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

J OHN M OODY ; D ONALD H ARMON ; R ICK R AY ; W ALLY M C I LLMURRAY , Plaintiffs-Appellees/Cross-Appellants ,

v

.

M ICHIGAN G AMING C ONTROL B OARD , et al., Defendants ,

A L E RNST ; J OHN L ESSNAU , Defendants-Appellants/Cross-Appellees

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ ┘ Nos. 16-2244/2369

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; BATCH ELDER and MOORE, Circuit Judges.

_________________ COUNSEL

ARGUED: Jason A. Geissler, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants/Cross-A ppellees. 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 LITIGATIO N ASSOCIATES, P.C., Detroit, Michigan, for Appellees/Cross-Appellants. 

### >Nos. 16-2244/2369 Moody et al. v. Mich. Ga ming Control Bd. et al. Page 2

MOORE, J., delivered the opinion of the court in wh ich COLE, C.J., joined, and BATCHELDER, J., joined in part. BATCHELDER , J. (pp. 13–22), delivere d 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 hor se 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 McI llmurray, Jr. (“Plaintiffs”), four drivers licensed by the MGCB, declined to answer questions and invoke d their Fifth Amendment right against self-incrimination. The MGCB later suspe nded the Plaintiffs’ licen ses and issued orders excluding them from the race tr acks, citing the Plaintiffs’ refusa l to cooperate at the hearing. The Plaintiffs filed suit, alleging violations of their procedural due pro cess 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 i mmunity on the procedural due process claim, and the Plaintiffs challenge the di strict 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 bega n to investigate allegations of a racefixing scheme involving certain gamblers and ha rness-racing drivers. As part of this investigation, the MGCB held an administrative investig atory hearing on May 20, 2010, with the Plaintiffs, all of whom were li censed by the MGCB as harness driver s. 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 agains t self-incrimination. R. 18–5 (Moody MGCB Hr’g Tr. at 5–8)Nos. 16-2244/2369 Moody et al. v. Mich. Ga ming Control Bd. et al. Page 3

(Page ID #197–200); R. 18–6 (Har mon 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 susp ended the Plaintiffs’ licenses, citing their failure “to comply with the conditions preced ent 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 occ upational 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 ex clusion 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 unde r 42 U.S.C. § 1983, claiming violations of their procedural due process and Fifth Amendm ent 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’ mo tion for partial summary judgment. On appeal, we affirmed in part and reversed in part the di strict court’s holding with respect to Plaintiffs’ procedural due process claim, a nd held that although Plaintiffs had received due process with respect to their license suspensions , there was a disputed issue of ma terial 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 Amen dment claim, we reversed the district court’s holding that Plaintiffs had failed to identify a constitutiona l violation. We held that the
“Constitution entitled the harness drivers to refu se to answer potentially self-incriminating questions, unless the state immunized them from pr osecution. To punish th e drivers violated the Constitution, and both suspension and exclusion constitute punishment.” Id. at 673. We
therefore found that the Defendants had violated th e drivers’ constitutiona l rights against self-Nos. 16-2244/2369 Moody et al. v. Mich. Ga ming 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 cro ss-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 heari ng 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 ex clusion orders were issued, was not timely. On the Fifth Amendmen t claim, the Defendants argued, once again, that the Plaintiffs had failed to identify a constituti onal violation, and that the right to be offered immunity against self-incrimina tion 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 [dis trict c]ourt did, that they we re 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 Am endment claims, and dismissed those Defendants whose personal involvement ex tended only to that claim. Id. at 10, 14 (Page ID #4142, 4146).
Both parties now appeal. Defendants argue th at the district court erred in denying their motion for summary judgment, be cause Plaintiffs now concede that they did receive a postexclusion hearing. The Plaintiffs argue that th ey were nonetheless denied due process because that hearing was not timely, and the Plaintiffs cha llenge 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. Ga ming Control Bd. et al. Page 5

II. ANALYSIS

A. Standard of Review

We review de novo a district co urt’s grant or denial of summ ary 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 dis pute 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 de fense 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 qua lified 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 whic h 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 clai ms is barred by the law-of-the-case doctrine. “The law-of-the-case doctrine prec ludes 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 (6thCir. 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. Ga ming Control Bd. et al. Page 6

squarely decided in anearlier 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 appell ate 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 fr om 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 ‘d irected to a court’s comm on sense’ and is not an ‘inexorable command’”). We have recognized th ree exceptional circumstances under which we will consider a previously decided issue: “(1) wh ere substantially different evidence is raised on subsequent trial; (2) where a subs equent contrary view of the law is decided by the controlling authority; or (3) where a decision is clearly err oneous 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 holdi ng that they were not entitled to qualified immunity on the procedural due process clai m. As the district c ourt 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 we re entitled to a post-exclusion hearing, (2) the
Plaintiffs had not received suchhearings, and (3) the Defendants therefore were not entitled to qualified immunity on that claim. Moody I, 790 F.3d at 679. Although th e district court did not err in holding that Moody I had addressed these issues, we fi nd that the parties have identified exceptional circumstances that justify our rec onsideration of this issue now on appeal. Specifically, the parties now agree that the Pl aintiffs 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 th at 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. Ga ming 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) (Pag e ID #1369); R. 85-13 (Notice of Hr’g at 1) (Page ID #1364). Although these documents were available to th e prior panel, neither document states the particular purpose of the hearing. That ambigu ity was not resolved until the parties appeared before this panel for oral argument, and counsel clarified that the he aring addressed both the exclusion orders and the license suspensions. Therefore, although the ev idence supporting these facts may not be “new,” the par ticular 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 Plainti ffs’ procedural due proce ss 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 cour t pointed out on remand, the Moody I panel specifically identified Ernst
as an individual who told Plaintiffs that th ey could not appeal th eir 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 ex traordinary circumstan ces 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 entitl ed 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, ar gue 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. atNos. 16-2244/2369 Moody et al. v. Mich. Ga ming 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 thata 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, 2 013—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 th e Defendants are not entitled to summary judgment on the basis of qualified immunity. We therefor e affirm the district court’s denial of the Defendants’ motion for summary j udgment with respect to the pr ocedural due process claim. We remand the case for further proceedings, withthe 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 th e violation. “A right is ‘clearly established’ if ‘[t]he cont ours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing violat es 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 alsoNos. 16-2244/2369 Moody et al. v. Mich. Ga ming Control Bd. et al. Page 9

recognized that “[a] co urt 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 ques tions, unless the state immunized them from prosecution. To punish the drivers violated th e Constitution, and both suspension and exclusion constitute punishment.” Moody I, 790 F.3d at 673. The right at i ssue, therefore, was the right to refuse to answer self-incriminating questions wi thout 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 lice nsees 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 re fuse 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 requi red 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 presum e 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 disc harge to secure incriminatory evidence against an employee,” the Fifth Amendment prohibits th e 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 beNos. 16-2244/2369 Moody et al. v. Mich. Ga ming 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 potential ly 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 invol untarily called as a witness against himself in a criminal prosecution but also privileges hi m not to answer official quest ions put to him in any other proceeding, civil or criminal, formal or inform al, 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 en joyed “unless and until he is protected at least against the use of his compelled answers and ev idence 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 automaticallyis to say that ther e is no right at all.

Moreover, the Defendants fail to rec ognize that the righ t articulated in Turley is separate
and distinct from the one articulated in Garrity , one which carries separate entitlements, protects against different infringements by the governme nt, and, importantly, one whose contours are shaped by very different cons iderations. Immunity under Garrity has direct and obvious criminal implications that requ ire the right to be absolute. See Garrity , 385 U.S. at 500 (“There are rights of constitutional stature whose exerci se 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 pub lic employment, which must beNos. 16-2244/2369 Moody et al. v. Mich. Ga ming 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 diffe rent set of procedural steps that are intended both to preserve the privilege agains t self-incrimination, but also to allow the state to compel testimony to ensure the e ffective 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 st atements in criminal proceedings, but it does not protect against the act of co ercion itself. The Supreme Court in Turley , Gardner , and Kastigar recognized that the act of co ercion 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 s ubstantial penalties because a witness elects to
exercise his Fifth Amendment ri ght not to give incriminati ng testimony against himself.” Lefkowitz v. Cunningham , 431 U.S. 801, 805 (1977). Given th e Supreme Court’s recognition that the privilege against self-incrimination “can be asserted in any procee ding, civil or criminal, administrative or judicial, i nvestigatory 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 fr om the immunity articulated in Garrity

. Finally, we reject the Defendants’ argum ent 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 suspende d 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 th e course of an investigation, including by responding to all questions. See R. 18–9 (Stewards Hr’g Ruling) (Pag e 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 disqualif ying 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, underNos. 16-2244/2369 Moody et al. v. Mich. Ga ming 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 C ourt has clearly held this choice to be coercion, which constitutes an illegal action unt il 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 anemployee 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 imm unity on the Fifth Amendment cl aim, 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 distri ct court’s denial of their motion to reopen discovery, motion to compel disc overy, and motion to amend the complaint. These claims are not properly before us. The distri ct court has not entered a final j udgment in this case, nor has it certified any of these claims for immediate appeal pursuant to Federal Ru le 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. Ga ming Control Bd. et al. Page 13

________________________________________________________ CONCURRING IN PART A ND 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 ther e was a constitutional violation on the drivers’ procedural due proc ess claim. I part ways with the majority on its analysis of the
Fifth Amendment claim and would affirm the di strict 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 j udgment, a plaintiff wh o 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 cons titutional 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 he ld 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 (6 th 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 pers on is due “some kind of hearing . . . at some time before . . . [being] finally deprived of his pr operty 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 th e 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 wasNos. 16-2244/2369 Moody et al. v. Mich. Ga ming Control Bd. et al. Page 14

disputed facts concerning whether there was a c onstitutional violation here, I cannot subscribe to the majority’s rationale. The majority allows th e drivers to modify thei r claim from one of nodue-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 surviv e 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 ad duce 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 driver s changed rein to focus on whether that hearing was timely, while MGCB focused on whether the dr ivers had requested a hearing in the first place.

To unravel this knot, I turn to the stan dards applicable in a summary judgment proceeding and on an appeal of such a pro ceeding. MGCB moved for summary judgment on this issue, so the drivers were obliged to produ ce 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 es tablished” 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 extensio n 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. Ga ming Control Bd. et al. Page 15

demonstrate that there was a genui ne 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 th e 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 appli cations as appeals of th e exclusion orders. But because MGCB moved for summary judgment and nowappeals 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 s hould have construed those applic ations 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 explana tion, as well as
letters from Al Ernst and Erik Pedersen, both employees of MGCB, to argue that it was “undisputed” that the drivers requ ested a hearing on their exclusions . On appeal, they argue that it “cannot be seriously disputed th at [they] requested hearings on the exclusion orders.” Without our prior opinion, I would find it necessary to re ject these claims, because MGCB has done quite a bit to show that there is a dispute over this i ssue. 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 li cense applications as appeals of the exclusion orders. When it remanded the case for further pr oceedings, it did not explain thatthe drivers necessarily had an obligation to adduce further evidence to estab lish 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. Ga ming 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 m eet their burden such that we can condone a grant of summary judgment in favor of MGCB.
I would affirm the denial of qualified immun ity on the procedural due process claim for these reasons. Accordingly, I conc ur in the majority’s affirming th e order of the district court.

II.

A.
Turning to the majority’s analysis of the Fifth Amendment privilege against selfincrimination, I respectfully dissent. In a qua lified immunity case, th e 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 cont ours of the right, “we must look first to decisions of the Supreme Court, then to decisi ons of this court and other courts within our circuit, and finally to deci sions of other circuits.” Baker v. City of Hamilton, Ohio , 471 F.3d 601, 606 (6th Cir. 2006) (internal quotation marks om itted). Although the Supreme Court “‘does not require a case directly on point’ for a right to be clearly establ ished, ‘existing precedent must have placed the statutory or cons titutional 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 Broa dway Cast Recording) (Decca 2000) (1950).Nos. 16-2244/2369 Moody et al. v. Mich. Ga ming 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 ba sis of his answers to the State’s questions. Moody I was correct to explain that “‘a governme ntal 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 (alterati on in original) (quoting Lingler v.
Fechko , 312 F.3d 237, 239 (6th Cir. 2002)).
I part ways with the majority, howev er, because it does not—and cannot—point to “clearly established law [that is] ‘particul arized’ 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 driv ers’ rights when it “did not offer [them] immunity before the hearing.” Moody I, 790 F.3d at 674. Based on my unders tanding of the Supreme Court’s precedent, I cannot agree. Moreove r, the majority fails to grapple with binding precedent from
our circuit that undermines its holding that the right at issu e was clearly established. See Lingler , 312 F.3d at 239–40 (holding that it was not a constitutional violatio n 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 issu e 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 Yo rk state laws requiring the State to cancel contracts and disqualify c ontractors from future State contract s when a contractor “refuses to waive immunity or to answer quest ions when called to testify.” Id. at 71–72. Two licensed architects subject to these laws “were summone d 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 arch itects’ refusal to waive their imm unity, and the architects brought an action seeking to declare New York’s statutes unconstitutional. The Supreme Court explained that “a witness protected by the pr ivilege may rightfully refuse to answer unless and until he isNos. 16-2244/2369 Moody et al. v. Mich. Ga ming Control Bd. et al. Page 18

protected at least against the use of his compe lled 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 Stat e 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 comp elled if neither it nor its fruits are available for such use.”). This policy en sures 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 appelle es waive their Fifth Amendment privilege against self-incrimination and consent to th e 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 e licited upon the threat of the loss of employment are compelled and inadmissible in evidence. Hen ce, 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 italici zed 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 Am endment rights and to cons ent to the use of their testimony in a subsequent prosecution, and all of this occurred wh en 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 th e regulator had either the power to bring a criminal proceeding against them or to immunize them from pr osecution without theNos. 16-2244/2369 Moody et al. v. Mich. Ga ming Control Bd. et al. Page 19

involvement of a prosecutor. Nor have the driver s pointed to anything inthe record suggesting that MGCB asked them to sign away their Fi fth 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 di d 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 privileg e 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 su ch a situation. See Lefkowitz v. Cunningham , 431 U.S. 801, 805–06 (1977) (“[O]ur cases have established that a State ma y not impose substantia l penalties because a
witness elects to exercise his Fifth Amendment right not to give incrim inating 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 poten tially 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 i nvestigation 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 selfincrimination would not have been a bar to his dismissal. The facts of this case, however, do not pr esent this issue. Here, petitioner was summoned to testify before a grand jury inan 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 againstNos. 16-2244/2369 Moody et al. v. Mich. Ga ming 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 s o, 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 distinguis hes between situations in which a public employee is aske d questions concerning pe rformance 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 privil ege against self-incrimination. The Steward’s Hearing addressed allegations ab out the drivers’ possible invol vement 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 thei r constitutional righ ts. 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 th e 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, th en, is whether MGCB needed to “offer” immunity in the form of notifying the drivers that their te stimony 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 “betw een surrendering their c onstitutional rights or their jobs,” but holding that empl oyees would “subject themselves to dismissal if they refuse toNos. 16-2244/2369 Moody et al. v. Mich. Ga ming 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 empl oyee’s or licensee’s statements from being used against her in a subsequent prosecuti on 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 eviden ce 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 doe s not support the contention that “a waiver of the privilege is implicit in any statemen t given by a public employee under threat of disciplinary action” and that under Garrity , “any such waiver would ha ve been ineffective”).
Interpreting Garrity to mean that coerced testimony cannot be us ed in a subsequent criminal proceeding, however, leaves an important question unanswered: is that effect of the Fifth Amendment privilege agains t self-incrimination a self-ex ecuting one, or must the public employer or agency affirmatively make its empl oyee, 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 cour t 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 tria l and that this “exceeds the grant articulated in Garrity .” Maj. Op. at 11. Evenif 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. Ga ming Control Bd. et al. Page 22

This is the proper lens through which to analy ze 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-pros ecutorial administrative proceedi ngs, as I discussed above. Nor
has our circuit addressed this previously. And looking to th e 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 se veral 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 th e 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, a lthough 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.