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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                 FILED

                                                            JUNE 14, 2012

                                                      In the Office of the Clerk of Court
                                                   WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE

ANDREA L. BECK,                                           No.  30043-9-III
                                                )
                             Appellant,         )
                                                )
         v.                                     )
                                                )         UNPUBLISHED OPINION
EMPLOYMENT SECURITY                             )
DEPARTMENT,                                     )
                                                )
                             Respondent.        )
                                                )

       Korsmo, C.J.  --  An e-mail delivery problem prevented timely service of a notice 

of appeal on two parties.  Clear precedent from the Washington State Supreme Court 

required that the matter be dismissed.  We affirm the superior court.

                                            FACTS

       Appellant Andrea Beck worked for 20 years as a cardiac services technician before 

being discharged by Providence St. Mary Medical Center of Walla Walla.  Providence 

contended that she falsified her time sheets.  The Employment Security Department 

(ESD) denied Ms. Beck unemployment benefits due to misconduct. 

No. 30043-9-III
Beck v. Dep't of Emp't Sec.

       She appealed that ruling to the Office of Administrative Hearings.  At that hearing, 

Providence contended that Ms. Beck had actually been fired for insubordination.  The 

administrative law judge ruled in favor of Ms. Beck, finding that Providence had not 

established that misconduct occurred.  Providence sought review from the 

Commissioner's Review Office, which ruled that there had been disqualifying 

misconduct and denied benefits.  The written ruling issued August 20, 2010.

       Ms. Beck then filed a petition for review with the superior court on September 17, 

2010.  Providence was served by mail that same day.  Ms. Beck's counsel also sent a 

letter via e-mail to ABC Legal Messengers, asking it to serve ESD and the Attorney 

General's Office.  Unfortunately, due to a mistake in the e-mail address, ABC did not 

receive the documents until the following week.  It served the Attorney General on 

September 23 and ESD on September 24.

       The superior court granted ESD's motion to dismiss, finding that it had no 

jurisdiction over the proceedings due to the untimely service on ESD.  Ms. Beck then 

timely appealed to this court.

                                         ANALYSIS

       The sole issue in this appeal concerns the determination that superior court had no 

jurisdiction to hear this case.  We agree with the superior court that this issue has been 

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Beck v. Dep't of Emp't Sec.

resolved against Ms. Beck's position.

       This court reviews a superior court's order of dismissal for failure to comply with 

the service requirements of the Administrative Procedure Act (APA), ch. 34.05 RCW, de 

novo.  Ricketts v. Bd. of Accountancy, 111 Wn. App. 113, 116, 43 P.3d 548 (2002).  In 

order to obtain review of an administrative decision,

       [a] petition for judicial review of an order shall be filed with the court and 
       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).  The superior court does not obtain appellate jurisdiction over an 

appeal from an agency decision unless the appealing party complies with the service 

requirements of RCW 34.05.542(2).  See, e.g., Union Bay Pres. Coal. v. Cosmos Dev. & 

Admin. Corp., 127 Wn.2d 614, 617-18, 902 P.2d 1247 (1995); City of Seattle v. Pub.

Emp't Relations Comm'n (PERC), 116 Wn.2d 923, 926-27, 809 P.2d 1377 (1991).  

       Ms. Beck argues that she substantially complied with the statute -- the court and 

opposing party were timely notified of her appeal, and the other parties were notified 

shortly thereafter, so all concerned had actual notice of her intention.  Substantial 

compliance is "actual compliance in respect to the substance essential to every reasonable 

objective of [a] statute."  In re Writ of Habeas Corpus of Richard J. Santore, 28 Wn. 

App. 319, 327, 623 P.2d 702 (1981).  Generally, noncompliance with a statutory mandate 

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No. 30043-9-III
Beck v. Dep't of Emp't Sec.

is not substantial compliance.  Id.  Courts have found substantial compliance in cases 

where there has been actual compliance with a statute, but with minor procedural faults.  

Cont'l Sports Corp. v. Dep't of Labor & Indus., 128 Wn.2d 594, 602, 910 P.2d 1284 

(1996).  

       The issue of whether the substantial compliance doctrine applies to our APA is 

undecided.  PERC, 116 Wn.2d at 928.  However, PERC did decide that the doctrine does 

not apply to a statutory time limit:

              It is impossible to substantially comply with a statutory time limit in 
       the same way. It is either complied with or it is not.  Service after the time 
       limit cannot be considered to have been actual service within the time limit.  
       We therefore hold that failure to comply with a statutorily set time 
       limitation cannot be considered substantial compliance with that statute.

Id. at 928-29.

       Since the decision in PERC, other courts have considered the applicability of the 

substantial compliance doctrine to RCW 34.05.542.  In Union Bay Preservation

Coalition., the court considered whether timely service of a copy of the petition on the 

parties' attorney, rather than the parties, substantially complied with RCW 34.05.542(2)'s 

requirement that all parties of record be served.  127 Wn.2d at 617.  The court found that 

the unequivocal definition of "party" in the APA combined with the legislative history 

precluded application of the substantial compliance doctrine.  The court noted that its 

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Beck v. Dep't of Emp't Sec.

"ruling arises directly from the words of the APA and, for this reason, decisions applying 

the doctrine of substantial compliance to other statutes are not persuasive."  Id. at 620.  In

Cheek v. Emp't Sec. Dep't, 107 Wn. App. 79, 25 P.3d 481 (2001), this court rejected the 

appellant's argument that she achieved timely service on the ESD by serving the Attorney 

General's Office 34 days after the 30-day time limit even though she never served the 

ESD.  We held that "[s]ubstantial compliance with the service requirements of the APA 

does not invoke . . . appellate jurisdiction."  Id. at 85.

       Division One of this court considered a nearly identical situation to this case in 

Clymer v. Emp't Sec. Dep't, 82 Wn. App. 25, 917 P.2d 1091 (1996).  In Clymer, the 

appellant wanted to appeal an unemployment determination made in his case by the 

commissioner of ESD.  Although the appellant's attorney left the petition for review for a 

legal messenger several days before the deadline, the messenger did not take the petition 

from the office because it was not accompanied by a filing fee.  Id. at 27.  The mistake 

was discovered and rectified one day after the deadline had expired.  Id. The appellant 

contended that he substantially complied with RCW 34.05.542(2).  Id. at 28.  Division 

One rejected the argument, holding that a failure to comply with RCW 34.05.542(2)'s 30-

day filing requirement "resulting from a messenger's failure or refusal to accept a Petition 

for Review for filing, does not constitute substantial compliance."  Id. at 29.  In light of 

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No. 30043-9-III
Beck v. Dep't of Emp't Sec.

PERC and Clymer, Ms. Beck's contention that she substantially complied with the 30-

day time limit is unconvincing. 

       While we agree with Ms. Beck that all concerned parties were alerted to her desire 

to seek superior court review, PERC and Clymer confirm that notice alone is not 

sufficient.  When the legislature has specified a time deadline for filing and service, the 

doctrine of substantial compliance will not serve to override that deadline.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

                                                    _________________________________
                                                                  Korsmo, C.J.

WE CONCUR:

______________________________
       Brown, J.

______________________________
       Sweeney, J. 

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