Moody, et al. v. Mich. Gaming Control Bd., et al., Nos. 16-2244/2369 (MOORE, Cole, Batchelder).

Moody, et al. v. Mich. Gaming Control Bd., et al., Nos. 16-2244/2369 (MOORE, Cole, Batchelder).

The Michigan Gaming Control Board suspended the licenses of four horse-racing drivers and excluded them from a racetrack after the drivers invoked their Fifth Amendment right and refused to answer questions during an investigation into an illegal race-fixing scheme. The drivers filed suit, alleging violations of their procedural due process and Fifth Amendment rights. At the summary-judgment stage, the district court denied qualified immunity on the procedural due process claim and granted qualified immunity on the Fifth Amendment claim, and both the plaintiffs and defendants appealed.

The Sixth Circuit reconsidered the issue of qualified immunity on the procedural due process claim even though it had already been decided by a prior panel, holding that “[the law-of-the-case] doctrine is applied only loosely when we reconsider our own decisions” and finding that in this case there were exceptional circumstances justifying reconsideration of the issue. The Court ultimately held that the post-deprivation hearing—which took place almost two and a half years after the issuance of the order excluding the plaintiffs from the track—was not timely and therefore the plaintiffs established a violation of a clearly established right and the defendants were not entitled to qualified immunity on the procedural due process claim.

As for the Fifth Amendment claim, the Court identified the right at issue as the right to refuse to answer self-incriminating questions without threat of punishment, unless immunity was offered. It therefore found that the right was clearly established at the time of the investigation. The Court rejected the defendants’ argument that immunity applied automatically under Garrity v. New Jersey, 385 U.S. 493 (1967), reasoning that the grant of immunity in Garrity is not necessarily coextensive with the level of immunity necessary to supplant the Fifth Amendment privilege because Garrity did not grant derivative use immunity. The Court compared Garrity to Lefkowitz v. Turley, 414 U.S. 70, 78 (1973), finding that Turley balanced different interests because it dealt with public employment and holding that under Turley a grant of immunity is a required procedural step to supplant a public employee’s Fifth Amendment privilege. Therefore, the Court reversed the district court’s granting of qualified immunity on the Fifth Amendment claim.

Judge Batchelder wrote separately. She concurred with the majority on the procedural due process claim, although on slightly different grounds. She dissented as to the Fifth Amendment claim, arguing that the right was not clearly established because the majority defined the right at too high a level of generality, the Supreme Court has not directly addressed the issue, and there is a split among circuits. She also argued that the majority ignored Sixth Circuit precedent undermining the conclusion that the right at issue was clearly established.