{ "id": 4240453, "name": "NEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS, Petitioner-Appellant, and ALBERTSONS, Employer, v. NANCY GARDU\u00d1O, Respondent-Appellee", "name_abbreviation": "New Mexico Department of Workforce Solutions v. Gardu\u00f1o", "decision_date": "2014-03-14", "docket_number": "No. 34,546; Docket No. 32,026", "first_page": "1", "last_page": "11", "citations": [ { "type": "official", "cite": "2014-NMCA-050" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2002-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260718 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 13-14" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0156-01" ] }, { "cite": "2002-NMCA-057", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260683 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0201-01" ] }, { "cite": "419 U.S. 379", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6175482 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "389", "parenthetical": "alterations in original" }, { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/us/419/0379-01" ] }, { "cite": "424 U.S. 319", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12026449 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "334", "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/us/424/0319-01" ] }, { "cite": "2005-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929161 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0161-01" ] }, { "cite": "598 F.2d 1312", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 494081 ], "year": 1979, "pin_cites": [ { "page": "1317-18", "parenthetical": "noting that claimants \"certainly have a property right in receiving unemployment benefits to which they are entitled by statute\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/598/1312-01" ] }, { "cite": "397 U.S. 254", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12052726 ], "year": 1970, "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/us/397/0254-01" ] }, { "cite": "606 A.2d 1087", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 301063 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "1090" }, { "page": "1090" } ], "opinion_index": 0, "case_paths": [ "/nj/127/0578-01" ] }, { "cite": "605 F.2d 605", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1444543 ], "year": 1978, "pin_cites": [ { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/f2d/605/0605-01" ] }, { "cite": "755 F.2d 1343", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 675324 ], "year": 1985, "pin_cites": [ { "page": "1345" } ], "opinion_index": 0, "case_paths": [ "/f2d/755/1343-01" ] }, { "cite": "394 A.2d 828", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1978, "pin_cites": [ { "page": "830", "parenthetical": "stating that claimants have \"statutorily grounded claim[s] of entitlement to, or property interest in, unemployment compensation benefits\" (internal quotation marks and citation omitted)" } ], "opinion_index": 0 }, { "cite": "627 F.2d 650", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1287936 ], "year": 1980, "pin_cites": [ { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/f2d/627/0650-01" ] }, { "cite": "408 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782964 ], "weight": 5, "year": 1972, "pin_cites": [ { "page": "576-77" } ], "opinion_index": 0, "case_paths": [ "/us/408/0564-01" ] }, { "cite": "20 C.F.R. \u00a7 650.4", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 3, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "1999-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257693 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 29" }, { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0254-01" ] }, { "cite": "2010-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248331 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 19" }, { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0021-01" ] }, { "cite": "20 C.F.R. \u00a7\u00a7 650.1", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 2, "opinion_index": 0 }, { "cite": "301 P.3d 858", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCERT-004", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "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 ], "weight": 17, "pin_cites": [ { "page": "\u00b6\u00b6 17, 23" }, { "page": "\u00b6 6" }, { "page": "\u00b6 2" }, { "page": "\u00b6 4" }, { "page": "\u00b6 14" }, { "page": "\u00b6 15" }, { "page": "\u00b6 17" }, { "page": "\u00b6 16" }, { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0031-01" ] }, { "cite": "872 F.2d 729", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10534242 ], "year": 1989, "pin_cites": [ { "page": "732", "parenthetical": "finding no vested right to prevent recoupment of overpaid unemployment benefits under then-existing Kentucky state law or the Social Security Act" } ], "opinion_index": 1, "case_paths": [ "/f2d/872/0729-01" ] }, { "cite": "203 F.3d 964", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11488718 ], "year": 2000, "pin_cites": [ { "page": "978", "parenthetical": "\"The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interest that a person has already acquired in specific benefits.\" (internal quotation marks and citations omitted)" } ], "opinion_index": 1, "case_paths": [ "/f3d/203/0964-01" ] }, { "cite": "226 F.3d 1207", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11235165 ], "year": 2000, "pin_cites": [ { "page": "1210", "parenthetical": "\"We established nearly twenty-five years ago that to prevail on either a procedural or substantive due process claim, a plaintiff must first establish that a defendant's actions deprived plaintiff of a protectible property interest.\"" } ], "opinion_index": 1, "case_paths": [ "/f3d/226/1207-01" ] }, { "cite": "300 P.3d 1182", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2000, "opinion_index": 1 }, { "cite": "2013-NMCERT-003", "category": "reporters:neutral", "reporter": "NMCERT", "year": 2000, "opinion_index": 1 }, { "cite": "2011-NMCA-038", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4249492 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 40" } ], "opinion_index": 1, "case_paths": [ "/nm/149/0556-01" ] }, { "cite": "2002-NMCA-057", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260683 ], "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 1, "case_paths": [ "/nm/132/0201-01" ] }, { "cite": "424 U.S. 319", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12026449 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "333", "parenthetical": "establishing the factors applicable to procedural due process analysis (internal quotation marks and citation omitted)" }, { "page": "335" } ], "opinion_index": 1, "case_paths": [ "/us/424/0319-01" ] }, { "cite": "755 F.2d 1343", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 675324 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "1345" }, { "page": "1347", "parenthetical": "holding that under the Mathews test, the claimant showed \"no significant injury caused by inadequate pretermination notice\" of hearing regarding unemployment benefits" } ], "opinion_index": 1, "case_paths": [ "/f2d/755/1343-01" ] }, { "cite": "627 F.2d 650", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1287936 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/f2d/627/0650-01" ] }, { "cite": "408 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782964 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "577" }, { "page": "577" } ], "opinion_index": 1, "case_paths": [ "/us/408/0564-01" ] }, { "cite": "2013-NMCA-055", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4334169 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" }, { "page": "\u00b6 14" }, { "page": "\u00b6 16" } ], "opinion_index": 1, "case_paths": [ "/nm-app/4/0031-01" ] } ], "analysis": { "cardinality": 1263, "char_count": 34155, "ocr_confidence": 0.781, "pagerank": { "raw": 4.666970501906556e-08, "percentile": 0.29288618757309787 }, "sha256": "730e661e8619e38c8da29e1b907686a9f890bc29376bd511b70399b8c5823ac4", "simhash": "1:756e80826f4a3506", "word_count": 5290 }, "last_updated": "2023-07-14T17:19:17.637489+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "M. MONICA ZAMORA, Judge", "I CONCUR:", "MICHAEL E. VIGIL, Judge", "J. MILES HANISEE, Judge (concurring in part and dissenting in part).", "J. MILES HANISEE, Judge" ], "parties": [ "NEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS, Petitioner-Appellant, and ALBERTSONS, Employer, v. NANCY GARDU\u00d1O, Respondent-Appellee," ], "opinions": [ { "text": "OPINION\nZAMORA, Judge.\n{1} The New Mexico Department of Workforce Solutions (DWS) appeals from a district court order reversing a decision of the DWS\u2019s Appeals Tribunal (the Tribunal). The Tribunal determined that claimant Nancy Gardu\u00f1o (Gardu\u00f1o) was required to repay an overpayment of unemployment compensation benefits in the amount of $11,256. The district court held: (1) the Tribunal\u2019s hearing, conducted six months after Gardu\u00f1o started receiving benefits, violated the timeliness requirements for processing appeal claims under state and federal law; (2) the doctrine of equitable estoppel barred DWS from claiming and collecting an overpayment from Gardu\u00f1o; and (3) the overpayment claims process violated Gardu\u00f1o\u2019s due process rights by failing to provide Gardu\u00f1o with timely notice and a hearing. With respect to the first two issues, they have been resolved by virtue of our decision in Millar v. New Mexico Department of Workforce Solutions, 2013-NMCA-055, 304 P.3d 427, cert. denied, 2013-NMCERT-004, 301 P.3d 858, and accordingly, we reverse that portion of the district court\u2019s order. We affirm the district court on the issue of procedural due process.\nI. BACKGROUND\n{2} Gardu\u00f1o was discharged from her employment with Albertsons (Employer) on February 5,2010. She filed for unemployment compensation benefits on February 14, 2010. After preliminary fact finding, the DWS claims examiner issued a notice of claim determination (NCD) in favor of Gardu\u00f1o granting her benefits of $402 per week. The NCD stated that the benefit determination was final unless Employer appealed within fifteen calendar days from March 12,2010. Fourteen days later, on March 26, 2010, Employer appealed. Gardu\u00f1o did not receive a copy of Employer\u2019s appeal, and DWS continued sending her benefits.\n{3} DWS did not inform Gardu\u00f1o of Employer\u2019s appeal until the Tribunal sent out a notice of hearing on August 3, 2010, setting the hearing for August 19, 2010. The appeal before the Tribunal began August 19, 2010, and concluded on September 9, 2010. On September 14, 2010, the Tribunal determined that Gardu\u00f1o was disqualified from benefits because she was terminated for misconduct connected with her employment. Gardu\u00f1o contested Employer\u2019s claim of misconduct. Gardu\u00f1o subsequently received an overpayment notice for the unemployment payments that she had received from February 27, 2010, until her benefits were terminated in September 2010, totaling $11,256.\n{4} Gardu\u00f1o appealed the overpayment determination through DWS\u2019s administrative process. The Tribunal affirmed the claims examiner\u2019s decision that Gardu\u00f1o had been overpaid benefits in the amount of $11,256 and that the benefits must be repaid to DWS. In turn, DWS\u2019s cabinet secretary (secretary) upheld the December 30,2010, determination of the Tribunal. The secretary\u2019s affirmation was the final administrative decision in the matter. Having exhausted her administrative remedies, Gardu\u00f1o appealed to the district court under Rule 1-077 NMRA and Section 51-1-8(M), (N) of the Unemployment Compensation Law, NMSA 1978, \u00a7\u00a7 51-1-1 to -59 (1936, as amended through 2010). The district court granted Gardu\u00f1o a writ of certiorari and, after a hearing, reversed the decision of the secretary. Specifically, the district court found that DWS was out of compliance with federal and state timeliness standards for processing appeals, that DWS was equitably estopped from pursuing overpayments against Gardu\u00f1o, and that D W S had violated Gardu\u00f1o\u2019s procedural due process right to timely notice and a hearing. This appeal timely followed.\nII. DISCUSSION\n{5} This Court is again called to address the question of whether DWS can recover unemployment compensation benefits from claimants after the claimants have first been deemed eligible, then subsequently been deemed ineligible for benefits. In Millar, we recently concluded that the timeliness requirements of 20 C.F.R. \u00a7\u00a7 650.1 to 650.4 (2006, as amended through 2013) and Section 51-1-8(D), and the doctrine of equitable estoppel do not preclude DWS from recovering overpayments after the claimant has been disqualified for benefits. Millar, 2013-NMCA-055, \u00b6\u00b6 17, 23. However, we conclude in this case that DWS violated Gardu\u00f1o\u2019s procedural due process rights in a manner that precludes it from collecting the repayment. We begin with the standard of review and a brief discussion o\u00ed Millar, which is directly on point as to the federal and state timeliness standards and estoppel. We then turn to the constitutional procedural due process issue raised by Gardu\u00f1o.\nA. Standard of Review\n{6} This Court applies the same standard of review as the district court when reviewing \u201can administrative order to determine whether DWS acted fraudulently, arbitrarily, or capriciously, or whether, based on the whole record, the decision is not supported by substantial evidence.\u201d Millar, 2013-NMCA-055, \u00b6 6. Under the whole record standard of review, we look at all evidence, whether it is favorable or unfavorable to the agency\u2019s determination. Id. \u201cQuestions of substantial compliance with a statute depend on statutory construction, and we review those questions de novo.\u201d Id.\n{7} The constitutionality of DWS\u2019s rulings presents this Court with a question of law, which we also review de novo. See Albuquerque Bernalillo Cnty. Water Util. Auth. v. N.M. Pub. Regulation Comm'n, 2010-NMSC-013, \u00b6 19,148 N.M. 21,229 P.3d 494 (applying de novo standard of review to due process violations); see also U S West Commc'ns, Inc. v. N. M. State Corp. Comm\u2019n, 1999-NMSC-016, \u00b6 15, 127 N.M. 254, 980 P.2d 37 (holding that an agency\u2019s ruling with respect to whether a party \u201cwas afforded the process it [was] due under the Fourteenth Amendment to the United States Constitution [is] subject to de novo review\u201d).\nB. Millar v. New Mexico Department of Workforce Solutions\n{8} Both parties agree that the first two issues of this appeal have been resolved by Millar. For purposes ofreview, we will briefly discuss the application of Millar to the case at hand. The facts of Millar are strikingly similar to the case currently before this Court. The-claimant was released from his employment on November 20, 2009, and filed for unemployment compensation benefits. Millar, 2013-NMCA-055, \u00b6 2. DWS initially determined the claimant was eligible for benefits. Id. The claimant received an NCD, which stated that the benefit determination was final unless his employer appealed within fifteen calendar days and that if, on appeal, a decision was made against him, he would be required to repay all benefits he had received. Id. The claimant\u2019s employer did file a timely appeal, however, DWS did not inform the claimant of the appeal for nearly five months. Id. \u00b6\u00b6 2-3. Meanwhile he continued to receive benefits. Id. \u00b6 3. At the appeal hearing, the claimant was \u201cdisqualified from benefits due to misconduct connected with his employment\u201d and was required to repay DWS $4,931. Id. \u00b6\u00b6 3-4. The claimant appealed, exhausting his administrative remedies, and then appealed to the district court under Rule 1-077 and Section 51-1-8(M), (N). Millar, 2013-NMCA-055, \u00b6 4. The district court found in the claimant\u2019s favor ruling that \u201cDW S was out of compliance with federal and state timeliness standards for processing appeals\u201d and that \u201cDWS was equitably estopped from pursuing overpayments against [the claimant].\u201d Id.\n{9} DWS appealed to this Court. Id. We reversed the district court, holding that it had \u201cmisapplied the federal and state time-lapse standards\u201d and that equitable estoppel could not be applied contrary to DWS\u2019s statutory obligation to recoup overpayments of benefits. Id. \u00b6\u00b6 17, 24.\n1. Federal Timeliness Regulations\n{10} In Millar, this Court recognized that the \u201cCodes of Federal Regulation are federal law and, if relevant, may properly be considered by the district court.\u201d Id. \u00b6 12. We found nothing in the broad language of the regulation setting \u201cabsolute deadlines for processing an individual first level appeal.\u201d Id. \u00b6 14. We concluded that \u201cthe plain language of 20 C.F.R. \u00a7 650.4(b) does not establish any mandatory statutory time limit that would require [the claimant] to be notified of the pending appeal or within which the hearing had to be held[,]\u201d but instead offers only \u201cguidelines in processing unemployment appeals.\u201d Millar, 2013-NMCA-055, \u00b6 14.\n{11} Additionally, this Court held that Section 51-1-38(F) \u201cunequivocally imposes a statutory duty upon DWS to recover funds issued to claimants who are later found to be ineligible or disqualified from receiving benefits.\u201d Mi7/ar,2013-NMCA-055415. The Standard for Appeals Promptness Rule, 20 C.F.R. \u00a7 650.4(b) does not allow \u201ca claimant who is subsequently disqualified from receiving benefits to challenge DWS\u2019s mandatory obligation to recover overpayments.\u201d Millar, 2013-NMCA-055, \u00b6 15. We were unable to reconcile the district court\u2019s interpretation of 20 C.F.R. \u00a7 650.4(b) with \u201cDWS\u2019s statutory obligation to recover overpayments from an initial favorable eligibility ruling that is subsequently overturned on appeal \"Millar, 2013-NMCA-055, \u00b6 17. Therefore, we concluded that \u201cthe district court misapplied the federal and state time-lapse standards\u201d and reversed. Id.\n2. The Application of Equitable Estoppel\n{12} In Millar, we noted that estoppel \u201ccan only be applied against the state in exceptional circumstances where there is a shocking degree of aggravated and overreaching conduct or where right and justice demand it.\u201d Id. \u00b6 19. More importantly, it \u201ccannot be applied contrary to statutory requirements.\u201d Id. \u201cWith' respect to New Mexico state agencies in particular, the doctrine only is available to bar those rights or actions over which an agency has discretionary authority.\u201d Id. (internal quotation marks and citation omitted). \u201cThus, equitable relief is not available when the grant thereof would violat\u00e9 the express provision of a statute.\u201d Id. (alteration, internal quotation marks, and citation omitted). Having recognized DWS\u2019s mandatory \u201cstatutory duty to recover benefits paid to claimants later found to be ineligible or disqualified\u201d under Section 51-1-38(F), we held that DWS has no discretionary authority in pursuing collection of any overpayment. Millar, 2013- NMCA055, \u00b6 20. \u201cThe affirmative obligation imposed on DWS to recover full repayment of benefits from [the claimant] forecloses the application of equitable estoppel against it.\u201d Id. \u00b6 24.\n{13} Because Millar is directly on point as to the applicability of the federal timeliness standards and the doctrine of estoppel to DWS\u2019s overpayment collection procedures, we determine that it definitively resolves those issues as they are raised in this appeal. Accordingly, we conclude the district court exceeded its authority in holding that the Tribunal violated the timeliness requirements of 20 C.F.R. \u00a7\u00a7 650.1 to 650.4 and Section 51-1-8(D). The district court also erred in ruling that the doctrine of equitable estoppel barred DWS from recovering the overpayments to Gardu\u00f1o. However, Millar does not consider or decide the constitutionality of DWS\u2019s overpayment claims process. 2013-NMCA-055, \u00b6 16 (declaring this case does not involve a claim of constitutional deprivation). We now address whether the overpayment claims process violated Gardu\u00f1o\u2019s procedural due process rights.\nC. Procedural Due Process\n{14} DWS claims that by providing notice of the appeal hearing and an opportunity to be heard, its overpayment claims process afforded Gardu\u00f1o procedural due process. We disagree.\n{15} After an initial determination awarding unemployment benefits is made in favor of the claimant and payment of benefits has begun, due process requires the recipient be afforded notice and an opportunity to be heard prior to stopping payment of benefits. 11.3.300.308(E) NMAC (07-15-1998, amended 01-01-2003).\n{16} Due process is implicated only when a person has a constitutionally protected interest in life, liberty, or property. Bd. of Regents v. Roth, 408 U.S. 564, 576-77 (1972). The types of interests that contribute to liberty and property for Fourteenth Amendment purposes are both broad and limited. Id. A property interest may arise from an expectation or interest created by state laws or policies. Id. Property interests \u201care created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.\u201d Id. A property interest requires a legitimate claim of entitlement to some benefit. Id.\n{17} A \u201c[s]tate statute} ] providing for the payment of unemployment compensation benefits create[s] in the claimants for those benefits property interests protected by due process.\u201d Wilkinson v. Abrams, 627 F.2d 650, 664 (3d Cir. 1980); see Royer v. State Dep't of Emp't Sec., 394 A.2d 828, 830 (N.H. 1978) (stating that claimants have \u201cstatutorily grounded claim[s] of entitlement to, or property interest in, unemployment compensation benefits\u201d (internal quotation marks and citation omitted)); accord Berg v. Shearer, 755 F.2d 1343, 1345 (8th Cir. 1985); Basciano v. Herkimer, 605 F.2d 605, 609 (2d Cir. 1978); Rivera v. Bd. of Review, 606 A.2d 1087, 1090 (N.J. 1992). Our United States Supreme Court has recognized benefits such as welfare and unemployment compensation as matters of statutory entitlement. See Goldberg v. Kelly, 397 U.S. 254, 262 (1970). Gardu\u00f1o has a property right in receiving unemployment benefits by virtue of the Unemployment Compensation Law. Ross v. Horn, 598 F.2d 1312, 1317-18 (3d Cir. 1979) (noting that claimants \u201ccertainly have a property right in receiving unemployment benefits to which they are entitled by statute\u201d); see \u00a7\u00a7 51-1-1 to -59.\n{18} \u201cIn general, the right to due process in administrative proceedings contemplates only notice of the opposing party\u2019s claims and a reasonable opportunity to meet them.\u201d Archuleta v. Santa Fe Police Dep\u2019t ex rel. City of Santa Fe, 2005-NMSC-006, \u00b6 32, 137 N.M. 161, 108 P.3d 1019 (emphasis, internal quotation marks, and citation omitted). Due process also requires that the notice \u201cbe more than a mere gesture; it should be reasonably calculated, depending upon the practicalities and peculiarities of the case}.]\u201d Albuquerque Bernalillo Cnty. Water Util. Auth., 2010-NMSC-013, \u00b6 21 (internal quotation marks and citation omitted). This \u201capprise[s an] interested part[y] of the pending action and affordfs] them an opportunity to present their case.\u201d U S West Commc\u2019ns, Inc., 1999-NMSC-016, \u00b6 29 (internal quotation marks and citation omitted). \u201c}D]ue process ... is not a technical conception with a fixed content unrelated to time, place},] and circumstances.\u201d Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (internal quotation marks and citation omitted). It is \u201cflexible and calls for such procedural protections as the particular situation demands.\u201d Id. (internal quotation marks and citation omitted); accord U S West Commc'ns, Inc., 1999-NMSC-016, \u00b6 25. Procedural due process analysis requires consideration of three distinct factors:\n(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional . . . procedural safeguards; and ... (3) the Government\u2019s interest, including the ... fiscal and administrative burdens that the additional . . . procedural requirement would entail.\nMathews, 424 U.S. at 321. In balancing these interests, we must consider the proceedings as a whole.\n{19} \u201c[T]he formality and procedural requisites for [a due process] hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.\u201d Fusari v. Steinberg, 419 U.S. 379, 389 (1975) (alterations in original) (internal quotation marks and citation omitted). \u201c[T]he rapidity of administrative review is a significant factor in assessing the sufficiency of the entire process.\u201d Id. Notice should be prompt \u201cwith the opportunity to be heard at a meaningful time and in a meaningful manner.\u201d Sandia v. Rivera, 2002-NMCA-057, \u00b6 17, 132 N.M. 201, 46 P.3d 108 (internal quotation marks and citation omitted). In this context, prompt and adequate notice of appeal and administrative review \u201cprovides an opportunity for consideration and correction of errors made in initial eligibility determinations.\u201dFusari, 419 U.S. at 389. The lengthy delay between an employer\u2019s appeal and the issuance of the notice of appeal hearing is an important factor in assessing the impact of official action on the private interests.\n{20} The private interest here is Gardu\u00f1o\u2019s right to timely notice of Employer\u2019s appeal. Had Gardu\u00f1o been notified promptly of Employer\u2019s appeal, she could have taken steps to minimize the overpayment of unemployment benefits for which she was ultimately deemed ineligible. Instead, Gardu\u00f1o continued to receive benefits of $402 weekly. One day after Employer\u2019s appeal, Gardu\u00f1o had received $2,010 in unemployment benefits. By the time DWS mailed the notice of appeal, Gardu\u00f1o had accrued benefits of $9,246. On the date of the f\u00edrsthearing, Gardu\u00f1o\u2019s potential overpayment debt was $10,050, and upon her ineligibility determination, it was $11,256.\n{21} The risk of erroneously depriving claimants of a prompt notice and a hearing at a meaningful time is significantly high when DWS fails to send notice of the employer\u2019s appeal for several months. In this case, by failing to timely inform Gardu\u00f1o that Employer had appealed, DWS essentially saddled her with a substantial potential debt without meaningful notice. Moreover, the Tribunal sent out the notice of hearing on August 3, 2010, for the August 19, 2010, hearing. By the time Gardu\u00f1o received the notice, she had about two weeks to prepare for the hearing based on this new information, whereas the Tribunal and Employer had the opportunity to prepare for the hearing at least since March 26, 2010. DWS\u2019s overpayment claim procedures fall short of the constitutional standard of prompt notice and an expeditious hearing conducted at a meaningful time. \u201c[T]he citizen facing a loss at the hands of the [s]tate must be given a real chance to present [their] side of the case before a government decision becomes final.\u201d Rivera, 606 A.2d at 1090.\n{22} We recognize DWS\u2019s interest in avoiding onerous fiscal and administrative burdens, and the additional procedural requirements associated therewith. We also recognize that DWS processes a high volume of applications for unemployment compensation benefits and appeals. However, providing prompt notice of an employer\u2019s appeal, in compliance with due process, does not require additionally burdensome procedures. Neither does requiring the Employer to properly serve a copy of its notice of appeal upon the claimant. Even if DWS is unable to hold appeal hearings immediately following an employer\u2019s appeal, it could nevertheless notify claimants of employer appeals when the appeals are filed, rather than sending notice two weeks prior to a hearing that may not be held for several months, or in this case, nearly four months.\n{23} In Millar, we cautioned that \u201cprompt payment [was] not the only consideration of procedural fairness to a claimant, prompt notice of benefits being in jeopardy must be as well.\u201d 2013-NMCA-055, \u00b6 17. We also expressed our concern that the claimant had not been provided notice of employer\u2019s appeal and DWS continued to pay claimant\u2019s benefits for several months after the appeal had been filed. Id. \u00b6 15. \u201cThere is nothing humane about a delay of some months in not informing an unemployed person that his employer is contesting the award of benefits and that he may lose them.\u201d Id. This is compoimded by the fact that neither the statute nor the department regulations expressly require that any party, other than DWS, be notified of another party\u2019s appeal. Compare \u00a7 51 -1 -8(B) (providing for appeal of initial determination by claimant or interested party, within fifteen calendar days after the date of notification of mailing of the determination), with 11.3.500.8(A) NMAC (01-01 -2003) (allowing any interested party aggrieved by a determination to file an appeal and providing for the method, mode, and substance of an appeal to the department). We acknowledge that the NCD stated the benefit determination was final subject to Employer appealing the determination within fifteen calendar days. In light of the disagreement between Gardu\u00f1o and Employer as to the facts surrounding her separation of employment from Employer, and Gardu\u00f1o not receiving notice that Employer filed an appeal on or before March 27, 2010, there was no reason for her to believe she would be required to repay any of her benefits until her receipt of the August notice of hearing, five months later. The requirement of meeting the constitutional standard of prompt notice and a hearing at a meaningful time presents a negligible burden for DWS. Such a notice requirement is imperative for the protection of all parties to an action for unemployment compensation benefits.\n{24} It is completely within the power of DWS to minimize the increasing payment of benefits that may have to be repaid by an unemployed claimant who is without financial resources. The dissent concedes that even a busy agency like DWS can readily provide prompt notice though the statute does not require such. These claimants must be afforded some degree of protection from DWS\u2019s otherwise avertible failure to timely notify them of an employer\u2019s appeal.\n{25} To the extent that DWS argues that its statutory obligation under Section 51-1-38(F) to recoup overpayments may not be challenged, we disagree. While it is the \u201cdomain of the [state] legislature, as the voice of the people, to make public policy,\u201d under Article VI of the United States Constitution, the federal Constitution is the \u201csupreme Law of the Land.\u201d Cockrell v. Bd. of Regents of N.M. State Univ., 2002-NMSC-009, \u00b6\u00b6 13-14, 132 N.M. 156, 45 P.3d 876 (internalquotation marks and citation omitted). As such, constitutional due process rights may not be overrun by the mandates of state statutes. We conclude that federal supremacy precludes DW S from collecting overpaid unemployment benefits from Gardu\u00f1o under Section 51-1-38(F), where its overpayment claims process violated her due process right to timely notice and a meaningful opportunity to be heard.\nIII. CONCLUSION\n{26} For the reasons set forth above we reverse the district court\u2019s order finding that D W S was out of compliance with the federal and state timeliness standards for processing appeals and thatDWS was equitably estopped from pursuing overpayments against Gardu\u00f1o. We affirm the district court\u2019s determination that DWS violated Gardu\u00f1o\u2019s procedural due process rights to timely notice of her employer\u2019s appeal.\n{27} IT IS SO ORDERED.\nM. MONICA ZAMORA, Judge\nI CONCUR:\nMICHAEL E. VIGIL, Judge\nJ. MILES HANISEE, Judge (concurring in part and dissenting in part).", "type": "majority", "author": "ZAMORA, Judge." }, { "text": "HANISEE, Judge\n(concurring in part and dissenting in part).\n{28} I concur in the Majority Opinion\u2019s application of our recent opinion in Millar to reverse the district court and hold that the appeal hearing conducted by the DWS Tribunal was timely under state and federal law and that D WS was not equitably estopped from recouping unemployment compensation benefits overpaid to Gardu\u00f1o. I do not agree, however, that the same legally compliant hearing simultaneously offends the constitutional safeguard of procedural due process. As well, it is unlikely that New Mexico law creates a \u201cproperty interest\u201d \u2014 the threshold requirement of due process claims \u2014 in erroneously paid benefits to which a claimant was legally determined to be unentitled and no longer asserts were paid to her as a matter of substantive right. I respectfully dissent from Part C of today\u2019s ruling holding that Gardu\u00f1o\u2019s due process rights were violated and prohibiting DWS from complying with its statutory obligation to recoup the overpaid funds.\n{29} In dissenting, I take no issue with the Majority Opinion\u2019s reiteration of the general concern we expressed in Millar that the appeal process employed by DWS is poorly administered and occasions unnecessary human hardship. See Majority Opinion \u00b6 23; see also Millar, 2013-NMCA-055 \u00b6 17 (recognizing the importance of \u201cprocedural fairness to a claimant\u201d including \u201cprompt notice of benefits being in jeopardy\u201d). The facts of this case and Millar demonstrate that, although D W S cautions new benefit recipients by NCD that an employer\u2019s successful appeal would require repayment of overpaid benefits, it belatedly notifies those same recipients when their initially favorable determinations of eligibility in fact have been appealed. Despite the absence of \u201cany mandatory-statutory time limit that would require [the claimant] to be notified of the pending appeal,\u201d Majority Opinion \u00b6 10 (quoting Millar, 2013-NMCA-055 \u00b6 14), prompt notification of the procedural event that both jeopardizes ongoing receipt of benefits and seeks a retroactive determination of ineligibility seems readily achievable by even so busy an agency as DWS. This is particularly so given that, like most funds that administer unemployment benefits, New Mexico law couples a final determination that benefits were overpaid with mandatory recoupment. See Section 51-1-3 8(H) (requiring that claimants whose benefit eligibility is \u201cmodified or reversed by a final decision . . . shall ... be liable to repay\u201d unduly received benefits (emphasis added)).\n{30} Despite what we consider to be the imperfect nature of the DWS Tribunal\u2019s appeal process, the question of constitutionality turns on whether Gardu\u00f1o was deprived of a legitimate property interest without being afforded an opportunity to be heard \u201cat a meaningful time and in a meaningful manner.\u201d Mathews, 424 U.S. at 333 (establishing the factors applicable to procedural due process analysis (internal quotation marks and citation omitted)). Considering the Mathews factors, the Majority Opinion concludes that the private interest with which DWS impermissibly interfered is Gardu\u00f1o\u2019s \u201cright to timely notice of Employer\u2019s appeal,\u201d the absence of which it concludes caused a \u201csignificantly high\u201d risk of erroneous deprivation due to her disproportionately brief opportunity to prepare for the appeal hearing. Majority Opinion \u00b6\u00b6 20-22. The majority further holds that these failures were not overcome by DWS\u2019s interest in \u201cavoiding onerous fiscal and administrative burdens[.]\u201d Majority Opinion \u00b6 22. For many reasons, this analysis is mistaken.\n{31} First, I question the majority\u2019s determination that Gardu\u00f1o has pleaded the threshold requirement needed to trigger procedural due process review. It is particularly entrenched within constitutional jurisprudence that a claim such as Gardu\u00f1o\u2019s gains cognizability only upon a showing that she was deprived of \u201ca legitimate liberty or property interest\u201d rightfully possessed by her. Titus v. City of Albuquerque, 2011-NMCA-038, \u00b6 40, 149 N.M. 556, 252 P.3d 780 (internal quotation marks and citation omitted), cert. quashed, 2013-NMCERT-003, 300 P.3d 1182. That showing has b een widely accepted as the switch that initiates the safeguards of due process. See Roth, 408 U.S. at 577; Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000) (\u201cWe established nearly twenty-five years ago that to prevail on either a procedural or substantive due process claim, a plaintiff must first establish that a defendant\u2019s actions deprived plaintiff of a protectible property interest.\u201d); Lucas v. Monroe Cnty., 203 F.3d 964, 978 (6th Cir. 2000) (\u201cThe Fourteenth Amendment\u2019s procedural protection of property is a safeguard of the security of interest that a person has already acquired in specific benefits.\u201d (internal quotation marks and citations omitted)). While the majority is correct that statutorily derived unemployment benefits have been held by many courts to constitute a property interest, see Berg, 755 F.2d at 1345; some even at the initiatory stage of a claimant\u2019s application, see Wilkinson, 627 F.2d at 664-65 n.18, in appealing to the district court Gardu\u00f1o elected to abandon any challenge to the Tribunal\u2019s determination that she was substantively ineligible for unemployment benefits. Absent a pleaded or preserved assertion of property right, Gardufio\u2019s desire to keep \u2014 and not repay to DWS \u2014 the overpaid benefits does not give rise to a \u201clegitimate claim of entitlement.\u201d Roth, 408 U.S. at 577. Rather, her interest is of the type disallowed by Roth: that for which a claimant has an \u201cabstract need or desire\u201d or a \u201cunilateral expectation.\u201d Id.; see Cassidy v. Adams, 872 F.2d 729, 732 (6th Cir. 1989) (finding no vested right to prevent recoupment of overpaid unemployment benefits under then-existing Kentucky state law or the Social Security Act). Nowhere does New Mexico law bestow ownership of benefits that are improperly awarded. Absent such a cognizable property interest, Gardufio\u2019s claim fails under Millar.\n{32} Even assuming the existence of a property interest under New Mexico law that persists despite abandonment in district court, the majority\u2019s Mathews analysis is flawed. At the outset, the interests to be considered under the Mathews factors are incorrectly identified. Gardufio\u2019s interest is not to \u201ctimely notice of Employer\u2019s appeal,\u201d Majority Opinion \u00b6 20, but rather her private interest in unemployment compensation and the fair process of determining her eligibility to it. Similarly, DWS\u2019s interest is not in \u201cavoiding onerous fiscal and administrative burdens,\u201d Majority Opinion \u00b6 22, but in efficiently processing the volume of unemployment claims in New Mexico and preserving funds, and when necessary, recouping overpaid funds so that they may be used to properly compensate eligible claimants. As well, this interest serves the ancillary purpose of protecting employers from being wrongly compelled to pay benefits to ineligible claimants. Lastly, the majority evaluates the risk of erroneous deprivation speculatively and without proper consideration of \u201cthe probable value, if any, of . . . procedural safeguards!.]\u201d Mathews, 424 U.S. at 335.\n{33} It is exactly those procedural safeguards, considered within our neutral evaluation of the time and manner in which the appeal hearing was conducted, that compel substantive rejection of Gardufio\u2019s due process challenge under Mathews. Without discussing the hearing itself, the majority speculates on what could have been done by Gardu\u00f1o to minimize her potential debt or to prepare for the hearing for a longer period of time. Majority Opinion \u00b6\u00b6 20-21. This discussion has no factual basis in the record and, more importantly, circumvents the real Mathews standard that considers the circumstances as a whole in light of the process due. See Sandia, 2002-NMCA-057, \u00b6 10 (\u201cProcedural due process is a flexible right and the amount of process due depends on the particular circumstances of each case.\u201d (internal quotation marks and citation omitted)). Here, the proceeding took place on two days, August 19, 2010 and September 9, 2010. Both Gardu\u00f1o and her Albertson\u2019s employer testified before an Administrative Law Judge. The burden of proof was on Employer to establish Gardufio\u2019s misconduct. Documents, including a video, were provided both to and by Gardu\u00f1o, and were considered by the judge during the proceeding. Notably, the judge continued the proceeding for a period of three weeks so that Gardu\u00f1o could: (1) submit additional documents she believed to be important to the proceeding; (2) effectively subpoena a witness Gardu\u00f1o wished to question that was not available on August 19; and (3) be provided the actual video in an accessible format that was testified to but unavailable on the first day of the proceeding.\n{34} Although earlier notice of Employer\u2019s appeal would have been preferable, I cannot agree that the notice of the hearing itself and the manner in which it was conducted by the Tribunal failed to comport with due process. To the contrary, the proceeding was conducted \u201cin a reasonable time and manner.\u201d Since that is the constitutional inquiry, and under the Mathews factors the procedural safeguards of the Tribunal hearing overcame the delayed provision of notice of Employer\u2019s taking of the appeal, I do not agree that Gardimo\u2019s due process rights were violated, even assuming she has a legitimate property interest. See Berg, 755 F.2d at 1347 (holding that under the Mathews test, the claimant showed \u201cno significant injury caused by inadequate pretermination notice\u201d of hearing regarding unemployment benefits).\n{35} For all these reasons, I respectfully dissent from Part C of the Majority Opinion.\nJ. MILES HANISEE, Judge\nIt is also my view that due to the nearly identical facts and overlapping legal issues shared by the instant case and Millar, DWS\u2019s request for consolidation of the two cases should have been granted. See Order of August 6, 2012 (holding in abeyance DWS\u2019s request for consolidated consideration).\nIn Millar, a case in which our Supreme Court elected not to grant certiorari, we recognized that the claimant sought a waiver of money owed for benefits to which a claimant was disqualified and to which he had \u201cno vested right.\u201d 2013-NMCA-055, \u00b6 16. It is precisely the absence of such a \u201cvested right\u201d that forecloses the propriety of due process review herein. Because we concluded that no such right existed in Millar, we must do the same here.", "type": "concurring-in-part-and-dissenting-in-part", "author": "HANISEE, Judge" } ], "attorneys": [ "Marshall J. Ray, General Counsel Elizabeth A. Garcia, Staff Attorney Tami L. Keating, Staff Attorney Albuquerque, NM", "Attorneys for Appellants", "New Mexico Legal Aid, Inc. Timothy R. Hasson Santa Fe, NM", "Attorney for Appellee" ], "corrections": "", "head_matter": "Certiorari Granted, March 14, 2014,\nNo. 34,546\nDocket No. 32,026\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-050\nFiling Date: January 15, 2014\nNEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS, Petitioner-Appellant, and ALBERTSONS, Employer, v. NANCY GARDU\u00d1O, Respondent-Appellee,\nMarshall J. Ray, General Counsel Elizabeth A. Garcia, Staff Attorney Tami L. Keating, Staff Attorney Albuquerque, NM\nAttorneys for Appellants\nNew Mexico Legal Aid, Inc. Timothy R. Hasson Santa Fe, NM\nAttorney for Appellee" }, "file_name": "0001-01", "first_page_order": 17, "last_page_order": 27 }