John Moody v. Mich. Gaming Control Bd.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0211p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JOHN MOODY; DONALD HARMON; RICK RAY; WALLY ┐
MCILLMURRAY, │
Plaintiffs-Appellees/Cross-Appellants, │
│
> Nos. 16-2244/2369
v. │
│
│
MICHIGAN GAMING CONTROL BOARD, et al., │
Defendants, │
│
AL ERNST; JOHN LESSNAU, │
│
Defendants-Appellants/Cross-Appellees.
│
┘

Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 4:12-cv-13593—Gershwin A. Drain, District Judge.

Argued: July 26, 2017

Decided and Filed: September 11, 2017

Before: COLE, Chief Judge; BATCHELDER and MOORE, Circuit Judges.

_________________

COUNSEL

ARGUED: Jason A. Geissler, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellants/Cross-Appellees. Hugh M. Davis, CONSTITUTIONAL
LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for Appellees/Cross-Appellants. ON
BRIEF: Jason A. Geissler, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellants/Cross-Appellees. Hugh M. Davis, Cynthia Heenan, Scott Mackela,
CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for
Appellees/Cross-Appellants.
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 2

MOORE, J., delivered the opinion of the court in which COLE, C.J., joined, and
BATCHELDER, J., joined in part. BATCHELDER, J. (pp. 13–22), delivered a separate opinion
concurring in part and dissenting in part.

_________________

OPINION
_________________

KAREN NELSON MOORE, Circuit Judge. In 2010, the Michigan Gaming Control
Board (“MGCB”), a state entity that regulates horse racing, held a hearing to determine whether
certain drivers were involved in an illegal race-fixing scheme. At the hearing, Plaintiffs John
Moody, Donald Harmon, Rick Ray, and Wally McIllmurray, Jr. (“Plaintiffs”), four drivers
licensed by the MGCB, declined to answer questions and invoked their Fifth Amendment right
against self-incrimination. The MGCB later suspended the Plaintiffs’ licenses and issued orders
excluding them from the race tracks, citing the Plaintiffs’ refusal to cooperate at the hearing.
The Plaintiffs filed suit, alleging violations of their procedural due process and Fifth Amendment
rights. In these appeals, which revisit issues considered by a prior panel of this court, the
Defendants challenge the district court’s denial of qualified immunity on the procedural due
process claim, and the Plaintiffs challenge the district court’s grant of qualified immunity on the
Fifth Amendment claim.

For the following reasons, we AFFIRM the denial of qualified immunity on the
procedural due process claim, REVERSE the grant of qualified immunity on the Fifth
Amendment claim, and REMAND the case for further proceedings.

I. BACKGROUND

Upon receiving an anonymous tip, the MGCB began to investigate allegations of a race-
fixing scheme involving certain gamblers and harness-racing drivers. As part of this
investigation, the MGCB held an administrative investigatory hearing on May 20, 2010, with the
Plaintiffs, all of whom were licensed by the MGCB as harness drivers. The hearing, referred to
by some as the “Steward’s hearing,” was held to determine whether these drivers were involved
in the scheme. At the hearing, all four drivers declined to answer questions and invoked their
Fifth Amendment right against self-incrimination. R. 18–5 (Moody MGCB Hr’g Tr. at 5–8)
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 3

(Page ID #197–200); R. 18–6 (Harmon MGCB Hr’g Tr. at 5–13) (Page ID #212–20); R. 18–7
(McIllmurray MGCB Hr’g Tr. at 6–10) (Page ID #230–34); R. 18–8 (Ray MGCB Hr’g Tr. at 7–
11) (Page ID #245–49). The next day, the MGCB suspended the Plaintiffs’ licenses, citing their
failure “to comply with the conditions precedent for occupational licensing in Michigan as
outlined in R431.1035.” R. 18–9 (Stewards Hr’g Ruling) (Page ID #254–57). This rule provides
that an applicant for an occupational license must “cooperate in every way . . . during the
conduct of an investigation, including responding correctly, to the best of his or her knowledge,
to all questions pertaining to racing matters.” Mich. Admin. Code R. 431.1035. Later, on
November 30, 2010, the MGCB issued orders of exclusion banning the drivers from all state race
tracks, again citing their “‘failure to cooperate’ at the time of the Steward’s Hearing in May
2010.” R. 85–16 (Ernst Letters) (Page ID #1377–79). The Plaintiffs’ applications for 2011,
2012, and 2013 licenses were also denied.

In August 2012, the Plaintiffs brought suit under 42 U.S.C. § 1983, claiming violations of
their procedural due process and Fifth Amendment rights. On November 27, 2013, the district
court held that the Defendants were entitled to qualified immunity because the Plaintiffs had
failed to identify a constitutional violation. It therefore granted the Defendants’ motion for
summary judgment and denied the Plaintiffs’ motion for partial summary judgment. On appeal,
we affirmed in part and reversed in part the district court’s holding with respect to Plaintiffs’
procedural due process claim, and held that although Plaintiffs had received due process with
respect to their license suspensions, there was a disputed issue of material fact as to whether the
Plaintiffs were denied due process on their exclusion from the race tracks. Moody v. Michigan
Gaming Control Bd., 790 F.3d 669, 680 (6th Cir. 2015) (“Moody I”). Specifically, we found that
the Plaintiffs were due a post-exclusion hearing, which they did not receive, and that there was a
genuine dispute as to whether or not Plaintiffs were themselves at fault for failing to request a
hearing. Id. at 679–80. As to the Plaintiffs’ Fifth Amendment claim, we reversed the district
court’s holding that Plaintiffs had failed to identify a constitutional violation. We held that the
“Constitution entitled the harness drivers to refuse to answer potentially self-incriminating
questions, unless the state immunized them from prosecution. To punish the drivers violated the
Constitution, and both suspension and exclusion constitute punishment.” Id. at 673. We
therefore found that the Defendants had violated the drivers’ constitutional rights against self-
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 4

incrimination, and remanded to the district court to consider the question of whether that right
was clearly established at the time of the violation. Id.

On remand, the parties filed renewed cross-motions for summary judgment. The
Defendants argued that we erred in concluding that the Plaintiffs did not receive a post-exclusion
hearing, because Plaintiffs received a hearing on April 25, 2013, two years before our initial
remand. The Plaintiffs, in response, conceded that a post-exclusion hearing took place on that
date, but argued that the hearing, which occurred two years after the exclusion orders were
issued, was not timely. On the Fifth Amendment claim, the Defendants argued, once again, that
the Plaintiffs had failed to identify a constitutional violation, and that the right to be offered
immunity against self-incrimination was not clearly established at the time of the violation.

The district court held that the Defendants’ argument with respect to the April 2013
hearing was irrelevant to the question on remand, and re-emphasized our holding that there was
“a dispute of fact regarding whether the 2011 license applications constituted hearing requests.”
R. 172 (Dist. Ct. Order at 12) (Page ID #4144). It concluded once again that neither party was
entitled to summary judgment on the procedural due process claim. The district court also held
that the Fifth Amendment violation identified in Moody I was not clearly established at the time
of the violation, because “before the Sixth Circuit’s decision in Moody [I], a reasonable officer
could have believed, as the [district c]ourt did, that they were not required under the Fifth
Amendment to offer immunity.” Id. at 10 (Page ID #4142). It held that the Defendants were
entitled to qualified immunity on the Fifth Amendment claims, and dismissed those Defendants
whose personal involvement extended only to that claim. Id. at 10, 14 (Page ID #4142, 4146).

Both parties now appeal. Defendants argue that the district court erred in denying their
motion for summary judgment, because Plaintiffs now concede that they did receive a post-
exclusion hearing. The Plaintiffs argue that they were nonetheless denied due process because
that hearing was not timely, and the Plaintiffs challenge the district court’s holding that the Fifth
Amendment right identified in the initial appeal was not clearly established at the time of the
violation.
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 5

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s grant or denial of summary judgment on the basis of
qualified immunity. United States v. Ohio, 787 F.3d 350, 353 (6th Cir. 2015). Summary
judgment is proper where “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In considering a motion for
summary judgment, we must draw all inferences “in the light most favorable to the party
opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (internal quotation marks omitted).

Where a defendant raises the defense of qualified immunity, “it is the plaintiff’s burden
to show that the defendants are not entitled to qualified immunity.” Burgess v. Fischer, 735 F.3d
462, 472 (6th Cir. 2013). To determine whether qualified immunity applies, this court applies a
two-part test and asks: (1) whether the officer violated a constitutional right, and (2) whether
that constitutional right was clearly established such that “a reasonable official would understand
that what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 201–02 (2001) (internal
quotation marks omitted), abrogated in part by Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Courts have discretion to decide which of the two parts to apply first. Pearson, 555 U.S. at 227.

B. Defendants’ Appeal

1. Law-Of-The-Case Doctrine

Before reaching the merits of the Defendants’ appeal, it is necessary that we determine
whether review of the procedural due process claims is barred by the law-of-the-case doctrine.
“The law-of-the-case doctrine precludes reconsideration of issues decided at an earlier stage of
the case.” Caldwell v. City of Louisville, 200 F. App’x 430, 433 (6th Cir. 2006). The doctrine
applies only to issues that were actually decided, whether explicitly or by necessary implication.
Id. (citing McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508, 513 n.3 (6th Cir. 2000). It
does not extend to issues that should have been raised, or to issues not “fully briefed [or]
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 6

squarely decided in an earlier appeal.” Burley v. Gagacki, 834 F.3d 606, 618 (6th Cir. 2016)
(internal quotation marks omitted).

“Importantly, however, [the law-of-the-case] doctrine is intended to enforce a district
court’s adherence to an appellate court’s judgment, and so is applied only loosely when we
reconsider our own decisions.” Miller v. Maddox, --- F.3d ---, No. 17-5021, 2017 WL 3298570,
at *2 (6th Cir. Aug. 3, 2017). Therefore, while we generally will not, for prudential reasons,
consider issues addressed by a prior panel, the doctrine does not limit our power of review, and
we may, in exceptional circumstances, deem it necessary to depart from a prior ruling.
Musacchio v. United States, 136 S. Ct. 709, 716 (2016); see also McKenzie, 219 F.3d at 513 n.3
(noting that the “‘law of the case’ doctrine is ‘directed to a court’s common sense’ and is not an
‘inexorable command’”). We have recognized three exceptional circumstances under which we
will consider a previously decided issue: “(1) where substantially different evidence is raised on
subsequent trial; (2) where a subsequent contrary view of the law is decided by the controlling
authority; or (3) where a decision is clearly erroneous and would work a manifest injustice.”
United States v. Rayborn, 495 F.3d 328, 337 (6th Cir. 2007) (quoting Westside Mothers v.
Olszewski, 454 F.3d 532, 538 (6th Cir. 2006)).

Here, the Defendants appeal the district court’s holding that they were not entitled to
qualified immunity on the procedural due process claim. As the district court rightly pointed out,
this issue was addressed by a prior panel of this court in Moody I, which determined that (1) it
was clearly established that the Plaintiffs were entitled to a post-exclusion hearing, (2) the
Plaintiffs had not received such hearings, and (3) the Defendants therefore were not entitled to
qualified immunity on that claim. Moody I, 790 F.3d at 679. Although the district court did not
err in holding that Moody I had addressed these issues, we find that the parties have identified
exceptional circumstances that justify our reconsideration of this issue now on appeal.
Specifically, the parties now agree that the Plaintiffs actually received a hearing on their
exclusions on April 25, 2013 in response to a request made on November 27, 2012. R. 144
(Defs. Mot. Summ. J. at 20–21) (Page ID #3717–18); R. 156 (Pls. Resp. Defs. Mot. Summ. J. at
9) (Page ID #4035). Because this is a new fact that was not before the prior panel, we believe it
is prudent to revisit the question of whether or not a constitutional violation took place.
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 7

It is worth noting that the circumstances that justify reconsideration of this issue are
indeed extraordinary. Here, despite both parties’ failure to raise these arguments in the initial
appeal, the parties now agree that different facts govern our review. First Br. at 29; Fourth Br. at
2. These assertions, moreover, are supported by record evidence. R. 85-14 (Nov. 27, 2012
Letter from Counsel at 2) (Page ID #1369); R. 85-13 (Notice of Hr’g at 1) (Page ID #1364).
Although these documents were available to the prior panel, neither document states the
particular purpose of the hearing. That ambiguity was not resolved until the parties appeared
before this panel for oral argument, and counsel clarified that the hearing addressed both the
exclusion orders and the license suspensions. Therefore, although the evidence supporting these
facts may not be “new,” the particular fact before us—that the exclusion orders were considered
in the April 2013 hearing—is, from our perspective, a new fact.

We will not, however, revisit our prior holding that the right at issue was clearly
established, because the parties have put forth no extraordinary circumstances warranting our
reconsideration of that claim. We also will not revisit the issue of Defendants Ernst and
Lessnau’s personal involvement in violating Plaintiffs’ procedural due process rights. This claim
was raised in the Defendants’ initial motion for summary judgment, and therefore was a part of
the record before the Moody I panel. R. 144 (Defs. Mot. Summ. J. at 8) (Page ID #3705). In
fact, as the district court pointed out on remand, the Moody I panel specifically identified Ernst
as an individual who told Plaintiffs that they could not appeal their exclusion orders. See Moody
I, 790 F.3d at 679–80. Because there are no new factual claims with respect to Ernst and
Lessnau’s personal involvement, and no other extraordinary circumstances that warrant our
consideration, we decline to reconsider whether these Defendants may be dismissed on the basis
that they were not personally involved in the alleged violation.

2. Procedural Due Process Claim

The Defendants contend that they are entitled to summary judgment on the procedural
due process claim because the Plaintiffs now admit that they received a post-exclusion hearing.
First Br. at 29. The Plaintiffs, in response, argue that the April 25, 2013 hearing did not moot
their claim, because the hearing was not received within fourteen days of their November 27,
2012 request, as required by Michigan Administrative Code Rule 431.1130(3). Second Br. at
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 8

49–50. Therefore, they argue that they were deprived of a prompt post-deprivation hearing. Id.
at 50.

Contrary to the Defendants’ assertion, due process is not satisfied merely because a
hearing took place. Due process requires that a post-deprivation hearing take place “at a
meaningful time and in a meaningful manner.” Goldberg v. Kelly, 397 U.S. 254, 267 (1970)
(citation omitted). With respect to horse racing in particular, the Supreme Court has held that
trainers, and presumably drivers, are entitled to a prompt post-deprivation hearing “that would
proceed and be concluded without appreciable delay,” because “the consequences to a [driver] of
even a temporary suspension can be severe.” Barry v. Barchi, 443 U.S. 55, 66 (1979).

Here, the exclusion orders were issued on November 30, 2010, and the post-exclusion
hearing did not take place until April 25, 2013—nearly two and one-half years after the
deprivation took place. Under these circumstances, it is clear that the Plaintiffs have identified a
violation of a clearly established right, and the Defendants are not entitled to summary judgment
on the basis of qualified immunity. We therefore affirm the district court’s denial of the
Defendants’ motion for summary judgment with respect to the procedural due process claim.
We remand the case for further proceedings, with the understanding that going forward, it shall
be the law of the case that the Plaintiffs received a post-exclusion hearing on April 25, 2013.

C. Plaintiffs’ Cross-Appeal

1. Fifth Amendment Claim

The Plaintiffs, in their cross-appeal, challenge the district court’s holding that the Fifth
Amendment right identified in Moody I was not clearly established at the time of the violation.
“A right is ‘clearly established’ if ‘[t]he contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing violates that right.” Baynes v.
Cleland, 799 F.3d 600, 610 (6th Cir. 2015) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)), cert. denied, 136 S. Ct. 1381 (2016). “In deciding whether a right has been clearly
established, the Supreme Court has ‘repeatedly’ warned lower courts not to define the right at ‘a
high level of generality.’” Hagans v. Franklin Cty. Sheriff's Office, 695 F.3d 505, 508 (6th Cir.
2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). However, we have also
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 9

recognized that “[a] court need not have previously held illegal the conduct in the precise
situation at issue because officials can still be on notice that their conduct violates established
law even in novel factual circumstances. Sutton v. Metro. Gov’t of Nashville & Davidson Cty.,
700 F.3d 865, 876 (6th Cir. 2012) (internal quotation marks omitted).

The right identified in Moody I is derived from the Fifth Amendment, which states that
no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V, § 3. In Moody I, we held that the Amendment “entitled the harness drivers to refuse
to answer potentially self-incriminating questions, unless the state immunized them from
prosecution. To punish the drivers violated the Constitution, and both suspension and exclusion
constitute punishment.” Moody I, 790 F.3d at 673. The right at issue, therefore, was the right to
refuse to answer self-incriminating questions without threat of punishment, unless immunity was
offered. The Defendants argue that the Moody I panel announced “a new requirement that the
government expressly offer immunity to state licensees before sanctioning them for refusing to
answer regulatory-related questions.” Third Br. at 25. Their argument is belied by precedent. In
Lefkowitz v. Turley, 414 U.S. 70, 78 (1973), the Supreme Court held that “a witness protected by
the [Fifth Amendment] privilege may rightfully refuse to answer [potentially self-incriminating
questions from his employer] unless and until he is protected at least against the use of his
compelled answers and evidence derived therefrom in any subsequent criminal case in which he
is a defendant.” In other words, “if answers are to be required in such circumstances[,] States
must offer to the witness whatever immunity is required to supplant the privilege and may not
insist that the employee or contractor waive such immunity.” Id. at 84–85 (emphasis added).
That is precisely the right announced in Moody I. Therefore, the right was clearly established.

The Defendants nonetheless argue that prior to Moody I, an employer was not required to
offer immunity because an employee could presume his statements were automatically immune
under Garrity v. New Jersey, 385 U.S. 493 (1967). In Garrity, the Supreme Court held that
where a public employer “use[s] the threat of discharge to secure incriminatory evidence against
an employee,” the Fifth Amendment prohibits the use of such incriminating evidence in a
subsequent criminal proceeding. 385 U.S. at 499–500. We do not find the Defendants’
argument persuasive. First, prior cases indicate that Garrity immunity may not necessarily be
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 10

coextensive with “whatever immunity is required to supplant the privilege.” Turley, 414 U.S. at
84–85. For example, as noted in Kastigar v. United States, 406 U.S. 441, 458 (1972), the Fifth
Amendment protects against the use and the derivative use of coerced statements at trial. That
grant of immunity exceeds the grant articulated in Garrity.

Second, the Defendants’ argument undermines the clear language of subsequent cases
that articulate the specific right at issue here. The Supreme Court in Turley articulated a separate
Fifth Amendment right that applies when potentially self-incriminating questions are posed in a
public-employment setting. Turley, 414 U.S. at 78. Although that right is not absolute, it is clear
that under some circumstances a public employee must be able to invoke that privilege without
fear of punishment. See id. at 77 (holding that the Fifth Amendment “not only protects the
individual against being involuntarily called as a witness against himself in a criminal
prosecution but also privileges him not to answer official questions put to him in any other
proceeding, civil or criminal, formal or informal, where the answers might incriminate him in
future criminal proceedings”); Gardner v. Broderick, 392 U.S. 273, 276 (1968) (“Our decisions
establish beyond dispute the breadth of the privilege to refuse to respond to questions when the
result may be self-incriminatory, and the need to fully implement its guaranty”). The key
question, for our purposes, is when that privilege can be invoked. Turley provides us with an
answer, and instructs that the privilege may be enjoyed “unless and until he is protected at least
against the use of his compelled answers and evidence derived therefrom in any subsequent
criminal case in which he is a defendant.” 414 U.S. at 78. To assume, as the Defendants would
have us do, that immunity applied automatically is to say that there is no right at all.

Moreover, the Defendants fail to recognize that the right articulated in Turley is separate
and distinct from the one articulated in Garrity, one which carries separate entitlements, protects
against different infringements by the government, and, importantly, one whose contours are
shaped by very different considerations. Immunity under Garrity has direct and obvious
criminal implications that require the right to be absolute. See Garrity, 385 U.S. at 500 (“There
are rights of constitutional stature whose exercise a State may not condition by the exaction of a
price.”) Although the right at issue here and in Turley involves potential criminal consequences,
it is more directly related to an individual’s interest in public employment, which must be
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 11

balanced against the public interest in obtaining information to “to assure the effective
functioning of government.” Turley, 414 U.S. at 81 (citation omitted). These countervailing
considerations color the contours of the right and impose a different set of procedural steps that
are intended both to preserve the privilege against self-incrimination, but also to allow the state
to compel testimony to ensure the effective administration of government. See Kastigar, 406
U.S. at 444–45. As Turley makes clear, making an offer of immunity is one such procedural
step. Turley, 414 U.S. at 84–85.

Garrity immunity prohibits the use of coerced statements in criminal proceedings, but it
does not protect against the act of coercion itself. The Supreme Court in Turley, Gardner, and
Kastigar recognized that the act of coercion itself is a public action that threatens the Fifth
Amendment in a markedly different way than does the use of a coerced statement in a criminal
proceeding. Therefore, “a State may not impose substantial penalties because a witness elects to
exercise his Fifth Amendment right not to give incriminating testimony against himself.”
Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977). Given the Supreme Court’s recognition
that the privilege against self-incrimination “can be asserted in any proceeding, civil or criminal,
administrative or judicial, investigatory or adjudicatory,” Kastigar, 406 U.S. at 444, the Court
has recognized a separate right for individuals to refuse to answer in civil proceedings, the
contours of which are separate from the immunity articulated in Garrity.

Finally, we reject the Defendants’ argument that the circumstances here are
distinguishable from cases where employees were explicitly asked to waive their right to
immunity. See Turley, 414 U.S. at 82; Cunningham, 431 U.S. at 805–06. The record
demonstrates that the Plaintiffs were suspended and excluded solely on the basis of Michigan
Administrative Code Rule 431.1035, which requires an applicant for an occupational license to
cooperate in every way during the course of an investigation, including by responding to all
questions. See R. 18–9 (Stewards Hr’g Ruling) (Page ID #254–57); R. 85–16 (Ernst Letters)
(Page ID #1377–79); Mich. Admin. Code R. 431.1035. These circumstances are substantially
similar to the circumstances in Turley, where state law provided that a failure to cooperate or
answer questions was grounds for disqualifying a state contractor’s contracts. Turley, 414 U.S.
at 71, 82. Indeed, the Court in Turley recognized that “[t]he waiver sought by the State, under
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 12

threat of loss of contracts, would have been no less compelled than a direct request for the
testimony without resort to the waiver device.” Id. at 82. Here, the administrative rule, as
applied, left Plaintiffs with only two choices: to waive their privilege and cooperate with an
investigation, or to be punished. The Supreme Court has clearly held this choice to be coercion,
which constitutes an illegal action until an offer of immunity is made.

Under the conditions articulated with respect to the particular right at issue, a public
employee “may rightfully refuse to answer unless and until he is protected at least against the use
of his compelled answers.” Turley, 414 U.S. at 78 (emphasis added). The Supreme Court has
made clear that if a state wishes to punish an employee for invoking that right, “States must offer
to the witness whatever immunity is required to supplant the privilege and may not insist that the
employee or contractor waive such immunity.” Id. at 85. We therefore reverse the district
court’s grant of qualified immunity on the Fifth Amendment claim, and hold that the right
articulated in Moody I was clearly established at the time of the violation.

2. Motion to Reopen Discovery and Amend the Complaint

The Plaintiffs also appeal from the district court’s denial of their motion to reopen
discovery, motion to compel discovery, and motion to amend the complaint. These claims are
not properly before us. The district court has not entered a final judgment in this case, nor has it
certified any of these claims for immediate appeal pursuant to Federal Rule of Civil Procedure
54(b). These claims therefore exceed our jurisdiction.

III. CONCLUSION

Based on the foregoing, we AFFIRM the denial of qualified immunity on the procedural due
process claim, REVERSE the grant of qualified immunity on the Fifth Amendment claim, and
REMAND the case for further proceedings.
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 13

________________________________________________________

CONCURRING IN PART AND DISSENTING IN PART
________________________________________________________

ALICE M. BATCHELDER, Circuit Judge, concurring in part and dissenting in part. I
agree with the majority—albeit for different reasons—that the district court did not err by
holding that there is a material dispute of fact over whether there was a constitutional violation
on the drivers’ procedural due process claim. I part ways with the majority on its analysis of the
Fifth Amendment claim and would affirm the district court’s grant of qualified immunity.
Accordingly, I respectfully concur in part and dissent in part.

I.

I begin with the majority’s treatment of the drivers’ post-exclusion procedural due
process claim. On a motion for summary judgment, a plaintiff who brings a § 1983 action
against a government official bears the burden of overcoming the qualified immunity defense by
showing that (1) the defendant violated a constitutional right and (2) that right was clearly
established. Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680–81 (6th Cir. 2013). When we
previously resolved an appeal in this case, we held that the drivers were “due the process of ‘a
prompt postsuspension hearing,’” which the drivers had received. Moody v. Mich. Gaming
Control Bd., 790 F.3d 669, 679 (6th Cir. 2015) (“Moody I”) (quoting Barry v. Barchi, 443 U.S.
55, 66 (1979)). We also held that the drivers had the same right following their exclusions,
applying the principles that a person is due “some kind of hearing . . . at some time before . . .
[being] finally deprived of his property interests” and that “the suspension of a jockey’s license
entitles him to a post-deprivation hearing.” Id. at 677, 679 (extending Wolff v. McDonnell,
418 U.S. 539, 557–58 (1974), and Barry, 443 U.S. at 66, to hold that a harness driver has a right
to post-exclusion due process).

For purposes of my analysis, I assume that the right was clearly established.1 Although I
agree with the majority that the district court did not err by holding that there are material,

1
In Moody I, we held that a driver is “due the process of a postexclusion hearing” by extending Barry to
cover “exclusions” in addition to “suspensions.” During that discussion, we did not discuss whether the law was
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 14

disputed facts concerning whether there was a constitutional violation here, I cannot subscribe to
the majority’s rationale. The majority allows the drivers to modify their claim from one of no-
due-process to one of untimely-due-process. It does so by relying on the law-of-the-case
doctrine, which I find unnecessary. I would find that the drivers survive summary judgment on
their post-exclusion due process claim on the basis of Moody I, as well as the standards
governing summary judgment.

The rationale of Moody I’s holding was that if the drivers had requested a post-exclusion
hearing through their license applications, then MGCB violated the drivers’ due process right by
denying them a post-exclusion hearing. Moody I, 790 F.3d at 679 (holding that the drivers would
fail on this due process claim “if they had failed to request a hearing” (emphasis added)).
Accordingly, we remanded “to the district court for further proceedings on [whether] the harness
drivers request[ed] hearings on their exclusions.” Id. at 681. The implication in our prior
opinion was that the drivers were obliged to adduce further evidence on remand to demonstrate
that the drivers had, in fact, requested a hearing. Instead, confronted with the fact that they had
received a hearing on their exclusions, the drivers changed rein to focus on whether that hearing
was timely, while MGCB focused on whether the drivers had requested a hearing in the first
place.

To unravel this knot, I turn to the standards applicable in a summary judgment
proceeding and on an appeal of such a proceeding. MGCB moved for summary judgment on
this issue, so the drivers were obliged to produce more than a “mere scintilla of evidence” to

clearly established, but our remand order asked the district court to consider whether the drivers’ “due-process
claims involve[d] clearly established rights.” 790 F.3d at 679, 681. On remand, the district court explained that
whether the “post-exclusion due process rights were clearly established” was not up for debate, citing Michigan law.
The majority in this appeal treats Moody I as if we held that the right was clearly established in spite of the remand
instruction. Moody I’s analysis of the right at issue implied that the leap from suspensions to exclusions was not a
large one. In some cases, the extension of a principle can satisfy our duty to determine whether a right was clearly
established. Cf. Comstock v. McCrary, 273 F.3d 693, 711 (6th Cir. 2001) (“[W]e need not find a case in which ‘the
very action in question has previously been held unlawful,’ but, ‘in the light of pre-existing law, the unlawfulness
must be apparent.’” (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987) (brackets omitted))). I question
whether the right was clearly established prior to Moody I, but I understand why the majority found that Moody I
determined the right was clearly established. If we were to consider this issue, I would examine the differences
under Michigan law between suspensions and exclusions, the effect of our opinion in Rodic v. Thistledown Racing
Club, Inc., 615 F.2d 736, 739 (6th Cir. 1980), and why the district court’s citation to state law alone is likely
insufficient to “be the basis for a federal constitutional violation” pursuant to Smith v. City of Salem, Ohio, 378 F.3d
566, 578 (6th Cir. 2004).
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 15

demonstrate that there was a genuine issue of material fact. Novak v. MetroHealth Med. Ctr.,
503 F.3d 572, 577 (6th Cir. 2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986)). We view the evidence and draw any inferences in the light most favorable to the
drivers. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)). And because MGCB appeals the denial of its qualified-immunity-based motion for
summary judgment, we review the legal issues and decline to review the sufficiency of the
factual allegations. DiLuzio v. Vill. Of Yorkville, Ohio, 796 F.3d 604, 609 (6th Cir. 2015).

MGCB produced a bevy of evidence—some of which was new—to support its argument
that it had not construed the drivers’ license applications as appeals of the exclusion orders. But
because MGCB moved for summary judgment and now appeals the denial of its motion, we are
less concerned with the evidence it adduced than with the drivers’ response to the motion.
Indeed, we make no factual findings. The district court relied on Moody I to hold that there is a
genuine dispute of material fact, so that is what we review. The onus was on the drivers to
demonstrate more than a mere scintilla of evidence in support of their claims. On that point, they
had formidable assistance in the form of Moody I’s pronouncement that “[a] reasonable juror
might conclude that the MGCB should have construed those applications as requests for the
hearings due to them under the federal constitution and state regulations” and its citation to the
Ernst Letter. 790 F.3d at 680. On remand, the drivers relied on this explanation, as well as
letters from Al Ernst and Erik Pedersen, both employees of MGCB, to argue that it was
“undisputed” that the drivers requested a hearing on their exclusions. On appeal, they argue that
it “cannot be seriously disputed that [they] requested hearings on the exclusion orders.” Without
our prior opinion, I would find it necessary to reject these claims, because MGCB has done quite
a bit to show that there is a dispute over this issue. But my conclusion must be tempered by our
prior opinion. On the evidence before the court, Moody I explained that a juror could find that
MGCB should have construed the license applications as appeals of the exclusion orders. When
it remanded the case for further proceedings, it did not explain that the drivers necessarily had an
obligation to adduce further evidence to establish its claim and satisfy its burden on summary
judgment. The drivers took this to mean that we had found this to be an undisputed fact.
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 16

The drivers offered the same evidence before both the Moody I panel and us. I am
satisfied that the drivers should survive summary judgment at this point, because we view the
evidence and draw inferences in their favor. Although they failed to produce any additional
evidence, Moody I’s holding gives the drivers enough of an edge to carry their burden at
summary judgment now. MGCB’s evidence is “no bum steer”2 and may well carry the day
before a jury. But I cannot agree that the drivers have failed to meet their burden such that we
can condone a grant of summary judgment in favor of MGCB.

I would affirm the denial of qualified immunity on the procedural due process claim for
these reasons. Accordingly, I concur in the majority’s affirming the order of the district court.

II.

A.

Turning to the majority’s analysis of the Fifth Amendment privilege against self-
incrimination, I respectfully dissent. In a qualified immunity case, the clearly established
analysis “must be undertaken in light of the specific context of the case, not as a broad general
proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001), abrogated in part by Pearson v.
Callahan, 555 U.S. 223, 236 (2009). “[W]e need not find a case in which ‘the very action in
question has previously been held unlawful,’ but, ‘in the light of pre-existing law, the
unlawfulness must be apparent.’” Comstock, 273 F.3d at 711 (brackets omitted) (quoting
Anderson, 483 U.S. at 640). To evaluate the contours of the right, “we must look first to
decisions of the Supreme Court, then to decisions of this court and other courts within our
circuit, and finally to decisions of other circuits.” Baker v. City of Hamilton, Ohio, 471 F.3d 601,
606 (6th Cir. 2006) (internal quotation marks omitted). Although the Supreme Court “‘does not
require a case directly on point’ for a right to be clearly established, ‘existing precedent must
have placed the statutory or constitutional question beyond debate.’” White v. Pauly, 137 S. Ct.
548, 551 (2017) (per curiam) (internal brackets and quotation marks omitted) (quoting Mullenix
v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)).

2
Cf. Frank Loesser, Fugue for Tinhorns, on Guys & Dolls (Original Broadway Cast Recording) (Decca
2000) (1950).
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 17

At “a high level of generality,” id. at 552 (citation omitted), a public employee or, in this
case, a licensee may refuse to answer questions that may tend to incriminate himself unless and
until he has immunity from prosecution on the basis of his answers to the State’s questions.
Moody I was correct to explain that “‘a governmental body may not require an employee to
waive his privilege against self-incrimination as a condition to keeping his job . . . even [when]
no criminal proceedings were ever instituted against’ an employee who was later successful in
constitutional claims.” Moody I, 790 F.3d at 674 (alteration in original) (quoting Lingler v.
Fechko, 312 F.3d 237, 239 (6th Cir. 2002)).

I part ways with the majority, however, because it does not—and cannot—point to
“clearly established law [that is] ‘particularized’ to the facts of [this] case.” White, 137 S. Ct. at
552 (quoting Anderson, 483 U.S. at 640). The majority finds clearly established Moody I’s
holding that MGCB violated the drivers’ rights when it “did not offer [them] immunity before
the hearing.” Moody I, 790 F.3d at 674. Based on my understanding of the Supreme Court’s
precedent, I cannot agree. Moreover, the majority fails to grapple with binding precedent from
our circuit that undermines its holding that the right at issue was clearly established. See Lingler,
312 F.3d at 239–40 (holding that it was not a constitutional violation for a police chief to exact
statements from police officers concerning their employment when they were not required to
waive their privilege against self-incrimination and the statements were not used against them in
a criminal proceeding).

The majority finds that the right at issue was clearly established on the basis of Lefkowitz
v. Turley, 414 U.S. 70, 78 (1973), which, in its view, defined “precisely the right announced in
Moody I.” There, the Supreme Court reviewed New York state laws requiring the State to cancel
contracts and disqualify contractors from future State contracts when a contractor “refuses to
waive immunity or to answer questions when called to testify.” Id. at 71–72. Two licensed
architects subject to these laws “were summoned to testify before a grand jury,” where the
architects refused to sign waivers of immunity. The district attorney thereafter notified the
contracting agencies of the architects’ refusal to waive their immunity, and the architects brought
an action seeking to declare New York’s statutes unconstitutional. The Supreme Court explained
that “a witness protected by the privilege may rightfully refuse to answer unless and until he is
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 18

protected at least against the use of his compelled answers and evidence derived therefrom in any
subsequent criminal case in which he is a defendant.” Id. at 78 (citing Kastigar v. United States,
406 U.S. 441 (1972)). It also analyzed the animating policy behind this line of cases:

[The cases] ultimately rest on a reconciliation of the well-recognized policies
behind the privilege of self-incrimination, and the need of the State, as well as the
Federal Government, to obtain information to assure the effective functioning of
government. Immunity is required if there is to be rational accommodation
between the imperatives of the privilege and the legitimate demands of
government to compel citizens to testify.

Id. at 81 (internal citations and quotation marks omitted); see also id. at 84 (“Although due
regard for the Fifth Amendment forbids the State to compel incriminating answers from its
employees and contractors that may be used against them in criminal proceedings, the
Constitution permits that very testimony to be compelled if neither it nor its fruits are available
for such use.”). This policy ensures that governments are able to maintain integrity through
investigations, but this comes at a cost—the government may not use testimony gathered as part
of such an investigation to prosecute a participant in that investigation.

It is not until the very end of Turley that one sees any language implying that the state
must offer immunity.

But the State may not insist that appellees waive their Fifth Amendment privilege
against self-incrimination and consent to the use of the fruits of the interrogation
in any later proceedings brought against them. Rather, the State must recognize
what our cases hold: that answers elicited upon the threat of the loss of
employment are compelled and inadmissible in evidence. Hence, if answers are
to be required in such circumstances States must offer to the witness whatever
immunity is required to supplant the privilege and may not insist that the
employee or contractor waive such immunity.

Id. at 84–85 (emphasis added). The majority emphasizes the italicized language in this
quotation, but, in context, it is clear why it was necessary in Turley. New York had required the
architects both to sign a waiver of their Fifth Amendment rights and to consent to the use of their
testimony in a subsequent prosecution, and all of this occurred when the architects were before
the grand jury. Such is not the case here. The hearing we are concerned with was before a
racing regulator, and the drivers do not suggest that the regulator had either the power to bring a
criminal proceeding against them or to immunize them from prosecution without the
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 19

involvement of a prosecutor. Nor have the drivers pointed to anything in the record suggesting
that MGCB asked them to sign away their Fifth Amendment rights. Indeed, unlike the New
York law at issue in Turley that explicitly required the architects to waive their immunity, the
Michigan law requiring compliance with an investigation does not condition licensure on the
waiver of the right. The drivers certainly did not lose their Fifth Amendment rights in this
hearing, and could reasonably fear their answers might be used against them in a subsequent
prosecution. But we have held that the mere “threat of disciplinary action” does not create an
implicit waiver of the privilege against self-incrimination. See Lingler, 312 F.3d at 239 (“[T]he
officers contend that a waiver of the privilege is implicit in any statement given by a public
employee under threat of disciplinary action. The caselaw does not support this contention—and
. . . any such waiver would have been ineffective.”). In light of these key distinctions, I cannot
agree that Turley clearly established the right in question here.

I acknowledge that a threat of termination can be coercion that violates the Fifth
Amendment, see Turley, 414 U.S. at 80–83, and the drivers’ Fifth Amendment rights are not
watered down in such a situation. See Lefkowitz v. Cunningham, 431 U.S. 801, 805–06 (1977)
(“[O]ur cases have established that a State may not impose substantial penalties because a
witness elects to exercise his Fifth Amendment right not to give incriminating testimony against
himself.”). But the applicable precedent is not so simple. See id. at 806 (“Public employees may
constitutionally be discharged for refusing to answer potentially incriminating questions
concerning their official duties if they have not been required to surrender their constitutional
immunity.”). It requires us to parse out the nature of the investigation and the source of the
threat of termination. In Gardner v. Broderick,

If appellant, a policeman, had refused to answer questions specifically, directly,
and narrowly relating to the performance of his official duties, without being
required to waive his immunity with respect to the use of his answers or the fruits
thereof in a criminal prosecution of himself[,] the privilege against self-
incrimination would not have been a bar to his dismissal.
The facts of this case, however, do not present this issue. Here, petitioner was
summoned to testify before a grand jury in an investigation of alleged criminal
conduct. He was discharged from office, not for failure to answer relevant
questions about his official duties, but for refusal to waive a constitutional right.
He was dismissed for failure to relinquish the protections of the privilege against
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 20

self-incrimination. The Constitution of New York State and the City Charter both
expressly provided that his failure to do so, as well as his failure to testify, would
result in dismissal from his job. He was dismissed solely for his refusal to waive
the immunity to which he is entitled if he is required to testify despite his
constitutional privilege.

392 U.S. 273, 278 (1968) (citations and footnote omitted). Gardner distinguishes between
situations in which a public employee is asked questions concerning performance of his duties
and those in which the State asks him to waive his immunity. A threat of termination in the
former is clearly permissible, whereas immunity must accompany such a threat in the latter.
Here, it is not clear that the Steward’s Hearing was tantamount to a proceeding before the grand
jury in which a witness must waive the privilege against self-incrimination. The Steward’s
Hearing addressed allegations about the drivers’ possible involvement in race-fixing, which
directly relates to the public license they held. This falls within the first scenario contemplated
by Gardner. As for the second Gardner scenario, there was no grand jury and there was no
request that the drivers sign away their constitutional rights. Therefore, Gardner cannot be the
basis for determining whether this right was clearly established, because the threat of termination
following the Steward’s Hearing could have been permissible if it was “narrowly relating to the
[drivers’] performance” as state licensees. Gardner, 392 U.S. at 278.

I cannot agree that Turley, Gardner, and like cases provide the proper lens through which
we should assess this case for purposes of qualified immunity. These cases address different
situations from the one here. The question, then, is whether MGCB needed to “offer” immunity
in the form of notifying the drivers that their testimony could not be used against them. This is
where Garrity, which is the progenitor of the other cases I have discussed so far, fits into the
picture.

B.

In Garrity, the Supreme Court held that a statement obtained under the coercive threat of
removal from office violates the Constitution. See Garrity v. New Jersey, 385 U.S. 493, 499
(1967). And in a companion case to Garrity, the Supreme Court explained the constitutional
problem as requiring employees to choose “between surrendering their constitutional rights or
their jobs,” but holding that employees would “subject themselves to dismissal if they refuse to
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 21

account for their performance of their public trust, after proper proceedings, which do not
involve an attempt to coerce them to relinquish their constitutional rights.” Uniformed
Sanitation Men Ass’n v. Comm’r of Sanitation, 392 U.S. 280, 284–85 (1968). Courts have
construed Garrity as effectively immunizing a public employee’s or licensee’s statements from
being used against her in a subsequent prosecution by explaining that such statements would be
rendered inadmissible in such a prosecution.3 See Lingler, 312 F.3d at 239. In fact, even in
Turley, the Supreme Court construed Garrity to mean that if evidence was obtained in violation
of the principle that a party may not be forced to waive her immunity, “any answers elicited
[would be] inadmissible.” Turley, 414 U.S. at 80–81 (citing Garrity, 385 U.S. at 499–500); cf.
Lingler, 312 F.3d at 240 (explaining that the law does not support the contention that “a waiver
of the privilege is implicit in any statement given by a public employee under threat of
disciplinary action” and that under Garrity, “any such waiver would have been ineffective”).

Interpreting Garrity to mean that coerced testimony cannot be used in a subsequent
criminal proceeding, however, leaves an important question unanswered: is that effect of the
Fifth Amendment privilege against self-incrimination a self-executing one, or must the public
employer or agency affirmatively make its employee, contractor, or licensee aware of the
immunity that Garrity affords? In Moody I, we concluded that MGCB had an affirmative
obligation to notify the drivers that they were afforded immunity in exchange for being
threatened with the loss of their licenses. In effect, we created a prophylactic rule, but this rule
had not been in place before. The district court was therefore correct when it explained that
“[w]hat was not clearly established in this Circuit [before Moody I] was whether the State was
required to offer immunity in the first place.” Moody v. Mich. Gaming Control Bd., 202 F. Supp.
3d 756, 760 (E.D. Mich. 2016).

3
The majority finds that “Garrity immunity may not necessarily be coextensive with ‘whatever immunity is
required to supplant the [Fifth Amendment] privilege.’” Maj. Op. at 11 (quoting Turley, 414 U.S. at 84–85). It
further notes that in Kastigar v. United States, 406 U.S. 441, 458 (1972), the Supreme Court held that the Fifth
Amendment protects against the use and the derivative use of coerced statements at trial and that this “exceeds the
grant articulated in Garrity.” Maj. Op. at 11. Even if they are right that Kastigar’s view of immunity exceeds
Garrity’s, this is a question for another day. Here, we are not concerned with evidence—direct, derivative, or
otherwise—that was presented to a jury, so we have no occasion to determine whether Garrity would render some
such hypothetical evidence inadmissible but allow other hypothetical evidence to be admitted.
 Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 22

This is the proper lens through which to analyze this case, so I cannot find that the right
had been clearly established before Moody I. The Supreme Court has not directly addressed how
this right plays out in non-prosecutorial administrative proceedings, as I discussed above. Nor
has our circuit addressed this previously. And looking to the other circuits demonstrates
precisely why I cannot find that the right announced in Moody I was clearly established, for it is
the subject of a circuit split among the various United States Courts of Appeals. See, e.g., Sher v.
U.S. Dep’t of Veterans Affairs, 488 F.3d 489, 503 (1st Cir. 2007) (“The circuits have taken
different approaches to the issue of whether a government employer is required to provide such
notice to an employee.”); compare, e.g., Atwell v. Lisle Park Dist., 286 F.3d 987, 990 (7th Cir.
2002) (“Our court has ruled in several cases that the government employer who wants to ask an
employee potentially incriminating questions must first warn him that because of the immunity
to which the cases entitle him, he may not refuse to answer the questions on the ground that the
answers may incriminate him.”), with Hill v. Johnson, 160 F.3d 469, 471 (8th Cir. 1998) (“[T]he
mere failure affirmatively to offer immunity is not an impermissible attempt to compel a waiver
of immunity.”). This split of authority, although not acknowledged by the majority, supports my
conclusion that the law was not clearly established prior to Moody I. To saddle MGCB with the
unjustified holding that this issue was clearly established before Moody I runs counter to the
qualified immunity doctrine. I therefore respectfully dissent.