John Moody v. Mich. Gaming Control Bd., 871 F.3d 420

Background

In May 2010 the Michigan Gaming Control Board (MGCB) held an investigatory hearing into alleged race-fixing; four licensed harness drivers (Moody, Harmon, Ray, McIllmurray) invoked the Fifth Amendment and refused to answer.
MGCB suspended the drivers’ licenses the next day under Mich. Admin. Code R. 431.1035 for failing to cooperate, later issued exclusion orders barring them from state racetracks, and denied subsequent license applications.
Plaintiffs sued under 42 U.S.C. § 1983 claiming (1) procedural due process violations (no prompt post-deprivation hearing for exclusions) and (2) Fifth Amendment violations (punishment for invoking privilege absent an offer of immunity).
On initial appeal (Moody I), this Court held drivers were entitled to post-exclusion hearings and that suspensions/exclusions as punishment implicated the Fifth Amendment; remanded to decide whether the right to immunity was clearly established and whether hearings occurred.
On remand the parties agreed a post-exclusion hearing occurred on April 25, 2013 (nearly 2½ years after the November 2010 exclusions); district court denied summary judgment on due process and granted qualified immunity on the Fifth Amendment claim.
This panel: (1) affirmed denial of qualified immunity on the procedural due process claim because the post-exclusion hearing was not prompt, (2) reversed the grant of qualified immunity on the Fifth Amendment claim, holding the right to immunity was clearly established, and (3) remanded for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs were denied procedural due process by lack of a prompt post-exclusion hearing	Plaintiffs: the April 25, 2013 hearing was untimely (≈2½ years after exclusion) and therefore not a "meaningful" prompt post-deprivation hearing	Defendants: plaintiffs concede they received a post-exclusion hearing, so no due-process violation; summary judgment should be entered	Held: due process requires a prompt hearing; the 2013 hearing was not timely — denial of qualified immunity on procedural due process affirmed and case remanded
Whether MGCB violated the Fifth Amendment by punishing drivers for invoking the privilege without offering immunity	Plaintiffs: drivers had right to refuse potentially self-incriminating questions unless state offered immunity; suspensions/exclusions punished invocation and thus violated Fifth Amendment	Defendants: no clearly established duty to expressly offer immunity before sanctioning licensees; Garrity-type immunities might apply automatically	Held: the right to refuse without being punished absent an offer of immunity was clearly established (Turley/Lefkowitz line); grant of qualified immunity reversed
Whether the law-of-the-case doctrine bars reconsideration of the procedural due process issue	Defendants: prior panel decided there was no post-exclusion hearing; bar reconsideration	Plaintiffs: new fact (April 25, 2013 hearing addressed exclusions) changes record	Held: law-of-the-case not dispositive because parties identified a new, material fact (that the April 2013 hearing addressed exclusions); panel revisited the issue and concluded hearing was untimely
Whether district court abused discretion in denying motions to reopen discovery / amend complaint (appealability)	Plaintiffs: sought reopening/compel/amend on remand	Defendants: district court denied; appeals court should review	Held: those discovery/amendment claims are not properly before this Court on interlocutory appeal (no final judgment or Rule 54(b) certification)

Key Cases Cited

Moody v. Michigan Gaming Control Bd., 790 F.3d 669 (6th Cir. 2015) (prior panel opinion holding drivers entitled to post-exclusion hearing and recognizing Fifth Amendment issue)
Goldberg v. Kelly, 397 U.S. 254 (U.S. 1970) (post-deprivation hearing must be at a meaningful time and in a meaningful manner)
Barry v. Barchi, 443 U.S. 55 (U.S. 1979) (temporary suspensions in racing require prompt post-deprivation hearings because consequences are severe)
Lefkowitz v. Turley, 414 U.S. 70 (U.S. 1973) (state may not require waiver of Fifth Amendment; if answers are to be required, state must offer whatever immunity is needed)
Garrity v. New Jersey, 385 U.S. 493 (U.S. 1967) (statements coerced under threat of job loss cannot be used in subsequent criminal prosecutions)
Kastigar v. United States, 406 U.S. 441 (U.S. 1972) (Fifth Amendment protection bars use and derivative use of compelled testimony unless immunity is adequate)
Gardner v. Broderick, 392 U.S. 273 (U.S. 1968) (distinguishes permissible dismissal for refusing to answer job-related questions from impermissible dismissal for refusing to waive privilege)
Saucier v. Katz, 533 U.S. 194 (U.S. 2001) (qualified immunity two-step test)
Pearson v. Callahan, 555 U.S. 223 (U.S. 2009) (courts may decide prongs of qualified immunity in either order)
Lingler v. Fechko, 312 F.3d 237 (6th Cir. 2002) (rejects notion that waiver of privilege is implicit from threat of discipline)