              IN THE SUPREME COURT OF IOWA
                             No. 18–1329

                          Filed May 29, 2020

TERRI ENDRESS,

      Appellee,

vs.

IOWA DEPARTMENT OF HUMAN SERVICES,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Karen A.

Romano, Judge.



      DHS seeks further review of a court of appeals decision. DECISION

OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

DIRECTIONS.


      Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor

General, and Tabitha J. Gardner, Assistant Attorney General, for

appellant.



      Trent W. Nelson of Sellers, Galenbeck & Nelson, Des Moines, for

appellee.
                                      2

CHRISTENSEN, Chief Justice.

      In this case, the Iowa Department of Human Services (DHS) waited

two years to attempt recoupment of $16,003.94 for child-care services

rendered by the provider during agency review of her cancelled provider

agreement.      We    must   decide   whether    the    provider   was   given

constitutionally sufficient notice of DHS’s intent to recoup payments. DHS

sent a notice cancelling the agreement. The notice advised the provider of

a right to appeal but cautioned, “Any benefits you get while your appeal is

being decided may have to be paid back if the Department’s action is

correct.” On appeal, DHS affirmed its decision to cancel the provider’s

agreement. Years later, DHS also found that the provider had to pay back

the $16,003.94.      On judicial review, the district court reversed DHS’s

decision on recoupment. It reasoned DHS’s notice to the provider did not

afford her procedural due process. The district court, however, denied

attorney fees to the provider under Iowa Code section 625.29(1)(b) (2017).

On appeal, the court of appeals affirmed the decision of the district court

on the merits while reversing with respect to the award of attorney fees.

      We granted further review. Upon our review, we conclude DHS’s

notice meets procedural due process requirements.          However, we also

conclude that DHS erred in refusing to consider the provider’s unjust-

enrichment defense to the recoupment proceeding.          On remand to the

agency, the provider should be allowed an opportunity to raise unjust

enrichment as an offset to DHS’s effort to recoup overpayments. With

respect to attorney fees, DHS’s role was primarily adjudicative, and it is

not liable for attorney fees. Therefore, we vacate the decision of the court

of appeals and affirm in part and reverse in part the judgment of the

district court. We remand the case to the district court to remand to DHS

for consideration of the provider’s equitable relief.
                                          3

      Three justices of this court have joined this entire opinion. The

concurrence in part and dissent in part filed by Justice McDonald on

behalf of three justices joins divisions III.A and III.C of this opinion, while

dissenting as to division III.B. The concurrence in part and dissent in part

filed by Justice Appel contingently joins division III.B of this opinion, while

dissenting as to divisions III.A and III.C. Accordingly, this opinion controls

all aspects of the resolution of this appeal.

      I. Background Facts and Proceedings.

      In 2012, Terri Endress received DHS registration as an approved

Category B DHS child-care provider. Endress entered into a Child Care

Assistance Provider (CCAP) agreement with DHS on March 6, 2013. This

agreement allowed Endress to receive state funds to provide child care for

eligible children, not to exceed twelve children at any one time.          The

agreement had a two-year term and provided that if it was terminated,

termination “may prevent” Endress from reapplying to be a provider for six

months.

      DHS received at least three reports against Endress, indicating more

children were present in her day care than allowed under her registration.1

The DHS investigator never found more than twelve children present
during his spot checks.        Nor did DHS find any other health or safety

violations associated with the day care. However, on reviewing the billings,

DHS found Endress had submitted billings that would have indicated

thirteen to fifteen children were present at the same time.

      On July 17, 2014, Endress received notice from DHS cancelling her

CCAP agreement because she had repeatedly submitted claims for

payment to which she was not entitled (based on the number of children


      1Two   of the reports predated the March 6, 2013 agreement.
                                          4

shown under her care at specific times).                 The notice of cancellation

explained Endress may keep her benefits until an appeal is final. However,

the notice cautioned, “Any benefits you get while your appeal is being

decided may have to be paid back if the Department’s action is correct.”

      Endress elected to receive funding while she appealed the decision

cancelling her CCAP agreement. As a result, Endress received a July 31,

2014 notice:

      You have timely appealed the cancellation or denial of your
      CCA provider agreement.         You are therefore allowed to
      continue to receive child care assistance funding pending the
      outcome of your appeal. Any benefits you get while your
      appeal is being decided may have to be paid back if the
      Department’s action is correct.

(Emphasis added.) DHS issued a final decision on November 17, 2014,

sustaining the proposed decision to cancel Endress’s CCAP agreement

because she repeatedly made billings for children in excess of the numbers

allowed for her care at any one time.

      On March 17, 2017, Endress was approved by DHS for another

CCAP agreement. On April 3, Endress received a “Notice of Child Care

Assistance Overpayment” in the amount of $16,003.94 2 for the months of

July 2014 to November 2014. DHS alleged the overpayment was due to
“[a] mistake by [Endress] that caused DHS to pay [her] incorrectly for child

care services” and that the “overpayment happened because of [her] choice

to continue benefits pending an appeal.”             Endress appealed, and an

administrative     law   judge    (ALJ)       affirmed    DHS’s    computation    of

overpayment for child-care assistance.

      This proposed decision was adopted as DHS’s final decision, and

Endress petitioned for judicial review. She argued DHS violated her due

      2The    original notice stated the amount owed as $16,001.94.   That was later
corrected to the present amount, $16,003.94.
                                      5

process rights through insufficient notice of its intent to recoup payments

during her pending appeal.       She also argued that she had not been

overpaid; she had provided appropriate child care at DHS rates for the

children entrusted to her.    Endress pointed out that if there was any

overpayment, based on the DHS audit, it amounted only to $623.28 at

most and not the full amount (over $16,000) she was paid over four

months for child-care services rendered.        The district court granted

Endress’s petition and reversed the decision of DHS. On judicial review,

it determined DHS exceeded its statutory authority in promulgating the

recoupment provisions of its administrative rules, the administrative rules

were unconstitutionally vague, and DHS’s implementation of the

administrative rules violated Endress’s procedural due process rights.

Endress also sought attorney fees, which the district court denied.

      DHS appealed, and Endress cross-appealed the denial of attorney

fees. On appeal, the court of appeals agreed that Endress maintained a

protected property interest in payments made under the CCAP agreement

and that the notice of recoupment was constitutionally deficient. However,

it reversed the district court’s determination that Endress was not entitled

to attorney fees.

      DHS applied for further review, and we granted its application.

      II. Standard of Review.

      Different standards of review apply to the claims raised by Endress.

First, the Iowa Administrative Procedure Act defines the standards we

apply in our judicial review of agency action to determine whether we reach

the same conclusion as the district court. See Iowa Code § 17A.19(10);

Brewer-Strong v. HNI Corp., 913 N.W.2d 235, 242 (Iowa 2018).             “The

district court may properly grant relief if the agency action prejudiced the

substantial rights of the petitioner and if the agency action falls within one
                                      6

of the criteria listed in section 17A.19(10)(a) through (n).” Brakke v. Iowa

Dep’t of Nat. Res., 897 N.W.2d 522, 530 (Iowa 2017).

      Second, Endress’s constitutional claims in agency proceedings are

reviewed de novo. Ghost Player, L.L.C. v. State, 860 N.W.2d 323, 326 (Iowa

2015).

      Finally, with respect to whether attorney fees are available, we apply

the standard of correction of errors at law. Colwell v. Iowa Dep’t of Human

Servs., 923 N.W.2d 225, 232 (Iowa 2019).

      III. Analysis.

      A. Procedural Due Process.          Endress alleges a violation of her

procedural due process rights under the Fourteenth Amendment to the

United States Constitution and article I, section 9 of the Iowa Constitution.

We will apply the federal substantive standards because Endress does not

suggest we follow different substantive standards under the Iowa

Constitution. See Behm v. City of Cedar Rapids, 922 N.W.2d 524, 566

(Iowa 2019) (applying federal substantive standards to a party’s procedural

due process claim raised under the Iowa Constitution); State v. Russell,

897 N.W.2d 717, 732 & n.7 (Iowa 2017) (“Russell also did not present an

argument for why we should depart from established precedent in our

interpretation of the Iowa Constitution’s due process clause. We therefore

treat both [federal and state] claims as the same.”).

      Endress is entitled to procedural due process if a state action

threatens to deprive her of a protected interest in life, liberty, or property.

Behm, 922 N.W.2d at 566; Russell, 897 N.W.2d at 732–33; Bowers v. Polk

Cty. Bd. of Supervisors, 638 N.W.2d 682, 690 (Iowa 2002). Accordingly, as

a first step, Endress must show a protected interest is involved. See Behm,

922 N.W.2d at 566; State v. Willard, 756 N.W.2d 207, 214 (Iowa 2008).
                                      7

      We have explained, “Protected property interests ‘ “are created and

their dimensions are defined” not by the Constitution but by an

independent source such as state law.’ ”       Willard, 756 N.W.2d at 214

(quoting State v. Seering, 701 N.W.2d 655, 665 (Iowa 2005), superseded

by statute on other grounds, 2009 Iowa Acts ch. 119, § 3 (codified at Iowa

Code § 692A.103 (Supp. 2009)), as recognized in AFSCME Iowa Council 61

v. State, 928 N.W.2d 21, 31 (Iowa 2019)).          This includes “rules or

understandings that secure certain benefits and that support claims of

entitlement to those benefits.” Bd. of Regents of State Colls. v. Roth, 408

U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972); Orloff v. Cleland, 708 F.2d

372, 377 (9th Cir. 1983) (“Entitlements are created by ‘rules or

understandings’ from independent sources, such as statutes, regulations,

and ordinances, or express or implied contracts.” (quoting Roth, 408 U.S.

at 577, 92 S. Ct. at 2709)).

      The district court concluded the relevant statute at issue—in

conjunction with its administrative rules—created DHS’s statutory

obligation to pay for the child-care services Endress provided during her

appeal. The statute relied on provides,

      The department’s billing and payment provisions for the
      program shall allow providers to elect either biweekly or
      monthly billing and payment for child care provided under the
      program. The department shall remit payment to a provider
      within ten business days of receiving a bill or claim for services
      provided. However, if the department determines that a bill
      has an error or omission, the department shall notify the
      provider of the error or omission and identify any correction
      needed before issuance of payment to the provider. The
      department shall provide the notice within five business days
      of receiving the billing from the provider and shall remit
      payment to the provider within ten business days of receiving
      the corrected billing.

Iowa Code § 237A.13(4) (2017) (emphasis added).             It reasoned the

legislature’s use of “shall” mandated a duty, see Iowa Code § 4.1(30)(a),
                                     8

which was fulfilled by DHS’s accompanying rule, see Iowa Admin. Code

r. 441—7.9(1) (2017).

       We assume, without deciding, that Endress did have a protected

property interest in payments under her CCAP agreement. Therefore, our

next step is to determine whether Endress was afforded procedural due

process. Procedural due process requires, at the very least, “notice and

opportunity to be heard in a proceeding that is ‘adequate to safeguard the

right for which the constitutional protection is invoked.’ ” Willard, 756

N.W.2d at 214 (quoting Seering, 701 N.W.2d at 665–66). Endress does not

challenge the district court’s finding that she was given an opportunity to

be heard. The contention lies with the notice DHS provided. Endress

asserts DHS’s notice is not a sufficient warning of the action taken against

her.   We have said, “Notice must be reasonably calculated to apprise

interested parties of the pendency of the action and afford them an

opportunity to present their objections.” Meyer v. Jones, 696 N.W.2d 611,

614 (Iowa 2005) (quoting In re Estate of Borrego, 490 N.W.2d 833, 837

(Iowa 1992)). We conclude the notice DHS provided Endress meets this

requirement.

       The first notice Endress received was DHS’s “Notice of Decision:

Child Care.” This notice explained DHS was cancelling Endress’s CCAP

agreement and specifically stated, “This action means you are no longer

eligible to receive CCA payments, it does not change your status as a child

development home or licensed center.” The notice also provided Endress

with a right-to-appeal document.      As stated in the appeal document,

Endress could elect to keep her benefits until an appeal is final. However,

it cautioned, “Any benefits you get while your appeal is being decided may

have to be paid back if the Department’s action is correct.” Endress claims

the use of “benefits” connotes a broader gratuity or assistance not
                                      9

applicable to her; she also argues that the cautionary language about

repayment of “benefits” does not mean that she may be required to pay

back her earned funds.

      Iowa Code chapter 237A does not define “benefits.” Likewise, the

relevant administrative rules as well as the provider agreement are silent

on this definition. “In the absence of a legislative definition of a term or a

particular meaning in the law, we give words their ordinary meaning.”

State v. Kidd, 562 N.W.2d 764, 765 (Iowa 1997). The dictionary is a source

for the common and ordinary meaning of a word. Id. “Benefits” is defined

as “to be useful or profitable to : AID, ADVANCE, IMPROVE.” Benefits,

Webster’s Third New International Dictionary (unabr. ed. 2002).           We

determine the plain and ordinary definition of “benefits” includes funds

provided to Endress by DHS for child-care services.

      Our understanding of what “benefits” means is further supported by

the context of the second notice Endress received.        Endress appealed

DHS’s decision to cancel her CCAP agreement. As part of the appeals

process, Endress selected “Yes” to whether she wanted her “Benefits [to]

Continue.” Her decision prompted DHS to send a second notice indicating

she appealed the cancellation of her agreement. Important to our decision

here, the second notice advised Endress that she was “allowed to continue

to receive child care assistance funding pending the outcome of [her]

appeal.”   (Emphasis added.)    The second notice again cautioned, “Any

benefits you get while your appeal is being decided may have to be paid

back if the Department’s action is correct.”      It is clear the plain and

ordinary meaning of “benefits” includes any funds Endress received while

her appeal was pending. The notice from DHS need only “be reasonably

calculated to apprise interested parties of the pendency of the action.”

Meyer, 696 N.W.2d at 614 (quoting In re Estate of Borrego, 490 N.W.2d at
                                     10

837). DHS’s notice meets this requirement and Endress was thus afforded

procedural due process.

      B. Equitable Relief. We do not agree that this ends the matter,

though. While Endress’s appeal was pending, DHS was getting the benefit

of child-care services from her. As a DHS-approved Category B child-care

provider, Endress provided eligible families with child-care services. See

Iowa Code § 237A.13(1)(a)–(f); Iowa Admin. Code r. 441—170.4(3)(b). More

importantly, DHS-approved providers could also provide child-care

services for a child with protective needs in order to prevent or alleviate

abuse or neglect, see Iowa Code § 237A.13(1)(e), and child-care services

provided under a court order, see Iowa Admin. Code r. 441—170.3(2)(d).

Because of the exigent circumstances surrounding child abuse or neglect,

the benefits of protective child care and court-ordered child care are

provided irrespective of whether that child’s family is eligible for state

child-care assistance.    See Iowa Admin. Code r. 441—170.3(2)(c), (d).

When the state exercises its removal power to prevent or alleviate harm to

a child, see Iowa Code §§ 232.78, .79, .79A, .102(1)(a)(3), the DHS-

approved child-care providers benefit the state by keeping the removed

child safe.

      It is the state’s obligation, as parens patriae, to ensure every child

receives proper care and treatment.       Hensler v. City of Davenport, 790

N.W.2d 569, 583 (Iowa 2010) (“The state has a legitimate interest to

promote the public welfare or the well-being of the child.”); In re K.N., 625

N.W.2d 731, 735 (Iowa 2001) (en banc) (“We have also observed that it is

the State’s duty, as parens patriae, to ensure that the aims of the juvenile

justice code are applied to each child in need of the code’s assistance.”); In

re Guardianship of Hedin, 528 N.W.2d 567, 571 (Iowa 1995) (en banc)

(stating it is the state’s obligation under the doctrine of parens patriae to
                                      11

care for vulnerable and less fortunate persons); In re M.M., 483 N.W.2d

812, 814 (Iowa 1992) (“The State, as parens patriae, has the duty to make

sure that every child within its borders receives appropriate care and

treatment. Our juvenile statutes are designed to effectuate that duty.”

(Citation omitted.)). The state may use a wide range of powers to ensure a

child’s safety, see Hensler, 790 N.W.2d at 583, which include financial

demands on the public fisc, see Iowa Code § 237A.12 (“Subject to the

provisions of chapter 17A, the department shall adopt rules setting

minimum standards to provide quality child care in the operation and

maintenance of child care centers and registered child development

homes . . . .”); id. § 237A.29(1) (allowing state and federal funds to pay for

child-care services); Galloway v. State, 790 N.W.2d 252, 257, 258 (Iowa

2010) (“If parents fail to provide for the needs of their injured children, and

the preinjury waiver in favor of the tortfeasor is enforced, financial

demands may be made on the public fisc to cover the cost of care.”); Clare

Huntington, Welfare Reform and Child Care: A Proposal for State

Legislation, 6 Cornell J.L. & Pub. Pol’y 95, 115 (1996) (“Importantly,

because child care subsidies funds were drawn directly from the public

fisc, the CCBDG [Child Care and Development Block Grant] succeeded in

shifting the cost of child care away from the working poor and onto society

at-large.”).

       Endress contends it would be unreasonable, arbitrary, capricious,

or an abuse of discretion for DHS to receive free child-care services from

her during the four months in 2014 that her appeal was pending. The

rules allow for recovery of “overpayments . . . due to benefits or payments

issued pending an appeal decision . . . . Overpayments shall be computed

as if the information had been acted upon timely.” Iowa Admin. Code

r. 441—170.9(2). Endress argues that if this rule is interpreted as allowing
                                     12

DHS to take back everything it paid her from July to November 2014

regardless of the benefit received, DHS would be unjustly enriched.

      Endress asserted this unjust enrichment argument before the

agency. The ALJ rejected this argument on the ground that the doctrine

is a basis for recovering funds in a civil action, not a defense in an

administrative action. The DHS director adopted the ALJ’s decision and

did not separately address this issue at all.

      We think this was error. Under the law of contracts, even when a

party is in breach, the party “has a claim in restitution against the

recipient of performance, as necessary to prevent unjust enrichment.”

Restatement (Third) of Restitution & Unjust Enrichment § 36(1), at 585–

86 (Am. Law Inst. 2011). It is true that such claims may be limited or

denied because of the breaching party’s inequitable conduct, see id. § 63,

at 487, but DHS never engaged in this analysis. Unjust enrichment could

have been considered as a defense or offset.

      Also, the notice itself did not specify that any payments received

during the appeal period “shall” be returned to DHS if Endress lost her

appeal. It said that the benefits “may” have to be paid back. Inherent in

the word “may” is that the agency has discretion. See State ex rel. Lankford

v. Allbee, 544 N.W.2d 639, 641 (Iowa 1996). And that discretion is subject

to reversal if it is unreasonable, arbitrary, capricious, or an abuse of

discretion.   See Iowa Code § 17A.19(10)(n).      DHS’s rule states that

“overpayments” shall be recouped from child-care providers.       See Iowa

Admin. Code r. 441—170.9(2). The word “overpayment” is pervasive. But

this begs the question of whether a child-care provider has been “overpaid”

during an appeal period when DHS receives child-care services and has

no complaint about their quality or the provider’s registration. Endress’s

very point—which DHS declined to consider—was she had only been
                                    13

“overpaid” at most $623.28. Further, Endress testified that she had paid

her own employees out of the $16,000. Additionally, she testified that

between November 2014 and March 2017 she simply switched roles with

one of her employees who held the DHS contract; presumably, that same

arrangement could have been made during the appeal period.

      Unjust enrichment is rooted in the principle that one party should

not be unjustly enriched at the expense of another party. State ex rel.

Palmer v. Unisys Corp., 637 N.W.2d 142, 154 (Iowa 2001).          We have

previously recognized that “unjust enrichment is a broad principle with

few limitations.” Id. at 155. The remedies under this doctrine may be

legal, equitable, or both.   Restatement (Third) of Restitution & Unjust

Enrichment § 4, at 27; id. § 4 cmt. b, at 28 (“The law of restitution is not

easily characterized as legal or equitable, because it acquired its modern

contours as the result of an explicit amalgamation of rights and remedies

drawn from both systems.”). Unjust enrichment has three basic elements:

“(1) enrichment of the defendant, (2) at the expense of the plaintiff,

(3) under circumstances that make it unjust for the defendant to retain

the benefit.” Behm, 922 N.W.2d at 577. In the past, we have considered

a plaintiff’s unjust-enrichment claim against DHS and the State of Iowa.

See Ahrendsen ex rel. Ahrendsen v. Iowa Dep’t of Human Servs., 613

N.W.2d 674, 679 (Iowa 2000) (en banc) (holding “neither DHS nor the State

of Iowa was unjustly enriched by denying an application for Medicaid

benefits on a ground that was consistent with federal statutory law and

the DHS regulations”); see also Krieger v. Iowa Dep’t of Human Servs., 439

N.W.2d 200, 203 (Iowa 1989) (“The DHS was not ‘enriched’ by the services
                                            14

rendered for the Waterloo Pollution Control Plant.”); Dolezal v. City of

Cedar Rapids, 326 N.W.2d 355, 358 (Iowa 1982). 3

       We do not think the law draws a distinction based on the procedural

status of the matter. Thus, the mere fact that DHS had paid for the July

2014 to November 2014 services and thus was initiating the claim, rather

than defending Endress’s claim, should not make a difference. Either way,


       3The cases of Kreiger, 439 N.W.2d 200, Marshall v. State, 559 N.W.2d 612 (Iowa

1997), and Ahrendsen, 613 N.W.2d 674, are all distinguishable on their facts.
        In Krieger, an individual who received welfare benefits while failing to disclose an
asset that rendered him ineligible became the subject of a DHS recoupment action. 439
N.W.2d at 201. He did not dispute that recoupment was appropriate but argued that he
should receive credit for services he had provided without compensation under a
community work experience program as a condition of receiving his benefits. Id. We held
unjust enrichment was not an appropriate offset under the facts of that case, reasoning,
“[W]e . . . reject Krieger’s unjust enrichment argument. The DHS was not ‘enriched’ by
the services rendered for the Waterloo Pollution Control Plant. Krieger worked for the
Waterloo plant, not for the DHS, and the DHS received no benefits from his services.” Id.
at 203. Of course, welfare benefits are different from contracted child-care services. See
id. at 201. The work requirement was intended to make Krieger more employable and to
provide a benefit to the Waterloo plant—not to provide a benefit to DHS. See id at 202–
03.
        In Marshall, an individual who received welfare benefits when she was not eligible
due to having provided false information was required to pay all those benefits back. 559
N.W.2d at 615. We upheld the agency’s determination that lack of fraudulent intent was
not a defense to repayment. Id. But, again, welfare benefits are different from contracted
child-care services. The applicable state administrative rule was different. See id. at 614.
And federal law left no discretion as to whether those benefits had to be recovered. Id.
        In Ahrendsen, an estate sought more than three months of retroactive Medicaid
benefits, even though federal law and state regulations limited retroactivity to only three
months. 613 N.W.2d at 677. The estate pointed out that the Medicaid application had
been delayed because DHS had provided incorrect information. Id. at 676. We upheld
DHS’s denial of more than three months of benefits and also denied recovery under unjust
enrichment. Id. at 678–79. We explained, “We are convinced that neither DHS nor the
State of Iowa was unjustly enriched by denying an application for Medicaid benefits on a
ground that was consistent with federal statutory law and the DHS regulations.” Id. at
679. But there the federal law and regulations gave no room for discretion. Id. at 677.
Furthermore, as in Marshall, these were benefits rather than payments for services
rendered. See id. at 675. So it would be unrealistic to say DHS had been “unjustly
enriched” when it received nothing in return. See id. at 679.
       A key point is that none of these cases said that unjust enrichment could not
apply to DHS recoupment proceedings. In fact, Krieger and Ahrendsen implicitly
recognized it could apply under the appropriate facts.
                                       15

it seems inequitable for DHS to get needed child-care services for nothing.

This is not to say that Endress is entitled to keep all of the $16,003.94.

She has the burden of showing the benefit she conferred on DHS during

the four months in question that should be offset against DHS’s requested

recoupment. For example, she must demonstrate that during the four

months, the day care was operating lawfully and did not have an excessive

number of children. To the extent DHS has suffered loss attributable to

Endress’s violations of the CCAP agreement, that should be taken into

account as well.      See Restatement (Third) of Restitution & Unjust

Enrichment § 36, at 585–86; id. § 63, at 487. In short, the issue remaining

is whether DHS’s enrichment at Endress’s expense was “under

circumstances that make it unjust for [DHS] to retain the benefit.” Behm,

922 N.W.2d at 577. Therefore, we remand to the district court to remand

to the agency so that it may fully consider Endress’s unjust-enrichment

claim as an offset against DHS’s claim for recoupment.

      C. Attorney Fees. Iowa law authorizes a court to award attorney

fees to a party that prevails in a judicial review action brought against the

state pursuant to chapter 17A. Iowa Code § 625.29(1). However, there is

an exception.

      [T]he court shall not make an award under this section if it
      finds one of the following:

            ....

            b. The    state’s   role   in   the   case   was   primarily
      adjudicative.

Id. § 625.29(1)(b).   The district court considered the exceptions under

section 625.29(1) and concluded DHS’s role in the case was primarily

adjudicative.   Accordingly, it declined to award Endress attorney fees.
                                     16

Endress now claims the agency did not adjudicate the rights and duties of

the parties but rather preserved the issues for judicial review.

      Within the context of section 625.29(1), our court addressed the

meaning of “primarily adjudicative.” We have explained, “[I]t can be said

that if an agency’s function principally or fundamentally concerns settling

and deciding issues raised, its role is primarily adjudicative.” Remer v. Bd.

of Med. Exam’rs, 576 N.W.2d 598, 601 (Iowa 1998) (en banc). The role of

the agency is viewed “ ‘in the case’ at bar,” not the agency’s role generally.

Id. Therefore, we must determine whether the agency’s role in Endress’s

case principally or fundamentally concerned settling and deciding issues

raised.

      We addressed whether the role of an agency was primarily

adjudicative in Branstad v. State ex rel. Natural Resource Commission, 871

N.W.2d 291 (Iowa 2015). Branstad concerned the Iowa Department of

Natural Resources (DNR) investigation and subsequent restitution

assessment following a fish kill. Id. at 292–93. A contested hearing was

held before an impartial ALJ to address the assessment of restitution,

including the amount. Id. at 293, 297. After the ALJ issued a proposed

decision affirming the DNR’s assessment, Branstad appealed to the Iowa

Natural Resource Commission. Id. at 298. The commission affirmed the

proposed decision, which became the final decision.           Id.   Branstad

petitioned for judicial review, and this court was asked to determine

whether the state’s role was primarily adjudicative. Id. at 294–95.

      The Branstad court cited our previous understanding of “primarily

adjudicative” as expressed in Remer. See id. at 295–96. It also noted the

role of the commission was to “[hear] appeals in contested cases pursuant

to chapter 17A.” Id. at 296 (quoting Iowa Code § 455A.5(6)(b)). Ultimately,

the commission “weighed the evidence about the fish kill, applied the
                                    17

rules, considered Branstad’s various defenses, and determined that the

amount in the restitution assessment was proper.” Id. Its actions fell

squarely within the meaning of adjudicate. Id. at 297.

      The procedure in Branstad aligns with Endress’s case. Following

reports that Endress had more than twelve children present at certain

times, DHS conducted an investigation.       It found Endress submitted

claims for payment to which she was not entitled.        This led DHS to

terminate Endress’s CCAP agreement and later to recoup overpayments.

Endress appealed DHS’s decision to recoup overpayments in a contested

case before an impartial ALJ. The notice of hearing before the ALJ framed

the issue as “[w]hether the Department correctly computed and

established a claim for overpaid child care assistance.” In support of her

nonadjudicative position, Endress points out DHS’s own rules indicate the

recovery of overpayments “is not an appealable issue.” Iowa Admin. Code

r. 441—7.9(7). However, the proposed decision rejected this position and

specifically addressed whether DHS correctly computed and established

overpayment. The authority to address whether DHS correctly computed

overpayment is in fact provided by DHS’s rules: “[A]ppeals may be heard

on the computation of excess assistance paid pending a final decision.” Id.

Although the impartial ALJ made the initial proposed decision, DHS made

the final decision after it weighed evidence about recoupments, applied

rules, and determined the rights of the parties. See Branstad, 871 N.W.2d

at 297.

      We are not persuaded the state’s role was to primarily preserve

arguments. DHS’s final decision adopted the proposed decision, which

affirmed “[DHS’s] decision establishing and computing a claim for

overpayment against [Endress] in the amount of $16,003.94.” It is true

DHS’s final decision preserved Endress’s constitutional arguments for
                                    18

judicial review.    This is because DHS lacked authority to decide her

constitutional issues.   See Soo Line R.R. v. Iowa Dep’t of Transp., 521

N.W.2d 685, 688 (Iowa 1994).      Moreover, Endress is required to raise

constitutional issues at the agency level, even though the agency lacks the

authority to decide the issues, in order to preserve the constitutional

issues for judicial review. See McCraken v. Iowa Dep’t of Human Servs.,

595 N.W.2d 779, 785 (Iowa 1999).         Contrary to Endress’s position,

preserving an issue for judicial review because the agency lacks authority

to decide the issue does not automatically brand the agency action as

nonadjudicative. If DHS determines it lacks jurisdiction to hear a dispute

it could otherwise adjudicate, a prevailing party cannot ask for section

625.29(1) attorney fees against DHS as the adjudicator. See Colwell, 923

N.W.2d at 238. DHS has the authority to determine for itself if it has

subject matter jurisdiction over a matter. Id. As we explained in Colwell,

      Every court has inherent power to determine whether it has
      jurisdiction over the subject matter of the proceedings before
      it. It makes no difference how the question comes to its
      attention. Once raised, the question must be disposed of, no
      matter in what manner of form or stage presented. The court
      on its own motion will examine grounds of its jurisdiction
      before proceeding further.

Id. (quoting Carmichael v. Iowa State Highway Comm’n, 156 N.W.2d 332,

340 (Iowa 1968)).

      In this case, DHS preserved the constitutional issues it lacked

authority over, addressed whether it correctly computed and established

overpayments, and settled the issues raised. Endress is concerned the

use of the agency appeal system to preserve issues for judicial review gives

the false impression that adjudication occurred, thereby preventing

potential attorney fees under section 625.29(1)’s exceptions.           We

previously addressed this concern in Branstad:
                                     19
      [A] commentator who has reviewed the legislative history
      notes that, while there is no explanation provided in the
      legislation, previous proposed bills would have eased the
      ability to award attorney fees against the State. These bills
      were rejected in favor of more limiting language contained in
      the final legislation. Key among legislative concerns with prior
      forms of the bill was the cost to the State if attorney fees were
      awarded often.

Branstad, 871 N.W.2d at 297 (citations omitted).          If the legislature

intended to ease the ability to award attorney fees, it would have done so.

      The principal function of DHS in the case at bar was primarily

adjudicative.   Therefore, DHS is not liable for Endress’s attorney fees
under Iowa Code section 625.29(1)(b).

      IV. Conclusion.

      For the aforementioned reasons, the decision of the court of appeals

is vacated. We affirm the judgment of the district court in part, reverse in

part, and remand to the district court with directions to remand the matter

to the agency to consider unjust enrichment as an offset (at least in part)

to DHS’s claim for recoupment.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT        AFFIRMED     IN   PART,    REVERSED       IN   PART,      AND

REMANDED WITH DIRECTIONS.

      Waterman and Mansfield, JJ., join this opinion. Appel, J., files a

concurrence in part and dissent in part. McDonald, J., files a separate

concurrence in part and dissent in part joined by Oxley and McDermott,

JJ.
                                      20

                         #18–1329, Endress v. Iowa Dep’t of Human Servs.

APPEL, Justice (concurring in part and dissenting in part).

      In my view, this case presents a classic due process problem arising

from an extreme case of administrative overreach that cries out for a

judicial remedy.     Further, because the Iowa Department of Human

Services (DHS) did not adjudicate the most important issues in the

administrative process, I conclude that Terri Endress is entitled to attorney

fees under Iowa Code section 625.29 (2017).

      I. Factual and Procedural Background.

      A. Introduction. Endress had a Child Care Assistance Provider

(CCAP) agreement with the DHS to provide child care for low income

persons. Under the agreement, she was to provide services to no more

than twelve children. The agreement contained a repayment provision,

which stated, “I understand that I may have to repay money received in

error or as a result of fraudulent billing.”

      B. First and Second DHS Notices of Decision.

      1. First notice. DHS sent Endress a “Notice of Decision: Child Care”

dated July 17, 2014.      The notice declared that the CCAP agreement

between Endress and DHS was cancelled because “Endress submitted

claims for payment for which [she was] not entitled.”

      The notice provided that if Endress did not agree with the decision,

she could discuss the decision with agency staff.            Such informal

discussions, however, did not diminish her right to a hearing. The notice

further stated, “If your application has been denied or your assistance has

been canceled, you have the right to reapply.”

      The notice provided that Endress had a right to appeal the decision.

The notice stated if she appealed within ten days of the decision,
                                    21
      You may keep your benefits until your appeal is final or
      through the end of your certification period if you file an
      appeal . . . .

      ....

      Any benefits you get while your appeal is being decided may
      have to be paid back if the Department’s action is correct.

Endress filed an appeal within ten days of the notice.

      2. Second notice. DHS sent Endress a second “Notice of Decision:

Child Care.”    The notice stated that Endress timely appealed the

cancellation or denial of her CCAP agreement. The second notice further

stated,

            You are therefore allowed to continue to receive child
      care assistance funding pending the outcome of your appeal.
      Any benefits you get while your appeal is being decided may
      have to be paid back if the Department’s action is correct.

      The second notice repeated the statement of the original notice that

Endress “may keep [her] benefits until an appeal is final or through the

end of [her] certification period” if a timely appeal is filed. The second

notice further stated, again, “Any benefits you get while your appeal is

being decided may have to be paid back if the Department’s action is

correct.”

      3. Administrative decision on notices. An administrative law judge

(ALJ) held a telephonic hearing on the matter. Endress appeared on her

own behalf; a representative from DHS appeared and called three

witnesses. DHS submitted documents into the record including the CCAP

agreement, complaint reports, attendance records, and the findings of a

program manager.     The ALJ characterized the issue as “[w]hether the

Department correctly cancelled [Endress’s] child care provider agreement

for repeatedly submitting claims for payment to which Endress was not

entitled.” The ALJ noted that Endress certified that she would comply with
                                    22

the minimum requirements for a child-care development home and that

three reports were filed against her indicating that more children were

present in her day care than were allowed under her registration. The ALJ

noted, however, that the DHS investigator never directly observed that

Endress had more children present in day care than allowed under her

provider agreement.

      The ALJ determined that on several occasions, Endress submitted

bills indicating the presence of more than twelve children, and as a result,

the ALJ determined that Endress had submitted claims for payment for

which she was not entitled. While Endress suggested there were billing

mistakes by employees, the ALJ determined that Endress repeatedly billed

for children in excess of the number allowed for her care at any one time.

As a result, the ALJ ruled that DHS’s cancellation of her CCAP agreement

should be sustained.

      C. Notice of Child-Care Assistance Overpayment.

      1. Introduction. For several years, there was no further action taken

by either Endress or DHS. In 2017, however, Endress applied for a new

CCAP agreement and was accepted as a provider on about March 17.

      2. Notice of child-care assistance overpayment. DHS sent Endress

a “Notice of Child Care Assistance Overpayment” on April 3, 2017. The

notice asserted that Endress owed DHS $16,001.94 for amounts paid

between July 29, 2014, and November 23, 2014.          The reason for the

overpayment was said to be the result of “[a] mistake by a provider that

caused DHS to pay the provider incorrectly for child care services.” The

dates the amounts owed were paid demonstrate that DHS was not seeking

to recover for alleged overbillings but instead to recoup funds paid for

services provided by Endress during the period when her appeal was

pending before DHS. While DHS characterized the payments made for
                                     23

services provided by Endress during the course of the appeals as a

“mistake made by a provider,” the funds DHS sought to recover were for

services actually performed. The notice further states, “This overpayment

happened because of your choice to continue benefits pending an appeal.”

      3. Administrative decision on notice of         child-care assistance

overpayment. Endress appealed the decision referenced in the notice of

child-care assistance overpayment. On August 8, 2017, a hearing was

held before an ALJ. DHS relied on Iowa Administrative Code rule 441—

7.9(3) (2017), which states, “[E]xcess assistance paid pending a hearing

decision shall be recovered to the date of the decision. This recovery is not

an appealable issue. However, appeals may be heard on the computation

of excess assistance paid pending a hearing decision.”       DHS took the

position that the only issue that could be heard was the amount of money

paid to Endress during the 2014 appeal.

      The ALJ entered a proposed decision that agreed with DHS. With

respect to Endress’s due process claims, the ALJ declared that such

constitutional arguments cannot be addressed on an administrative level

but were preserved for judicial review. The ALJ also declined to address

constitutional and statutory challenges to Iowa Administrative Code rule

441—170.9. In addition, the ALJ declined to consider contract law claims

on the basis the claims rehashed the constitutional arguments she had

already rejected.   Finally, the ALJ declined to find unjust enrichment,

noting that she was aware of no authority holding unjust enrichment could

be used as a defense in an administrative action.

      Endress appealed the proposed decision to the director, who

affirmed the decision. Endress then filed a petition for judicial review in

district court.
                                     24

      4. District court decision on review of agency action. Endress filed a

petition for judicial review. The district court reversed. The district court

found that Endress had a statutory property right in payments under Iowa

Code section 237A.13(4), which provided that “[t]he departments shall

remit payment to a provider within ten business days of receiving a bill or

claim for services provided.”      Further, the district court cited Iowa

Administrative Code rule 441—7.9, which provides, in part, “Assistance

. . . shall not be suspended, reduced, restricted, or canceled, nor shall a

license, registration, certification, approval, or accreditation be revoked or

other proposed adverse action be taken pending a final decision on an

appeal.”

      The district court also found a contractual interest in the payments.

The district court based its decision on the CCAP agreement which noted,

among other things, that the provider shall “have the status of an

independent contractor.” The contract, however, provided that DHS could

cancel the agreement with ten days’ notice for any violation of the

agreement.    The district court reasoned, however, that the notice of

decision received by Endress terminated her rights under the contract (but

not under the statute).

      Having found a statutory property interest and partial contractual

interest in the payments, the district court proceeded to consider whether

Endress received adequate notice that all the funds paid, including those

earned for new services, could be recouped by the state. The district court

focused primarily on the fact that the notice indicated “any benefits” you

get during the appeal may have to be paid back, but the CCAP agreement

talks not in terms of benefits but refers to “fees” and “payments” and

“money received.” According to the district court, the parent of a child
                                     25

receives the benefits, not a provider. The poor terminology in the notice,

according to the district court, was “fatal.”

      The district court proceeded to consider whether the rules provided

sufficient warning that payments for services earned during the pendency

of an appeal could be recouped. The district court determined that the

DHS rules were conflicting and did not provide reasonable notice to

Endress.    The district court noted that Iowa Administrative Code rule

441—7.9(1) provides that “[a]ssistance . . . shall not be suspended,

reduced, restricted, or canceled, nor shall a license, registration,

certification, approval, or accreditation be revoked or other proposed

adverse action be taken pending a final decision on an appeal.” But rule

441—170.9(2) states that “[a]ll overpayments due to client, provider, or

agency error or due to benefits or payments issued pending an appeal

decision shall be recouped.” Id. r. 441—170.9(2). And, rule 441—7.9(7)

provides that “[c]ontinued assistance is subject to recovery by the

department if the department’s action is affirmed. . . .         When the

department’s action is sustained, excess assistance paid pending a final

decision shall be recovered to the date of the decision.” Id. r. 441—7.9(7).

      The district court next turned to Iowa Administrative Code rule

441—170.9. The district court found the rule conflicted with itself. Rule

441—170.1 defines “overpayment” as “any benefit or payment received in

an amount greater than the amount the client or provider is entitled to

receive.” Id. r. 441—170.1. But under rule 441—7.9(1), DHS is required

to pay petitioner during the period of appeal and prohibits DHS from

revoking her approval as a provider under the CCA program. Id. r. 441—

7.9(1).    Because Endress is entitled to receive payments during the

pending of her appeal, the district court reasons that it is not an

overpayment as an amount greater than the provider is entitled to receive.
                                    26

      The district court further noted that Iowa Administrative Code rule

441—7.5(9) defines program overpayment to mean “child care assistance

was received by or on behalf of a person in excess of that allowed by law,

rules, or regulations for any given month.”            But because Iowa

Administrative Code rule 441—7.9(1) requires payment during the

pendency of appeal, the district court reasoned that the provisions of Iowa

Administrative Code rule 441—7.5(9) were not applicable.

      Because the rules are conflicting and cannot be harmonized in a

reasonable manner, the district court determined that the rules collectively

have such total ambiguity that they “clearly, palpably, and without doubt

infringe . . . the constitution.”

      The district court next turned to consider the statutory authority of

DHS’s recoupment rules. The district court held that neither Iowa Code

chapter 237A nor chapter 17A contained any language that would

reasonably support recoupment as advocated by DHS. The district court

noted that Iowa Code section 237A.13(4) provided that “if the department

determines that a bill has an error or omission, the department shall notify

the provider of the error or omission and identify any correction needed

before issuance of payment to the provider.” But, according to the district

court, there is nothing in Iowa Code chapter 237A.13 that authorizes DHS

to recoup earned payments for services during the pendency of an appeal

of an administrative decision canceling a provider contract. Further, the

district court found nothing in Iowa Code chapter 17A to authorize the

recoupment of funds paid during the pendency of an appeal.

      The district court finally turned to unjust enrichment. The district

court held that because the due process holdings of the court provided

Endress with the relief she sought, there was no reason to exercise equity

jurisdiction on an unjust enrichment theory.
                                    27

      The last issue considered by the district court was whether Endress

was entitled to recover her attorney fees under Iowa Code section 625.29.

The district court held that Endress was not entitled to fees. The district

court reasoned that the action of DHS was primarily adjudicative because

it determined the rights and duties of a party. Under the statute, attorney

fees are not available when an agency acts in a primarily adjudicative

capacity.

      Endress filed a motion to reconsider under Iowa Rule of Civil

Procedure 1.904(2).     Endress pointed out that in the administrative

proceeding, the only question considered was the value of the alleged

overpayment and that Endress did not contest its value. But Endress

argued that the administrative law judge did not consider her challenge to

the rules and notices on statutory and constitutional grounds and that, as

a result, the action was not “primarily adjudicative.”

      5. Court of appeals. DHS appealed, and we transferred the case to

the court of appeals. The court of appeals found that Iowa Code section

237A.13(4) and Iowa Administrative Code rule 441—7.9 established a

statutory property right in payments for child-care services. The court of

appeals also agreed with the district court’s reasoning that the notices

were constitutionally deficient to support DHS’s recoupment claim. The

court of appeals, however, found that DHS’s action was not “primarily

adjudicative” and that, as a result, Endress was entitled to attorney fees

under Iowa Code section 625.29.

      II. Discussion.

      A. The Notices to Endress Were Insufficient and Any Resulting

Deprivation of Property Violated Due Process of Law.
                                     28

      1. Protected property interest.      Iowa Code section 237A.13(4)

provides a statutory property interest in payments for services under the

program. This section provides,

      The department’s billing and payment provisions for the
      program shall allow providers to elect either biweekly or
      monthly billing and payment for child care provided under the
      program. The department shall remit payment to a provider
      within ten business days of receiving a bill or claim for services
      provided. However, if the department determines that a bill
      has an error or omission, the department shall notify the
      provider of the error or omission and identify any correction
      needed before issuance of payment to the provider. The
      department shall provide the notice within five business days
      of receiving the billing from the provider and shall remit
      payment to the provider within ten business days of receiving
      the corrected billings.

This Code section mandates timely payments under the program and

establishes a remedy in the event the department determines that an error

or omission has occurred. I have no doubt that this statute, by directing

and restraining the scope of administrative action in connection with

payment for child care services, establishes a property interest in payment

for the services that triggers due process protections.
      An argument could be made, perhaps, that the accompanying

regulations eviscerate any statutory property interest by providing for

recoupment of funds paid for services provided during the pendency of an

administrative appeal. As demonstrated by the district court ruling, the

DHS rules themselves are very hard to decipher and cannot be

harmonized.

      But more importantly, in light of the statutory language in Iowa

Code section 237A.13(4), I conclude that any rule that authorized

recoupment as advocated by DHS would be ultra vires. To begin with,

where the legislature has established remedies, I am not inclined to pencil

into the statute additional remedies. That was the central teaching of
                                    29

Brakke v. Iowa Department of Natural Resources, 897 N.W.2d 522, 530,

533–34, 540–41 (Iowa 2017). In Brakke, we refused to expand remedies

in a statute regulating sick deer even though the agency believed expanded

remedies would be administratively convenient or make the statute more

effective. Id. at 540–42.

      Further, I note that the legislature knows how to enact recoupment

provisions.   Iowa Code section 96.3(7) provides for recoupment of

unemployment benefits.       Iowa Code section 96.3(11) provides for

recoupment of food stamps.        As the district court observed, “The

possession of authority by one administrative body and the absence of a

grant of such authority in the statute relating to another administrative

body significantly shows that the latter body possesses no such authority.”

Branderhorst v. Iowa State Highway Comm’n, 202 N.W.2d 38, 40 (Iowa

1972). And, it makes sense for the legislature to expressly provide for

recoupment of benefits but not recoupment of earned payments for

services rendered.

      2. Procedural due process: notice.    Endress received notice from

DHS that “[a]ny benefits you get while your appeal is being decided may

have to be paid back if the Department’s action is correct.” This notice

does not provide fair warning that the clawback by the department of

payments made will exceed those that the department has shown were

improperly paid and would include payments fully earned by a provider.

      First, the notice refers to “benefits”. The payments to providers,

however, are not benefits. Benefits are provided to families to utilize the

services. The CCAP agreement makes no reference at all to benefits. Thus,

a provider might well believe the notice did not apply to them but was

boilerplate in DHS documents.
                                      30

      There is no question that the notice states that “any” benefits paid

“may” have to be paid back.       But may is not must.       The term “may”

ordinarily implies the use of some kind of discretion.              See, e.g.,

Kingdomware Techs., Inc. v. United States, 579 U.S. ___, ___, 136 S. Ct.

1969, 1977 (2016); Jama v. Immigration & Customs Enf’t, 543 U.S. 335,

346, 125 S. Ct. 694, 703 (2005); John Deere Waterloo Tractor Works of

Deere & Co. v. Derifield, 252 Iowa 1389, 1392, 110 N.W.2d 560, 562 (1961).

In other words, DHS “may” in its discretion clawback paid benefits. We

must, however, recognize and give effect to the choice of the word “may”

and not “must” or “shall” in the notice. Fairfield Sci. Corp. v. United States,

611 F.2d 854, 862 (Ct. Cl. 1979) (noting default clause in government

contract does not say “shall” or “must” but says “may,” demonstrating the

existence of discretion).

      Such discretion vested in an agency has been held to give rise to an

implied condition of reasonableness in many settings. See, e.g., Darwin

Constr. Co. v. United States, 811 F.2d 593, 596 (Fed. Cir. 1987);

Schlesinger v. United States, 390 F.2d 702, 709 (Ct. Cl. 1968); Williamson

v. N.Y. State Liquor Auth., 200 N.E.2d 565, 567 (N.Y. 1964). Thus, by

analogy to the well-established principle that discretion must be

reasonably exercised, to the extent “benefits” paid are unearned, or should

not have been paid, the department may claw them back.

      Assuming a provider would understand that he or she is receiving

“benefits,” even though the provider is, in fact, getting paid for services

rendered under the CCAP agreement, a reasonable provider reading the

notice would assume that DHS would act rationally and not impose a

disproportionate penalty for thousands of dollars for an accounting error

of much lower proportion. The language in the notice does not remotely
                                       31

suggest,   however,   that   the     department   may   engage   in   grossly

disproportionate, irrational clawback.

      The notice does not say, for instance, “If you are found to have

erroneously billed DHS by any amount, including 1 cent, we will claw back

the entire amount of payments made during the pendency of your appeal

as a forfeiture.” In the alternative, the notice does not say, “You will have

to pay back all payments earned for services rendered during the appeal if

DHS prevails on the smallest billing issue as a forfeiture for using the

administrative process.” The notice does not tell you that if you lose even

the smallest aspect of your appeal, you will suffer a forfeiture or penalty.

      If the state wanted to assert such an extraordinary unqualified

power of forfeiture, it could have done so in simple, clear language. DHS’s

position does not describe a reasonable discretionary clawback.            It

describes an unstoppable state-sanctioned steamroller that effectively and

efficiently flattens license holders on the blacktop of an administrative

appeal for the smallest of errors.

      The majority finds that the bland language gives fair notice of the

existence of the unstoppable state-sanctioned forfeiture steamroller.          I

don’t see it. For sure, the notice gives fair warning that in the event you

lose the appeal, the state will come after you and may even deduct from

payments owed the amount of payments improperly billed. But the notice

would not advise the average Jill or Joe that the state will clobber you if

you get payments during the pendency of the appeal and you do not clean

the state’s clock completely and thoroughly on each and every issue raised

in the administrative appeal.

      If the notice were a statute, we would not construe it as does the

majority. We may harken back to our law school days, where we learned

that statutes should be construed to avoid forfeitures. United States v.
                                      32

One 1936 Model Ford V–8 Delux Coach, Motor No. XX-XXXXXXX, 307 U.S.

219, 226, 59 S. Ct. 861, 865 (1939).        While we are not faced with a

question of statutory interpretation, it seems to me that we should require

that notice of a forfeiture or penalty such as that advocated by DHS should

be in very clear, maybe even in bold type. Cf. Bell v Yale Dev. Co., 429

N.E.2d 894, 897 (Ill. Ct. App. 1981); Sclafani v. Eastman Kodak Co., 727

N.Y.S.2d 277, 279–81 (Sup. Ct. 2001).

         The above problem is compounded by the phrase “if the

Department’s action” is correct. What does that mean? What exactly is

the department’s action? What about where the department’s position on

incorrect billing is mostly wrong?

         For the above reasons, I conclude that the notices received by

Endress were constitutionally deficient under the due process clauses of

the Iowa and United States Constitutions.

         B. Unjust Enrichment. The plurality concludes that Endress is

entitled to pursue an unjust enrichment claim in the district court. The

plurality sees the same equities as I do in this case but puts it in a different

legal package. In the alternative, however, since the due process argument

as outlined in division II.A of my opinion has not prevailed, I too would

remand to the district court for consideration of the unjust enrichment

claim.

         C. Attorney Fees Under Iowa Code Chapter 625.29. The key

question under this fee-shifting statute is whether DHS’s action was

“primarily adjudicative.” DHS’s position throughout, however, has been

that the only issue in the administrative adjudication was the amount of

overpayment as defined by DHS. The other powerful issues, including the

validity of the rules and constitutional issues of due process, could not be

decided in the administrative process.
                                          33

       Endress and DHS do not have a dispute about the amount of money

received by Endress for earned services during the pendency of the original

administrative appeal.        No one disputes that it amounts to be about

$16,000. Thus, the only issue that DHS believed could be considered in

the administrative process was uncontested and does not have any

bearing in this appeal.

       In denying Endress’s claim for attorney fees, the district court stated

that “the primary action in this case was to adjudicate the value of the

overpayment.” I do not agree. Instead, the key issues in this case related

to the statutory authority of DHS to promulgate rules and the application

of due process to the agency’s action seeking to disgorge earned payments

from Endress. These issues were not considered as they were outside the

scope of the administrative process. As noted in Branstad v. State ex rel.

Natural Resources Commission, the term adjudication in the statute means

“to settle finally (the rights and duties of the parties to a court case) on the

merits of the issues raised.”         871 N.W.2d 291, 297 (emphasis added)

(quoting Webster’s Third New International Dictionary 27 (unabr. ed.

2002)).

       The fighting issues in this case, then, at least as they relate to due

process, did not arise from an adjudication by DHS but instead arose from

unreviewed administrative action of the department. 4                    Under these

circumstances, I would find Iowa Code section 625.29 fully applicable.

       III. Conclusion.

       For the above reasons, I would affirm the decision of the district

court on the due process issue. In the alternative, I would remand the

case to the district court for consideration of the unjust enrichment claim.

       4The ALJ did, however, decide the unjust enrichment claim on the merits. Under
our caselaw, if DHS is acting primarily in an adjudicative capacity, no attorney fees are
available.
                                   34

I would reverse the decision of the district court on the question of

availability of attorney fees under Iowa Code section 625.29.
                                      35

                         #18–1329, Endress v. Iowa Dep’t of Human Servs.

McDONALD, Justice (concurring in part, dissenting in part).

      I concur in part and dissent in part.        I concur in the plurality

opinion’s resolution of the due process issue.        The plurality does not

address the district court’s ruling or Endress’s argument that the Iowa

Department of Human Services (DHS) exceeded its statutory authority in

promulgating the recoupment rule. Nor does the plurality address the

district court’s ruling or Endress’s argument that the recoupment rule is

unconstitutionally vague. I assume the plurality concludes both that DHS

had the authority to promulgate the recoupment rule and that the rule

passes constitutional muster because the plurality remands the matter for

reconsideration of Endress’s unjust enrichment claim asserted in response

to enforcement of the rule. If the plurality so concludes, I concur that DHS

had the authority to enact the rule and that the rule is not

unconstitutionally vague.      However, I disagree Endress can assert a

defense of unjust enrichment in response to DHS’s effort to enforce a valid

law, and I dissent on this issue. I thus join divisions III.A and III.C of Chief

Justice Christensen’s opinion, while dissenting as to division III.B.

                                       I.

      The plurality dislikes the recoupment rule and the application of the

recoupment rule because it works a hardship on Endress. Fair enough. I

agree. However, “[o]ur job as judges is not to write a decision to avoid an

unfair result.” Mulhern v. Catholic Health Initiatives, 799 N.W.2d 104, 126

(Iowa 2011). Our job is to apply the law to the case at hand. At this job,

the plurality falls short. The plurality relies on facts not supported by the

record, uses these facts to construct a non sequitur, ignores controlling

law, and then ignores the relevant portions of the persuasive authority

upon which it relies that are directly contrary to the plurality opinion and
                                     36

that demand the opposite result. The end result is an opinion that is

irreconcilable with itself and “an example of the aphorism that bad facts

can make bad law.” Mitchell v. Cedar Rapids Cmty. Sch. Dist., 832 N.W.2d

689, 705 (Iowa 2013) (Waterman, J., dissenting).

                                     A.

      As an initial matter, this case does not appear to be a case, or at

least a quintessential case, of unjust enrichment. The plurality states

Endress provided a benefit to the state, but it is not clear she did. Endress

provided child-care services to one or more persons while her appeal was

pending. The beneficiaries of her services were the persons receiving the

child-care services. See, e.g., Krieger v. Iowa Dep’t of Human Servs., 439

N.W.2d 200, 203 (Iowa 1989) (“The DHS was not ‘enriched’ by the services

rendered for the [beneficiary]. Krieger worked for the [beneficiary], not for

the DHS, and the DHS received no benefits from his services.”). DHS was

merely the third-party payor for the services provided. Endress’s claim of

unjust enrichment more appropriately lies against the persons to whom

she provided child-care services and not DHS. The plurality cites no case

or authority allowing for a claim of unjust enrichment against a third-party

payor under the circumstances presented.

      Finding no authority allowing for an unjust enrichment claim

against a third-party payor, the plurality finds DHS was a direct

beneficiary of Endress’s services. The plurality’s finding is based on the

following facts and rationale: in some circumstances, certain day-care

providers provide services for children with protective needs; this,

according to the plurality, implicates the state’s duty as parens patriae;

and, according to the plurality, when DHS acts as parens patriae it is the

beneficiary of any services provided to the families.
                                     37

      The doctrine of parens patriae is simply inapplicable here. There is

nothing in the record to show Endress was providing protective services

during the relevant time period. There is also nothing in the record to

show the state was acting as parens patriae in this case. The fact that

some other child-care providers might provide protective services for some

other children under some other program not at issue in the case does not

change the fact DHS was merely a third-party payor for the services

Endress provided to someone else.

      Even if the doctrine were applicable here, the doctrine does not

actually support Endress’s claim of unjust enrichment. The “doctrine is

derived from the English common law and is inextricably linked to a

superiority of the state in its relations with its subjects.” B.A.A. v. Chief

Med. Officer, Univ. of Iowa Hosps., 421 N.W.2d 118, 121 (Iowa 1988)

(quoting Contemporary Studies Project: Facts and Fallacies About Iowa Civil

Commitment, 55 Iowa L. Rev. 895, 958–59 (1970)). It merely explains the

state’s duty and authority to act to protect others. The plurality fails to

cite any authority that would support a claim that an unauthorized service

provider can demand money from the government or refuse to repay money

lawfully owed the government merely because the government was acting

in its capacity parens patriae. The invocation of the doctrine is a non

sequitur.

                                     B.

      Even if one were to assume Endress’s provision of child-care services

constituted a benefit to DHS, the principles underlying the doctrine of

unjust enrichment do not support her claim.         The doctrine of unjust

enrichment is not an open-ended doctrine that allows a court to “sit like a

kadi under a tree dispensing justice according to considerations of

individual expediency.” Terminiello v. City of Chicago, 337 U.S. 1, 11, 69
                                      38

S. Ct. 894, 899 (1949) (Frankfurter, J., dissenting). “ ‘[U]njust enrichment’

is a term of art.” Restatement (Third) of Restitution & Unjust Enrichment

§ 1 cmt. b, at 4 (Am. Law Inst. 2011) [hereinafter Restatement (Third)]. The

concept of unjust enrichment is not a judicial remedy to correct perceived

injustices, unfairness, or inequities in a broad sense. Rather, the doctrine

involves a “narrower set of circumstances giving rise to what might more

appropriately be called unjustified enrichment.”       See id. at 5.    In the

technical sense, “[u]njustified enrichment is enrichment that lacks an

adequate legal basis.” Id.

      To the extent DHS was enriched by Endress’s service, there is an

adequate legal basis to justify the enrichment: Endress was given notice

that any payments made to her under the child-care assistance program

during the pendency of her appeal would have to be repaid in the event

she lost her appeal. Specifically, the notice of decision told Endress she

could “continue to receive child-care assistance funding pending the

outcome of [her] appeal.” It continued, stating “any benefits [she receives]

while [her] appeal is being decided may have to be paid back if the

Department’s action is correct.” The notice then directed Endress to the

administrative rule requiring recoupment.         The plurality agrees DHS

provided Endress notice that any compensation paid to her while her

appeal was pending was subject to recoupment.

      DHS’s notice of recoupment to Endress precludes her defense of

unjust enrichment against DHS. See Restatement (Third) § 16 cmt. a, at

214 (explaining that a legal entity, such as government agency, would have

a claim to recover benefits conferred under a contract where a statute

limited the entity’s authority to contract); id. § 33 cmt. f, at 538 (explaining

a party has no claim for unjust enrichment where the party acts despite

having notice of a limitation on the government’s authority to contract
                                     39

“because the restitution claim may not be intentionally employed as a

means either to circumvent procedural requirements or to expand the

scope of [government] authority”).        While the plurality relies on the

Restatement (Third) to support its conclusion, it ignores these sections of

the Restatement (Third) that directly address the question presented in

this case and that expressly reject the plurality’s conclusion that unjust

enrichment is available against the government where the party asserting

the claim had notice.

      More problematic for the plurality is the Restatement (Third)’s rule

is in accord with Iowa law. “The theory of unjust enrichment ‘is premised

on the idea that it is unfair to allow a person to benefit from another’s

services when the other expected compensation.’ ” Waldner v. Carr, 618

F.3d 838, 848 (8th Cir. 2010) (quoting State Pub. Def. v. Iowa Dist. Ct. for

Woodbury Cty., 731 N.W.2d 680, 684 (Iowa 2007)).             When Endress

pursued her administrative appeal, DHS provided her with notice she

would have to repay the funds if her appeal was unsuccessful.            The

plurality opinion agrees DHS provided Endress with notice.             Upon

receiving notice, Endress had no expectation she would be able to retain

the funds under the circumstances presented.         In the absence of an

expectation that she would be entitled to retain the funds, Endress has no

claim for unjust enrichment.

      There is an additional adequate legal basis to justify DHS’s

recoupment rule: the government’s general duty and authority to protect

the fisc. See, e.g., Brock v. Pierce County, 476 U.S. 253, 262, 106 S. Ct.

1834, 1840 (1986) (stating “the protection of the public fisc is a matter

that is of interest to every citizen”). Part of the government’s general duty

and authority to protect the fisc is the promulgation of statutes, rules, and

regulations establishing the purposes, terms, and conditions for the
                                      40

expenditure of public funds. See Godfrey v. State, 847 N.W.2d 578, 588–

89 (Iowa 2014) (Waterman, J., dissenting) (explaining the legislature

established a statutory certification procedure to determine when public

funds should be available to defend a lawsuit and the statutory procedure

should not be overridden by the court at the urging of a party’s attorney).

An additional part of the government’s general duty and authority to

protect the fisc is the recoupment of funds paid from the fisc where the

payment violated the statutes, rules, and regulations authorizing the

purpose, terms, and conditions for the expenditure of public funds. See

Fernandez v. Iowa Dep’t of Human Servs., 375 N.W.2d 701, 709 (Iowa

1985) (“More importantly, as a department of the state government it had

a duty and implied authority to recoup from the provider payments

incorrectly made when the payments were made because of rule violations

by the provider.”); see also In re Holyoke Nursing Home, Inc., 372 F.3d 1, 5

(1st Cir. 2004) (“Both by statute and by contract, the [government agency]

has the unqualified right to recoup these overpayments in full, and to

return the funds to the public fisc, where they can be used to fund other

facilities providing care to . . . beneficiaries.” (Emphasis omitted.)).

      The government’s general duty and authority to protect the fisc is so

fundamental to the sound operation of government that certain claims and

defenses cannot be asserted against the government to create liability or

deny liability in contravention of statute. For example, “[l]aches . . . does

not apply against the government.” State ex rel. Miller v. Vertrue, Inc., 834

N.W.2d 12, 33 (Iowa 2013). “[I]n Iowa, it is well recognized that a statute

of limitations does not run against the state unless specifically provided

by statute.” Fennelly v. A-1 Mach. & Tool Co., 728 N.W.2d 163, 169 (Iowa

2006).   By way of another example, “no right of prescription may be

acquired against the government.” State v. Hutchison, 721 N.W.2d 776,
                                      41

782 (Iowa 2006). Also, as a general rule, “equitable estoppel will not lie

against a government agency.” ABC Disposal Sys., Inc. v. Dep’t of Nat. Res.,

681 N.W.2d 596, 607 (Iowa 2004).

      One of the claims that cannot be asserted against the government

to create liability or, as here, as a defense to liability are claims of quantum

meruit and unjust enrichment. See United States v. $30,006.25 in U.S.

Currency, 236 F.3d 610, 614 (10th Cir. 2000) (“[W]e [are not] aware[] of

any general waiver of sovereign immunity for unjust enrichment claims.

Moreover, fairness or policy reasons cannot by themselves waive sovereign

immunity.”); see also United States v. Craig, 694 F.3d 509, 513 (3d Cir.

2012)).   The appellate courts of this state have explicitly rejected the

contention that a party can demand payment from the government under

a theory of quantum meruit or unjust enrichment where the payment

would be in contravention of statute.

      In Iowa District Court for Woodbury County, an attorney was

appointed to serve as a guardian ad litem. 731 N.W.2d at 682. She failed

to comply with the statutory requirements in submitting her application

to exceed the statutory fee limitation. Id. The attorney sought fees for

services she actually performed. 731 N.W.2d at 683. We disallowed the

attorney’s demand for payment under a theory of quantum meruit on the

ground that “[a]llowing a theory of quantum meruit to supersede clear

statutory requirements would serve to undermine the legislature’s purpose

in enacting section 815.10A(2).” Id. Similarly, in State Public Defender v.

Iowa District Court for Clarke County, we concluded the district court erred

in approving an attorney’s fee claim “based on the [district] court’s ‘plenary

powers to exercise justice among the parties’ ” where the fee claim was

contrary to statute. 745 N.W.2d 738, 739, 740 (Iowa 2008). Finally, in

Madrid Lumber Co. v. Boone County, we held a contractor was not entitled
                                    42

to payment when it provided services to a county but the contract for the

services was not approved in accord with statute. 255 Iowa 380, 386, 121

N.W.2d 523, 527 (1963).

      The court of appeals has relied on our precedents in this area. The

court of appeals has interpreted Iowa District Court for Woodbury County

for the proposition that a claim for quantum meruit “could not be used to

supersede the affirmative requirements of the statute.” In re G.P., No. 09–

0156, 2009 WL 3337641, at *1 n.1 (Iowa Ct. App. Oct. 7, 2009).          In

Jacobsma v. Iowa District Court, No. 06–1877, 2007 WL 4553636, at *3

(Iowa Ct. App. Dec. 28, 2007), the court of appeals rejected an attorney’s

claim for compensation under theories of unjust enrichment and quantum

meruit.   The court explained it was for the legislature to address any

inequity caused by the statutory requirements:

      While we sympathize with Jacobsma and understand his
      frustration with the public defender’s denial of his fee claim,
      it is up to the legislature and not this court to determine
      whether changes should be made in the fee approval/denial
      process it has established for court-appointed attorneys.

Id. The court of appeals’ rationale in Jacobsma is applicable here. While

the plurality opinion may think the recoupment provision is unfair, this
court does not have the authority to countermand a statute and

administrative rule that six justices hold is valid and enforceable.

      Pursuant to this controlling authority, this court has explicitly

rejected claims of unjust enrichment asserted against DHS and other

government agencies. In Ahrendsen ex rel. Ahrendsen v. Iowa Department

of Human Services, this court held a party’s claim of unjust enrichment

would not lie where the department administered a program consistent

with the relevant statutes and regulations. 613 N.W.2d 674, 679 (Iowa

2000).    In Marshall v. State, this court explained the department was
                                     43

required and entitled to recoupment of welfare benefits despite it being a

“harsh result.” 559 N.W.2d 612, 613, 615 (Iowa 1997). The court further

explained it lacked the authority to modify the statutory regime to achieve

an “equitable result.” Id. at 615. Similarly, in Krieger, this court rejected

the claimant’s contention the department would be unjustly enriched by

recoupment of benefits paid. 439 N.W.2d at 203. This court explained

there was strong public policy supporting the enforcement of the

recoupment statute and “denying recoupment would frustrate that policy.”

Id. Our cases are consistent with the Restatement (Third)’s legal standard

of unjust enrichment as opposed to the plurality’s moral standard of

unjust enrichment.

      The government’s duty and authority to recoup funds hold even

when the recipient of said funds was not at fault and the recoupment of

said funds might be inequitable, in the colloquial sense, under the

circumstances presented. See State ex rel. Mack v. Mack, 479 N.W.2d 327,

329 (Iowa 1992) (“However sympathetic Michele’s plight may be, her legal

defenses to the State’s reimbursement effort lack merit.”); Fernandez, 375

N.W.2d at 709 (“We conclude that the hearing officer’s interpretation that

the administrative rules gave the department authority to recover from the

appellant any incorrectly paid assistance by suspending or withholding

[M]edicaid payments is neither plainly erroneous nor inconsistent with

chapter 249A.”); Powell v. Emp’t Appeal Bd., 861 N.W.2d 279, 281 (Iowa

Ct. App. 2014) (holding state was entitled to recoupment of unemployment

compensation benefits notwithstanding the recipient’s “lack of fault in

incurring the overpayment”); see also Heckler v. Cmty. Health Servs. of

Crawford Cty., Inc., 467 U.S. 51, 62, 104 S. Ct. 2218, 2225 (1984) (“There

is no doubt that respondent will be adversely affected by the Government’s

recoupment of the funds that it has already spent. It will surely have to
                                       44

curtail its operations and may even be forced to seek relief from its debts

through bankruptcy. . . . [B]ut questions concerning the Government’s

method of enforcing collection are not before us.”).

      There is a related but additional reason Endress’s claim of unjust

enrichment fails here: DHS’s general interest in protecting the fisc is

bolstered in this case by federal command.          The federal government

provides funding to the states for child-care programs and services

pursuant to the Child Care and Development Block Grant. See 42 U.S.C.

§§ 618, 9858 (2018). Funds from the block grant program are placed with

matching dollars from the state into the Child Care Development Fund.

See id. §§ 618(a)(2), 9858. Pursuant to federal law, DHS is required to

administer the Child Care Development Fund “responsibly to ensure that

statutory requirements are met.” 45 C.F.R. § 98.1(b)(6)(2019). DHS also

has the “overall responsibility for the administration of the program.” Id.

§ 98.11(b);see also 42 U.S.C. § 9858b (requiring a lead agency and

outlining its duties).    This includes the duty to promulgate rules and

regulations for the program and the duty to oversee the funds. See 45

C.F.R.   § 98.11(b)(1)–(8);    see   also   42   U.S.C.   § 9858c   (outlining

administration and enforcement guidelines). This also includes the duty

to regulate who can receive payment as an eligible child-care provider. See

45 C.F.R. § 98.2 (defining eligible child-care provider); id. § 98.40–.41

(discussing eligibility criteria).

      In seeking recoupment, the state, generally, and DHS, specifically,

are discharging their obligation to administer the Child Care Development

Fund in a lawful manner. The Iowa General Assembly instructed DHS to

implement rules for the “administration” of the program. See Iowa Code

§ 237A.12(1)(g) (2017). This included rules to govern the disbursement

and recoupment of funds for the child-care assistance program at issue in
                                      45

this case. DHS’s rules provide “excess assistance paid pending a final

decision shall be recovered to the date of the decision.” Iowa Admin. Code

r. 441—7.9(7) (2017). DHS’s rules provide DHS shall recoup all “benefits

or payments issued pending an appeal decision.” Id. r. 441—170.9(2). The

plurality agrees DHS had the authority to promulgate and enforce the

rules.     The recoupment proceeding here is thus merely the lawful

enforcement of valid rules.

         No claim of unjust enrichment lies under the circumstances

presented in this case.       The law of restitution is not concerned “with

unjust enrichment in any such broad sense . . . because the justification

in question is not moral but legal.” Restatement (Third) § 1 cmt. b, at 5.

Properly understood, unjust enrichment is not applicable where there is a

legal justification for the enrichment. See id. There are numerous legal

justifications why Endress cannot assert a defense of unjust enrichment

against DHS. The plurality simply ignores the black letter law and the

controlling precedents requiring that conclusion. The plurality’s failure to

follow the relevant principles and precedents renders the plurality opinion

irreconcilable with itself. The plurality holds DHS’s recoupment statute

and rule are valid and enforceable except when DHS seeks to enforce the

statute and rule. The plurality’s fallacious expansion of the doctrine of

unjust enrichment is bad law. “[U]njust enrichment is not a catchall cause

of action to be used when others fail.” Corsello v. Verizon N.Y., Inc., 967

N.E.2d 1177, 1185 (N.Y. 2012).

                                      C.

         Not only is the plurality opinion bad law, it is bad policy.   The

plurality ignores the adverse impact its decision will have on the

administration of the child-care assistance program.             Child-care

assistance providers now have additional incentive to appeal contract
                                     46

termination decisions and drag out the administrative appeal process for

as long as possible. The plurality rule removes all risk to the child-care

assistance providers from pursuing an appeal of DHS’s decision to

terminate a provider agreement given that DHS is now powerless to recoup

funds paid during the appeal period. The plurality rule is bad policy and

forces DHS into de facto noncompliance with its federal and state

mandates.
                                     II.
      Unfortunately for the legislative and the executive branches, there
is no way to fix the problem the plurality opinion creates. The plurality
concludes the legislature passed a law allowing recoupment of payments
made to unlicensed providers. The plurality concludes DHS passed a rule
allowing recoupment of payments made to unlicensed providers.            The
plurality concludes these laws are valid, pass constitutional muster, and
are enforceable except when DHS seeks to enforce them.           Under the
plurality’s interpretation, the legislative and executive branches are not
entitled to set the terms and conditions upon which funds can be
disbursed from the public fisc if the court does not think it fair. That is a
shocking conclusion. Literally unprecedented. The plurality opinion does
not cite a single case in which a payee was able to successfully assert a
claim for unjust enrichment against the government where, pursuant to a
valid statute and administrative rule, the government put the payee on
notice the government would seek recoupment of payments because the
payee was not eligible to receive the payments.         The legislative and
executive branches have no recourse. What can they do? Reenact the
same law the plurality concludes is valid except this time with the proviso,
“This time, we really, really mean it.” I dissent.
      Oxley and McDermott, JJ., join this concurrence in part and dissent
in part.
