     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 KIMBERLY GALLEGOS,

 3          Plaintiff-Appellant,

 4 v.                                                                                   NO. 32,594

 5 NEW MEXICO HUMAN SERVICES
 6 DEPARTMENT,

 7          Defendant-Appellee.

 8 APPEAL FROM THE NEW MEXICO DEPARTMENT OF HUMAN
 9 SERVICES
10 Aldo Jadrnicek, Administrative Law Judge

11 New Mexico Center on Law and Poverty
12 Craig Acorn, Senior Attorney
13 Albuquerque, NM

14 for Appellant

15 New Mexico Human Services Department
16 Robert J. Lennon
17 Santa Fe, NM

18 for Appellee

19                                 MEMORANDUM OPINION

20 VANZI, Judge.
 1        Appellant Kimberly Gallegos (Claimant) appeals from the ruling by the

 2 Administrative Law Judge (ALJ) [RP 1], as adopted by the Human Services

 3 Department (HSD) Director [SRP 1], that dismisses Claimant’s request for a fair

 4 hearing [RP 134] to contest the merits of whether her Temporary Assistance for

 5 Needy Family (TANF) benefits were improvidently terminated. [RP 1] As a basis for

 6 the dismissal, the ALJ provided that Claimant did not timely request a hearing within

 7 90 days from HSD’s April 16, 2012 notice of adverse action [RP 94, 126] and that the

 8 ALJ accordingly was exercising his discretion to dismiss her request for a fair hearing

 9 on the merits. [RP 1] Our second notice proposed to reverse and remand. The

10 Human Services Department (HSD) did not file a memorandum in opposition.

11 Claimant filed a memorandum in support in which she agreed that reversal and

12 remand was appropriate.

13        As addressed in our second notice in issue (C) and conceded by Claimant [MIS

14 5], Claimant did not satisfy the 90-day deadline for challenging the termination of her

15 benefits after issuance of the notice of adverse action. However, for the reasons

16 extensively detailed in our second notice, we hold that the ALJ abused his discretion

17 in not addressing the merits of whether HSD improvidently terminated Claimant’s

18 TANF benefits.      For this reason, we reverse the ALJ’s ruling that dismisses

19 Claimant’s appeal for failure to comply with the 90-day deadline for requesting a fair

20 hearing and remand for consideration of the merits of Claimant’s appeal.

                                              2
1      IT IS SO ORDERED.

2                               __________________________________
3                               LINDA M. VANZI, Judge

4 WE CONCUR:



5 _________________________________
6 JAMES J. WECHSLER, Judge



7 _________________________________
8 CYNTHIA A. FRY, Judge




                                  3
