Paul GLOVER; Glover Construction Co., Inc., Plaintiffs-Appellees, v. Carlisle MABREY, III; James Dunegan; Dan Overland; Jackie Cooper; Loyd Benson; Bruce Benbrook; Bradley W. Burgess; Guy Berry; Skip Nicholson; Norman N. Hill; Gary Ridley; George Raymond; Gary Evans; Darren Saliba, Defendants-Appellants.
No. 08-7048.
United States Court of Appeals, Tenth Circuit.
June 28, 2010.
C. Alleged Booker Violation
Finally, Mr. Mendez argues that his Sixth Amendment right under Booker was violated because the district court based his sentence on facts not found by a jury beyond a reasonable doubt. We have repeatedly rejected this argument, see, e.g., United States v. Ivory, 532 F.3d 1095, 1103 (10th Cir.2008), and do so again today.
III. CONCLUSION
We AFFIRM the judgment of the district court.
David Burrage, Michael Burrage, Burrage Law Firm, Durant, OK, David W. Lee, Oklahoma City, OK, for Defendants-Appellants.
Before LUCERO, O‘BRIEN, and GORSUCH, Circuit Judges.
ORDER
TERRENCE L. O‘BRIEN, Circuit Judge.
Appellant George Raymond and Appellees Paul Glover and Glover Construction Co., Inc. separately petitioned this court for panel rehearing in the above captioned appeal. The panel has decided to grant each petition for the limited purpose of clarifying the previous Order and Judgment.
The previous Order and Judgment, Glover v. Mabrey, 2010 WL 2222488 (10th Cir. June 4, 2010), is vacated and the attached Order and Judgment is substituted in its place.
ORDER AND JUDGMENT *
Glover Construction Company and its owner, Paul Glover (collectively “Glover“) filed suit under
I. BACKGROUND
By statute, ODOT and its Commissioners are responsible for, among other things, the construction and maintenance of Oklahoma highways.
On a number of occasions, Glover and ODOT have not seen eye-to-eye on contract terms or the quality of Glover‘s work. Glover has often used administrative and judicial channels to challenge ODOT‘s contract decisions and the adequacy of its payment. A particularly contentious dispute involved construction on Oklahoma Highway 64. Glover won the contract and constructed a portion of the highway. The construction encountered major problems which Glover blamed on ODOT‘s design and ODOT blamed on Glover‘s poor workmanship and use of improper materials. The dispute was widely publicized in the media. As a result, tensions rose between Glover and ODOT.
Glover obtained a court order enjoining ODOT‘s threatened revocation of its prequalification status. While the complaint does not set forth any dates, ODOT allegedly revoked Glover‘s prequalification status while the injunction was in effect.2 Glover then filed this action. It alleged four constitutional violations: Count I, retaliation for the exercise of First Amendment rights to petition for the redress of grievances; Count II, retaliation for the exercise of Fourteenth Amendment rights to due process and a First Amendment right to speak on matters of public importance; Count III, violation of Glover‘s Fourteenth Amendment right to equal protection; and Count IV, retaliation for Glover‘s exercise of First Amendment right to free speech.
The ODOT defendants filed a motion to dismiss all claims for failure to state a claim upon which relief may be granted under
II. DISCUSSION
A. Jurisdiction
“Under the Supreme Court‘s collateral order doctrine, a district court‘s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of
Glover asserts we lack jurisdiction because the district court found its complaint “states plausible violations of Plaintiffs’ constitutional rights ... and that those rights were clearly established.” (Appellee‘s Br. at 3.) It relies on Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), where the Court held it lacked jurisdiction over an appeal by police officers because “[t]he [qualified immunity] order in question resolved a fact-related dispute about the pretrial record.” Id. at 307, 115 S.Ct. 2151 (emphasis added).
One issue is not properly before us. The district court determined the record was insufficient at this stage of the litigation to resolve the absolute immunity claims. When determining whether a defendant is entitled to absolute immunity, we employ a functional approach. See Perez v. Ellington, 421 F.3d 1128, 1133 (10th Cir.2005) (quotations omitted). The district court stated “the functions of the various Defendants, and the agency itself, ha[d] not been established by any factual record which the Court can evaluate.” (R. Vol. I at 148.) Because this is a factual determination, we do not address it on this appeal.3 Weise, 507 F.3d at 1264 (“If a district court cannot rule on the merits of a qualified immunity defense at the dismissal stage because the allegations in the pleadings are insufficient as to some factual matter, the district court‘s determination is not immediately appealable.“).
Other than in the absolute immunity context, Glover‘s jurisdictional argument has no merit. The sufficiency of a complaint is a question of law, as is the existence of a clearly established constitutional violation. See Id. at 1267 (“the denial of
B. Standard of Review
“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, — U.S. —, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quotations omitted). “Because qualified immunity is an immunity from suit rather than a mere defense to liability it is effectively lost if a case is erroneously permitted to go to trial.” Id. (quotations omitted). The “plaintiff must plead that each Government-official defendant, through his own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009). The only questions before us are whether Glover‘s complaint sufficiently alleges the individual defendants violated a constitutional right and whether the right was clearly established at the time of the defendants’ conduct. See Bryson v. Gonzales, 534 F.3d 1282, 1285 (10th Cir.2008).
We review the grant or denial of a motion to dismiss under
The ODOT defendants claim Glover failed to allege a sufficient factual basis to establish a constitutional violation. Many allegations in Glover‘s complaint are conclusory statements providing no concrete way of identifying what actions were taken, when, or in some instances by whom. A number of allegations refer generally to “ODOT,” “ODOT officials,” and “top executives,” or “an ODOT executive.” (R. Vol. 1 at 22-25, 28-29, 1118-24, 26, 28, 30, 44, 49.) Without more, these allegations provide no indication which defendant must defend against the charge. In addition, other allegations provide no dates or other information with which one might put the alleged activities in some sort of temporal context. We will not consider these general and/or conclusory allegations. See Iqbal, 129 S.Ct. at 1950 (“a court ... can begin by identifying pleadings that ... are not entitled to the assumption of truth“). We consider whether the remaining factual allegations are sufficient to “nudge [these] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
C. Count I—Retaliation for Public Criticism
The First Amendment forbids “abridging the freedom of speech, or the right of the people ... to petition the Government for a redress of grievances.”
In Pickering, the Supreme Court considered whether a teacher‘s criticism of its employer was protected speech. The Court recognized “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” 391 U.S. at 568, 88 S.Ct. 1731. To balance the “interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees,” the Court adopted a four-part test. Id. A government employee claiming a violation of his or her First Amendment rights must show 1) the speech in question involves a matter of public concern; 2) the employee‘s interest in the expression outweighs the government employer‘s interest in regulating the speech; and 3) the speech was a substantial factor driving the challenged governmental action. See Kent v. Martin, 252 F.3d 1141, 1143 (10th Cir.2001).4 If the employee establishes these elements, the employer may still defeat the claim upon a demonstration that 4) the employer would have taken the same employment action in the absence of the protected speech. Id.
Whether speech involves a matter of public concern depends on “the content, form, and context” of the speech. Connick, 461 U.S. at 148, 103 S.Ct. 1684. “[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” City of San Diego v. Roe, 543 U.S. 77, 83-84, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004). Our focus is “on the motive of the speaker and whether the speech is calculated to disclose misconduct or merely deals with personal disputes and grievances unrelated to the public‘s interest.” Lighton v. Univ. of Utah, 209 F.3d 1213, 1224 (10th Cir.2000).
Glover alleges its comments to the media blamed the increased costs of the Highway 64 project on ODOT‘s faulty design. “[T]he use of public funds and
Moving to Pickering‘s second step, ODOT has not argued it has an overriding interest in limiting Glover‘s protected speech. Without more from ODOT, the asserted public interest in learning the true cause of possibly inefficient or wasteful public expenditures would normally outweigh ODOT‘s interest in suppressing these comments. We do not decide that no interest can satisfy Pickering‘s second step, only that no such interest has yet been asserted.
Having sufficiently alleged a protected activity, we consider Glover‘s allegations as they relate to specific acts by individual defendants. Glover alleges retaliation in four different forms: (1) an investigation by Skip Nicholson, an ODOT investigator, (2) a policy instituted by Darren Saliba, an ODOT engineer, (3) statements by George Raymond, an ODOT construction engineer, and (4) the suspension of Glover‘s prequalified bidder status by the ODOT Commissioners based on recommendations from ODOT General Counsel Hill, CEO Ridley and ODOT Director Evans.
1. Skip Nicholson
Glover claims ODOT investigator Nicholson, with help and encouragement from ODOT general counsel, Norman Hill, initiated an investigation of Glover in violation of ODOT policy.5 (R. Vol. 1 at 26.) Paragraph 37 of the complaint alleges Nicholson encouraged Hill to seek a search warrant for Glover‘s “home and/or office” knowing there was no probable cause; Nicholson encouraged law enforcement officers to subpoena records from hotels where Mr. Glover stayed on vacation; Nicholson investigated insurance claim allegations unrelated to ODOT; Nicholson once called an environmental agency because trash was burned on Mr. Glover‘s property and; Nicholson and Hill caused Glover to be audited by the IRS. (R. Vol. I at 25-26.)
Other than the IRS audit, Glover does not allege Nicholson‘s (or Hill‘s) actions actually caused a third party to take any action against it. The complaint does not allege Nicholson‘s “encouragement” led to the issuance of a warrant or subpoena or a response from the (unknown) environmental agency. It does not allege Nicholson‘s insurance investigation involved contact with Glover or resulted in harm. The complaint does not claim these activities had any impact on the report recommending Glover‘s debarment. Merely “encouraging” or engaging in action is not an actionable constitutional violation unless it results in some harm to the plaintiff. A claim must assert specific injuries-in-fact caused by the individual defendants. See Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213, 1219 (10th Cir.2008) (injury-in-fact must be fairly traceable to the defendants); see also Loving v. Boren, 133 F.3d 771, 772-73 (10th Cir.1998) (plaintiff must show injury-in-fact to have standing in the First Amendment context).
Similarly, while Glover does say “Nicholson, Hill and other defendants ... unlawfully caused” an IRS audit, the complaint does not say when or how this was done. Without deciding the issue, for present purposes we assume the cost and time spent complying with an audit could satisfy the injury-in-fact requirement. Even so, the complaint does not allege the IRS investigation was without cause—a necessary element of his claim.
The Supreme Court has specifically addressed the parameters of a claim for retaliation such as the one Glover alleges here. In Hartman v. Moore, the plaintiff filed a claim for civil liability under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)7 alleging, inter alia, postal inspectors launched a criminal investigation against him without cause and they pressured the United States Attorney‘s Office to have him indicted in retaliation for his lobbying activities and criticism of the postal service. 547 U.S. 250, 254, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). The Court distinguished “ordinary” retaliatory claims from those in which the defendant caused another party to act, stating:
[T]he defendant will be a nonprosecutor, an official, like an inspector here, who may have influenced the prosecutorial decision but did not himself make it, and the cause of action will not be strictly for retaliatory prosecution, but for successful retaliatory inducement to prosecute.... Thus, the causal connection required here is not merely between the retaliatory animus of one person and that person‘s own injurious action, but between the retaliatory animus of one person and the action of another.
Id. at 262, 126 S.Ct. 1695. In that situation, the Court determined a plaintiff must plead and prove “that the nonprosecuting official acted in retaliation, and must also show that he induced the prosecutor to bring charges that would not have been initiated without his urging.” Id. In other words, “[s]ome sort of allegation ... is needed both to bridge the gap between the nonprosecuting government agent‘s motive and the prosecutor‘s action, and to address the presumption of prosecutorial regularity.” Id. at 263, 126 S.Ct. 1695.
While Hartman addressed only a claim based on a criminal prosecution, we have extended its principles to circumstances similar to those presented here. See McBeth v. Himes, 598 F.3d 708 (10th Cir. 2010). McBeth, a licensed day care operator claimed, Himes, a police investigator, complained to the Department of Human Services (DHS) that she was not cooperating with his investigation in retaliation for her consulting an attorney. She alleged she was informed by DHS that her license would be suspended because of the complaint. “Directly as a result of this ‘coercion,’ ... she surrendered her license.” Id. at 713. Thus, McBeth claimed Himes caused her to lose her license in retaliation for exercising her First Amendment rights.
Himes contended “his alleged complaint to DHS could not have caused DHS to seek suspension of McBeth‘s daycare license because DHS already possessed the legal authority to suspend McBeth‘s license and would have done so even in the absence of his complaint.” Id. at 717. Although McBeth argued Hartman was limited to claims of retaliatory prosecution, we disagreed. We held the retaliation claim against Himes was actually a “successful retaliatory inducement” claim. Id. at 719. Thus, “the logic of [Hartman‘s] rule necessitates its application ... where ‘multi-layered causation’ complicates the court‘s inquiry into whether the defendant‘s retaliatory animus caused the adverse action that harmed the plaintiff.” Id. at 720.
The authority of the IRS to—and its decision to in fact—conduct an audit triggers the multi-layered causation pleading requirements. Glover must allege (and ultimately prove) that the officials who undertook the allegedly adverse action, IRS agents, lacked cause to do so. The blanket allegation of “unlawfully caus[ing]” does not allege with sufficient specificity that the IRS lacked cause to conduct any audit which took place. (R. Vol. I at 26.) Because the complaint fails to allege Nicholson‘s investigation caused harm to Glover, the First Amendment retaliation claim against Nicholson fails to state a constitutional violation.
2. Darren Saliba
Glover alleged while ODOT engineer Saliba supervised its contracts, he “adopted an arbitrary and unreasonable policy of never approving any claims by [Glover], no matter how reasonable, after [Glover] had been awarded a contract with ODOT.” (R. Vol. I at 27.) Glover points to two instances where “Saliba arbitrarily denied the use of [recycled asphalt] thereby increasing [Glover]‘s costs” causing Glover to file a claim, and “on another occasion, ... Saliba would not approve an additional cost for disposing of ... debris.” (Id. at 27-28) Glover alleged Saliba‘s denials were in retaliation for Glover‘s claim ODOT had poorly designed defective roads and sought redress in court. (See id.)
While Glover is not required to prove its case in the pleadings, the complaint must allege facts which plausibly support the allegation that Saliba‘s alleged actions involved a retaliatory motive. See Iqbal, 129 S.Ct. at 1952 (a First Amendment complaint alleging a policy against post-September-11 detainees “must contain facts plausibly showing that petitioners purposefully adopted a policy ... because of ... race, religion, or national origin“). We examine the allegations as they relate to Saliba‘s actions.
The complaint alleges that each defendant acted “in concert” with each other, presumably to link the commissioners’ and other defendants’ retaliatory intent to Saliba. (R. Vol. I at 20.) However, there are no factual allegations connecting Saliba to the commissioners or any other defendant. For instance, there are no allegations Saliba regularly works with the ODOT commissioners, Hill, Ridley or Evans or that he speaks with one or more of them with any regularity. It does not allege he has
Even assuming the complaint alleges a plausible connection between Saliba and these defendants, it fails to allege any level of temporal proximity between Saliba‘s alleged policy against Glover and Glover‘s public speech. While it is safe to assume the two contract disputes occurred after the public fight over Highway 64, we have no indication of whether Saliba‘s actions took place within days, weeks, or even years of Glover‘s public statements. The complaint provides nothing which actually ties the Highway 64 comments and Saliba‘s actions together except the categorical statement that Saliba “took [his] course of action in retaliation for [Glover] seeking redress in court and because Glover published [derogatory comments on Highway 64].” (R. Vol. I at 28.) In sum, as the complaint is worded, it contains no allegation of a connection between Saliba‘s work and the commissioners or even an explanation of how Saliba‘s decisions related to Glover‘s public comments. The facts—two alleged contract disputes—do not rule out the possibility of retaliatory motive, “and thus at some level they are consistent with a viable First Amendment claim, but mere possibility is not enough.” Moss v. U.S. Secret Serv., 572 F.3d 962, 971-72 (9th Cir.2009). Glover fails to “nudge[][his] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
3. George Raymond
Glover alleges Raymond, an ODOT construction engineer and an “executive officer,” is vested with the discretionary power to award contracts and recommend termination of certificates to do business with ODOT. (Id. at 20.) Raymond, along with others, allegedly became “actively hostile,” and at some unspecified time proposed Glover be suspended from any ODOT contracts. At another unknown point, Raymond allegedly “stated neither Mr. Glover nor any member of his family, would ever get a contract with ODOT in the future.” (Id. at 28.)
For much the same reasons Glover failed to state a claim against Saliba, his allegations involving Raymond also fail. Most importantly, the complaint contained no allegation Raymond‘s actions were based on Glover‘s public criticism of ODOT, instead it alleged Raymond‘s statements were the result of his frustration with Glover‘s litigiousness. See Section II.D. infra. Even inferring a dual motive on Raymond‘s part, there is no allegation regarding the time frame or the recipient of any “recommendations” made by Raymond. Critically, there is no allegation that Raymond was involved in the report to the Commissioners or took any actions based on his alleged statements. There is no allegation connecting Raymond to Glover‘s loss of a certificate to do business with ODOT due to his public comments on ODOT‘s performance. In other words, Glover has failed to allege Raymond was personally involved in any violation of Glover‘s First Amendment rights. See Pignanelli, 540 F.3d at 1219 (injury-in-fact must be fairly traceable to the defendants).
Glover‘s complaint asserts ODOT CEO Ridley, ODOT Director Evans, and ODOT general counsel Hill prepared a report which recommended Glover be designated an “irresponsible bidder” and suspended from obtaining future work with ODOT because of Glover‘s comments to the media regarding the Highway 64 project. In paragraph 50, Glover alleges “a large portion of the report was concerning an investigation of Highway 648 wherein ODOT was being blamed for poor design.” (R. Vol. I at 30.) This allegation, while tenuous, connects Glover‘s statements to the media during the Highway 64 dispute to Ridley, Evans and Hill‘s motivation to recommend Glover‘s debarment in an official report. Paragraph 53 alleges the ODOT Commissioners unanimously adopted this report even though it listed “lawfully protected acts” as a basis for suspension. (R. Vol. I at 29.) Although we do not know precisely what “lawfully protected acts” were listed, we may reasonably infer Glover‘s public criticism was among them. Thus construed, the complaint alleges Ridley, Evans and Hill authored the report in retaliation for Glover‘s speech and the Commissioners, knowing the retaliatory basis for the recommendation, approved the recommendation and suspended Glover from working for ODOT. These allegations are sufficient to state a claim for retaliation in violation of Glover‘s First Amendment right to freedom of speech.
D. Count II—Retaliation for Petitions for Redress
Paragraph 47 of the complaint alleges the report specifically referred to Glover‘s prior judicial and administrative challenges (Glover‘s petitions for redress) as “a primary factor” for its recommendation Glover be disqualified from bidding. (R. Vol. I at 29.) As discussed above, the allegations regarding the report sufficiently state a constitutional claim if the speech on which the claim is based is protected. The question is whether Glover must allege its petitions for redress involved a matter of public concern in order to state a claim for relief.
In Van Deelen v. Johnson, we reversed the district court‘s dismissal of a private citizen‘s § 1983 claim alleging county authorities retaliated against him for filing a lawsuit and eight tax appeals. 497 F.3d 1151, 1153 (10th Cir.2007). We rejected the district court‘s conclusion that a private citizen‘s petitions must involve a matter of public concern and stated:
This is, of course, not to say that the “public concern” test proffered by defendants and adopted by the district court has no place in the law of the First Amendment. Rather, the test quite properly applies to claims brought by government employees—but its scope reaches no further.
Id. at 1156. Arguably, this statement absolves Glover from having to plead its petitions involved a matter of public concern as it is not a public employee. However, a public contractor‘s claim based on its right to petition was not at issue in Van Deelen.
In Gable v. Lewis, a female operator of an automobile towing company brought a § 1983 action against the Ohio Highway Patrol. 201 F.3d 769, 770 (6th Cir.2000). She alleged the Patrol removed her from a towing referral list in retaliation for her lawsuit claiming sex-based discrimination in the Patrol‘s allocation of towing business. The Patrol argued the petition clause was inapplicable because the operator‘s discrimination complaint was personal, not “a matter of ‘public concern.‘” Id. The court disagreed.
The Sixth Circuit began its analysis by stating, “[t]he petition clause is analytically distinct from, although related to, the free speech clause.” Id. at 771. It looked to the Supreme Court‘s decision in California Motor Transp. v. Trucking Unlimited, 404 U.S. 508, 510-11, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), as authority supporting the protection of personal interests under the First Amendment right to petition.9 The court then examined the justifications for limiting public employees’ speech and found “the reason for the ‘public concern’ test ... [did] not apply ... because the plaintiff was not a governmental employee subject to the discipline of a governmental employer.” Id. Rather, “[s]he was simply a citizen offering services to a state agency.” Id. It noted “no authority in the Sixth Circuit limit[ed] petitioning activity by public employees to matters of ‘public concern’ either generally or in the governmental employment context.” Id. at 771-72. Based on this reasoning, the court held “there is no basis in our First Amendment jurisprudence for applying [the] public concern test to petitioning activity by a private business woman who is simply supplying services to a governmental agency as an independent contractor.” Id. at 772.
In Heritage Constructors, Inc. v. City of Greenwood, Ark., the Eighth Circuit applied a different analysis. 545 F.3d 599 (8th Cir.2008). There, a public contractor claimed the City declared it was no longer a “responsible bidder” in retaliation for its prior arbitration claim against the city. Id. at 600. The Eighth Circuit did not rely on California Motor Transp., but instead looked to Board of County Comm‘rs v. Umbehr.10 Id. at 601. The court found instructive Umbehr‘s companion opinion, O‘Hare Truck Serv. Inc. v. City of Northlake, 518 U.S. 712, 715, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996), which applied the Umbehr rule to “a regular provider of services.” Id. In O‘Hare the contractor claimed he was “removed from an official
The Eighth Circuit, unlike the Sixth Circuit, has held, “a public employee‘s right-to-petition claim must involve a matter of public concern, just as a freedom-of-speech claim must.” Id. The court concluded “[t]he Umbehr and O‘Hare cases hold ... the same framework and analysis apply to government contractors as to government employees.” Id. at 602. Because Heritage did not allege its petition was a matter of public concern, the court affirmed the district court‘s grant of summary judgment to the defendants. Id. at 603.
We find the Eighth Circuit‘s analysis compatible with our precedent. In this Circuit, a public employee‘s right to petition for redress of grievances is analyzed no differently than a public employee‘s right to free speech. See Schalk v. Gallemore, 906 F.2d 491, 498 (10th Cir.1990) (“In the instant case, [the public employee‘s] right to petition is inseparable from her right to speak. As such, we see no reason to subject this claim to a different sort of analysis.“). A public employee‘s claim for retaliation based on his right to petition must state the petition involved a matter of public concern. Martin v. City of Del City, 179 F.3d 882, 887-89 (10th Cir.1999) (involving the alleged retaliation for a municipal grievance appeal). We have determined “that a public employee plaintiff who has ‘petitioned’ is in no better position than one who has merely exercised free speech.” Id. at 889 (quotations omitted). Given this precedent and Umbehr‘s counsel that we apply the public concern requirement to a public contractor‘s speech, 518 U.S. at 674, 116 S.Ct. 2342, we hold the public concern requirement applies equally to a public contractor‘s retaliation claim based on the right to petition. Glover alleges only private contract disputes with ODOT based on the terms of its contracts. Because it alleges nothing which may elevate the issues to a matter of public concern it has failed to state a claim on which relief may be granted.
E. Count III—Retaliation for Exercising Due Process
The Fourteenth Amendment provides: “No State shall ... deprive any person of life, liberty, or property, without due process of law.”
Glover argues it need not plead a property or liberty interest because its due process claim is similar to its First Amendment claim which does not require such interest. We disagree. To the extent Glover argues retaliation for his past petitions for redress, this is simply an attempt to dress First Amendment claims in Fourteenth Amendment garb. We have already addressed the First Amendment claim in its proper context and will not accept the invitation to do the same again in this proposed context. To the extent he is claiming a due process violation in the debarment proceedings, our case law makes clear “[i]n order to make out a claim for a violation of due process, a claimant must have a liberty or property interest in the outcome of the proceedings.” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir.2009).
Glover states, “[i]f there must be a property interest, then Defendants’ contention that Glover did not have a property interest is just incorrect. ... [T]he Oklahoma Supreme Court has determined that a contractor who has or should have been accepted as the lowest responsible bidder has a property interest.” (Appellee‘s Brief at 29) (citing Rollings Constr., Inc. v. Tulsa Metro. Water Auth., 745 P.2d 1176, 1179 (Okla.1987)). Rollings is inapposite.
In Rollings, a contractor filed suit because the second lowest bidder was awarded a contract. In fact, the Oklahoma Supreme Court held “Rollings had no property rights in Contract 5 until such time as it was or should have been determined to have been the lowest responsible bidder by the Board of Trustees of the Water Authority, and that event did not occur.” Id. We are not considering ODOT‘s activities under its contracts or an award of a contract to a higher bidder. Glover‘s claims concern the removal of the prequalified status. While the revocation or removal of a license or certificate “essential in the pursuit of a livelihood requires procedural due process under the Fourteenth Amendment,” Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1150 (10th Cir.2001) (quotations omitted), Oklahoma law clearly states pre-qualification to bid on contracts “does not constitute a license.”
F. Count IV—Equal Protection
The Fourteenth Amendment also states “No State shall ... deny to any person within its jurisdiction the equal protection of the laws.”
“[E]qual protection jurisprudence has typically been concerned with governmental classifications that affect some groups of citizens differently than others.” Engquist v. Oregon Dept. of Agric., 553 U.S. 591, 128 S.Ct. 2146, 2152, 170 L.Ed.2d 975 (2008) (quotations omitted). However, the Supreme Court has recognized “an equal protection claim can in some circumstances be sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that she has been irrationally singled out as a so-called ‘class of one.‘” Id. Glover relies on Village of Willowbrook v. Olech, where a private citizen claimed the village retaliated against her for bringing an earlier lawsuit. 528 U.S. 562, 563, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Following her lawsuit, the village required her to grant an easement on her property more than double what it required of her neighbors in order to connect her water supply. The Court held her complaint stated a valid claim under the
Recently the Supreme Court refused to recognize a “class of one” equal protection claim in the public employee context. In Engquist, a public employee brought a “‘class-of-one’ equal protection claim alleging she was fired, not because she was a member of an identified class (unlike her race, sex, and national origin claims), but simply for ‘arbitrary, vindictive, and malicious reasons.‘” 128 S.Ct. at 2149. The Court reasoned the Pickering analysis, as well as other Supreme Court cases distinguishing the scope of a public employee‘s right to bring a claim against a government employer, applied equally to Engquist‘s claim. Id. at 2151-52. It found the “significant circumstance” in Olech was the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed.” Id. at 2153. Unlike Olech, however, the government‘s role as employer “involve[s] discretionary decisionmaking based on a vast array of subjective, individualized assessments.” Id. at 2154. Because “an allegation of arbitrary differential treatment” could likely be made in every instance of a personnel decision by the government, the Court concluded “the class-of-one theory of equal protection has no application in the public employment context.” Id. at 2156.
We have applied Engquist to public employees’ equal protection claims. See Pignanelli, 540 F.3d at 1220; see also Kelley v. City of Albuquerque, 542 F.3d 802, 822 (10th Cir.2008). While we have not considered Engquist in the public contractor context, at least one court has applied it to reject such a claim. See Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1274 (11th Cir.2008). We need not decide this issue today. Glover‘s class-of-one claim fails for an independent reason.
Glover has failed to allege, as it must, the identity or characteristics of other similarly situated contractors and how those similarly situated contractors were treated differently. See Robbins, 519 F.3d at 1253 (allegations give “no explanation of the characteristics of [those] similarly situated and how they were allegedly treated differently“). Unlike the plaintiff in Olech, who alleged specific property owners received more favorable treatment, Glover does not identify any contractor who was treated differently. The complaint contains no instance where Saliba granted similar requests made by other contractors, no similar circumstances where another contractor was not investigated, and no specific action taken by top executives that would not have been taken by supervisors. Nor does it identify a single similarly-situated contractor which did not lose its prequalification status after numerous legal challenges or statements to the media. Without additional information, Glover‘s class-of-one equal protection claim fails to state a claim as to any defendant.
G. Qualified Immunity
The Supreme Court has clearly stated that the speech of “independent contractors [is] protected, and the Pickering balancing test, adjusted to weigh the government‘s interests as contractor rather than as employer, determines the extent of [the] protection.” Umbehr, 518 U.S. at 673, 116 S.Ct. 2342; see also Worrell v. Henry, 219 F.3d 1197, 1205 (10th Cir.2000) (“the government may not deny a benefit to a person on a basis that infringes his constitutionally protected freedom of speech even if he has no entitlement to that benefit” (quoting Umbehr)). Glover alleged the report, the recommendation and the Board‘s adoption of the recommendation
III. CONCLUSION
Count I sufficiently alleges the individual ODOT Commissioners, and ODOT employees Hill, Ridley and Evans wrote or adopted a recommendation that Glover be denied its prequalified bidder status in retaliation for its public criticisms of the Highway 64 design in violation of the First Amendment. Glover‘s constitutional protection was clearly established at the time these individual defendants engaged in the alleged retaliation. The district court‘s denial of these defendants’ motion to dismiss and claim of qualified immunity is AFFIRMED. The remaining allegations in the Glover‘s complaint fail to state a claim for which relief may be granted against any defendant.11 The district court‘s denial of all the ODOT defendants’ motion to dismiss as to Count II, Count III and Count IV is REVERSED. We REMAND for further proceedings consistent with this order.