                             STATE OF MICHIGAN

                             COURT OF APPEALS



DOCK FARISH, KEBEH GIBSON, MILLIE                               UNPUBLISHED
NICHOLS, and All Others Similarly Situated,                     December 11, 2018

               Plaintiffs-Appellants,

v                                                               No. 341350
                                                                Court of Claims
DEPARTMENT OF TALENT AND ECONOMIC                               LC No. 17-000035-MZ
DEVELOPMENT,

               Defendant-Appellee,

and

TALENT INVESTMENT AGENCY,
UNEMPLOYMENT INSURANCE AGENCY,
DIRECTOR OF DEPARTMENT OF TALENT
AND ECONOMIC DEVELOPMENT,
DIRECTOR OF TALENT INVESTMENT
AGENCY, and ACTING DIRECTOR OF
UNEMPLOYMENT INSURANCE AGENCY,

               Defendants.


Before: METER, P.J., and K. F. KELLY and GLEICHER, JJ.

GLEICHER, J. (concurring in part and dissenting in part).

        A Michigan statute permits the Unemployment Insurance Agency to withhold
unemployment benefits when an claimant has been overpaid. Plaintiffs seek to recoup
unemployment benefits they claim were improperly deducted from benefits to which they were
entitled. I agree with the majority that plaintiffs’ claims for conversion and under 42 USC
§ 503(g) must be remanded for further consideration by the Court of Claims. I respectfully
dissent with respect to plaintiffs’ claim under MCL 421.62(a). That statute limits the amount
that may be deducted from an individual’s benefits to 50% of each later payment. Plaintiffs
allege that defendants violated the statute by deducting more than 50% from their payments.

       The Court of Claims dismissed plaintiffs’ complaint under MCR 2.116(C)(8). According
to both the majority and the Court of Claims, plaintiffs failed to plead in avoidance of MCL

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421.62(b), which provides that the 50% limitation is inapplicable if the UIA determines that a
claimant “has intentionally made a false statement or misrepresentation or has concealed material
information to obtain benefits[.]” Michigan’s pleading rules do not require plaintiff to plead in
anticipation of defenses. Nor did plaintiffs concede that their overpayment was fraudulent
simply by stating as a fact that the UIA imposed interest and penalties. Their claim under MCL
461.62(a) is legally cognizable and should not have been dismissed.

                                                 I

        In separate paragraphs of their first amended complaint (numbers 18, 21 and 25), the
three plaintiffs alleged that they were “certified” to receive weekly unemployment insurance
benefits in a certain amount, and that the UIA deducted the entirety of their benefits “to recoup
the previous overpayment, interest and penalties debt.” In paragraphs 46 and 47 of their first
amended complaint, plaintiffs averred that defendants violated MCL 461.62 by withholding
more than 50% of each payment due. Paragraph 59 of the first amended complaint states,
“Defendants failed to provide [plaintiffs] with reasonable notice and an opportunity for a hearing
to contest the recoupment of allegedly overpaid unemployment benefits.”

        The majority holds that because plaintiffs asserted that they were assessed “penalties,”
they thereby admitted that the 50% limitation did not apply to them. This conclusion is incorrect
for multiple reasons.

        As a matter of simple logic, it would be nonsensical to bring a lawsuit asserting that the
50% limitation applied if the plaintiff bringing this claim simultaneously admitted that it did not.
Obviously, plaintiffs do not intentionally file complaints incorporating airtight defenses for the
other side to run with. Logic aside, there are three legal reasons that plaintiffs first amended
complaint cannot reasonably be construed as having alleged a perfect defense—the allegations in
a complaint must be construed in the light most favorable to the nonmoving party, judges must
not make findings of fact at the pleading stage, and a motion brought under MCR 2.116(C)(8)
may be granted only where the claim is “so clearly unenforceable as a matter of law that no
factual development could possibly justify relief.”

                                                 II

        Two statutory subsections stand at the center of this case: MCL 421.62(a) and MCL
421.62(b). Both permit the UIA to deduct unemployment benefits from a person entitled to
collect unemployment benefits if the person has previously obtained benefits to which the person
was not entitled (an overpayment). A person may have been overpaid due to an administrative
or clerical error on the agency’s part, or a good-faith error on the part of the claimant. In this
situation, the 50% rule of MCL 421.62(a) applies:

               If the unemployment agency determines that an individual has obtained
       benefits to which the individual 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
       pursuant to [MCL 421.15(a)] by 1 or more of the following methods: deduction
       from benefits or wages payable to the individual, payment by the individual in

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        cash, or deduction from a tax refund payable to the individual as provided
        under . . . MCL 205.30a. Deduction from benefits or wages payable to the
        individual is limited to not more than 50% of each payment due the claimant.
        [MCL 421.62(a) (emphasis added).]

MCL 421.62(a) further provides that “[e]xcept in a case of an intentional false statement,
misrepresentation, or concealment of material information, the unemployment agency shall
waive recovery of an improperly paid benefit if repayment would be contrary to equity and good
conscience and shall waive any interest.” Id.

         MCL 421.62(b) dictates the course of events when an overpayment is due to fraud. It
states in relevant part:

        If the unemployment agency determines that a claimant has intentionally made a
        false statement or misrepresentation or has concealed material information to
        obtain benefits, whether or not the claimant obtains benefits by or because of the
        intentional false statement, misrepresentation, or concealment of material
        information, the unemployment agency shall, in addition to any other applicable
        interest and penalties, cancel his or her rights to benefits for the benefit year in
        which the act occurred as of the date the claimant made the false statement or
        misrepresentation or concealed material information, and shall not use wages used
        to establish that benefit year to establish another benefit year. . . . Restitution
        resulting from the intentional false statement, misrepresentation, or concealment
        of material information is not subject to the 50% limitation provided in subsection
        (a). [MCL 421.62(b).]

         The first paragraph of plaintiffs’ first amended complaint announces that plaintiffs
“commence this putative class action to recover unemployment insurance benefits that the
Michigan Unemployment Insurance Agency (“UIA”) unlawfully deducted from their
entitlement.” The next six paragraphs address “jurisdiction and venue.” The first amended
complaint then sets forth 29 paragraphs of “factual allegations.” For each named plaintiff, the
first amended complaint averred that the UIA had deducted all of that person’s weekly
employment benefit “to recoup the previous overpayment, interest and penalties debt.” The
relief requested at the end of the first amended complaint includes the following:

               C. Declare that Defendants violated the state and federal provisions
        referenced herein and that the Class Representatives and the putative class
        members are entitled to the amount of unemployment insurance benefits that
        Defendants unlawfully seized from their entitlement;

                D. Order Defendants to remit the entire amount of unemployment
        insurance benefits unlawfully taken from the Class representatives and the
        putative class members, including interest and penalties[.] [Emphasis added.]

        One of the general rules of pleading applicable to complaints requires that a pleader set
forth “[a] statement of the facts . . . on which the pleader relies in stating the cause of action, with
the specific allegations necessary to reasonably inform the adverse party of the nature of the

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claims the adverse party is called upon to defend[.]” MCR 2.111(B)(1). Plaintiffs’ statements
that the UIA deducted the entirety of their benefits “to recoup the previous overpayment, interest
and penalties debt” appear in the section of their complaint headed “Factual Allegations.”
Plaintiffs admitted as a fact that the UIA deducted the entirety of their benefits to recoup a
previous overpayment, plus penalties and interest. The majority confuses that factual assertion
with a concession that the UIA rightfully deducted the interest and penalties.

        True, we must credit as accurate the statement that the UIA deducted the entire benefit
“to recoup the previous overpayment, interest and penalties debt.” But just because the UIA
deducted the entire amount plus a penalty does not mean that the UIA’s action was lawful. No
caselaw or rule of pleading supports that a court may interpret a factual statement describing that
a plaintiff was penalized by the government as a concession that the plaintiff deserved it. Rather,
by pleading that the UIA assessed penalties, plaintiffs fulfilled their obligation to plead “[e]very
material fact essential to the existence” of their cause of action. Steed v Covey, 355 Mich 504,
511; 94 NW2d 864 (1959). They did so in the paragraphs explaining what happened to their
benefits.

        When reviewing a complaint under MCR 2.116(C)(8) we must construe “[a]ll well-
pleaded” allegations “in a light most favorable to the nonmovant.” Johnson v Pastoriza, 491
Mich 417, 435; 818 NW2d 279 (2012) (emphasis added). While it is theoretically possible to
interpret plaintiffs’ allegation that the UIA deducted penalties as an admission that the penalties
were actually due and owing, it is far more plausible to interpret this allegation as simply one of
fact—the defendants charged penalties. Our job is not to pick and choose among various factual
options, but rather to construe the allegations to the benefit of the plaintiffs. In so doing, we
must also credit the allegations with “all reasonable inferences or conclusions that can be drawn
from them.” State ex rel Gurganus v CVS Caremark Corp, 496 Mich 45, 63; 852 NW2d 103
(2014). Applying these rules and reading the factual statements in the context of the rest of the
complaint, it is obvious that plaintiffs’ factual allegations were not concessions that they had
fraudulently obtained the overpayments. See Adams v Adams, 276 Mich App 704, 710-711; 742
NW2d 399 (2007) (“It is well settled that the gravamen of an action is determined by reading the
complaint as a whole[.]”). Rather, the paragraphs indicating that the UIA charged penalties were
just averments of fact—nothing more, nothing less.

       After stating the facts, plaintiffs’ first amended complaint advances several different
causes of action. Here is the pertinent claim:

                                SECOND CAUSE OF ACTION
                           (Violation of Mich. Comp. Laws § 421.62)

              44.     [Plaintiffs] incorporate by reference the foregoing paragraphs of
       this complaint as though fully set forth herein.

               45.    Mich. Comp. Laws § 421.62 provides that any “Deduction from
       benefits or wages payable to the individual is limited to not more than fifty
       percent of each payment due the claimant.”



                                               -4-
              46.     Upon information and belief, defendants withheld “more than fifty
       percent of each payment due” the [plaintiffs].

               47.     Since Defendants violated Mich. Comp. Law § 421.62, the class is
       entitled to remittance of the withheld unemployment insurance benefits, costs, and
       reasonable attorney’s fees.

        Reading this count in conjunction with the factual allegations referencing penalties, it is
clear that the plaintiffs alleged that the UIA illegally deducted 100% of their benefits and
charged them interest and penalties to boot. Maybe the plaintiffs are wrong and they did actually
commit fraud. That is a factual question outside the current inquiry, as defendants’ motion was
granted only under MCR 2.116(C)(8).

       The majority’s explanation for dismissing plaintiffs’ claim under MCL 421.62 conflicts
with basic pleading precepts and, respectfully, reflects a misreading of plaintiffs’ complaint.
According to the majority, plaintiffs’ complaint “evidences that they did not allege that
defendants unlawfully assessed penalties; instead, they factually stated that defendants were
deducting monies from their benefits, in part, to recover penalties.” I cannot agree with the
majority’s first premise, that plaintiffs neglected to allege that defendants improperly penalized
them. The second count of their complaint says just that. Nor can I accept that alleging that a
defendant took an action is the same thing as admitting that the action was proper.

        A motion brought under MCR 2.116(C)(8) should be granted only “if the claim is so
manifestly unenforceable as a matter of law that no factual progression could possibly support
recovery.” Dolan v Continental Airlines/Continental Express, 454 Mich 373, 380; 563 NW2d 23
(1997). At least one key fact remains to be resolved in this case: were the overpayments the
result of fraud? If so, the penalties were justly imposed, and the 50% rule did not apply. No
court rule required plaintiffs to plead that they did not commit fraud; fraud is an affirmative
defense, and the burden of pleading it rests with defendants. Nor is there any court rule or
caselaw supporting the majority’s claim that plaintiffs needed to plead in avoidance of MCL
421.62(b), and notably, the majority has cited none.

        In footnote 2 of its opinion, the majority further mischaracterizes the nature of plaintiffs’
claims, asserting that the complaint states only a “process” violation and not a substantive claim
challenging the deductions. The majority reaches this conclusion by ignoring portions of the
amended complaint I have included in this dissent. More troubling, however, is the majority’s
allegation that the “process” nature of the complaint is conclusively demonstrated by plaintiffs’
statement in their complaint that “individualized determinations concerning the reasons for the
benefit overpayment are not necessary to evaluate whether Defendants violated [the law].”
When a court picks and chooses among allegations in a complaint, fully crediting some and
utterly disregarding others, it violates MCR 2.116. Here is the entirety of the allegation from
which the majority takes only a snippet:

               27. The number of claimants subjected to UIA’s unlawful benefit
       deductions are estimated in the thousands. The number of class members is
       sufficiently numerous to make class action status the most practical method to
       secure redress of any injuries and achieve class-wide equitable relief.

                                                -5-
              28. Questions of law or fact common to the class members predominate
       over questions affecting only individual members. Individual questions do not
       predominate over common questions because: (1) Defendants took unemployment
       insurance benefits from otherwise eligible claimants to recoup previous benefit
       overpayments, interest and penalties; (2) these benefit deductions violate common
       provisions of state and federal law; and (3) individualized determinations
       concerning the reasons for the benefit overpayment are not necessary to evaluate
       whether Defendants violated these state and federal provisions.

These two paragraphs were intended to overcome the hurdles of class certification, not to
concede that the UIA appropriately deducted the class members’ benefits. Again: what would be
point of the case if plaintiffs meant to concede that defendants followed the law?

        Ultimately, “an omission is not an admission.” Esmail v Macrane, 53 F3d 176, 179 (CA
7, 1995). The majority holds that plaintiffs were required to anticipate and construct responses
to as-yet unraised affirmative defenses. This is not the law. And if it were, plaintiffs would
nevertheless be entitled to amend their complaint. See MCR 2.116(I)(5). I would hold that
plaintiffs’ complaint adequately states a claim that defendants violated MCL 421.62(a), and
would remand for further proceedings on this ground as well.



                                                           /s/ Elizabeth L. Gleicher




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