Fisheries Engineers Inc. v. State Of Washington ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
November 10, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
FISHERIES ENGINEERS, INC., a No. 53614-5-II
Washington corporation, PAUL TAPPEL, an
individual and professional engineer,
Appellants,
v. UNPUBLISHED OPINION
THE STATE OF WASHINGTON,
GOVERNOR JAY INSLEE, in his official
capacity, ATTORNEY GENERAL BOB
FERGUSON, in his official capacity, and
BOARD OF REGISTRATION FOR
PROFESSIONAL ENGINEERS & LAND
SURVEYORS, an agency of the State of
Washington,
Respondents.
MAXA, J. – Paul Tappel and Fisheries Engineers, Inc. (collectively, Tappel) appeal the
trial court’s dismissal on summary judgment of a petition for declaratory judgment and
injunctive relief they filed against the Board of Registration for Professional Engineers & Land
Surveyors, the State of Washington, Governor Jay Inslee, and Attorney General Bob Ferguson
(collectively, the Board). Tappel alleges that the Board has failed to enforce the Professional
Engineers’ Registration Act, chapter 18.43 RCW (PERA), against persons who use the title
“engineer” but who are not licensed professional engineers.
No. 53614-5-II
The Board moved to dismiss Tappel’s lawsuit under CR 12(c) for lack of standing. The
trial court decided to bypass that issue and other procedural issues and to address the merits of
Tappel’s claim. On appeal, the Board again argues that Tappel has no standing.
Standing is a threshold issue, and we need not address the merits of this appeal if Tappel
does not have standing. However, the trial court did not address standing. And whether Tappel
has standing to bring this lawsuit may involve factual issues that must be resolved in the trial
court. Therefore, we remand for the trial court to determine whether Tappel has standing to
pursue its claim against the Board.
FACTS
Tappel is a professional engineer, licensed to practice in Washington. He also is the
owner of Fisheries Engineers, Inc. Fisheries Engineers creates designs for fisheries improvement
projects, such as fish passage, fish hatcheries, salmon rearing ponds, and other similar projects.
Tappel filed a complaint with the Board regarding a state employee who used the title
“Forest Practices Engineer” even though the employee was not registered as a licensed
professional engineer. The Board dismissed his complaint, noting lack of evidence of any
violation of the PERA and stated it would only pursue investigations when an unregistered
person was using the titles “professional engineer,” “structural engineer,” or “professional land
surveyor.”
Tappel subsequently filed a lawsuit against the Board, seeking a declaration that the
PERA prohibited any person who was not a licensed professional engineer from using the title
“engineer.” Tappel based his claim on RCW 18.43.010, which requires that all persons who
practice engineering be qualified and registered as a professional engineer and prohibits an
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No. 53614-5-II
unregistered person from using “any title or description tending to convey the impression that he
or she is a professional engineer.”
Tappel filed a motion for summary judgment, requesting that the trial court grant his
request for injunctive and declaratory relief because the plain statutory language of the PERA
states that use of the title “engineer” tends to convey the impression that the person using the title
is a licensed professional engineer. The Board subsequently filed a motion to dismiss on
pleadings under CR 12(c) on multiple grounds, including lack of standing, failure to exhaust
administrative remedies, and common law quasi-prosecutorial immunity.
At a hearing on the motions, the trial court decided to bypass the threshold issue of
standing and other procedural issues and directly address the statutory construction issue. The
court granted summary judgment in favor of the State on the merits and dismissed Tappel’s
petition. Tappel appeals the trial court’s summary judgment order.
ANALYSIS
A. PERA PROVISIONS
The Uniform Regulation of Business and Professions Act, chapter 18.235 RCW
(URBPA), authorizes the Department of Licensing and assorted boards, such as the Board, to
regulate their respective professions and discipline individuals and businesses who violate the
law. See RCW 18.235.005; RCW 18.235.020. The PERA contains regulatory provisions
regarding engineers. Chapter 18.43 RCW.
RCW 18.43.010 states:
In order to safeguard life, health, and property, and to promote the public welfare,
any person in either public or private capacity practicing or offering to practice
engineering or land surveying, shall hereafter be required to submit evidence that
he or she is qualified so to practice and shall be registered as hereinafter provided;
and it shall be unlawful for any person to practice or to offer to practice in this state,
engineering or land surveying, as defined in the provisions of this chapter, or to use
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No. 53614-5-II
in connection with his or her name or otherwise assume, use, or advertise any title
or description tending to convey the impression that he or she is a professional
engineer or a land surveyor, unless such a person has been duly registered under
the provisions of this chapter.
(Emphasis added.)
Former RCW 18.43.020 (2007) contains the following definitions that “apply throughout
this chapter”:
(1) “Engineer” means a professional engineer as defined in this section.
(2) “Professional engineer” means a person who, by reason of his or her special
knowledge of the mathematical and physical sciences and the principles and
methods of engineering analysis and design, acquired by professional education
and practical experience, is qualified to practice engineering as defined in this
section, as attested by his or her legal registration as a professional engineer.
Former RCW 18.43.020(1), (2).1
In addition, former RCW 18.43.020(5)2 defines the “practice of engineering” as follows:
(a) . . . any professional service or creative work requiring engineering education,
training, and experience and the application of special knowledge of the
mathematical, physical, and engineering sciences to such professional services or
creative work as consultation, investigation, evaluation, planning, design, and
supervision of construction for the purpose of assuring compliance with
specifications and design, in connection with any public or private utilities,
structures, buildings, machines, equipment, processes, works, or projects.
(b) A person shall be construed to practice or offer to practice engineering, within
the meaning and intent of this chapter, who practices any branch of the profession
of engineering; or who, by verbal claim, sign, advertisement, letterhead, card, or in
any other way represents himself or herself to be a professional engineer, or through
the use of some other title implies that he or she is a professional engineer; or who
holds himself or herself out as able to perform, or who does perform, any
engineering service or work or any other professional service designated by the
practitioner or recognized by educational authorities as engineering.
1
In 2019, the legislature amended RCW 18.43.020 and renumbered the definitions. The
definition of “engineer” is now found at RCW 18.43.020(3) and the definition of “professional
engineer” is now found at RCW 18.43.020(10).
2
The definition of “practice of engineering” is now found at RCW 18.43.020(8).
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No. 53614-5-II
(Emphasis added.)
The PERA identifies two general categories of licenses: professional engineers and
professional land surveyors. RCW 18.43.040(1)(a), (c). The PERA also identifies structural
engineers as a specific sub-category of professional engineers. RCW 18.43.040(1)(a)(iii).
Finally, the PERA recognizes engineers-in-training and land-surveyors-in training categories for
persons who have not completed all the licensing requirements. RCW 18.43.040(1)(b), (d).
The Board is authorized under the PERA to take disciplinary action against individuals
who violate any PERA provisions. RCW 18.43.105(5).
B. FAILURE TO ADDRESS STANDING IN THE TRIAL COURT
The Board argues that Tappel lacks standing under either the Uniform Declaratory
Judgments Act, chapter 7.24 RCW (UDJA), or the Administrative Procedure Act, chapter 34.05
RCW (APA), to challenge the Board’s interpretation of the PERA. However, the trial court did
not address the Board’s standing argument. Tappel argues that we should address the merits of
his claim and remand for the trial court to address standing if we reverse the trial court’s
summary judgment order.3
We conclude that the trial court should address the threshold issue of standing rather than
having us consider standing for the first time on appeal based on a limited record.
There is a two-part test for standing under the UDJA. Lakehaven Water and Sewer Dist.
v. City of Federal Way, 195 Wn.2d 742, 769, 466 P.3d 213 (2020). First, the plaintiff must be
within the zone of interest that the challenged statute protects or regulates. Id. Second, the
plaintiff must show some injury in fact. Id.3
Tappel also stated in a footnote that we could address standing for the first time on appeal for
the sake of judicial economy.
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No. 53614-5-II
The APA has three requirements for standing:
(1) The agency action has prejudiced or is likely to prejudice that person;
(2) That person’s asserted interests are among those that the agency was required
to consider when it engaged in the agency action challenged; and
(3) A judgment in favor of that person would substantially eliminate or redress the
prejudice to that person caused or likely to be caused by the agency action.
RCW 34.05.530. The second prong is the “zone of interest” requirement and the first and third
prongs together are the “injury in fact” requirements. Freedom Found. v. Bethel Sch. Dist., 14
Wn. App. 2d 75, 86, 469 P.3d. 364 (2020). As a result, the APA test is nearly identical to the
UDJA test. City of Burlington v. Wash. Liquor Control Bd., 187 Wn. App. 853, 873 n.16, 351
P.3d 875 (2015).
Standing involves whether a plaintiff is entitled to have a court decide the merits of a
dispute. See Wash. State Nurses Ass’n. v. Cmty. Health Sys., Inc., ___ Wn.2d ___, 469 P.3d 300,
309 (2020). Therefore, standing is a threshold issue. In re Estate of Becker, 177 Wn.2d 242,
246, 298 P.3d 720 (2013). If a plaintiff does not have standing to file a lawsuit, we cannot
address the merits of the plaintiff’s claim. Trinity Universal Ins. Co. of Kan. v. Ohio Cas. Ins.
Co., 176 Wn. App. 185, 199, 312 P.3d 976 (2013).
In general, “[i]f the issue of standing is not submitted to the trial court, it may not be
considered on appeal.” Tyler Pipe Indus., Inc. v. Dep’t of Revenue, 105 Wn.2d 318, 327, 715
P.2d 123 (1986), vacated on other grounds, 483 U.S. 232, 107 S. Ct. 2810, 97 L. Ed. 2d 199(1987). In the typical case involving this principle, the party arguing standing did not raise the
issue in the trial court. The situation here is different. The State filed a motion in the trial court
to dismiss based on standing, but the trial court decided not to consider the issue.
We are hesitant to address standing for the first time on appeal. Whether Tappel has
standing may depend on factual issues, particularly with regard to the “injury in fact”
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No. 53614-5-II
requirement. The trial court is in a better position to resolve these issues. Therefore, we remand
for the trial court to determine whether Tappel has standing to bring this lawsuit.
C. OTHER ISSUES ON REMAND
1. Statutory Immunity
For the first time on appeal, the Board argues that it is immune from suit under RCW
18.235.190. In its motion to dismiss before the trial court, the Board argued that it was entitled
to common law quasi-prosecutorial immunity, not statutory immunity. On remand if the trial
court rules that Tappel has standing, the Board can argue that it has immunity under RCW
18.235.190.
2. Merits of Claim
On appeal, the parties appear to have changed their original positions regarding an
unlicensed person’s use of the title “engineer.” In his complaint, Tappel asserted that the PERA
precluded any unregistered person from using the title “engineer.” On appeal, Tappel’s position
is that not every use of the title “engineer” by a nonregistered person violates the PERA. Tappel
now argues that the PERA must be interpreted to prohibit unlicensed persons from using the title
“engineer” only when that person provides engineering services as defined in the PERA.
When the Board denied Tappel’s original complaint, the Board stated that it would
pursue investigations of unlicensed persons only when the titles “professional engineer,”
“structural engineer,” or “professional land surveyor” were being used. On appeal, the Board
now takes the position that when a nonregistered person uses the title “engineer,” the Board will
consider on an individual basis whether the person’s conduct and title together improperly
conveys the impression that the person is a licensed professional engineer.
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No. 53614-5-II
It appears that although the positions of the parties are not identical, they are similar. On
remand if the trial court rules that Tappel has standing and the Board does not have immunity,
the parties can file new summary judgment motions on the merits in light of these changing
positons.
CONCLUSION
We remand for the trial court to determine whether Tappel has standing to pursue its claim
against the Board.
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.
MAXA, J.
We concur:
LEE, C.J.
SUTTON, J.
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