UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

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 (E.D. Okla.) (D.C. No. 6:07- CV-00112-FHS)

ORDER AND JUDGMENT *

Before LUCERO , O’BRIEN , and GORSUCH , Circuit Judges.
Glover Construction Company and its owne r, Paul Glover (collectively “Glover”) filed suit under 42 U.S.C. § 1983 against the Oklahoma Department of Transportation

* This order and judgment is an unpublis hed decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### June 4, 2010
Elisabeth A. Shumaker Clerk of Court- 2 - (ODOT) Commissioners and six department officials (collectively the ODOT defendants). 1 The complaint alleged the ODOT defe ndants retaliated against Glover in violation of its First and F ourteenth Amendment rights. The ODOT defendants moved to dismiss the complaint for failu re to state a claim upon whic h relief could be granted and asserted the affirmative defenses of absolute and qualified immunity. The district court denied the motion to dismiss and rejected ODO T’s affirmative defens es. We affirm in part, reverse in part and remand for further proceedings.
I. BACKGROUND By statute, ODOT and its Commissioners are responsible for, among other things, the construction and maintenance of Oklahoma highways. Okla. Stat . Ann. tit. 69, § 304 (2009). ODOT construction pr ojects are contracted through a competitive bidding process governed by Oklahom a’s Competitive Bidding Act of 1974, which authorizes ODOT to prequalify contactors to bid on projects. Okla. Stat . Ann. tit. 69, § 1101 (2009); Okla. Stat. Ann. tit. 61, § 118 (2009). Acco rding to Glover’s sec ond amended complaint, it has contracted with ODOT to perform cons truction work for almost thirty years and was a prequalified bidder. On a number of occasions, Glover and ODOT have not seen eye-to-eye on

1 The defendants included the Commission members (C arlisle Mabrey, III, James Dunegan, Dan Overland, Jackie Coope r, Loyd Benson, Bruce Benbrook, Bradley Burgess, and Guy Berry). Other named ODO T officials were Gary Ridley (chief executive of ODOT), George Raymond (exe cutive officer of ODOT), Gary Evans (ODOT director), Darren Salib a (ODOT division engineer), Normal Hill (ODOT general counsel), and Skip Nicholson (ODOT investigator). All defe ndants were sued in their individual capacity.- 3 - contract terms or the quality of Glover’s work . Glover has often used administrative and judicial channels to challenge ODOT’s co ntract 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 was subject to major problems which Glover blamed on ODOT’s design and ODOT blamed on Glover’s poor workmanshi p and use of improper materials. The dispute was widely publicized in the media. As a result of these di sagreements, tensions rose between Glover and ODOT. Glover obtained a court or der enjoining ODOT’s thre atened revocation of its prequalification status. While the comp laint does not set forth any dates, ODOT allegedly revoked Glover’s prequalifica tion status despite the court order. 2 Glover then filed this action. It has alleged four cons titutional violations: Count I, retaliation for the exercise of First Amendment rights to petitio n for the redress of grievances; Count II, retaliation for the exercise of Fourteenth Am endment 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 eq ual protection; and Count IV, retaliation for Glover’s exercise of First Am endment 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 Rule 12(b)(6) of the Federal Rules of Civil

2 The Oklahoma Court of Civil Appeals reversed the injunc tion on August 10, 2007. At oral argument ODOT’s counsel stat ed he believed the injunction was dissolved after ODOT revoked Glover’s prequalification status.- 4 - Procedure. The motion also asserted all defendants were entitled to qualified immunity and Hill (ODOT’s counsel), Nicholson (a n ODOT investigator), and the Commission members were entitled to absolu te immunity. Stating the decision was a “close call,” the district court denied the motion to dismiss and found Glover sufficiently alleged facts to support its claims. (R. Vol. I at 144.) It determined the ODOT defendants were not entitled to qualified immunity because retali ation for exercising First Amendment rights is a clearly established constitutional violation. It denied absolute immunity because the record was not sufficiently developed to ap ply the necessary “functional” analysis set forth in Forrester v. White , 484 U.S. 219, 229 (1988) (the inquiry focuses on “the nature of the function performed [by the official], not the identity of the actor who performed it”). This interlocutory appeal followed.
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 la w, is an appealable ‘final decision’ within the m eaning of 28 U.S.C. § 1291 notw ithstanding the absence of a final judgment.” Weise v. Casper , 507 F.3d 1260, 1263 (10th Cir. 2007) (citations and quotations omitted). “[T]he Supreme Court has limited appeal s of interlocutory decisions denying the defense of qualified immunity to cases presenting neat abstract issues of law.” Id. at 1263-64 (quotations omitted). “[P] retrial determinations of evidentiary sufficiency in qualified immunity cases are not immediately appealable.” Id. at 1264. Glover asserts we lack juri sdiction because the district court found its complaint- 5 - “states plausible violations of Plaintiffs’ constitutional rights . . . and that those rights were clearly established.” (App ellee’s Br. at 3.) It relies on Johnson v. Jones , 515 U.S. 304, 319-20 (1995), where the Court held it lacked jurisdiction over an appeal by police officers because “[t]he [qualified imm unity] order in question resolved a fact -related dispute about the pretrial record.” Id. at 307 (emphasis added). There is one issue that is not properly befo re us. The district court determined the record was insufficient at this stage of the litigation to re solve the absolu te immunity claims. When determining whether a defend ant is entitled to abso lute immunity, we employ a functional approach. See Perez v. Ellington , 421 F.3d 1128, 1133 (10th Cir. 2005) (quotations omitted). The district c ourt stated “the functions of the various Defendants, and the agency itself, ha[d] not be en 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 See 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

3 The denial of absolute or qualified immunity on a motion to dismiss does not preclude the ODOT defendants from raising the issue in a later motion for summary judgment when the record is more fully developed. See Weise , 507 F.3d at 1265 (recognizing “the denial of qualified immunity at the dismissal stage does not preclude a renewal of that defense at summary judgm ent after further factual development has occurred”).- 6 - clearly established constitutional violation. See Id. at 1267 (“the denial of qualified immunity on a motion to di smiss constitutes a legal deci sion because Rule 12(b)(6) requires a court to accept as true all well-plea ded facts in the comp laint”). Because the remaining issues involve questions of law rath er than fact, we have jurisdiction over this interlocutory appeal.
B. Standard of Review “The doctrine of qualified immunity pr otects government officials from liability for civil damages insofar as th eir conduct does not violate cl early establishe d statutory or constitutional rights of which a reas onable person would have known.” Pearson v. Callahan , 129 S. Ct. 808, 815 (20 09) (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 indi vidual actions, has violated the Constitution.” Ashcroft v. Iqbal , --- U.S. ---, 129 S. Ct. 1937, 1948 (2009). The only questions before us are whether Glover’s complaint alleges the defendants violated a constitutional right a nd whether the right was clearl y 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 moti on to dismiss under Rule 12(b)(6) de novo, “accepting all well-pleaded factual allegati ons in the complaint as true.” Howard v. Waide, 534 F.3d 1227, 1242-43 (10th Cir. 2008). To withstand a motion to dismiss, a “complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.’” Robbins v. Okla. ex rel. Dep't of Soc. Servs., 519 F.3d 1242, 1247- 7 - (10th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). The purpose of this “plausibility ” requirement is “to weed out claims that do not in the absence of additional allegations have a reasonable prospect of success [ and ] inform the defendants of the actual grounds of the claim against them.” Id. at 1248 (emphasis added). Applied to all civil actions, the Twombly standard “demands more than an unadorned the-defendant-unlawfully-harmed- me accusation” and re quires more than “naked assertions devoid of factual developm ent . . . more than a sheer possibility that a defendant has acted unlawfully.” Iqbal , 129 S. Ct. at 1949 (quotations omitted). The necessary degree of specificity is highly dependent on the context and type of case. Robbins , 519 F.3d at 1247. The complaint “must contain either direct or inferential allegations respecting all the material elemen ts necessary to sustain a recovery under some viable legal theory.” Bryson , 534 F.3d at 1286 (q uotations omitted). 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 nu mber of allegations refer generally to “ODOT,” “ODOT officials,” and “top executives,” or “an ODOT executive.” (R. Vol. 1 at 22-25, 28-29, ¶¶ 18-24, 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 info rmation 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- 8 - pleadings that . . . are not entitled to the assu mption 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. C. Count I - Retaliation for Public Criticism The First Amendment forbids “a bridging the freedom of speech, or . . . the right of the people . . . to petition the Government for a redress of grievances.” U.S. Const. Amend. I. It is well-established “the Fi rst Amendment bars retaliation for protected speech.” Crawford-El v. Britton , 523 U.S. 574, 592 (1998); see also Wilkie v. Robbins , 551 U.S. 537, 555 ( 2007) (“longstanding recognition that the Government may not retaliate for exercising First Amendment speec h rights”). Whether particular speech is protected depends on the nature of the expression as well as the speaker’s relationship to the government. For example, the speech of a private citizen generally enjoys broader protections than the speech of public employees or public contractors. See Bd. of Comm’rs, Wabaunsee Cty. v. Umbehr , 518 U.S. 668, 673 (1996 ) (public contractor); Connick v. Myers , 461 U.S. 138, 146 (1983) (government employee); and Pickering v. Bd. Of Educ. of Twp. High Sc h. Dist. 205, Will County, Ill. , 391 U.S. 563, 568 (1968) (public high school teacher). The Suprem e Court has recently reiterated corporate entities are entitled to the protections of the Fi rst Amendment and shou ld not be “treated differently under the First Amendment simply because they are not ‘natural persons.’” Citizens United v. Fed. Election Comm’n. , --- S. Ct. ----, 2010 WL 183856, at *20 (2010).
In Pickering , the Supreme Court considered whet her a teacher’s criticism of its employer was protected speech. The Court reco gnized “the State ha s interests as an- 9 - employer in regulating the speech of its empl oyees that differ significantly from those it possesses in connection with regulation of th e speech of the citizenry in general.” 391 U.S. at 568. To balance the “interests of the teacher, as a citizen, in commenting upon matters of public concern and th e 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 go vernmental action. See Kent v. Martin , 252 F.3d 1141, 1143 (10th Cir. 2001). 4 If the employee establishes thes e elements, the employer may still defeat the claim upon a demonstration that (4 ) the employer would have taken the same employment action in the absenc e of the protected speech. Id.

4 The Supreme Court recently modified the Pickering test as applied to public employees. See Garcetti v. Ceballos , 547 U.S. 410 (2006); s ee also Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d 1192, 1202 (10th Cir. 2007) (describing the

“ ‘Garcetti/Pickering ’ analysis”). In Garcetti , the Court determined sp eech pursuant to an employee’s official duties is not protected be cause to so hold “w ould commit state and federal courts to a new, permanent, and in trusive role, mandating judicial oversight of communications between and am ong government employees and their superiors in the course of official business.” Garcetti , 547 U.S. at 423. As a result, whether an employer has permissibly acted in response to an employee’s speech now contains Pickering’s four elements and, in addition, an initial elemen t considering “whether the employee speaks pursuant to his official duties.” Brammer-Hoelter , 492 F.3d at 1202 (quotation omitted)

. The first three elements are issues of law to be decided by the court; the last two are factual issues to be d ecided by the factfinder. Id. at 1203. The Supreme Court has yet to speak on whether or how this modification may affect the analysis in the context of an independent contractor. In the absence of guidance from the Co urt we decline to independently do so.- 10 - In this case, Glover’s lawsuit was brought in its capacity as a public contractor. A public contractor’s retaliation claim based on its criticism of the contracting government agency is protected activ ity if it can pass the “ Pickering balancing test, adjusted to weigh the government’s interests as contractor rather than as employer . . . .” Umbehr , 518 U.S. at 673. Thus, to pass the first hurdle, Glover must allege its speech involved a matter of public concern. Whether speech involves a matter of pub lic concern depends on “the content, form, and context” of the speech. Connick , 461 U.S. at 148. “[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 pub lic at the time of publication.” City of San Diego v.
Roe , 543 U.S. 77, 83-84 (2004). Our focus is “on the motive of the speaker and whether the speech is calculated to disclose misconduc t 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 me dia blamed the increased costs of the Highway 64 project on ODOT’s faulty design. “[T]he use of public funds and . . . the objectives, purposes and mission” of a government agency are “well within the rubric of matters of ‘public concern.’” Schrier v. Univ. of Colo. , 427 F.3d 1253, 1263 (10th Cir. 2005) (quotation omitted); see also Gardetto v. Mason , 100 F.3d 803, 814 (10th Cir. 1996) (“persons able to offer a well-informed perspective on expenditures of public funds may be especially valuable to public debate” ). It claims the speech concerned “when and how a public roadway fail[ed] . . . [and] relate[d] to the expenditure of tax funds by- 11 - government officials.” (R. Vol. I at 25.) We agree. Glover sufficiently alleged its public comments regarding ODOT’s poor design of Highway 64 was protected speech. See Lancaster v. Indep. Sch. Dist. No. 5 , 149 F.3d 1228, 1234 (1 0th Cir. 1998) (speech calculated to disclose wrongdoing or ineffici ency in the conduct of official duties). Moving to Pickering’s second step, ODOT has not argued it has an overriding interest in limiting Glover’s protected spee ch. Without more fro m ODOT, the asserted public interest in learning the true cause of substantial public expenditures would normally outweigh ODOT’s inte rest 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 ac tivity, we consider Glover’s allegations as they relate to specific acts by individual de fendants. Glover alleges retaliation in three different forms: (1) an investigation by Skip Nicholson; (2) a polic y instituted by Darren Saliba, an ODOT engineer and (3) the suspension of Glover’s prequalified bidder status.
1. Skip Nicholson Glover claims Nicholson, with help a nd encouragement from an ODOT attorney, Norman Hill, initiated an i nvestigation of Glover in violation of ODOT policy. 5 (R. Vol. 1 at 26.) Paragraph 37 of the complaint al leges Nicholson encouraged Hill to seek a search warrant for Glover’s “home and/or office” knowing there was no probable cause;

5 Allegations of policy violations are i rrelevant because Section 1983 “does not provide a remedy for abuses that do not violate federal laws.” Collins v. City of Harker Heights , 503 U.S. 115, 119 (1992).- 12 - Nicholson encouraged law en forcement to subpoena reco rds from hotels where Mr. Glover stayed on vacation; Ni cholson investigated insuran ce claim allegations unrelated to ODOT; Nicholson once called an environm ental agency because trash was burned on Mr. Glover’s property and; Nic holson 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 issuan ce of a warrant or su bpoena or a response from the (unknown) environmen tal agency. It does not a llege Nicholson’s insurance investigation involved contact with Glover or resulted in ha rm. 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 plainti ff. A claim must assert specific injuries-infact 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 (1 0th 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 IR S audit, the complaint does not say when or how this was done. Without deciding the issue, for present pur poses we assume the cost and time spent complying with an audit coul d satisfy the injury-in-fact requirement. Even so, the complaint does not allege the IRS investiga tion was without cause – a necessary element- 13 - of his claim. 6 The Supreme Court has specifically addr essed 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 (1971) 7 alleging, inter alia , postal inspectors launched a criminal investigation against him without cause and they pressured the Unite d States Attorney’s Office to have him indicted in retaliation for his lobbying activ ities and criticism of the postal service. 547 U.S. 250, 254 (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 prosec utorial decision but did not himself make it, and the cause of action will not be strictly for retaliatory prosecution, but for successful retaliato ry 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. In that situation, the Court dete rmined a plaintiff must plead and prove “that

6 To be sure, in some circumstances “[a] n act taken in retaliation for the exercise of a constitutionally protected ri ght is actionable under § 1983 ev en if the act, when taken for a different reason, woul d have been proper.” DeLoach v. Bevers , 922 F.2d 618, 620 (10th Cir. 1990) (quoting Matzker v. Herr , 748 F.2d 1142, 1150 (7th Cir.1984). In DeLoach , we held a police detective could not “hide behind the decisions of others involved in DeLoach’s arrest and pros ecution if she deliberately conceals and mischaracterizes excu lpatory evidence.” Id . at 621. We have also held that “[p]rison officials may not retaliate against or harass an inmate because of the inmate’s exercise of his constitutional rights . . . . [a nd] [t]his principle applies ev en where the action taken in retaliation would be othe rwise permissible.” Peterson v. Shanks , 149 F.3d 1140, 1144 (10th Cir. 1998) (quotations and citations om itted). But here, Glover’s claim does not rely on any direct action by Nicholson, nor does he allege Nicholson misled the IRS.

7 “[A] Bivens action is the federal analog to su its brought against state officials under Rev. Stat. § 1979, 42 U.S.C. § 1983.” Hartman , 547 U.S. 254, n.2.- 14 - the nonprosecuting offici al 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 a llegation . . . is needed both to bridge the gap between the nonprosecuting government agen t’s motive and the prosecutor’s action, and to address the presumption of prosecutorial regularity.” Id . at 263. While Hartman addressed only a claim based on a criminal prosecution, we have extended its principles to circumstance s 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 inves tigation in retaliation for her consulting an attorney. She alleged she was informed by DHS that her license would be suspended because of the comp laint. “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 Fi rst Amendment rights. Himes contended “his alleged complaint to DHS could not have caused DHS to seek suspension of McBeth’s daycare licen se because DHS already possessed the legal authority to suspend McBeth’s license and woul d 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 he ld the retaliation claim against Himes was actually a “successful retalia tory 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- 15 - the adverse action that harmed the plaintiff.” Id . at 720. The authority of the IRS to – and its decisi on to in fact - conduct an audit triggers the multi-layered causation plea ding requirements. Glover mu st allege (and ultimately prove) that the officials who undertook the allegedly adverse action, the IRS, 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 th e complaint fails to allege Ni cholson’s investigation caused harm to Glover, the First Ame ndment retaliation claim agains t Nicholson fails to state a constitutional violation.
2. Darren Saliba Glover alleged while Saliba s upervised 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 c ontract with ODOT.” (R. Vol. I at 27.) Glover points to two instan ces where “Saliba arbitrarily denied the use of [recycled asphalt] thereby increasing [Glover]’s costs” causing Glover to f ile a claim, and “on another occasion, . . . Saliba wo uld not approve an additional cost for disposing of . . . debris.” ( Id. at 27-28) Glover alleged Saliba’s deni als were in retaliation for Glover’s claim ODOT had poorly designed defective ro ads 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 th at Saliba’s alleged actions involved a retaliatory motive. See Iqbal , 129 S. Ct. at 1952 (a Firs t Amendment complaint alleging a policy against post-September-11 detainees “m ust contain facts plausibly showing that- 16 - petitioners purposefully adopted a policy . . . b ecause of . . . race, religion, or national origin”). Lets 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 fa ctual allegations connecting Saliba to the commissioners or any other defendant. Fo r 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 ever worked in proximity to them. “A claim has facial pl ausibility when the pl aintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal , 129 S.Ct. at 1949. If it were reasonable to assume Saliba worked in concert with these defendants, it would also be reasonable to assume any employee from any of the twenty-seven Central Office Divisions ( see http://www.okladot.state. ok.us/hqdiv/indexg.htm ) or any of the eight field divisions from across the state ( see http://www.okladot.sta te.ok.us/flddiv.htm ) also worked in concert with them. Such an assu mption strains credulity. Even assuming the complaint alleges a plausible connection between Saliba and these defendants, it fails to allege any le vel of temporal proximity between Saliba’s alleged policy against Glover a nd Glover’s public speech. While it is safe to assume the two contract disputes occurred after the pu blic 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 complain t provides nothing which actually ties the- 17 - Highway 64 comments and Saliba’s actions toge ther except the categorical statement that Saliba “took [his] course of action in retaliati on for [Glover] seeking redress in court and because Glover published [deroga tory comments on Highway 64].” (R. Vol. I at 28.) In sum, as the complaint is wo rded, 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 fa cts – two alleged contra ct disputes – do not rule out the possibility of reta liatory motive, “and thus at so me 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 “n udge[] [his] claims across the line from conceivable to plausible. Twombly , 550 U.S. at 570. 3. The Commissioners, Hill, Ridley and Evans Glover’s complaint asserts ODOT employees Ridley, Evans, and Hill prepared a report which recommended Glover be design ated an “irresponsible bidder” and suspended from obtaining future work with OD OT 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 64 8 wherein ODOT was being blamed for poor design.” (R. Vol. I at 30.) This allega tion, while tenuous,

8 The complaint does not say whether the “investigation of Hi ghway 64” alleged in this paragraph is part of Nicholson’s a llegedly unlawful investigation referenced in other paragraphs. To the contrary, the complaint alleges Nicholson’s “unlawful” investigation had “no rational nexus between . . . [Glover] and his relationship with ODOT,” was “unrelated to ODOT,” and was “completely unrelated to any ODOT endeavor.” (R. Vol. I at 26-27.) Because it is alleged Nicholson’s investigatory activities were unrelated to ODOT, we must conclude th e investigation referred to in the report is not the Nicholson investigation.- 18 - connects Glover’s statements to the media during the Highway 64 di spute to Ridley’s, 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 prec isely what “lawfully protected acts” were listed, we may infer Glover’s public criticism was among them . Thus, the complaint alleges Ridley, Evans and Hill authored the report in retaliation for Glover’s speech and the Commissioners, knowing the retaliatory ba sis for the recommendation, approved the recommendation and suspended Glover from wo rking for ODOT. Th ese allegations are sufficient to state a claim for re taliation in violation of Glov er’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 (G lover’s petitions for redr ess) as “a primary factor” for its recommendation Glover be disqualified from bidding. (R. Vol. I at 29.) As discussed above, the allegations regardi ng the report sufficiently state a constitutional claim if the speech on which the claim is based is protect ed. The question is whether Glover must allege its judicial and administ rative petitions involved a matter of public concern in order to state a claim for relief.
In Van Deelen v. Johnson , we reversed the district c ourt’s dismissal of a private citizen’s § 1983 claim alleging county aut horities retaliated against him for filing a lawsuit and eight tax appeals. 497 F.3d 1151 , 1153 (10th Cir. 2007). We rejected the- 19 - district court’s conclusion that a private citiz en’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

. Neither this Circuit nor the Supreme Cour t has directly addressed whether a public contractor’s petitions must i nvolve a matter of public con cern in order to qualify as protected speech. The two circuits which ha ve published cases on the issue, the Sixth and Eighth Circuits, reached opposite conclusions.
In Gable v. Lewis , a female operator of an autom obile 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 Patr ol’s allocation of towing business. The Patrol argued the petition clause was inapp licable because the operator’s discrimination complaint was personal, not “a matter of ‘public concern.’” Id. The court disagreed. The Sixth Circuit began its an alysis by stating, “[t]he pe tition 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 (1972), as authority supporting the protection of personal interests under the- 20 - First Amendment right to petition. 9 The court then examin ed the justifications for limiting public employees’ speech and found “the reason for the ‘public concern’ test . . . [did] not apply . . . because the plaintiff wa s not a governmental employee subject to the discipline of a governmental employer.” Id. Rather, “[s]he was si mply a citizen offering services to a state agency.” Id. It noted “no authority in the Sixth Circ uit limit[ed] petitioning activity by public employ ees 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 Firs t Amendment jurisprudence for applying [the] public concern test to petitioning activity by a private business woman who is simply supplying services to a governmental ag ency 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

9 In California Motor Transp. , the Supreme Court reversed the dismissal of a civil suit between two trucking compan ies brought under § 4 of the Clayton Act. The plaintiff alleged the defendant had “conspired to monopolize trade and commerce in the transportation of goods . . . [ by instituting] state and federa l proceedings to resist and defeat applications by respondents to acquire op erating rights or to transfer or register those rights.” 404 U.S. at 509. The Court st ated “it would be destructive of rights of association and of petition” to allow a defenda nt to prevent a plaintiff’s access to state and federal agencies and courts “respecti ng resolution of their business and economic interests.” Id. at 510-11.

10 The Heritage court acknowledged the “ Umbehr opinion discusses only independent contractors whose contracts have been terminated. It specifically does not- 21 - 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 ( 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 list of contract ors authorized to perform public services” because he supported th e mayor’s opponent. Id. at 714-16. Becau se the injury in O’Hare was identical to Heritage’s claim - rem oval from a list of authorized construction contractors - the court concluded, “[o]n thes e facts, Heritage cannot be distinguished from the service provider in O’Hare .” Heritage , 545 F.3d at 602. The Eighth Circuit, unlike th e Sixth Circuit, has held, “a public employee’s rightto-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 no t allege its petition was a matter of public concern, the court affirmed the distri ct court’s grant of su mmary judgment to the defendants. Id. at 603. We find the Eighth Circuit’s analysis co mpatible with our precedent. In this Circuit, a public employee’s right to petition fo r redress of grievanc es is analyzed no different than a public employee’s right to free speech. See Schalk v. Gallemore , 906 F.2d 491, 498 (10th Cir. 1990) (“In the instan t case, [the public employee’s] right to

address ‘bidders or applicants for new gover nment contracts who cannot rely on such a [pre-existing commercial] relationship [w ith the government].’” 545 F.3d at 601 (quoting Umbehr , 518 U.S. at 685).- 22 - 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 petiti on 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 concer n requirement to a public contractor’s speech, 518 U.S. at 674, we hold the public concern requ irement 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 St ate shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV, § 2. Glover does not allege it did not receive due process. Rather, it alleges ODOT removed its prequalified bidder status in retaliation for the exercise of its due process rights. [Appellee’s Br. at 28.] Glover argues it need not plead a proper ty or liberty interest because its due process claim is similar to its First Ame ndment claim which does not require such interest. We disagree. To the extent Glover argues retaliation for his past petitions for- 23 - redress, this is simply an attempt to dr ess First Amendment claims in Fourteenth Amendment garb. We have already addresse d the First Amendment claim in its proper context and will not accept the inv itation to do the same again in the 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 inte rest in the outcome of the proceedings.” Arumbala-Medi na v. Holder , 572 F.3d 824, 828 (1 0th Cir. 2009). There is no protected property or liberty interest when the outcome of the process is within the government offi cial’s complete discretion. See Nichols v. Bd. Of County Comm’rs of the Cty. of La Plata, Colo. , 506 F.3d 962, 970 (10th Cir. 2007) (property interest); Cardoso v. Calbone , 490 F.3d 1194 , 1198 (10th Cir. 2007) (liberty interest). Oklahoma law clearly states the prequalified bidder determination is subject to the Commission’s sole discretion. See O KLA

. STAT

. A NN

. tit. 61, § 118 (“The Commission . . . shall be the sole judge of the qualifications of prospective bidders and shall ascertain, to their exclusive satisfaction, the qualificat ions of each prequalified bidder.”). Glover states, “[i]f there mu st be a property interest, then Defendants’ contention that Glover did not have a property intere st is just incorrect . . . . [T]he Oklahoma Supreme Court has determined th at a contractor who has or sh ould 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- 24 - contract. In fact, the Oklahoma Supreme Cour t 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 Tr ustees 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. Gl over’s claims concern the removal of the prequalified status. While the revocation or re moval of a license or certificate “essential in the pursuit of a livelihood requires pr ocedural 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 prequalification to bid on contracts “does not constitute a license.” Okla . Stat. Ann. tit. 61, § 118. Consequently, Glover fails to allege a viable due process claim.
F. Count IV - Equal Protection The Fourteenth Amendment al so states “No State sha ll . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 2. The complaint alleges the “defendants singled out [Glover] for disparate treatment from others similarly situated for no rational reas on . . . [other than] their personal animosity against [Glover]” in violation of the F ourteenth Amendment’s guaranty of equal protection. (R. Vol. I at 32.) Glover brin gs this claim under a class-of-one theory. “[E]qual protection jurisprudence has typica lly been concerned with governmental classifications that affect some groups of citizens differently than others.” Engquist v. Oregon Dept. of Agric. , 128 S. Ct. 2146, 2152 (2008) (q uotations omitted). However, the Supreme Court has recognized “an equal prot ection claim can in some circumstances be- 25 - sustained even if the plaintiff has not alle ged class-based discri mination, but instead claims that she has been irrationally singl ed 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 brin ging an earlier lawsuit by co nditioning the connection of her water supply on an easement more than doubl e what it required of her neighbors. 528 U.S. 562, 563 (2000). The Court held her co mplaint stated a valid claim under the Equal Protection Clause because it a lleged she had “been intentiona lly treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Id. at 564. Recently the Supreme Court refused to rec ognize a “class of one” equal protection claim in the public em ployee context. In Engquist, a public employee brought a “‘classof-one’ equal protection claim alleging she wa s fired, not because she was a member of an identified class (unlike her race, sex, a nd national origin claims), but simply for ‘arbitrary, vindictive, and malicious reasons.’” 128 S. Ct. at 1249. The Court reasoned the Pickering analysis, as well as other Supreme C ourt cases distinguishing the scope of a public employee’s right to bring a claim ag ainst 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] discretiona ry decisionmaking based on a vast array of subjective, individualized assessments.” Id. at 1254. Because “an allegation of arbitrary differential treatment” could likely be made in ever y instance of a personnel decision by the- 26 - government, the Court concluded “the class- of-one theory of eq ual protection has no application in the public employment context.” Id. at 2156. We have applied Engquist to public employees’ e qual protection claims. See Pignanelli, 540 F.3d at 1220; s ee also Kelley v. City of Albuquerque , 542 F.3d 802, 822 (10th Cir. 2008). While we have not considered Enquist in the public contractor context, at least one court has applied Engquist 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 fa ils for an independent reason. Glover has failed to allege, as it must, the identity or charac teristics 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] si milarly situated and how th ey were allegedly treated differently”). Unlike the plaintiff in Olech , who alleged specific property owners received more favorable treatment, Glover do es not identify any contractor who was treated differently. The complaint contains no instance where Sa liba granted similar requests made by other contractors, no sim ilar circumstances where another contractor was not investigated, and no specific action ta ken by top executives that would not have been taken by supervisors. Nor does it iden tify a single similarly-situated contractor which did not lose its pre qualification status after numerous legal challenges or statements to the media. W ithout additional information, Glover’s class-of-one equal protection claim fails to state a claim.- 27 - 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 employe r, determines the extent of [the] protection.” Umbehr , 518 U.S. at 673; s ee also Worrell v. Henry , 219 F.3d 1197, 1205 (10th Cir. 2000) (“the government may not deny a benef it 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, th e recommendation and the Board’s adoption of the recommendation were in retaliati on for its protected speech. As the cases above indicate, freedom from retaliation for protected activity was clearly established when the defendants acted and they are not entitled to qualified immunity.
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 reta liation for its public critic isms of the Highway 64 design in violation of th e First Amendment. Glover’s constitutional protection was clearly established at the time these indi vidual 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 fo r which relief may be granted. The district court’s denial of all the ODOT defendants’ motion to dismiss as to Count II, Count III and Count IV is- 28 - REVERSED . We REMAND for further proceedings consistent with this order. Entered by the Court: Terrence L. O’Brien United States Circuit Judge