{ "id": 4335187, "name": "ROBERT NARVAEZ, Petitioner-Appellant, v. NEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS, and SOUTHWEST TYRE LTD., Respondents-Appellees", "name_abbreviation": "Narvaez v. New Mexico Department of Workforce Solutions", "decision_date": "2013-06-19", "docket_number": "No. 34,169; Docket No. 32,149", "first_page": "493", "last_page": "499", "citations": [ { "type": "official", "cite": "2013-NMCA-079" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "304 P.3d 427", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-055", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4334169 ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0031-01" ] }, { "cite": "92 N.M. 480", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557128 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "481" }, { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0480-01" ] }, { "cite": "1999-NMCA-088", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257651 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0549-01" ] }, { "cite": "284 P.3d 1118", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "opinion_index": 0 }, { "cite": "2012-NMCA-082", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4190469 ], "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0319-01" ] }, { "cite": "2003-NMCA-014", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15654 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0128-01" ] } ], "analysis": { "cardinality": 681, "char_count": 19154, "ocr_confidence": 0.78, "pagerank": { "raw": 6.174109876929349e-08, "percentile": 0.3833528518458026 }, "sha256": "954f6b7aeb82a86e7c329285c07d0d735361d50448b16427751c06d97ca70e14", "simhash": "1:5e9c0a8d9fc465dc", "word_count": 2934 }, "last_updated": "2023-07-14T21:50:37.461651+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JAMES J. WECHSLER, Judge", "WE CONCUR:", "MICHAEL D. BUSTAMANTE, Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "ROBERT NARVAEZ, Petitioner-Appellant, v. NEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS, and SOUTHWEST TYRE LTD., Respondents-Appellees." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\nThe Department of Workforce Solutions (the Department) granted Petitioner Robert Narvaez unemployment benefits for thirteen months before disqualifying him from benefits and requiring that he repay the benefits because his misconduct caused his employment separation. We reverse the district court\u2019s order upholding the Department\u2019s action because the Department did not proceed in accordance with the Unemployment Compensation Law, NMSA 1978, \u00a7\u00a7 51-1-1 to -59 (1982, as amended through 2012) and the Department\u2019s regulations.\nBACKGROUND\nPetitioner was employed by Respondent Southwest Tyre Ltd. (Employer). Employer terminated Petitioner and another worker for fighting. Petitioner filed a claim with the Department for unemployment benefits on May 16,2010, his last day of work. Employer did not respond to the Department\u2019s request for information concerning the termination. The Department granted benefits for the benefit year ending May 14, 2011, beginning the week ending May 29, 2010. Petitioner filed a second claim for benefits for a new benefit year on May 15, 2011. Employer again did not contest the claim.\nOn June 28, 2011, the Department initiated telephone contact with Petitioner and Employer. A memorandum concerning the telephone contact with Employer indicates that the telephone contact was the first time Employer responded to the Department concerning the reason for Petitioner\u2019s separation from employment. Employer informed the Department, as did Petitioner at that time and in his original claim, that Petitioner was fired for fighting with another employee.\nOn the same day, June 28, 2011, the Department sent Petitioner a notice of claim determination, informing him that he was disqualified from receiving benefits because of his misconduct for fighting on the job. It also sent Petitioner an overpayment notice, informing him that he was liable to repay the Department for fifty-eight weeks of benefits in the amount of $27,902.\nPetitioner filed an administrative appeal. An administrative law judge determined on behalf of the Department\u2019s appeals tribunal that Petitioner was disqualified from benefits but did not address overpayment. The Department\u2019s board of review affirmed the decision. The district court issued a writ of certiorari, and, upon review of the administrative proceeding, upheld the decision of the board of review. It concluded that Petitioner did not appeal the overpayment notice.\nPetitioner filed a notice of appeal in which he states that he is contemporaneously filing a petition for writ of certiorari in order to ensure his appellate rights. Without objection, we consider the appeal. Petitioner argues several issues relating to the Department\u2019s failure to follow the time lines of the Unemployment Compensation Law and the Department\u2019s regulations, the Department\u2019s failure to accept Petitioner\u2019s overpayment appeal, due process, and estoppel. Because it is dispositive of the case, we address only Petitioner\u2019s argument concerning the Unemployment Compensation Law and the regulations.\nSTANDARD OF REVIEW\nWhen reviewing an administrative decision regarding unemployment benefits, \u201c[w]e independently employ a whole record standard of review and will affirm the agency\u2019s decision only if it is supported by the applicable law and substantial evidence in the record as a whole.\u201d Miss. Potash, Inc. v. Lemon, 2003-NMCA-014, \u00b6 7, 133 N.M. 128, 61 P.3d 837. \u201cThe party challenging an agency decision bears the burden on appeal of showing that agency action falls within one of the oft-mentioned grounds for reversal including whether the decision is arbitrary and capricious; whether it is supported by substantial evidence; and whether it represents an abuse of the agency\u2019s discretion by being outside the scope of the agency\u2019s authority, clear error, or violative of due process.\u201d Id. \u00b6 8 (internal quotation marks and citation omitted). When engaging in whole record review, we review legal questions de novo, including whether the agency misinterpreted or misapplied its statutory or administrative governing provisions. See AMREP Sw. Inc. v. Sandoval Cnty. Assessor, 2012-NMCA-082, \u00b6 7, 284 P.3d 1118.\nREQUIREMENTS OF THE UNEMPLOYMENT COMPENSATION LAW AND DEPARTMENT REGULATIONS\nUnder the Unemployment Compensation Law, persons who become unemployed \u201cthrough no fault of their own\u201d may receive benefits from the unemployment compensation fund. Sections 51-1-3, 51-1-4(A). They must make a claim for benefits in accordance with regulations prescribed by the secretary of the Department. Section 51-1-8(A). A Department claims examiner must promptly review the application to make determinations that include a claimant\u2019s eligibility and disqualification. Section 51-1-8(B). A person is disqualified under the Unemployment Compensation Law and not eligible to receive benefits if the person either left employment voluntarily without good cause or was discharged for misconduct. Section 51-1-7(A)(1), (2).\nThe Unemployment Compensation Law further provides procedures for the processing and appeal of claims. The claims examiner must \u201cpromptly notify the claimant and any other interested party of the determination [of the claim] and the reasons therefor.\u201d Section 51-1-8(B). The claimant\u2019s most recent employer is an interested party. Section 51-1-8(C)(1). The claimant and interested parties have fifteen days from the date of the \u201cnotification or mailing of the determination\u201d to appeal to an appeals tribunal hearing officer. Section 51-1-8(B). If no appeal is filed, the determination of the claims examiner is final, subject to a redetermination by the claims examiner of a nonmonetary determination made based on additional information not previously available within twenty days of the original nonmonetary determination. Id. Further appeals are to the secretary and the board of review. Section 51-1-8(F), (H).\nThe Department\u2019s regulations effective at the time of this case address the filing, determination, and redetermination of claims. 11.3.300.301, 308 NMAC (1/1/03) (amended 11/15/12). The regulations require that, after a claim is filed, the Department notify the employer, which is then obligated to \u201cprovide the [Department with full and complete information in response to the inquiry.\u201d 11.3.300.308(A) NMAC. If the employer does not provide a timely response and the application does not raise a nonmonetary issue, the Department may immediately commence benefits without additional notice. 11.3.300.308(C) NMAC. The regulations further provide that an employer\u2019s failure to provide a \u201csubstantive response\u201d within ten days \u201cshall be an irrevocable waiver of the employer\u2019s right to be heard before a determination is made[.]\u201d 11.3.300.308(C)(2) NMAC. The Department is then obligated to \u201cimmediately transmit to the parties the determination and the reason for it\u201d and \u201cadvise the parties of the right to appeal.\u201d 11.3.300.308(C)(3) NMAC. However, if \u201ca separation issue is timely raised,\u201d the Department must adjudicate the claim before sending the determination. 11.3.300.308(C)(4) NMAC. The regulations permit a redetermination of a nonmonetary determination only if specific criteria that we will later discuss in this opinion are met. 11.3.300.308(D) NMAC.\nAPPLICATION OF UNEMPLOYMENT COMPENSATION LAW AND REGULATIONS TO THIS CASE\nMay 16, 2010 Claim\nThe principal difficulty in this case arises from the Department\u2019s failure to provide a specified notice of determination with respect to Petitioner\u2019s May 16, 2010 claim. The Department admits that \u201c[a]s a result of an administrative error, a claim determination was not issued in May 2010.\u201d It states that the \u201cfirst and only\u201d notice of claim determination in the administrative record concerning the separation issue is the one dated June 28, 2011. It appears to argue that, as a result, all time frames set forth in the regulations run from June 28, 2011.\n\u25a0 However, upon receiving the May 16, 2010 application, the Department did transmit to Employer the required notification and request for separation information. It began providing benefits to Petitioner effective May 29, 2010, the conclusion of the ten-day period for Employer to respond. Although it failed to provide a notice of claim determination, it did send Petitioner a reemployment services program notice dated June 16,2010 that informed Petitioner that the Department had \u201cdetermined that [he is] eligible for unemployment insurance benefits.\u201d An unemployed person is only entitled to receive benefits if the person participates in reemployment services based on certain findings by the Department. 11.3.300.321 NMAC (1/1/03) (amended 11/15/12).\nThe Unemployment Compensation Law and the regulations emphasize the prompt handling of claims. Section 51-1-8(B) requires the Department to promptly examine claims and promptly provide notification of a determination and the reasons for the determination. The regulations require the Department to \u201cimmediately\u201d provide such notification. When an employer fails to respond to the Department\u2019s notice of claim within ten days, a determination shall be made based on the information in the application. 11.3.300.308(C)(3) NMAC. Only if a separation issue is \u201ctimely raised\u201d may the Department delay such notification of a determination until after the Department has adjudicated the claim. 11.3.300.308(C)(4) NMAC.\nAs to Petitioner\u2019s claim, Employer did not respond to the notice of claim and no separation issue had been timely raised. The Department did not request additional information from Employer, Petitioner, or witnesses. See 11.3.300.308(B) NMAC (\u201cPrior to issuance of a determination ..., the [Department may request additional information from the employer, the claimant or witnesses . . . relative to the separation of the claimant from employment.\u201d). The Department was obligated to make a determination and provide Petitioner and Employer notice of its determination. It concedes that it failed to \u201cissue\u201d its determination. It does not say that it did not make the determination. Notwithstanding its failure to provide a notice of claim determination, the Department did inform Petitioner that he was determined to be eligible for benefits and provided benefits commencing May 29, 2010 continuously for thirteen months. The Department\u2019s administrative error in failing to follow its required procedures and issue a claim determination does not negate the circumstances that indicate that it had made the determination that Petitioner was entitled to benefits.\nAn administrative agency is bound by its own regulations. See Atlixco Coalition v. Cnty. of Bernalillo, 1999-NMCA-088, \u00b6 16, 127 N.M. 549, 984 P.2d 796; see also Hillman v. Health & Soc. Servs. Dep\u2019t, 92 N.M. 480, 481, 590 P.2d 179, 180 (Ct. App. 1979). The circumstances of this case demonstrate the rationale for the requirement of promptness and the time frame of the regulations. If the Department could fail to follow the time frame for notice, a claim could continue indefinitely without being resolved. By requiring specific action by the Department within a specific time frame, the regulations avoid the uncertainty that could result from the lack of prompt action by the Department. An administrative error does not alter the failure to follow the regulations that require the Department to act promptly on claims. It certainly does not extend the time limits of the regulations.\nThis case is different from Millar v. New Mexico Department Of Workforce Solutions, 2013-NMCA-055, 304 P.3d 427. In Millar, the department did not provide immediate notice that the employer had appealed a claim determination, and the claimant did not receive notice of the appeal until more than five months later when the department sent notice of hearing. Id. \u00b6 3. The claimant appealed the department\u2019s overpayment determination. Id. \u00b6 4. This Court addressed the issue of whether the hearing conducted more than five months after the claimant had been awarded benefits violated state and federal law. Id. \u00b6 10. We concluded that the Unemployment Compensation Law merely incorporated the federal regulation at issue by reference and that the federal regulation that required hearings to be commenced and decided \u201cwith the greatest promptness that is administratively feasible\u201d merely established nonmandatory guidelines. Id. \u00b6\u00b6 13-14 (internal quotation marks and citation omitted). In this case, to the contrary, we address the Department\u2019s regulations that provide specific mandatory time frames.\nThe result of the administrative process in this case was that Petitioner\u2019s May 16, 2010 claim was determined in his favor. There was no appeal. While we agree with the Department that Employer did not waive its right to be heard in an appeal because it did not respond to the Department\u2019s notice within ten days, we assume that the Department also did not transmit notice of its determination to Employer. It thereby essentially foreclosed Employer\u2019s opportunity to be heard by its administrative error.\nConnection of the May 15, 2011 Claim to the May 16, 2010 Claim\nThe Department assigned Petitioner\u2019 s May 16, 2010 claim a benefit year ending May 14, 2011. See \u00a7 51-1-42(P) (2007) (amended 2010) (defining \u201cbenefit year\u201d in part as \u201cthe one-year period beginning with the first day of the first week of unemployment with respect to which the individual first files a claim for benefits . . . and thereafter the one-year period beginning with the first day of the first week of unemployment with respect to which the individual next files such a claim for benefits after the termination of the individual\u2019s last preceding benefit year}.]\u201d). On May 15,2011, Petitioner filed a new claim for the next benefit year.\nThe Department followed its procedures and provided notice of the claim and a request for separation information to Employer. The form in the record titled \u201cEmployer\u2019s Statement\u201d is not completed in any way. It is not clear from the record that the Department\u2019s form intended to elicit information from Petitioner was sent to him. Although it reflects that it was sent May 23, 2011, it states \u201cdo not send\u201d in three places on the form in connection with questions concerning Petitioner\u2019s separation from employment.\nOn May 25, 2011, the Department provided Petitioner with a notice of claim determination, informing him that it denied his new claim because he had not returned to work and earned five times his new weekly benefit amount as required by Section 51-1-5(B). The Department nevertheless determined that it would continue to provide Petitioner emergency unemployment compensation on his old claim if he was otherwise eligible.\nOn June 28,2011, a representative of the Department made telephone calls to both Petitioner and Employer concerning Petitioner\u2019s separation from employment. The Department on the same day sent its notice of claim determination, advising Petitioner that because he was discharged from employment for fighting on the job, which was misconduct, he was disqualified from benefits effective the calendar week ending May 22, 2010.\nBecause it disqualified Petitioner from benefits effective the calendar week ending May 22, 2010, the June 28, 2011 notice of claim determination acted on Petitioner\u2019s May 16, 2010 claim, not the May 15, 2011 claim. Petitioner does not argue that the Department erred in its determination of the May 15, 2011 claim, and we do not address that claim determination in this opinion. The two claims become intertwined, however, because the Department took action on the May 16, 2010 claim only after Petitioner filed the May 15, 2011 claim.\nBut the regulations do not authorize the Department\u2019s June 28, 2011 action in connection with the May 16, 2010 claim. As we have discussed, the Department had determined the May 16, 2010 claim and provided benefits. This is not a claim based on false statements or misrepresentations, which, under the Unemployment Compensation Law and the regulations, are void. Section 51-1-38(D); 11.3.300.314(A) NMAC (1/1/03) (amended 11/15/12). The law and regulations permit the Department\u2019s action re-opening Petitioner\u2019s May 16, 2010 claim only upon redetermination. The criteria for redetermination include:\n(1) The adjudicator perceives the need for reconsideration either as a result of a protest by an interested party or on the adjudicator\u2019s own initiative due to new or additional information received. Examples of the type of errors which may prompt a redetermination are ... an additional fact not available to the adjudicator at the time of the determination excluding those facts the employer and claimant had the opportunity to provide prior to the initial determination^]\n(4) A redetermination can be issued no later than the twentieth calendar day from the original determination date or twenty days from the date of the first payment deriving from the original determination, whichever event occurs latest.\n11.3.300.308(D) NMAC.\nFirst, we do not consider the information obtained in the June 28, 2011 telephone calls to be the type of new or additional information contemplated in the regulations. Information that Petitioner or Employer could have provided prior to the initial determination is not sufficient. The information the Department received in the telephone calls was information it could have received in the initial process had Employer timely responded or if the Department had conducted a timely investigation. Second, a redetermination was not timely. The Department may issue a redetermination only within the later of twenty calendar days from the original determination or twenty days from the date of the first payment made under the original determination. 11.3.300.308(D)(4) NMAC. We do not know the precise date of the original determination because of the Department\u2019s administrative error in failing to provide notice of it. The first payment was made on the week ending May 29, 2010. A determination made approximately thirteen months after either triggering event does not fall within the time limits of the regulations.\nCONCLUSION\nThe Department\u2019s regulations provide specific time frames for the Department to act on claims. They provide a window for the Department to make a determination about entitlement to benefits. The Department did not act in accordance with the time frames of its regulations in its determination that Petitioner was not entitled to benefits. We reverse the decision of the board of review.\nIT IS SO ORDERED.\nJAMES J. WECHSLER, Judge\nWE CONCUR:\nMICHAEL D. BUSTAMANTE, Judge\nM. MONICA ZAMORA, Judge", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "New Mexico Legal Aid Alicia Clark Albuquerque, NM for Appellant", "New Mexico Department of Workforce Solutions Office of General Counsel Marshall J. Ray Rudolph P. Arnold Albuquerque, NM for Appellees" ], "corrections": "", "head_matter": "Certiorari Denied, June 19, 2013,\nNo. 34,169\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-079\nFiling Date: April 23, 2013\nDocket No. 32,149 (consolidated with 32,256)\nROBERT NARVAEZ, Petitioner-Appellant, v. NEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS, and SOUTHWEST TYRE LTD., Respondents-Appellees.\nNew Mexico Legal Aid Alicia Clark Albuquerque, NM for Appellant\nNew Mexico Department of Workforce Solutions Office of General Counsel Marshall J. Ray Rudolph P. Arnold Albuquerque, NM for Appellees" }, "file_name": "0493-01", "first_page_order": 509, "last_page_order": 515 }