superior court reversed a board of appeals (BOA) decision
that Alice Karanjah, a state licensed nursing assistant,
abused a vulnerable adult. The Department of Social and
Health Services (DSHS) appeals. We conclude that even though
substantial evidence supported the challenged findings of
fact, the BOA erroneously interpreted and applied the law.
Therefore, the BOA's order was arbitrary and capricious.
Accordingly, we reverse the BOA's order and affirm the
superior court's order. We also affirm the superior
court's award of Karanjah's attorney fees and award
her attorney fees on appeal.
worked with vulnerable adults at Pioneer Place Alzheimer
Residence, an assisted living facility in Tacoma. She
received training on dementia and mental health, dealing with
difficult behavior and abuse.
69-year-old resident of Pioneer Place, received diagnoses of
vascular and Alzheimer related dementia. He "could not
be re-directed, he was inappropriate in his actions, and
could be very aggressive and combative." Clerk's
Papers (CP) at 4. Ivan had a history of entering other
residents' rooms and trying to get into their beds. These
actions sometimes interfered with residents' oxygen
approximately midnight on January 3, 2011, Ivan entered a
female resident's room, attempted to get into her bed,
and tried to sleep in her bed with her. The partially
paralyzed female resident could not speak; however, she made
a sound that alerted Karanjah for assistance. Karanjah and
Angela Varney, another caregiver, removed Ivan from the room.
approximately 1 A.M., Karanjah heard a trainee caregiver,
Jalisa Harris, call for help. Ivan and Harris were in the
utility room used for soiled items. Ivan wore only a t-shirt
and a diaper. Ivan held onto Harris's wrist and tried to
hit her. Soiled diapers were all over the floor because Ivan
had pulled them out of the garbage can. He had fecal matter
on his hands. Karanjah managed to convince Ivan to let go of
observed Karanjah interlock Ivan's hands behind his back
and push or shove him down a 200-foot long hallway to his
room. Varney observed Ivan flailing his arms as Karanjah
pushed him. He hit his left wrist on the doorjamb of his
room. Varney saw Karanjah close the door and walk away.
Varney also saw that Ivan had a red wrist that started to
claimed she did not witness Ivan hit his wrist, and she
denied holding his wrists or walking behind him. She said
that she held him with her right hand on his right wrist and
her left hand below his left shoulder. She also denied
investigated the incident and issued a report in April 2011.
In the report, Corey Ellis, the director of nursing services,
told investigators that Ivan was not re-directable or
appropriate in his actions, and could "be very
aggressive and/or combative." CP at 327.
parties entered into a stipulation to an informal
disposition, accepted by the Secretary of Health. In the
stipulation, Karanjah did not admit to any of the
allegations, but she acknowledged "that a finding of
unprofessional conduct or inability to practice based on the
above allegations, if proven, would constitute grounds for
discipline under RCW 18.130.180(4), (7) and WAC
246-841-400(4)(a), (c), (d) and (6)(g)." CP at 312. The
parties did not intend the stipulation to be construed as a
finding of unprofessional conduct or an inability to
practice. The parties agreed that Karanjah's credentials
to practice as a registered nursing assistant would be placed
on probation for 12 months. Numerous conditions attached to
April 17, 2012, DSHS issued a notice of preliminary finding
that Karanjah physically abused a vulnerable adult, Ivan.
Karanjah requested a hearing to contest the matter.
31, a health law judge terminated the probation and issued a
credential without conditions or limitations. Karanjah had
substantially complied with the terms and conditions of the
informal disposition stipulation.
administrative law judge (ALJ) held a hearing on the
contested preliminary finding. The ALJ issued findings of
fact and conclusions of law and an initial order affirming
DSHS's preliminary finding of physical abuse.
filed a petition for review with the BOA. She argued that the
BOA should modify the findings of fact not supported by the
evidence, conclude that no substantial evidence existed to
conclude Karanjah was abusive, and correct the erroneous
application of the law governing abuse.
affirmed the ALJ's initial order. Karanjah filed a
petition for judicial review of the BOA order with the
superior court reversed the BOA decision and remanded the
case for further fact finding and legal analysis. The
superior court concluded that the agency erroneously
interpreted or applied the law because it failed to properly
apply the holding of Brown v. Dep't. of Soc. &
Health Servs., 145 Wn.App. 177, 185 P.3d 1210 (2008). It
also concluded that substantial evidence did not support the
BOA decision, including that Ivan sustained an injury.
Finally, the superior court ruled that the BOA decision was
arbitrary and capricious because the ALJ "expressly
declined to consider all of the surrounding facts and
circumstances, based on the existing record." CP at 547.
superior court ordered on remand that DSHS should determine
whether Karanjah's contact or restraint of Ivan was
reasonable in light of all of the surrounding circumstances,
including Karanjah's obligations as a state nursing
assistant, Ivan's patient history which included a
history of elopement, and Ivan's risk of harm to himself
and others. It also ordered the BOA to determine whether
Karanjah's actions caused Ivan's injury.
stipulation, the parties requested that the BOA remand the
case to the Office of Administrative Hearings (OAH) for
another evidentiary hearing. Per the stipulation, the scope
of the hearing was limited to consideration of the issues
specifically identified in the superior court remand order.
BOA remanded the matter to the OAH for a hearing. The BOA
instructed the parties to provide analysis for the ALJ
consistent with an unpublished decision,  to provide other
relevant authority, and specify which finding of fact in the
final order it alleged the superior court reversed.
conducted a new hearing. Varney, Ivan's assigned care
provider, testified that on the evening in question, she
heard Ivan screaming in Spanish. She observed Karanjah
pushing Ivan from behind and holding his shirt for less than
20 seconds. Ivan resisted her attempts to push him forward by
digging in his heels. Varney described Ivan's arms as
"swinging . . . back and forth up above his head . . .
almost to the side" of his body. CP at 399. Ivan flailed
his arms the entire time Karanjah pushed him down the
hallway. She stated that Ivan tried to grab the doorjamb to
stop from going into his room, but he hit his left wrist on
it. Then Karanjah put Ivan in his room, closed the door, and
walked away. Varney's written statement from shortly
after the incident, however, documented her saying,
"Ivan's hands were loose, flailing his arms, and
reaching back to get her. He probably would have hurt
her." CP at 402. Varney described Ivan as a "very
violent person." CP at 402.
testified that she never pushed Ivan, she only walked behind
him. Karanjah did not leave Ivan in the hallway because he
had soiled hands and he could go into other patients'
rooms and spread the fecal matter. Karanjah was supposed to
prevent the spread of bacteria. Kathy Weed Houck, the nursing
assistant program manager for the occupational therapy board,
confirmed that nursing assistants are required to prevent the
spread of feces.
affirmed DSHS's preliminary finding that Karanjah
physically abused Ivan. Karanjah filed a petition for review
with the BOA.
BOA entered a final order affirming DSHS's preliminary
finding of abuse. Its findings of fact and conclusions of law
were based on the initial order on remand.
filed another petition for judicial review of the BOA order
by the superior court. She requested reasonable attorney fees
pursuant to the Washington State Equal Access to Justice Act
(EAJA), RCW 4.84.350. Karanjah also filed a separate motion
for attorney fees and costs pursuant to EAJA.
superior court set aside the BOA order and reversed
DSHS's finding of physical abuse of a vulnerable adult
against Karanjah. The superior court also awarded Karanjah
$25, 000 for attorney fees and costs. The superior court
found that DSHS's action in the matter was not
substantially justified. DSHS appeals the superior
TO STRIKE STATEMENT OF ADDITIONAL AUTHORITY
filed a statement of additional authority. RAP 10.8. It
included one case that DSHS identified as being an
unpublished case from Washington. Karanjah filed a motion to
strike the statement of additional authority.
14.1(a) governs the citation to unpublished opinions and
states in pertinent part, "Unpublished opinions of the
Court of Appeals have no precedential value and are not
binding on any court. However, unpublished opinions of the
Court of Appeals filed on or after March 1, 2013, may be
cited as non-binding authorities, if identified as such by
the citing party, and may be accorded such persuasive value
as the court deems appropriate."
interpret court rules in the same way as we interpret
statutes and begin with the plain language of the rule.
State v. Otton, 185 Wn.2d 673, 681, 374 P.3d 1108
(2016); State v. Hawkins, 181 Wn.2d 170, 183, 332
P.3d 408 (2014). The plain language of GR 14.1(a) merely
requires that the citing party advise the courts that the
case is unpublished.
cites to Crosswhite v. Dep't of Soc. & Health
Servs., 197 Wn.App. 539, 544, 389 P.3d 731 (2017), that
[W]hen citing to unpublished opinions under GR 14.1, either
in this court or in the trial court, a party must do more
than simply identify the opinion as unpublished. The party
must point out that the decision has no precedential value,
is not binding on any court, and is cited only for such
persuasive value as the court deems appropriate. The party
should also cite GR 14.1.
due respect to the panel that decided Crosswhite, we
conclude that based on the plain language of GR 14.1(a), a
party may cite an unpublished case from this court and merely
identify it as unpublished. Nothing more is required.
Washington Administrative Procedure Act (WAPA) Review
review this case under WAPA, chapter 34.05 RCW. This appeal
is a petition for judicial review of a final agency order
under RCW 34.05.570(3). RCW 34.05.570(3) states in relevant
The court shall grant relief from an agency order in an
adjudicative proceeding only if it ...