                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                         September 12, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 ZACKARY COURTOIS,                                                 No. 49280-6-II

                               Appellant,                   UNPUBLISHED OPINION

        v.

 DEPARTMENT OF SOCIAL & HEALTH,
 SERVICES,

                               Respondent.

       BJORGEN, C.J. — This appeal involves the narrow issue of whether the superior court

abused its discretion by declining to award attorney fees to Zackary Courtois under the Equal

Access to Justice Act (EAJA), 5 U.S.C. 504.

       From a young age, Courtois, due to his disabilities, received benefits from the

Developmental Disabilities Administration (DDA), which is a part of the Department of Social

and Health Services (Department). Upon reaching the age of 18, the Department determined that

Courtois was no longer eligible for DDA benefits. Courtois appealed that decision to an

administrative law judge (ALJ) and, subsequently, to the Department’s Board of Appeals

(Board). Both affirmed the Department’s action.
No. 49280-6-II


       On appeal to superior court, the Department’s denial of benefits was reversed on two

bases: first, that the Department had committed an error of law in interpreting and applying the

dual diagnoses regulations, WAC 388-823-0720, -0740, and second, that substantial evidence

did not support its finding that Courtois’ adaptive skills test was not administered and evaluated

by a qualified professional. Courtois then moved the superior court for an award of attorney fees

under the EAJA. The superior court declined to award attorney fees because it determined that

the Department’s actions were substantially justified.

       Courtois appeals the order denying EAJA attorney fees. He contends that the superior

court abused its discretion because its prior determinations that the Department committed an

error of law and that one of its findings was not supported by substantial evidence compelled the

conclusion that the Department’s position was not substantially justified.

       We hold that the superior court did not abuse its discretion in denying attorney fees under

the EAJA. Accordingly, we affirm.

                                              FACTS

       In 2002 Courtois began receiving services from DDA. In November 2014 DDA

determined that Courtois no longer met DDA eligibility criteria to receive disability benefits.

Katherine,1 Courtois’ mother, contested that determination, believing Courtois’ recent autism

diagnosis qualified him for DDA benefits.

       To aid in setting out the remaining facts of the appeal, we first summarize the legal

principles governing the benefits at issue.



1
 Because Katherine and Zachary have the same last name, we refer to Katherine by her first
name. No disrespect is intended.


                                                 2
No. 49280-6-II


                                        I. PERTINENT LAW

       In order to qualify for DDA benefits, an individual must show that he or she has been

diagnosed with an intellectual disability that “[r]esults in substantial limitations.” See WAC 388-

823-0015; WAC 388-823-0200. One such eligible condition is autism. See WAC 388-823-

0500. In order to show that an individual’s autism “[r]esults in substantial limitations,” WAC

388-823-0015(1)(c), the individual must submit documentation showing (1) an adaptive skills

test score of more than two standard deviations below the mean and (2) a Full Scale Intelligence

Quotient (FSIQ) score of more than one standard deviation below the mean. See WAC 388-823-

0510; see WAC 388-823-0210. The adaptive test “must be administered and scored by

professionals who have a background in individual assessment, human development and

behavior, and tests and measurements, as well as an understanding of individuals with

disabilities.” WAC 388-823-0740(1)(a).

       The adaptive skills and FSIQ scores cannot be attributable to an unrelated “mental illness

or other psychiatric condition occurring at any age; or other illness or injury occurring after age

eighteen.” WAC 388-823-0720, -0740. If an individual is “dually diagnosed” with a qualifying

condition and other unrelated conditions, the individual must provide “acceptable

documentation” that the qualifying condition, measured by the FSIQ and adaptive skills tests,

would meet the requirements for DDA eligibility without the influence of the unrelated

conditions. WAC 388-823-0720(2)(a), -0740(2)(a). “Acceptable documentation”

       means written reports or statements that are directly related to the subject at issue,
       reasonable in light of all the evidence, and from a source of appropriate authority.
       The determination of whether a document is acceptable is made by DDA.




                                                 3
No. 49280-6-II


WAC 388-823-0720 (2)(b), -0740(2)(b). “If no documentation is provided or DDA determines

that the documentation is not acceptable[,] DDA will deny eligibility. The determination may be

challenged through an administrative appeal.” WAC 388-823-0720(2)(c), -0740(2)(c).

                             II. HISTORY OF COURTOIS’ DIAGNOSES

       Throughout his life, Dr. Heather Sue Daniels was Courtois’ primary doctor and

diagnosed him with a variety of conditions. Daniels diagnosed him with attention deficit

hyperactivity disorder (ADHD) in 2002 and “Static Encephalopathy secondary [due] to poor

early nutrition with failure to thrive” in 2004. Clerk’s Papers (CP) at 296. In 2007, Daniels

stated that “as he grows older he seems to be coalescing into an Asperger Syndrome picture[,]”

and again diagnosed him with ADHD and static encephalopathy as well as about nine other new

conditions.2 CP at 299.

       In August 2013, when the Department was determining whether Courtois should continue

to receive DDA benefits, Daniels provided the following summary of Courtois’ diagnoses over his

lifetime, classifying them under different developmental categories:

       Early Childhood
              Failure to Thrive
              Static Encephalopathy with development delay

       Mid Childhood
             ADHD
             Asperger’s (Autism Spectrum Disorder)

       New issues in the last two years
              Sleep Disorder
              Brain Tumor


2
  These other diagnoses include cognitive impairment, obsessive compulsive disorder, speech-
language disorder, social learning disorder, sleep disorder, fine and gross motor dyspraxia, status
post failure to thrive, status post gastroesophageal reflux disease, and small stature.


                                                 4
No. 49280-6-II


                 Seizure Disorder
                 Episodes of memory loss with seizures

CP at 315.

       The Department asked Daniels to clarify Courtois’ current diagnoses. In response, in

December 2013, Daniels submitted the following diagnoses pertinent to Courtois’ eligibility for

DDA benefits:

       1.        Encephalopathy . . . (brain damage) from inadequate feeding in infancy,
                 with seizure disorder and brain tumor
       2.        Autism Spectrum Disorder
       3.        Lack of Common Sense

See CP at 316.

       In September 2014 Daniels completed a questionnaire and checklist, which implicitly

continued to diagnose Courtois with autism spectrum disorder. However, she did not rule out

encephalopathy, stating, “Zach’s social communications are better explained by [autism] than his

other disabilities.” See CP at 191 (emphasis added).

                              III. FSIQ AND ADAPTIVE SKILLS TESTS

       In February 2013 Courtois received a neuropsychological evaluation, reflecting a FSIQ

score of 80. This score was more than one standard deviation below the mean. See WAC 388-

823-0510(2).

       In April 2014 Courtois received an adaptive skills assessment. His mother, Katherine,

provided the ratings of Courtois’ adaptive skills. Brian Rice, a psychologist, scored and

interpreted those ratings. Rice found that Courtois scored in the extremely low range of adaptive

functioning and qualified as more than two standard deviations below the mean. WAC 388-823-

0510(1).



                                                5
No. 49280-6-II


                                       IV. APPEALS PROCESS

       In November 2014 the Department denied Courtois DDA benefits. Katherine contested

this determination, believing that Courtois qualified for DDA services because of his autism

diagnosis.

       The matter went before an ALJ, who received testimony from witnesses and admitted

numerous exhibits, establishing the facts discussed in Parts I-III above. In addition, Daniels

testified that Courtois “only needs one . . . diagnosis . . . for his behavior stuff,” which was

“[a]utism spectrum disorder.” CP at 528-29.

       Among other rulings, the ALJ determined that Courtois did not qualify for DDA benefits

because (1) Courtois failed to provide documentation that his 2013 FSIQ score was not

influenced by unrelated conditions such as ADHD and (2) Courtois’ April 2014 adaptive skills

score was unreliable because Katherine, who did not qualify as a professional under WAC 388-

823-0740(1)(a), provided the scores to Rice. Courtois appealed this decision to the Board.

       The Board affirmed, agreeing with the ALJ that Courtois failed to provide documentation

that his 2013 FSIQ score was not influenced by unrelated conditions. The Board reasoned that a

prior evaluator, in 2002, had concluded that his ADHD influenced his FSIQ test, and that a

separate neuropsychological evaluation stated that his February 2013 FSIQ test may have been

influenced by other unrelated conditions. It also found that Daniels’ testimony that Courtois was

diagnosed only with autism

       does not overcome the need to show that other conditions did not have a
       disqualifying influence on the FSIQ score at the time the test was administered or
       the fact that it was not Dr. Daniels who administered the test and, thus, was not in
       a position to factually determine if the FSIQ score was unduly influenced by
       condition(s) other than Autism Spectrum Disorder at the time of the testing. . . .
       [T]he [FSIQ] score obtained in February 2013 and the date of this test precedes


                                                  6
No. 49280-6-II


       when Dr. Daniels was still dual diagnosing [Courtois] with other conditions in
       August 2013 and December 2013 (Encephalopathy with seizure disorder and brain
       tumor along with [autism], as well as noting a sleep disorder, a brain tumor, and
       seizures resulting in episodes of memory loss).

CP at 52-53 (footnote omitted).

       For similar reasons, the Board concluded that Daniels’ testimony was not “acceptable

documentation” that Courtois’ other diagnosed conditions at the time of the adaptive skills test

did not have an appreciable effect on his score. The Board noted that Daniels did not administer

the adaptive skills test, which made her unable to evaluate whether other conditions may have

influenced the score.

       The Board also concluded that the adaptive skills score was invalid because there was no

evidence in the record that Katherine, who provided ratings of Courtois’ skills, was a qualified

professional under WAC 388-823-0740(1)(a).

       Courtois moved for reconsideration, which the Board denied. The Board reaffirmed its

rulings regarding the FSIQ and adaptive scores, highlighting that Courtois failed to provide

“acceptable documentation,” WAC 388-823-0720 (2)(b), -0740(2)(b), that demonstrated his

other diagnoses did not contribute to his test score. CP at 9-10. However, in light of new

evidence Courtois submitted, the Board withdrew its decision that the adaptive test was not

administered by a qualifying professional under WAC 388-812-0740(1)(a). The Board implied

that even if it agreed with Courtois that the adaptive test was appropriately administered and

evaluated, its conclusions “regarding [Courtois’] failure to provide acceptable documentation

based on the dual diagnosis” was dispositive. CP at 10.




                                                 7
No. 49280-6-II


          Courtois appealed to the superior court. After a hearing,3 the superior court reversed the

Board’s decision and found that Courtois was entitled to DDA benefits. It entered the following

pertinent findings of fact and conclusions of law:

                                        I. FINDINGS OF FACT

          ....

          1.4     Zackary’s treating pediatrician[,] [Daniels,] determined that he meets the
                  diagnostic criteria for ASD [autism spectrum disorder] in 2013. She no
                  longer diagnoses Zackary with the multiple mental health conditions
                  identified in early and mid-childhood. The new ASD diagnosis replaced
                  those diagnoses. The doctor now attributes Zachary’s social, behavioral,
                  developmental, and cognitive deficits solely to his diagnosed ASD.

          ....

          1.6     The record on appeal also contained evidence that Mr. Courtois has a DDA-
                  qualifying IQ score from testing conducted in February 2013, and a DDA-
                  qualifying adaptive function score from testing conducted in April 2014.
                  [Daniels] testified at the hearing that the cognitive and adaptive deficits
                  demonstrated by his DDA-qualifying IQ and adaptive test scores are
                  attributable to his ASD.

          ....

          1.8     The [Board] determined that the DDA eligibility rules governing “dually
                  diagnosed” applicants apply in Zackary’s case, and prevent the Department
                  from accepting Mr. Courtois’ otherwise qualifying IQ and adaptive test
                  scores.

          1.9     The [Board] also concluded that the record did not establish that the
                  qualifying adaptive function testing in the record was properly
                  “administered by a qualifying professional,” as required by the
                  Department’s rules.




3
    The oral transcript of this hearing is not in the record.


                                                     8
No. 49280-6-II


                                  II. CONCLUSIONS OF LAW

                ....

       2.4      The DDA eligibility rules that govern the Department’s review of IQ and
                adaptive test results of “dually diagnosed” applicants are WAC 388-823-
                0720(2) and WAC 388-823-0274(2).[4] By their plain terms, the
                requirements in these rules apply only if an applicant is currently dually
                diagnosed with a qualifying developmental disability and a separate mental
                illness, or other psychiatric condition. The evidence presented at hearing in
                this matter, including the testimony provided by [Daniels], establishes that
                Mr. Courtois’ ASD diagnosis replaced his various childhood mental health
                diagnoses. Since Mr. Courtois is not currently dually diagnosed with ASD
                and any other mental illness, the [Board]’s application of WAC 388-823-
                0720(2) and WAC 388-823-0274(2) in his case was an error of law.

       2.5      The ASD diagnosis did not replace Mr. Courtois’ medical diagnoses of
                seizure disorder and a sleep disorder. However, the [Board]’s determination
                that these childhood medical diagnoses are dual diagnoses per WAC 388-
                823-0720(2) and WAC 388-823-0740(2) was an error of law.

       2.6      The governing DDA eligibility rules require that qualifying adaptive testing
                must be “administered and scored” by a qualified professional. WAC 388-
                823-0740(1)(a). The [Board]’s determination that the qualifying adaptive
                function testing in this case was not properly “administered and scored” is
                not supported by substantial evidence in view of the record as a whole.

       2.7      The record in this case establishes that Mr. Courtois meets every listed
                requirement for DDA eligibility in the Department’s rules based on his
                diagnosed ASD, and his DDA-qualifying adaptive and IQ test scores.

CP at 622-25.

                               V. DENIAL OF EAJA ATTORNEY FEES

       After these rulings, Courtois moved the superior court for an award of attorney fees and

costs pursuant to the EAJA, arguing that the Department was not “‘substantially justified’” in its


4
  WAC 388-823-0274(2) is not an actual regulation. It appears that the superior court meant to
reference WAC 388-823-0740(2). Courtois, who proposed these findings of fact and
conclusions of law to the superior court, made the same mistake in his trial brief. Given the
superior court’s reasoning in its ruling, we interpret this regulation to be WAC 388-823-0740(2).


                                                  9
No. 49280-6-II


action. CP at 630 (quoting RCW 4.84.350(1)). The superior court disagreed and declined to

award attorney fees, determining that the Department was “substantially justified” and had a

“reasonable basis in law and fact” for its action. CP at 642.

       In its oral ruling, the superior court specifically stated:

               Well, we can all agree, I expect, that the issue here is solely whether the
       Department’s actions were substantially justified within the meaning of the statute.
       The outcome of the litigation, favorable to Mr. Courtois, it doesn't automatically
       follow that the Department’s position was unreasonable and not substantially
       justified.

                I suppose it’s a little bit easier to argue in hindsight, since the Court decided
       in favor of the petitioner, that the Department was not substantially justified. It’s a
       little bit easier to argue that when the decision has gone the way of the petitioner.

               I disagree with Mr. Carlisle, that the arguments by the Department were
       difficult to make. The arguments made then and now, they don’t seem to me that
       they were a reach. The arguments were made in good faith. They are very
       interesting issues in this case.

               The questions for the Court then were much closer questions than the
       petitioner now asserts. The legal answers for me were not obvious. I believe the
       Department’s arguments then were fair under both the law and the facts.

        ...

               I will deny the motion.

Report of Proceedings (RP) at 15-16.

       Courtois appeals the superior court’s determination that he was not entitled to an award

of attorney fees under the EAJA.

                                             ANALYSIS

                                      I. STANDARD OF REVIEW

       We review a superior court’s decision whether to award attorney fees under the EAJA for

an abuse of discretion. Raven v. Dep’t of Soc. & Health Servs., 177 Wn.2d 804, 832, 306 P.3d


                                                  10
No. 49280-6-II


920 (2013). A superior court abuses its discretion when it makes a decision that is manifestly

unreasonable, or based on untenable grounds or reasons. Id.

                                    II. EAJA ATTORNEY FEES

A.     EAJA Legal Principles

       Under the EAJA,

       a court shall award a qualified party that prevails in a judicial review of an agency
       action fees and other expenses, including reasonable attorneys’ fees, unless the
       court finds that the agency action was substantially justified or that circumstances
       make an award unjust.

RCW 4.84.350(1). In this appeal, there is no dispute that Courtois is a qualified party or that he

ultimately prevailed on the merits. Instead, the only pertinent question is whether the superior

court’s finding that the Department was “substantially justified” in its action was an abuse of

discretion.5

       “‘Substantially justified means justified to a degree that would satisfy a reasonable

person.’” Raven, 177 Wn.2d at 832 (quoting Silverstreak, Inc. v. Dep’t of Labor & Indus., 159

Wn.2d 868, 892, 154 P.3d 891 (2007)). Put another way, “an action is substantially justified if it

had a reasonable basis in law and in fact.” Id. The agency action “need not be correct, only

reasonable.” Id. (citing Pierce v. Underwood, 487 U.S. 552, 566 n.2, 108 S. Ct. 2541, 101 L. Ed.

2d 490 (1988)). We look to “the strength of the factual and legal basis for the action, not the

manner of the investigation and the underlying legal decisions.” Silverstreak, 159 Wn.2d at 892.




5
  The superior court did not make a finding “that circumstances make an award unjust,” the
alternative basis for declining to award a prevailing party attorney fees under the EAJA. RCW
4.84.350(1).


                                                11
No. 49280-6-II


       “RCW 4.84.350(1) contemplates that an agency action may be substantially justified,

even when the agency’s action is ultimately determined to be unfounded.” Raven, 177 Wn.2d at

832. Whether an agency action was taken in good faith is a consideration in determining

whether an action was substantially justified. See Constr. Indus. Training Council v. State

Apprenticeship & Training Council of Dep’t of Labor & Indus., 96 Wn. App. 59, 68-69, 977

P.2d 655 (1999). An agency action is not substantially justified if it was “arbitrary, willful, or

capricious.” See Raven, 177 Wn.2d at 833.

B.     Administrative Procedure Act Legal Principles

       Washington’s Administrative Procedure Act (APA), chapter 34.05 RCW, governs

judicial review of an agency action. Crosswhite v. Dep’t of Soc. & Health Servs., 197 Wn. App.

539, 547, 389 P.3d 731, review denied, 188 Wn.2d 1009 (2017). As pertinent, a superior court

may reverse an agency action because the agency has erroneously interpreted or applied the law,

WAC 34.05.570(3)(d), or the agency order is not supported by substantial evidence, WAC

34.05.570(3)(e).

       Whether the Department “has ‘erroneously interpreted or applied the law’ . . . is reviewed

under the error of law standard.” Beatty v. State Dep’t of Fish & Wildlife Comm’n, 185 Wn.

App. 426, 443, 341 P.3d 291, review denied, 183 Wn.2d 1004 (2015). Under the error of law

standard, a court may substitute its own judgment for that of the Department, although it must

give substantial weight to the agency’s view of the law it administers. Id. On the other hand,

“[a]n agency order is supported by substantial evidence if there is a sufficient quantity of

evidence to persuade a fair-minded person of the truth or correctness of the order.” Johnson v.




                                                 12
No. 49280-6-II


State Dep’t of Fish & Wildlife, 175 Wn. App. 765, 772, 305 P.3d 1130 (2013) (internal quotation

marks omitted).

C.     Substantial Justification

       Courtois argues that the superior court abused its discretion in deciding that the

Department’s action was substantially justified because that decision is inconsistent with its

earlier adverse rulings against the Department. In those rulings, the court found that (1) the

Board committed an error of law and (2) its order was not supported by substantial evidence.

For the following reasons, we disagree.

       1.      Error of Law

       The superior court concluded that the Board committed an error of law in its

interpretation of the dual diagnoses rules, WAC 388-823-0720, -0740, the rules that require an

individual’s FSIQ or adaptive skills scores not be attributable to an unrelated condition.

Specifically, the superior court determined that under their plain language the dual diagnoses

rules only apply “if an applicant is currently dually diagnosed with a qualifying developmental

disability and a separate mental illness or other psychiatric condition.” CP at 624 (emphasis

added). It further ruled that Daniels’ testimony established that Courtois’ more recent autism

diagnosis replaced his other childhood diagnoses. Therefore, the superior court concluded that

he was not “currently dually diagnosed,” and that the Board’s application of the dual diagnoses

regulations was an “error of law.” CP at 624-25.

       As already noted, the propriety of the superior court’s interpretation and application of

the dual diagnoses rules, WAC 388-823-0720, -0740, is not before us. Instead, to determine

whether the Department’s position was substantially justified, we ask whether “it had a



                                                13
No. 49280-6-II


reasonable basis in law and in fact,” Raven, 177 Wn.2d at 832, and whether it was “arbitrary,

willful, or capricious.” See Raven, 177 Wn.2d at 833. We may also consider whether the

Department’s position was taken in good faith. See Training Council, 96 Wn. App. at 68-69.

       The superior court found that the Department’s determination was substantially justified

because its arguments were not a “reach,” were made in “good faith,” and raised “very

interesting issues” and “close[] questions” to the court. RP at 15-16. The court also stated that

“[t]he legal answers for me were not obvious.” RP at 15-16.

       Courtois argues, though, that the Department’s position could not be substantially

justified because the superior court based its interpretation of the dual diagnoses rules on their

plain language and implied that “[t]here was no ambiguous terminology, and no confused case

law or conflicting statutory provisions.” Br. of Appellant at 27. In support, Courtois

distinguishes the present case from Dep’t of Labor and Industries v. Lyons Enterprises, Inc., 186

Wn. App. 518, 542, 347 P.3d 464 (2015), aff’d, 185 Wn.2d 721 (2016), where we declined to

award EAJA attorney fees to the plaintiff. The Lyons court found that the Department was

substantially justified in its interpretation of the Industrial Insurance Act, Title 51 RCW, because

the case was “highly complex, involving the intersection of detailed statutes with somewhat

confused common law.” Id.

       Even if not in a setting as complex as Lyons, the superior court’s interpretation of the

dual diagnoses rules involved the interplay of multiple provisions and subsections, as well as

their applicability to a complicated set of facts. Further, the interpretation and application of the

rules on this issue have not been addressed in an appellate decision. Most importantly, at the

time of the February 2013 FSIQ test and April 2014 adaptive skills assessment, Courtois in fact



                                                 14
No. 49280-6-II


had multiple diagnoses. Apart from his autism, the Department was substantially justified in

finding that his encephalopathy, for example, may have influenced those test scores. WAC 388-

823-0720(2)(a), -0740(2)(a).

          Courtois argues, however, that the APA standards for finding an error of law necessarily

required that the superior court find that the Department’s action was not substantially justified.

Under the error of law standard, a reviewing court reviews de novo the “‘meaning and purpose

of a statute,’” but will accord “‘great weight’” to a statute or regulation that falls within the

agency’s expertise. See Puget Soundkeeper All. v. State, Pollution Control Hr’gs Bd., 189 Wn.

App. 127, 136, 356 P.3d 753 (2015) (quoting Pub. Util. Dist. No. 1 of Pend Oreille County v.

Dep’t of Ecology, 146 Wn.2d 778, 790, 51 P.3d 744 (2002)). Only if a rule’s plain language

“‘remains susceptible to more than one reasonable meaning’” after consideration of all relevant

statutory language is the statute ambiguous. See id. at 137 (quoting Dep’t of Ecology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002))

          Thus, the superior court’s finding of an error of law based on the plain language of the

dual diagnoses rules necessarily requires that there was only “one reasonable meaning” to the

rules. If there is only one reasonable meaning, it does seem, at first glance, inconsistent for the

superior court to rule that the Department was still substantially justified in its position, i.e., that

it has a “reasonable basis in law and fact” for its action. Raven, 177 Wn.2d at 832 (emphasis

added).

          However, the EAJA substantial justification standard also examines other factors, such as

whether the agency proceeded in good faith or was arbitrary, willful, or capricious in its action.

Compare Training Council, 96 Wn. App. at 68-69 with Raven, 177 Wn.2d at 833. Courtois does



                                                   15
No. 49280-6-II


not argue that the Department’s action was arbitrary, willful, or capricious, and the superior court

specifically found that the Department’s reading of the dual diagnoses rules was in good faith.

More importantly, at the time of the February 2013 FSIQ test and April 2014 adaptive skills

assessment, Courtois had multiple diagnoses. Although found erroneous by superior court, it was

not unreasonable or irrational for the Department to read the dual diagnosis rules, WAC 388-

823-0720(2)(a) and -0740(2)(a), to apply to the time of the test.

       Thus, even though the superior court found that the Department committed an error of

law based on the plain meaning of the dual diagnoses regulations, we cannot say, under these

circumstances, that the Department lacked a reasonable basis for its actions or that it acted

arbitrarily, willfully, or capriciously. Thus, the superior court did not abuse its discretion in

determining that the Department was substantially justified in its position.

       2.      Substantial Evidence

       The superior court also ruled that substantial evidence did not support the Board’s finding

that Courtois’ April 2014 adaptive skills test was not properly administered and scored by a

qualified professional. Courtois argues that this conclusion required the superior court to

determine that the Department was not substantially justified in its action.

       For his position, Courtois cites Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir.

2005) (quoting Al-Harbi v. INS, 284 F.3d 1080, 1085 (9th Cir. 2002)), which states that

       it will be only a “decidedly unusual case in which there is substantial justification
       under the EAJA even though the agency's decision was reversed as lacking in
       reasonable, substantial and probative evidence in the record.”

We agree that based on the APA’s governing standards for substantial evidence, this holding

weighs in favor of finding that the Department was not substantially justified in its position.



                                                  16
No. 49280-6-II


E.g., Chandler v. State, Office of Ins. Comm’r, 141 Wn. App. 639, 647-49, 173 P.3d 275 (2007)

(outlining the deferential substantial evidence rules).

       However, a court’s determination that an agency finding was not supported by substantial

evidence does not compel the determination that the agency’s action was not substantially

justified. In Raven, the main issue was whether substantial evidence supported the Department’s

finding of guardian neglect. 177 Wn.2d at 829-31. The superior court disagreed with the

Department on the merits, and also awarded EAJA attorney fees to the guardian-plaintiff. Id. at

815, 831.

       On appeal, our Supreme Court agreed with the superior court that the Department’s

finding of neglect was not supported by substantial evidence. Id. at 831. However, it found that

the superior court had abused its discretion in awarding EAJA attorney fees to the plaintiff. Id.

at 831-33. It found that the Department was substantially justified in its action because:

       Regardless of whether [the guardian’s] conduct amounted to neglect, the record is
       clear that [she] exhibited several significant shortcomings as a guardian. More to
       the point, under the facts here, an agency would be reasonable in pursuing the same
       course of conduct that DSHS followed.

Id. at 833. The Raven court also noted its hesitation to uphold an EAJA award when there has

been “no determination that [the Department]’s actions were arbitrary, willful, or capricious.”

Id. at 833. Under Raven, then, even if a finding is ultimately determined not to be supported by

substantial evidence, the underlying agency action can still be substantially justified.

       In the present appeal, the superior court determined that the Department’s argument was

“fair . . . under . . . the facts,” “made in good faith,” and presented “very interesting issues.” RP

at 15-16. Again, we are not in the position of examining the merits of whether the agency

finding was supported by substantial evidence. Rather, we examine whether “it had a reasonable


                                                  17
No. 49280-6-II


basis in law and in fact,” Raven, 177 Wn.2d at 832, and whether it was it was “arbitrary, willful,

or capricious.” See Raven, 177 Wn.2d at 833. We may also consider whether the Department’s

position was taken in good faith. See Training Council, 96 Wn. App. at 68-69.

       WAC 388-823-0740(1)(a) states that adaptive skills tests “must be administered and

scored by professionals who have a background in individual assessment, human development

and behavior, and tests and measurements, as well as an understanding of individuals with

disabilities.” At the least, it was questionable whether Katherine had these qualifications. The

ALJ, in fact, determined that “[a]ppellant provided an adaptive skills test administered not by a

professional who has a background in individual assessment, as required by WAC 388-823-

0740, but by his mother.” CP 95. Against this background, the Department’s determination that

the adaptive skills test was not properly administered rested, at least, on a reasonable basis, even

though it was subsequently overturned by the court. In addition, the superior court made no

determination that the Department’s action was arbitrary, willful, or capricious, or done in bad

faith; nor does Courtois argue that it was.

       Accordingly, we determine that the superior court did not abuse its discretion in

determining that the Department was substantially justified in its actions.

                                 III. ATTORNEY FEES ON APPEAL

       Courtois requests attorney fees on appeal pursuant to Costanich v. Washington State

Dep't of Soc. & Health Servs., 164 Wn.2d 925, 933–35, 194 P.3d 988 (2008), which held that a

party shall be entitled up to $25,000 in attorney fees on appeal under the EAJA. RCW 4.84.350.

However, attorney fees are available under RCW 4.84.350(1) only to prevailing parties. Because

Courtois does not prevail on appeal, we decline to award him attorney fees.



                                                 18
No. 49280-6-II


                                         CONCLUSION

        The superior court did not abuse its discretion in declining to award Courtois attorney

fees under the EAJA. Consequently, we affirm.

        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.



                                                     BJORGEN, C.J.
 We concur:



 WORSWICK, J.




 JOHANSON, J.




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