Opinion
350690
05-25-2023
LILLIAN A. SCOTT,Claimant-Appellant, v. DEPARTMENT OF LABOR AND ECONOMIC OPPORTUNITY/UNEMPLOYMENT INSURANCE AGENCY, Appellee.
UNPUBLISHED
Berrien Circuit Court LC No. 18-000266-AE
Before: Douglas B. Shapiro, P.J., and Mark J. Cavanagh and Redford, JJ.
ON REMAND
PER CURIAM.
This case returns to us on remand from the Michigan Supreme Court. Claimant Lillian A. Scott is seeking to challenge the Unemployment Insurance Agency's determination of fraud requiring her to pay restitution and penalties under the Michigan Employment Security Act (MESA), MCL 421.1 et seq. In our prior opinion, we held in relevant part that an administrative law judge (ALJ) finding that Scott received notice of the fraud determination was not supported by substantial evidence and that she should therefore be granted 30 days to file a late appeal of that determination. In lieu of granting leave to appeal, the Supreme Court reversed this part of our opinion and remanded the case to us for consideration of the remaining two issues argued by Scott as to why she should be allowed a late appeal. See Scott v Dep't of Labor & Economic Opportunity/Unemployment Ins Agency, __ Mich. __; 983 N.W.2d 417, 417-418 (2023) (Scott II). Having done so, we reverse and remand for further proceedings.
I. BACKGROUND
We previously set forth the factual and procedural history of this case. Relevant to the issues now before us, our opinion provided:
On May 9, 2014, the Agency generated a series of four notices retroactively finding Scott disqualified from receiving unemployment benefits. For reasons that are not
clear, the notices each carry their own case number, even when referring to the same matter. Specifically, in LARA case no. 0-002-333-913, the Agency generated a "Notice of Determination" informing Scott that she was disqualified from benefits because she voluntarily quit her employment on May 30, 2013. In case no. 0-001-824-775, the Agency issued an additional Notice of Determination informing Scott that her actions indicated that she intentionally misled or concealed information to obtain benefits she was not entitled to and that her benefits will be terminated on any claims active on May 25, 2013. The Agency also produced a separate document titled, "Restitution," listing the amounts of overpayments and penalties that Scott was required to pay for benefits received from June 8, 2013, to March 8, 2014.
In addition to the Notices of Determination, the Agency issued two "Notice[s] of Redetermination." In case no. 0-002-333-915, the Notice of Redetermination found that Scott was ineligible for benefits collected from November 04, 2012 through June 01, 2013, because she was working full-time during that time period. The second Notice of Redetermination, issued in case no. 0-002-333-916, asserted that Scott's actions indicated that she intentionally misled or concealed information to obtain benefits she was not entitled to and that her benefits will be terminated on any claims active on November 03, 2012. The Agency also produced a statement of restitution owed, totaling the amounts of overpayments and penalties assessed for November 10, 2012, through June 1, 2013. [Scott v Dep't of Labor and Economic Opportunity/Unemployment Insurance Agency, __ Mich.App. __, __; __ N.W.2d __ (2022) (Docket No. 350690); slip op at 2 (Scott I).]
The period to appeal these determinations lapsed, and at some point, the Agency began intercepting Scott's income tax refunds and garnishing her wages in satisfaction of the outstanding restitution and penalty amounts. In 2018, Scott filed a protest of the determinations with the Agency and requested to reopen her cases. The Agency concluded that Scott was time-barred from doing so because she had not appealed the determinations within one year of the May 9, 2014 mailing date. See MCL 421.32a(2), as amended by 2011 PA 269. Scott appealed that decision and sought a hearing before an ALJ. After a hearing, the ALJ affirmed the Agency's denial of the request to reopen Scott's case, ruling that she did not establish a timely protest or good cause for a late protest of the 2014 determinations. The ALJ did not find credible Scott's testimony that she did not receive the notices through the mail.
Scott appealed the ALJ's order to the Michigan Compensation Appellate Commission (MCAC), arguing that she had good cause for a late appeal because the Agency's determinations did not provide reasonable and adequate notice. The MCAC summarily affirmed the ALJ's decision. Scott then appealed to the trial court, who concluded that there was competent, material, and substantial evidence to sustain the findings of the ALJ and the MCAC. The trial court further concluded that the ALJ's and the MCAC's decisions were not contrary to constitutional due-process requirements.
In Scott's brief on appeal, she raised four relevant arguments: (1) the fraud determinations sent to her did not have adequate information to satisfy statutory notice and due-process requirements; (2) the Agency acted too late to find fraud under MCL 421.32a(2); (3) Scott's challenges were not untimely because the appellate deadlines should have tolled until she had actual notice of the fraud claims against her; and (4) there was good cause to allow Scott to file a late appeal under Mich. Admin Code R 421.270(1).
While the appeal with this Court was pending, the Supreme Court decided Dep't of Licensing and Regulatory Affairs/Unemployment Ins Agency v Lucente, 508 Mich. 209; 973 N.W.2d 90 (2021) (Lucente II), which reversed this Court's published decision in Dep't of Licensing and Regulatory Affairs/Unemployment Ins Agency v Lucente, 330 Mich.App. 237, 250; 946 N.W.2d 836 (2019) (Lucente I). In short, the Supreme Court held that "the Agency must issue a 'determination' before it issues a 'redetermination' and that the failure to do so is grounds for setting aside a determinationless 'redetermination.'" Lucente II, 508 Mich. at 246.
As noted above, in case nos. 0-002-333-915 and 0-002-333-916, the Agency issued notices of "redetermination" concluding that Scott had improperly received benefits while she was employed and that she intentionally misled or concealed information to obtain benefits, i.e., she engaged in fraud. "No original 'determination' was issued with respect to this fraud determination." Scott I, __ Mich.App. at __; slip op at 5. Given Lucente II, our original opinion in this case held that "the 'redeterminations' issued to Scott in case nos. []915 and []916 and the associated fines and penalties are invalid." Scott I, __ Mich.App. at __; slip op at 5. We also determined that Lucente II was dispositive of Scott's argument that the Agency missed the deadline for finding fraud under MCL 421.32a(2). See Scott I, __ Mich.App. at __ n 5; slip op at 4 n 5. The Supreme Court's order partially reversing our original opinion in this case did not disturb our decision related to the redeterminations. See Scott II, __ Mich. at __; 983 N.W.2d at 417.
Accordingly, Scott's remaining arguments concern only case nos. 0-002-333-913 and 0-001-824-775, in which the Agency issued "determinations" concluding, respectively, that Scott was ineligible to receive benefits after she voluntarily left her employment and that she engaged in fraud. Scott I, __ Mich.App. at __; slip op at 5. We originally held that the deadline for Scott to challenge the 2014 determinations should have been tolled under McBride v Americana Mobile Home Park, Inc, 173 Mich.App. 275, 282; 433 N.W.2d 336 (1988), because there was a lack of proof that Scott received the determinations. We determined that "the trial court misapplied the substantial-evidence test to the ALJ's findings that Scott received the 2014 determinations," citing a lack of "affirmative evidence in the record to support a finding of fact that the Agency sent the notices . . . ." Scott I, __ Mich.App. at __; slip op at 8. Given our ruling, it was unnecessary for us to address Scott's alternative arguments that the content of the fraud determination denied her due-process right to adequate notice and that there was good cause to allow a late appeal. Scott I, __ Mich.App. at __; slip at 8 n 16.
Judge Redford dissented from this part of our opinion, concluding "that the circuit court did not misapply the substantial evidence test to the ALJ's factual findings that Scott received the 2014 determinations." Scott I, __ Mich.App. at __; slip op at 6 (Redford, J., dissenting in part). The Supreme Court reversed our decision with respect to tolling "for the reasons stated by dissenting Judge Redford." Scott II, __ Mich. at __; 983 N.W.2d at 417. The Court then remanded the case to this Court for consideration of the remaining two issues argued by Scott but not decided in this Court's original opinion. See id. at __; 983 N.W.2d at 417-418.
II. DISCUSSION
The primary remaining issue that we did not previously address is whether the content of the fraud determination and the multiple notices sent at once to Scott provided her adequate notice of the reasons for the fraud determination so as to satisfy due process. Scott also argues that there is good cause to reopen her case and allow a late appeal under MCL 421.32a(2) and Mich. Admin Code R 421.270(1). We will address each argument in turn.
When reviewing a lower court's review of an administrative decision, this Court must determine whether the lower court "applied correct legal principles and whether it misapprehended or misapplied the substantial evidence test to the agency's factual findings, which is essentially a clear-error standard of review." Lawrence v Mich. Unemployment Ins Agency, 320 Mich.App. 422, 431; 906 N.W.2d 482 (2017) (quotation marks and citation omitted). "Whether an administrative agency exceeded its scope of authority or misapplied the law are questions of law that are reviewed de novo." Lucente II, 508 Mich. at 230. "Constitutional issues are reviewed de novo as a matter of law." Thomas v Pogats, 249 Mich.App. 718, 724; 644 N.W.2d 59 (2002).
Scott v Dep't of Labor & Economic Opportunity/Unemployment Ins Agency, 341 Mich.App. 87; __ N.W.2d __ (2022).
A. DUE PROCESS
Both federal and state constitutions "preclude the government from depriving a person of life, liberty, or property without due process of law." Hinky Dinky Supermarket, Inc v Dep't of Community Health, 261 Mich.App. 604, 605-606; 683 N.W.2d 759 (2004), citing U.S. Const, Amend XIV; Const 1963, art 1, § 17. "Procedural due process serves as a limitation on government action and requires government to institute safeguards in proceedings that affect those rights protected by due process, including life, liberty, or property." Thomas v Pogats, 249 Mich.App. 718, 724; 644 N.W.2d 59 (2002). "A procedural due process analysis requires a dual inquiry: (1) whether a liberty or property interest exists which the state has interfered with, and (2) whether the procedures attendant upon the deprivation were constitutionally sufficient." Hinky Dinky, 261 Mich.App. at 606 (quotation marks and citation omitted).
There is no dispute that there is a sufficient interest at stake to invoke due-process protection given that a determination of fraud allows the Agency to impose substantial civil and, in some instances, criminal penalties. See MCL 421.54. Thus, the question in this case is what amounts to due notice when the Agency finds that a claimant committed fraud.
MESA authorizes up to quadruple penalties, i.e., 400%, for certain types of fraud. See MCL 421.54(b)(ii). For comparison, tax fraud is only punishable by a 100% penalty. See MCL 205.23(5).
See Scott v Dep't of Labor & Economic Opportunity/Unemployment Ins Agency, __ Mich. __; 983 N.W.2d 417, 417-418 (2023).
"An elementary and fundamental requirement of due process in any proceeding . . . is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v Central Hanover Bank & Trust Co, 339 U.S. 306, 314; 70 S.Ct. 652; 94 L.Ed. 865 (1950). As it pertains to administrative agencies, due process requires "timely written notice detailing the reasons for proposed administrative action." Bundo v City of Walled Lake, 395 Mich. 679, 698; 238 N.W.2d 154 (1976). See also Hardges v Dep't of Social Servs, 177 Mich.App. 698, 702; 442 N.W.2d 752 (1989) ("At a minimum, due process requires the agency to explain, in terms comprehensible to the claimant, exactly what the agency proposes to do and why the agency is taking this action.") (citation omitted). Consistent with these due-process principles, MCL 421.32(a) requires the Agency to promptly notify the claimant and other interested parties of the determination and "the reasons for the determination."
As noted, there were two Notices of Determination issued to Scott. The fraud determination, issued in case no. 0-001-824-775, did not include the reasons for the Agency's conclusion that Scott intentionally mislead or concealed information in order to obtain benefits. The substance of that notice merely provided:
Issues and Sections of Michigan Employment Security Act involved: Misrepresentation and 62(b).
Your actions indicate you intentionally misled and/or concealed information to obtain benefits you were not entitled to receive.
Benefits will be terminated on any claims active on May 25, 2013.
You are disqualified for benefits under MES Act, Sec. 62(b)
This notice is plainly deficient because it failed to specifically identify the underlying allegations supporting the fraud determination and thus failed to place Scott on notice of the conduct she must defend. That conclusion is support by the three factors outlined in Mathews v Eldridge, 424 U.S. 319, 335; 96 S.Ct. 893; 47 L.Ed.2d 18 (1976), for determining what due process requires:
(1) the private interest that will be affected by the action of the State, (2) the governmental interest that will be affected if the safeguard is to be provided, and (3) the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. [People v Kennedy, 502 Mich. 206, 215; 917 N.W.2d 355 (2018) (quotation marks and citation omitted).]
First, the private interest at stake is substantial considering the penalties that may be imposed for unemployment fraud. See MCL 421.54. Second, the burden on the government to explain the factual basis for the fraud determination is minimal. That information is readily available to the Agency as it appears in the other Notice of Determination. We do not dispute the Agency's position that multiple determinations are required by MESA, however, this does not excuse the Agency from providing sufficient information in the fraud determination to allow the claimant to understand the basis for the Agency's decision. We find instructive the recent holding of the United States Supreme Court that a statute requiring the government to issue "a notice to appear" for a removal hearing means that the government must produce a single document with all the required information. Niz-Chavez v Garland, 593 U.S. __; 141 S.Ct. 1474, 1484-1486; __ L.Ed.2d __ (2021). In response to the government's objection that this may require the issuance of supplemental notices to amend the time and place for the hearing, the Court stated, "If the government finds filling out forms a chore, it has good company. The world is awash in forms, and rarely do agencies afford individuals the same latitude in completing them that the government seeks for itself today." Id. at __; 141 S.Ct. at 1485. The Court concluded that
when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them. [Id. at __; 141 S.Ct. at 1486.]
For similar reasons, we have no qualms about requiring the Agency to provide the specific reasons for the finding of fraud in the fraud determination itself. Finally, for determinations issued under Michigan's automated fraud detection program, the Michigan Integrated Data Automated System (MiDAS), there is clearly a high risk of an erroneous fraud determination. See Cahoo v SAS Analytics Inc, 912 F.3d 887, 894 (CA 6, 2019) ("[MiDAS] was deeply flawed; the Michigan Auditor General reviewed over 22,000 of MiDAS' fraud determinations and found that 93% of them did not actually involve fraud. In other words, 93% of MiDAS' fraud adjudications were false-positives."). And providing claimants with the specific underlying allegations will allow them to better defend against such determinations.
The Agency does not seriously contend that the fraud determination, standing alone, satisfies due process. Nonetheless, the Agency maintains that Scott received adequate notice based on the totality or "aggregate" of the information contained in the multiple notices. We conclude, however, that even if the notices are considered in the aggregate, they did not reasonably inform Scott of the Agency's reasons for the fraud determination.
"Due process is a flexible concept, the essence of which requires fundamental fairness." Al-Maliki v LaGrant, 286 Mich.App. 483, 485; 781 N.W.2d 853 (2009). Procedural due process claims are evaluated on a case-by-case basis. See In re Rood, 483 Mich. 73, 122; 763 N.W.2d 587 (2009). See also Yang v City of Wyoming, 793 F.3d 599, 604 (CA 6, 2015) ("Reasonableness inquiries occur case by case, circumstantially, and above all with attention to all that the government has done.").
The Agency asserts that the facts underlying the fraud determination at issue are provided in the Notice of Determination issued in case no. 0-002-333-913, i.e., the voluntary-quit determination, the substance of which provides:
Issues and Sections of Michigan Employment Security Act involved: Voluntary Quit and 29(1)(a).
You quit your job with ENTERPRISE SYNERGY LLC on May 30, 2013 due to other personal reasons.
Your leaving was voluntary and not attributable to the employer.
You are disqualified for benefits under MES Act, Sec. 29(1)(a).
For multiple reasons, we conclude that the voluntary-quit determination does not provide reasonable notice of the basis for the fraud determination. First, the Notices of Determination have different case numbers, which would indicate to the recipient that the documents are not related to a single case. Despite being related to one another, the fraud determination was issued in case no. 0-001-824-775, whereas the voluntary-quit determination was issued in case no. 0-002-333-913. No explanation has been offered for why the Agency uses different case numbers for documents relating to the same matter. Second, the voluntary-quit determination does not allege that Scott intentionally misrepresented the reason for her employment departure, and thus there is nothing to suggest that this is the underlying reason for the fraud determination. Third, the voluntary-quit determination asserts that Scott is disqualified from benefits under MESA Section 29(1)(a), whereas the fraud determination provides that she is disqualified under MESA Section 62(b), further implying that the notices are unrelated.
To the degree that Scott asserts that the notice disqualifying her for benefits because she voluntarily quit her job fails to satisfy due process, we disagree. That notice provided a clear and comprehensible basis for the disqualification and satisfied due process unlike the notice of the fraud determination.
Contrary to Scott's argument, MCR 2.112's pleading requirements in civil actions do not apply to Agency notices. Had the Legislature so intended it would have specified such. Further, no cases have held that the MESA requires such. In my opinion, this Court should not import such pleading requirements into the MESA's notice provisions, particularly in this case where the notices sent to Scott comported with procedural due process.
It must also be remembered that the Agency simultaneously issued six notices to Scott (two notices of determinations, two notices of redeterminations, and two statements of restitution). The Agency relies on this "package of documents," suggesting that, given the amount of information provided to Scott, she must have received adequate notice. In fact, the opposite is true. Considering the multiple notices-relating to four separate case numbers-sent to Scott on the same day, it is unreasonable to expect that she would piece together the various bits of information to discern the basis for the Agency's fraud determination. See Niz-Chavez, 593 U.S. at __; 141 S.Ct. at 1485 (indicating that sending "a series of letters" "each containing a new morsel of vital information" would likely confuse the recipient).
For these reasons, we conclude that the Agency failed to give Scott reasonable notice of the reasons for the fraud determination. As a remedy for the due-process violation, Scott asks that the fraud determination be vacated. However, we see no principled reason to deviate from the relief outlined in McBride, 173 Mich.App. at 283-283, that we applied in our original opinion. That is, we see no material distinction between not receiving a determination and receiving a determination containing inadequate notice of its underlying reasons such that a different remedy is warranted. See Abbott v Howard, 182 Mich.App. 243, 251; 451 N.W.2d 597 (1990) (considering the equities of the case in determining the remedy for a procedural due-process violation.). Accordingly, consistent with McBride, 173 Mich.App. at 282-283, Scott will be allowed thirty days on remand to file an application for review of the fraud determination on the merits.
In Lucente I, 330 Mich.App. 237, this Court held that the Agency's failure to first issue a determination before a redetermination did not violate due process. Id. at 264-266. This Court also determined that the "redeterminations" provided adequate notice to the claimants. Id. While the Supreme Court reversed on other grounds, as discussed, it nonetheless reversed Lucente I in full. See Lucente II, 508 Mich. at 247 ("[T]he judgment of the Court of Appeals is reversed."). Accordingly, we are no longer bound by Lucente I's due process holding. See Kostreva v Kostreva, 337 Mich.App. 648, 659; 976 N.W.2d 889 (2021) ("Because this Court's decision . . . was wholly reversed, no part of it remains binding authority."); Estate of Wanda Jesse v Lakeland Specialty Hosp at Berrien Ctr, 328 Mich.App. 142, 149 n 2; 936 N.W.2d 705 (2019) ("A Court of Appeals opinion that has been vacated by the majority of the Supreme Court without an expression of approval or disapproval of this Court's reasoning is not precedentially binding.") (quotation marks and citations omitted). Further, the primary issue in Lucente I was whether the Agency was depriving claimants of the process due under MCL 421.32a by issuing redeterminations rather than determinations. See Lucente I, 330 Mich.App. at 264-265. There is no citation or discussion of any caselaw pertaining to due-process requirements. Moreover, as noted, whether a claimant received due process is decided on a case-by-case basis, and there are distinguishing facts in this case given that the Agency simultaneously sent six notices pertaining to four different case numbers.
B. GOOD CAUSE TO REOPEN
Scott also argues that there is good cause to reopen her case and allow a late appeal.
An interested party has 30 days "after the mailing or personal service of a notice of determination" to file a request for review with the Agency. MCL 421.32a(1). In May 2014, when the Agency issued the determinations at issue, MCL 421.32a(2) provided in pertinent part:
The unemployment agency may, for good cause, including any administrative clerical error, reconsider a prior determination or redetermination after the 30-day period has expired and after reconsideration issue a redetermination affirming, modifying, or reversing the prior determination or redetermination . . . . A reconsideration shall not be made unless the request is filed with the unemployment agency, . . . within 1 year from the date of mailing or personal service of the original determination on the disputed issue. [MCL 421.32a(2), as amended by 2011 PA 269 (emphasis added).]
Accordingly, at the relevant time, the good-cause exception applied only to appeals or protests filed within a year of the mailing of the decision. And given the Supreme Court's remand order, we must accept the ALJ's finding that Scott received the May 9, 2014 determinations. Because Scott failed to protest the May 9, 2014 determinations within a year of their issuance, the determinations are final by operation of MCL 421.32a(2). Accordingly, she is not eligible for a late appeal under MCL 421.32a(2), and we need not address the nonexclusive circumstances listed in Mich. Admin Code R 421.270(1) for determining if good causes exists.
MCL 421.32a(2) now provides in relevant part that "[a] reconsideration shall not be made unless the request is filed with the unemployment agency, or reconsideration is initiated by the unemployment agency with notice to the interested parties, within 1 year after the date of mailing or personal service of the original determination on the disputed issue or, if the original determination involved a finding of fraud, within 3 years after the date of mailing or personal service of the original determination." MCL 421.32a(2), as amended by 2017 PA 232, effective July 1, 2018. However, even if the three-year reconsideration period provided by the current version of the statute applied in this case, Scott's March 30, 2018 protest would still be untimely to challenge the May 9, 2014 determinations.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
ON REMAND
REDFORD, J. (dissenting).
Our Supreme Court reversed Part III of the judgment of this Court1 and remanded for consideration of the issues raised by claimant Lillian Scott but not addressed by this Court during our initial review.2 Lillian Scott claims that the content of the Department of Licensing and Regulatory Affairs/Unemployment Insurance Agency's determinations in Cases 0-001-824-775 and 0-002-333-913 did not provide her adequate notice and thereby denied her due process, and that good cause exists to reopen her cases and allow a late appeal. For the reasons stated herein, I respectfully dissent from the majority's opinion because I would affirm the lower court's rulings on these two issues.
I. BACKGROUND
The background facts stated in our previous opinion and the dissenting opinion, Scott, 341 Mich.App. at 92-96, and 105-108, respectively, are incorporated herein by reference. As previously described, Scott seeks to challenge the Agency's determinations requiring her to pay restitution and penalties under the Michigan Employment Security Act (MESA), MCL 421.1 et seq.
After Scott's former employer, Enterprise Synergy, LLC, notified the Agency that Scott voluntarily stopped working on May 30, 2013, and it complained that it should not be held responsible for paying her any unemployment benefits, the Agency investigated and mailed Scott requests for information on April 24, 2014, and then mailed her determinations on May 9, 2014, in Cases 775 and 913, informing her that her benefits were terminated, and also mailed her notices that she must pay restitution of the amount she received plus penalties. In Case 775, the Agency's Notice of Determination stated in relevant part:
Issues and Sections of Michigan Employment Security Act involved: Misrepresentation and 62(b).
Your actions indicate you intentionally misled and/or concealed information to obtain benefits you were not entitled to receive.
Benefits will be terminated on any claims active on May 25, 2013.
You are disqualified for benefits under MES Act, Sec. 62(b). Restitution is due under MES Act Sec. 62(a0.
In Case 913, the Agency's Notice of Determination stated in relevant part:
Issues and Sections of Michigan Employment Security Act involved: Voluntary Quit and 29(1)(a).
You quit your job with ENTERPRISE SYNERGY LLC on May 30, 2013 due to other personal reasons.
Your leaving was voluntary and not attributable to the employer.
You are disqualified for benefits under MES Act, Sec. 29(1)(a).
Each notice also informed Scott of her right to protest or appeal the determinations within 30 days and how to do so.
After the appeal period lapsed, the Agency began garnishing her wages and intercepting her income tax refunds to satisfy the outstanding amounts she owed. Scott engaged attorneys and ultimately in 2018 an attorney filed a protest and requested that her cases be reopened. Because Scott had not appealed the determinations within one year of the May 9, 2014 determinations, as required under MCL 421.32a(2), the Agency considered her requests time-barred. Scott appealed the Agency's decision and an ALJ conducted a hearing and affirmed the Agency's decision and denial to reopen Scott's cases. Scott appealed the ALJ's order to the Michigan Compensation Appellate Commission (MCAC), on the ground that good cause for a late appeal existed because the Agency's determinations did not provide reasonable and adequate notice. The MCAC affirmed the ALJ's decision. Scott then appealed to the circuit court which held that competent, material, and substantial evidence in the record supported the findings of the ALJ and the MCAC. The circuit court also concluded that the notices complied with MCL 421.32 and satisfied procedural due process.
On appeal, Scott asserts that the Agency's determinations deprived her of due process by failing to adequately provide her notice, and she claims that good cause exists to allow her to file a late appeal under Mich. Admin Code R 421.270(1).
II. STANDARDS OF REVIEW
We review de novo the circuit court's application of legal principles in reviewing an administrative decision, including matters of statutory interpretation. Mericka v Dep't of Community Health, 283 Mich.App. 29, 36; 770 N.W.2d 24 (2009). We review the circuit "court's review of an administrative decision to determine whether the lower court applied correct legal principles and whether it misapprehended or misapplied the substantial evidence test to the agency's factual findings, which is essentially a clear-error standard of review." Braska v Challenge Mfg Co, 307 Mich.App. 340, 351-352; 861 N.W.2d 289 (2014) (quotation marks and citation omitted). "A finding is clearly erroneous where, after reviewing the record, this Court is left with the definite and firm conviction that a mistake has been made." VanZandt v State Employees' Retirement Sys, 266 Mich.App. 579, 585; 701 N.W.2d 214 (2005).
When an ALJ serves as the trier of fact in an administrative proceeding, it is the ALJ who "heard testimony . . ., reviewed all the evidence in the record and made findings of fact based on the credibility of witnesses and weight of the evidence." Hodge v U.S. Security Assoc, Inc, 497 Mich. 189, 195; 859 N.W.2d 683 (2015). The ALJ's role requires that it, and not a circuit court on review, make determinations of credibility and resolve evidentiary conflicts. Id. at 194-195. The circuit court "must affirm a decision of the ALJ and the MCAC . . . if competent, material, and substantial evidence supports it. A reviewing court is not at liberty to substitute its own judgment for a decision of the MCAC that is supported with substantial evidence." Id. at 194. "Substantial evidence is that which a reasonable mind would accept as adequate to support a decision, being more than a mere scintilla, but less than a preponderance of the evidence." VanZandt, 266 Mich.App. at 584 (quotation marks and citation omitted). Although the MCAC's factual findings are entitled to great deference, they are only conclusive if "any competent evidence" supports those findings. Brackett v Focus Hope, Inc, 482 Mich. 269, 275; 753 N.W.2d 207 (2008). "Evidence is competent, material, and substantial if a reasoning mind would accept it as sufficient to support a conclusion." City of Romulus v Dep't of Environmental Quality, 260 Mich.App. 54, 63; 678 N.W.2d 444 (2003). Under the clear-error standard, this Court will affirm if the lower court's determination "is plausible in light of the record viewed in its entirety." Beason v Beason, 435 Mich. 791, 803; 460 N.W.2d 207 (1990).
III. ANALYSIS
Scott argues that the notices of determinations failed to provide her reasonably sufficient information regarding the bases for the Agency's determinations and deprived her of adequate due process in violation of state and federal law. I disagree.
MCL 421.29(1)(a) provides that an individual is disqualified from receiving benefits if she left work voluntarily. MCL 421.32(a) requires the Agency to promptly notify the claimant and other interested parties of the determination and "the reasons for the determination." MCL 421.62(a) requires the Agency to issue a restitution determination requiring restitution if it determines that an individual was not entitled because the individual made an intentional false statement, misrepresentation, or concealed material information to obtain benefits. MCL 421.62(b) requires termination of benefits of persons who made an intentional false statement, misrepresentation, or concealed material information to obtain benefits.
"Procedural due process serves as a limitation on government action and requires government to institute safeguards in proceedings that affect those rights protected by due process, including life, liberty, or property." Thomas v Pogats, 249 Mich.App. 718, 724; 644 N.W.2d 59 (2002). "Due process in civil cases generally requires notice of the nature of the proceedings, an opportunity to be heard in a meaningful time and manner, and an impartial decisionmaker." Cummings v Wayne Co, 210 Mich.App. 249, 253; 533 N.W.2d 13 (1995). "Due process is a flexible concept, the essence of which requires fundamental fairness." Al-Maliki v LaGrant, 286 Mich.App. 483, 485; 781 N.W.2d 853 (2009). Notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Elba Twp v Gratiot Co Drain Comm'r, 493 Mich. 265, 287-288; 831 N.W.2d 204 (2013) (quotation marks and citation omitted).
In this case, the Agency's determinations in Cases 775 and 913 respectively, informed Scott that she "intentionally misled and/or concealed information to obtain benefits" and that she voluntarily left her position with her former employer and that her leaving was not attributable to the employer. The notices of determination, along with the restitution orders, provided Scott adequate notice of the time period of ineligibility (after she voluntarily quit), the reason for ineligibility (she voluntarily left employment), the amount she owed including additional penalties for fraud, and her appellate rights. The circuit court correctly understood that MCL 421.32 required the Agency to notify Scott of the reasons for the determinations but that the statute does not require detailed particularized factual explanations of the reasons.3 The record indicates that the determinations informed Scott of the grounds for termination of her benefits. The notices of determinations adequately provided the information necessary to inform Scott of her ineligibility and her rights, and satisfied the minimum requirements of procedural due process by stating the decisions and the Agency's grounds for them, as well as providing her an opportunity to be heard in a meaningful time and manner by an impartial decision-maker. The notices informed Scott of the grounds for the determinations and appropriately informed her that she had opportunity to respond and explain her position, and present evidence in her support to rebut the Agency's determinations within the statutorily defined period. She simply failed to timely do so. I find nothing fundamentally unfair about the notices given Scott, and her arguments to the contrary lack merit. The circuit court correctly concluded that Scott had not been denied procedural due process and ruled that the ALJ's and MCAC's decisions were not contrary to law and supported by competent and material evidence. I disagree with the majority's conclusion that the Agency must meet a heightened notice standard that the Legislature has not imposed by statute to satisfy due process.
Scott also argues that good cause exists to reopen her case and allow a late appeal. I disagree.
In May 2014, when the Agency issued the determinations at issue, MCL 421.32a(2) provided in relevant part:
The unemployment agency may, for good cause, including any administrative clerical error, reconsider a prior determination . . . after the 30-day period has expired and after reconsideration issue a redetermination affirming, modifying, or reversing the prior determination . . . . A reconsideration shall not be made unless the request is filed with the unemployment agency, . . . within 1 year from the date of mailing or personal service of the original determination on the disputed issue. [MCL 421.32a(2), as amended by 2011 PA 269.]
The statute's good-cause exception plainly permitted the Agency to consider requests for redetermination only in instances where the claimant sought such action within one year of the mailing of the original determination. In this case, Scott did not timely seek reconsideration within one year of the original May 9, 2014 mailing of the notices of determinations to her. Accordingly, she is not eligible for reopening of her cases to raise late appeal under MCL 421.32a(2).
For these reasons, I would affirm the circuit court's decision.