantial compliance with this chapter; or
    (d) The interests of justice would be served by resolution of an issue arising from:
    (i) A change in controlling law occurring after the agency action; or
    (ii) Agency action occurring after the person exhausted the last feasible opportunity for seeking relief
from the agency.
    2 Because the department did not appeal this decision, we do not address whether the trial court
properly remanded for reconsideration of the new issues under RCW 34.05.554.

                                                  -3-
No. 76402-1-1/4


appeal of a Department decision "if the decision of the commissioner shall be reversed

or modified." Hall argues that by remanding his case back to the Department for

consideration of the new issues, the superior court effectively "modified" the

commissioner's ruling. We disagree.

       Judicial review of a decision of the commissioner is controlled by the procedural

requirements of the Administrative Procedure Act(APA), chapter 34.05 RCW. RCW

50.32.120. RCW 34.05.554 precludes an appellant from raising issues before the

superior court that they failed to raise before the agency, except under limited

circumstances. If the superior court determines the appellant has shown sufficient

reason for the new issue to be raised, the trial court "shall remand to the agency for

determination" of that issue. RCW 34.05.554. Neither party disputes the superior

court's decision to allow the new issues to be pled and to remand to the Department for

fact-finding and consideration of the new issues pursuant to RCW 34.05.554. Thus, the

sole issue in this case is whether remand for fact-finding to consider the newly raised

issues is a "reversal or modification" of the commissioner's ruling under RCW

50.32.160. We conclude that it is not.

       A similar issue was considered in Hamel v. Emp't Sec. Dep't of State of Wash.,

93 Wn. App. 140, 148, 966 P.2d 1282(1998). In Hamel, the superior court remanded

the commissioner's decision for additional factual findings. The appeal returned to the

superior court after remand and the court affirmed the commissioner's decision. Hamel

requested attorney fees and costs. Division Two of this court held that Hamel was not

entitled to fees because "the superior court did not reverse or modify the decision of the



                                         -4-
No. 76402-1-1/5


Commissioner when it remanded the decision for additional factual findings." Hamel, 93

Wn. App. at 148.

       Hall seeks to distinguish this case from Hamel, citing to Terry v. Emp't Sec.

Dep't, 82 Wn. App. 745, 753, 919 P.2d 111 (1996). But, contrary to Hall's assertion,

Terry does not stand for the proposition that a superior court's remand for additional

factual findings is equivalent to a reversal or modification. In Terry, this court remanded

for a new hearing because it held the commissioner made an error of law by concluding

the decision to retire was automatically a personal decision, without considering

"whether Terry quit for sufficient work-related factors required under WAC 192-16-009."

Terry, 82 Wn. App. at 750. The court specifically held that the commissioner erred and

reversed that decision. Unlike in Terry, the superior court in this case did not hold the

commissioner erred, but affirmed the commissioner's ruling. See Hamel, 93 Wn. App.

at 148.

       Hall also argues this case is analogous to Terry because the trial court remanded

for the Department to consider issues it erroneously failed to address during the original

hearing. Hall concedes that he did not raise these issues at the original hearing, but still

argues the burden was on the Department to consider these claims on Hall's behalf.

Hall's assertion is entirely without merit. The law unambiguously states "[t]he burden is

upon the claimant to establish his rights to the benefits under the act, and this burden of

proof never shifts during the course of the trial." Townsend v. Emp't Sec. Dep't, 54

Wn.2d 532, 534, 341 P.2d 877(1959). This is even true for a pro se litigant. In re

Decertification of Martin, 154 Wn. App. 252, 265, 223 P.3d 1221 (2009)("A pro se

litigant is held to the same rules of procedural and substantive law as an attorney.").

                                          -5-
No. 76402-1-1/6


Because Hall did not raise these issues before the commissioner, the commissioner did

not err in not considering them.

       Finally, Hall cites Albertson's to support his argument. However, Albertson's is

again readily distinguishable. In Albertson's, the commissioner concluded that the

employee was not available for work but had not committed misconduct. The employer

appealed the commissioner's decision that the employee had not committed misconduct

and the employee cross-appealed the conclusion that she was available for work. The

superior court reversed both of the commissioner's rulings in favor of the employee.

Albertson's, 102 Wn. App. at 45. Because the employee was successful in her appeal

and successfully defended against the employer's appeal, this court confirmed an

award of attorney fees. Albertson's, 102 Wn. App. at 45-47.

       Here, unlike Albertson's, and like Hamel, the superior court did not modify or

reverse the commissioner's ruling. In remanding for additional fact-finding, the superior

court did not hold that the commissioner erred in reaching its conclusion, or determine

whether Hall had been erroneously denied unemployment compensation. Any

modification of the commissioner's ruling will only occur after the Department performs

the necessary fact-finding, and then only if the Department reaches a determination in

favor of Hall on the new issues. "Where a party has succeeded on appeal but has not

yet prevailed on the merits, an award of attorney fees should abide the ultimate

resolution of the issues in the case." Taylor v. Bell, 185 Wn. App. 270, 296, 340 P.3d

951 (2014)(citing Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 153, 94 P.3d 930 (2004)).

      We conclude that where the superior court remands for consideration of

additional issues pursuant to RCW 34.05.554, and does not reverse the commissioner's

                                         -6-
No. 76402-1-1/7


decision on the merits, the trial court did not modify or reverse the commissioner's

ruling, and attorney fees are not available under RCW 50.32.160.

                                      RCW 4.84.350

       Hall argues in the alternative that attorney fees are available under the equal

access to justice act. We disagree.

       RCW 4.84.350 provides for an award of attorney fees for those successfully

challenging agency actions where the party both prevails and the agency action was not

substantially justified. RCW 4.84.350 is only available, however, if attorney fees and

costs are not "otherwise specifically provided by statute." RCW 4.84.350.

       RCW 4.84.350 does not apply to claims under the Employment Security Act

because the Act has its own attorney fees statute at RCW 50.32.160. See Markam

Group, Inc. v. Emp't Sec. Dep't, 148 Wn. App. 555, 564-65, 200 P.3d 748(2009)

(holding the language "[e]xcept as otherwise specifically provided by statute," within

RCW 4.84.350 excludes Employment Securities Act claims that fall within RCW

50.32.160).

       Hall cites to Language Connection v. Emp't Sec. Dep't, 149 Wn. App. 575, 587,

205 P.3d 924 (2009), to argue that anytime attorney fees are unavailable under RCW

50.32.160, the court can then award fees under RCW 4.54.350. We disagree. In

Language Connection, we affirmed that RCW 50.32.160 exclusively applies to all

claimants who seek to recover fees "on an appeal involving the individual's application

for initial determination, claim for waiting period credit, or claim for benefits." Language

Connection, 149 Wn. App. at 587. However, the issue on appeal in Language

Connection was an employer appealing an assessment of contributions. Therefore,

                                           -7-
No. 76402-1-1/8


fees were available under RCW 4.54.350 because RCW 50.32.160 does not apply to

claims brought by an employer. In this case, Hall is appealing a "claim for benefits"

under the Employment Security Act, a claim that clearly falls under RCW 50.32.160.

Therefore, Lanquade Connection is inapposite to this case.

                                     Fees on Appeal

       RAP 18.1 provides that "[i]f applicable law grants to a party the right to recover

reasonable attorney fees or expenses on review before either the Court of Appeals or

Supreme Court, the party must request the fees or expenses. . . in its opening brief."

RAP 18.1(a)-(b). As RCW 50.32.160 does not entitle Hall to fees, he is similarly not

entitled to fees pursuant to RAP 18.1.

       We affirm.




                                                    11/00sst     4cA,"


WE CONCUR:




                                          -8-
