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16. Procedures/Appeals

Jenkins v. UIA – 16.83

Jenkins v. UIA
Digest No. 16.83

Section 421.38

Cite as: Jenkins v UIA, unpublished opinion per curiam of the Court of Appeals, issued March, 7, 2013 (Docket Nos. 309625 & 309644).

Appeal pending: No
Claimant: Gary Jenkins
Employer: Unemployment Insurance Agency
Date of decision: March 7, 2013

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HOLDING: The courts only have subject matter jurisdiction with respect to Unemployment Insurance matters once all administrative proceedings are complete.

FACTS: On November 8, 2011, the ALJ mailed a decision holding that claimant was entitled to benefits under MCL 421.1 et seq. conditioned on Claimant’s being “otherwise eligible and qualified.” Claimant submitted the ALJ’s decision to the UIA, but the UIA refused to pay. Instead, the UIA initiated an investigation in order to determine whether MWJ Construction (Claimant’s employer) was an “employer” within the meaning of the MESA.  Claimant then filed a complaint requesting the circuit court to issue a writ of mandamus ordering the director of the agency to pay Claimant benefits. On January 27, 2012, the circuit court ordered the UIA to pay Claimant benefits. The UIA did not pay and on February 20, 2012, Claimant filed an ex parte motion for an order to show cause regarding why the UIA should be held in civil contempt for failure to comply with the court’s order. Two days before the show-cause hearing, the UIA tendered a check to the court in the full amount due to Claimant. The check was payable to the court and Claimant. At the show-cause hearing, the court found that the tendered check did not comply with the court order because it was payable to the court and Claimant instead of being payable solely to Claimant. The court found the UIA in contempt of court, ordered the UIA to pay Claimant in accordance with the January 27 order, and ordered the UIA to pay attorney fees and costs in connection with the contempt proceedings. The UIA appealed as of right from the order granting Claimant’s request for a writ of mandamus. Additionally, the UIA appeals by leave granted from an order finding the UIA in civil contempt.

DECISION: The court vacated both orders because the circuit court did not have subject matter jurisdiction in these matters.

RATIONALE: Direct review by the courts is only available when all administrative remedies available within the agency have already been exhausted by the parties. MCL 24.301. This is required because: (1) an untimely resort to the courts may result in delay and disruption of an otherwise cohesive administrative scheme; (2) judicial review is best made upon a full factual record developed before the agency; (3) resolution of the issues may require the accumulated technical competence of the agency or may have been entrusted by the Legislature to the agency’s discretion; and (4) a successful agency settlement of the dispute may render a judicial resolution unnecessary. Int’l Business Machines Corp v Dep’t of Treasury, 75 Mich App 604, 610; 255 NW2d 702 (1977).

Here, the standard procedures under MCL 421.33 were not followed with respect to the questions of whether MWJ Construction was an “employer” and whether plaintiff’s claim was valid. The ALJ did not explicitly decide whether MWJ Construction was an employer in the order, and the order was conditioned on Claimant’s being “otherwise eligible and qualified.”  As a result, the UIA was in the process of determining whether MWJ Construction was an employer, at the time the circuit court took jurisdiction. Since the administrative process was ongoing, the circuit court’s assumption of jurisdiction was in error.

Digest author: Cydney Warburton, Michigan Law, Class of 2017
Digest updated: 3/30/2016

Categories
16. Procedures/Appeals

Barbee v. J.C. Penney – 16.73

Barbee v. J.C. Penney
Digest No. 16.73

Section 421.29(b), 421.33, 421.34, 421.38

Cite as: Barbee v JC Penney Corp, Inc, Unpublished Opinion of the Circuit Court for the County of Oakland, Issued January 26, 2006 (Docket No. 177083W).

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Appeal Pending: No
Claimant: Della M. Barbee
Employer: J.C. Penney Corporation, Inc.
Tribunal: Circuit Court for the County of Oakland
Date of Decision: January 26, 2006

HOLDING: The State of Michigan Employment Security Board of Review’s (“Board”) lacks jurisdiction to review untimely appeals.

FACTS: Claimant was employed by J.C. Penney as a Customer Service Associate until she was discharged for misconduct. Her alleged misconduct included obtaining fraudulent refunds, discount abuse, and unauthorized price adjustments. The Administrative Law Judge (“ALJ”) disqualified the claimant from benefits due to her misconduct under MCL 421.29(b).

Claimant appealed the ALJ’s decision to the State of Michigan Employment Security Board of Review (“Board”). The deadline to appeal was September 24, 2004, but claimant did not file her appeal until October 6, 2004. Pursuant to MCL 421.33, the Board dismissed the late appeal due to lack of jurisdiction.

Claimant did not seek rehearing or to reopen the case with the Board for good cause but instead, appealed to the Circuit Court (“Court”) for de novo review of the Board’s (1) arbitrary Appeal deadline and (2) the underlying determination in finding the Plaintiff guilty of misconduct.

DECISION: The Board’s deadlines cannot be challenged as arbitrary because they were set by the legislature and codified as MCL 421.33(2) and MCL 421.34. Additionally, the Circuit Court cannot de novo review claimant’s underlying determination because she appealed the Board’s decision. Finally, the Board’s order dismissing claimant’s appeal for lack of jurisdiction was proper.

RATIONALE: The Circuit Court ruled that the appeal deadlines were not arbitrary because they were established by the legislature through MCL 421.33(2) and MCL 421.34.

The Court also denied claimant’s appeal for de novo review of her underlying determination as guilty of misconduct. The Court noted that a claimant can appeal a referee’s (ALJ’s) decision to the Circuit Court directly under MCL 421.38(2). However, because the claimant appealed the Board’s decision and said decision did not include a review of claimant’s determination as guilty of misconduct, the Circuit Court lacks authority to de novo review the claimant’s guilty determination.

The Circuit Court reviewed the whole record to determine if claimant’s appeal was untimely. Pursuant to MCL 421.38(1), the standard for finding an appeal untimely is support by competent, material, and substantial evidence. After finding that the appeal was untimely under the standard, the Court affirmed the Board’s decision dismissing claimant’s untimely appeal for lack of jurisdiction under MCL 421.33.

Digest Author: Sean Higgins, Michigan Law, Class of 2017
Digest Updated: 3/27/2016

Categories
16. Procedures/Appeals

Lewis v Oakwood Healthcare Corp – 16.68

Lewis v Oakwood Healthcare Corp
Digest no. 16.68

Section 38

Cite as: Lewis v Oakwood Healthcare Corp, unpublished opinion of the Wayne Circuit Court, issued April 29, 2003 (Docket No. 02-243366-AE).

Appeal pending: No
Claimant: Donna M. Lewis
Employer: Oakwood Healthcare Corporation
Docket no.: B2002-10089-RO1-165903W
Date of decision: April 29, 2003

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CIRCUIT COURT HOLDING: An appeal to circuit court must be filed within 30 days of the mailing date of the Board’s decision or order. Attempts to re-litigate an issue from an earlier appeal are barred under the doctrine of res judicata.

FACTS: Claimant appealed a November 15, 2002 Board decision to circuit court. The Board decision held claimant owed restitution under Section 62(a) of the MES Act. The claimant previously appealed the Board’s June 2, 2000 decision holding her disqualified under Section 29(1)(a) to circuit court, and the court affirmed the Board in an order issued March 2, 2001. The claimant did not file a further appeal from that Section 29(1)(a) decision.

DECISION: The Board’s November 15, 2002 decision is affirmed.

RATIONALE: The claimant’s circuit court brief attempted to re-litigate the issue of her disqualification under Section 29(1)(a) and did not address the issue of restitution. The court lacked jurisdiction over the Section 29(1)(a) issue since the claimant had not filed her appeal within 30 days of the mailing date of the decision on that issue pursuant to Section 38(1). The court further noted that claimant’s appeal was barred by the doctrine of res judicata since the issues were identical to her appeal to that court in 2000 and ruled on by the court in an order issued March 2, 2001. Res judicata applies where 1) the former suit was decided on the merits, 2) the issues in the second action were or could have been resolved in the former one, and 3) both actions involve the same parties. In Michigan res judicata is applied broadly. See Energy Reserves v Consumers Power Co, 221 Mich App 210 (1997)Pierson Sand and Gravel, Inc v Keeler Brass Co, 460 Mich 372 (1999)Sewell v Clean Cut Mgmt, Inc, 463 Mich 569 (2001)Dart v Dart, 460 Mich 573 (1999).

Digest Author: Board of Review
Digest Updated:
11/04

Categories
16. Procedures/Appeals

Ngo v Nabisco Inc/Lifesavers – 16.71

Ngo v Nabisco Inc/Lifesavers
Digest no. 16.71

Section 34, 38

Cite as: Ngo v Nabisco Inc/Lifesavers, unpublished opinion of the Ottawa County Circuit Court, issued June 9, 2000 (Docket No. 99-35034-AE).

Appeal pending: No
Claimant: Thiet Ngo
Employer: Nabisco Inc/Lifesavers
Docket no.: B1999-03348-152225
Date of decision: June 9, 2000

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CIRCUIT COURT HOLDING: Notwithstanding the opinion that evidence supporting a Board conclusion is less substantial when the Board disagrees with the Referee, the Board’s decision must be affirmed if the record contains evidence a reasonable mind would accept as adequate to support a conclusion.

FACTS: Employer discharged claimant for violating rules prohibiting the removal of company property without written authorization. Security guards stopped claimant and found two 50-count boxes of lollipops under a Burger King bag in his lunch box. He did not have a receipt showing they were purchased at employer’s company store and did not know when he bought them. The candy was not packaged like that for sale at the company store, and was not in a bag from the store. Claimant testified he unwrapped both boxes to snack on, but had not eaten any of the candy. The Referee found the claimant’s testimony credible that he previously purchased the candy and had thrown the receipt away. The Board rejected the Referee’s credibility finding and found claimant disqualified under Section 29(1)(b). The Board found the claimant not credible because he did not know when he bought the lollipops, bought them to snack on and removed the cellophane but did not eat any, then tried to remove them from the facility without a receipt.

DECISION: Claimant is disqualified for misconduct.

RATIONALE: Claimant argued that the Board did not give due deference to the Referee’s credibility finding, citing Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 127 (1974), for the proposition that “evidence supporting a review board’s conclusion is less substantial when it disagrees with an experienced impartial examiner who has observed the witness,” to argue that there was insufficient evidence to support the Board’s conclusion. The court disagreed, observing that “less substantial” is not the same as “insubstantial” and that Section 34 authorizes the Board to “…reverse the findings of fact and decision of the referee.”

Digest Author: Board of Review (original digest here)
Digest Updated:
11/04