January 15, 2014 – New Mexico Department of Workforce Solutions v. Nancy Garduno, No. 32,026

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INTHE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number
Filing Date: January 15, 2014
NO. 32,026

NEW MEXICO DEPARTMENT
OF WORKFORCE SOLUTIONS,

Petitioner Appellant,
and
ALBERTSONS,
Employer,
V.
NANCY GARDUNO,
Respondent- Appellee,

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Raymond Z. Ortiz, District Judge

New Mexico Department of Workforce Solutions
Marshall J. Ray, General Counsel

Elizabeth A. Garcia, Staff Attomey

Tami L. Keating, Staff Attomey

Albuquerque, NM
Attomeys for Appellants

New Mexico Legal Aid, Inc.
Timothy R. Hasson
Santa Fe, NM

Attomey for Appellee

OPINION
ZAMORA, Judge.
{1} 	The New Mexico Department of Workforce Solutions (DWS) appeals from a
district court order reversing a decision of the DWS’s Appeals Tribunal (the
Tribunal). The Tribunal determined that claimant Nancy Garduño (Garduño) was
required to repay an overpayment of unemployment compensation benefits in the
amount of $11,256. The district court held: (1) the Tribunal’s hearing, conducted six
months after Garduño 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 Garduño;
and (3) the overpayment claims process violated Garduño’s due process rights by
failing to provide Garduño 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’s order. We affirm the district court on the issue of procedural due
process.

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I. 	BACKGROUND
{2} 	Garduño 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 Garduño 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. Garduño did not receive a copy of Employer’s
appeal, and DWS continued sending her benefits.
{3} 	DWS did not inform Garduño of Employer’s 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 Garduño was disqualified
from benefits because she was terminated for misconduct connected with her
employment. 	Garduño 	contested 	Employer’s 	claim 	of 	misconduct. 	Garduño
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.

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{4} 	Garduño 	appealed 	the 	overpayment 	determination 	through 	DWS’s
administrative process. The Tribunal affirmed the claims examiner’s decision that
Garduño had been overpaid benefits in the amount of $11,256 and that the benefits
must be repaid to DWS. In turn, DWS’s cabinet secretary (secretary) upheld the
December 30, 2010, determination of the Tribunal. The secretary’s affirmation was
the final administrative decision in the matter. Having exhausted her administrative
remedies, Garduño appealed to the district court under Rule 1-077 NMRA and Section
51-1-8(M), (N) of the Unemployment Compensation Law, NMSA §§ 51-1-1 to -59
(1936, as amended through 2010). The district court granted Garduño 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 Garduño, and that DWS had violated Garduño’s procedural due
process right to timely notice and a hearing. This appeal timely followed.
II. 	DISCUSSION
{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. §§ 650.1

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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, ¶¶ 17, 23.
However, we conclude in this case that DWS violated Garduño’s 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 of 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 Garduño.
A. 	Standard of Review
{6} 	This Court applies the same standard of review as the district court when
reviewing “an 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.” Millar, 2013-NMCA-055, ¶ 6. Under the whole
record standard of review, we look at all evidence, whether it is favorable or
unfavorable to the agency’s determination. Id. “Questions of substantial compliance
with a statute depend on statutory construction, and we review those questions de
novo.” Id.
{7} 	The constitutionality of DWS’s rulings presents this Court with a question of
law, which we also review de novo. See Albuquerque Bernalillo Cnty. Water Util.

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Auth. v. N.M. Pub. Regulation Comm’n, 2010-NMSC-013, ¶ 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’n, 1999-NMSC-016, ¶ 15, 127
N.M. 254, 980 P.2d 37 (holding that an agency’s ruling with respect to whether a
party “was afforded the process it [was] due under the Fourteenth Amendment to the
United States Constitution [is] subject to de novo review”).
B. 	Millar v. New Mexico Department of Workforce Solutions
{8} 	Both parties agree that the first two issues of this appeal have been resolved by
Millar. For purposes of review, 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, ¶ 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’s employer did file a timely appeal, however, DWS did not inform the
claimant of the appeal for nearly five months. Id. ¶¶ 2-3. Meanwhile he continued to
receive benefits. Id. ¶ 3. At the appeal hearing, the claimant was “disqualified from

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benefits due to misconduct connected with his employment” and was required to
repay DWS $4,931. Id. ¶¶ 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, ¶ 4. The district court found in the claimant’s
favor ruling that “DWS was out of compliance with federal and state timeliness
standards for processing appeals” and that “DWS was equitably estopped from
pursuing overpayments against [the claimant].” Id.
{9} 	DWS appealed to this Court. Id. We reversed the district court, holding that it
had “misapplied the federal and state time-lapse standards” and that equitable estoppel
could not be applied contrary to DWS’s statutory obligation to recoup overpayments
of benefits. Id. ¶¶ 17, 24.
1. 	Federal Timeliness Regulations
{10} 	In Millar, this Court recognized that the “Codes of Federal Regulation are
federal law and, if relevant, may properly be considered by the district court.” Id. ¶ 12.
We found nothing in the broad language of the regulation setting “absolute deadlines
for processing an individual first level appeal.” Id. ¶ 14. We concluded that “the plain
language of 20 C.F.R. § 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

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the hearing had to be held[,]” but instead offers only “guidelines in processing
unemployment appeals.” Millar, 2013-NMCA-055, ¶ 14.
{11} 	Additionally, this Court held that Section 51-1-38(F) “unequivocally imposes
a statutory duty upon DWS to recover funds issued to claimants who are later found
to be ineligible or disqualified from receiving benefits.” Millar, 2013-NMCA-055, ¶
15. The Standard for Appeals Promptness Rule, 20 C.F.R. § 650.4(b) does not allow
“a claimant who is subsequently disqualified from receiving benefits to challenge
DWS’s mandatory obligation to recover overpayments.” Millar, 2013-NMCA-055,
¶ 15. We were unable to reconcile the district court’s interpretation of 20 C.F.R. §
650.4(b) with “DWS’s statutory obligation to recover overpayments from an initial
favorable eligibility ruling that is subsequently overturned on appeal.” Millar, 2013-
NMCA-055, ¶ 17. Therefore, we concluded that “the district court misapplied the
federal and state time-lapse standards” and reversed. Id.
2. 	The Application of Equitable Estoppel
{12} 	In Millar, we noted that estoppel “can 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.” Id. ¶ 19. More
importantly, it “cannot be applied contrary to statutory requirements.” Id. “With
respect to New Mexico state agencies in particular, the doctrine only is available to

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bar those rights or actions over which an agency has discretionary authority.” Id.
(internal quotation marks and citation omitted). “Thus, equitable relief is not available
when the grant thereof would violate the express provision of a statute.” Id.
(alteration, internal quotation marks, and citation omitted). Having recognized DWS’s
mandatory “statutory duty to recover benefits paid to claimants later found to be
ineligible or disqualified” under Section 51-1-38(F), we held that DWS has no
discretionary authority in pursuing collection of any overpayment. Millar, 2013-
NMCA-055, ¶ 20. “The affirmative obligation imposed on DWS to recover full
repayment of benefits from [the claimant] forecloses the application of equitable
estoppel against it.” Id. ¶ 24.
{13} 	Because Millar is directly on point as to the applicability of the federal
timeliness standards and the doctrine of estoppel to DWS’s 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. §§ 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 Garduño.
However, 	Millar 	does 	not 	consider or decide the constitutionality of DWS’s
overpayment claims process. 2013-NMCA-055, ¶ 16 (declaring this case does not

9
involve a claim of constitutional deprivation). We now address whether the
overpayment claims process violated Garduño’s procedural due process rights.
C. 	Procedural Due Process
{14} 	DWS claims that by providing notice of the appeal hearing and an opportunity
to be heard, its overpayment claims process afforded Garduño procedural due process.
We disagree.
{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).
{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
“are 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.” Id. A
property interest requires a legitimate claim of entitlement to some benefit. Id.

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{17} 	A “[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.” 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
“statutorily grounded claim[s] of entitlement to, or property interest in, unemployment
compensation benefits” (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). Garduño 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 “certainly have
a property right in receiving unemployment benefits to which they are entitled by
statute”); see §§ 51-1-1 to -59.
{18} 	“In general, the right to due process in administrative proceedings contemplates
only notice of the opposing party’s claims and a reasonable opportunity to meet
them.” Archuleta v. Santa Fe Police Dep’t ex rel. City of Santa Fe, 2005-NMSC-006,
¶ 32, 137 N.M. 161, 108 P.3d 1019 (emphasis, internal quotation marks, and citation

11
omitted). Due process also requires that the notice “be more than a mere gesture; it
should be reasonably calculated, depending upon the practicalities and peculiarities
of the case[.]” Albuquerque Bernalillo Cnty. Water Util. Auth., 2010-NMSC-013, ¶ 21
(internal quotation marks and citation omitted). This “apprise[s an] interested part[y]
of the pending action and afford[s] them an opportunity to present their case.” U S
West Commc’ns, Inc., 1999-NMSC-016, ¶ 29 (internal quotation marks and citation
omitted). “[D]ue process . . . is not a technical conception with a fixed content
unrelated to time, place[,] and circumstances.” Mathews v. Eldridge, 424 U.S. 319,
334 (1976) (internal quotation marks and citation omitted). It is “flexible and calls for
such procedural protections as the particular situation demands.” Id. (internal
quotation marks and citation omitted); accord U S West Commc’ns, Inc., 1999-
NMSC-016, ¶ 25. Procedural due process analysis requires consideration of three
distinct factors:
(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’s interest, including the . . .
fiscal and administrative burdens that the additional . . . procedural
requirement would entail.
Mathews, 424 U.S. at 321. In balancing these interests, we must consider the
proceedings as a whole.

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{19} 	“[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.” Fusari v. Steinberg, 419 U.S. 379, 389 (1975) (alterations
in original) (internal quotation marks and citation omitted). “[T]he rapidity of
administrative review is a significant factor in assessing the sufficiency of the entire
process.” Id. Notice should be prompt “with the opportunity to be heard at a
meaningful time and in a meaningful manner.” Sandia v. Rivera, 2002-NMCA-057,
¶ 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
“provides an opportunity for consideration and correction of errors made in initial
eligibility determinations.” Fusari, 419 U.S. at 389. The lengthy delay between an
employer’s 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.
{20} 	The private interest here is Garduño’s right to timely notice of Employer’s
appeal. Had Garduño been notified promptly of Employer’s appeal, she could have
taken steps to minimize the overpayment of unemployment benefits for which she was
ultimately deemed ineligible. Instead, Garduño continued to receive benefits of $402
weekly. One day after Employer’s appeal, Garduño had received 	$2,010 in
unemployment benefits. By the time DWS mailed the notice of appeal, Garduño had

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accrued benefits of $9,246. On the date of the first hearing, Garduño’s potential
overpayment debt was $10,050, and upon her ineligibility determination, it was
$11,256.
{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’s appeal for several months. In this case, by failing to timely inform
Garduño 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 Garduño
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’s overpayment claim procedures
fall short of the constitutional standard of prompt notice and an expeditious hearing
conducted at a meaningful time. “[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.” Rivera, 606 A.2d at 1090.
{22} 	We recognize DWS’s 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

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compensation benefits and appeals. However, providing prompt notice of an
employer’s 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’s 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.
{23} 	In Millar, we cautioned that “prompt payment [was] not the only consideration
of procedural fairness to a claimant, prompt notice of benefits being in jeopardy must
be as well.” 2013-NMCA-055, ¶ 17. We also expressed our concern that the claimant
had not been provided notice of employer’s appeal and DWS continued to pay
claimant’s benefits for several months after the appeal had been filed. Id. ¶ 15. “There
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.” Id. This is compounded by the fact that neither the statute nor the department
regulations expressly require that any party, other than DWS, be notified of another
party’s appeal. Compare § 51-1-8(B) (providing for appeal of initial determination by
claimant or interested party, within fifteen calendar days after the date of notification

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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
Garduño and Employer as to the facts surrounding her separation of employment from
Employer, and Garduño 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.
{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’s otherwise
avertible failure to timely notify them of an employer’s appeal.

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{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
“domain of the [state] legislature, as the voice of the people, to make public policy,”
under Article VI of the United States Constitution, the federal Constitution is the
“supreme Law of the Land.” Cockrell v. Bd. of Regents of N.M. State Univ., 2002-
NMSC-009, ¶¶ 13-14, 132 N.M. 156, 45 P.3d 876 (internal quotation 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 DWS from
collecting overpaid unemployment benefits from Garduño 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.
III. 	CONCLUSION
{26} 	For the reasons set forth above we reverse the district court’s order finding that
DWS was out of compliance with the federal and state timeliness standards for
processing 	appeals 	and 	that 	DWS 	was 	equitably 	estopped 	from 	pursuing
overpayments against Garduño. We affirm the district court’s determination that DWS
violated Garduño’s procedural due process rights to timely notice of her employer’s
appeal.
{27} 	IT IS SO ORDERED.

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___________________________
M. MONICA ZAMORA, Judge
I CONCUR:
________________________
MICHAEL E. VIGIL, Judge
J. MILES HANISEE, Judge (concurring in part and dissenting in part).

1It is also my view that due to the nearly identical facts and overlapping legal
issues shared by the instant case and Millar, DWS’s request for consolidation of the
two cases should have been granted. See Order of August 6, 2012 (holding in
abeyance DWS’s request for consolidated consideration).
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HANISEE, Judge (concurring in part and dissenting in part).
{28} 	I concur in the Majority Opinion’s 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 DWS was not equitably
estopped from recouping unemployment compensation benefits overpaid to Garduño.1
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 “property interest”—the threshold requirement of due
process claims—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’s ruling holding that
Garduño’s due process rights were violated and prohibiting DWS from complying
with its statutory obligation to recoup the overpaid funds.
{29} 	In dissenting, I take no issue with the Majority Opinion’s 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 ¶ 23; see also Millar, 2013-NMCA-055 ¶ 17 (recognizing the importance of

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“procedural fairness to a claimant” including “prompt notice of benefits being in
jeopardy”). The facts of this case and Millar demonstrate that, although DWS cautions
new benefit recipients by NCD that an employer’s 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 “any mandatory statutory time limit that would require [the claimant] to
be notified of the pending appeal,” Majority Opinion ¶ 10 (quoting Millar, 2013-
NMCA-055 ¶ 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 51-1-38(H) (requiring that claimants whose benefit eligibility is “modified or
reversed by a final decision . . . shall . . . be liable to repay” unduly received benefits
(emphasis added)).
{30} 	Despite what we consider to be the imperfect nature of the DWS Tribunal’s
appeal process, the question of constitutionality turns on whether Garduño was
deprived of a legitimate property interest without being afforded an opportunity to be
heard “at a meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333
(establishing the factors applicable to procedural due process analysis (internal

20
quotation marks and citation omitted)). Considering the Mathews factors, the Majority
Opinion concludes that the private interest with which DWS impermissibly interfered
is Garduño’s “right to timely notice of Employer’s appeal,” the absence of which it
concludes caused a “significantly high” risk of erroneous deprivation due to her
disproportionately brief opportunity to prepare for the appeal hearing. Majority
Opinion ¶¶ 20-22. The majority further holds that these failures were not overcome
by DWS’s interest in “avoiding onerous fiscal and administrative burdens[.]” Majority
Opinion ¶ 22. For many reasons, this analysis is mistaken.
{31} 	First, I question the majority’s determination that Garduño has pleaded the
threshold requirement needed to trigger procedural due process review. It is
particularly entrenched within constitutional jurisprudence that a claim such as
Garduño’s gains cognizability only upon a showing that she was deprived of “a
legitimate liberty or property interest” rightfully possessed by her. Titus v. City of
Albuquerque, 2011-NMCA-038, ¶ 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 been 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) (“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

2In 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
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interest.”); Lucas v. Monroe Cnty., 203 F.3d 964, 978 (6th Cir. 2000) (“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)). 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’s application, see Wilkinson, 627 F.2d at 664-65 n. 18, in appealing to the
district 	court 	Garduño 	elected 	to 	abandon 	any 	challenge 	to 	the 	Tribunal’s
determination that she was substantively ineligible for unemployment benefits. Absent
a pleaded or preserved assertion of property right, Garduño’s desire to keep—and not
repay to DWS—the overpaid benefits does not give rise to a “legitimate claim of
entitlement.” Roth, 408 U.S. at 577. Rather, her interest is of the type disallowed by
Roth: that for which a claimant has an “abstract need or desire” or a “unilateral
expectation.” 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, Garduño’s claim fails under Millar.2

claimant was disqualified and to which he had “no vested right.” 2013-NMCA-055,
¶ 16. It is precisely the absence of such a “vested right” 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.
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{32} 	Even assuming the existence of a property interest under New Mexico law that
persists despite abandonment in district court, the majority’s Mathews analysis is
flawed. At the outset, the interests to be considered under the Mathews factors are
incorrectly identified. Garduño’s interest is not to “timely notice of Employer’s
appeal,” Majority Opinion ¶ 20, but rather her private interest in unemployment
compensation and the fair process of determining her eligibility to it. Similarly,
DWS’s interest is not in “avoiding onerous fiscal and administrative burdens,”
Majority Opinion ¶ 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 “the
probable value, if any, of . . . procedural safeguards[.]” Mathews, 424 U.S. at 335.
{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

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compel substantive rejection of Garduño’s due process challenge under Mathews.
Without discussing the hearing itself, the majority speculates on what could have been
done by Garduño to minimize her potential debt or to prepare for the hearing for a
longer period of time. Majority Opinion ¶¶ 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, ¶ 10 (“Procedural due process is a flexible right and the amount of
process due depends on the particular circumstances of each case.” (internal quotation
marks and citation omitted)). Here, the proceeding took place on two days, August 19,
2010 and September 9, 2010. Both Garduño and her Albertson’s employer testified
before an Administrative Law Judge. The burden of proof was on Employer to
establish Garduño’s misconduct. Documents, including a video, were provided both
to and by Garduño, and were considered by the judge during the proceeding. Notably,
the judge continued the proceeding for a period of three weeks so that Garduño could:
(1) submit additional documents she believed to be important to the proceeding; (2)
effectively subpoena a witness Garduño 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.

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{34} 	Although earlier notice of Employer’s 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 “in a reasonable time and manner.” 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’s taking of
the appeal, I do not agree that Garduño’s 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 “no significant injury caused by
inadequate pre-termination notice” of hearing regarding unemployment benefits).
{35} 	For all these reasons, I respectfully dissent from Part C of the Majority Opinion.
________________________
J. MILES HANISEE, Judge