                                                                                           FILED
                                                                                COURT OF APPEALS
                                                                                      DIVISION 11

                                                                               2015 FEB - 3     API 8: 119

                                                                                STATE OF WASHINGTON

                                                                                BY
    IN THE COURT OF APPEALS OF THE STATE OF WAS'                                                    TGTON


                                                DIVISION II

MAGDALENE PAL,                                                                  No. 45594 -3 - 1I


                                     Appellant,


         v.

                                                                         PUBLISHED OPINION
 WASHINGTON STATE DEPARTMENT OF
 SOCIAL AND HEALTH SERVICES,

                                     Respondent.




        MAxA, J. —      Magdalene Pal appeals the dismissal of her request for an administrative


hearing to challenge a finding of the Adult Protective Services ( APS) program of the Department
of Social and Health Services ( DSHS) that she had neglected a vulnerable adult in her care. The

Administrative Law Judge ( ALJ) dismissed Pal' s request because she faxed it to the Office of

Administrative Hearings ( OAH) on the due date but after the 5: 00 PM regulatory deadline for

filing hearing requests, and because she failed to comply with a regulatory requirement that she .

mail the request on the same day she faxed it. The DSHS Board of Appeals ( Board) affirmed the

ALJ' s decision, concluding that the ALJ lacked jurisdiction to consider Pal' s hearing request.

         We hold that ( 1) although Pal' s hearing request was untimely under WAC 388- 02 -

0035( 2)' s 5: 00 PM deadline, the untimely request does not warrant dismissal because the APS

notice did not reasonably apprise Pal of that deadline and therefore violated due process, and ( 2)

even   if Pal did   not mail   her faxed   hearing   request, violation of   the mailing   requirement   does   not
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prevent the ALJ from exercising jurisdiction because OAH actually received the faxed request.

Accordingly, we reverse the Board' s dismissal of Pal' s request for an administrative hearing.

However, we deny Pal' s request for reasonable attorney fees under RCW 4. 84. 350.
                                                           FACTS


             On December 20, 2011, APS sent a notice letter to Pal informing her that it had found

that she had neglected a vulnerable adult in her care. The notice explained that she had the right

to contest this finding by filing a hearing request within 30 days:

             At this time, you have a right to request an administrative hearing to challenge APS'
             initial finding. Your hearing rights are described in RCW 34. 05, WAC 388 -02, and
             WAC 388 -71.         To request an administrative hearing you must send, deliver or fax
             a written request      to the Office    of   Administrative Hearings ( OAH).    OAH must
             receive your written request within 30 calendar days of the date this letter of notice
             was mailed to you, or within 30 calendar days of the date this letter of notice was
             personally served upon you, whichever occurs first according to WAC 388 -71-
             01240. If you request a hearing by fax, you must also mail a copy of the request to
             OAH on the same day.

Clerk'   s   Papers ( CP)    at   79 ( underlining   omitted, emphasis added).    The notice informed Pal that


her failure to challenge the finding would make it final and that her name would be placed on a

registry.


             Pal received the notice letter on December 22, 2011, which meant that January 19, 2012

was the deadline for filing the hearing request. Pal faxed her request to OAH on January 19, but

not until     7: 16   PM.   The fax   cover sheet stated, " a mail on   way."   CP at 87. Because the fax was


sent after the close of business on January 19, OAH stamped the request as received on January

20. OAH assigned the request to an ALJ.


             DSHS filed a motion to dismiss Pal' s case, claiming that Pal' s late filing and failure to

mail a copy on that same date deprived OAH of subject matter jurisdiction. The ALJ heard


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testimony from Pal on this motion. The parties agreed that Pal had faxed the hearing request to

OAH on January 19 at 7: 16 PM. Pal testified that she mailed the hearing request to OAH on the

afternoon of January 19. DSHS' s attorney stated in a declaration that OAH had not received a

copy of the hearing request in the mail. The ALJ granted the motion and dismissed the case

because Pal did not fax the hearing request to OAH during business hours on the deadline date as

required by WAC 388 -02- 0070( 3) and because there was no evidence that Pal mailed the request

to OAH as required by WAC 388- 71- 01240.

           Pal filed a petition for review of the ALJ' s decision to the Board. The Board concluded:


           Because the Appellant' s request for [a] hearing to challenge the notice was not received
           by the OAH until after the regulatory time period for filing such a challenge had run, and
           the challenge was never perfected by the same day mailing of a copy of the appeal, the
           ALJ lacked jurisdiction to hear the case on its merits and only had the authority to
           dismiss the matter due to lack of subject matter jurisdiction.

CP   at   24 -25.   As a result, the Board affirmed the ALJ' s dismissal of Pal' s hearing request.

           Pal filed a petition for judicial review of the Board' s decision in the superior court. The

superior court affirmed. Pal appeals.


                                                         ANALYSIS


A.         STANDARD OF REVIEW


           In reviewing administrative agency decisions under the Administrative Procedures Act
           I
 APA),         we stand   in the   same position as     the    superior court.   Hardee    v.   Dept   ofSoc. &   Health


Servs., 172 Wn.2d 1, 7, 256 P. 3d            339'( 2011). The party challenging an agency decision has the

burden     of   demonstrating      the   invalidity   of the   agency'   s action.   RCW 34. 05. 570( 1)(   a).   In other




I Chapter 34. 05 RCW.


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words, we review the agency' s order, not the superior court' s decision. King County v. Cent.

Puget Sound Growth Mgmt. Hr' gs Bd., 142 Wn.2d 543, 553, 14 P. 3d 133 ( 2000).


         The APA provides nine grounds for invalidating an agency decision. Pal relies on two:

the Board " erroneously interpreted or              applied   the   law," RCW 34. 05. 570( 3)( d), and the Board' s


decision is " in    violation of constitutional provisions            on   its face   or as applied."   RCW


34. 05. 570( 3)(   a).    We review issues of statutory construction de novo under an error of law

standard.   Ryan         v.   Dep 't   of Soc. & Health Servs.,     171 Wn. App. 454, 465, 287 P. 3d 629 ( 2012).

While we accord great weight to an agency' s interpretation of its governing statutes, we do so

only if the statute is ambiguous, and not when the agency' s interpretation conflicts with the

statutes.   Id. at 465.         Similarly, whether an agency order, or the statute supporting the order,

violates constitutional provisions is a question of law that we review de novo. Hardee, 172 Wn.

2dat7.


         Pal does not assign error to the Board' s findings of fact. Unchallenged findings of fact


are verities on appeal. Heinmiller v. Dep' t ofHealth, 127 Wn.2d 595, 607, 903 P. 2d 433, 909

P. 2d 1294 ( 1995).


B.       TIMELINESS OF HEARING REQUEST

         Pal argues that the Board erred in dismissing her case, claiming that her faxed request

was timely because she faxed the request to OAH on the due date. She argues that the common

definition of the phrase " calendar day" is a 24 -hour period beginning at midnight, and she

emphasizes that nothing in the notice or in the regulation referenced in the notice specified that

she had to fax the hearing request to OAH by 5: 00 PM. DSHS responds that the fax was




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45594 -3 -H




untimely because WAC 388 -02- 0035( 2) specifies that a filing deadline ends at 5: 00 PM on the

last   day. 2 We agree with DSHS.

           The notice APS sent to Pal states that a hearing request must be faxed within 30 days

 according to WAC 388 -71- 01240."              CP at 79. That regulation states that OAH must receive a


hearing request within 30 days after receipt of DSHS' s notice letter, but does not state by what

time on the deadline date the request must be faxed. However, WAC 388 -71 -01245 provides

that "[   c] hapters 34. 05 and 74. 34 RCW, chapter 388 -02 WAC, and the provisions of this chapter

govern     any   administrative   hearing     regarding   a substantiated      APS    finding."   WAC 388 -02 -0035


explains    how to    count   days   when "   calculating deadlines for the         hearing   process,"   and




specifically     states: "   The deadline   ends at   5: 00 p. m.   on   the last   day." WAC 388 -02- 0035( 2). 3

           Pal   points out   that WAC 388 -71 -01245       states   that "[   i] n the event of a conflict between


the provisions of this chapter and chapter 388 -02 WAC, the provisions of this chapter shall

prevail."    She argues that the absence of any time deadline in WAC 388- 71- 01240 should prevail

over    the 5: 00 PM deadline in WAC 388 -02- 0035( 2).              But we do not find any conflict between

chapter 388 -71 WAC and chapter 388 -02 WAC. While WAC 388 -71 -01240 provides that the


hearing request be filed within 30 days of the notice, WAC 388 -02- 0035( 2) provides that for




2 DSHS also argues that Pal did not make this argument to the Board and cannot raise it for the
first time on appeal, citing RCW 34. 05. 554. Because Pal did argue to the ALJ that she timely
filed her appeal on the due date, and because this is an issue of law, we address it.


3 WAC 388 -02- 0070( 3) also provides that " filing" is complete when OAH receives the
documents within business hours. The ALJ relied on this provision. However, the APS notice
letter did not state that Pal was required to " file" her hearing request.


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45594 -3 - I1



purposes of calculating deadlines for the hearing process, the deadline is 5: 00 PM on the last day.

These two provisions are not inconsistent.


         Pal also argues that the APS notice stated that OAH must receive the hearing request

within   30 "   calendar    days."      She relies on Troxell v. Rainier Public School District No. 307, in


which the court held that the common definition of the phrase " calendar day" is a 24 -hour period

beginning       at midnight.      154 Wn.2d 345, 352, 111 P. 3d 1173 ( 2005).                But that case involved a


claim waiting statute that required 60 days to elapse between filing a notice of a tort claim and

commencement of a lawsuit, and the issue was whether the time period started at the exact time


the notice was      filed   or   the   next   day.   Id.   at   351 - 53.   Troxell did not address whether a hearing

request could be filed after business hours on the deadline date. And Troxell also did not involve


a regulation that expressly required that hearing requests be filed by 5: 00 PM on the deadline

date.


         We hold that        under     the    express   language       of   WAC 388 -02- 0035( 2), Pal was required to


fax her hearing notice to OAH by 5: 00 PM on January 19, 2012. Because she did not, her request

for an administrative hearing was untimely.

B.       DUE PROCESS: ADEQUACY OF THE NOTICE


         Pal contends that DSHS violated her constitutional right to procedural due process by

providing insufficient notice of how to exercise her right to request an administrative hearing on




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the ALJ' s finding of neglect. She argues that the APS notice letter did not properly apprise her

of the 5: 00 PM deadline. We agree. 4

         When the State seeks to deprive a person of a protected interest, procedural due process

requires that the person receive notice of the deprivation and an opportunity to be heard to guard

against an erroneous deprivation of that interest. Amunrud v. Bd. ofAppeals, 158 Wn.2d 208,

216, 143 P. 3d 571 ( 2006) (         citing Mathews v. Eldridge, 424 U.S. 319, 348, 96 S. Ct. 893, 47 L.

Ed. 2d 18 ( 1976)).        Due    process requires       the State to   provide " `   notice reasonably calculated,


under all the circumstances, to apprise interested parties of the pendency of the action and afford

them   an   opportunity to       present   their    objections.' "     Jones v. Flowers, 547 U. S. 220, 226, 126 S.


Ct. 1708, 164 L. Ed. 2d 415 ( 2006) ( quoting Mullane                    v.   Cent. Hanover Bank & Trust Co., 339


U. S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 ( 1950)).                   Our Supreme Court has indicated that this


rule applies to the opportunity to request a formal hearing. State v. Storhoff, 133 Wn.2d 523,

528, 946 P. 2d 783 ( 1997).


         Regarding         the   content of   the   notice, "   due process does not require express notification of


the deadline for requesting a formal hearing as long as the order of revocation cites the statute

that contains the     applicable      time limit."      Storhoff, 133 Wn.2d at 528. As a result, a notice' s

citation to a specific statute containing an appeal deadline .meets the requirements of due process.

McConnell      v.   City   of Seattle, 44 Wn.        App.   316, 325, 722 P. 2d 121 ( 1986); Payne v. Mount, 41


Wn.    App. 627, 635, 705          P. 2d 297 ( 1985).       Further, our Supreme Court in Storhoffheld that under




4 Because we hold that the APS notice violated due process, we need not address Pal' s
arguments that her hearing request substantially complied with the regulations or that she had
 good cause for her untimely request under WAC 388 -02 -0020.

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the facts of that case, a general reference to an RCW chapter was sufficient to satisfy due

process.    133 Wn.2d at 528.


         In Storhoff, license revocation notices from the Department of Licensing (DOL)

referenced "   RCW 46. 65," the       statute   containing the   hearing   request   time limit. 133 Wn.2d at


528. The defendants argued that citation to chapter 46. 65 RCW in the notices was not


sufficiently specific to provide notice of the hearing request time limit contained in RCW

46. 65. 065( 1).   Storhoff, 133 Wn.2d at 528. The court held that citation to the chapter was

sufficient, stating:


         DOL' s failure to specifically cite RCW 46. 65. 065( 1) neither distinguishes Payne
         and McConnell nor establishes that the notices failed to provide sufficient notice.
         To the average person, the main obstacles presented by DOL' s citation to " RCW
         46. 65" (   the   entire   Washington Habitual Traffic Offenders Act) would be to
         determine the meaning of the unfamiliar citation, and obtain a copy of the statute
         from a law library. Having accomplished that much, a person would find it a
         comparatively simple matter to locate the hearing request time limit in RCW
         46. 65. 065( 1). RCW 46. 65 is only two pages long.


Storhoff, 133 Wn.2d at 528 ( footnote omitted).

          Here, APS' s notice letter stated that OAH had to receive the hearing request within 30

days " according to WAC 388 -71- 01240."             CP at 79. But WAC 388 -71 -01240 does not state by

what time on the due date the request must be faxed. As noted above, a different regulation,


WAC 388 -02 -0035, explains how to count days when calculating deadlines and specifically

states that,the deadline ends at 5: 00 PM on the due date. But the express reference in the APS

notice letter to WAC 388 -71 -01240 provides no notice that some other, unstated regulation limits


the time by which a hearing request must be faxed. Therefore, we hold that the APS notice letter




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was not reasonably calculated to apprise Pal of the 5: 00 PM deadline for faxing a request for an

administrative hearing.

         DSHS argues that APS' s notice was sufficient because it cited to RCW 34. 05, WAC

388. 02, and WAC 388 -71, and that an aggrieved person could figure out the 5: 00 PM deadline by

reviewing the provisions in those statutes and regulations. We reject this argument for two

reasons.



          First, the APS notice does not reference these provisions in the context of the deadline for

submitting      a   hearing request.    The   notice states: "   Your hearing rights are described in RCW

34. 05, WAC 388 -02,           and   WAC 388 -71."     CP   at   79 ( emphasis   added).   As a result, this language


may have been sufficient to put Pal on notice to review the cited provisions to determine her

hearing rights. But it was not sufficient to fairly advise her that these provisions somehow

impacted the deadline for faxing her request for a hearing when the APS notice specifically

stated   that   a specific regulation —WAC           388 -71 -01240 — governed       the request deadline.

          Second, the court in Storhoffheld that reference to an entire RCW chapter was sufficient,

but in that     case   the   chapter was   only two   pages   long.   133 Wn.2d     at   528. Here, RCW 34. 05 — the


Administrative Procedures Act —is              over 30 pages long and contains dozens of substantive

provisions. Both WAC 388 -02 and WAC 388 -71 also are lengthy regulations. Merely citing to

entire RCW and WAC chapters containing hundreds of provisions was not reasonably calculated

to apprise Pal that buried somewhere within those statutes and regulations was a provision that


affected the deadline for her hearing request.




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        We hold that APS' s notice letter to Pal violated due process with respect to the deadline

for faxing a hearing request.5
B.      MAILING OF HEARING REQUEST


        DSHS argues that even if Pal' s faxed hearing request was timely, the Board properly

dismissed her request because she failed to mail her request to OAH on the same day of the fax

as required in WAC 388 -71- 01240. Although we agree that substantial evidence supported the


Board' s conclusion that Pal did not mail her hearing request to OAH, we hold that this failure did

not deprive the ALJ of jurisdiction to consider Pal' s request.

        1.     Board' s Conclusion Regarding Mailing

        Pal testified that she mailed the hearing request in the afternoon before she faxed it. But

DSHS submitted evidence that OAH never received the request in the mail. The Board


technically made a formal finding only that OAH did not receive the request, not that Pal never

mailed it. However, in its conclusions of law the Board stated that Pal' s challenge to the APS

decision " was   never perfected   by the   same   day   mailing   of a   copy   of the appeal."   CP   at   25.   This


statement, coupled with the Board' s finding that OAH never received the request in the mail, is

sufficient to constitute a finding that Pal did not mail the request.

        Evidence that OAH never received the mailed hearing request is sufficient to support a

finding that Pal never mailed it. Because sufficient evidence supports this finding, we hold that

the Board did not err in concluding that Pal did not comply with the mailing requirement.




5 We emphasize that this holding is limited to the particular language of the APS notice letter.

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45594 -3 -II



        2.     Ability of ALJ to Exercise Jurisdiction

        Pal argues that even if she violated the mailing requirement, that violation should not

affect the ALJ' s ability to exercise jurisdiction regarding her hearing request. She claims that

OAH' s receipt of her faxed hearing request is sufficient to invoke jurisdiction.6 We agree.

        WAC 388 -71- 01240( 1) provides that to request an administrative hearing for an APS

finding, the alleged perpetrator must send, deliver, or fax a written request to OAH and OAH

must receive the request within 30 days of receipt of the APS notice. As noted above, WAC


388 -71- 01240( 1) also provides that if the request is by fax, the request must be, mailed to OAH

on the same day as the fax. Significantly, however, WAC 388 -71- 01240( 1) does not require that

OAH actually receive the mailed copy. As a result, there is no question that the ALJ would have

been able to exercise jurisdiction here if Pal had mailed the request but OAH never received it,

based on OAH' s receipt of the faxed hearing request.

         The language of WAC 388 -71- 01240( 1) establishes that receipt of the faxed hearing

request is sufficient to allow the ALJ to exercise jurisdiction regarding the request, and that the

mailing of the request is merely procedural. As a result, we hold that the failure to mail the

request on the same day it is faxed does not affect the ALJ' s ability to exercise jurisdiction and is

not grounds for the ALJ' s refusal to conduct an administrative hearing. This holding does not




6 The ALJ ruled that it had no jurisdiction because Pal failed to comply with WAC 388 -71-
01240( 1), and the Board agreed. However, this technically is incorrect. The legislature has
granted ALJs subject matter jurisdiction to conduct administrative hearings. RCW
34. 05. 425( 1)(   c);                     RCW 34. 12. 060. A party' s failure to timely request a
                         RCW 34. 05. 461( 1)(   c);


hearing does not divest the ALJ of jurisdiction. Instead, in this situation the ALJ cannot exercise
jurisdiction. See Hous. Auth. of City ofSeattle v. Bin, 163 Wn. App. 367, 372 -77, 260 P. 3d 900
 2011) ( addressing superior court' s jurisdiction in an unlawful detainer action).



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render the mailing requirement superfluous, and we do not excuse Pal' s noncompliance with that

requirement. However, under our holding the remedy for noncompliance is ordering Pal to mail

a   copy   of the   faxed   hearing request to   OAH ( if they   still want a non -faxed   copy), not dismissal of


her request.


           Here, it is undisputed that OAH received the faxed hearing request on January 19, 2013.

And because the APS notice letter violated due process with regard to the 5: 00 PM deadline for

faxing a hearing request, DSHS is precluded from claiming that the request was untimely.

Accordingly, we hold that receipt of the hearing request was sufficient to allow the ALJ and the

Board to exercise jurisdiction over Pal' s request under WAC 388 -71- 01240( 1).

C.         ATTORNEY FEES


           Pal   requests reasonable    attorney fees   under   RCW 4. 84. 350   and   RAP 18. 1.   This statute


provides for an award of attorney fees to a qualified party that prevails in a judicial review of an

agency action, unless we find that the agency action was " substantially justified or that

circumstances make an award unjust."              Ryan, 171 Wn. App. at 476. Here, Pal prevailed in a

judicial review of an agency action. However, DSHS was substantially justified in enforcing its

valid regulatory deadline for making a hearing request, even though we have concluded that the

APS notice letter violated due process. And DSHS was substantially justified in attempting to

enforce its mailing requirement, even though we have concluded that Pal' s failure to mail the

hearing request did not prevent the ALJ from exercising jurisdiction. Accordingly, we decline to

award Pal reasonable attorney fees under RCW 4. 84. 350.




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        We reverse the Board' s dismissal of Pal' s request for an administrative hearing, and

remand to the Board with directions to provide Pal with an administrative hearing pursuant to her

January 19, 2012 request. However, we deny Pal' s request for reasonable attorney fees under

RCW 4. 84. 350.




 We concur:




    HANSON, C. J.




 SUTTON




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