Oral Argument November 24, 2014
Appeal from Clark Superior Court. Docket No: 13-2-00566-6. Judge signing: Honorable Daniel L Stahnke, Marjorie Gray, Katherine Lewis. Judgment or order under review. Date filed: 10/24/2013.
Karen L. Campbell (of Northwest Justice Project ), for appellant.
Robert W. Ferguson, Attorney General, and Cindy C. Gideon, Assistant, for respondent.
Authored by Bradley A. Maxa. Concurring: Jill M Johanson, Lisa Sutton.
Bradley A. Maxa, J.
[185 Wn.App. 778] [¶1] 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.
[¶2] 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 [185 Wn.App. 779] not mail her faxed hearing request, violation of the mailing requirement does not 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.
[¶3] 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.
[¶4] 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.
[185 Wn.App. 780] [¶5] 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 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.
[¶6] Pal filed a petition for review of the ALJ's decision to the Board. The ...