Tamara Love v. Employment Security Dept.

• Court: Court of Appeals of Washington
• Decided: March 18, 2025
• Docket: 60190-7
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

March 18, 2025

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II TAMARA LOVE, No. 60190-7-II

Appellant,

v. UNPUBLISHED OPINION STATE OF WASHINGTON, EMPLOYMENT SECURITY DEPARTMENT,

Respondent.

PRICE, J. — Tamara Love appeals the superior court’s order affirming the decision of the

Commissioner of the Employment Security Department. We affirm.

FACTS

On May 12, 2023, the Employment Security Department sent Love a notice of

overpayment based on a prior decision denying her benefits for weeks that had already been paid.

Love appealed the notice of overpayment. The appeal was scheduled for a hearing with the Office

of Administrative Hearings on July 31, 2023.

Love failed to appear at the July 31 hearing and did not request a postponement. The

administrative law judge (ALJ) found Love in default, dismissed the appeal, and affirmed the May

12 notice of overpayment. The ALJ’s order included instructions on how to file a motion to vacate

the default order and a sample form for the motion to vacate. The form explicitly required an

explanation for why the hearing was missed. No. 60190-7-II

Love did not use the form to file the motion to vacate the default order. Instead, Love filed

a petition for review, which made allegations related to the underlying decision regarding the

denial of benefits but did not provide any explanation for why Love missed the July 31 hearing.

The commissioner found that, despite clear instructions to provide an explanation for her

failure to appear, “no reason for claimant’s failure to appear at the duly noticed hearing is alleged

in the Petition for Review.” Clerk’s Papers (CP) at 48. Further, the commissioner found “[u]nder

the circumstances, we have no basis for finding that the nonappearance was for an excusable

reason.” CP at 48. The commissioner affirmed the default order dismissing Love’s appeal.

Love filed a petition for reconsideration, in which Love finally stated that she “fell ill and

did not realize” she had missed the hearing. CP at 53. The petition for reconsideration was denied.

Love filed a notice of appeal in the superior court. The superior court affirmed the

commissioner’s decision.

Love appeals.

ANALYSIS

Love argues that the commissioner abused their discretion in the order dismissing her

appeal.1 We disagree.

1 In addition to arguing that the commissioner abused their discretion, Love makes numerous arguments related to the underlying decision denying her unemployment benefits and seeks various remedies (such as damages) for claims that are outside the scope of an administrative review of an agency action. Accordingly, we address only Love’s argument that the commissioner abused their discretion in dismissing her appeal of the notice of overpayment.

2 No. 60190-7-II

In this case, we review the commissioner’s decision rather than the ALJ’s decision. Graves

v. Emp. Sec. Dep’t, 144 Wn. App. 302, 308, 182 P.3d 1004 (2008); Tapper v. Emp. Sec. Dep’t,

122 Wn.2d 397, 404-06, 858 P.2d 494 (1993). Further, we do not review the petition for

reconsideration or the order denying reconsideration. See RCW 34.05.470(5) (“The filing of a

petition for reconsideration is not a prerequisite for seeking judicial review. An order denying

reconsideration . . . is not subject to judicial review.”).

An ALJ is authorized to enter an order of default if a party fails to attend the hearing. RCW

34.05.440(2). The party may move to vacate the default order. RCW 34.05.440(3). But an order

of default will be set aside “only upon a showing of good cause for failure to appear or to request

a postponement prior to the scheduled time for hearing.” WAC 192-04-185(4).

Whether to vacate a default order is within the commissioner’s discretion. Graves,

144 Wn. App. at 309. Therefore, we review the commissioner’s decision on whether to vacate a

default order for an abuse of discretion. See id. “An abuse of discretion occurs when a decision

is manifestly unreasonable or exercised on untenable grounds or for untenable reasons.” Id.

Here, in the filing that challenged the default order, Love failed to provide any reason for

failing to appear at the hearing. Without any reason for why Love failed to appear, the

commissioner had no grounds for determining that Love had good cause for her failure to appear.

Thus, the commissioner did not abuse their discretion in denying Love’s petition for review of the

ALJ’s default order.

We affirm.

3 No. 60190-7-II

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

PRICE, J. We concur:

VELJACIC, A.C.J.

LEE, J.