How do I appeal the denial of my unemployment benefits to Superior Court?

Lea esto en: English
Por: Northwest Justice Project

This explains Superior court review of an administrative decision relating to unemployment benefits. If you lose your claim at the administrative hearing, you have another level of administrative review. It is called a “Petition for Review.” #7602EN

Please Note!

  • This publication is about Superior Court review of an administrative decision relating to unemployment benefits.

The Basics

If you lose your claim at the administrative hearing, you have another level of administrative review. It is called a "Petition for Review". This first appeal does not go to Superior Court. It goes to the Commissioner of the Washington Employment Security Department. Instructions to appeal a decision to the Commissioner's office should be included with the unfavorable decision you got from the Office of Administrative Hearings.

If you disagree with the Commissioner's Decision, you may appeal your case to a state Superior Court. The appeal form that starts the case is called a "Petition for Judicial Review". You can file in either the Superior Court of the county where you live or in Thurston County Superior Court in Olympia.

There should be no charge for filing a Petition for Judicial Review from an administrative decision regarding a claim for unemployment compensation benefits. (See RCW 50.32.110.)  A blank Petition for Judicial Review form is at the end of this publication for your use.

This publication explains when and how to petition the court for review of the Commissioner's decision. This is not an easy process. Do not get discouraged. You may need to read this several times or ask someone about it.

The laws regarding Petition for Judicial Review can be found in RCW 34.05.510 through .598. The laws governing unemployment insurance are found in RCW Title 50 and Washington Administrative Code Title 192. See "Preparing Your Argument," below, for information on how to find copies of these laws.

If you decide that you will not be able to proceed on your own, contact a private attorney who handles unemployment compensation appeals as soon as possible.

  • If you are low-income, you will not be able to get help from a private attorney in time, and you are not able to file the appeal based on the instructions, call Northwest Justice Project's CLEAR line at 1-888-201-1014 for help with filing the appeal.

This is very important! A Petition for Judicial Review must be filed and served within thirty (30) days of the date of mailing of the Commissioner's decision. The date of mailing usually appears right above the Commissioner's signature on the Order.

Do not wait to file until what you think might be the 30th day after mailing! Calculating days elapsed can be tricky. Furthermore, the parties must receive the Petition for Judicial Review within those 30 days.

If you mail the Petition, you must mail it well before the 30th day. If the Petition for Judicial Review is not received by all parties by the 30th day, it cannot be considered even if there is a good reason for it being late.

In short, file and serve the Petition for Judicial Review as soon as you can after you receive the final administrative decision. However, take enough time to get it done accurately and legibly.

We explain below what the Petition must say, how and where to file it, who must receive copies of the petition (service), and how to serve it.

Generally, you may only raise issues and arguments in your petition that you raised at the administrative hearing.

There are a few exceptions to this rule, including:

  • New facts that you could not have discovered before

  • If you are challenging an Employment Security Department (ESD) rule or WAC, or

  • If you were not notified of the fair hearing or judicial review process that the decision came from.

For more information about raising new issues, see RCW 34.05.554.

Similarly, you may not put new facts into the record except in very limited circumstances. Generally, the "record," meaning the facts the Judge reviews, is limited to testimony and documents filed as part of the administrative hearing or review. You may sometimes add new facts if they are facts you could not have discovered earlier, or if the administrative law judge or ESD improperly kept the facts out of the record.

If important facts are missing, the court can "remand" (send back) the case to get those facts. For more information on new evidence, see RCW 34.05.562.

If you are arguing that an ESD rule is invalid, you must provide specific reasons to support your argument. See RCW 34.05.570(2).

The burden will be on you to prove your case. The court will change the decision for limited reasons only. Those reasons are listed on the attached Petition for Review form.

If at all possible, type your petition. If not, print neatly. We have put as much of this information as we could on the attached Petition form. The sample form is three pages. The following instructions tell you what information to include on each page of the form. It may be easier to follow these instructions if you have the form next to the instructions:

Instructions for page 1 of the form:

  • On the sample form attached, fill in the name of the county in which you are filing your appeal. See the discussion above about where to file the appeal.

  • Print or type in your name as the Petitioner in the blank space in the box to the left of the space stating "Petition for Review."  Also fill your name in the space in the first sentence which states petitioner.

In the first paragraph, you must:

  • Insert the name of the Review Judge or Commissioner from the state Employment Security Department who made your decision. This can be found at the end of the decision and on the letter informing you of your right to appeal.

  • You must also enter the review number assigned to your appeal at the Commissioner's office. This number can be found on both the decision and the letter advising you of your right to appeal. The number is a sequence such as 2002-1234.

  • Next, the form requires you to insert a summary of the issue.

If you were terminated for misconduct, which you dispute, then write something like "At issue is ESD's decision to deny my claim for unemployment benefits on the erroneous basis that I engaged in misconduct."

  • Next, the form requires you to attach a copy of the Review Judge or Commissioner's decision. You must do this.

Instructions for page 2 of the form:

The following paragraph asks you to once again enter your name as the petitioner and to enter the name of your employer.

If your employer was represented at the administrative hearing, then you must also write in the name of the employer's representative.

Instructions for page 2 & 3 of the form:

  • The form then proceeds to list a number of bases on which the Superior Court could find error with the Commissioner's decision. In most cases, you will check numbers d, e, h, and i. If you believe that a, b, c or f might apply, check those boxes or, if you have time, talk to a private attorney who does unemployment compensation appeals.

  • After this portion, you will see an instruction to write why your case entitles you to relief under the legal reasons checked above. Write a brief paragraph summarizing your case.

Example: "I had good cause in leaving my job of seven years. A new manager came in and reduced my work hours and my pay rate so that I could no longer earn a living. I was justified in quitting. I am entitled to unemployment benefits."

Instructions for page 3 of the form:

  • In the final paragraphs, you must again write in the ESD Review No. or case number found on the Commissioner's Decision.

  • Date and sign your name at the end of the Petition for Judicial Review form.

  • Make a total of four copies of the Petition and the Commissioner's Decision.

  • Attach a copy of your Commissioner's Decision to each copy of the Petition.

  • Next, file the original Petition for Review with the Superior Court Clerk's Office in your own county or Thurston County.

If you are filing in King County, use the Case Indexing Cover Sheet which is included with this publication and check "administrative law review" for the type of the case. If you are filing in King County, you must also now fill out the form which indicates whether you live north or south of the l-90 bridge line.

Cases north of this line will be heard at the courthouse in downtown Seattle and cases south of this line will be held at the Kent Regional Justice Center.

Most cases involve a filing fee but in this type of appeal, the filing fee is waived. Usually this goes smoothly.

Occasionally a clerk will not understand this and try and charge a fee. Insist that the law provides for a waiver of filing fees in appeals of Employment Security cases. RCW 50.32.110 is the citation to the law, that is, the law that states that any fee is waived.

  • When you file the petition with the clerk, the Clerk will date stamp the record and stamp it with a case number. Use the case number stamp and date stamp to stamp all of your other copies with the case number and date to show it was filed with the court on this day.

Note: practice with the number stamp before you put it on your copies. It is a little tricky.

 

You may "serve" the Petition for Judicial Review either in person or by mail. If you want to do it in person, it must be done by anyone other than yourself who is at least eighteen years old, or by legal messenger.

If you do it by legal messenger, you will have to pay for this service. It must be delivered to the Employment Security Department address below.

Alternatively, you can mail it to the office address provided below. If you mail the petition, you must use certified mail, return receipt requested and send it to each of the following:

Commissioner
Employment Security Department
Attn: Agency Records Center Manager
212 Maple Park, P.O. Box 9555
Olympia, WA 98507-9555

Office of the Attorney General
Licensing/Administrative Law  Division
1125 Washington Street S.E.
P.O. Box 40110
Olympia, WA 98504-0110

Your Employer:

[Use the employer's mailing address that appears on the first page of the Commissioner's Decision.]

Keep one copy for your files.

  • When you get the receipts from the mailings to the attorney general, the department, and your employer, keep them in your file. They will be used to show proof of service if necessary.

Make sure that you have filed the case with the Superior Court and had a copy delivered to the Employment Security Department, the Attorney General and the employer before the due date. Mailing the copies by the due date is not enough. The copies must be received by all parties by the due date. If you fail to do these things, you will lose your right to appeal.

What happens after I file the Petition for Review?

If you filed your appeal in King or Thurston counties, you will be mailed a copy of the documents and decisions from your hearing and the review. This will include a transcript (a typed-out version of the hearing itself including testimony of the witnesses).

If you filed your appeal in any other county, you may need to ask for a copy of the transcript from either the court clerk or the assistant attorney general who will be assigned to your case (see below).

An assistant attorney general (AAG) will represent the Employment Security Department Commissioner and will send you a "Notice of Appearance" that tells you who the AAG is and the AAG's office address and telephone number.

After you get this notice of appearance, you must send a copy of any further papers that you file with the court to this AAG. The AAG represents ESD. They cannot give you legal advice.

These instructions apply if you filed your Petition for Judicial Review after June 13, 2021. In 2021, SB 5225 was passed affecting the administrative appeals. See RCW 34.05.514. The law authorizes some judicial review cases brought under the Administrative Procedure Act (APA) to be directly reviewed by the Court of Appeals. Unemployment appeals are included in this Bill.

King County: After you file your Petition for Judicial Review, you will need to note your case on the Chief Civil calendar. To note your case on the Chief Civil calendar, you will need a "Notice of Court Date – Ex Parte" and a short motion. The Notice of Court Date – Ex Parte can be downloaded on King County Superior Court website.

The motion should address whether your case should remain in a superior court or be transferred to the Court of Appeals. Please review LCR 40(b)(18). 

For more information, please review the "Notice Regarding Administrative Law Review Cases" that you received when you filed your case or contact the court clerk for further instruction.

Failure to note your case before the deadline may cause your case to be dismissed.

Thurston County: If you filed your case in Thurston County, you should have received a trial setting date and a scheduling questionnaire. Complete the scheduling questionnaire and submit it to the Court.

You will notice that the questionnaire will ask you to decide whether you wish to be heard in Superior Court or transfer the case to the Court of Appeals.

Once filed, please be sure to follow instructions from the Court. If you have not heard about the status of your case, you can reach out to the court clerk or the AAG assigned to your case.

Other Counties: If you filed your Petition for Judicial Review in different county, please check with that county's court clerk and ask how it is done in that county. The Court Clerk's contact is available on their website. 

You may try to settle your case, if you want to, before or after setting the case for trial by contacting the AAG and discussing it.

If you are able to negotiate a settlement that is satisfactory to you, get it put into writing so the agreement can be signed by both of you and filed in the court file.

If you are able to settle the matter, your written agreement should tell the Court that the matter is resolved and that your case should be dismissed.

A brief is a written document which outlines the facts of the case and your legal argument, or reasons why you believe you are entitled to benefits and why the decision is wrong.

Depending on where your case will be heard – Superior Court or Court of Appeals – there are different guidelines for formatting your brief. You will need to review formatting guidelines of where you case will be heard.

The deadline to file your brief will also be different. Please be sure to follow the timeline. Please be sure to send a copy of your brief to the AAG.

To make a legal argument, start with the laws cited in your decision. Find them and then look them up. The laws governing unemployment insurance are found at RCW Title 50 and Title 192 of the Washington Administrative Code. Find these laws at county law libraries, public law schools, or on Washington's Employment Security Department website (click on unemployment insurance and then Title 50 laws and WAC rules).

Once you have read the laws that were applied in your case, then you will better understand the decision and how to make a counter-argument.

If you look up the law in a copy of the Revised Code of Washington Annotated, found at law libraries, you will find brief summaries of cases that have interpreted that specific law. These cases may be helpful. You will see cases with various fact patterns which may then be compared to your case.

Once you have filed your brief, the AAG will file a "Respondent's Response Brief" and send a copy to you. Read this so you understand the state's position as to why the decision should be affirmed. Again, review the laws and cases cited by the assistant attorney general. Be ready to explain why your arguments are better and why you should win.

On the day of the scheduled trial, go to the court and tell the judge why you think that you should get the relief you have asked for.

The burden is on you to prove that the ESD Commissioner's decision is wrong. Again, review the laws that apply to your case. See #5 above. Tell the judge why you believe the law and/or rules support your claim. You cannot bring witnesses or introduce new evidence.

Explain to the judge the facts of the case. Set out your arguments. This should take about l5 minutes or less.

If the judge interrupts you and asks questions, answer them as best as you can.

Next, the AAG will be given a chance to respond. Do not interrupt the AAG while they are talking. They have the right to set forth their position on the case. Once the AAG is finished, you will be given a short time to reply to the AAG's arguments.

The Superior Court judge's decision will be based on the evidence that was presented at the administrative hearing by both you, the ESD, and the reasons that you have given the judge as to why you believe you should win.

A judge will usually announce their decision at the end of the proceeding and will enter an order which is written confirmation of the decision. If you are awarded benefits, be sure that the order plainly sets forth the terms of this decision, as it will go back to ESD for further action. The entire trial will take about an hour.

Best of luck!

Remember: Cases are won by persuasive arguments made at a trial. Be prepared. Know the key facts of your case and stick to them. Understand the laws that apply to your case, and why you think the law allows you to receive benefits.

Be brief, clear, respectful, and organized.

Get Legal Help

Visit Northwest Justice Project to find out how to get legal help. 

Download | Printer-friendly

Última revisión y actualización: Apr 01, 2022
¿Fue útil esta información?
Volver arriba