June 5, 2017- Michael Gzaskow and Francoise Becker v. Public Employees Retirement Board, No. 35,161

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	June 5, 2017
NO. 35,161
MICHAEL GZASKOW and
FRANCOISE BECKER,
Plaintiffs-Appellants,
v.
PUBLIC EMPLOYEES RETIREMENT
BOARD and EACH MEMBER OF THE
BOARD 	IN 	HIS 	OR 	HER 	OFFICIAL
CAPACITY,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Francis J. Mathew, District Judge
VanAmberg, Rogers, Abeita & Gomez, LLP
Ronald J. VanAmberg
Santa Fe, NM
for Appellants
Robles, Rael & Anaya, PC
Charles H. Rennick
Albuquerque, NM

New Mexico Public Employees Retirement Association
Misty M. Braswell
Santa Fe, NM
for Appellees

OPINION
BOHNHOFF, Judge.
{1} 	In 2011, Plaintiff Michael Gzaskow retired from employment with the State of
New Mexico and began receiving retirement pension benefits pursuant to the Public
Employees Retirement Act (the Act), NMSA 1978, §§ 10-11-1 to -142 (1987, as
amended through 2016). At the time of his retirement he was divorced, but he named
Plaintiff Francoise Becker to receive retirement benefits in the event of his death; a
few months after his retirement, Gzaskow married Becker. In late 2014, shortly before
he took an extended overseas trip with Becker, Gzaskow executed and delivered to the
Public Employees Retirement Association (PERA) a form that exercised a “one-time
irrevocable option to deselect” Becker as his survivor beneficiary and designate his
daughter, Sabrina Gzaskow (Daughter), as the survivor beneficiary. Following his
return from the trip, Gzaskow advised PERA that the deselection of Becker and
designation of Daughter was a mistake and requested that the action be voided. PERA
declined to do so, taking the position that the action was not reversible. Gzaskow and
Becker (collectively, Plaintiffs) then brought suit in district court (the Complaint)
against the Public Employees Retirement Board (PERB), which is responsible for
administering PERA, asserting a right to cancellation of the deselection of Becker as
survivor beneficiary and seeking declaratory, injunctive, and equitable relief. PERB

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moved to dismiss the Complaint for lack of subject matter jurisdiction, arguing that
Plaintiffs had failed to exhaust the administrative remedy afforded under the Act. The
district court granted PERB’s motion to dismiss and Plaintiffs now appeal. We affirm.
I. 	BACKGROUND
A. 	The Act
{2} 	Through the Act, the New Mexico Legislature has established a program
whereby employees of the State of New Mexico and other public agencies may
receive retirement pensions. Participating employees are “members” of PERA and
earn the right to receive a pension by meeting various age and service credit
requirements. See §§ 10-11-2(M), -3(A); State ex rel. Helman v. Gallegos, 1994-
NMSC-023, ¶ 5, 117 N.M. 346, 871 P.2d 1352. The Act establishes PERB to
administer the Act and manage the retirement pension program and PERA. Section
10-11-130.
{3} 	When a member who qualifies for a pension retires, he or she must elect one of
four payment options or “Forms.” Section 10-11-116(A). The Forms of Payment are
set forth in Section 10-11-117. Under Form of Payment A, the “[s]traight life
pension,” the retiree receives a monthly payment and upon his or her death the
payments cease. Section 10-11-117(A). Under Form of Payment B, “[l]ife payments
with full continuation to one survivor beneficiary,” the retiree receives a reduced

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monthly payment, but upon his or her death a survivor beneficiary will receive the
same payment until the survivor’s death. Section 10-11-117(B). Under Form of
Payment C, “[l]ife payment[s] with one-half continuation to one survivor beneficiary,”
the retiree receives a reduced monthly payment in an amount greater than that
received under Form of Payment B, and upon his or her death a survivor beneficiary
will receive one-half of that payment. Section 10-11-117(C). Under Form of Payment
D, “[l]ife payments with temporary survivor benefits for children,” the retiree receives
a reduced monthly payment, and upon his or her death each “declared eligible child”
of the retiree is paid a share of the retiree’s monthly payment until death or age
twenty-five, whichever occurs first. Section 10-11-117(D). Form of Payment A is the
default payment option if the retiree is not married at the time of retirement and does
not elect another form of payment; Form of Payment C is the default payment option
if the retiree is married at the time of retirement and does not elect another form of
payment. Section 10-11-116(A)(1), (2). Under each of the Forms of Payment, the
pension payments are calculated to have the same overall “actuarial present value” as
Form of Payment A. Section 10-11-116(B).
{4} 	In addition to selecting a form of payment (other than Form of Payment A),
when a member retires he or she will name the survivor beneficiary (or beneficiaries,
in the case of more than one declared eligible child under Form of Payment D).

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Section 10-11-116(A). If the member is married, PERA must obtain the spouse’s
written consent to the election of form of payment as well as the designation of
survivor beneficiary; in the absence of such consent, the election and designation are
not effective. Id.
{5} 	“An election of form of payment may not be changed after the date the first
pension payment is made.” Id. Further, after the date of the first pension payment, the
survivor beneficiary (or beneficiaries) may not be changed except as provided in
Section 10-11-116(C), (D), and (E). Subsection C provides that a retiree who is being
paid under Form of Payment B or C with his or her spouse as the designated survivor
beneficiary may, upon becoming divorced, elect to have future payments made under
Form of Payment A. Alternatively, Subsection D provides that a retiree who is being
paid under Form of Payment B or C may, upon the death of his or her designated
survivor beneficiary, “exercise a one-time irrevocable option” to designate another
individual as the survivor beneficiary. Subsection E provides that a retiree who is
being paid under Form of Payment B or C with a living, designated, survivor
beneficiary other than his or her spouse or former spouse “may exercise a one-time
irrevocable option to deselect the designated beneficiary” and either designate another
survivor beneficiary or have future payments made under Form of Payment A. Section
10-1-116(E).

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{6} 	While a PERA member is employed, his or her spouse ordinarily acquires a
community property interest in the member’s pension benefit. See generally NMSA
1978, § 40-3-8(B) (1990) (defining community property); Ruggles v. Ruggles, 1993-
NMSC-043, ¶¶ 14-32, 116 N.M. 52, 860 P.2d 182 (discussing divorcing spouses’
community property interest in employer-sponsored retirement plans); cf. Martinez
v. Pub. Emps. Ret. Ass’n, 2012-NMCA-096, ¶¶ 28-36, 286 P.3d 613 (discussing
parameters of widowed spouse’s statutory interest in PERA survivor benefits). The
Act recognizes a spouse’s interests in PERA benefits in various ways. First, as
mentioned above, Section 10-11-116(A)(2) provides that if a member who is married
at the time of his or her retirement does not designate another form of payment, the
default is Form of Payment C, life payment with one-half continuation to one survivor
beneficiary, with the member’s spouse as the survivor beneficiary. Second, again as
stated above, Section 10-11-116(A) provides that if the member is married, the
consent of member’s spouse is necessary to an election of the form of payment and
designation of any survivor beneficiary other than the spouse. Third, Section 10-11-
136 provides that, at the time of divorce, the court handling the divorce may provide
for a division of the marital community’s interest in the PERA pension and other
benefits.
{7} 	Section 10-11-120 addresses denials of claims for benefits under the Act.

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Benefit claimants shall be notified in writing, with explanation, of a denial of a claim
for benefits. Following receipt of the notice,
[a] claimant may appeal the denial and request a hearing. The appeal
shall be in writing filed with the association within ninety days of the
denial. . . . The retirement board shall schedule a de novo hearing of the
appeal before the retirement board or, at the discretion of the retirement
board, a designated hearing officer or committee of the retirement board
within sixty days of receipt of the appeal. A final decision on the matter
being appealed shall be made by the retirement board.
Section 	10-11-120(A). 	Regulations 	promulgated 	by 	the 	PERB 	authorize
representation by legal counsel, limited discovery including depositions as authorized
by the hearing officer, issuance of subpoenas to compel the production of documents
and attendance of witnesses, direct and cross examination of witnesses under oath, and
transcription of the hearing by a court reporter. 2.80.1500.10(C)(2), (3), (5) NMAC.
A dissatisfied claimant may appeal a final decision of 	PERB pursuant to the
provisions of NMSA 1978, Section 39-3-1.1 (1999), which generally provides for
record review of administrative agency decisions. Section 10-11-120(B). See, e.g.,
Johnson v. Pub. Emps. Ret. Bd., 1998-NMCA-174, ¶ 10, 126 N.M. 282, 968 P.2d 793.
(“Appeals from decisions of the Board denying disability retirement benefits are
reviewed on the record made before the Board.”).
B. 	Factual History
{8} 	The Complaint alleges the following: Gzaskow retired from employment as a

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physician with the State of New Mexico on January 1, 2011. At that time Gzaskow
was divorced. On his PERA retirement application form he selected Form of Payment
C and designated Becker as his survivor beneficiary. Plaintiffs were then married on
April 15, 2011. Prior to the marriage, Plaintiffs entered into a pre-nuptial agreement:
they agreed that Becker would be the designated survivor beneficiary with respect to
Gzaskow’s PERA benefits, but that she would distribute to Gzaskow’s children a
portion of any such benefits that she received.
{9} 	From time to time thereafter, Plaintiffs took extended trips. Gzaskow claims
that he spoke with PERA personnel and discussed with them how to address his
retirement benefits in the event both he and Becker were to die while on these trips.
Gzaskow claims that he was told that he could pay PERA a $100 fee and have his
benefits provisionally recalculated on the assumption that, pursuant to Section 10-11-
116(E)(1), he deselected Becker as survivor beneficiary and designated Daughter as
the new survivor beneficiary. Gzaskow also claims that he was told that if he and
Becker both died while on a trip, Daughter would become the beneficiary if the
recalculation had been done. Gzaskow had his benefits provisionally recalculated
several times: each time PERA would prepare and provide to Gzaskow a form to
accomplish the deselection and new designation. The form would show the
recalculated pension and survivor benefit payments for Gzaskow and Daughter:

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because Daughter was younger than Becker, and in accordance with the requirement
in Section 10-11-116(E)(1)(b) that the pension benefit’s overall actuarial present value
remain the same, Gzaskow’s new pension payment would be a reduced amount. The
form stated in bold font:
This one-time change to a new beneficiary or change to Form of
Payment A is Irrevocable.
. . . .
I have read and understand that this is a one-time removal and
selection of a new beneficiary or selection of Form of Payment A. By
choosing one of the options above, this will change my beneficiary or
payment option until my death or the death of my beneficiary.
When preparing for extended travel, Gzaskow would execute and give the form to
Daughter, with the understanding that she would deliver it to PERA in the event he
and Becker died during their travels.
{10} 	In October 2014, Plaintiffs planned a trip to Vietnam. Gzaskow repeated the
process of having PERA recalculate his retirement benefits if he deselected Becker
and designated Daughter as the new survivor beneficiary. This time, however,
Gzaskow not only signed the form on October 14, 2014, but also—he claims,
mistakenly—delivered it to PERA.
{11} 	On November 20, 2014, while Plaintiffs were in Vietnam, PERA sent Gzaskow
a letter, acknowledging receipt of the deselection of Becker and new designation of

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Daughter as Gzaskow’s survivor beneficiary. The letter restated Gzaskow’s reduced
pension payment that had been set forth on the form that he had signed and delivered
to PERA. The monthly payment was approximately $1,700 less than his pre-October
14, 2014 pension benefit. Upon returning from the trip and reading the letter,
Gzaskow notified PERA that there was a mistake, that he had not intended to make
the deselection of Becker and the new designation of Daughter, and requested that the
change be canceled. Gzaskow alleges that PERA personnel knew that Gzaskow was
attempting to protect himself should he and Becker die in a common incident by
repeatedly initiating the process of deselecting Becker, and that he did not intend to
replace Becker as the survivor beneficiary if she was still alive. Gzaskow asserted that
under his pre-nuptial agreement with Becker, Becker could not be removed as his
survivor beneficiary, and as a result of his mistake he was in breach of that agreement.
Gzaskow also provided PERA with an affidavit signed by Daughter renouncing the
beneficiary designation. However, PERA declined to cancel the deselection of Becker
and designation of Daughter as the new survivor beneficiary. PERA took the position
that, Gzaskow having delivered the executed form to PERA, the action was
irrevocable, and that under the Act and the regulations PERB had promulgated to
implement the Act, nothing could be done to reverse the deselection.

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C. 	Procedural History
{12} 	Following an exchange of correspondence between counsel for the parties,
Plaintiffs filed the Complaint in the First Judicial District Court in Santa Fe, New
Mexico on March 30, 2015. The Complaint alleged the facts set forth above, and then
articulated five counts that seek overlapping relief. Distilled to its essence, the
Complaint asserts the following:
(1) 	Pursuant to Section 10-11-116(A), discussed above, Becker’s consent was a
necessary 	predicate 	to 	any 	deselection 	of 	her 	as 	Gzaskow’s 	survivor
beneficiary. Because she did not give her consent, the court should declare
Gzaskow’s deselection was void and canceled, and that Gzaskow’s pre-October
14, 2014 pension benefit should be restored.
(2) 	A PERB regulation, 2.80.1100.11 NMAC, identifies a number of documents
(e.g., a statement as to whether the previous beneficiary is still living, a copy
of the new beneficiary’s birth certificate, and certain divorce proceeding
documents) that must accompany the delivery of a deselection form. Because
Gzaskow did not provide these documents to PERA on October 14, 2014, the
court should declare the deselection void and canceled, and Gzaskow’s pre-
October 14, 2014 pension benefit should be restored.
(3) 	Alternatively, because the deselection form was signed by mistake, Plaintiffs

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will suffer severe prejudice if the mistake is not remedied, and because PERA
would not be prejudiced by returning to the pre-October 14, 2014 survivor
designation, the court should exercise its equity jurisdiction and enjoin PERA
to return Becker to her pre-October 14, 2014 status as Gzaskow’s survivor
beneficiary and restore Gzaskow’s pre-October 14, 2014 retirement benefits.
{13} 	PERB initially responded to the Complaint by moving to dismiss for lack of
subject matter jurisdiction based on Plaintiffs’ failure to exhaust their administrative
remedies under Section 10-11-120. PERB subsequently filed an answer to the
Complaint as well. In PERB’s memorandum of law in support of its motion to dismiss
and its answer, PERB disputed a number of Plaintiffs’ factual allegations: whether
Gzaskow had spoken with PERA personnel about provisionally signing a beneficiary
deselection form to address the possibility that he and Becker both could die during
their travels; whether the paperwork listed in 2.80.1100.11 NMAC was provided to
PERA; fundamentally, whether Gzaskow’s October 14, 2014 execution and delivery
of the deselection form was a mistake, i.e., whether he in fact intended to take that
step; and whether PERA would be financially impacted by voiding and canceling of
the deselection.
{14} 	Plaintiffs 	responded 	in 	opposition 	to 	the 	motion 	to 	dismiss, 	generally
articulating two arguments. First, Plaintiffs argued that PERB lacked authority to

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grant an equitable remedy to Gzaskow because it is a quasi-judicial administrative
agency, and that the exhaustion of administrative remedies does not apply to claims
over which an administrative agency lacks jurisdiction. Second, Plaintiffs argued that
their claim was properly brought under the Declaratory Judgment Act, NMSA 1978,
Sections 44-6-1 to -15 (1975). They cited, as authority for exempting such claims
from the exhaustion requirement, Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 26,
142 N.M. 786, 171 P.3d 300, and the Declaratory Judgment Act.
{15} 	Plaintiffs also moved for summary judgment. In that motion, Plaintiffs
advanced their substantive arguments that underlie the Complaint: Gzaskow’s
declaration 	was 	invalid 	because 	Becker 	did 	not 	give 	her 	consent 	and 	the
documentation specified in 2.80.1100.11 NMAC did not accompany the deselection
form. Alternatively, because the deselection form was signed by mistake, Plaintiffs
will suffer severe prejudice if the mistake is not remedied, and because PERA would
not be prejudiced by returning to the pre-October 14, 2014 survivor designation, the
court should exercise its equity jurisdiction and enjoin PERA to return Becker to her
pre-October 14, 2014 status as Gzaskow’s survivor beneficiary and restore Gzaskow’s
pre-October 14, 2014 pension benefit.
{16} 	PERB responded in opposition to Plaintiffs’ summary judgment motion, again
disputing Plaintiffs’ version of the facts as well as reiterating the same legal positions

1This construction of the scope of Section 10-11-116(A)’s spousal consent
requirement presumably is the answer to the question why PERB ever permitted
Gzaskow to use Section 10-11-116(E) to deselect Becker in the first place, given that
Becker had been his spouse since April 2011. But the question remains why Gzaskow
thought he could engage in the deselection exercise, given his claimed literal
understanding of the provision to apply broadly to any person who is a spouse at the
time of the deselection.
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that it first signaled in its motion to dismiss. In particular, PERB argued that, because
persons who become spouses after retirement have no community property interest
in the pension benefit, Section 10-11-116(A)’s spousal consent requirement is
intended to, and should be construed to, extend only to persons who are spouses prior
to the member’s retirement. It pointed out that PERB’s regulations reflect this
construction. See 2.80.1100.11(C) NMAC (explaining that spousal consent is required
for post-retirement selection of new beneficiary only if retired member was married
at the time of retirement and remains married to that person).1 PERB also argued that
the question of whether it has the authority to grant equitable relief was moot, because
Plaintiffs had not articulated a legal claim upon which their request for equitable relief
is based. PERB asserted that the equitable relief Plaintiffs requested, that Gzaskow’s
change of beneficiary be rescinded and his original benefit amount be reinstated,
would be granted by PERB only upon a proper legal showing which, PERB went on
to argue, Plaintiffs had not articulated.
{17} 	The district court heard the motions together. It granted PERB’s motion to

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dismiss and denied, as moot, Plaintiffs’ motion for summary judgment. Plaintiffs
timely filed their notice of appeal.
II. 	DISCUSSION
A. 	The Doctrine of Exhaustion of Administrative Remedies and Smith v. City
of Santa Fe’s Declaratory Judgment Exception
{18} 	The New Mexico Constitution broadly grants district courts original jurisdiction
to hear “all matters and causes not excepted in this constitution[.]” N.M. Const., art.
VI, § 13. However, based on separation of powers considerations and due respect for
the executive branch, our Supreme Court repeatedly has determined that district courts
lack subject matter jurisdiction where the plaintiff has failed to exhaust available
administrative remedies. See New Energy Econ., Inc. v. Shoobridge, 2010-NMSC-049,
¶ 10, 149 N.M. 42, 243 P.3d 746 (stating that the doctrine of separation of powers is
implicit to our Supreme Court’s reasoning in its cases “addressing the relationship
between administrative proceedings and declaratory judgment actions”). “Under the
exhaustion of administrative remedies doctrine, where relief is available from an
administrative agency, the plaintiff is ordinarily required to pursue that avenue of
redress before proceeding to the courts; and until that recourse is exhausted, suit is
premature and must be dismissed.” Smith, 2007-NMSC-055, ¶ 26 (alteration, internal
quotation marks, and citation omitted); accord, State Racing Comm’n v. McManus,
1970-NMSC-134, ¶ 17, 82 N.M. 108, 476 P.2d 767 (reversing district court issuance

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of writ of prohibition); Associated Petroleum Transp., Ltd. v. Shepard, 1949-NMSC-
002, ¶ 12, 53 N.M. 52, 201 P.2d 772 (“The plaintiffs are required to exhaust such
remedies as are accorded them by the law before resorting to the courts.”).
{19} 	In Smith, our Supreme Court noted several previously-recognized exceptions
to the exhaustion of administrative remedies rule. The exhaustion doctrine (1) “does
not apply in relation to a question which, even if properly determinable by an
administrative tribunal, involves a question of law, rather than one of fact”; and (2)
“exhaustion of remedies does not require the initiation of and participation in
proceedings in respect to which an administrative tribunal clearly lacks jurisdiction,
or which are vain and futile.” 2007-NMSC-055, ¶ 27 (internal quotation marks and
citations omitted). The court also addressed, however, whether to recognize a new
exception to the rule for actions brought pursuant to the Declaratory Judgment Act.
The court noted that, the “Declaratory Judgment Act is a special proceeding that
grants the district courts the ‘power to declare rights, status and other legal relations
whether or not further relief is or could be claimed’ ” and that it is “intended to be
liberally construed and administered as a remedial measure.” Smith, 2007-NMSC-055,
¶ 13 (quoting Section 44-6-2). The court noted in particular that, pursuant to Section
44-6-4, the Declaratory Judgment Act specifically authorizes district courts to
construe and determine the validity of statutes and local laws. Smith, 2007-NMSC-

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005, ¶ 14. On the basis of these considerations the court recognized a declaratory
judgment exception to the exhaustion of administrative remedies rule for declaratory
judgment actions: “[the p]laintiffs’ decision to use a declaratory judgment action as
their method for challenging the [c]ity’s authority to regulate the permitting of
domestic water wells appears to fall well within the perimeters of what the
Declaratory Judgment Act was intended to encompass.” Smith, 2007-NMSC-055,
¶ 15. See also Rainaldi v. Pub. Emps. Ret. Bd., 1993-NMSC-028, ¶¶ 3, 4, 115 N.M.
650, 857 P.2d 761 (holding that the district court had jurisdiction under N.M. Const.
art. VI, § 13, and §§ 44-6-4, -13, to hear suit for declaration of rights to retirement
benefits).
{20} 	Importantly, however, our Supreme Court then immediately qualified the
declaratory judgment exception:
That said, however, we must remain mindful of some important
limitations on the use of declaratory judgment actions to review the
propriety of administrative actions. In particular . . . , we caution against
using 	a 	declaratory 	judgment 	action 	to 	challenge 	or 	review
administrative actions if such an approach would foreclose any necessary
fact-finding by the administrative entity, discourage reliance on any
special expertise that may exist at the administrative level, disregard an
exclusive statutory scheme for the review of administrative decisions, or
circumvent procedural or substantive limitations that would otherwise
limit review through means other than a declaratory judgment action.
Accordingly, 	a 	declaratory 	judgment 	action 	challenging 	an
administrative entity’s authority to act ordinarily should be limited to
purely legal issues that do not require fact-finding by the administrative

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entity.
Smith, 2007-NMSC-055, ¶¶ 15-16. See also New Energy Econ., 2010-NMSC-049,
¶ 12 (“[W]hen the matter at issue (1) is purely legal, (2) requires no specialized
agency fact-finding, and (3) there is no exclusive statutory remedy, it is a proper
matter for a declaratory judgment action and does not require exhaustion of
administrative remedies.”).
B. 	Plaintiffs Must Exhaust Their Administrative Remedy Under the Act
{21} 	Plaintiffs argue that, because they seek declaratory relief, the exception
recognized in Smith exempts them from exhausting the administrative remedy under
Section 10-11-120(B). They argue as well that PERB has only quasi-judicial
authority, which does not encompass equitable remedies, and therefore they are free
to pursue that relief as well in district court. We are not persuaded.
1. 	Standard of Review
{22} 	“Whether a court has jurisdiction to hear a particular matter is a question of law
that we review de novo.” El Castillo Ret. Residences v. Martinez, 2015-NMCA-041,
¶ 13, 346 P.3d 1164. This proposition, however, begs the question how a district court
is to resolve a challenge to its jurisdiction. The answer depends on whether or not the
challenge is fact-based:
In reviewing a facial [i.e., non-fact-based] attack on the complaint, a
district court must accept the allegations in the complaint as true. In

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contrast, in a factual attack, a party may go beyond allegations contained
in the complaint and challenge the facts upon which subject matter
jurisdiction depends. When reviewing a factual attack on subject matter
jurisdiction, a district court may not presume the truthfulness of the
complaint’s factual allegations.
. . . .
When the challenge is factual, a court has wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts[.]
South v. Lujan, 2014-NMCA-109, ¶¶ 8-9, 336 P.3d 1000 (alterations, internal
quotation marks, and citation omitted). See also Hamaatsa, Inc. v. Pueblo of San
Felipe, 2013-NMCA-094, ¶ 9, 310 P.3d 631 (stating that on purely facial challenge
to jurisdiction, the court will accept as true all material allegations of the complaint),
rev’d on other grounds by 2017-NMSC-007, 388 P.3d 977.
{23} 	This standard of review necessarily must be modified in the context of a motion
to dismiss for lack of subject matter jurisdiction based on failure to exhaust
administrative remedies, because, as will be discussed below, one of the relevant
factors that enters into the exhaustion analysis is whether there are disputed fact
issues. As to that factor, Plaintiff’s challenge effectively remains purely facial:
Plaintiff’s contention is simply that the pleadings and other papers in the record do not
reveal a fact dispute. With the possible exception of futility (which has not been
asserted in this proceeding), the other factors that enter into the jurisdictional

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analysis—whether the administrative agency itself lacks jurisdiction, whether agency
expertise would assist the agency in resolving the dispute, the exclusivity of the
statutory scheme for review of administrative decisions, or other procedural or
substantive limitations on review—are all facial as well. See Smith, 2007-NMSC-055,
¶¶ 15, 26. Thus, our review, though de novo, is facial and limited to the record. We
need not resolve any factual contentions.
2. 	Section 10-11-120 Provides an Exclusive Remedy for the Denial of Benefits
Under the Act
{24} 	Section 10-11-120 authorizes a benefit claimant to pursue an administrative
appeal before PERB, followed by a judicial appeal before the district court, in the
event his or her benefit claim is denied. As a threshold issue, Plaintiffs contend that
their claims do not involve a denial of benefits, because the issue is whether Becker
was effectively deselected as a survivor beneficiary and whether, even if effective, the
deselection nevertheless should be reversed. We think Plaintiffs’ reading of Section
10-11-120 is too narrow; it grants appeal rights to all benefit claimants, not just
members, so it encompasses Becker as well as Gzaskow. Further, PERA’s action not
only has denied Becker her contingent interest in receiving a survivor benefit, but,
more immediately—as a consequence of the deselection—Gzaskow’s current monthly
pension payment has been reduced by approximately $1,700. Both consequences
constitute benefit denials, and therefore Section 10-11-120 affords Plaintiffs a remedy.

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{25} 	The question under Smith, however, is whether Section10-11-120’s scheme for
the review of administrative decisions is exclusive. Smith, 2007-NMSC-055, ¶¶ 15,
27. “The exclusivity of any statutory administrative remedy turns on legislative
intent.” Barreras v. N.M. Corr. Dep’t., 2003-NMCA-027, ¶ 9, 133 N.M. 313, 62 P.3d
770. The absence of explicit language stating that the remedy is exclusive is not
dispositive. Id. ¶ 11. Rather, we will look to “the comprehensiveness of the
administrative scheme, the availability of judicial review, and the completeness of the
administrative 	remedies 	afforded.” 	Id. 	The 	test 	ultimately 	is 	whether 	the
administrative remedy is “plain, adequate, and complete.” 	Chavez v. City of
Albuquerque, 1998-NMCA-004, ¶ 14, 124 N.M. 479, 952 P.2d 474.
{26} 	Particularly when the procedural provisions of 2.80.1500.10 NMAC (the
validity of which Plaintiffs do not question) are considered, Section 10-11-120’s
administrative appeal scheme is comprehensive. It generally grants PERB authority
to review and, if appropriate, rectify PERA benefit denials. As stated above, the
statutory appeal is open to all persons who might claim a benefit and encompasses all
agency actions that would operate to deny benefits. In the absence of any constraining
language, we also understand that PERB would possess full authority to act to reverse,
or otherwise remedy, agency actions to the extent permitted by the Act itself.
{27} 	Section 10-11-120 also provides for judicial review pursuant to NMSA 1978,

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Section 39-3-1.1 (1999). Compare State ex rel. Regents of E. N.M. Univ. v. Baca,
2008-NMSC-047, ¶¶ 13, 22, 144 N.M. 530, 189 P.3d 663 (stating that the
Procurement Code grants specific statutory rights to judicial review of bid protest
decision), and Barreras, 2003-NMCA-027, ¶ 13 (stating that the “State Personnel Act
makes express provision for judicial review of [State Personnel Board] decisions”),
with Chavez, 1998-NMCA-004, ¶ 18 (noting that Municipal Code does not provide
for judicial review of municipal personnel board decisions).
{28} 	Finally, the administrative remedy under Section 10-11-120 is complete. As is
discussed below, to the extent the Act would permit cancellation or other reversal of
the deselection of Becker as Gzaskow’s survivor beneficiary, PERB would possess
authority to take that action, and a court acting under its equitable jurisdiction could
provide no further remedy. Thus, not only is the administrative remedy complete, any
judicial remedy would be redundant and thus unnecessary.
{29} 	For these reasons, therefore, we believe that Plaintiffs have a remedy under
Section 10-11-120 to challenge PERA’s refusal to reverse the deselection of Becker
as Gzaskow’s survivor beneficiary, and that such remedy is exclusive.
3. 	Fact Questions Are Present
{30} 	In its order dismissing the Complaint, the district court found that, “Plaintiffs’

22
claims require factual determinations that should be made within the hearing process
provided at the administrative level.” We agree that multiple disputed issues of
material fact constitute an additional reason why Plaintiffs must exhaust their
administrative remedies.
{31} 	First, in the Complaint, Plaintiffs alleged that Gzaskow had discussed with
PERA personnel the idea of preparing, dating, and signing—but not delivering to
PERA and instead leaving with Daughter—before they left on an extended trip, a
provisional or contingent deselection of Becker as his survivor beneficiary and
designation of Daughter as the new survivor beneficiary. The suggestion is that PERA
acquiesced in, if not encouraged, a tactic that could significantly enhance the
aggregate monetary benefit paid to Gzaskow’s family over time in the event both he
and Becker were to die on the trip: if that were to occur, Daughter could deliver the
document, which had been executed prior to Gzaskow’s death, and claim survivor
benefits that otherwise would never be paid due to Becker’s concurrent death. PERA
disputed this claim of consultation, as well as Plaintiffs’ additional claim that PERA
would not be prejudiced by cancellation of the deselection. Resolution of these issues
may be material to construction of Section 10-11-116(E), see Helman, 1994-NMSC-
023, ¶¶ 19-20 (explaining that a statute will not be interpreted literally if such
construction is unreasonable), as well as any request for cancellation to the extent that

23
it might call for the exercise of discretion.
{32} 	Second, Plaintiffs alleged that Gzaskow had not delivered with his signed
deselection form the other documentation specified in 2.80.1100.11 NMAC. PERA
disputed this claim, arguing that those facts were yet to be established by Plaintiffs.
Resolution of this dispute in favor of Plaintiffs was the basis for one of their claims
of entitlement to cancellation of the deselection.
{33} 	Third, and most fundamentally, the factual lynchpin of Plaintiffs’ claim of
entitlement to cancel and void the deselection of Becker and designation of Daughter
as survivor beneficiary was the notion that his execution and delivery of the document
to PERA was a mistake, i.e., that at the time Gzaskow signed and delivered the
document he did not intend to accomplish the deselection. PERA also disputed this
contention.
{34} 	PERB is no less well positioned to resolve these disputed factual issues than the
district court. For this reason as well, Smith’s declaratory judgment exception for the
exhaustion doctrine is not available to Plaintiffs.

24
C. 	Plaintiffs’ Remaining Arguments
1. 	PERB’s Equity Jurisdiction
{35} 	Citing AA Oilfield Service, Inc. v. New Mexico Corp. Comm’n, 1994-NMSC-
085, ¶ 18, 118 N.M. 273, 881 P.2d 18 (recognizing that an agency possessed only
quasi-judicial powers which did not encompass the authority to grant equitable
remedy), and Leonard v. Payday Professional/Bio-Cal Co., 2008-NMCA-034, ¶ 12,
143 N.M. 637, 179 P.3d 1245 (concluding that Worker’s Compensation Judge did not
have authority to issue injunctions under the Worker’s Compensation Act), Plaintiffs
argue that PERB has only “quasi-judicial” powers and lacks authority or jurisdiction
to 	grant 	equitable 	relief. 	Because 	Smith 	recognizes 	claims 	over 	which 	the
administrative agency lacks jurisdiction as exempt from the exhaustion requirement,
2007-NMSC-055, ¶ 27, Plaintiffs urge that the district court erred in dismissing their
claim for injunctive relief against PERA.
{36} 	We can assume for purposes of discussion that PERB lacks the power to grant
an equitable remedy. However, Plaintiffs overlook a threshold consideration that
moots the point.
{37} 	The key question in this case is whether, under the language of Section 10-11-
116(E), the Legislature has authorized reversal—whether articulated as cancellation,
rescission or otherwise—of a deselection on grounds of mistake or, indeed, any

2 Because an agency would never enjoin itself as opposed to simply reverse its
decision, it is illogical to argue the lack of equitable jurisdiction as a means of
circumventing the requirement to exhaust administrative remedies: the agency can
provide a sufficient administrative remedy whether or not it lacks authority to grant
injunctive relief. An exception might exist, however, where the administrative agency
is addressing one party’s relative rights and obligations as against another party. See,
e.g., AA Oilfield Serv., Inc., 1994-NMSC-085 (common carrier opposed competing
common carrier’s application for transfer of certificate of public convenience and
necessity); Leonard, 2008-NMCA-034 (addressing worker’s pursuit of worker
compensation benefits against employer and insurer). Only in that situation, not
present here, might the first party have reason to seek equitable relief.
We also observe that most any challenge to an administrative agency’s decision
may be articulated in terms of a request for injunctive relief. If one can circumvent
administrative remedies simply by seeking the court’s order enjoining the agency to
reverse its decision, the exception will swallow the rule. For that reason as well, we
would not expect injunctive relief to be a frequent basis for not exhausting
administrative remedies.
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grounds. If the answer is yes, then PERB can grant such a remedy pursuant to Section
10-11-120(A). In taking such action PERB could not be characterized as “enjoining”
PERA to do anything: PERB exercises ultimate control and authority over PERA, i.e.,
PERA personnel effectively act on behalf of, and in the name of, PERB. Section 10-
11-130. Therefore, if on appeal PERB were to reverse the 2015 denial of Plaintiffs’
request to cancel the deselection, PERB effectively would only be reconsidering its
own institutional decision, the same as any other decision that it might make to reverse
a previous PERA denial of benefits. In other words, if Section 10-11-116(E) permits
reversal of mistaken deselections, then Section 10-11-120 provides an adequate legal
remedy that precludes Plaintiffs’ claim for injunctive relief by the district court. 2

26
Dydek v. Dydek, 2012-NMCA-088, ¶ 53, 288 P.3d 872 (“[E]quity will not act if there
is a complete and adequate remedy at law.” (internal quotation marks and citation
omitted)).
{38} 	Alternatively, if under Section 10-11-116(E) the Legislature has not authorized
reversal of a mistaken deselection, then the courts have no more authority—equitable
or otherwise—to reverse the deselection than that which PERB statutorily possesses.
That is, if Section 10-11-116(E) is construed to not permit reversal of a deselection,
then as a matter of law there could be no equitable cause of action to accomplish the
same result.
{39} 	That a court may not exercise an equitable remedy to accomplish a goal that a
statute has foreclosed is well recognized by courts throughout the United States. In
Immigration & Naturalization Service v. Pangilinan, 486 U.S. 875, 882-83 (1988),
the United States Supreme Court reversed the Ninth Circuit Court of Appeals’
decision to use equitable authority to confer citizenship upon two Filipino citizens
who had served in the United States armed forces during World War II in
contravention of a federal statute explicitly setting a cutoff date by which the two
individuals should have applied for citizenship, but did not. The Pangilinan court
stated, “[I]t is well established that ‘courts of equity can no more disregard statutory
and constitutional requirements and provisions than can courts of law.’ ” Id. at 883

27
(alteration omitted) (quoting Hedges v. Dixon Cty., 150 U.S. 182, 192 (1893)). The
Pangilinan court continued, “ ‘A [c]ourt of equity cannot . . . create a remedy in
violation of law.’ ” Id. (quoting Rees v. City of Watertown, 86 U.S. (19 Wall.) 107,
122 (1873)). Specifically, Pangilinan stated that the power to grant citizenship had not
been conferred upon the federal courts as a generally applicable equitable power. See
486 U.S. at 883-84. Instead, because a federal statute dictates how a person may be
naturalized, “[n]either by application of the doctrine of estoppel, nor by invocation of
equitable powers, nor by any other means does a court have the power to confer
citizenship in violation of these [Congressional] limitations.” Id. at 885.
{40} 	Similarly, in Westerman v. United States, the Eighth Circuit Court of Appeals
applied the equitable principle that equity follows the law, stating, “Well over a
century has passed since American jurisprudence definitively established that ‘courts
of equity can no more disregard statutory and constitutional requirements and
provisions than can courts of law.’ ” 718 F.3d 743, 752 (8th Cir. 2013) (alteration
omitted) (quoting Hedges, 150 U.S. at 192). The Eighth Circuit decided that because
the Internal Revenue Service’s rights to “maximize the treasury’s collection of unpaid
liabilities by applying undesignated employment tax payments first toward non-trust
fund taxes and then by recovering unpaid trust fund taxes from the person
(Westerman) responsible for their underpayment” were “ ‘clearly defined and

28
established by law, equity has no power to change or unsettle those rights[.]’ ” Id.
(quoting Magniac v. Thomson, 56 U.S. (15 How.) 281, 299 (1853)). See generally 2
John Norton Pomeroy, A Treatise on Equity Jurisprudence § 425, at 188-90 (5th ed.
1941) (“Equity follows the law, in the sense of obeying it, conforming to its general
rules and policy, whether contained in the common or the statute law. . . . Courts of
equity may no more disregard statutory and constitutional requirements and provisions
than can courts of law. They are bound by positive provisions of a statute[.] . . .
Wherever the rights of the parties are clearly governed by rules of law, courts of
equity will follow such legal rules.”).
{41} 	New Mexico courts have embraced the same principle. In Nearburg v. Yates
Petroleum Corp., 1997-NMCA-069, ¶¶ 3, 32, 123 N.M. 526, 943 P.2d 560, this Court
declined to utilize “the court’s power of equity” to affirm the district court’s refusal
to enforce non-consent penalty provisions of an operating agreement to drill oil and
gas wells. Nearburg acknowledged that while it is within the discretion of the district
court to decide whether equitable relief should be granted, “such discretion is not a
mental discretion to be exercised as one pleases, but is a legal discretion to be
exercised in conformity with the law.” Id. ¶ 32 (alteration omitted) (quoting Cont’l
Potash, Inc. v. Freeport-McMoran, Inc., 1993-NMSC-039, ¶ 26, 115 N.M. 690, 858
P.2d 66). This Court also has observed, in declining to endorse the exercise of

29
equitable powers to override express contractual deadlines for renewing a commercial
lease, that “ ‘[e]quity jurisdiction has never given the judiciary a roving commission’
to do whatever it wishes in the name of fairness or public welfare.” United Props. Ltd.
Co. v. Walgreen Props., Inc., 2003-NMCA-140, ¶ 19, 134 N.M. 725, 82 P.3d 535
(quoting In re Adoption of Francisco A., 1993-NMCA-144, ¶ 88, 116 N.M. 708, 866
P.2d 1175). Therefore, if under Section 10-11-116(E), the Legislature has not
authorized reversal of a mistaken deselection, neither PERB (acting pursuant to its
authority under Section 10-11-120) nor this Court (acting pursuant to either legal or
equitable authority) may reverse the deselection.
{42} 	We conclude that PERB has authority under Section 10-11-120 to address the
statutory interpretation question in the first instance and determine whether a
member’s mistaken deselection of a survivor beneficiary may be reversed. If Plaintiffs
disagree with PERB’s decision, they will remain free to pursue an appeal to the
district court under Section 39-3-1.1. For the present, however, it is clear that
Plaintiffs must exhaust their administrative remedy. We express no opinion on the
substantive question.
2. 	Invalidation of the Deselection Ab Initio
{43} 	In their pleadings Plaintiffs claim not only that the deselection of Becker and
designation of Daughter as new survivor beneficiary should be reversed, but also that

30
the deselection was void ab initio because: (1) Becker never gave her consent; and (2)
documents required by 2.80.1100.11 NMAC did not accompany the deselection form.
The two claims are analytically separate: even if under Section 10-11-116(E) a
deselection, if mistaken but otherwise valid, may not be reversed, that would not
necessarily 	preclude 	a 	determination 	that 	conditions 	precedent 	prevented 	the
deselection from ever taking effect. Indeed, the second claim logically should be
addressed first, because if the deselection was null and void, then there is no need to
address whether it can be reversed.
{44} 	These, too, are questions that PERB may address during any Section 10-11-120
appeal, with the opportunity for review by the district court on appeal. That is, on
these questions as well, Plaintiffs must exhaust their administrative remedy. We
express no opinion on the issue, including the subsidiary questions whether Becker
has any property interest in a survivor benefit, whether the spousal consent language
in Section 10-11-116(A) applies only to pre-retirement spouses, and whether the
failure to submit with the deselection form any of the documentation described in
2.80.1100.11 NMAC would operate to void the deselection.

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III. 	CONCLUSION
{45} 	We affirm the district court’s dismissal of Plaintiffs’ Complaint on grounds that
they 	must 	exhaust 	the 	administrative 	remedy 	afforded 	them 	pursuant 	to
Section 10-11-120.
{46} 	IT IS SO ORDERED.
___________________________________
HENRY M. BOHNHOFF, Judge
WE CONCUR:
___________________________________
LINDA M. VANZI, Chief Judge
___________________________________
JAMES J. WECHSLER, Judge