28-11JEt; 414
IN THE COURT OF APPEALS OF THE TATE OF WASHINGTON
CAPTAIN BRUCE NELSON, )
) DIVISION ONE
Appellant, )
) No. 75559-5-1
V. )
)
STATE OF WASHINGTON and )
WASHINGTON STATE BOARD OF )
PILOTAGE COMMISSIONERS, )
) UNPUBLISHED OPINION
Respondent. )
) FILED: December 11, 2017
)
DWYER, J. — Captain Bruce Nelson app als from the order of the superior
court affirming the Board of Pilotage Commissi ners' final order denying him a
pilot's license. On appeal, he contends that se eral of the Board's findings of
fact are not supported by substantial evidence, that the Board's final order was
arbitrary and capricious, that the Board failed t conduct rule making in adopting
a reporting form used to record his performanc during a training program, that
the Board engaged in an unlawful procedure o decision-making process in
denying him a pilot's license, that the criteria a plied by the Board in denying him
a pilot's license were vague in violation of his ri ht to due process, that the Board
denied him a meaningful opportunity to be hea d in a meaningful time, and that
two Board commissioners engaged in unlawful ex parte communications with the
Board's legal counsel.
No. 75559-5-1/2
Concluding that there was no error, we ffirm.
The Board of Pilotage Commissioners is charged with training, licensing,
and regulating marine vessel pilots operating I the Puget Sound and Grays
Harbor pilotage districts. When the Board dete mines that the pilotage districts
require additional pilots to Optimize the pilotage service therein, the Board invites
those captains who have already demonstrate a high level of experience as sea
captains to apply for a pilot's license. Obtainin a pilot's license is a multi-step
process involving examinations and, if success ul in the examinations, a complex
training program. An applicant's invitation to a ply for a pilot's license or to
participate in the training program does not gu rantee that the Board will issue a
pilot's license to the applicant.
In 2006, Nelson was invited to apply for pilot's license. He successfully
took the Board's written and simulator exam mal ions, scoring 9th out of 18
applicants. He was then invited to enter into th Board's pilotage training
program for the Puget Sound Pilotage District. Nelson's invitation letter detailed
a training program that was anticipated to involve 174 trips and was tailored to
his experience as a sea callotain, aiming to give him exposure to the wide variety
of ships and conditions that a pilot in the Puget Sound pilotage district may
encounter.
Nelson's training program—along with the training program for other
applicants—was overseen both by the Board nd a committee of licensed pilots,
known as the Training Evaluation Committee. he Committee was designated
-2
No. 75559-5-1/3
by the Board to manage the training program. n that capacity, the Committee
tracked the applicants' progress in the training rogram through direct
observation during training trips and a comprehensive review of training trip
report forms submitted by supervising pilots aft r each completed trip.
The training trip report forms allowed th supervising pilot to indicate on a
point scale an applicant's effectiveness on that trip with regard to specified
categories related to the criteria used by the Beard in making licensing and
training decisions.1 In addition, the report form contained a written comment
section wherein the supervising pilot could ma e specific comments about the
trip and the applicant's performance. Each we k, the information in each
applicant's training trip report forms would be c nsolidated into a spreadsheet
and provided to the applicant. Thereafter, at t e end of a training period, the
Committee would review the applicant's record and issue its recommendation to
the Board as to whether the applicant should b licensed, should not be licensed,
or should undergo additional training.
Nelson accepted the training terms in mid-November and his training
program commenced in January 2007. Seven months and over 100 training trips
later, the Committee reviewed Nelson's performance. The Committee
determined that Nelson had performed inconsi tently and recommended that the
1 The training trip report'form included the cate odes of preparation, navigation, ship
handling, and master/pilot/bridge team interface. An ap licant's performance in each of the
categories was recorded on a four-point scale. Nearly year into Nelson's training program, the
Board altered the training trip report form, adding "the d mains of anchoring, tug escort
procedures, and special circumstances." The Board al o changed the point scale from a four-
point scale to a seven-point scale. The alterations to th training trip report form applied to all
ongoing training programs.
3
No. 75559-5-1/4
Board extend Nelson's training program by two months. The Board then
considered the Committee's recommendation nd unanimously agreed to extend
Nelson's training program, adding specific train ng trips to his training program in
an attempt to address the inconsistencies in hi performance.
Two months later, the Committee revie ed Nelson's training program
performance. On this occasion, the Committe issued a split recommendation to
the Board. Three committee members recom ended that the Board issue a
license to Nelson and two members recomme ded that he receive additional
training. A majority of the Board (4-3) rejected he recommendation of the
majority of the Committee members and voted instead to extend Nelson's
training program.
Three months later, the Committee rev' wed Nelson's performance during
the training program and determined that there was a "disconnect" in his ship-
handling skills, that he lacked situational awar ness, and that he lacked the
ability to process "all the necessary informatio "in confined waterways. With
this, the Committee recommended to extend elson's training. The Board
agreed with the Committees recommendation and unanimously voted to extend
Nelson's training program.2
A month and a half later, the Committe reviewed Nelson's performance
and again recommended to extend his training, this time for four additional
2 In January 2008, Nelson contracted an illness and the Board voted to extend his
training until February.
-4
No. 75559-5-1/5
months. The Board agreed with the Committe 's recommendation and extended
his training program.
Three months later, Nelson participated n his 221st training trip. This trip
involved a grain ship, the Pier 86 grain terminal, and an evaluation of Nelson's
docking skills using a tugboat. During that trip, a senior supervising pilot—and
member of the Committee—was forced to inte ene in Nelson's tugging of the
grain ship in order to avoid Substantial damage to the grain terminal and to the
ship. The supervising pilot managed to reduce the ship's speed, stabilizing it 30
feet away from its docking berth.
One month later, Nelson completed his !nal training program extension.
By that time, he had taken 243 training trips.
The Committee engaged in an extensiv review of Nelson's performance
during the training program. The Committee d termined that he was performing
many piloting tasks well. The Committee conc uded, however, that Nelson
performed inconsistently throughout his exten ed training program regarding
criteria that the Committee Viewed as "essenti I when docking and undocking a
ship," specifically, the "critical ship handling el ments of speed control, heading
control, and the use of tugboats." Relatedly, t e Committee noted with concern
that there were 11 instances, occurring after N lson had already completed 80
training trips, where a supervising pilot felt co pelled to intervene in Nelson's
piloting.
Moreover, the Committee viewed the Pier 86 grain terminal intervention as
a "very serious" intervention. It concluded tha the training trip was characterized
5
No. 75559-5-1/6
as relatively easy and that the intervention had •ccurred near the end of Nelson's
training program. The Committee expressed c ncern that Nelson was not
improving as an applicant and, notably, that "th re was a significant risk to the
public for continuing him in the training progra ." Therefore, the Committee
unanimously recommended that the Board not icense Nelson.
The Board elected to defer voting on the Committee's recommendation,
allowing Nelson to prepare his own presentatio to the Board. In the intervening
six months, Nelson requested, gathered, and s bmitted information to the Board,
and, in October 2008, presented his argument. Two months later, the Board
unanimously voted to deny issuance of a licen e to Nelson.
Nelson timely sought an adjudicative pr 1111 ceeding before an administrative
law judge(AU)to review the Board's decision. The parties conducted extensive
discovery and a seven-day hearing resulted. uring the hearing, Nelson sought
to introduce evidence comparing the Board's e aluation of his performance with
that of other similarly situated applicants in the training program who the Board
eventually voted to license. The All excluded the evidence, determining that it
was not probative. After the hearing, the AUJ i sued an initial order affirming the
Board's decision not to license Nelson.
Nelson appealed the AL's initial order nd the Board appointed a review
officer to review the initial order and prepare a final order on behalf of the Board.
Upon consideration, the review officer affirmed the AL's order and issued the
Board's final order. The final order incorporat d the All's findings of fact and
6
No. 75559-5-1/7
conclusions of law and included additional findi gs of fact by the reviewing
officer.
Nelson appealed the Board's final order o the King County Superior
Court, arguing that the AU erred by excluding he evidence comparing the
Board's evaluation of his performance in the tr ining program with that of other
similarly situated applicants. The superior cou judge agreed, remanding the
case with instructions to allow Nelson to prese it comparator evidence in an
adjudicative proceeding to ensure that the applicants' performance in the training
I
program was measured against objective criteI la.
A six-day administrative hearing resulte• before the AUJ who presided
over the initial hearing. At the hearing, the pa les presented evidence
comparing the Board's evaluation of Nelson's erformance in the training
program with that of similarly situated applican s. Thereafter, the AU issued an
initial order on remand affirming the Board's d cision not to license Nelson.
Nelson appealed the AL's initial order n remand and the Board
appointed a different review officer to review t e initial order and prepare the
Board's final order. The review officer affirme the AL's initial order on remand
and issued the Board's final order. The final o der incorporated the AL's
findings of fact and conclusions of law and inc uded several additions to the
AL's findings of fact and conclusions of law.
Nelson appealed the Board's final orde to the King County Superior
Court. The superior court affirmed the Board' final order.
7
No. 75559-5-1/8
11
A
We review a decision of an agency purs ant to the Administrative
Procedure Act3(APA). Davidson Series & Ass cs. v. Cent. Puget Sound Growth
Mpmt. Hearings Bd., 159 Wn. App. 148, 154, 244 P.3d 1003(2010)(citing
Thurston County v. Cooper Point Ass'n, 148 W .2d 1, 7, 57 P.3d 1156 (2002)).
The APA requires that we base our review upo the record made before the
agency. Davidson Series & Assocs., 159 Wn. pp. at 154 (citing City of
Redmond v. Cent. Pu et Sound Growth M mt. Hearin.s Bd., 136 Wn.2d 38, 45,
959 P.2d 1091 (1998)). We review the agency s legal conclusions de novo,
giving substantial weight tcothe agency's interp etation of the statute that it
1
administers. Davidson Series & Assocs., 159 n. App. at 154 (citing City of
Redmond, 136 Wn.2d at 46). The burden of d monstrating the invalidity of the
agency's action is on the party asserting invali ity. RCW 34.05.570(1)(a). We
may grant relief from an agency action only if e determine "that a person
seeking judicial relief has been substantially p judiced by the action complained
of." RCW 34.05.5701)(d).
As a preliminary matter, Nelson challen es several of the Board's findings
of fact as not supported by substantial eviden e. We discuss each challenged
finding as necessary.
3 Ch. 34.05 RCW.
8
No. 75559-5-1/9
Nelson first contends that substantial evidence does not support the
Board's finding that adopted the reports and opinions submitted by the Board's
expert witness.
We defer to the expertise and experienc of the Board regarding expert
witness credibility determinations. Seattle Cit L' ht v. Swanson, 193 Wn. App.
1 ,
795, 816, 373 P.3d 342(2016)(citing Beatt v. Fish & Wildlife Comm'n, 185 Wn.
App. 426, 449, 341 P.3d 29,1 (2015), review de ied, 183 Wn.2d 1004 (2015));
Port of Seattle v. Pollution Control Hearings Bd., 151 Wn.2d 568, 588, 90 P.3d
659(2004). Here, it is evident that the Board clonsidered the credibility of the
expert witness and all of the witness's testimo y and evidence when it credited
his testimony in entering findings of fact. Nels n's claim fails.
1
Nelson next contends that substantial evidence does not support the
Board's finding of fact that a training program L nique to each applicant was
1
created. But Nelson's appellate briefing effectively concedes that the training
trips assigned to each pilot,applicant were uni ue, acknowledging that the
training trips between applicants were "substaritially similar" and "comparable"
and that "the small variations simply account f [sic] trainees' prior background
and experience." Nelson's claim fails.
Lastly, Nelson's appellate briefing sets orth a list of findings of fact that he
contends are not supported by substantial evi ence. However, his appellate
briefing fails to present argument or analysis ith regard to these findings in
relation to a substantial evidence claim. "Uns bstantiated assignments of error
are deemed abandoned." Kittitas County v. Kittitas County Conserv. Coal., 176
9
1
No. 75559-5-1/10
Wn. App. 38, 54, 308 P.3d 745(2013). We thu deem abandoned Nelson's
remaining substantial evidence challenges.
There was no èrror.4
Nelson next contends that the Board's d cision to deny him a pilot's
license was arbitrary and capricious. We disagree.
We review issoes of law de novo, includ ng whether an agency's decision
is arbitrary and capricious. Stewart v. Dep't of boc. & Health Servs., 162 Wn.
1
App. 266, 273, 252 P.3d 920(2011)(citing WaL Inde . Tel. Ass'n v. Wash.
Utils. & Transp. Comm'n, 149 Wn.2d 17, 24,6 P.3d 319 (2003)).
Pursuant to ROW 34.05.570(3)(i), a peti ioner may challenge an agency's
order on the ground that the order is arbitrary r capricious.
"'Arbitrary and capricious" refers to "wil ful and unreasoning action,
taken without 'regard to or consideration of the facts and
circumstances surrounding the action. Where there is room for two
opinions, an abtion taken after due con ideration is not arbitrary
and capricioue even though a reviewing court may believe it to be
erroneous.' I
Pub. Util. Dist. No. 2 of Pac. County v. Comcast of Wash. IV, Inc., 184 Wn. App.
24, 45, 336 P.3d 65(2014)(internal quotation marks omitted)(quoting Lane v.
Port of Seattle, 178 Wn. App. 110, 126, 316 P 3d 1070 (2013)), review denied,
183 Wn.2d 1015(2015).
4 Nelson contends that the Board's orders extending his training program were not
supported by substantial evidence and were arbitrary and capricious. We decline to consider
Nelson's claim. Only final agency actions are subject tq judicial review. Wells Fargo Bank, N.A.,
v. Dep't of Revenue, 166 Wn. App. 342, 355-56, 271 P. d 268(2012); accord Bock v. State Bd.
of Pilotage Comm'rs, 91 Wn.2d 94, 99, 586 P.2d 1173 1978).
-10-
No. 75559-5-1/11
The Pilotage Act6 created the Board of ilotage Commissioners and
regulates pilotage in the state of Washington. he act was adopted "to ensure
against the loss of lives, loss or damage to pro erty and vessels, and to protect
the marine environment" and to encourage and develop "Washington's position
as an able competitor for waterborne commerc from other ports and nations of
the world." RCW 88. 6.005. The Board is to be comprised of commissioners
"representing the interests of the people of the -tate of Washington." RCW
88.16.005.6
In addition, the act required that the Bo rd establish rules necessary for
enforcement and administration of the act. RC 88.16.035(1)(a). This included
creating "a comprehensive training program to assist in the training and
evaluation of pilot applicants before final licens ng." RCW 88.16.035(b)(ii). The
final licensing qualifications'for pilot applicants include successful completion of a
board-specified training program and "such ad itional qualifications as may be
determined by the board." RCW 88.16.035(1) b)(i), .090(2)(a)(iv), (4).
The act provides that, upon completion f the training program, "the board
shall evaluate the trainee's performance and k owledge." RCW 88.16.090(4).
I
Accordingly, the Board promulgated regulations setting forth the criteria by which
it evaluates an applicant's performance and k owledge. The Board established
5 Ch. 88.16 RCW.
6 The Board of Pilotage Commissioners include appointed commissioners who are
"pilots licensed under this chapter and actively engaged in piloting upon the waters covered by
this chapter," individuals "actively engaged in the owne hip, operation, or management of deep
sea cargo and/or passenger-carrying vessels," "a repre entative from a recognized environmental
organization concerned with marine waters," and "pers ns interested in and concerned with
pilotage, maritime safety and marine affairs, with broad experience related to the maritime
industry exclusive of experience as either a state licens d pilot or as a shipping representative."
RCW 88.16.010.
No. 75559-5-1/12
that the criteria "shall include, but not be limited to: Performance in the training
program; piloting and ship handling and gener seamanship skills; local
knowledge; and, bridge presence and commun cation skills." WAC 363-116-
080(5). The act further provides that, after car ing out its evaluation, "[t]he
board, as it deems appropriate, may then issu a pilot license, delay the
issuance of the pilot license, deny the issuanc of the pilot license, or require
further training and evaluation." RCW 88.16.0 0(4).
In reviewing the Board's actions, we ke p in mind that the Board "has
considerable discretion" in carrying out its stat torily authorized duties. Bock v.
Bd. of Pilotage Comm'rs, 91 Wn.2d 94, 100, 5 6 P.2d 1173(1978)(citing State
ex rel. Sater v. Bd. of Pilotage Comm'rs, 198 ash. 695, 90 P.2d 238 (1939)).
Here, the Board voted to deny issuance of a license to Nelson based upon
its evaluation of his rierformance and knowled e. The Board indicated that it had
I
evaluated Nelson's candidacy based upon the criteria set forth in WAG 363-116-
080(5). With this criteria in mind, the Board co sidered the Committee's
licensing recommendation,, the Board's review of all of Nelson's training trip
report forms, and the, experience and expertis of the Board's commissioners.
The Board determined that, during Nels n's extended training program, he
had failed to consistently perform regarding th ship-handling criteria essential to
docking and undocking a ship. Relatedly, the oard found as a matter of
concern the number of occasions on which a upervising pilot was compelled to
intervene in Nelson' piloting during training trips taking place late in his training
program.
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No. 75559-5-1/13
The Board also determined that, in deny ng to issue Nelson a license,
"[t]he details of each irip mattered." This is not ble because the Board found that
the major intervention at the Pier 86 grain terminal a month prior to the end of his
fourth training extension was a "very serious" intervention. The Board found that
the Pier 86 incident supported a conclusion that he was not improving and that a
significant risk to the Public was posed by conti uing him in the training program.
In this light, the Board's decision not to Icense Nelson was plainly based
on the facts and circumstances underlying his performance and knowledge.
There was no error.
Nelson next contends that the Board's diecision was arbitrary and
capricious because it treated him differently thr-r it treated other license
applicants. We disagree.
The Board found that there were 18 similarly situated applicants who took
and passed the written and vessel simulator e aminations at the same time that
Nelson did and who were invited to participate in the training program. Of those
applicants, 6 received training extensions. Ulti ately, 3 of the applicants were
not licensed.
The Board further found that the applic nts were evaluated consistently.
The Board determined that each applicant wa required to pass the same written
and vessel simulatori tests and participate in a least 130 observational and
supervised training tips. The Board also dete mined that the same training trip
report forms were used to track the applicants progress during the training
program. In addition, the Board found that th se applicants who struggled were
•
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No. 75559-5-1/14
consistently given additional training trips tailor d to the area of difficulty that the
applicant was experiencing. The Board further found that it had closely
examined the entire training record of each ap licant and considered of great
significance the details of each applicant's training trips. The Board also found
that it had applied the licensing criteria set fort in WAC 363-116-080(5)to each
applicant in deciding whether to license the ap licant.
Given that the Board assessed the appli ants using the same
methodology and criteria, the Board did not ev luate Nelson's performance and
knowledge in a way that was meaningfully diff rent than its evaluation of other
similarly situated applicants. There was no err r.
Accordingly, the Board's decision to de y issuance of a license to Nelson
was not arbitrary or bapricious.7
7 Nelson contends that the Board's decision wa arbitrary and capricious because it did
not consider the statistical evidence that, he claims, sup orts that he was subjected to more
difficult trips than other applicants and that his trip repo ratings and number of interventions
were comparable to applicants who were granted a pilot's license. This contention is unavailing.
The Board's decision is not arbitrary and caprici us merely because the Board elected
not to adopt Nelson's preferred method of evaluating pil t applicants. Rather, the Board
evaluated the applicants' performance and knowledge ising the criteria duly promulgated
pursuant to its statutory authority. Indeed, the Board fo nd that, rather than comparing isolated
types of incidents, it "closely examined the entire record of each trainee" and made its decision
"based on each trainee's performance."
Nelson next contends that the Board's decision to deny him a license constituted the
exercise of arbitrary administrative power in violation of he Fourteenth Amendment to the United
States Constitution as well as article I, section 12 of the Washington Constitution. Because we
reject Nelson's statutory Claim of arbitrary and capriciou action by the Board, we also reject
Nelson's constitutional claim of arbitrary and capricious ction by the Board.
Nelson next contends that the Board's decision to decline to issue him a pilot's license
was arbitrary and capricious because the Board's final .rder relied upon portions of an expert
witness's report that had been withdrawn from evidenc . This claim fails. The AUJ indicated that
those portions of the unredacted report that were exclu ed would not be considered and Nelson
presents no analysis or argument showing that the Boa d relied on the portions of the expert's
report that were withdrawn.
- 14 -
No. 75559-5-1/15
Nelson next contends that the Board vio ated the APA by adopting and
altering the training tr p report form used to rec rd applicants' training trip
performance without first engaging in rule maki g. We disagree.
We review de ovo whether an agency' action constitutes a "rule" under
the APA. "Mt is axiomatic that '[f]or rule-makin procedures to apply, an agency
action or inaction must fall into the APA definiti n of a rule." Budget Rent A Car
Corp. v. Dep't of Licensing, 144 Wn.2d 889, 895, 31 P.3d 1174(2001)(alteration
in original)(quoting Failors,Pharmacy v. Dep't of Soc. & Health Servs., 125
Wn.2d 488, 493, 886 P.2d 147(1994)). Under the APA,"Mule" includes "any
agency order, directiN;(e, or regulation of generll applicability. ..(d) which
establishes, alters, or, revokes any qualifications or standards for the issuance,
suspension, or revocation of licenses to pursu any commercial activity, trade, or
profession." RCW 34.05.010(16). We note th t "an otherwise broad
interpretation of 'rule would 'serve as the strai htjacket of administrative action."
Providence Ph sician Servs. Co. v. D 't of H alth, 196 Wn. App. 709, 726, 384
P.3d 658(2016)(quoting budget Rent A Car, 44 Wn.2d at 898).
The training trip report forms used duni g the time in which Nelson was
participating in the training'program were prov ded by the Board pursuant to
WAC 363-116-078(13).8 The training trip report form set forth the piloting
domains of preparation, navigation, ship handling, and master/pilot/bridge team
trip, the supervising pilot shall complete a trip report form provided by the
8 "After each
board." WAC 363-116-078(13).
-15-
No. 75559-5-1/16
interface and included a four-point scale for rec rding an applicant's performance
in those domains. Over a year into his training program, the Board altered its trip
report form, adding the domains of anchoring, tug escort procedures, and special
circumstances and setting forth a seven-point scale, rather than a four-point
scale.
The piloting domains set forth in the training trip report form are based on
the Board's licensing criteria. Indeed, the trip r port form's piloting domains—
preparation, navigation, ship handling, and ma ter/pilot/bridge team interface,
anchoring, tug escort procedures, and special ircumstances—are plainly
derived from the Board's non-exhaustive list of evaluation criteria—which
includes "[Nerformance in the training progra ; piloting and ship handling and
general seamanship 'skills; local knowledge; a d, bridge presence and
communication skills " WAC 363-116-080(5). he training trip report form thus
did not establish or alter a qualification or stan ard for the issuance of a pilot's
license. Rather, it set forth a recording metho ology to track an applicant's
performance in the training program based on preestablished criteria. Similarly,
the Board's alteration of the point scale in the raining trip report form did not alter
the qualifications or standards for licensing bu , rather, set forth a more nuanced
recording methodology for tracking an applica t's performance.
Thus, the Board's adoption and alterati n of the trip report form does not
fall into the APA definition Of a rule.9
9 Nelson miles upon two decisions by our Supr me Court that, he claims, support his
argument that the Board's adoption and alteration of th training trip report form constituted a rule
under the APA. See Sim son Tacoma Kraft Co. v. De 't of Ecolo , 119 Wn.2d 640,647, 835
P.2d 1030(1992)(adoption of statewide numeric water quality standard for discharge of a
- 16 -
No. 75559-5-1/17
There was no error.
Nelson next contends that, during the c urse of the administrative
proceedings in this matter, the Board engaged n several unlawful procedures or
decision-making processes. Each allegation is discussed in turn.
RCW 34.05.570 provides, in pertinent p rt: "(3) Review of agency orders
!
in adjudicative proceedings: The court shall gr- nt relief from an agency order in
an adjudicative proceeding only if it determines that: ...(c) The agency has
engaged in unlawful procedure or decision-ma ing process, or has failed to
follow a prescribed procedure." (Emphasis ad ed.) Again, this court "shall grant
relief only if it determines that a person seekin judicial relief has been
I
substantially prejudiced by the action complain d of." RCW 34.05.570(1)(d)
(emphasis added).
We do not consider arguments unsupp rted by authority or analysis.
Cowiche Canyon Conservancy v. Bosley, 118 n.2d 801, 809, 828 P.2d 549
(1992).
Nelson first contends that the Board en aged in an unlawful procedure or
decision-making process when a Board comm ssioner engaged in rule making
concerning a proposed rule that would exclud evidence seeking to compare
pollutant constitutes an agency rule because violation o standard would subject violators to
punishment); Failor's Pharmacy, 125 Wn.2d at 495-96 (:Iteration of prescription services
reimbursement schedule constitutes agency rule becau e reimbursement schedule regarded a
benefit conferred by law).
Neither decision supports his claim. The training trip report forms—and any point on the
point-scale that was recorded by a supervising pilot—n ither subject applicants to punishment
nor confer a benefit by law. Rule making was not requited.
-17-
No. 75559-5-1/18
various pilot applicants' performances against ne another as part of the Board's
evaluation of an applicant.
As an initial matter, Nelson's appellate b iefing does not identify which
1
prescribed procedure or decision-making proc ss that the commissioner in
question failed to follow. In this way, Nelson d es not support his claim with
authority or analysis. In addition, Nelson does ot show that the commissioner's
participation in rule making substantially prejud ced him. Indeed, he presents no
evidence that the commissioner in question pa icipated in the deliberations
surrounding the final Order at issue or that the ommissioner's participation in the
rule making procedure impacted the initial or fir al order denying the issuance of
a license to him. There was no error.
Nelson next contends that the Board en aged in an unlawful procedure or
decision-making process when a Board commi sioner, during a jury trial
concerning another plaintiff's suit against the B ard, said that he was "pleased
with the results" of the AL's initial order on re and in Nelson's administrative
matter.
However, Nelson does not present auth rity or analysis regarding the
!
prescribed procedure or decision-making proc ss that, he claims, the
commissioner failed to follow. Even so, Nelso does not show that the
commissioner's comment during the unrelated litigation substantially prejudiced
him. He again presents no evidence that the ommissioner in question
participated in the Board's final order.here at i sue or that the commissioner's
-18-
No. 75559-5-1/19
comment impacted the Board's final order denying issuance of a license to him.
There was no error.
Nelson next contends that the Board ens aged in an unlawful procedure or
decision-making process when, during the initi I adjudicative proceeding in 2010,
the AU dismissed an expert witness due to a ti e constraint before Nelson's
counsel indicated that she had finished her cro s-examination of the witness.
Nelson's appellate briefing also does no present authority or analysis
regarding the prescribed procedure or decision making process in which the AUJ
failed to engage. Moreover, Nelson does not s ow that he was substantially
prejudiced by the AL's decision to dismiss the expert witness. The AU ruled
that Nelson's counsel had successfully authent cated a document during cross-
examination and otherwise had a fair opportuni y to cross-examine the witness in
1 ,
the time allowed. In addition, Nelson's appella e briefing neither identifies the
evidence that he was prevented from eliciting f om the expert witness nor the
manner in which that evidence allegedly impac ed the Board's final order denying
him a license. There was no error.
Nelson next claims that the Board enga ed in unlawful procedure or
decision-making when the AU allowed an exp rt witness's unredacted report to
be placed in the administrative record when po ions of the report had been
previously excluded or withdrawn.
Nelson's appellate briefing does not pre ent authority or analysis
regarding the prescribed procedure or decision-making process in which the AUJ
failed to engage. Moreover, even were we to onsider his claim, Nelson does
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No. 75559-5-1/20
not demonstrate how he was prejudiced by the U's actions. Indeed, he does
not show that the Board, in fact, relied upon th se portions of the expert's report
that were excluded or withdrawn, notwithstandi g that the report was admitted in
an unredacted form. Nelson's claim fails.
Nelson next contends that the Board en aged in an unlawful procedure or
decision-making process when it relied upon a emorandum that summarized
the Committee's recommendation not to licens • him prior to voting on whether to
issue him a pilot's license. This is so, he asse s, because he was not given
access to the memorandum prior to the Board' licensing vote.
Again, Nelson fails to present authority r analysis regarding a procedure
or decision-making process in which the Board failed to engage. Regardless,
even if we considered his claim, Nelson does n t show that the Board's
possession of a sum native'memorandum resu ted in substantial prejudice to
him. Indeed, the information in the memorand m had been previously provided
and presented to the Board and to Nelson duni g the course of his training
program. There is no indiction that any of the information set forth in the
memorandum was new information. No entitlement to relief is established.
Accordingly, Nelson does not establish t at the Board engaged in an
unlawful procedure o decision-making proces during the administrative
proceedings.
Nelson next contends that the Board's c iteria for licensing pilots are
unconstitutionally vague.
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No. 75559-5-1/21
We may grant relief from an agency's orfier when "[t]he order, or the
statute or rule on which the order is based, is i violation of constitutional
provisions on its face or as applied." RCW 34.5.570(3)(a).
"'[A]n administrative rule adopted pursu nt to statutory authority is
presumed valid and should be upheld when co sistent with the enabling statute."
Keene v. Bd. of Accountancy, 77 Wn. App. 849, 854, 894 P.2d 582(1995)
(quoting Ravsten v. Dep't of Labor & Indus., 10 Wn.2d 143, 154, 736 P.2d 265
(1987)). "Similarly, regulations and statutes ar presumed to be constitutional."
Keene,77 Wn. App. at 854 (citing Hale v. Med. Disci lina Bd., 117 Wn.2d
720, 739, 818 P.2d 1062 (1991)).
As with a statue, a rule is void for vagu ness "if it is framed in
terms so vagu that persons 'of commo intelligence must
necessarily gupss at its meaning and di er as to its application."
Haley,[117 Wn.2d]at 739(quoting Con all v. General Constr.
Co., 269 U.S. 385, 391,46 S. Ct. 126, 1 8, 70 L. Ed. 322(1926)).
However, it is hot necessary that a pers n be able to predict with
complete certainty exactly when his or h r conduct would be
classified as priohibited. Haley,[117 Wn 2d] at 740. Moreover,"the
use of vague terms does not necessaril render a statute as a
whole impermissibly vague." Haley,[11 Wn.2d]at 741.
Keene,77 Wn. App. at 854
Indeed, "impossible specificity standard are not required." Heesan Corp.
v. City of Lakewood, 118 Wn. App. 341, 352, 7 P.3d 1003(2003)(citing City of
Seattle v. Eze, 111 Wn.2d 22, 26, 759 P.2d 36 (1988)). This is because,
Iclondemned to the use of words, we can nev r expect mathematical certainty
from our language." Haley, 117 Wn.2d at 740 (quoting Grayned v. City of
Rockford, 408 U.S. 1 4, 110, 92 S. Ct. 2294, 3 L. Ed. 2d 222(1972)).
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No. 75559-5-1/22
Our decision in Chandler v. Office of Insurance Commissioner, 141 Wn.
App. 639, 173 P.3d 275 (2007), is instructive. It issue in Chandler was whether
a statute setting forth that "an applicant for an irLisurance agent's license must be
'a trustworthy person" was unconstitutionally v gue. 141 Wn. App. at 660
(quoting former RCW 48.17.150(1)(f)(2005)). e rejected Chandler's claim,
reasoning that,
The term "untrustworthy" need no be purely objective. And
including a vague term in a statute does not necessarily render it
impermissibly Vague because courts do ot analyze statutory words
in isolation from the Context in which the appear. The common
knowledge and understanding of memb rs of a profession can
clarify a statutOry term, such as untrust orthiness, when no
objective standard is'provided. The pur ose of RCW 48.17.530 is
to protect the public and the profession' standing in the eyes of the
public. In the context of the common kn wledge and understanding
of members of the insurance profession, the terms "trustworthy"
and "untrustworthy" are sufficiently clear to put an insurance agent
on notice that certain conduct is prohibit d.
Chandler, 141 Wn. App. at 661 (footnotes omit ed)(citing State v. Foster, 91
Wn.2d 466, 474, 589 P.2d 789(1979); Hale v Med. Disci lina Bd., 117 Wn.2d
720, 742, 818 P.2d 1062(1991); Cranston v. C ty of Richmond, 40 Ca1.3d 755,
765, 710 P.2d 845, 221 Cal. Rptr. 779 (1985); orrison v. State Bd. of Educ., 1
69))
.10
Ca1.3d 214, 461 P.2d 375, 82 Cal. Rptr. 175(1
Here, the Board relied upon the criteria et forth in WAC 363-116-080(5)
in voting to deny issu ng a license to Nelson. gain, the criteria include, but are
not limited to,"[p]erformance in the training pro ram; piloting and ship handling
10 See also Haley, 117 Wn.2d at 742-43("moral turpitude" in a disciplinary statute not
unconstitutionally vague because "[p]hysicians no less t an teachers, . . . veterinarians,. .. police
officers, . . .[or insurance agents] will be able to determi e what kind of conduct indicates
unfitness to practice their profession").
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No. 75559-5-1/23
and general seamanship skills; local knowledg ; and, bridge presence and
communication skills." WAC 363-116-080(5).
The criteria set forth in WAG 363-116-0 0(5) are not unconstitutionally
vague. First, the licensing criteria adopted by t e Board are informed by the
provisions of chapter 88.16 RCW. Again, the i tended purpose of the chapter is
"to ensure against the loss of lives, loss or damage to property and vessels, and
to protect the marine environment" and to enco rage and develop "Washington's
position as an able competitor for waterborne c mmerce from other ports and
nations of the world." RCVV 88.16.005. In addi ion, the Board is authorized to
issue pilot's licenses so as to ensure "safe, full regulated, efficient, and
competent pilotage service." RCW 88.16.035( )(d). Therefore, the licensing
criteria are informed by the intent of the legislature and the scope of the Board's
statutory authority, both of which emphasize saIfety, environmental protection,
and commercial efficacy.
Furthermore, the licensing criteria are further informed by the common
knowledge and understanding of members of the pilotage profession and the
traits that would render a pilot applicant unfit to pilot a marine vessel.
Thus, the Board's licensing criteria are ot unconstitutionally vague.
Nelson's claim fails.11
11 Nelson relies on three appellate decisions to upport his claim that the Board's
licensing criteria are impermissibly vague. Derb Club nc. v. Becket, 41 Wn.2d 869, 252 P.2d
259 (1953), Sater, 198 Wash.695; Woods v. Dist. of Co umbia Nurses' Examining Bd., 436 A.2d
369(D.C. App. 1981).
Nelson's reliance is unavailing. Unlike the criteria here at issue, the challenged
regulation or statute in the decisions relied upon by Nelson either set forth no standard at all or
set forth a standard devoid of any concrete meaning. See Derby Club, 41 Wn.2d at 877 (statute
"prescribe[d] no standards by which the liquor control bo rd may determine who is and who is not
entitled to a license to operate a bottle club")(emphasis dded)); Sater, 198 Wash. at 701
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No. 75559-5-1/24
Nelson next contends that the Board's decision denying him a pilot's
license deprived him of his right to due proces This is so, he asserts, because
the period of time between the completion of his training program and the
Board's final order on remand denied him a m aningful opportunity to be heard in
a meaningful time.
"Procedural dUe process requires notice and an opportunity
to be heard "at a meaningful time and i a meaningful manner."
[In Re Det. of Morgan, 180 Wn.2d [312,1 320[, 330 P.3d 774(2014)]
(quoting Amunrud Iv. Bd. of Appealsl, 1 8 Wn.2d [208,] 216[, 143
P.3d 571 (2006)])(quoting Mathews v. ldrid e, 424 U.S. 319, 333,
96 S. Ct. 893, 47 L. Ed. 2d 18 (1976))). The process due depends
on what is fair in a particular context." an, 180 Wn.2d at 320.
In Mathews, the United States Supreme Court articulated a
balancing test to aid in determining whe ,and to what extent,
procedural protections are required:
[D]ue process generally requires consideration of
three distinct factors: First, the private interest that will
be affected by the official action; econd, the risk of
an erroneous deprivation of such interest through the
procedures used, and the probab e value, if any, of
additional or substitute procedural safeguards; and
finally, the Government's interest including the
function involved and the fiscal arid administrative
burdens that the additional or su stitute procedural
requirement would entail.
424 U.S. at 335.
In re Det. of Hatfield, 191 Wn. App. 378, 396-9 , 362 P.3d 997(2015).
Here, Nelson made use of the administr tive procedures that were
available to him to challenge the Board's order . The amount of time that passed
(interpretation of act unconstitutional if it permits Board " o issue a license to any applicant they
may believe to be qualified"); Woods,436 A.2d at 373-7 (regulation allowing board to issue a
license "[u]pon showing of cause satisfactory to it" unco stitutional because no standard defined
what causes were satisfactory for a license).
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No. 75559-5-1/25
between hearings in this matter was reasonabl . There is no indication that
Nelson was unable to be heard in a meaningfu time.
Moreover, in asserting that an unconstit tional denial of due process
resulted from the time periOd taken to decide vJhether to issue him a pilot's
license, Nelson argues only the first of the thre Mathews factors: that he had a
property and liberty interest in his trainee licen e and training stipend. However,
even assuming that he has such an interest, N lson does not attempt to
establish the remaining two factors, as require by Mathews. Rather, he asserts
that, because of the amount of time between t e end of his training program, the
Board's vote to not license him, and the compl tion of the administrative and
judicial review of the Board's final order, he wa necessarily deprived due
process. By failing to engage in a suitable ana ysis of the Mathews factors,
Nelson fails to establish a due process claim.12 There was no error.
Nelson next contends that he was denie a fair hearing before the Board
because, he alleges, the board review officers ho reviewed the AL's initial
orders in this matter engaged in unlawful ex pa e communications with the
Board's legal counsel.
12 Nelson also contends that the Board denied h m due process when it ended his
training program, thereby depriving him of his trainee lic nse and a $6,000 per month stipend. To
support this proposition, Nelson, in a footnote, relies up n two cases.
Nelson fails to present argument or analysis sh wing the applicability of this authority to
the matter here at issue. RAP 10.3(a)(5),(6). Moreove -placing an argument... in a footnote
is, at best, ambiguous or equivocal as to whether the iss, e is truly intended to be part of the
appeal." Pub. Util. Dist., 184 Wn. App. at 84 n.49 (internal quotation marks omitted)(quoting
Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn App. 474, 497, 254 P.3d 835 (2011)).
We decline to consider this aspect of Nelson's claim.
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No. 75559-5-1/26
RCW 34.05.455(1) reads:"A presiding sificer may not communicate,
directly or indirectly, regarding any issue in the proceeding other than
communications necessary,to procedural aspe ts of maintaining an orderly
process, with any person employed by the age cy without notice and opportunity
for all parties to participate,'except as provided in this subsection." (Emphasis
added.)
Nelson first contends that an unlawful e parte communication occurred
when the board review officers in question atte ded an open-door meeting during
which the Board's legal counsel mentioned the procedural posture and calendar
dates regarding Nelson's superior court litigati n against the Board.
The subjects mentioned by the Board's legal counsel were not a
substantive communication regarding an issue in Nelson's administrative
proceeding. There is no indication that a subst ntive discussion of the issues
presented in his administrative matter took pla e at the open-door meeting in
question. Moreover, Nelson fails to show that e suffered from actual or even
probable bias. Nelson's claim fails.
Nelson next contends that a board revie officer engaged in unlawful ex
parte communication with the Board's legal co nsel during a closed-door
meeting relating to litigation matters.
The Board indicated that the closed-doo meeting identified by Nelson
concerned litigation relating'to another plaintiff' lawsuit against the Board and
that his administrative matter was not discusse therein. Nelson does not
present evidence rebutting the Board's claim t at the meeting concerned
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No. 75559-5-1/27
litigation unrelated to his administrative matter. In addition, he does not provide
evidence showing that the board review officer s participation in the closed-door
meeting prejudiced him. Nelson's claim fails.1-
Affirmed.
We concur:
6reow,y
13 Nelson next contends that the AU, during his administrative proceeding, improperly
used the arbitrary and capricious standard in reviewing he Board's decision not to license him.
To the contrary, the AL's use of the arbitrary or caprici us standard was proper. Bock, 91
Wn.2d at 100 (citing Sater, 198 Wash. 695). There wa no error.
Nelson next asserts that "remand to the Board' administrative process is futile" because
the decision-makers are "entrenched" and "will not consider comparator evidence" or "whether
fair and equitable licensing procedures" were used. Fo this proposition, he cites to RCW
34.05.534(3)(b), relating to exhaustion of remedies prio to filing his petition for review. Whether
Nelson exhausted—or was required to exhaust—availa le administrative remedies prior to filing
his petition for review does not bear on whether an ord r from this court remanding the decision
is futile. Nelson does not present further argument or a alysis regarding this claim. We thus
decline to consider it In any event, given our ultimate isposition of this appeal, the claim is of no
moment.
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