Green v. Washington State Employment Security Department

• Decision Date: 23 November 2020
• Docket Number: 80975-0-I
• Court: Washington Court of Appeals
• Parties: RICCARDO GREEN, Appellant, v. WASHINGTON STATE EMPLOYMENT SECURITY DEPARTMENT, Respondent.

RICCARDO GREEN, Appellant, v. WASHINGTON STATE EMPLOYMENT SECURITY DEPARTMENT, Respondent.

No. 80975-0-I

Court of Appeals of Washington, Division 1

November 23, 2020

UNPUBLISHED OPINION

Andrus, A.C.J.

Riccardo Green currently has two appeals before this court, both related to the Department of Employment Security's denial of his application for unemployment benefits. This appeal addresses whether the superior court properly dismissed Green's petition for judicial review of an overpayment assessment for failure to serve the Department with the petition. Because the record demonstrates Green properly served the Department under Washington's Administrative Procedure Act (APA), we reverse.

FACTS

Riccardo Green was terminated from his position as a linen attendant at Swedish Health Services (Swedish) in August 2018. He filed for unemployment benefits from the Department of Employment Security (the Department) and his request was initially granted. Swedish appealed, however, arguing that Green was terminated for disqualifying misconduct and therefore was ineligible for benefits. An administrative law judge (ALJ) at the Office of Administrative Hearings (OAH) agreed and denied Green's application for benefits. Green appealed this decision to the Commissioner's Review Office (the Commissioner), which affirmed and further ordered Green to repay the benefits paid to him.

Based on the determination that Green did not qualify for unemployment benefits, the Department issued an overpayment assessment, requiring him to repay all benefits received totaling $9, 892.00. Green appealed the overpayment assessment to the OAH and then to the Commissioner, which both affirmed the assessment. Green then filed a petition for judicial review in King County Superior Court. He also filed a motion for sanctions, a motion to empanel a jury, and a motion to consolidate his two petitions.

The Department argued that Green's petition and his accompanying motions must be dismissed because he failed to serve the Department with his notice of petition for judicial review, as required under the APA. The Department's Records Officer, Robert Page, filed a declaration stating that the Department has no record of being served the petition for judicial review. Attached to his reply, Green submitted copies of postmarked certified mailing receipts addressed to the Department and a proof of delivery form for the mailing, which included a signature of the recipient. Green, however, did not mention the attachments nor their significance in his brief. The superior court denied all of Green's motions and dismissed the appeal.

Green then filed a motion for reconsideration and submitted a declaration of service, stating he had timely served the Department his petition for judicial review. He again submitted documentary proof of this service by way of postmarked certified mail receipts and United States Postal Service tracking reports showing delivery to the Department. The superior court also denied the motion for reconsideration. Green appeals.

ANALYSIS

The question of whether a petitioner has completed service under the APA is a question of law reviewed de novo. Diehl v W. Wash. Growth Mgmt. Hr'gs Bd., 153 Wn.2d 207 212-13, 103 P.3d 193 (2004); Clark County v. Growth Mgmt Hr'gs Bd., 10 Wn.App. 2d 84, 94-95, 448 P.3d 81 (2019).

A petition for judicial review of an agency order under the APA must be served on the agency, the office of the attorney general, and all parties of record within thirty days after service of the final order. RCW 34.05.542(2). An appeal from an administrative tribunal invokes the appellate, rather than the general, jurisdiction of the superior court. Union Bay Pres. Coal, v. Cosmos Dev. & Admin. Corp., 127 Wn.2d 614, 617, 902 P.2d 1247 (1995). Acting in its appellate capacity, the superior court is of limited statutory jurisdiction, and all statutory procedural requirements must be met before jurisdiction is properly invoked. Fay v....