IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JISOO J. KIM, No. 84444-0-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION STATE OF WASHINGTON EMPLOYMENT SECURITY DEPARTMENT,
Respondent.
MANN, J. — Jisoo Kim appeals an administrative decision dismissing her untimely
appeal of the Washington Employment Security Department’s (Department) decision to
deny her employment benefits under RCW 50.20.050 and order her to pay an
overpayment. She argues (1) the commissioner’s conclusion that Kim received the
determination notice during the appeal period is not supported by substantial evidence
and (2) the commissioner erred when she concluded Kim did not show good cause for
filing a late appeal. Because there is insufficient evidence to establish proof of mailing
during the appeal period, we reverse and remand for proceedings consistent with this
opinion. No. 84444-0-I/2
I.
In March 2020, Kim separated from her employer. Soon after, Kim applied for
unemployment benefits. The Department originally granted Kim unemployment
benefits, which she received from May 17, 2020, to August 15, 2020.
On July 30, 2021, the Department issued a determination notice that denied Kim
benefits under RCW 50.20.050 and ordered her to pay an overpayment of $3,003. The
notice stated that Kim could appeal the decision by mail, fax, or use of the Department’s
eServices portal. It also stated that if she wished to appeal, she had until August 30,
2021.
On September 4, 2021, Kim received an invoice dated August 30, 2021 to repay
benefits. Kim began investigating, tried to call the Department, and logged into her
eServices account. Kim found the option to appeal and submitted her appeal that same
day—five days after the appeal period expired.
The Office of Administrative Hearings (OAH) scheduled a hearing to determine
whether Kim had good cause for filing an untimely appeal, whether she voluntarily quit
without good cause, and whether she must repay an overpayment. At the hearing, Kim
testified that she never received the determination notice. The OAH concluded that Kim
had not overcome the presumption that she received the notice and failed to show good
cause for filing an untimely appeal. Kim petitioned for review and a commissioner
affirmed the decision of the administrative law judge (ALJ). Kim appealed the decision
to King County Superior Court, which certified the appeal to this court.
-2- No. 84444-0-I/3
II.
Kim argues first that there is insufficient evidence to support the OAH’s
conclusion that the Department met its presumption that the determination notice was
mailed and that Kim received the notice in time to timely appeal. We agree.
Judicial review of a final Department administrative decision is governed by the
Washington Administrative Procedure Act (APA), ch. 34.05 RCW. Tapper v. State
Emp’t Sec. Dep’t, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). A reviewing court may
reverse an administrative decision when: “(1) the administrative decision is based on an
error of law; (2) the decision is not based on substantial evidence; or (3) the decision is
arbitrary or capricious.” Tapper, 122 Wn.2d at 402 (citing RCW 34.05.570(3)).
Evidence is substantial if it persuades a fair-minded person of the truth of the fact a
party seeks to prove. Heinmiller v. Dep’t of Health, 127 Wn.2d 595,607, 903 P.2d 433
(1995). When reviewing an administrative action, this court applies the standards of the
APA directly to the record before the agency. Tapper, 122 Wn.2d at 402 (citing Macey
v. State, Dep’t of Emp’t Sec., 110 Wn.2d 308, 312, 752 P.2d 372 (1988)). We review
the OAH’s legal decisions de novo but give substantial deference to the Department’s
interpretation of employment security law. Safeco Ins. Cos. v. Meyering, 102 Wn.2d
385, 391, 687 P.2d 195 (1984).
RCW 50.32.020 does not address the Department’s proof of mailing
requirements. 1 But generally, for an office that handles a large volume of mail, proof of
1 RCW 50.32.020 addresses appeals and states, in relevant part:
[t]he 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
-3- No. 84444-0-I/4
mailing may be made by showing (1) an office custom for mailing and (2) compliance
with the custom in the specific instance. Farrow v. Dep’t of Lab. & Indus., 179 Wash.
453, 455, 38 P.2d 240 (1934); Automat Co. v. Yakima County, 6 Wn. App. 991, 995,
497 P.2d 617 (1972). Once a party proves the item was mailed, the law presumes that
“the mails proceed in due course and that the letter is received by the person to whom it
is addressed.” Automat Co., 6 Wn. App. at 995.
This court addressed when the presumption of mailing arises in Scheeler v.
Department of Employment Security, 122 Wn. App. 484, 93 P.3d 965 (2004). In
Scheeler, the Department determined that the claimant was ineligible to receive
unemployment benefits and sent a final determination notice stating they could appeal.
Scheeler, 122 Wn. App. at 487. The determination notice stated, “[a] copy of this
determination notice was mailed to the interested parties at their address on
12/07/2001.” Scheeler, 122 Wn. App. at 489.
At the OAH hearing, the Department offered no proof a determination notice was
mailed within the appeal period and it offered no testimony or affidavit from the person
at the Department who purportedly mailed the notice to Scheeler. Scheeler, 122 Wn.
App. at 489. And the Department offered no evidence of its custom in mailing
determination notices or whether a custom, if it exists, was followed. Scheeler, 122 Wn.
App. at 489. Based on the language in the notice, however, the OAH concluded that
the claimant had failed to overcome the presumption that they had received the notice.
the date of notification or mailing, whichever is earlier, of such determination or redetermination to his or her last known address.
-4- No. 84444-0-I/5
This court reversed, holding that the OAH erred as a matter law by concluding
that the claimant had not overcome the presumption that he received the notice
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JISOO J. KIM, No. 84444-0-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION STATE OF WASHINGTON EMPLOYMENT SECURITY DEPARTMENT,
Respondent.
MANN, J. — Jisoo Kim appeals an administrative decision dismissing her untimely
appeal of the Washington Employment Security Department’s (Department) decision to
deny her employment benefits under RCW 50.20.050 and order her to pay an
overpayment. She argues (1) the commissioner’s conclusion that Kim received the
determination notice during the appeal period is not supported by substantial evidence
and (2) the commissioner erred when she concluded Kim did not show good cause for
filing a late appeal. Because there is insufficient evidence to establish proof of mailing
during the appeal period, we reverse and remand for proceedings consistent with this
opinion. No. 84444-0-I/2
I.
In March 2020, Kim separated from her employer. Soon after, Kim applied for
unemployment benefits. The Department originally granted Kim unemployment
benefits, which she received from May 17, 2020, to August 15, 2020.
On July 30, 2021, the Department issued a determination notice that denied Kim
benefits under RCW 50.20.050 and ordered her to pay an overpayment of $3,003. The
notice stated that Kim could appeal the decision by mail, fax, or use of the Department’s
eServices portal. It also stated that if she wished to appeal, she had until August 30,
2021.
On September 4, 2021, Kim received an invoice dated August 30, 2021 to repay
benefits. Kim began investigating, tried to call the Department, and logged into her
eServices account. Kim found the option to appeal and submitted her appeal that same
day—five days after the appeal period expired.
The Office of Administrative Hearings (OAH) scheduled a hearing to determine
whether Kim had good cause for filing an untimely appeal, whether she voluntarily quit
without good cause, and whether she must repay an overpayment. At the hearing, Kim
testified that she never received the determination notice. The OAH concluded that Kim
had not overcome the presumption that she received the notice and failed to show good
cause for filing an untimely appeal. Kim petitioned for review and a commissioner
affirmed the decision of the administrative law judge (ALJ). Kim appealed the decision
to King County Superior Court, which certified the appeal to this court.
-2- No. 84444-0-I/3
II.
Kim argues first that there is insufficient evidence to support the OAH’s
conclusion that the Department met its presumption that the determination notice was
mailed and that Kim received the notice in time to timely appeal. We agree.
Judicial review of a final Department administrative decision is governed by the
Washington Administrative Procedure Act (APA), ch. 34.05 RCW. Tapper v. State
Emp’t Sec. Dep’t, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). A reviewing court may
reverse an administrative decision when: “(1) the administrative decision is based on an
error of law; (2) the decision is not based on substantial evidence; or (3) the decision is
arbitrary or capricious.” Tapper, 122 Wn.2d at 402 (citing RCW 34.05.570(3)).
Evidence is substantial if it persuades a fair-minded person of the truth of the fact a
party seeks to prove. Heinmiller v. Dep’t of Health, 127 Wn.2d 595,607, 903 P.2d 433
(1995). When reviewing an administrative action, this court applies the standards of the
APA directly to the record before the agency. Tapper, 122 Wn.2d at 402 (citing Macey
v. State, Dep’t of Emp’t Sec., 110 Wn.2d 308, 312, 752 P.2d 372 (1988)). We review
the OAH’s legal decisions de novo but give substantial deference to the Department’s
interpretation of employment security law. Safeco Ins. Cos. v. Meyering, 102 Wn.2d
385, 391, 687 P.2d 195 (1984).
RCW 50.32.020 does not address the Department’s proof of mailing
requirements. 1 But generally, for an office that handles a large volume of mail, proof of
1 RCW 50.32.020 addresses appeals and states, in relevant part:
[t]he 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
-3- No. 84444-0-I/4
mailing may be made by showing (1) an office custom for mailing and (2) compliance
with the custom in the specific instance. Farrow v. Dep’t of Lab. & Indus., 179 Wash.
453, 455, 38 P.2d 240 (1934); Automat Co. v. Yakima County, 6 Wn. App. 991, 995,
497 P.2d 617 (1972). Once a party proves the item was mailed, the law presumes that
“the mails proceed in due course and that the letter is received by the person to whom it
is addressed.” Automat Co., 6 Wn. App. at 995.
This court addressed when the presumption of mailing arises in Scheeler v.
Department of Employment Security, 122 Wn. App. 484, 93 P.3d 965 (2004). In
Scheeler, the Department determined that the claimant was ineligible to receive
unemployment benefits and sent a final determination notice stating they could appeal.
Scheeler, 122 Wn. App. at 487. The determination notice stated, “[a] copy of this
determination notice was mailed to the interested parties at their address on
12/07/2001.” Scheeler, 122 Wn. App. at 489.
At the OAH hearing, the Department offered no proof a determination notice was
mailed within the appeal period and it offered no testimony or affidavit from the person
at the Department who purportedly mailed the notice to Scheeler. Scheeler, 122 Wn.
App. at 489. And the Department offered no evidence of its custom in mailing
determination notices or whether a custom, if it exists, was followed. Scheeler, 122 Wn.
App. at 489. Based on the language in the notice, however, the OAH concluded that
the claimant had failed to overcome the presumption that they had received the notice.
the date of notification or mailing, whichever is earlier, of such determination or redetermination to his or her last known address.
-4- No. 84444-0-I/5
This court reversed, holding that the OAH erred as a matter law by concluding
that the claimant had not overcome the presumption that he received the notice
because “there was no proof of mailing from which the presumption arises.” Scheeler,
122 Wn. App. at 490. 2 The court also explained “a time/date stamp, signature, or other
internal indication that the notice was mailed must be accompanied by evidence that it
is part of an ‘office custom.’ An affidavit of mailing, commonly used in litigation, would
suffice and would not require any additional evidence.” Scheeler, 122 Wn. App. at 490
n.2. Thus, the Scheeler court found that “by itself, the language is insufficient to
establish that the letter was properly sealed, stamped, and deposited in the U.S. mail on
that date because the notation may have been typed before the letter was purportedly
mailed.” Scheeler, 122 Wn. App. at 490. The court held that the presumption that
Scheeler received the letter did not arise and reversed. Scheeler, 122 Wn. App. at 490-
91.
Scheeler is dispositive. 3 The determination notice to Kim states that the
Department “sent a copy of this letter to the people or businesses listed below.” No one
from the Department testified at the hearing, the Department did not provide an affidavit
about the purported mailing to Kim, nor did it offer any evidence of custom or whether
2 Scheeler relied on Farrow, where the Supreme Court found that the fact that a “‘letter bore a
certain date, was at some time mailed, and was at some subsequent time received’” was insufficient to establish a presumption that the letter was received within any particular period. 179 Wash. at 456 (quoting Uhlman v. Arnholdt & Schaefer Brewing Co., 53 F. 485, 489 (1893)). 3 Kim also cites In re Frisbee, No. 03-2004-16462 (Wash. Emp’t Sec. Dep’t Comm’r Dec. No.
898, 2d Series Sept. 24 2004), in support of her position. In Frisbee, no evidence was presented to establish that the notice was mailed on the date stated. The commissioner cited Scheeler and held “there is no basis for finding that the determination notice was mailed to the claimant on May 29, 2004, despite a recital on the face of that determination notice of that date as the mailing date.” Moreover, in Frisbee, the claimant’s testimony established that he did not receive the notice until June 29, 2004, and then promptly filed the appeal. Similarly, here, Kim testified that she did not receive the determination notice, but she did receive an invoice, then promptly investigated and filed an appeal the same day.
-5- No. 84444-0-I/6
custom was followed in this case. Thus, without proof of mailing, there was no
presumption that the letter was received. The OAH erred by concluding otherwise.
Because there is insufficient evidence to establish proof of mailing during the
appeal period, we reverse and remand for proceedings consistent with this opinion. 4
WE CONCUR:
4 Because there is no proof of mailing, we do not reach whether the commissioner erred by
concluding Kim failed to show good cause for her untimely appeal.
-6-