Rule 15-404. Appeals and petitions to the Supreme Court.

A. Scope of rule. This rule governs the procedure for appealing board determinations to the Supreme Court and for filing petitions described in these rules with the Supreme Court. This rule does not create a right of appeal except as specifically permitted in these rules. Filings and service under this rule shall be in conformance with Rule 12-307 NMRA, although no extensions of time shall be allowed for various methods of service, and service on the board shall be as contemplated in Rule 15-102(BB) NMRA. B. Appeals, other than request for accommodation. An applicant may appeal from final orders, decisions, or actions of the board, only as specified in these rules. (1) Initiating an appeal. An appeal from a final order, decision, or action of the board may be initiated by filing a petition with the Clerk of the Supreme Court within thirty (30) days of the date of item being appealed, in which the applicant must specify how the board erred. No docketing statement is required and no docket fee shall be paid, but a copy must be served on the board. On the board’s receipt of the notice of appeal, it shall prepare and file with the Clerk of the Supreme Court the record on appeal (or agreed portion thereof), and promptly serve the applicant with notice of the filing. The record on appeal shall consist of the board’s file about the applicant and transcripts or recordings of hearings, although the applicant and board may agree that only a limited portion of the record is required for the issues on appeal. After the record on appeal is filed, the applicant shall have thirty (30) days from the date the record is filed to file and serve a brief-in-chief conforming to Rule 12-318 NMRA. The brief-in- chief shall cite to the record for facts and documentation presented to the board which the applicant contends were overlooked or misapprehended by the board, and must contain a verified statement of applicant as to the truth and accuracy of the statements in the petition and brief-in-chief under penalty of perjury. (2) Answer to appeal; reply not allowed. Within forty-five (45) days after the applicant files a brief-in-chief, the board shall file and serve an answer brief conforming with Rule 12-318 NMRA. No reply brief shall be filed. (3) Review. The standard of review for appeals filed under this rule is whether the applicant has proven that the board’s decision was arbitrary, capricious, or malicious based on the record before the board. The Supreme Court shall not consider evidence not in the record, and will not consider any diagnosis or disability not previously identified in the applicant’s application, even if newly diagnosed or identified. C. Appeal of accommodation denial. An applicant who remains adversely affected after receiving findings and conclusions from a hearing conducted pursuant to Rule 15-403(H) NMRA on an accommodation request may file a petition with the Clerk of the Supreme Court within five (5) business days of the date of the findings and conclusions, and serve a copy of the petition on the board. No docketing statement is required and no docket fee shall be paid. The board shall promptly file with the Clerk of the Supreme Court the record on appeal which shall consist of the board’s file about the applicant’s requested accommodation, and transcripts or recordings of hearings. Within five (5) days of the record being filed, the applicant shall file with the Supreme Court a brief that succinctly identifies how the record shows the facts and documentation presented to the board supports the applicant’s requested accommodation, how the requested accommodation was reasonable, and contain verification by the applicant as to the truth and accuracy of the statements in the petition and brief-in-chief under penalty of perjury. The board shall file and serve a response within five (5) business days of the filing of the applicant’s brief. No reply shall be filed. D. Petitions by board. The board may file with the Supreme Court and serve, without a filing fee, a petition as specified in these rules, showing the items specified in the rule on which the petition is based. A person who is the subject of a petition may file and serve a response within fourteen (14) days after the petition is filed. No reply shall be allowed. The board or responding party may request a hearing by so stating in their filing. E. Oral arguments; disposition. For any appeal or petition, the Supreme Court may summarily act on the papers filed, order additional briefing, refer the matter to the board for an evidentiary hearing or expedited evidentiary hearing under Rule 15-403 NMRA, set oral argument, or order hearing before the Supreme Court. Any oral argument shall be in accordance with the Rules of Appellate Procedure. If the board is ordered to conduct an evidentiary hearing under this rule, the board shall file its findings and conclusions with the Supreme Court within seven (7) days of the later of completion of the hearing or submission to the board of any information so identified during the hearing.