IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHRISTOPHER FIEGENBAUM, No. 85925-1-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION STATE OF WASHINGTON, DEPARTMENT OF LABOR AND INDUSTRIES,
Respondent.
BIRK, J. — Christopher Fiegenbaum challenges the Department of Labor
and Industries’ administrative decision denying him benefits under Washington’s
crime victims compensation act (the Act), chapter 7.68 RCW, because it found he
incited the physical altercation that led to his injuries. Fiegenbaum petitioned for
judicial review, and the superior court affirmed. Because there was substantial
evidence that Fiegenbaum incited the incident and the superior court did not err in
denying relief, we affirm.
I
On March 13, 2021, 35 year old Fiegenbaum was at the Everett Mall when
he approached 16 year old M.V.-A. and asked for her phone number. M.V.-A.
informed Fiegenbaum of her age and left to go to the bathroom. She then called
her boyfriend, Sajaad Alghazali, to tell him about the encounter. M.V.-A. attempted No. 85925-1-I/2
to inform mall security about the incident, but could not locate them. Alghazali
arrived at the mall and met M.V.-A.
After the encounter with M.V.-A., Fiegenbaum approached 15 year old D.P.
D.P. testified Fiegenbaum asked her what time she was off work because he
“wanted to get [her] number” and “do something after.” D.P. testified that while
Fiegenbaum was talking with her, he started “to get very, very close to me,” and
“[b]y the end of the conversation, he was like about one foot away from me, right
in front of my face, really, really close to me. And then, by that point, I was feeling
very scared and very harassed by him.” Alghazali and M.V.-A. saw Fiegenbaum
talking to D.P. Alghazali approached the two because D.P. “looked very scared
and frightened.” Before physically intervening, Alghazali confirmed D.P.’s age and
that she did not know Fiegenbaum. D.P testified,
And then the guy, since he was really, really close to me, the other guy came and like pushed him back. And he was like [“]Hey, that’s not right. She’s a minor.[”] And then that’s when the—they start—the fight started because the other guy came and pushed him back because he was so close to me.
Fiegenbaum punched Alghazali, causing a physical fight to ensue. The fight ended
when mall security arrived. Fiegenbaum sustained numerous injuries from the
incident. No charges were filed.
Fiegenbaum filed a claim for crime victim benefits with the Department of
Labor and Industries under the Act. After the department denied his claim,
Fiegenbaum appealed the order to the Board of Industrial Insurance Appeals. An
industrial appeals judge (IAJ) issued a proposed decision and order affirming the
department’s order. Fiegenbaum filed a petition for review. During the board’s
2 No. 85925-1-I/3
review, it discovered that one of the exhibits was no longer in the board’s electronic
record. Because the record was incomplete, the board vacated the IAJ’s proposed
decision and order and remanded the matter to the IAJ to address the missing
exhibit and issue a new order based on a complete record. After consideration of
the evidence, including the missing exhibit, the IAJ denied Fiegenbaum’s request
for benefits under the Act, finding “a preponderance of the evidence showed that
[Fiegenbaum] provoked and/or incited the incident that resulted in his injuries,
making him ineligible for benefits under [chapter 7.68 RCW].”
After retaining counsel, Fiegenbaum filed a second petition for review,
which the board denied. Fiegenbaum filed a petition for review of the board’s order
in the King County Superior Court. Following oral argument, the superior court
affirmed the board’s ruling. Fiegenbaum moved for reconsideration “with oral
argument” and attempted to submit new exhibits to the court. The superior court
did not consider the motion due to its violation of numerous court rules, and granted
Fiegenbaum additional time to re-file. Fiegenbaum re-filed his motion for
reconsideration, which the superior court denied because the new submission
“contain[ed] no argument or citations to any legal authorities” and “fail[ed] to
establish a basis for this Court to reconsider its prior ruling.” Fiegenbaum appeals.
II
Although not challenged by the State, we first address the lack of
assignments of error in Fiegenbaum’s opening brief.
RAP 10.3(a)(4) requires an appellant to include a “separate concise
statement of each error a party contends was made by the trial court, together with
3 No. 85925-1-I/4
the issues pertaining to the assignments of error.” Generally, this court will review
only an alleged error a party has included in an “assignment of error or clearly
disclosed in the associated issue pertaining thereto.” RAP 10.3(g). Fiegenbaum’s
briefing fails to conform to the Rules of Appellate Procedure in that he does not
provide assignments of error, authority, or citations to the record. RAP 10.3.
We “hold pro se litigants to the same standards as attorneys.” In re
Vulnerable Adult Pet. for Winter, 12 Wn. App. 2d 815, 844, 460 P.3d 667 (2020).
However, the rules of appellate procedure are to “be liberally interpreted to
promote justice and facilitate the decision of cases on the merits. Cases and
issues will not be determined on the basis of compliance or noncompliance with
these rules except in compelling circumstances where justice demands.” RAP 1.2.
We wield discretion to consider cases and issues on the merits under RAP 1.2.
State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995). This discretion should
be exercised unless there are compelling reasons not to do so. Id. Where the
nature of the appeal is clear, the relevant issues are argued, and the respondent
is not prejudiced, there is no compelling reason for an appellate court to not
consider the merits of the case or issue. Id. In the interests of promoting justice,
and in the absence of an objection from the State, we exercise our discretion and
consider the assignments of error that are properly before us.
III
Fiegenbaum argues the IAJ erred in finding that “[o]n March 13, 2021,
[Fiegenbaum] provoked or incited the physical altercation that resulted in his
injuries.”
4 No. 85925-1-I/5
The Washington Administrative Procedure Act, chapter 34.05 RCW,
governs our review of the board’s decision. We “look to the administrative record,
and not the superior court findings or conclusions, when conducting review.”
Waste Mgmt. of Seattle, Inc. v. Utils. & Trans. Comm’n, 123 Wn.2d 621, 633, 869
P.2d 1034 (1994). We review an agency’s findings of fact for substantial evidence.
Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123
(2000). Substantial evidence exists when there is a sufficient quantity of evidence
to persuade a fair-minded, rational person that a finding is true. Spencer v.
Badgley Mullins Turner, PLLC, 6 Wn. App. 2d 762, 794-95, 432 P.3d 821 (2018).
Even where the evidence conflicts, we need only determine “ ‘whether the
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHRISTOPHER FIEGENBAUM, No. 85925-1-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION STATE OF WASHINGTON, DEPARTMENT OF LABOR AND INDUSTRIES,
Respondent.
BIRK, J. — Christopher Fiegenbaum challenges the Department of Labor
and Industries’ administrative decision denying him benefits under Washington’s
crime victims compensation act (the Act), chapter 7.68 RCW, because it found he
incited the physical altercation that led to his injuries. Fiegenbaum petitioned for
judicial review, and the superior court affirmed. Because there was substantial
evidence that Fiegenbaum incited the incident and the superior court did not err in
denying relief, we affirm.
I
On March 13, 2021, 35 year old Fiegenbaum was at the Everett Mall when
he approached 16 year old M.V.-A. and asked for her phone number. M.V.-A.
informed Fiegenbaum of her age and left to go to the bathroom. She then called
her boyfriend, Sajaad Alghazali, to tell him about the encounter. M.V.-A. attempted No. 85925-1-I/2
to inform mall security about the incident, but could not locate them. Alghazali
arrived at the mall and met M.V.-A.
After the encounter with M.V.-A., Fiegenbaum approached 15 year old D.P.
D.P. testified Fiegenbaum asked her what time she was off work because he
“wanted to get [her] number” and “do something after.” D.P. testified that while
Fiegenbaum was talking with her, he started “to get very, very close to me,” and
“[b]y the end of the conversation, he was like about one foot away from me, right
in front of my face, really, really close to me. And then, by that point, I was feeling
very scared and very harassed by him.” Alghazali and M.V.-A. saw Fiegenbaum
talking to D.P. Alghazali approached the two because D.P. “looked very scared
and frightened.” Before physically intervening, Alghazali confirmed D.P.’s age and
that she did not know Fiegenbaum. D.P testified,
And then the guy, since he was really, really close to me, the other guy came and like pushed him back. And he was like [“]Hey, that’s not right. She’s a minor.[”] And then that’s when the—they start—the fight started because the other guy came and pushed him back because he was so close to me.
Fiegenbaum punched Alghazali, causing a physical fight to ensue. The fight ended
when mall security arrived. Fiegenbaum sustained numerous injuries from the
incident. No charges were filed.
Fiegenbaum filed a claim for crime victim benefits with the Department of
Labor and Industries under the Act. After the department denied his claim,
Fiegenbaum appealed the order to the Board of Industrial Insurance Appeals. An
industrial appeals judge (IAJ) issued a proposed decision and order affirming the
department’s order. Fiegenbaum filed a petition for review. During the board’s
2 No. 85925-1-I/3
review, it discovered that one of the exhibits was no longer in the board’s electronic
record. Because the record was incomplete, the board vacated the IAJ’s proposed
decision and order and remanded the matter to the IAJ to address the missing
exhibit and issue a new order based on a complete record. After consideration of
the evidence, including the missing exhibit, the IAJ denied Fiegenbaum’s request
for benefits under the Act, finding “a preponderance of the evidence showed that
[Fiegenbaum] provoked and/or incited the incident that resulted in his injuries,
making him ineligible for benefits under [chapter 7.68 RCW].”
After retaining counsel, Fiegenbaum filed a second petition for review,
which the board denied. Fiegenbaum filed a petition for review of the board’s order
in the King County Superior Court. Following oral argument, the superior court
affirmed the board’s ruling. Fiegenbaum moved for reconsideration “with oral
argument” and attempted to submit new exhibits to the court. The superior court
did not consider the motion due to its violation of numerous court rules, and granted
Fiegenbaum additional time to re-file. Fiegenbaum re-filed his motion for
reconsideration, which the superior court denied because the new submission
“contain[ed] no argument or citations to any legal authorities” and “fail[ed] to
establish a basis for this Court to reconsider its prior ruling.” Fiegenbaum appeals.
II
Although not challenged by the State, we first address the lack of
assignments of error in Fiegenbaum’s opening brief.
RAP 10.3(a)(4) requires an appellant to include a “separate concise
statement of each error a party contends was made by the trial court, together with
3 No. 85925-1-I/4
the issues pertaining to the assignments of error.” Generally, this court will review
only an alleged error a party has included in an “assignment of error or clearly
disclosed in the associated issue pertaining thereto.” RAP 10.3(g). Fiegenbaum’s
briefing fails to conform to the Rules of Appellate Procedure in that he does not
provide assignments of error, authority, or citations to the record. RAP 10.3.
We “hold pro se litigants to the same standards as attorneys.” In re
Vulnerable Adult Pet. for Winter, 12 Wn. App. 2d 815, 844, 460 P.3d 667 (2020).
However, the rules of appellate procedure are to “be liberally interpreted to
promote justice and facilitate the decision of cases on the merits. Cases and
issues will not be determined on the basis of compliance or noncompliance with
these rules except in compelling circumstances where justice demands.” RAP 1.2.
We wield discretion to consider cases and issues on the merits under RAP 1.2.
State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995). This discretion should
be exercised unless there are compelling reasons not to do so. Id. Where the
nature of the appeal is clear, the relevant issues are argued, and the respondent
is not prejudiced, there is no compelling reason for an appellate court to not
consider the merits of the case or issue. Id. In the interests of promoting justice,
and in the absence of an objection from the State, we exercise our discretion and
consider the assignments of error that are properly before us.
III
Fiegenbaum argues the IAJ erred in finding that “[o]n March 13, 2021,
[Fiegenbaum] provoked or incited the physical altercation that resulted in his
injuries.”
4 No. 85925-1-I/5
The Washington Administrative Procedure Act, chapter 34.05 RCW,
governs our review of the board’s decision. We “look to the administrative record,
and not the superior court findings or conclusions, when conducting review.”
Waste Mgmt. of Seattle, Inc. v. Utils. & Trans. Comm’n, 123 Wn.2d 621, 633, 869
P.2d 1034 (1994). We review an agency’s findings of fact for substantial evidence.
Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123
(2000). Substantial evidence exists when there is a sufficient quantity of evidence
to persuade a fair-minded, rational person that a finding is true. Spencer v.
Badgley Mullins Turner, PLLC, 6 Wn. App. 2d 762, 794-95, 432 P.3d 821 (2018).
Even where the evidence conflicts, we need only determine “ ‘whether the
evidence most favorable to the prevailing party supports the challenged findings.’ ”
State v. Living Essentials, LLC, 8 Wn. App. 2d 1, 14, 436 P.3d 857 (2019) (quoting
Prostov v. Dept. of Licensing, 186 Wn. App. 795, 820, 349 P.3d 874 (2015)). We
do not reweigh the evidence or the credibility of the witnesses on appeal. Id. at
15.
The Act provides “benefits to innocent victims of criminal acts.” RCW
7.68.030(1). “Each victim injured as a result of a criminal act . . . or the victim’s
family or beneficiary in case of death of the victim, are eligible for benefits.” RCW
7.68.070(1). However, “[n]o person or spouse, child, or dependent of such person
is eligible for benefits under this chapter when the injury for which benefits are
sought was: (a) The result of consent, provocation, or incitement by the victim.”
RCW 7.68.060(2)(a). To “provoke” under the Act “ ‘may center attention on the
fact of rousing to action or calling forth a response’ and ‘is often used in connection
5 No. 85925-1-I/6
with angry or vexed reactions.’ ” Hansen v. Dep’t of Lab. & Indus., 27 Wn. App.
223, 226, 615 P.2d 1302 (1980) (quoting WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY (1969)). “Incite” is defined as “ ‘to move to a course of action: stir up:
spur on: urge on.’ ” Id. (quoting W EBSTER’S)
D.P. testified that during their conversation, Fiegenbaum “was like about
one foot away from me, right in front of my face, really, really close to me. And
then, by that point, I was feeling very scared and very harassed by him.” Alghazali
testified he approached D.P. and Fiegenbaum because D.P “looked very scared
and frightened.” D.P. was clear that Alghazali pushed Fiegenbaum in an attempt
to get Fiegenbaum away from her because he was “very, very close to
[her] . . . [s]o [Alghazali] only pushed [Fiegenbaum.] [A]nd [Fiegenbaum] punched
him back.” Although Fiegenbaum disputes these accounts, a reviewing court does
not reweigh the evidence and this testimony is substantial evidence supporting the
agency’s finding that Fiegenbaum provoked the situation by putting himself in very
close proximity to D.P. and frightening her, thus inciting intervention by others.
IV
Fiegenbaum argues the superior court erred in refusing to allow him to
submit additional exhibits on appeal and asks this court to consider these exhibits
in our review.
RCW 34.05.562(1) sets the parameters for court consideration of additional
evidence. A court reviewing an agency decision “may receive evidence in addition
to that contained in the agency record for judicial review, only if it relates to the
validity of the agency action at the time it was taken and is needed to decide
6 No. 85925-1-I/7
disputed issues regarding” (a) improper constitution of the decision-making body;
(b) the unlawfulness of the procedure; or (c) “[m]aterial facts in rule making, brief
adjudications, or other proceedings not required to be determined on the agency
record.” Id. A court may not allow additional evidence where the proponent of the
evidence alleges only that the record is incomplete. Lewis County v. Pub. Emp’t
Rels. Comm’n, 31 Wn. App. 853, 861, 644 P.2d 1231 (1982).
Fiegenbaum requests admission of additional evidence because the
“exhibits included very important relevant audio and video that would prove [his]
explanations of what [he] was trying to argue.” Because Fiegenbaum fails to show
the evidence meets any of the permissible reasons for additional evidence under
RCW 34.05.562(1), the superior court did not err in declining to admit or consider
the additional exhibits. For the same reasons, we cannot review the additional
evidence.
V
Fiegenbaum argues the superior court erred in denying his motion for
reconsideration. We disagree.
We review a superior court’s decision to grant or deny a motion for
reconsideration under an abuse of discretion standard. Rivers v. Wash. State
Conf. of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002). A court
abuses its discretion when its decision is manifestly unreasonable, or exercised on
untenable grounds or for untenable reasons. Gildon v. Simon Prop. Grp., Inc., 158
Wn.2d 483, 494, 145 P.3d 1196 (2006). The superior court denied Fiegenbaum’s
motion for reconsideration because it “contain[ed] no argument or citation to any
7 No. 85925-1-I/8
legal authorities” and “fail[ed] to establish a basis for this Court to reconsider its
prior ruling.” Fiegenbaum provides no argument as to how this ruling was
exercised on untenable grounds or for untenable reasons. The superior court did
not abuse its discretion.
VI
Fiegenbaum argues his counsel “failed to address inaccurate statements
and in a way made [him] look bad” with regard to counsel’s performance in the
superior court. However, Fiegenbaum cites no authority supporting relief in a civil
action based on his perception that his counsel made inaccurate statements during
a hearing. Cf. Seventh Elect Church In Israel v. Rogers, 34 Wn. App. 105, 120,
660 P.2d 280 (1983) (constitutional right to effective assistance of counsel applies
to criminal proceedings, and “[n]o similar right is given to parties in civil actions”).
Affirmed.
WE CONCUR: