FILED COURT OF APPEALS DIVISION 11 2015 FEB - 

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### API 8: 119 STATE OF WASHINGTON BY IN THE COURT OF APPEALS OF THE STATE OF WAS' TGTON DIVISION II MAGDALENE PAL, Appellant,

v. WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. No. 45594 - 3 -1I

PUBLISHED OPINION

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

### hearingto challenge afinding ofthe Adult Protective Services (APS) program ofthe 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 afterthe 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 ofAppeals (Board) affirmed the 

### ALJ's decision, concluding thatthe ALJ lackedjurisdiction 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 notwarrant dismissal because the APS 

### notice did not reasonably apprise Pal ofthat deadline andtherefore violated due process, and (2)

even if Pal did not mail her faxed hearing request, violation ofthe mailing requirement does not45594 - 3 - II 

### preventthe ALJ from exercisingjurisdiction because OAH actually received the faxed request. 

### Accordingly,we reverse the Board's dismissal ofPal'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 herthat 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 ahearing requestwithin 30 days: Atthistime,you have arightto request an administrative hearing to challenge APS' 

### initial finding. Yourhearing 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 ofthe date this letter ofnotice 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. Ifyou request a hearing by fax,you must also mail a copy ofthe requestto OAH on the same day. Clerk' s Papers ( CP) at 79 (underlining omitted, emphasis added). The notice informed Pal that 

### herfailure 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 afterthe close ofbusiness 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 ofsubject matterjurisdiction. The ALJ heard

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### testimonyfrom Pal onthis motion. The parties agreed that Pal had faxed the hearing requestto OAH on January 19 at 7: 16 PM. Pal testified that she mailed the hearing request to OAH on the 

### afternoon ofJanuary 19. DSHS' s attorney stated in a declaration that OAH had not received a copy ofthe hearing request in the mail. The ALJ granted the motion and dismissed the case because Pal did not fax the hearing requestto 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 ofthe ALJ' s decision to the Board. The Board concluded: Because the Appellant' s request for [a] hearing to challenge the notice was not received 

### bythe OAH until afterthe regulatorytime period for filing such a challenge had run, and the challenge was never perfected bythe same day mailing ofa copy ofthe appeal, the ALJ lackedjurisdiction to hearthe case on its merits and only had the authority to dismiss the matter due to lack of subject matterjurisdiction. CP at 24 -

25. As a result, the Board affirmed the ALJ' s dismissal of Pal' s hearing request. Pal filed a petition forjudicial review ofthe Board' s decision in the superior court. The superior court affirmed. Pal appeals. ANALYSIS A. STANDARD OF REVIEW 

### In reviewing administrative agency decisions underthe Administrative Procedures Act APA), I 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 ofdemonstrating the invalidity ofthe agency' s action. RCW 34. 05. 570( 1)( a). In other

I Chapter 34.05 RCW. 345594 - 3 - II 

### words, we reviewthe agency' s order, notthe 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 ofstatutory construction de novo under an error oflaw
standard. Ryan v. Dep 't ofSoc. & Health Servs., 

### 171 Wn.App. 454, 465, 287 P.3d 629 (2012). 

### While we accord greatweightto an agency' s interpretation ofits governing statutes,we do so only ifthe 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 offact. Unchallenged findings offact 

### 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 thatthe 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 ofthe 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 faxthe hearing requestto OAH by 5: 00 PM. DSHS responds that the faxwas

445594 - 3 -H 

### untimely because WAC 388 -02-0035(2) specifies that afiling 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 ofDSHS' 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 ofthis 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 ofthis chapter and chapter 388 -02 WAC, the provisions ofthis chapter shall prevail." She argues that the absence ofany 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 ofthe 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. 545594 - 3 -I1 

### purposes ofcalculating deadlines forthe 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 statedthat 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 thatthe common definition ofthe 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 ofatort 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 ofWAC 388 -02- 0035( 2), Pal was required to 

### faxherhearing noticeto OAH by 5:00 PM on January 19, 2012. Because she did not,herrequest 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 noticeofhowto exercise her rightto request an administrative hearing on

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### the ALJ' sfinding ofneglect. She argues thatthe APS notice letter did not properly apprise her ofthe 5: 00 PM deadline. We agree.4 When the State seeks to deprive a person ofa protected interest, procedural due process requires that the person receive notice ofthe deprivation and an opportunity to be heard to guard against an erroneous deprivation ofthat 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 ofthe pendency ofthe 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 aformal 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 ofrevocation 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 ofdue process. McConnell v. City ofSeattle, 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 herhearing request substantially complied withthe regulations orthat she had good cause for her untimely request under WAC 388 -02 - 0020. 745594 - 3 -II the facts ofthat 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 ofthe 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 ofthe unfamiliar citation, and obtain a copy ofthe 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 howto 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 thatthe APS notice letter

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### was not reasonably calculated to apprise Pal ofthe 5: 00 PM deadline forfaxing 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 outthe 5: 00 PM deadline by 

### reviewing the provisions in those statutes and regulations. We rejectthis argumentfortwo

reasons. First, the APS notice does not reference these provisions in the context ofthe 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 sufficientto put Pal on notice to reviewthe cited provisions to determine her hearing rights. But itwas not sufficientto fairly advise herthat 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 ofsubstantive provisions. Both WAC 388 - 02 and WAC 388 -

71 also are lengthy regulations. Merely citing to entire RCW and WAC chapters containing hundreds ofprovisions 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.

945594 - 3 -II We hold that APS' s notice letterto Pal violated due process with respect to the deadline 

### forfaxing ahearing 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 ofthe 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 ofjurisdiction 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 aformal finding onlythat 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 ofthe 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 supportsthis 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 ofthe APS notice letter. 1045594 - 3 -II
2. Ability ofALJ to Exercise Jurisdiction 

### Pal argues that even ifshe violated the mailing requirement, thatviolation should not affect the ALJ' s ability to exercisejurisdiction regarding her hearing request. She claims that 

### OAH's receipt ofherfaxed hearing request is sufficientto invokejurisdiction.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, orfax awritten requestto OAH and OAH must receive the request within 30 days of receipt ofthe APS notice. As noted above, WAC 

### 388 - 71- 01240(1) also provides that ifthe 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 thatthe ALJ would have been able to exercisejurisdiction here if Pal had mailed the request but OAH never received it, based on OAH' s receipt ofthe faxed hearing request. The language ofWAC 388 -71- 01240( 1) establishes that receipt ofthe faxed hearing request is sufficient to allowthe ALJ to exercisejurisdiction regarding the request, and that the 

### mailing ofthe request is merely procedural. As a result,we hold thatthe failure to mail the request on the same day it is faxed does not affect the ALJ's abilityto exercisejurisdiction and is not grounds forthe ALJ' s refusal to conduct an administrative hearing. This holding does not


### 6 The ALJ ruled that it had nojurisdiction 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 matterjurisdiction to conduct administrative hearings. RCW 34.05. 425( 1)( c); RCW 34. 05. 461( 1)( c); 

### RCW 34. 12.060. A party' s failure to timely request a 

### hearing does not divest the ALJ ofjurisdiction. Instead, in this situation the ALJ cannotexercise 

### jurisdiction. See Hous.Auth. ofCity ofSeattle v. Bin, 163 Wn.App. 367, 372 -77, 260 P.3d 900 2011) ( addressing superior court' sjurisdiction in an unlawful detainer action). 1145594 - 3 -II 

### renderthe 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 ofthe faxed hearing request to OAH (ifthey 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 letterviolated 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 ofthe hearing request was sufficient to allowthe 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 ofattorney fees to a qualified party that prevails in ajudicial review ofan 

### agency action, unless we find thatthe agency action was " substantiallyjustified or that
circumstances make an award unjust." 

### Ryan, 171 Wn.App. at 476. Here, Pal prevailed in a 

### judicial review ofan agency action. However, DSHS was substantiallyjustified 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 substantiallyjustified 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 exercisingjurisdiction. Accordingly,we decline to award Pal reasonable attorney fees under RCW 4.84.350.

1245594 - 3 -II 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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