Department of Talent and Economic Development v. Michael Herzog

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Syllabus Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch

This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis

DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS/UNEMPLOYMENT
INSURANCE AGENCY v LUCENTE

DEPARTMENT OF TALENT AND ECONOMIC DEVELOPMENT/UNEMPLOYMENT
INSURANCE AGENCY v HERZOG

Docket Nos. 160843 and 160844. Argued March 3, 2021 (Calendar No. 5). Decided
July 30, 2021.

The Unemployment Insurance Agency (UIA) brought actions in the Macomb and Wayne
Circuit Courts against claimants Frank Lucente and Michael Herzog, respectively, to appeal the
decisions of the Michigan Compensation Appellate Commission (MCAC) (whose duties have
since been transferred, in part, to the Unemployment Insurance Appeals Commission) that the
claimants were not required to pay restitution and fraud penalties under the Michigan Employment
Security Act (MESA), MCL 421.1 et seq., despite the fact that they had improperly received
unemployment benefits after becoming employed full-time and providing inaccurate responses to
certification questions concerning their new employment. After the UIA discovered the
overpayments and suspected fraud, it issued documents entitled “Notice[s] of Redetermination” to
each claimant, one of which described the claimant’s new employment and explained that it made
him ineligible to receive the already-paid benefits, and the other of which alleged that the claimant
had intentionally concealed his new employment from the UIA on the basis of the answers
provided while certifying. The notices further explained that the claimants had the right to appeal
these “redeterminations” under MCL 421.33 and provided instructions on how to exercise that
right. The UIA also mailed each claimant a separate document that stated the appellants’
repayment obligations: restitution for the overpayment and financial penalties for the fraud. Both
sets of notices were issued within a year of the benefit payments at issue but more than 30 days
after the last payment. The claimants appealed these “redeterminations.” In Lucente, the ALJ
affirmed both of the UIA’s November 30, 2010 redeterminations, but the MCAC reversed. The
MCAC concluded that the November 30, 2010 redetermination was not a valid “redetermination”
unless the payment of benefits was considered an original determination that Lucente was
unemployed for those weeks, and it further reasoned that the “redetermination” had not been issued
within 30 days of any benefit check and no good cause was shown. In a separate opinion that
addressed the alleged fraud, the MCAC similarly concluded that the UIA’s failure to issue an
original determination on the issue of fraud was grounds for setting aside that “redetermination.”
In Herzog, the ALJ set aside both “redeterminations,” citing the UIA’s failure to issue original
determinations on eligibility and fraud. The MCAC affirmed, adopting the ALJ’s factual findings
and conclusions of law. In both Lucente and Herzog, the UIA appealed the MCAC’s decisions in
the circuit court. The Macomb Circuit Court, Diane M. Druzinski, J., affirmed the MCAC in
Lucente, and the Wayne Circuit Court, John A. Murphy, J., affirmed the MCAC in Herzog. The
UIA sought leave to appeal in the Court of Appeals, which granted the applications and
consolidated the appeals. In a published opinion, the Court of Appeals, GADOLA, P.J., and
SERVITTO and REDFORD, JJ., concluded that the circuit courts had not applied the correct legal
principles when they affirmed the decisions of the MCAC and held that the UIA’s identification
of its decisions as “redeterminations” was not grounds for setting aside the decisions. The panel
held that the UIA was not proceeding under MCL 421.32a but rather under MCL 421.62, and
therefore it was not constrained by the time limit for issuing redeterminations. 330 Mich App 237
(2019). The Supreme Court granted the appellants’ joint application for leave to appeal. 505 Mich
1127 (2020).

In an opinion by Chief Justice MCCORMACK, joined by Justices BERNSTEIN, CLEMENT,
CAVANAGH, and WELCH (as to Parts I, II, III, IV(A), and V as it relates to MCL 421.62 and
determinations concerning fraud and restitution), the Supreme Court held:

The Court of Appeals correctly held that MCL 421.62 authorizes the UIA to issue original
fraud and restitution determinations that are not subject to the constraints of MCL 421.32a.
However, it erred by concluding that the UIA’s decision to issue “redeterminations” in these cases
was of no substantive effect. The UIA must issue an original determination alleging fraud, and its
failure to do so was grounds for invalidating the “redeterminations” in this case. On this issue, the
payment of benefits cannot serve as an original “determination” on the alleged fraud, and the UIA’s
issuance of determinationless “redeterminations” deprives claimants of their right to protest.
When UIA-initiated review of a past-paid benefit results in a decision that the claimant received
benefits during a period of ineligibility or disqualification and owes restitution as a result, the UIA
must begin with an original “determination” as described in MCL 421.62.

1. MCL 421.62(a) has long permitted the UIA to recover already-paid benefits when it
determines that a person has obtained benefits to which that person is not entitled. And MCL
421.62(b) provides that when the UIA determines that a person has intentionally made a false
statement or misrepresentation or has concealed material information to obtain benefits, the person
shall have their right to benefits canceled in addition to any other applicable penalties, e.g., the
penalties for fraud described in MCL 421.54. This language refers to the UIA making a
“determination” that the claimant received an overpayment or engaged in fraud, and, significantly,
a “determination” under § 62 is distinguishable from a “redetermination” under § 32a. The MESA
plainly contemplates the issuance of the former before the latter. In light of this language and the
different protest and appeal processes described in §§ 32a and 33, the UIA must issue an original
determination that either requires restitution for an overpayment or assesses penalties for fraud.
This conclusion is reinforced by the MESA’s different time constraints for UIA action under
§ 62(a) and § 32a. Accordingly, the Court of Appeals correctly concluded that § 62 authorizes the
UIA to make original determinations imposing restitution for an overpayment or penalties for
fraud.
 2. With respect to the “redeterminations” accusing the appellants of fraud and imposing
fines and penalties under §§ 54 and 62(b), the issue of fraud does not relate to whether or not the
claimant was eligible or qualified during any period of time. Whether a claimant satisfies the
eligibility criteria described in § 28(1) (or might be disqualified under § 29) is distinct from
whether the claimant has willfully violated or intentionally failed to comply with the MESA under
MCL 421.54(a) and from whether the claimant has made a false statement or representation
knowing it to be false or has knowingly and willfully with intent to defraud failed to disclose a
material fact under MCL 421.54(b). The latter involves a culpable mental state; the former does
not. Supreme Court precedent—specifically, Royster v Employment Security Comm, 366 Mich
415 (1962)—supported this understanding of the MESA. While the relevant language has changed
slightly, the MESA still refers to UIA-initiated “redeterminations” as applying where there is a
“disputed issue.” As in Royster, the issue of fraud was not disputed at the time these claimants
received benefits; the UIA first alleged fraud when it issued the “Notice[s] of Redetermination.”
The appellants’ characterization of the UIA’s fraud decisions as untimely but otherwise valid
“redeterminations” was incorrect, because the UIA must issue an original determination when it is
alleging that a claimant engaged in fraud.

3. While the language of MCL 421.32(f) would seem to support the view that the payment
of benefits is a “determination” that these appellants were unemployed, because being unemployed
is a criterion of eligibility, this conclusion was incongruous with other language in the MESA.
MCL 421.62(a) allows the UIA to issue “determinations” that a claimant received a benefit to
which they were not entitled. Because an overpayment necessarily involves the payment of a
benefit, whenever the UIA issues a “determination requiring restitution” under MCL 421.62(a),
that same decision might be described as the UIA “redetermining” any determination on eligibility
that is created by the benefit check pursuant to § 32(f). The reference in § 32(f) to a benefit check
as a “determination” was best understood by reading that provision as a whole. That subsection
explains that “[a] chargeable employer, upon receipt of a listing of the check as provided in [MCL
421.21(a)], may protest by requesting a redetermination of the claimant’s eligibility or
qualification as to that period and a determination as to later weeks and benefits still unpaid that
are affected by the protest.” But no text in § 32(f) refers to UIA-initiated redeterminations under
§ 32a. Instead, it is the employer’s protest of the benefit-check determination that is the triggering
event. This understanding is reinforced by § 32(f)’s reference to the employer’s receipt of a listing
of the check as provided in § 21(a). Reading § 21(a) together with § 32 clarifies that, upon the
filing of an initial application for benefits, every base-period employer will receive a monetary
determination that indicates the claimant’s reported reason for separation and the extent to which
that employer’s unemployment insurance account will be charged for any benefits that might be
paid. The employer can protest the information reported in the monetary determination, and the
employer should do so if it disagrees. If benefits are paid, the chargeable employer will receive
the listing of the check as provided in § 21(a) and will have the opportunity to protest by requesting
a redetermination of the claimant’s eligibility or qualification as to that period and a determination
as to later weeks and benefits still unpaid that are affected by the protest. When such a protest is
made, it triggers the application of § 32(f) and the concept of the benefit-check-as-determination.
Absent such a protest, the benefit check cannot serve as a “determination” for a UIA-initiated
“redetermination” finding that a claimant received benefits to which they were not entitled,
regardless of whether § 32a’s time constraints have been satisfied. Moreover, construing the
MESA as requiring the UIA to issue an original “determination requiring restitution” when it seeks
to recover an overpayment (absent an employer’s protest under § 32(f)) is consistent with other
ways in which a claimant might receive a benefit to which they are not entitled. For these reasons,
the MESA requires the UIA to proceed by way of an original “determination” when (in the absence
of an employer protest) the UIA seeks to establish that a claimant received a benefit to which the
claimant is not entitled and imposes restitution pursuant to MCL 421.62(a).

4. The UIA’s failure to issue “determinations” was grounds for setting aside the
“redeterminations.” The MESA describes “determinations” and “redeterminations” as distinct
decision-making steps, and the distinction is made plain in § 32a, which provides that a
“redetermination” may affirm, modify, or reverse the prior determination. Although the MESA
never provides a comprehensive definition of either term, it repeatedly refers to the process
described in § 32a whenever it mentions “redeterminations.” The MESA requires the UIA to
“review any determination” whenever an interested party makes a timely protest, which plainly
contemplates some degree of UIA review in response to a protest, even if it ultimately affirms the
prior determination or transfers the case for an administrative hearing. Such review is foreclosed
if the UIA can simply begin with a “redetermination.” Holding that claimants would not suffer
discernable prejudice if the UIA began at the “redetermination” step, so long as the claimant was
adequately apprised of the issue and their right to appeal the decision, would allow the UIA to
always begin at the “redetermination” step, without consequence. This holding would also run
afoul of the rule that courts should avoid interpreting a statute in a way that renders any part of it
nugatory or surplusage. While a claimant’s right to protest the original determination and have
the UIA review its decision might seem less important than the administrative hearing that follows,
the wisdom of the statutory process is a question for the Legislature. The MCAC correctly
concluded that the UIA must issue a “determination” before it issues a “redetermination” and that
the failure to do so is grounds for setting aside a determinationless “redetermination.” To the
extent the Court of Appeals held otherwise, its reasoning was rejected as incompatible with the
MESA.

Court of Appeals judgment reversed.

Justice WELCH, concurring in part, dissenting in part, and concurring in the judgment,
joined Parts I, II, III, and IV(A) of the majority opinion, and also joined Part V as it relates to MCL
421.62 and determinations concerning fraud and restitution. However, she disagreed that a benefit
check was considered a determination under MCL 421.32(f) only for the purposes of an employer
filing a protest after receiving the listing of the benefit check. Rather, she believed the MESA
clearly provided that a benefit check could always serve as an original determination as to
eligibility and qualification to receive benefits in an unemployment proceeding, even if the action
was driven by the UIA as opposed to the employer. She also disagreed that the UIA was unable
to self-initiate a redetermination of a claimant’s eligibility for benefits under MCL 421.32a(1) or
(2) after it obtained information showing that an individual was paid but not eligible for such
benefits. In such a case, she did not believe that a new original determination as to ineligibility
was required because a benefit check in fact serves as an original determination on that issue. As
a result, she did not join Part IV(B) or (C) of the majority opinion in full. She joined Part IV(C)
of the majority opinion to the extent that it invalidated the UIA’s decisions as to fraud and
restitution and requires the UIA to respect the legal and procedural distinctions between a
determination and redetermination. However, she believed that the Court should uphold the
redetermination notices as they related to the claimant’s eligibility, subject to the “good cause”
requirement of MCL 421.32a(2). She believed that §§ 32(f) and 32a provided the UIA authority
to use either prior benefit-check determinations or an original eligibility determination as the base
determination for reconsidering a claimant’s eligibility for benefits. Given that the
redeterminations in this matter were issued more than 30 days after any applicable determination,
the UIA needed to show good cause for its delay. This issue was never litigated during the ALJ
proceedings in Lucente’s case, and because Herzog did not receive a hearing before an ALJ, the
matter has yet to be litigated in his case. Accordingly, she would have remanded these cases to
the appropriate ALJs to allow the parties to litigate whether the UIA had good cause for
reconsidering the claimants’ eligibility. However, she would have invalidated the notices at issue
as they related to fraud and restitution because those findings required original § 62
determinations, and she thus joined Part V of the majority opinion in part.

Justice ZAHRA, joined by Justice VIVIANO, concurring in part and dissenting in part, agreed
with the majority that the Court of Appeals correctly held that MCL 421.62 of the MESA
authorizes the UIA to make original, in-the-first-instance determinations imposing restitution for
overpayment or penalties for fraud. He dissented, however, from the majority’s holding that the
notices sent to these claimants were really redeterminations, which he characterized as elevating
form over substance. In his view, the UIA’s notices were, in substance, § 62 determinations that
were simply mislabeled, particularly given that the UIA itself cited § 62 as authority for its actions.
He stated that the majority’s ruling that the notices were redeterminations because they were
labeled as such was contrary to the substance-over-form approach followed in other areas such as
administrative law, the law of pleadings, and statutory interpretation. Moreover, he would have
held that the claimants were not prejudiced by the UIA’s actions, given that the notices informed
claimants that they had been disqualified from receiving benefits and why, that they had
fraudulently received benefits and were required to pay restitution and fraud penalties, that they
owed the UIA money and how much, and that they had the right to appeal. The determinations of
fraud were made within the proper time frame, claimants were informed of their right to protest,
and claimants were able to, and did, seek appellate review. Accordingly, Justice ZAHRA would
have affirmed the Court of Appeals.
 Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

OPINION Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch

FILED July 30, 2021

STATE OF MICHIGAN

SUPREME COURT

DEPARTMENT OF LICENSING AND
REGULATORY
AFFAIRS/UNEMPLOYMENT
INSURANCE AGENCY,

Appellee,

v No. 160843

FRANK LUCENTE,

Claimant-Appellant,

and

DART PROPERTIES II, LLC,

Employer-Appellee.

DEPARTMENT OF TALENT AND
ECONOMIC
DEVELOPMENT/UNEMPLOYMENT
INSURANCE AGENCY,

Appellee,
 v No. 160844

MICHAEL HERZOG,

Claimant-Appellant,

and

CUSTOM FORM, INC.,

Employer-Appellee.

BEFORE THE ENTIRE BENCH

MCCORMACK, C.J.
In these cases we consider the process the defendant Unemployment Insurance

Agency (the Agency) must follow when it seeks to establish that a claimant received

benefits to which they were not entitled—an overpayment. Relatedly, we consider the

process the Agency must follow to establish that the claimant committed fraud when the

Agency seeks to impose penalties for that fraud.

Frank Lucente and Michael Herzog, the appellants, applied for and received

unemployment benefits. Each found new employment before their benefits expired. Only

“unemployed” individuals are eligible to receive benefits, but they continued to claim

benefits while employed full-time.

The Agency issued decisions finding that the appellants received benefits they were

not entitled to receive. The Agency also found, in separate decisions, that the appellants

had intentionally misrepresented or concealed their employment status—that they had

committed fraud. The Agency identified these decisions as “redeterminations.”

2
 The Agency now acknowledges that it should have issued original “determinations”

and not “redeterminations.” Characterizing its error as a mere mislabeling, the Agency

argues that its mistake does not provide grounds for setting aside the “redeterminations”

because the decisions adequately apprised the appellants of the Agency’s various findings

and did not prevent the appellants from pursuing administrative appeals of those decisions.

We conclude otherwise. Allowing the Agency to begin at the “redetermination”

step would deprive unemployment claimants of their statutory right to protest an allegation

of benefit fraud and have the Agency review that decision before the claimant files an

administrative appeal. The Michigan Employment Security Act (MESA), MCL 421.1 et

seq., provides claimants with the right to protest an unfavorable determination and the right

to appeal any redetermination. Because the Agency never issued a “determination” in these

cases on the issue of fraud, the result urged by the Agency would render meaningless the

claimant’s right to protest. For that reason, we hold that the Agency must begin by issuing

an original “determination” when it seeks to establish that a claimant engaged in fraud.

Failure to do so is grounds for invaliding a “redetermination” finding fraud and imposing

associated fines and penalties. Likewise, we conclude that the Agency should have issued

original “determinations” on the issue of the appellants’ ineligibility. When the Agency

begins with a “redetermination” that a claimant received benefits during a period of

ineligibility and owes restitution as a result, the Agency denies the claimant their right to

protest the finding of ineligibility. For these reasons we reverse the judgment of the Court

of Appeals.

3
 I. THE STATUTORY PROCESS

The statutory provisions that govern the timelines and procedures the Agency must

follow when it evaluates a claim for unemployment benefits, including review for

overpayments and benefit fraud, are not especially user-friendly. But understanding this

statutory process is the first step to understanding the parties’ disagreements.

Subsection 32(a) of the MESA directs the Agency to “promptly examine claims,”

“make a determination on the facts,” and “promptly notif[y]” the “claimants and other

interested parties . . . of the determination and the reasons for the determination.” MCL

421.32(a).

The MESA does not define the term “determination,” but the act tells us in what

circumstances a “determination” can be made. In the context of a claim for benefits, a

“determination” is an official decision by the Agency that involves agency fact-finding and

application of law (the MESA) to those facts. See Black’s Law Dictionary (11th ed)

(defining “determination” as “[t]he act of deciding something officially”).

The MESA requires the Agency to issue a specific type of determination when an

application for benefits is filed. This is the “monetary determination,” and it is described

in § 32(b):

The unemployment agency shall mail to the claimant, to each base
period employer or employing unit, and to the separating employer or
employing unit, a monetary determination. The monetary determination
shall notify each of these employers or employing units that the claimant has
filed an application for benefits and the amount the claimant reported as
earned with the separating employer or employing unit, and shall state the
name of each employer or employing unit in the base period and the name of
the separating employer or employing unit. The monetary determination
shall also state the claimant’s weekly benefit rate, the amount of base period
wages paid by each base period employer, the maximum benefit amount that
could be charged to each employer’s account or experience account, and the

4
 reason for separation reported by the claimant. The monetary determination
shall also state whether the claimant is monetarily eligible to receive
unemployment benefits. Except for separations under section 29(1)(a), no
further reconsideration of a separation from any base period employer will
be made unless the base period employer notifies the unemployment agency
of a possible disqualifying separation within 30 days of the separation in
accordance with this subsection. Charges to the employer and payments to
the claimant shall be as described in section 20(a). New, additional, or
corrected information received by the unemployment agency more than 10
days after mailing the monetary determination shall be considered a request
for reconsideration by the employer of the monetary determination and shall
be reviewed as provided in section 32a. [MCL 421.32(b) (emphasis added).]

The monetary determination will indicate whether the claimant is “monetarily eligible”;

that is, whether the claimant’s base-period 1 wages are sufficient. See id. The (somewhat

misnamed) monetary determination will also include non-monetary information: namely,

the claimant’s reported reason for separation from employment from the separating

employer and, if applicable, any other base-period employer. See id.

The MESA does not require the Agency to issue any additional “determinations” in

connection with an application for benefits unless the claimant’s reported reason(s) for

separation are disputed by an employer, see id., “the claimant’s most recent base period or

benefit year separation was for a reason other than the lack of work,” MCL 421.32(c), or

if there is a disqualification 2 issue related to a base-period employer, see id. Together,

1
The “base period” refers to the period of time in which wages earned by the claimant are
considered to determine whether the claimant satisfies the wage threshold for
unemployment benefits. See MCL 421.27; MCL 421.45.
2
Non-monetary “eligibility” requirements are described in § 28 of the MESA. See MCL
421.28(1) (“An unemployed individual is eligible to receive benefits with respect to any
week only if the unemployment agency finds all of the following . . . .”); see also MCL
421.48 (defining “unemployed”).

5
Subsections (a) through (c) facilitate the expeditious resolution of whether the applicant is

due unemployment benefits.

If the claimant’s application for benefits is approved, they will be allowed to claim

(certify for) benefits. See MCL 421.27(a)(1) (“When a determination, redetermination, or

decision is made that benefits are due an unemployed individual, the benefits become

payable . . . and continue to be payable . . . if the individual continues to be unemployed

and to file claims for benefits, until the determination, redetermination, or decision is

reversed [or] a determination, redetermination, or decision on a new issue holding the

individual disqualified or ineligible is made . . . .”). As part of the certification process,

the claimant is required to answer questions about their continuing entitlement to receive

benefits.

Sometimes a claimant is paid a benefit they were not entitled to receive. The MESA

directs the Agency to recover these overpayments. See MCL 421.62(a) and (d). 3 The

Comparatively, “disqualification” from benefits is described in § 29 and is distinct
from eligibility. MCL 421.29. A disqualification can arise from things such as the claimant
leaving work without good cause attributable to the employer (“voluntary quit”), see MCL
421.29(1)(a); the claimant being discharged for work-related misconduct, see MCL
421.29(1)(b); or the claimant refusing an offer of suitable work, see MCL 421.29(1)(c). A
claimant who is disqualified from receiving benefits must fulfill certain requalifying
requirements such as working for a certain period before again becoming entitled to
benefits. See MCL 421.29(2) and (3).
3
Section 62 has been amended since the decisions here at issue. While the changes are not
critical to our analysis, the prior versions are reprinted here. In November 2010 (applicable
to appellant Lucente) § 62 provided in relevant part:

(a) If the commission determines that a person has obtained benefits
to which that person is not entitled, the commission may recover a sum equal
to the amount received by 1 or more of the following methods: . . . The
commission shall not recover improperly paid benefits from an individual

6
 more than 3 years, or more than 6 years in the case of a violation of section
54(a) or (b) or sections 54a to 54c, after the date of receipt of the improperly
paid benefits unless: (1) a civil action is filed in a court by the commission
within the 3-year or 6-year period, (2) the individual made an intentional
false statement, misrepresentation, or concealment of material information to
obtain the benefits, or (3) the commission issued a determination requiring
restitution within the 3-year or 6-year period. . . .

(b) . . . [I]f the commission determines that a person has intentionally
made a false statement or misrepresentation or has concealed material
information to obtain benefits, whether or not the person obtains benefits by
or because of the intentional false statement, misrepresentation, or
concealment of material information, the person shall, in addition to any
other applicable penalties, have his or her rights to benefits for the benefit
year in which the act occurred canceled as of the date the commission
receives notice of, or initiates investigation of, a possible false statement,
misrepresentation, or concealment of material information, whichever date
is earlier, and wages used to establish that benefit year shall not be used to
establish another benefit year. . . .

(c) Any determination made by the commission under this section is
final unless an application for a redetermination is filed with the commission
in accordance with section 32a.

(d) The commission shall take the action necessary to recover all
benefits improperly obtained or paid under this act, and to enforce all
penalties under subsection (b). [MCL 421.62, as amended by 1995 PA 125.]

In October 2017 (applicable to appellant Herzog), § 62 provided as follows:

(a) If the unemployment agency determines that a person has obtained
benefits to which that person is not entitled, or a subsequent determination
by the agency or a decision of an appellate authority reverses a prior
qualification for benefits, the agency may recover a sum equal to the amount
received plus interest by 1 or more of the following methods: . . . . The
unemployment agency shall issue a determination requiring restitution
within 3 years after the date of finality of a determination, redetermination,
or decision reversing a previous finding of benefit entitlement. Except in the
case of benefits improperly paid because of suspected identity fraud, the
unemployment agency shall not initiate administrative or court action to
recover improperly paid benefits from an individual more than 3 years after
the date that the last determination, redetermination, or decision establishing

7
MESA also directs the Agency to impose administrative fines and other penalties if the

claimant makes a false statement or fails to disclose material information in connection

with a claim. MCL 421.54(b) (“[A] claimant . . . who makes a false statement or

representation knowing it to be false, or knowingly and willfully with intent to defraud fails

restitution is final. Except in the case of benefits improperly paid because of
suspected identity fraud, the unemployment agency shall issue a
determination on an issue within 3 years from the date the claimant first
received benefits in the benefit year in which the issue arose, or in the case
of an issue of intentional false statement, misrepresentation, or concealment
of material information in violation of section 54(a) or (b) or sections 54a to
54c, within 3 years after the receipt of the improperly paid benefits unless
the unemployment agency filed a civil action in a court within the 3-year
period; the individual made an intentional false statement, misrepresentation,
or concealment of material information to obtain the benefits; or the
unemployment agency issued a determination requiring restitution within the
3-year period. . . .

(b) For benefit years beginning on or after October 1, 2000, if the
unemployment agency determines that a person has intentionally made a
false statement or misrepresentation or has concealed material information
to obtain benefits, whether or not the person obtains benefits by or because
of the intentional false statement, misrepresentation, or concealment of
material information, the person shall, in addition to any other applicable
interest and penalties, have his or her rights to benefits for the benefit year in
which the act occurred canceled as of the date the claimant made the false
statement or misrepresentation or concealed material information, and wages
used to establish that benefit year shall not be used to establish another
benefit year. . . .

(c) Any determination made by the unemployment agency under this
section is final unless an application for a redetermination is filed in
accordance with section 32a.

(d) The unemployment agency shall take the action necessary to
recover all benefits improperly obtained or paid under this act, and to enforce
all interest and penalties under subsection (b). . . . [MCL 421.62, as amended
by 2016 PA 522.]

8
to disclose a material fact, to obtain or increase a benefit . . . is subject to administrative

fines and is punishable as provided in this subsection . . . .”); MCL 421.62(b) (cancellation

of benefits); MCL 421.62(d).

If a claimant or employer disagrees with any “determination” made by the Agency,

the MESA provides them with the right to request a “review of [the] determination.” This

is known as a “protest,” and it is described in MCL 421.32a(1): 4

Upon application by an interested party for review of a determination,
upon request for transfer to an administrative law judge for a hearing filed
with the unemployment agency within 30 days after the mailing or personal
service of a notice of determination, or upon the unemployment agency’s
own motion within that 30-day period, the unemployment agency shall
review any determination. After review, the unemployment agency shall in
its discretion issue a redetermination affirming, modifying, or reversing the
prior determination and stating the reasons for the redetermination, or may
transfer the matter to an administrative law judge for a hearing. If the
unemployment agency issues a redetermination, it shall promptly notify the
interested parties of the redetermination. The redetermination is final unless
within 30 days after the mailing or personal service of a notice of the
redetermination an appeal is filed with the unemployment agency for a
hearing on the redetermination before an administrative law judge pursuant
to section 33.

In order to be timely, a protest must be made “within 30 days after the mailing or

personal service of [the] notice of determination[.]” MCL 421.32a(1). 5 The Agency can

4
As amended by 2017 PA 232. Slightly different versions were in effect during the time
periods relevant to these cases; the changes to the statute were of a housekeeping nature
and not relevant to our analysis. See 1996 PA 503 and 2011 PA 269.
5
If the Agency denies a protest on timeliness grounds, the protesting party can appeal that
decision to an administrative law judge (ALJ). If the ALJ determines there was “good
cause” for the late protest, the appeal from the denial will be treated as though the protesting
party is appealing a redetermination that affirmed the underlying determination. See MCL
421.33 (“With respect to an appeal from a denial of redetermination, if the administrative
law judge finds that there was good cause for the issuance of a redetermination, the denial

9
also review a prior determination in the absence of a protest so long as it does so within

the same 30-day period. Id. In either situation, the Agency “shall review [the]

determination” and either (i) issue a “redetermination” that affirms, modifies, or reverses

the determination, or (ii) transfer the matter for an administrative hearing. Id.

Agency-initiated review of a prior determination can occur outside the 30-day

period. See MCL 421.32a(2). Like review under § 32a(1), this review can result in the

Agency issuing a “redetermination” that affirms, modifies, or reverses the prior decision

or the Agency transferring the matter for a hearing. Id. There must be “good cause” for

Agency-initiated review under § 32a(2), and the Agency cannot initiate review more than

one year from “the date of mailing or personal service of the original determination on the

disputed issue . . . .” Id. 6

A claimant or employer who disagrees with a redetermination can appeal the

decision to an administrative law judge (ALJ). See MCL 421.32a(1) and (3); MCL 421.33.

A redetermination that is not appealed “within 30 days after the mailing or personal service

of [the] notice of the redetermination” becomes final. MCL 421.32a(1) and (3); see also

MCL 421.33 On appeal, the ALJ “shall decide the rights of the interested parties and shall

notify the interested parties of the decision, setting forth the findings of fact upon which

the decision is based, together with the reasons for the decision.” MCL 421.33(1). Appeals

shall be a redetermination affirming the determination and the appeal from the denial shall
be an appeal from that affirmance.”).
6
The one-year limitation applied at all times relevant here. Public Act 232 of 2017
extended this limitation to 3 years if the “original determination involved a finding of
fraud . . . .” MCL 421.32a(2), as amended by 2017 PA 232.

10
can be taken from the ALJ’s decision to the Michigan Compensation Appellate

Commission (MCAC) 7 and then from the MCAC to the circuit court. MCL 421.34; MCL

421.38.

With this understanding of the MESA, we turn to the disputed questions.

II. BASIC FACTS AND PROCEDURAL HISTORY

Claimant-appellants Frank Lucente and Michael Herzog filed applications for

unemployment insurance benefits. The Agency determined that benefits were due, and the

appellants began the every-other-week process of certifying for benefits.

Both appellants became employed full-time after the initial approval of their claims.

This new employment made them ineligible to receive further benefits. See MCL

421.28(1) (“An unemployed individual is eligible to receive benefits with respect to any

week . . . .”). But they continued to claim benefits and, in doing so, provided inaccurate

responses to certification questions concerning their new employment. As a result, the

Agency continued to provide benefits as though the appellants were unemployed.

Eventually the Agency discovered the overpayments and suspected fraud. The

Agency issued documents entitled “Notice[s] of Redetermination.” Two notices were

issued to each appellant. One of the notices described the appellant’s new employment

and explained that it made the appellant ineligible to receive the already-paid benefits. The

other notice alleged that the appellant had intentionally concealed their new employment

from the Agency (on the basis of the answers provided while certifying). The notices

7
The MCAC has since been replaced, in relevant part, by the Unemployment Insurance
Appeals Commission. See Executive Reorganization Order No. 2019-13.

11
further explained that the appellants had the right to appeal these “redeterminations” under

§ 33 and provided instructions on how to exercise that right. The Agency also mailed each

appellant a separate document that stated the appellants’ repayment obligations: restitution

for the overpayment and financial penalties for the fraud.

Both sets of notices were issued within a year of the benefit payments at issue but

more than 30 days after the last payment. 8 The appellants appealed both of the

“redeterminations,” as the MESA allows. MCL 421.33. 9

In Lucente, the ALJ affirmed both of the Agency’s November 30, 2010

redeterminations following a hearing at which Lucente testified, but the MCAC reversed.

Regarding the finding of ineligibility due to full-time employment, the MCAC concluded

that the November 30, 2010 redetermination was not a valid “redetermination” unless the

payment of benefits was considered an original determination that Lucente was

unemployed for those weeks. See MCL 421.32(f) (“The issuance of each benefit check

shall be considered a determination by the unemployment agency that the claimant

receiving the check was covered during the compensable period, and eligible and qualified

8
The notices in Lucente were issued on or around November 30, 2010. The corresponding
overpayments (totaling $4,794) and fraud penalties ($18,276) were for benefits that
Lucente received in the benefit weeks ending February 20, 2010 through June 19, 2010.

The notices in Herzog were issued on October 11, 2017. The corresponding
overpayments (totaling $1,810) and fraud penalties ($7,240) were for benefits that Herzog
received in the benefit weeks ending October 15, 2016, through November 12, 2016.
9
Lucente appealed the November 30, 2010 redeterminations in 2016. The Agency denied
those appeals as untimely because they were not filed within the 30-day period described
in MCL 421.32a. The ALJ agreed with Lucente that there was “good cause” for his late
appeals. See note 5 of this opinion. Herzog’s appeals were timely.

12
for benefits.”). The MCAC further reasoned that the redetermination (if in fact it was a

“redetermination”) wasn’t issued within 30 days of any benefit check and the Agency had

failed to establish (or even assert) “good cause” for reviewing a prior determination outside

the 30-day window for a timely protest. 10 See MCL 421.32a(1) and (2). The MCAC

suggested that the Agency could have addressed the alleged ineligibility in an original

“determination” that covered all the benefit weeks at issue but that its failure to do so

required the commission to set aside the ALJ’s decision finding Lucente ineligible.

In a separate opinion that addressed the alleged fraud, the MCAC similarly

concluded that the Agency’s failure to issue an original “determination” on the issue of

fraud was grounds for setting aside that “redetermination.” In addressing the Agency’s

contention that the benefit check could serve as the original determination for the fraud

decision, see MCL 421.32(f), the MCAC explained that an allegation of intentional

misrepresentation “does not relate to whether or not the claimant was eligible or qualified

during any period of time.”

In Herzog, the ALJ issued an order setting aside both “redeterminations” prior to

the scheduled hearing. The order cited the Agency’s failure to issue original

“determinations” on eligibility and fraud. The MCAC affirmed in a single opinion that

adopted the ALJ’s factual findings and conclusions of law.

In each case the Agency appealed the MCAC’s decisions in the circuit court, which

affirmed the MCAC.

10
The issue of “good cause” for Agency-initiated review beyond the 30-day period was
not addressed at the administrative hearing or in the ALJ’s written decision.

13
 The Agency sought leave to appeal in the Court of Appeals, which granted the

applications, consolidated the appeals, and in a published opinion “conclude[d] that in each

consolidated case, the circuit court did not apply the correct legal principles when it

affirmed the decisions of the MCAC.” Dep’t of Licensing & Regulatory

Affairs/Unemployment Ins Agency v Lucente, 330 Mich App 237, 266; 946 NW2d 836

(2019). 11

The panel held that the Agency’s identification of its decisions as

“redeterminations” was not grounds for setting aside the decisions. Id. at 259-260, 264,

266. The panel reasoned that the appellants hadn’t suffered any prejudice as a result of the

Agency’s failure to first issue determinations because the redeterminations adequately

described the reason for the appellants’ ineligibility and the alleged fraud (their full-time

employment and failure to disclose it), stated the relevant time period, informed the

appellants what they owed in restitution and penalties, and explained that the appellants

could appeal the “redeterminations.” Id.

Addressing the claimants’ argument that the Agency must issue a “redetermination”

within 30 days of the underlying determination, the panel held that in both cases the Agency

was not proceeding under § 32a but rather § 62; thus, the Agency wasn’t constrained by

the time limit for issuing “redeterminations.” Id. at 257-258, 263.

11
The Court of Appeals consolidated these two cases along with a similar appeal involving
a third claimant. The Court of Appeals’ analysis and conclusion with respect to the third
claimant was substantially the same as these cases. That claimant did not apply for leave
to appeal in this Court.

14
 We granted the appellants’ joint application for leave to appeal to decide two issues:

whether the Court of Appeals erred in its analysis of §§ 32, 32a, and 62 of
the Michigan Employment Security Act of 1936 (MESA), MCL 421.1 et
seq., when it held that: (1) the Unemployment Insurance Agency is not
required to comply with the time requirements set forth in § 32a when
seeking to recoup payment of fraudulently obtained benefits under § 62 of
the Act; and (2) the label that the agency used on its decisions was not
determinative of its ability to seek to recoup improperly obtained benefits.
[Dep’t of Licensing & Regulatory Affairs/Unemployment Ins Agency v
Lucente, 505 Mich 1127, 1127 (2020).]

III. APPLICABLE STANDARDS OF REVIEW

In reviewing administrative adjudication decisions, our task is “ ‘to determine

whether the lower court[s] applied correct legal principles and whether [they]

misapprehended or misapplied the substantial evidence test to the agency’s factual

findings[.]’ ” Hodge v US Sec Assoc, Inc, 497 Mich 189, 194; 859 NW2d 683 (2015)

(citation omitted). Whether an administrative agency exceeded its scope of authority or

misapplied the law are questions of law that are reviewed de novo. See In re Reliability

Plans of Electric Utilities for 2017-2021, 505 Mich 97, 118; 949 NW2d 73 (2020).

Questions of statutory interpretation are also reviewed de novo. Id.

IV. DISCUSSION

The appellants present two reasons for reinstating the MCAC’s decisions.

The first concerns timeliness. Quoting the first sentence of MCL 421.32(f)—“[t]he

issuance of each benefit check shall be considered a determination by the unemployment

agency that the claimant receiving the check was covered during the compensable period,

and eligible and qualified for benefits”—the appellants argue that the decisions finding

they received benefits while working full-time were “redeterminations” of the earlier

15
payments (and not mislabeled “determinations”) and therefore subject to the time

limitations in § 32a. And because the Agency didn’t assert “good cause” for Agency-

initiated review beyond the 30-day protest period, the “redeterminations” finding them

ineligible (not “unemployed”) were untimely. See MCL 421.32a(2). Regarding the

“redeterminations” finding fraud, the appellants claim these “redeterminations” are

untimely for the same reason and, further, that the Agency cannot impose penalties for

fraud unless there is a valid “redetermination” finding them not entitled to the benefit, and

there was not.

The Court of Appeals rejected this first argument because it concluded that the

Agency was proceeding under § 62, not § 32a, and that the “Notice[s] of Redetermination”

were properly characterized as timely (but mislabeled) determinations under § 62.

Lucente, 330 Mich App at 257-258, 263-264.

Accepting the Court of Appeals’ recharacterization of the Agency’s process as

having taken place under § 62 and mislabeled “redeterminations” instead of

“determinations,” the appellants next argue that the Agency’s use of “redeterminations”

wasn’t simply a labeling oversight with no substantive consequences. By issuing

“redeterminations,” the argument goes, the Agency skipped a step that the MESA

requires—original determinations on the appellants’ ineligibility and the alleged fraud—

depriving the appellants of their right to file a protest and have the Agency review its

decisions before any appeals.

In other words, the appellants accuse the Agency of having its cake and eating it

too. Either the decisions are untimely “redeterminations,” or the Agency failed to follow

the statutory process for making a valid “determination.”

16
 A. SECTION 62 REQUIRES THE AGENCY TO ISSUE ORIGINAL
“DETERMINATIONS” ON OVERPAYMENTS AND FRAUD

Starting with § 62.

MCL 421.62(a) has long permitted the Agency to recover already-paid benefits

when the Agency “determines that a person has obtained benefits to which that person is

not entitled . . . .” MCL 421.62(a), as amended by 1995 PA 125; MCL 421.62(a), as

amended by 2016 PA 522. And § 62(b) provides that when the Agency “determines that a

person has intentionally made a false statement or misrepresentation or has concealed

material information to obtain benefits,” the person shall have their right to benefits

canceled “in addition to any other applicable penalties,” e.g., the penalties for fraud

described in MCL 421.54. MCL 421.62(a), as amended by 1995 PA 125; see also MCL

421.62(a), as amended by 2016 PA 522. Significantly, this language refers to the Agency

making a “determination” that the claimant received an overpayment or engaged in fraud.

A “determination” under § 62 is distinguishable from a “redetermination” under

§ 32a. And the MESA plainly contemplates the issuance of the former before the latter.

As § 62(c) states, “any determination made . . . under this section [62] is final unless an

application for a redetermination is filed in accordance with section 32a.” (Emphasis

added.)

In light of this language, and mindful of the different protest and appeal processes

described in §§ 32a and 33, we believe the Agency must issue an original “determination”

that either requires restitution for an overpayment or assesses penalties for fraud. To the

extent these appellants’ arguments can be construed as requiring the Agency to first make

17
a “redetermination” on these issues under § 32a, that interpretation is incompatible with

the text of § 62.

Our conclusion is reinforced by the MESA’s various time constraints for Agency

action. During the periods here at issue, § 62(a) conditioned the Agency’s ability to recover

an overpayment on its issuing a “determination requiring restitution” within three years

“after the date of receipt of the improperly paid benefits[.]” MCL 421.62(a), as amended

by 1995 PA 125; 12 see also MCL 421.62(a), as amended by 2016 PA 522. This is in

conflict with the much shorter time limits for making a “redetermination” under § 32a.

That is, if the Agency must first make a “redetermination” of the benefit payment before

making a “determination” that the claimant received a benefit to which they were not

entitled (i.e., a “determination requiring restitution”), then the three-year limit described in

§ 62(a) is effectively nullified by the much shorter time limits described in § 32a.

For these reasons, we agree with the Court of Appeals that § 62 authorizes the

Agency to make original determinations imposing restitution for an overpayment or

penalties for fraud. See Lucente, 330 Mich App at 258 (“To impose on the Agency, when

proceeding under § 62, the additional procedural and time requirements of § 32a would

create requirements not imposed by the Legislature.”). But our agreement with the Court

of Appeals’ judgment ends there.

12
This version of the MESA gave the Agency up to six years to make a determination
under § 62(a) if the case involved fraud under § 54. This separate six-year-for-fraud time
limit was eliminated before the decisions in Herzog’s case. See 2016 PA 522.

18
 B. A DECISION REQUIRING RESTITUTION OR ALLEGING FRAUD CANNOT
BEGIN WITH A “REDETERMINATION” UNDER § 32a

We next consider the appellants’ argument that the Agency did not mislabel its

decisions as “redeterminations” and that the true mistake relates to the timeliness of the

decisions.

This argument is premised on statutory language that is now located at § 32(f). This

subsection provides in full:

The issuance of each benefit check shall be considered a determination by
the unemployment agency that the claimant receiving the check was covered
during the compensable period, and eligible and qualified for benefits. A
chargeable employer, upon receipt of a listing of the check as provided in
section 21(a), may protest by requesting a redetermination of the claimant’s
eligibility or qualification as to that period and a determination as to later
weeks and benefits still unpaid that are affected by the protest. Upon receipt
of the protest or request, the unemployment agency shall investigate and
redetermine whether the claimant is eligible and qualified as to that period.
If, upon the redetermination, the claimant is found ineligible or not qualified,
the unemployment agency shall proceed as described in section 62. In
addition, the unemployment agency shall investigate and determine whether
the claimant obtained benefits for 1 or more preceding weeks within the
series of consecutive weeks that includes the week covered by the
redetermination and, if so, shall proceed as described in section 62 as to those
weeks. [MCL 421.32(f), as amended by 2013 PA 144.][13]

Focusing on the phrase “eligible and qualified for benefits,” the appellants urge that

the “Notice[s] of Redeterminations” here are properly viewed as untimely

“redeterminations” of the “determination” created by the benefit payment.

13
Public Act 229 of 2020 added the following language at the end of § 32(f):
“Notwithstanding any other provision of this act, for benefits charged after March 15, 2020
but before January 1, 2021, an employer has 1 year after the date a benefit payment is
charged against the employer’s account to protest that charge.” See also 2020 PA 258
(substituting “January 1, 2021” with “April 1, 2021”).

19
 We address this argument with respect to each “redetermination” separately—that

these appellants were not “unemployed” and owe restitution for the overpayments, and that

they committed fraud and are subject to fines and penalties.

1. A BENEFIT CHECK IS NOT A “DETERMINATION” ON THE ISSUE OF FRAUD

Starting with the “redeterminations” accusing the appellants of fraud and imposing

fines and penalties under §§ 54 and 62(b). As the MCAC rightly pointed out in Lucente,

the issue of fraud “does not relate to whether or not the claimant was eligible or qualified

during any period of time.” Whether a claimant satisfies the eligibility criteria described

in § 28(1) (or might be disqualified under § 29) is distinct from whether the claimant has

“willfully violate[d] or intentionally fail[ed] to comply with any of the provisions of [the

MESA],” MCL 421.54(a), or whether the claimant has “[made] a false statement or

representation knowing it to be false, or [has] knowingly and willfully with intent to defraud

fail[ed] to disclose a material fact,” MCL 421.54(b). The latter involves a culpable mental

state; the former does not.

Our precedent supports this understanding of the MESA. In Royster v Employment

Security Comm, 366 Mich 415; 115 NW2d 106 (1962), the plaintiff filed a claim for

unemployment benefits with the benefit year commencing on January 12, 1958. On March

6, 1959, more than a year after the plaintiff received a benefit check, the employer charged

for the benefit discovered that it had paid the plaintiff wages for the same week as the

benefit. The Agency later issued a decision finding that the plaintiff had intentionally failed

to disclose his earnings for the week ending January 25, 1958, resulting in an overpayment.

20
Royster, 366 Mich at 417-418. The plaintiff challenged the Agency’s decision by arguing

that, pursuant to MCL 421.21(a),

the [Agency’s] issuance and providing of a copy of [the] benefit check to the
employer constitutes a determination of the charge to the rating account . . . .
Then plaintiff stresses that section 32a[14] limits to 1 year, after such mailing

14
The relevant statutory provisions of the MESA then in existence provided as follows:
CLS 1956, § 421.21, as amended by PA 1957, No 311, . . . provides in
subdivision (a):

“The commission shall currently provide each employer
with copies of the benefit checks charged against his rating
account. Such copies shall show the name and social security
account number of the payee, the amount paid, the date of
issuance, the week of unemployment for which the check was
issued, the name or account number of the chargeable
employer, upon request a code designation of the place of
employment by the chargeable employer, and such additional
information as may be deemed pertinent, and such copies shall
constitute a determination of the charge to the rating account.
Such determination shall be final unless further proceedings
are taken in accordance with section 32a of this act.”

CLS 1956, § 421.32a, as amended by PA 1957, No 311 . . . , provides, in
part:

“The commission shall upon application by an
interested party filed within 15 days after the mailing of a
notice of determination, or may upon its own motion within
said period, review any determination and thereafter issue a
redetermination affirming, modifying or reversing the prior
determination and stating the reasons therefor. The
commission shall promptly notify the interested parties of such
redetermination which shall become final unless within 15
days after the mailing of a notice thereof an appeal is filed for
a hearing on such redetermination before a referee in
accordance with the provisions of section 33 of this act:
Provided, That the commission may, for good cause, including
any administrative clerical error, reconsider any prior

21
 to the employer, the period within which a commission redetermination of
eligibility may be made. Here it did not occur until after [the employer’s
protest] on February 4, 1959. At that time, says plaintiff, no jurisdiction
longer remained in the commission to make a redetermination. [Id. at 419-
420.]

The employer rejoined that the Agency did have jurisdiction, even though its

decision issued more than a year after the benefit was paid. Focusing on the statutory

phrase “no such reconsideration shall be made after 1 year from the date of mailing of the

original determination on the disputed issue,” see MCL 421.32a(2), the employer

contended that “on the disputed issue” referred to the plaintiff’s intentional concealment of

his earning (fraud), which was not “at issue” when the payment was made. We agreed:

Chrysler says that the matter of plaintiff’s intentional concealment of his
earnings for the week ending January 25, 1958, is now the disputed issue but
was not at issue at the time when the January 29, 1958, original determination
of eligibility was made by giving him a benefit check for $44 and sending
Chrysler a copy. Plaintiff responds that the issue, both at the time the original
determination was made and after Chrysler’s February 4, 1959, protest and
request for redetermination, was whether plaintiff was eligible for benefits
for the week ending January 25, 1958. To that, Chrysler says that if that view
be adopted, then there is always a disputed issue at the time of original
determination and issuance of a benefit check and mailing of copy of same
to employer, and that, hence, the words “on the disputed issue” are useless
and redundant in the statute, because use of the term “original determination”
would have sufficed to fix the time for commencement of the 1-year
limitation period, to which the modifying quoted words then would add
nothing. So, says Chrysler, the presently disputed issue is whether plaintiff
intentionally concealed his earnings for the week in question, and that it

determination or redetermination after the 15-day period has
expired and issue a redetermination affirming, modifying or
reversing the prior determination or redetermination, but no
such reconsideration shall be made after 1 year from the date
of mailing of the original determination on the disputed issue.”
[Royster, 366 Mich at 418-419.]

22
 became the disputed issue only after [Chrysler’s] protest on February 4,
1959.

* * *

The words “disputed issue,” as used in section 32a, refer to a
contested issue or a matter in dispute between the employer and the
commission. In such disputed matters relief must be requested within 15 days
or within 1 year for good cause shown. In our opinion matters not in dispute,
such as payments voluntarily made and accepted, do not fall within the
restrictions of section 32a. [Id. at 420-421 (quotation marks and citations
omitted; emphasis added).]

While the language has changed slightly, the MESA still refers to Agency-initiated

“redeterminations” as applying where there is a “disputed issue.” See MCL 421.32a(2)

(“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 . . . .”) (emphasis added). As in Royster, the issue of

fraud was not disputed at the time these appellants received benefits; the Agency first

alleged fraud when it issued the “Notice[s] of Redetermination.”

For these reasons, we disagree with the appellants’ characterization of the Agency’s

fraud decisions as untimely but otherwise valid “redeterminations.” The Agency must

issue an original “determination” when it is alleging that a claimant engaged in fraud.

2. THE AGENCY WAS REQUIRED TO ISSUE ORIGINAL “DETERMINATIONS”
ADDRESSING THE APPELLANTS’ INELIGIBILITY

The interplay between § 32(f) and the “redeterminations” finding these appellants

ineligible (not “unemployed”) presents a more difficult question.

At first glance, the language of § 32(f) would seem to support the view that the

payment of benefits is a “determination” that these appellants were “unemployed,” because

23
being “unemployed” is a criterion of eligibility. See MCL 421.28(1). But this is

incongruous with other language in the MESA. As already explained, § 62 allows the

Agency to issue “determinations” that a claimant received a benefit to which they were not

entitled. See MCL 421.62(a). An overpayment necessarily involves the payment of a

benefit, so whenever the Agency is issuing a “determination requiring restitution” under

MCL 421.62(a) that same decision might be described as the Agency “redetermining” any

determination on eligibility that is created by the benefit check pursuant to § 32(f). How

should the Agency proceed?

We believe that § 32(f)’s reference to a benefit check as a “determination” is best

understood when that provision is read as a whole. Reading past the first sentence, the

subsection explains that “[a] chargeable employer, upon receipt of a listing of the check as

provided in [MCL 421.21(a)], may protest by requesting a redetermination of the

claimant’s eligibility or qualification as to that period and a determination as to later weeks

and benefits still unpaid that are affected by the protest.” But no text in § 32(f) refers to

Agency-initiated redeterminations under § 32a. Instead, it is the employer’s protest of the

benefit-check determination that is the triggering event.

This understanding is reinforced by § 32(f)’s reference to the employer’s “receipt

of a listing of the check as provided in section 21(a) . . . .” That subsection provides:

The [Agency] shall currently provide each employer with copies or
listings of the benefit checks charged against that employer’s account. An
employer determined by the agency to be a successor employer shall begin
receiving the listings effective for weeks beginning after the mailing of the
determination of successorship. The copies or listings shall show the name
and social security account number of the payee, the amount paid, the date
of issuance, the week of unemployment for which the check was issued, the
name or account number of the chargeable employer, upon request a code

24
 designation of the place of employment by the chargeable employer, and
additional information as may be deemed pertinent. The copies or listings
shall constitute a determination of the charge to the employer’s account. The
determination shall be final unless further proceedings are taken in
accordance with section 32a.

The [Agency] shall furnish at least quarterly, to each employer, a
statement summarizing the total of the benefits charged against the
employer’s account during the period. If the employer requests, the summary
shall be broken down by places of employment.

The [Agency] shall notify each employer, not later than 6 months after
the computation date, of his rate of contributions as determined for any
calendar year pursuant to section 19. The statement or determination shall
be final unless further proceedings are taken in accordance with section 32a.
However, on request an employer shall be given an extension of 30 days’
additional time in which to apply for the review and redetermination. [MCL
421.21(a).]

Reading § 21(a) together with § 32 brings clarity. Upon the filing of an initial

application for benefits, every base-period employer will receive a monetary determination

that indicates the claimant’s reported reason for separation and the extent to which that

employer’s unemployment insurance account will be charged for any benefits that might

be paid. See MCL 421.32(b). The employer can protest the information reported in the

monetary determination, and the employer should do so if it disagrees. MCL 421.32(b);

see also MCL 421.32(d). If benefits are paid, the chargeable employer will receive “[the]

listing of the check as provided in section 21(a)” and will have the opportunity to “protest

by requesting a redetermination of the claimant’s eligibility or qualification as to that

period and a determination as to later weeks and benefits still unpaid that are affected by

the protest.” MCL 421.32(f). When such a protest is made, it triggers the application of

§ 32(f) and the concept of the benefit-check-as-determination. Absent such a protest (as in

these cases), the benefit check cannot serve as a “determination” for an Agency-initiated

25
“redetermination” finding that a claimant received benefits to which they were not entitled

regardless of whether § 32a’s time constraints have been satisfied.

Moreover, construing the MESA as requiring the Agency to issue an original

“determination requiring restitution” when it seeks to recover an overpayment (absent an

employer’s protest under § 32(f)) is consistent with other ways in which a claimant might

receive a “benefit to which [the claimant] is not entitled.” MCL 421.62(a). For example,

a claimant who is approved for benefits and later secures part-time employment might still

be “eligible” under the MESA’s definition of “unemployed.” See MCL 421.48(1). For

these claimants, the earning of part-time wages might reduce the amount of benefits they

are entitled to in any week, see MCL 421.27(c), but the claimant would remain “eligible

and qualified.” An overpayment might arise if the claimant misreports their part-time

wages (regardless of fraud), and the Agency could pursue restitution by issuing an original

determination under § 62(a). Such a decision couldn’t be described as a “redetermination”

of the benefit-check-as-determination described in § 32(f) because it would not relate to

the claimant’s eligibility under § 28(a) or a disqualification under § 29.

For these reasons, we conclude that the MESA requires the Agency to proceed by

way of an original “determination” when (in the absence of an employer protest) the

Agency seeks to establish that a claimant received a “benefit to which [the claimant] is not

entitled” and imposes restitution pursuant to MCL 421.62(a).

C. THE AGENCY’S FAILURE TO ADHERE TO THE STATUTORY PROCESS IS
GROUNDS FOR INVALIDATING ITS DECISIONS

Finally, we consider whether the Agency’s failure to issue “determinations” is

grounds for setting aside the “redeterminations.”

26
 We first note that in both of these cases the Agency issued the “Notice[s] of

Redetermination” well within the three-year time limit described in § 62. Had the

Agency’s decisions been “determinations” there would no cause for disturbing them. But

they were not.

The MESA describes “determinations” and “redeterminations” as distinct decision-

making steps. This makes sense given the ordinary understanding of both words: the

former necessarily precedes the latter. The distinction is made plain in § 32a: a

“redetermination” may “affirm[], modify[], or revers[e] the prior determination . . . .”

MCL 421.32a(1) and (2) (emphasis added). And though the MESA never provides a

comprehensive definition of either term, it repeatedly refers to the process described in

§ 32a whenever it mentions “redeterminations.” See, e.g., MCL 421.14 (“If evidence is

presented indicating that an employing unit which has been determined not to be an

employer is or was actually an employer, or that services which have been held not to

constitute employment are or were actually employment, the previous determination shall

be reopened and reconsidered by the commission in accordance with section 32a and a

redetermination made as the facts and law require . . . .”); MCL 421.32(e) (“The claimant

or interested party may file an application with an office of the unemployment agency for

a redetermination in accordance with section 32a.”); MCL 421.33(1) (“An appeal from a

redetermination issued by the agency in accordance with section 32a . . . shall be referred

to the Michigan administrative hearing system for assignment to an administrative law

judge.”); MCL 421.62(c) (“Any determination made by the unemployment agency under

this section is final unless an application for a redetermination is filed in accordance with

section 32a.”).

27
 The Agency accepts this basic distinction between “determinations” and

“redeterminations.” Perhaps recognizing the problem created by its failure to assert “good

cause” when it issued these decisions, the Agency’s position in this Court is that these

“Notice[s] of Redetermination” were “for all intents and purposes . . . original written

‘determination[s]’ on the ineligibility and fraud issues[.]” Nevertheless, the Agency

contends that invalidating the decisions because they were “redeterminations” would

“elevate form over substance.” The Agency takes the view that it doesn’t really matter if

it begins with a “redetermination” because there is always the opportunity for de novo

review by an ALJ. See MCL 421.33.

The Agency’s argument might be a good one if the question was whether these

appellants received constitutionally adequate process. After all, “the right to a hearing

before an unbiased and impartial decisionmaker is a basic requirement of due process.”

Livonia v Dep’t of Social Servs, 423 Mich 466, 508; 378 NW2d 402 (1985).

But that’s not the question we are answering. Just as we require claimants and

chargeable employers to follow the procedural and substantive requirements of the MESA,

so too must the Agency. See In re Reliability Plans, 505 Mich at 119; see also Coffman v

State Bd of Examiners in Optometry, 331 Mich 582, 589; 50 NW2d 322 (1951) (explaining

that an administrative agency cannot “enlarge its authority or exceed the powers given to

it by the statute, the source of its power”) (quotation marks and citations omitted).

Here, the MESA provides that “the unemployment agency shall review any

determination” whenever an interested party makes a timely protest. MCL 421.32a(1)

(emphasis added). The determination-and-protest step is not a mere perfunctory step in

perfecting the claimant’s right to appeal—the language plainly contemplates some degree

28
of agency review in response to a protest, even if the Agency ultimately affirms the prior

determination or transfers the case for an administrative hearing. Such review is foreclosed

if the Agency can simply begin with a “redetermination.” 15

The essence of the Agency’s argument is that claimants don’t suffer discernable

prejudice if the Agency begins at the “redetermination” step, so long as the claimant is

adequately apprised of the issue and their right to appeal the decision. But if that is correct,

the Agency could always begin at the “redetermination” step, without consequence. If an

interested party appeals the redetermination and complains about the lack of an initial

determination, the Agency could simply respond that the administrative hearing cures any

error. And if a party aggrieved by the “redetermination” fails to take a timely appeal, then

the Agency would presumably argue that its “redetermination” is final and a party who is

informed of their right to appeal yet fails to exercise it cannot complain about the outcome.

See MCL 421.32a(1) (“[T]he redetermination is final unless within 30 days after the

mailing or personal service of a notice of the redetermination an appeal is filed with the

unemployment agency for a hearing on the redetermination before an administrative law

judge . . . .”); see also MCL 421.32a(3).

15
While Justice ZAHRA urges this Court to “[l]ook[] beyond the notices’ labels and focus[]
instead on their substance,” it is far from clear that the Agency understood its decisions to
be original “determinations.” While the MESA permits the Agency to respond to a timely
protest by reviewing the decision and then “transfer[ring] the matter to an administrative
law judge for a hearing” in lieu of issuing a redetermination, MCL 421.32a(1), the Agency
does not identify anything in the record that would indicate it exercised such discretion in
these cases. Notably, the notices sent by the Agency provided different instructions on
how to protest a “determination” versus appealing a “redetermination.”

29
 But when we interpret a statute, we try to avoid an interpretation that makes

nugatory or surplusage any part of it. See, e.g., Jesperson v Auto Club Ins Ass’n, 499 Mich

29, 34; 878 NW2d 799 (2016) (“[W]hen determining [legislative] intent we must give

effect to every word, phrase, and clause in a statute and avoid an interpretation that renders

nugatory or surplusage any part of a statute.”) (quotation marks and citation omitted). The

Agency’s “no harm, no foul” argument and the Court of Appeals’ endorsement of it are

contrary to this basic principle.

We can’t ignore the statutory right to protest a “determination” simply because other

sections of the MESA provide further (and arguably greater) process. Affirming the

reasoning of the Court of Appeals would allow the Agency to begin at the

“redetermination” step without ever issuing a “determination” in every instance. And

while a claimant’s right to protest the original determination and have the Agency review

its decision might seem less important than the administrative hearing that follows, the

wisdom of the statutory process is a question for the Legislature.

The MCAC correctly concluded 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.” To the extent the Court of Appeals held otherwise,

its reasoning is rejected as incompatible with the MESA.

V. CONCLUSION AND RELIEF

We agree with the Court of Appeals that § 62 authorizes the Agency to issue original

fraud and restitution determinations that are not subject to the constraints of MCL 421.32a.

30
We disagree, however, that the Agency’s decision to issue “redeterminations” in these

cases was of no substantive effect.

We hold that the Agency must issue an original determination alleging fraud and

that the Agency’s failure to do so is grounds for invalidating the “redeterminations” in this

case. On this issue the payment of benefits cannot serve as an original “determination” on

the alleged fraud, and the Agency’s issuance of determinationless “redeterminations”

deprives claimants of their right to protest.

We likewise conclude that the Court of Appeals erred in its analysis of the

“redeterminations,” finding the claimants not unemployed and imposing restitution for the

overpayments. When Agency-initiated review of a past-paid benefit results in a decision

that the claimant received benefits during a period of ineligibility or disqualification and

owes restitution as a result, the Agency must begin with an original “determination” as

described in § 62.

Accordingly, the judgment of the Court of Appeals is reversed.

Bridget M. McCormack
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch (as to Parts I,
II, III, IV(A), and V as it
relates to MCL 421.62 and
determinations concerning
fraud and restitution)

31
 STATE OF MICHIGAN

SUPREME COURT

DEPARTMENT OF LICENSING AND
REGULATORY
AFFAIRS/UNEMPLOYMENT
INSURANCE AGENCY,

Appellee,

v No. 160843

FRANK LUCENTE,

Claimant-Appellant,

and

DART PROPERTIES II, LLC,

Employer-Appellee.

DEPARTMENT OF TALENT AND
ECONOMIC
DEVELOPMENT/UNEMPLOYMENT
INSURANCE AGENCY,

Appellee,

v No. 160844

MICHAEL HERZOG,

Claimant-Appellant,

and

CUSTOM FORM, INC.,

Employer-Appellee.
WELCH, J. (concurring in part, dissenting in part, and concurring in the judgment).
I agree with much of the majority opinion and concur in the judgment. I agree that

allegations of fraud and the imposition of restitution are distinct from the redetermination

of a claimant’s eligibility or qualification for benefits, and thus such matters and associated

penalties must be raised in an original determination invoking MCL 421.62 and MCL

421.54. Accordingly, I join Parts I, II, III, and IV(A) of the majority opinion, and Part V

as it relates to MCL 421.62 and determinations concerning fraud and restitution.

On the other hand, I read certain portions of the Michigan Employment Security Act

(MESA), MCL 421.1 et seq., differently from my colleagues who have joined the majority

opinion in full, and this causes me to approach certain aspects of these cases differently. I

do not agree that a benefit check is considered a determination under MCL 421.32(f) only

for the purposes of an employer filing a protest after receiving the listing of the benefit

check. Rather, I believe the statute is clear that a benefit check can always serve as an

original determination as to eligibility and qualification to receive benefits in an

unemployment proceeding, even if the action is driven by the Unemployment Insurance

Agency (UIA) as opposed to the employer. Nor do I agree with the view that the UIA is

unable to self-initiate a redetermination of a claimant’s eligibility for benefits under MCL

421.32a(1) or (2) after the UIA obtains information showing that an individual was paid

but not eligible for such benefits. In that case, I do not believe a new original determination

is required as a benefit check in fact serves as an original determination. As a result of

these disagreements, and as explained more fully below, I am unable to join Part IV(B) or

(C) of the majority opinion in full.

2
 I. FACTS AND ADMINISTRATIVE PROCEDURAL BACKGROUND

I join Part II of the majority opinion because it is an accurate statement of the “basic

facts and procedural history,” but I believe the statement is incomplete as to certain relevant

details and nuances. Accordingly, I offer the following for additional context that is

relevant to my understanding of these cases.

A. LUCENTE

Claimant Frank Lucente applied for extended unemployment benefits on February

2, 2010, and he was approved and received benefits from the UIA. See MCL 421.64. On

February 16, 2010, Lucente obtained full-time employment with Dart Properties II, LLC.

Lucente continued to certify that he was unemployed and without income despite having

obtained full-time employment. Accordingly, the UIA continued to pay benefits to

Lucente through the week of June 19, 2010, when Lucente then stopped certifying.

On or about July 7, 2010, the UIA mailed a request for information to Lucente’s

address on file and to Dart Properties, which soon responded and notified the UIA of

Lucente’s employment. On or about November 30, 2010, the UIA sent two documents

labeled “Notice of Redetermination” to Lucente’s address on file.

The first redetermination (the eligibility redetermination) involved Lucente’s
eligibility for unemployment benefits from February 20, 2010, through
June 19, 2010, and stated:

YOU WORKED FULL-TIME FOR DART PROPERTIES II
LLC BEGINNING 2/16/10. AS SUCH, YOU ARE
INELIGIBLE FOR BENEFITS UNDER SECTION 48 [MCL
421.48] OF THE [MESA]. YOU WERE PAID, SO
RESTITUTION IS REQUIRED, AS SHOWN, UNDER
SECTION 62 [MCL 421.62] OF THE ACT.

3
 The second redetermination (the fraud redetermination) involved Lucente’s
use of fraud to improperly obtain unemployment benefits from February 20,
2010, through June 19, 2010, and stated:

YOUR ACTIONS ARE CONSIDERED TO HAVE BEEN
INTENTIONAL BECAUSE YOU FAILED TO NOTIFY
THIS AGENCY THAT YOU WERE WORKING FULL-
TIME AND CONTINUED TO COLLECT BENEFITS FOR
FOUR MORE MONTHS. YOU INTENTIONALLY
WITHHELD INFORMATION TO OBTAIN BENEFITS.
YOU ARE DISQUALIFIED UNDER SECTIONS 62(B)
AND 54(B) [MCL 421.54(b)] OF THE [MESA].

[Dep’t of Licensing & Regulatory Affairs/Unemployment Ins Agency v
Lucente, 330 Mich App 237, 242; 946 NW2d 836 (2019) (alterations in
original).]

The UIA also sent a “Non-Protestable Summary of Previously (Re) Determined

Restitution” on December 1, 2010, stating that Lucente was obligated to repay $4,794 in

wrongfully received benefits and $18,276 in penalties for wrongfully obtained benefits

from February 20, 2010 through June 19, 2010.

I agree with the majority opinion’s summary of the litigation history of Lucente’s

case but wish to add two additional details. First, if the notices sent to Lucente were

redeterminations issued under § 32a(2), the UIA would have needed to show “good cause”

for failing to raise the issue within 30 days of the prior determination that was being

considered. This issue was not raised during the initial administrative proceedings, nor

was it discussed by the administrative law judge (ALJ) or the UIA’s representative during

the hearing. Second, it appears that the first time the UIA argued that its redeterminations

should be considered mislabeled determinations was in the appeal to the circuit court.

4
 B. HERZOG

In February 2016 claimant Michael Herzog applied and was approved for

unemployment benefits. For reasons that are not clear from the record, Herzog did not

receive his first benefit check until June 2016. On October 10, 2016, Herzog obtained full-

time employment with Custom Form, Inc. Despite this, Herzog continued to certify that

he was unemployed and continued to receive benefits for the period covering October 15,

2016, through November 12, 2016.

On October 11, 2017, the UIA sent Herzog a “Notice of Redetermination” for Case

No. 0-009-757-100, which stated the following:

There is a question in regard to your employment status.

You began working full-time for CUSTOM FORM, INC from
October 10, 2016 through March 3, 2017. You are not eligible for benefits
while working full-time.

You are ineligible for benefits under MES Act, Sec. 48 from October
9, 2016 through March 4, 2017. You will not receive benefit payments
during this period.

* * *

Calculation of interest and penalty amount is shown later on this form.

If you disagree with this redetermination, refer to Appeal Rights” [sic]
on the reverse side of this form.

Herzog received a second “Notice of Redetermination” from the UIA, also dated

October 11, 2017, for Case No. 0-009-757-101, stating as follows:

This (re)determination is being issued as a result of the determination
in case 0-009-757-100 involving Not Unemployed 48.

You received benefits based on the case referenced above. These
payments . . . are now found to be improper because you were found
ineligible for benefits due to reporting your earnings improperly.

5
 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 October 8, 2016.

You are disqualified for benefits under MES Act Sec. 62(b).
Restitution is due under MES Act, Sec. 62(a). The wages used to establish
your claim are cancelled and no further benefits will be paid based on those
wages. In addition, you are required to pay the penalty assessed based on
this determination under MES Act, Sec. 54(b). . . .

* * *

Calculation of interest and penalty amount is shown later on this form.

In a separate document dated October 11, 2017, titled “Restitution” and citing “MES Act

Sec. 62(a),” the UIA asserted that Herzog was obligated to repay $1,810 in wrongfully

received benefits and $7,240 in penalties.

Unlike Lucente, Herzog promptly contested the redeterminations. As later

explained in two letters sent to the UIA, Herzog claimed a mistaken understanding of how

many weeks of benefits he was entitled to, agreed to make payments for the principal

amount, challenged the fraud penalties, and invoked his right to appeal. An ALJ entered

an order setting aside the redetermination notices before the scheduled hearing. As in

Lucente’s case, the UIA did not argue that the redeterminations should be treated as

mislabeled determinations until the appeal to circuit court.

II. LEGAL ANALYSIS

I join the majority opinion’s overview of the MESA in Part I and agree with the

standard of review provided in Part III. I further agree with the majority opinion’s

conclusion that § 62 authorizes that UIA “to make original determinations imposing

restitution for overpayment or penalties for fraud,” and thus join Part IV(A). While I agree

with the conclusion reached in Part IV(B)(1) of the majority opinion, I disagree that Royster

6
v Employment Security Comm, 366 Mich 415, 115 NW2d 106 (1962), is applicable to this

matter. I also cannot join Part IV(B)(2) of the majority opinion because I do not agree that

benefit checks are not determinations that can be reconsidered without an employer protest

filed under § 32(f) or that a claimant’s eligibility for benefits cannot be reconsidered

through an agency-initiated redetermination under § 32a(1) or (2). I also join Part IV(C)

of the majority opinion as to the fraud and restitution issues and to the extent that it requires

the UIA to respect the legal and procedural distinctions between determinations and

redeterminations. However, because I conclude that the UIA could redetermine the

claimants’ eligibility for benefits in these cases under § 32a(2) upon a showing of good

cause, and because this issue has not been litigated, I would remand each case for further

proceedings before an ALJ.

A. THE MESA PROVIDES A SAFETY NET DESIGNED TO MITIGATE THE
FINANCIAL HARMS OF INVOLUNTARY UNEMPLOYMENT WHILE
AVOIDING FRAUDULENT ABUSES OF THE SYSTEM

In 1936, during the Great Depression, the Michigan Legislature created the MESA

to “protect the welfare of the people of this state through the establishment of an

unemployment compensation fund,” to “provide for the protection of the people of this

state from the hazards of unemployment,” and to “provide for . . . compliance with the

provisions of the social security act and the Wagner-Peyser act passed by the Congress of

the United States of America[.]” 1936 (Ex Sess) PA 1, title. The Legislature summarized

7
these purposes as an explicit statement of public policy in 1936 (Ex Sess) PA 1, § 2, which

was codified at MCL 421.2(1). 1

Michigan’s modern unemployment insurance benefits program was born from and

is governed by the MESA. It was thus designed as a social safety net “primarily for the

benefit of persons involuntarily unemployed. Its purpose is to lighten the burden of

economic insecurity on those who become unemployed through no fault of their own.”

Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 417; 565 NW2d 844 (1997).

“As the MESA is a remedial statute, it should be liberally construed to achieve its intended

goal.” Id. These consolidated cases demonstrate the tension between the state’s

administration of the unemployment insurance program and its efforts to prevent fraudulent

abuses of the program.

B. REDETERMINATION CHECKS ARE DETERMINATIONS OF A CLAIMANT’S
CONTINUED ELIGIBILITY AND QUALIFICATION TO RECEIVE BENEFITS

Lucente’s and Herzog’s challenged redeterminations were issued on or about

November 30, 2010, and October 11, 2017, respectively. At those times, the MESA

provided that once “a determination, redetermination, or decision is made that benefits are

due an unemployed individual,” those benefits “become payable . . . and continue to be

payable to the unemployed individual,” subject to monetary entitlement limitations, “until

the determination, redetermination, or decision is reversed, [or] a determination,

redetermination, or decision on a new issue holding the individual disqualified or ineligible

1
Nonsubstantive changes were made to MCL 421.2(1) in 2011, and a second stated policy
was codified at MCL 421.2(2) concerning the “issuance of bonds by the Michigan finance
authority” to finance the state’s unemployment trust fund. 2011 PA 268.

8
is made . . . .” MCL 421.27(a)(1) (emphasis added). Claimants who were initially found

eligible and qualified to receive benefits were required to certify their continued eligibility

and qualification on a biweekly basis by answering various questions that relate to these

criteria, such as sources of income, employment status, and availability for work.

During the administrative proceedings, the parties did not dispute that a benefit

check constitutes a determination under the MESA. This is unsurprising considering

longstanding statutory language on this precise point. “[T]he issuance of each benefit

check shall be considered a determination by the [UIA] that the claimant receiving the

check was covered during the compensable period, and eligible and qualified for benefits.”

MCL 421.32(f) (emphasis added). 2 Upon receiving the listing of the benefit check as

required by MCL 421.21(a), a “chargeable employer” has a right to “protest by requesting

a redetermination of the claimant’s eligibility or qualification as to that period [covered by

the benefit check] and a determination as to later weeks and benefits still unpaid that are

affected by the protest.” MCL 421.32(f); former MCL 421.32(d). Stated differently, an

employer’s protest of a benefit-check determination cannot seek reconsideration of a

claimant’s eligibility or qualification to receive benefits for periods that preceded the

period covered by the benefit check at issue. If the claimant is found ineligible or not

qualified because of an employer-protest-triggered redetermination, the UIA is required to

proceed as described in § 62. MCL 421.32(f); former MCL 421.32(d).

While this portion of the MESA has been modified and renumbered over time, for

more than 50 years § 32 has provided that benefit checks are a “determination” that during

2
The quoted language was moved to MCL 421.32(f) from MCL 421.32(d) in 2013. See
2002 PA 192; 2013 PA 144.

9
the benefit period covered by the check the claimant was “eligible and qualified for

benefits.” The statutory language does not explicitly limit the legal effect of the first

sentence of § 32(f) to that subsection or to circumstances in which only an employer (as

opposed to a UIA-initiated action) files a protest. The text following the first sentence in

§ 32(f) restricts a chargeable employer’s right to protest a claimant’s eligibility or

qualification for benefits to the period covered by the benefit check in question and for

future periods. See, e.g., Roman Cleanser Co v Murphy, 386 Mich 698, 704-705; 194

NW2d 704 (1972) (holding that an employer could not compel reconsideration of an

eligibility determination that preceded the period covered by the protested benefit check).

The purpose of the employer protest is to contest the charge against the employer’s account,

a part of the funding mechanism for the unemployment system, as to that benefit period

and future benefit periods. This is done by contesting the former employee’s entitlement

to benefits for the covered period and future periods. The language used in § 32(f) does

not limit the UIA’s ability to self-initiate reconsideration of a benefit-check determination

as provided for in §§ 32a(1) and (2). As explained in the next section, in addition to the

UIA, any interested party 3 (including a claimant) is permitted to request a redetermination

of a prior determination, including a benefit-check determination, in accordance with §§ 32

and 32a, subject to express limitations elsewhere in the MESA, such as restrictions placed

on employers in § 32(f).

3
The UIA has defined “interested party” to mean “anyone whose statutory rights or
obligations might be affected by the outcome or disposition of the determination,
redetermination, or decision.” Mich Admin Code, R 421.201(1).

10
 This makes sense when one considers the biweekly certification requirements for

claimants receiving benefits under the MESA. As § 27(a)(1) recognizes, after the initial

monetary determination, a claimant will continue to receive benefits “if the individual

continues to be unemployed and to file claims for benefits.” (Emphasis added.) The

certification process and questionnaires are the manner in which claimants continue to file

claims for benefits after initially being approved and how claimants demonstrate continued

entitlement to receive benefits. As a part of this process, claimants answer questions that

relate to things like their sources of income, their employment status, and their availability

to work. A claimant’s response to a question may lead to follow-up questions. If a

claimant’s response (a factual assertion) does not affect either eligibility or qualification

for benefits, then the UIA will issue a benefit check (a determination under § 32(f)) in the

ordinary course. If a claimant’s response changes how the MESA applies to the claimant’s

circumstances, then the UIA may be compelled by law to issue a new determination or a

redetermination, either of which may affect a claimant’s prior or continued eligibility or

qualification to receive benefits. 4

C. REDETERMINATION OF ELIGIBILITY

I would analyze the contested notices sent as what they purport to be—

redeterminations. I disagree with the majority opinion’s conclusion in Part IV(B)(2) that

4
For example, a claimant could report that they became employed part-time or that they
received income from a new source. This may trigger a follow-up question about when
the change in circumstance occurred. If the change occurred during a period covered by a
prior benefit check, then the UIA may be obligated to redetermine the claimant’s eligibility
or qualification to receive benefits (or the amount of benefits) during that period and may
require a claimant to repay benefits that exceeded what they were entitled to under the
MESA. See, e.g., MCL 421.48; MCL 421.27(c).

11
a benefit-check determination cannot serve as the basis for redetermining a claimant’s

eligibility to receive benefits. I would hold that the redeterminations issued were

appropriate, subject to a finding on the timeliness requirement of § 32a(2). In contrast with

the numerous provisions of the MESA that authorize different kinds of determinations, all

redeterminations under the MESA are governed by § 32a. 5 Aside from minor amendments

that are not relevant to these cases, 6 § 32a was substantively identical from 2010 through

November 2017 and stated the following:

(1) Upon application by an interested party for review of a
determination, upon request for transfer to an administrative law judge for a
hearing filed with the unemployment agency within 30 days after the mailing
or personal service of a notice of determination, or upon the unemployment
agency’s own motion within that 30-day period, the unemployment agency
shall review any determination. After review, the unemployment agency
shall issue a redetermination affirming, modifying, or reversing the prior
determination and stating the reasons for the redetermination, or may in its
discretion transfer the matter to an administrative law judge for a hearing. If
a redetermination is issued, the unemployment agency shall promptly notify
the interested parties of the redetermination, the redetermination is final
unless within 30 days after the mailing or personal service of a notice of the
redetermination an appeal is filed with the unemployment agency for a
hearing on the redetermination before an administrative law judge in
accordance with section 33.

(2) The unemployment agency may, for good cause, including any
administrative clerical error, reconsider a prior determination or
5
As the majority opinion notes, while the MESA does not define the term “determination,”
it is best understood as “an official decision by the [UIA] that involves agency fact-finding
and application of law (the MESA) to those facts.” Ante at 4. See Black’s Law Dictionary
(11th ed) (defining “determination” as “[t]he act of deciding something officially”).
6
Pursuant to 2011 PA 269, MCL 421.32a was amended to change references to “a referee”
to “an administrative law judge” and references to “commission” to “unemployment
agency.” Section 32a had only been substantively amended twice before 2011, once by
1983 PA 164 and then again by 1996 PA 503. Further amendments that are not at issue in
these cases were made by 2017 PA 232, effective July 1, 2018.

12
 redetermination after the 30-day period has expired and after
reconsideration issue a redetermination affirming, modifying, or reversing
the prior determination or redetermination, or transfer the matter to an
administrative law judge for a hearing. 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 from the date of mailing or personal service of the original
determination on the disputed issue. [MCL 421.32a, as amended by 2011
PA 269 (emphasis added).]

A redetermination under the MESA is thus a reversal, affirmation, or modification

of a prior determination based on some change in the relevant facts or law. The UIA is

generally limited to 30 days to self-initiate reconsideration of a prior determination under

§ 32a(1), and if it fails to do so within that period, it must establish “good cause” 7 for the

delay in accordance with § 32a(2). The MESA further requires the UIA in the case of such

delays to initiate its reconsideration within 1 year of the mailing or service of the original

determination and to provide notice to the interested parties that the agency has

reconsidered a prior determination. MCL 421.32a(2), as amended by 2011 PA 269 (“A

reconsideration shall not be made unless [a request is filed], or reconsideration is initiated

by the unemployment agency with notice to the interested parties, within 1 year from the

date of mailing or personal service of the original determination on the disputed issue.”).

Juxtaposing § 32a against the variety of potential “determinations” that can be

rendered under the MESA, it is clear that a “redetermination” must be preceded by a

“determination.” In this regard, I agree with the majority opinion. We also recognized the

7
The UIA has promulgated a nonexhaustive list of circumstances that can constitute good
cause, including the agency’s receiving “additional or corrected information,”
administrative errors, and various circumstances impeding an interested party’s ability to
act sooner. Mich Admin Code, R 421.270.

13
distinction between determinations and redeterminations, and the limitations on the latter,

in Roman Cleanser, 386 Mich at 704-705. 8 To hold otherwise would fail to give

independent meaning to each statutory term and negate the distinction between

determinations and redeterminations. After all, it is “a fundamental principle of statutory

construction that ‘[w]hen the Legislature uses different words, the words are generally

intended to connote different meanings.’ ” South Dearborn Environmental Improvement

Ass’n, Inc v Dep’t of Environmental Quality, 502 Mich 349, 369; 917 NW2d 603 (2018),

quoting US Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing),

484 Mich 1, 14, 795 NW2d 101 (2009). In this way, MCL 421.32a requires the UIA to

make an initial determination as a condition precedent to reconsidering a prior

determination and issuing a redetermination.

As I read the statute, there are no limitations in § 32a on the type of determinations

that the UIA can reconsider under § 32a(1) or (2) so long as the notice and timing

conditions are met. Thus, in my opinion, unless explicitly prohibited elsewhere in the

MESA, the UIA can invoke § 32a(2) to reconsider any prior determination on a “disputed

issue” within one year if there is good cause for not taking action within 30 days of the

original determination on that issue under § 32a(1).

8
In Roman Cleanser, we held that an employer’s protest of a benefit payment filed under
what was then § 32(d) did not authorize or require reconsideration of all prior
determinations concerning a claimant’s eligibility in the absence of the agency’s finding
good cause to reopen those earlier payments. Id. at 704-707. In that case, the agency had
expressly stated that it was reconsidering a May 1 benefit check (a determination) and made
no mention of the prior March 13 determination. Id. at 706-707. The protesting employer
therefore did not have a right to force the agency to reconsider its earlier decisions about
the claimant’s eligibility for benefits and was thus limited to only the May 1
determination/benefit check.

14
 In light of my conclusion about benefit checks and the lack of subject-matter

limitations imposed on agency-initiated redeterminations, I conclude that the UIA did not

exceed its authority by reconsidering Lucente’s and Herzog’s eligibility to receive benefits

through redeterminations. Had these redeterminations been made within 30 days of and

limited to a specific benefit check, or in Lucente’s case his approval for extended benefits,

then § 32a(1) would apply. Because of the timing and scope of the redeterminations, the

UIA would need to satisfy § 32a(2), which requires the UIA to initiate a redetermination

within one year of the “original determination on the disputed issue” if good cause exists.

The majority opinion states that the UIA-initiated redeterminations of eligibility

issued in these cases were invalid. But the MESA requires a claimant to continue filing

claims for benefits during each biweekly period, MCL 421.27(a)(1), and the UIA requires

claimants to answer certification questions related to their continued eligibility as a part of

this process. Thus, during each biweekly benefit period, a claimant’s continued eligibility

and qualification to receive benefits is a “disputed issue” for the purposes of a

redetermination under § 32a(2). 9 I would accordingly hold that the UIA may rely on a

previously issued benefit check as the original “determination” for the purposes of a UIA-

9
I disagree with the majority opinion’s reliance on Royster, 366 Mich 415, and the
language quoted in that decision from Lee v Employment Security Comm, 346 Mich 171,
78 NW2d 309 (1956). The majority opinion relies on the phrase “matters not in dispute,
such as payments voluntarily made and accepted, do not fall within the restrictions of
section 32a.” Royster, 366 Mich at 421, quoting Lee, 346 Mich at 179. However, a close
examination of those opinions makes clear that the phrase was referring to payments made
by a chargeable employer into the underemployment system, not to benefit-check
payments issued to a claimant. There are additional factual and legal issues that distinguish
those cases from the present situations. Accordingly, I do not believe Royster or Lee is
applicable or relevant to these cases.

15
initiated redetermination of a claimant’s eligibility or qualification for benefit under

§§ 32a(1) and (2).

I disagree with the majority opinion’s attempt to limit the UIA’s authority under

§ 32a(1) or (2) in a manner that is not expressly provided for in the MESA. The conclusion

that the UIA lacked authority to redetermine the claimants’ eligibility appears to be based

on a novel conclusion that the issuance of each benefit check is not a determination as to a

claimant’s eligibility. 10 As already discussed, § 32(f) states, without limitation, that the

issuance of each benefit check is a determination by the UIA that the claimant was “eligible

and qualified for benefits” during the relevant period. The majority opinion would limit

this language to circumstances in which an employer protests the listing of a benefit check

on the basis of a view that “the employer’s protest of the benefit-check determination . . . is

the triggering event.” Ante at 24.

But triggering event of what? An employer protest triggers a protest-initiated

reconsideration and, if appropriate, further proceedings under § 62. There is no language

in § 32(f) preventing the UIA from initiating its own reconsideration of a benefit-check

determination or preventing a claimant from challenging the same determination under

§ 32a. Such a limitation could prevent the UIA from correcting a mistake in the issuance

of a benefit check on its own initiative through a redetermination and would instead require

a new original determination. I do not believe the MESA compels such a reading, nor do

I believe the Legislature intended such a result.

10
Neither the claimants nor the UIA argued that benefit checks are considered
determinations only when an employer files a protest.

16
 D. ACCUSATIONS OF FRAUD AND RESTITUTION

Despite my reservations about relying on Royster, I agree with the majority opinion

that whether Lucente or Herzog intentionally concealed information from the UIA was not

a “disputed issue” when the initial eligibility determinations or benefit-check

determinations were made for the purposes of § 32a(2). Even if the information provided

was false or misleading, the intent of the claimant is separate and distinct from a claimant’s

eligibility and qualification to receive benefits based on the information provided and

available.

I also agree that § 62 requires the UIA to issue an original determination concerning

fraud and restitution. With respect to Lucente’s case, in November 2010, MCL 421.62

provided as follows:

(a) If the commission determines that a person has obtained benefits
to which that person is not entitled, the commission may recover a sum equal
to the amount received by 1 or more of the following methods: . . . The
commission shall not recover improperly paid benefits from an individual
more than 3 years, or more than 6 years in the case of a violation of section
54(a) or (b)[11] or sections 54a to 54c, after the date of receipt of the
improperly paid benefits unless: (1) a civil action is filed in a court by the
commission within the 3-year or 6-year period, (2) the individual made an
intentional false statement, misrepresentation, or concealment of material
information to obtain the benefits, or (3) the commission issued a
determination requiring restitution within the 3-year or 6-year period. . . .

(b) . . . For benefit years beginning after the conversion date
prescribed in section 75, if the commission determines that a person has
intentionally made a false statement or misrepresentation or has concealed
material information to obtain benefits, whether or not the person obtains

11
MCL 421.54 has provided and continues to provide penalties for a claimant who obtains
benefits through intentional fraud or misrepresentation of material facts. Several news
sources have reported that Michigan’s penalty provisions for fraudulently obtained benefits
are believed to be some of the most punitive in the nation.

17
 benefits by or because of the intentional false statement, misrepresentation,
or concealment of material information, the person shall, in addition to any
other applicable penalties, have his or her rights to benefits for the benefit
year in which the act occurred canceled as of the date the commission
receives notice of, or initiates investigation of, a possible false statement,
misrepresentation, or concealment of material information, whichever date
is earlier, and wages used to establish that benefit year shall not be used to
establish another benefit year. . . .

(c) Any determination made by the commission under this section is
final unless an application for a redetermination is filed with the commission
in accordance with section 32a.

(d) The commission shall take the action necessary to recover all
benefits improperly obtained or paid under this act, and to enforce all
penalties under subsection (b). [MCL 421.62, as amended by 1995 PA 125
(emphasis added).]

The repeated use of “determines” throughout § 62 during the period relevant to Lucente’s

case is a strong indication that an original determination was required to invoke the

restitution, fraud, and disqualification provisions of §§ 62 and 54. Section 62(c) also

provided that a “determination made . . . under this section is final unless an application

for a redetermination is filed with the commission in accordance with section 32a.”

(Emphasis added.) Regardless of whether it was the UIA’s ordinary practice at the time,

the text of § 62 in 2010 did not expressly allow for fraud accusations, fraud penalties, or

restitution to be raised and imposed for the first time in a UIA-initiated redetermination.

Section 62 is less clear, however, with regard to Herzog’s case. In October 2017,

the time relevant to Herzog’s case, MCL 421.62 provided as follows:

(a) If the unemployment agency determines that a person has
obtained benefits to which that person is not entitled, or a subsequent
determination by the agency or a decision of an appellate authority reverses
a prior qualification for benefits, the agency may recover a sum equal to the
amount received plus interest by 1 or more of the following methods: . . . The
unemployment agency shall issue a determination requiring restitution

18
 within 3 years after the date of finality of a determination, redetermination,
or decision reversing a previous finding of benefit entitlement. Except in the
case of benefits improperly paid because of suspected identity fraud, the
unemployment agency shall not initiate administrative or court action to
recover improperly paid benefits from an individual more than 3 years after
the date that the last determination, redetermination, or decision establishing
restitution is final. Except in the case of benefits improperly paid because of
suspected identity fraud, the unemployment agency shall issue a
determination on an issue within 3 years from the date the claimant first
received benefits in the benefit year in which the issue arose, or in the case
of an issue of intentional false statement, misrepresentation, or concealment
of material information in violation of section 54(a) or (b) or sections 54a to
54c, within 3 years after the receipt of the improperly paid benefits unless
the unemployment agency filed a civil action in a court within the 3-year
period; the individual made an intentional false statement,
misrepresentation, or concealment of material information to obtain the
benefits; or the unemployment agency issued a determination requiring
restitution within the 3-year period. . . .

(b) For benefit years beginning on or after October 1, 2000, if the
unemployment agency determines that a person has intentionally made a
false statement or misrepresentation or has concealed material information
to obtain benefits, whether or not the person obtains benefits by or because
of the intentional false statement, misrepresentation, or concealment of
material information, the person shall, in addition to any other applicable
interest and penalties, have his or her rights to benefits for the benefit year
in which the act occurred canceled as of the date the claimant made the false
statement or misrepresentation or concealed material information, and
wages used to establish that benefit year shall not be used to establish
another benefit year. . . .

(c) Any determination made by the unemployment agency under this
section is final unless an application for a redetermination is filed in
accordance with section 32a.

(d) The unemployment agency shall take the action necessary to
recover all benefits improperly obtained or paid under this act, and to
enforce all interest and penalties under subsection (b). [MCL 421.62, as
amended by 2016 PA 522 (emphasis added).]

In November 2017, MCL 421.62(a) no longer referred solely to what the UIA

“determines” as it did in 2010. Rather, § 62(a) began:

19
 If the unemployment agency determines that a person has obtained
benefits to which that person is not entitled, or a subsequent determination
by the agency or a decision of an appellate authority reverses a prior
qualification for benefits, the agency may recover a sum equal to the amount
received plus interest . . . . The [UIA] shall issue a determination requiring
restitution within 3 years after the date of finality of a determination,
redetermination, or decision reversing a previous finding of benefit
entitlement. [MCL 421.62(a), as amended by 2016 PA 522 (emphasis
added).]

In 2010, § 62(a) only referred to the UIA making an initial determination that a claimant

had wrongfully received benefits or intentionally withheld or misrepresented information.

The version of the statute that became effective on April 9, 2017, contrasted this initial

determination with a “subsequent determination” that “reverses” a prior qualification for

benefits—i.e., a redetermination under MCL 421.32a. This could suggest that the UIA was

granted greater flexibility to invoke § 62, such as through the use of a redetermination. But

this is nullified by (1) language in § 62(a) stating that the UIA “shall issue a determination

requiring restitution within 3 years after the date of finality of a determination,

redetermination, or decision reversing a previous finding of benefit entitlement,” and (2)

language in § 62(c) stating that “[a]ny determination made by the unemployment agency

under this section is final unless an application for a redetermination is filed in accordance

with section 32a.” Thus, while the majority opinion does not analyze the statutory

provisions in this manner, I agree with the ultimate conclusion that § 62 required the UIA

to issue original determinations as to both fraud and restitution.

III. REMEDY

I join Part IV(C) of the majority opinion to the extent that it invalidates the UIA’s

decisions as to fraud and restitution and requires the UIA to respect the legal and procedural

20
distinctions between a determination and redetermination. However, I believe the Court

should uphold the redetermination notices as they relate to the claimant’s eligibility, subject

to the “good cause” requirement of § 32a(2). As discussed, I believe §§ 32(f) and 32a

provided the UIA authority to use either prior benefit-check determinations or an original

eligibility determination as the base determination for reconsidering a claimant’s eligibility

for benefits. Given that the redeterminations in this matter were issued more than 30 days

after any applicable determination, the UIA needed to show good cause for its delay. This

issue was never litigated during the ALJ proceedings in Lucente’s case, and because

Herzog has not received a hearing before an ALJ, the matter has yet to be litigated in his

case. Accordingly, I would remand these cases to the appropriate ALJs to allow the parties

to litigate whether the UIA had good cause for reconsidering the claimants’ eligibility. I

would, however, invalidate the notices at issue as they relate to fraud and restitution

because those findings required original determinations, and I thus join Part V of the

majority opinion in part.

Elizabeth M. Welch

21
 STATE OF MICHIGAN

SUPREME COURT

DEPARTMENT OF LICENSING AND
REGULATORY
AFFAIRS/UNEMPLOYMENT
INSURANCE AGENCY,

Appellee,

v No. 160843

FRANK LUCENTE,

Claimant-Appellant,

and
DART PROPERTIES II, LLC,

Employer-Appellee.

DEPARTMENT OF TALENT AND
ECONOMIC
DEVELOPMENT/UNEMPLOYMENT
INSURANCE AGENCY,

Appellee,

v No. 160844

MICHAEL HERZOG,

Claimant-Appellant,
and

CUSTOM FORM, INC.,

Employer-Appellee.
ZAHRA, J. (concurring in part and dissenting in part).
I join the Court in affirming the Court of Appeals’ holding that MCL 421.62 (§ 62)

of the Michigan Employment Security Act (MESA), MCL 421.1 et seq., authorizes the

Department of Licensing and Regulatory Affairs/Unemployment Insurance Agency (the

Agency) to make original, in-the-first-instance determinations imposing restitution for

overpayment or penalties for fraud.

I dissent, however, from the majority’s form-over-substance holding: that the

notices sent to these claimants are really redeterminations. 1 In my view, the Agency’s

notices are, in substance, § 62 determinations that were simply mislabeled. Looking

beyond the notices’ labels and focusing instead on their substance, it is clear that the

Agency understood itself to be proceeding under § 62 given that the notices cite § 62 as

authority for the Agency’s actions. 2 This Court ought to respect that choice.

The majority’s ruling—that the notices are redeterminations because they are

labeled as such—is contrary to well-settled administrative law, which plainly supports my

substance-over-form approach. Azar v Allina Health Servs dealt with whether the federal

Department of Health and Human Services—which administers Medicare through one of

its operating divisions, the Centers for Medicare & Medicaid Services—was required to go

through a notice-and-comment process to issue any “ ‘statement of policy . . . that

establishes or changes a substantive legal standard . . . .’ ” 3 The Supreme Court of the

1
See ante at 3 (opinion of MCCORMACK, C.J.); ante at 11 (opinion of WELCH, J.).
2
See ante at 3-4 (Lucente); 5-6 (Herzog) (opinion of WELCH, J.).
3
Azar v Allina Health Servs, ___ US ___, ___; 139 S Ct 1804, 1809; 204 L Ed 2d 139
(2019), quoting 42 USC 1395hh(a)(2).

2
United States held that a period of notice and comment was required. In so holding, it

explained that agencies cannot “avoid notice and comment simply by mislabeling their

substantive pronouncements. On the contrary, courts have long looked to the contents of

the agency’s action, not the agency’s self-serving label, when deciding whether statutory

notice-and-comment demands apply.” 4

The United States Court of Appeals for the District of Columbia Circuit has taken a

similar position on labeling. R Comm of Texas v United States dealt with whether the

decision of the federal Interstate Commerce Commission (ICC) to deny the Railroad

Commission of Texas (RCT) the requisite certification under federal law for the RCT to

regulate intrastate rail traffic was valid. 5 The D.C. Circuit held that it was. In so holding,

it explained that, “[p]roperly viewed, the ICC’s decision should be interpreted as a refusal

to extend provisional certification rather than a revocation of the earlier provisional

certification. This mere mislabelling of what was . . . a fully supported agency action does

not” serve to invalidate it. 6 In other words, an agency’s mislabeling, whether it be self-

serving or inadvertent, cannot and does not relieve courts of their duty to determine what

an agency is actually doing by looking to the substance of its action.

4
Id. at ___; 139 S Ct at 1812. See also Gen Motors Corp v Ruckelshaus, 239 US App DC
408, 412; 742 F2d 1561 (1984) (en banc) (“[T]he agency’s own label, while relevant, is
not dispositive.”); Guardian Fed S&L Ass’n v Fed S&L Ins Corp, 191 US App DC 135,
143-144; 589 F2d 658 (1978) (stating that if “a so-called policy statement is in purpose or
likely effect . . . a binding rule of substantive law,” it “will be taken for what it is”).
5
R Comm of Texas v United States, 246 US App DC 352; 765 F2d 221 (1985).
6
Id. at 357 n 4.

3
 Two other areas of law support my position. First, it is well settled in the law of

pleadings that “[a] party’s choice of label for a cause of action is not dispositive. We are

not bound by the choice of label because to do so ‘would exalt form over substance.’ ” 7 I

see no reason not to transplant that principle from the law of pleadings and apply it to this

Court’s de novo examination of whether the Agency’s notices were § 62 determinations.

Just as courts routinely peer behind the labels of pleadings to see what the parties’ actual

claims are, we should peer behind the labels of these notices (and other administrative

actions like them) to see what they are in substance so that, by seeing them for what they

are, parties’ rights will be properly adjudged.

The Supreme Court of the United States has also recognized that substance

predominates over form with regard to the use of titles and headings in statutory

interpretation. The majority in Yates v United States 8 explained that statutory titles (and

section headings) are “not commanding” but nonetheless are “tools available for the

resolution of a doubt about the meaning of a statute.” 9 Yates stands for the elementary

7
Norris v Lincoln Park Police Officers, 292 Mich App 574, 582; 808 NW2d 578 (2011),
quoting Johnston v Livonia, 177 Mich App 200, 208; 441 NW2d 41 (1989) (emphasis
added).
8
Yates v United States, 574 US 528; 135 S Ct 1074; 191 L Ed 2d 64 (2015).
9
Id. at 540 (opinion of Ginsburg, J.) (quotation marks and citation omitted; emphasis
added). See also United States v Nakhleh, 895 F3d 838, 841 (CA 6, 2018). Justice Alito’s
concurrence in Yates puts a finer point on this idea: “[Statutory] [t]itles . . . are . . . not
dispositive. Here, if the list of nouns did not already suggest that ‘tangible object’ should
mean something similar to records or documents, especially when read in conjunction with
[18 USC] § 1519’s peculiar list of verbs with their focus on filekeeping, then the title would
not be enough on its own.” Yates, 574 US at 552 (Alito, J., concurring) (emphasis added).

4
proposition that statutory titles do not control what statutes mean, but their text does. As

with the pleadings principle, I see no reason not to explicitly extend Yates’ teaching on

statutory titles to the Agency’s actions. If courts can look beyond statutes’ titles to see

what the statutes actually say and do, then they should do the same with things like these

notices’ labels to see what the notices actually say and do. Administrative law, the law of

pleadings, and the relevant principles of statutory interpretation all point in the same

direction: The outcome of this case should turn on the substance of the notices rather than

on a mechanistic devotion to their form. 10

Moreover, claimants were not prejudiced by the Agency’s purported

“redetermination” actions. As ably cataloged by the Court of Appeals, the notices informed

claimants that they had been disqualified from receiving benefits and why, that they had

fraudulently received benefits and were required to pay restitution and fraud penalties, that

they owed the Agency money and how much, and that they had the right to appeal. 11 In

other words, the decisions provided claimants “precisely the process contemplated by the

10
The majority contends that the notices are really redeterminations because they
“provided different instructions on how to protest a ‘determination’ versus appealing a
‘redetermination.’ ” See ante at 29 n 15 (opinion of MCCORMACK, C.J.). But the
majority’s objection is just a species of form-over-substance reasoning with which I have
expressed my disagreement. The notices featured comprehensive instructions for both
actions, so on what basis does the majority decide that this fact tips the analysis toward the
conclusion that they are redeterminations rather than determinations? I submit that there
is no sound reason to think that a portion of a notice from the Agency that includes both
sets of instructions renders the Agency’s action a redetermination rather than a
determination.
11
Dep’t of Licensing & Regulatory Affairs/Unemployment Ins Agency v Lucente, 330 Mich
App 237, 259-260, 264; 946 NW2d 836 (2019).

5
[MESA] . . . .” 12 Any potential confusion caused by the mislabeling did not prejudice

claimants. The determinations of fraud were made within the proper time frame, claimants

were informed of their right to protest, 13 and claimants were able to, and did, seek de novo

appellate review—before two administrative bodies and the state’s entire appellate court

system.

Because the notices were simply § 62 determinations that were mislabeled and

claimants were not prejudiced by that mislabeling, I would affirm the Court of Appeals.

Brian K. Zahra
David F. Viviano

12
Id.
13
The majority alleges that “it is far from clear that the Agency understood its decisions to
be original ‘determinations’ ” because, while the MESA permits the Agency either to issue
a redetermination or transfer the matter to an administrative law judge (ALJ) in response
to a claimant’s protest, “the Agency does not identify anything in the record that would
indicate it exercised such discretion in these cases.” See ante at 29 n 15 (opinion of
MCCORMACK, C.J.). But with respect to Lucente, it appears that he did receive review by
the Agency under MCL 421.32a because the Agency determined that his challenge was
untimely. With respect to Herzog, while the record is somewhat unclear, the Agency’s
“Notice of In Person Hearing” responding to Herzog’s challenge and transferring his case
to an ALJ was entirely consistent with how MCL 421.32a(1) requires a challenge to a
determination to be handled. “Upon application by an interested party for review of a
determination, . . . the [Agency] shall in its discretion issue a redetermination . . . or may
transfer the matter to an [ALJ] for a hearing.” MCL 421.32a(1). Therefore, it cannot be
said that claimants “lost out” on any process under the MESA.

6