Attorneys' Fees


More on Attorneys’ Fees


In re Dependency of A.P., No. 30925-8-III (Nov. 14, 2013)

DSHS filed a petition and alleged A.P. was a dependent of the State, but B.P. successfully opposed it in superior court and retained custody of her daughter.

She sought an award of reasonable attorney fees and costs under Washington’s equal access to justice act (WEAJA) in RCW 4.84.350.  WEAJA awards attorneys’ fees to qualified parties who prevail in a judicial review of an agency action, unless the court finds the agency action was substantially justified.  RCW 4.84.350.

The superior court denied the motion because it interpreted “judicial review” as a review of rulemaking and adjudicative proceedings governed by the Administrative Procedure Act (APA), RCW 34.05.  Division III agreed and affirmed.  It concluded that RCW 34.05.570’s term “judicial review” means a court’s re-examination of an agency action and does not encompass original actions filed by an agency in superior court.

Specifically, it found WEAJA’s purpose is to eliminate any deterrents – to certain individuals, smaller partnerships, smaller corporations, and other organizations – created by the expenses involved in reviewing or defending against unreasonable agency actions.  The legislature especially intended those parties have an opportunity to defend themselves from inappropriate state agency actions.  See LAWS OF 1995, ch. 403, § 901.

The problem is that WEAJA directs one to find the definition of “judicial review” in the APA, but the APA does not define it.  The WA Supreme Court held “judicial”, under both the WEAJA and the APA, means “court”, but did not address the definition of “review”.  Cobra Roofing Servs., Inc. v. Dep’t of Labor & Indus., 157 Wn.2d 90, 100, 135 P.3d 913 (2006). The question remained, “Does the term ‘review’ encompass original actions filed by an agency in superior court?”

The dictionary definition is less than helpful because it defines judicial review as giving a court system the power to annul legislative or executive acts it finds unconstitutional.   WEAJA is concerned with overturning agency action regardless its constitutionality.  WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1223 (1993).

The court found the APA more useful.  It uses the terms “civil enforcement” and “judicial review”.  RCW 34.05.010(13) is captioned “petition by agency for enforcement.  Section .578 addresses lawsuits filed by agencies.  The court thought that, when read as a whole, it implies that when an agency files a lawsuit it is called civil enforcement, not judicial review.  Review means to examine again.

When DSHS filed a dependency action in superior court it was not a review of a past administrative action, but an original action being judged and assessed in the first instance.