RUBIN v. DOL, 57631-3-I (Wash.App. 9-22-2008)

No. 57631-3-IThe Court of Appeals of Washington, Division One.
Filed: September 22, 2008

UNPUBLISHED OPINION

PER CURIAM.

The Equal Access to Justice Act (EAJA) requires an award of fees to a qualified party who “prevails in a judicial review of an agency action[.]”[1] The EAJA fee provision does not apply, however, to agency actions excluded from the judicial review under the Administrative Procedures Act (APA). Because the APA specifically excludes license suspension proceedings from judicial review under the APA, the superior court properly denied Mark Rubin’s request for fees based on the successful appeal of his license suspension. Accordingly, we affirm.

FACTS
In January 2006, the Washington State Department of Licensing (the Department) suspended Mark Rubin’s driver’s license for 90 days. A hearing

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officer later sustained the suspension. Rubin then filed a RALJ appeal of his license suspension in superior court.

One year later, the superior court reversed the license suspension on the ground that it was obtained in violation of due process. Rubin did not request, nor did the court award attorney’s fees in the RALJ appeal.

In October, 2007, Rubin filed this action against the Department seeking attorney’s fees under RCW 46.20.308, the EAJA. He alleged that the reversal of his license suspension entitled him to fees under the Act. The superior court granted the Department’s motion to dismiss. The court ruled that the EAJA “does not create a separate cause of action for attorney fees. [Mr. Rubin] could have requested fees in his brief on RALJ appeal pursuant to RALJ 11.2 if he believed he was entitled to them.” Rubin appeals.

DECISION
The EAJA requires an award of fees when a qualified party “prevails in a judicial review of an agency action . . ., unless the court finds that the agency action was substantially justified or that circumstances make an award unjust.” RCW 4.84.350. The EAJA fee provision does not apply, however, to “agency action excluded from the judicial review portions of the APA.” Cobra Roofing v. Department of Labor and Industries, 157 Wn.2d 90, 101, 135 P.3d 913 (2006). It is undisputed that driver’s license suspension proceedings are specifically excluded from the judicial review provisions of the APA.[2] Judicial review of such

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proceedings is governed exclusively by RCW 46.20.308(9). Because judicial review of Rubin’s license suspension proceeding is not authorized under the APA, the superior court had no authority to award him fees under the EAJA.[3]

Rubin argues, however, that he is entitled to judicial review under the APA “because no statute can exclude from judicial review agency violations of due process of law [.]” But RCW 34.05.030(2)(b) only precludes judicial review under the APA. It does not preclude all judicial review. As noted, Rubin is afforded judicial review under RCW 46.20.308(9). Because such review includes review for “errors of law,” Rubin’s argument fails. RCW 46.20.308(9).

In addition, we question whether an award of fees under the EAJA can be made in a separate action following judicial review. The fee provision states in pertinent part:

Judicial review of agency action — Award of fees and expenses.
(1) Except as otherwise specifically provided by statute, a court shall award a qualified party that prevails in a judicial review of an agency action fees and other expenses, including reasonable attorney’s fees, unless the court finds that the agency action was substantially justified or that circumstances make an award unjust.

RCW 4.84.350(1). The wording of this provision strongly suggests it is directed solely at the court conducting the judicial review.[4] Both the title of the provision,

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which specifies “review” proceedings, and the requirement that the court determine whether “the agency action was substantially justified or that circumstances make an award unjust,” indicates that decisions regarding fees are to be made by the court conducting judicial review.[5] Thus, the superior court may have been correct in concluding that the EAJA does not authorize courts to award fees in a separate action following judicial review of an agency proceeding. But given our conclusion that the EAJA does not apply to the review proceedings in this case, we need not decide that question.

Affirmed.

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