Rita Cagliostro, V. Dshs

• Court: Court of Appeals of Washington
• Decided: November 8, 2021
• Docket: 81266-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RITA CAGLIOSTRO, ) No. 81266-1-I ) Appellant, ) ) DIVISION ONE v. ) ) WASHINGTON STATE ) DEPARTMENT OF SOCIAL AND ) HEALTH SERVICES, ) UNPUBLISHED OPINION ) Respondent. ) )

MANN, C.J. — Rita Cagliostro appeals the King County Superior Court’s order

dismissing her petition for judicial review of an Administrative Law Judge’s (ALJ)

dismissal of her request for an administrative hearing. The order found that Cagliostro

failed to state a claim for which relief could be granted based on the ALJ’s determination

that her request for an administrative hearing was untimely. We affirm.

FACTS

In 2016, Cagliostro applied to receive employment services from the Department

of Social and Health Services’ Division of Vocational Rehabilitation (DVR). On May 5,

Citations and pin cites are based on the Westlaw online version of the cited material. No. 81266-1-I/2

2016, DVR closed Cagliostro’s case file after she requested it do so. DVR sent notice

of its action to Cagliostro to the address in her file. Cagliostro denies receiving the

notice.

Almost three years later, on April 15, 2019, the Office of Administrative Hearings

received Cagliostro’s request for an administrative proceeding, including retroactive

benefits, to contest DVR’s decision to close her case. DVR moved to dismiss

Cagliostro’s hearing request because it was untimely. On October 9, 2019, the ALJ

dismissed Cagliostro’s request after finding that Cagliostro’s request was filed after the

45-day deadline (ALJ order).

On November 14, 2019, Cagliostro filed a petition for judicial review in King

County Superior Court challenging the ALJ order. Cagliostro e-mailed a copy of the

petition to DVR’s customer relations manager, and then later mailed a partial copy to

the Washington State Attorney General’s Office. DVR moved to dismiss Cagliostro’s

petition for judicial review based on failure to state a claim for which relief could be

granted and insufficient service of process. In March 2020, the superior court granted

DVR’s motion to dismiss finding that Cagliostro failed to state a claim for which relief

could be granted based on the ALJ’s determination that her hearing request was

untimely. The court declined to address the Department’s argument regarding service

of process.

Cagliostro appeals.

ANALYSIS

We review de novo an order of dismissal under CR 12(b). Ricketts v.

Washington State Bd. of Accountancy, 111 Wn. App. 113, 116, 43 P.3d 548 (2002).

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With limited exceptions, the Administrative Procedure Act (APA), ch. 34.05 RCW,

establishes the exclusive means of judicial review of agency actions. RCW 34.05.510.

The petitioner bears the burden of demonstrating the invalidity of an agency action.

RCW 34.05.570(a). A reviewing court may only grant relief from an agency order in an

adjudicative proceeding if the petitioner demonstrates that one of nine statutory

requirements are met. RCW 34.05.570(3).

The APA mandates that applications to begin an adjudicative proceeding,

including the hearing requested by Cagliostro, be timely filed. The “[f]ailure of a party to

file an application for an adjudicative proceeding within the time limit or limits

established by statute or agency rule constitutes a default and results in the loss of that

party’s right to an adjudicative proceeding.” RCW 34.05.440(1). The Department of

Social and Health Services requires a party request an administrative hearing within 45

days of DVR’s decision. WAC 388-891A-0255(2).

DVR closed Cagliostro’s case on May 5, 2016. DVR mailed the notice to

Cagliostro’s address on file, the same address on file at the time of the ALJ’s final order.

Cagliostro did not appeal this decision until 2019, nearly three years later. The ALJ

properly found that Cagliostro untimely submitted her hearing request past the 45-day

deadline and concluded that the Office of Administrative Hearings lacked jurisdiction to

hold a hearing on the merits. Cagliostro failed to assert a claim upon which relief can

be granted. 1

1 DVR also argues that the superior court should have dismissed Cagliostro’s petition because

she failed to invoke the superior court’s appellate jurisdiction to review DVR’s agency action when she served her petition for judicial review by email rather than service consistent with agency rule. Because we affirm the superior court’s order dismissing the petition, we decline to address this claim.

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Affirmed.

WE CONCUR:

.

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