in this case the court remanded on three issues first did the drivers request hearings to support their no hearing due process claim on the exclusions yes they requested a hearing and one was provided they admitted this on re man and they have been in that no hearing claim second did the drivers no hearing due process claims involve clearly established rights no because the drivers have not provided any cases that told the regulators to review the driver license applications as exclusion of pure requests or that they even had to be a right on the track at all and finally did the drivers fit the moment claims involved to establish rights in the argument we're making today is no because no case law notify the regulators that they would be violating the fifth amendment by suspending the drivers for failing to cooperate without first providing or offering community to determine whether something is clearly established and i would be turning first of the due process claim this going to the supreme court recently ruled this year in the case of white vs poly what was meant by something that was to society as a whole and took great pains to then go explain exactly what was meant by that notion of clearly established and what the court determined was that you can't define the constitutional right issue with a high level of generality instead we court must find or identify a case that is factually analogous or under certain sort of similar circumstances as the one before it and in this case  are no hearing due process claim does not have a clue established right because the drivers have not provided any case law to this court that requires those regulators to view a license application for it to become a driver as in it peel for their exclusions and to simply no cases this on that point could you just take a moment and the previous panel was aware of that hearing and also whether that hearing dealt with the suspensions exclusion orders both thank you mr chief judge actually  up the that hearing you're correct to the panel the first time around did not address it and i don't know if they were aware of it being in the record or not nonetheless was it presented to them an argument do you recall if i recall correctly i believe it was your honor but nonetheless the purpose of that hearing was was twofold it was first was the michigan game control board authorized by law to suspend the driver in the circumstances but it also dealt with the exclusions as well because when the drivers presented their request for a hearing in november of twenty twelve they asked for a hearing to commence on both of those those particular issues so did deal with the exclusion as well what what would the result of that hearing the result of that hearing was that there was a proposal for a decision that was issued by the ministry of logic in july of two thousand and twelve i'm sorry july twenty third teen where the administrative law judge concluded and made a recommendation to the gaming control board that the game in trouble was both correct in its decision to suspend the drivers in most circumstances but also to exclude them and as a result of that a final order was drafted by the michigan game the control board in october of two thousand and thirteen and the drivers did not appeal that decision or they permanently excluded or just for period of time while the the purpose of the exclusion is to keep them off the track and if and when they decide to address the circumstances that led to that exclusion it would be lifted and so in this case they did that in twenty fourteen they met with the gaming control board personnel they answered certain questions regarding the investigation that was pending at that time the game was satisfied with the answers that were provided by the drivers and then they were relicense after that point so they are currently licensed by the game  control board are currently licensed and they are no longer excluded that is correct a it's also important to know that in addition to there being no case law on the issue of viewing an application for a license or as a as an exclusion appeal request  it's also noted that the district court erred when it declined to grant qualified immunity to both defendants our ernst and john was now and with regard to mr ernst it was determined that because he wrote some letters in response to the driver's applications that that was sufficient to establish some personal involvement in the case we do not believe that there was sufficient personal involvement because again what the drivers have to show and what they haven't shown at this point in time is that at the time that he wrote the letter to the drivers responding to their license applications was there any case law that would put him on notice that required him to review those driver's applications as appeal requests to the exclusions and the answer is no and the same thing with john was no the court refused to grant qualified immunity to mr les now for a report that he drafted that contained a recommendation and whether to lift one of the three or four drivers exclusions now it should be noted that mr wasn't didn't have the authority to lift that exclusion it was simply left to  the executive director to make that call based on that recommendation but again his report first as a matter of law only addressed one of the three plaintiffs so as to as to three of those plaintiffs he should have been who granted qualified immunity because he didn't even weigh in on those issues also there is no case law to show that a issuing a mere recommendation in a report constitutes a denial of due process because they have to show that those two individuals did something to deny them a hearing and they haven't done that in this case certainly there's no case law that would point to that the same thing as to the fifth amendment as i noted at the outset the regulars of are entitled to qualified immunity on the fifth amendment issues because there is no case law that would have notified them that by suspending their license application or suspending their licenses i'm sorry that by excluding them i'm sorry let me back up that by suspending them for failing to cooperate without first offering immunity would violate the fifth amendment what it what about le refused to grant or refused to waive their fifth amendment rights and because it in signed off on some waiver that would allow the government to then go ahead and use their testimony in a subsequent criminal case  losing employment or license or whatever constitutes coercion that is correct judge matsch elder it does it does present a situation of compelled questioning but the garrity line of cases including governor versus broderick the uniform sanitation man case all provide for a constitutional framework where they say that in that situation it is ok to present a compelled questioning situation so long as you don't require a waiver of the fifth amendment during that questioning and that's not what happened in this case there was no waiver that was required by the drivers drivers were essentially fired or suspended because they didn't answer the questions right correct and that's and that's that's absolutely except a ball under the framework of the and it's progeny because under that constitutional framework the court the supreme court has developed a automatically barred from use in a subsequent criminal action and should be noted in this case that there were they were never criminally charged in this case so nobody is so you're saying the an employee doesn't have to invoke his fifth amendment rights but he can just go ahead and answer the questions and then guarantee says that the answers cannot be used in a criminal prosecution is that your position r p s our position or our position is that garrity would automatically prohibit the use of any of those statements in the and without the individual invoking his fifth amendment privilege well whether they have to invoke it or not i don't think it's an issue before this court because i obviously they did in this situation but it still doesn't change the result of even if they do in that situation guilty even if the drivers did assert the fifth amendment or didn't prevents any subsequent statements being or any of those statements derived from that compel questioning situation from being used against them a subsequent criminal proceeding which again in this case didn't happen because so i think you can make the argument we can we're certainly taking the position today that absent given that guar progeny allows or automatically attaches immunity to any of those statements that it's not clearly established that from the first time around that there was a duty on the part of the regulators to offer immunity to those drivers and certainly it should be noted it's worth noting for the record that in this case the regulators didn't have the authority to statements are automatically immune from subsequent use because of the fact that you might have a factual situation where they're not authorized to offer up immunity which is it would have the authority to offer immunity  regarding the issue of no hearings and due process initially the state took the position that the challenge to the had to occur within fourteen days they abandon that position there is no deadline for challenging an exclusion therefore when the plaintiffs decided to assert that right to challenge the exclusion they had to be given a hearing within fourteen days that didn't happen they claimed that it didn't happen because of various procedural matters and consensual agreements between counsel when did you first raise the fourteen day issue when did they first raise when did you raise it that you needed to have a hearing within fourteen days i do not believe that well i raised it when we first challenge the exclusions that was in early two thousand and thirteen you raised in the district court there are you raising it first in front of us no no no it was raised in the district court but it wasn't raised it was raised in the complaint but it was at the hearing and the at that time the argument still was by the defendants that it had it didn't have to won and in the supreme court and was rejected is the law of the case that they simply couldn't do it and therefore the assertion of the fifth was entirely appropriate in an administrative proceeding as has been law for at least forty years and they they just simply violated with regard to filing their applications for licensing what could it be other than a challenge to the exclusion as long as they were excluded they couldn't be licensed they were couldn't get a hearing on the exclusion and were wrongly told that the time had passed therefore it was a de facto permanent exclusion you can apply because your exclusion you can't jealousy of collusion because the time to challenge rolls is several suspects and is for ninety days but there is no specific rule regarding the length of an exclusion therefore i believe that it requires a challenge and the challenge can be made at any time and the hearing is supposed to be held with them fourteen days regarding ernst and lesser now they're both investigators in the same office for the m g c they cooperated on this matter throughout ernst wrote the letter which is referenced in the brief and less now admitted by the defendants wrote a negative and recommendation in addition less now refused to meet with the plaintiffs after their suspension slash exclusion and then when he did agree to meet with one of them he wouldn't allow that person to bring in her turning therefore he effectively blocked any informal resolution of whatever district there was please remember there was never any substance to any of the allegations never a criminal prosecution to clerk the cop in charge of this case com pleaded a rogue investigation found nothing intimidated witnesses coerced equivocal statements in the michigan state police themselves say one the case number he put on it is false and t there's no report of this and the michigan state police records completely rogue operation you have to both offer and grant immunity in an administrative proceeding if you want to compel testimony one is not or not where in any case it stated that you have to offer in unity as opposed to if the individual asks for immunity then you have to granted but where do you have to offer it in any originally it was thought that a offer was sufficient or as it developed you have to do both offer it and give it or out you can't compel the testimony harmed in the argument regarding the amendment of the complaint by being disqualified from racing john moody as run into trouble in three different states even after he was reinstated i may of two thousand and fourteen in the horseracing community this is a very closely watched and important case and the plaintiffs do now and have in the past suffered severe consequences which is one of the elements of making out the complete fifth amendment claim with damages but your opponent says that they are all currently licensed and no longer excluded is that correct that's correct so is that as a result of that april twenty third team hearing or did subsequent events happen that are not in our record now it happened it happened in may of two thousand and fourteen as a result of negotiations with the attorney general we agreed that it would eyes or cut off or diminished damages in fact it didn't cut them off because there were continuing consequences but it at least allowed them to go back to work and today john moody is the leading harness racer at a well i would be pleased to address any questions but if there aren't more probably not thank you very much  it wasn't as a result of an attorney to go she ations that was because they finally went to the game control board and addressed what led to their exclusions where the game control board felt comfortable to lift those exclusions the attorney general's office has nothing to do  that was not raised in the initial proceeding before the district court was first raised on free man that's where it first came up because their first claim account for the complaint addresses a no hearing claim and it wasn't until they did receive that hearing that they pivoted the the claim and brought a new claim that said yes we did receive the hearing but it wasn't constitutionally timely and they relied on a state administrative rule which does not define the parameters of due process to substantiate that claim but the court of the district court to credit correctly rejected that that attempt to make a new claim because it wasn't properly before the court and  they must both offer and grant immunity which is interesting because when we originally filed a petition for cert in opposition to that petition for certain the drivers took the exact opposite stance by saying the sixth circuit did not require an offer of immunity that's never been the case doesn't stand for that proposition but here they are today suggesting in their second brief that yes that requirement of offering immunity is in play that that must establish but even they recognized in their fourth brief that they took a different approach by suggesting well the the duty to offer immunity doesn't follow the administrator anybody in the ministry of proceedings because that's silly because they don't have that authority they recognize and they concede that the game has no authority to grant immunity that's why garrity provides it automatically as a right of law and that's why it addresses that because of those situations where you do have somebody that doesn't have the ability to offer that immunity so thank you very much any other questions ok thank you mr geissler mr davis for year arguments today we very much appreciate them no problem at all the case will be submitted and you may call the next case