Opinion
No. 59122-3-I.
October 29, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-2-34927-1, James D. Cayce, J., entered October 17, 2006.
Affirmed by unpublished opinion per Agid, J., concurred in by Grosse and Becker, JJ.
The City of Seattle fired Cassandra Daniels for misconduct. Although the Employment Security Department (ESD) originally awarded her unemployment benefits, its determination was set aside following the City's successful appeal. Daniels sought review by the commissioner. On the same day the commissioner affirmed the denial of benefits, the City sent a letter withdrawing its appeal. Based on the City's withdrawal, Daniels asks this court to set aside the commissioner's decision and reinstate her unemployment benefits. Because an employer's withdrawal of appeal, after a determination in its favor and an employee's petition for review of that determination by the commissioner, has no effect on the authority of the commissioner to order repayment, we affirm.
FACTS
Daniels worked for the City of Seattle as an administrative specialist in the Collections Department at municipal court. The City terminated her for her alleged involvement in purchasing a fake driver's license through someone she knew at the Department of Licensing. She applied for and initially received unemployment compensation because the City failed to timely respond when asked for the details of her discharge by the ESD. The City sought review of the decision and, on August 5, 2005, an administrative law judge (ALJ) determined that Daniels was not entitled to unemployment benefits because she was fired for misconduct. Daniels sought review. On September 16, 2005, a review judge issued a decision, on behalf of the commissioner of the ESD, affirming the ALJ's initial order. That same day, the City withdrew its appeal and objection to payment of Daniels' unemployment benefits. Based on that withdrawal, Daniels petitioned for reconsideration. The commissioner denied her petition for reconsideration. Daniels appealed the decision to the superior court. On October 17, 2006, the superior court affirmed the commissioner's decision. This appeal followed.
Initially, the City put Daniels on unpaid leave pending investigation. She began receiving unemployment benefits on August 22, 2004, but was not officially terminated until November 17, 2004.
This was actually the second hearing before an ALJ, the first having been vacated because of problems with the recording of the hearing.
Despite Daniels' repeated assertions that the commissioner erred by denying her motion for reconsideration, under WAC 192-04-190(4), an order denying reconsideration is not subject to judicial review.
DISCUSSION
I. Withdrawal of the Employer's Appeal
Under RCW 50.32.150, the commissioner's decision is prima facie correct, and a party challenging that decision bears the burden of proving otherwise. Daniels does not challenge the determination that she was fired for misconduct and therefore not entitled to unemployment benefits under RCW 50.20.066(1). Instead, she argues that this court should set aside the commissioner's decision based on her employer's decision to withdraw its appeal and objection to payment.
Terry v. Employment Sec. Dep't, 82 Wn. App. 745, 748, 919 P.2d 111 (1996).
Daniels argues that the commissioner lost jurisdiction under RCW 50.32.070 when the City withdrew its appeal before the commissioner's order became final. But the plain language of RCW 50.32.070 does not support this contention. RCW 50.32.070 provides in relevant part:
RCW 50.32.090 provides that a commissioner's order becomes final after 30 days if no petition for review is filed.
Within thirty days from the date of notification or mailing, whichever is the earlier, of any decision of an appeal tribunal, the commissioner on his or her own order may, or upon petition of any interested party shall, take jurisdiction of the proceedings for the purpose of review thereof.
Thus, when Daniels petitioned for review of the ALJ's determination in favor of the City, she invoked the jurisdiction of the commissioner. RCW 50.32.080 states that "[a]fter having acquired jurisdiction for review, the commissioner shall review the proceedings in question." No statute suggests that the commissioner loses jurisdiction to consider a petition for review when a party withdraws its initial appeal after the ALJ has ruled for that party and the other party has filed a petition. RCW 50.32.020 states in relevant part:
The applicant or claimant, his or her most recent employing unit or any interested party which the commissioner by regulation prescribes, may file an appeal from any determination or redetermination with the appeal tribunal within thirty days after the date of notification or mailing, whichever is earlier, of such determination or redetermination to his or her last known address: PROVIDED, That in the event an appeal with respect to any determination is pending as of the date when a redetermination thereof is issued, such appeal, unless withdrawn, shall be treated as an appeal from such redetermination. . . . If no appeal is taken from any determination, or redetermination, within the time allowed by the provisions of this section for appeal therefrom, said determination, or redetermination, as the case may be, shall be conclusively deemed to be correct except as hereinbefore provided in respect to reconsideration by the commissioner of any determination.
Daniels contends this means that once the City withdrew its appeal, the ESD's original decision to grant her unemployment benefits under RCW 50.32.020 should be reinstated as if the original appeal had never been taken. But withdrawing an appeal is not the same as never having appealed at all, particularly when that appeal has already been decided. Daniels' argument ignores the effect of the ALJ's decision, which was to deny Daniels' benefits.
The City sent a letter withdrawing its appeal on the same day the commissioner issued a decision affirming the ALJ's previous favorable determination of the City's appeal. Even if the City's withdrawal were effective in relation to the commissioner's decision on Daniels' petition for review, there is no support for Daniels' contention that this untimely withdrawal voids the previous determination by the ALJ in the City's favor. Thus, we hold that the City's withdrawal of its appeal at this advanced stage in the administrative review process had no effect on the jurisdiction of the commissioner to order repayment of the benefits to which Daniels was not entitled because she was fired for misconduct.
Although neither party cited WAC 192-04-100, it appears to address the situation and bolsters our analysis by providing that:
Any interested party may withdraw his or her appeal, petition for hearing or petition for review at any time prior to a decision thereon, in which case the previous determination, redetermination, denial, order and notice of assessment or decision shall be final in accordance with the provisions of the Employment Security Act. Such withdrawal shall, however, be subject to the approval of the office of administrative hearings in the case of an appeal or petition for hearing, or of the commissioner in the case of a petition for review.
Daniels also argues that requiring her to repay the unemployment benefits already disbursed, when the City has withdrawn its objection to payment, would result in a double recovery for the ESD in violation of "equity and good conscience" under RCW 50.24.020. Daniels bases this contention on her assertion that the City is a fully reimbursable employer, so the ESD would receive funds both from her and the City. But this assertion is not supported by the only authorities she cites — a definition from the ESD website stating that cities are "eligible" to be reimbursable employers and RCW 50.44.090, a law mandating unemployment coverage without specifying the method of contribution. Because there is no support for her assertion that the City is a reimbursable employer in the record, we cannot properly review this claim.
II. Attorney Fees
Daniels requests attorney fees and costs under RAP 18.1. RCW 50.32.160 authorizes an award of attorney fees in the event that an appellant succeeds in convincing a court to reverse or modify the commissioner's decision. Because Daniels' arguments do not merit reversal, we deny her request for fees and costs.
Terry, 82 Wn. App. at 753.
We affirm.