PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MARTIN MARIETTA MATERIALS, 

INC.; HUNT MARTIN MATERIALS, 

LLC, 

 Plaintiffs - Appellants, 

v. 

KANSAS DEPARTMENT OF 

TRANSPORTATION; MIKE KING, in his 

individual and official capacity as Kansas 

Secretary of Transportation; JERRY 

YOUNGER, in his individual and official 

capacity as Deputy Secretary of 

Transportation and State Transportation 

Engineer, 

 Defendants - Appellees. 

No. 13-3314 

_________________________________ 

Appeal from the United States District Court 

for the District of Kansas 

(D.C. No. 2:12-CV-02699-SAC-KGS)

_________________________________ 

H. Wayne Phears (Daniel L. Delnero, with him on the briefs), McGuireWoods LLP, 

Atlanta, Georgia, for Plaintiffs-Appellants. 

Lyndon W. Vix (Carmen D. Tucker Bakarich and Gelene D. Savage, Kansas Depatment 

of Transportation, Topeka, Kansas, and Charles E. Milsap, Fleeson, Gooing, Coulson & 

Kitch, L.L.C., Wichita, Kansas with him on the brief), Fleeson, Gooing, Coulson & 

Kitch, L.L.C., Wichita, Kansas, for Kansas Department of Transportation, DefendantAppellee. 

_________________________________ 

FILED 

United States Court of Appeals

Tenth Circuit 

January 13, 2016

Elisabeth A. Shumaker 

Clerk of Court

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Before KELLY, PHILLIPS, and MORITZ, Circuit Judges. 

_________________________________ 

PHILLIPS, Circuit Judge. 

_________________________________ 

INTRODUCTION 

Martin Marietta Materials, Inc. appeals the district court’s dismissal of its dueprocess claims against the Kansas Department of Transportation (KDOT). After 

KDOT removed two Martin Marietta quarries from its preapproved lists of limestoneaggregate suppliers, Martin Marietta unsuccessfully sought pre- and post-deprivation 

hearings from KDOT. Among its many claims in its federal lawsuit—most 

abandoned on appeal—it asserted a property-right claim under the Fourteenth 

Amendment. Specifically, it claimed a property interest in keeping its two quarries on 

“the approved list” of aggregate suppliers,1

 and a liberty interest in its reputation as a 

 1

 The dissent says that we have “mischaracterized the nature of Martin 

Marietta’s asserted property interest” by “repeatedly and consistently stat[ing] that 

Martin Marietta asserts a property interest in actually supplying aggregate from its 

quarries to KDOT projects.” Dissent at 1, 4. Three responses. First, the quotations the 

dissent references from our opinion address the limitations of Martin Marietta’s legal 

theory—they explain why it isn’t entitled to relief. Second, the dissent itself admits 

that Martin Marietta’s Complaint claimed a property and liberty interest to supply 

limestone from its quarries, but says Martin no longer pursues this claim on appeal. 

Id. at 3 n.2. And, third, here’s a sample of Martin Marietta’s own characterization of 

its claim on appeal: “The Right to Supply Aggregate to KDOT-Funded Projects is 

Governed by Inclusion on the Approved List.” Appellant’s Br. at 3. In any event, as 

discussed in the opinion, Martin Marietta’s claim also fails because neither its Ottawa 

nor its Sunflower Quarry passed the 2013 testing standards, so neither qualifies for 

the 2013 prequalified list. Those failures to qualify defeat any property interest in 

being on the 2013 prequalified list. We see nothing in the dissent disputing this. 

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supplier of quality materials under the Fourteenth Amendment. The district court 

disagreed, dismissing these claims on the pleadings. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. We hold that Martin 

Marietta has not plausibly alleged a protected property interest, and thus that KDOT 

did not violate Martin Marietta’s procedural-due-process rights by failing to provide 

pre- or post-deprivation hearings. We also hold that Martin Marietta has no 

cognizable liberty interest, because KDOT did not make defamatory statements about 

Martin Marietta and because Martin Marietta failed to allege sufficiently significant 

harm to its business. 

I. BACKGROUND 

A. Factual Background 

Under Kansas law, KDOT has general supervisory power over all roads and 

bridges in the state. Kan. Stat. Ann. § 68-404(a) (2014). In exercising this power, 

KDOT is obligated to “devise and adopt standard plans and specifications for 

road . . . construction and maintenance” and to “make tests, do research, to inspect 

and test all materials . . . used for state highway purposes or highway projects 

involving federal funds, and to develop methods and procedures for this purpose.” Id. 

§ 68-404(c), (h). The Kansas legislature has also directed KDOT “to adopt rules and 

regulations to carry out the provisions of this act.” Id. § 68-404(k). 

In accordance with these duties, KDOT has established, as part of its Standard 

Specifications, quality requirements for materials used in Kansas road-construction 

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projects. KDOT identifies quarries whose aggregate2

 has passed KDOT’s tests set 

forth in its Standard Specifications and places them on a list of preapproved sources.3

Upon a quarry’s meeting KDOT’s testing standards and qualifying for its 

preapproved list,4

 KDOT preliminarily approves that quarry’s aggregate for use by 

contractors working on road projects funded by KDOT and the Federal Highway 

Administration (FHWA). At the same time, KDOT disallows the use of aggregate 

from quarries not on the preapproved list. 

As part of its business, Martin Marietta supplies limestone aggregate to 

contractors working on public and private projects. In fact, it is the second largest 

producer of aggregate in the country. All told, it operates more than 300 quarries in 

28 states and employs more than 5,000 people in its construction-aggregate 

production. For decades, some of its quarries have been on KDOT’s preapproved list 

to supply aggregate, and it has routinely supplied aggregate to contractors working 

on KDOT projects. 

 2

 “Aggregate” refers to sand, gravel, slag, crushed stone, and like materials that 

are mixed with a cementing material to form concrete, cement, mortar, or asphalt. 

These materials are essential in the construction industry. Constr. Aggregate Transp., 

Inc. v. Fla. Rock Indus., Inc., 710 F.2d 752, 757 n.4 (11th Cir. 1983). 

3

 For KDOT and federal projects, contractors may purchase only aggregate that 

has passed KDOT’s tests and has been placed on the preapproved list. But that does 

not preclude a supplier from selling other types of rock from its quarry for other 

purposes. But aggregate for on-grade concrete projects must pass KDOT’s various 

tests, which, as seen in this case, may change over time. 

4

 When we refer to KDOT’s list of preapproved sources generically (not from a 

specific time period), we will call it the “preapproved list.” 

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This appeal concerns two of Martin Marietta’s quarries, Ottawa and Sunflower. 

Because “the” preapproved list (as Martin Marietta calls it) is really three separate 

preapproved lists depending on the months and years in question, we must examine 

Martin Marietta’s two quarries individually during each of three time periods to 

consider Martin Marietta’s general claim. 

1. Pre-October 2010 

For decades, Martin Marietta supplied aggregate from the Ottawa Quarry for use 

in Kansas-roadway projects. It did the same with aggregate from its Sunflower 

Quarry. Before October 2010, quarries qualified to be on KDOT’s “Approved List” 

to supply aggregate for on-grade concrete projects by passing the ASTM c666 test of 

300-cycles at a 95% freeze-thaw durability factor. Both the Ottawa and Sunflower 

Quarries had passed the 300-cycle test and qualified for the Approved List. Because 

both quarries successfully sold aggregate until October 2010, we can eliminate from 

Martin Marietta’s claim any KDOT actions before then. 

2. October 2010–January 2013 

 In the years leading up to 2010, KDOT began to notice D-cracking on Kansas 

roads. D-cracking refers to the deterioration of concrete in a D-shaped pattern. It 

results from damage to the concrete from the expanding and contracting of water 

during freeze-thaw cycles. 

On or before October 2010, based upon its study of the D-cracking problem on 

Kansas roads, KDOT adopted a policy (stop-gap measure) of removing from its 

Approved List any quarry when: (1) KDOT confirmed D-cracking at three separate 

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stretches of road, (2) the same quarry had supplied the aggregate for those roads, and 

(3) the road-construction projects for those stretches of road had been completed less 

than 20 years before KDOT confirmed the D-cracking on them.5

 On October 29, 

2010, KDOT informed Martin Marietta that it had removed Ottawa Quarry from the 

Approved List for aggregate because Ottawa’s aggregate had failed the stop-gap 

measure. Martin Marietta requested a hearing to challenge the removal, but KDOT 

denied the request. In support of its request for a hearing, Martin Marietta argued that 

it could show that aggregate from the Ottawa Quarry had not in fact caused the Dcracking. 

We understand Martin Marietta to claim that it had a property interest in Ottawa 

Quarry’s remaining on the Approved List from October 2010 until January 2013 

(Stop-Gap Approved List) despite KDOT’s additional requirement imposed by the 

stop-gap measure. Martin Marietta alleges that because the stop-gap measure was not 

validly approved by FHWA, and thus not adopted into the Standard Specifications, 

KDOT could not remove quarries from “the Approved List” based on this test. We do 

not understand Martin Marietta to make this same claim for Sunflower Quarry, which 

remained on the Stop-Gap Approved List during this 27-month interval and 

continued to remain eligible to supply aggregate during that time. 

 5

 After KDOT adopted this stop-gap measure, it removed nine quarries from the list 

based on their failure. The empirical condition was in place for 27 months until a new—

and more stringent—scientific test was approved and adopted after studying the Dcracking problem further. For that reason, we refer to the 27-month period as a “stopgap.” 

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3. January 2013 and Beyond 

In January 2013, KDOT changed the name of the preapproved list for aggregate to 

the “Prequalified List” to reflect newly adopted testing standards in the Standard 

Specifications. As mentioned, the new test imposed a more stringent standard for 

aggregate used in on-grade concrete projects: a 660-cycle freeze-thaw test with a 

95% durability factor. On January 11, 2013, KDOT informed Martin Marietta by 

letter that Sunflower Quarry’s aggregate had failed the 660-cycle test. Martin 

Marietta admits that Sunflower Quarry’s aggregate “allegedly failed” the morestringent test “by a very narrow margin, while passing other criteria.” Appellant’s 

App. at 23. Because it failed, KDOT declined to place it on the Prequalified List. 

After it received KDOT’s letter, Martin Marietta requested pre- and post-deprivation 

hearings, but KDOT refused to provide either. In support of its request for a hearing,

Martin Marietta argued that it could show that aggregate from Sunflower Quarry 

satisfied the Standard Specifications “in effect” at the time of removal. Appellant’s 

Opening Br. at 49. We assume Martin Marietta was referring to the 660-cycle test 

that KDOT imposed in January 2013. 

We see nothing in the record, in Martin Marietta’s Complaint, in its Amended 

Complaint, or in its briefing to us suggesting that KDOT ever tested Ottawa Quarry’s 

aggregate using the new 660-cycle test, or that Ottawa’s aggregate has ever passed 

this test. At oral argument, when questioned on this point, Martin Marietta said that it 

did not know whether KDOT had tested Ottawa Quarry’s aggregate under the new 

test. 

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We understand Martin Marietta to contend, somehow, that its Ottawa Quarry and 

Sunflower Quarry had a property interest in being on the new Prequalified List 

despite Ottawa’s aggregate not being tested under the 660-cycle test and Sunflower’s 

failing that test. Here, we express some frustration that Martin Marietta has not 

explained its claim satisfactorily either in its briefs or during pointed questioning at 

oral argument. As seen later, we painstakingly cover the field of Martin Marietta’s 

possible theories supporting its claim. Martin Marietta’s continued references to “the 

Approved List” are unhelpful when its claim covers an interval in which three 

different “approved lists” applied. 

Regardless, because neither Ottawa Quarry nor Sunflower Quarry qualified for the 

Prequalified List by passing KDOT’s new 660-cycle test, Martin Marietta can no 

longer supply aggregate from those quarries to KDOT- and FHWA-funded projects 

for on-grade concrete roadways.6

 According to Martin Marietta, being on the 

Prequalified List is a “stamp of approval” in the industry, and private contractors also 

use it to select their suppliers. Appellant’s Opening Br. at 11; Appellant’s App. at 

20–21. Because KDOT determined that neither quarry qualified for its Prequalified 

List, Martin Marietta claims losses of millions of dollars. 

 6

 Martin Marietta remains free to supply other material from those quarries to 

KDOT-funded projects for other purposes. 

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B. Procedural History 

On October 29, 2012, Martin Marietta sued KDOT in federal court. In its 

Complaint, it alleged that KDOT had erroneously determined that Ottawa Quarry’s 

aggregate caused D-cracking, and it claimed a right to a hearing to challenge 

KDOT’s conclusion. In all, it asserted 11 claims for relief.7

 On January 17, 2013, 

KDOT filed a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c). 

KDOT argued that Martin Marietta had not plausibly alleged a property or liberty 

interest capable of supporting its constitutional claims and that immunity under the 

Eleventh Amendment barred the tort claims. 

 7

 The eleven claims were as follows: Claim One: “Violation of K.A.R. § 36-31-2,” 

alleging KDOT did not comply with the debarment procedures required in this 

regulation; Claim Two: “Violation of Procedural Due Process,” because KDOT failed 

to provide a pre-deprivation hearing; Claim Three: “Violation of Procedural Due 

Process,” because KDOT failed to provide a post-deprivation hearing; Claim Four: 

“Intentional Interference with Business Relationships,” in the loss of contracts and 

business caused by KDOT’s removal of Ottawa Quarry from the Approved List and 

refusal to return it; Claim Five: “Negligent Interference with Business 

Relationships,” in the loss of contracts and business caused by KDOT’s removal of 

Ottawa Quarry from the Approved List and refusal to return it; Claim Six: 

“Defamation,” for falsely representing that Ottawa Quarry did not satisfy the 

requirements for the Approved List; Claim Seven: “Violation of Equal Protection,” 

for KDOT’s testing of quarries and decisions to prequalify some quarries but not 

Martin Marietta’s quarries; Claim Eight: “Violation of Substantive Due Process,” for 

KDOT’s arbitrary and irrational actions that denied Martin Marietta of its property 

and liberty interests; Claim Nine: “Violation of the Takings Clause” by the 

deprivation of Martin Marietta’s property interest to be on the Approved List; Claim 

Ten: “Request for Preliminary and Injunctive Relief” that would put Ottawa Quarry 

on the Approved List until the hearings were held and would require the 

prequalification and testing of all Martin Marietta quarries; and Claim Eleven: 

“Request for Declaratory Relief.” Appellant’s App. at 323–24. 

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On February 13, 2013, while KDOT’s motion was pending, Martin Marietta 

moved to amend its complaint to add similar claims based on KDOT’s decision not to 

place Sunflower Quarry on the Prequalified List after the quarry failed the new 

freeze-thaw test.8

 In the meantime, the parties continued to file motions and also 

began discovery. As part of the initial discovery, KDOT designated Rick Kreider as 

its Fed. R. Civ. P. 30(b)(6) witness. Kreider testified about KDOT’s approval criteria 

used to determine which quarries qualified for KDOT’s preapproved lists.9

 Kreider 

served as KDOT’s Chief of the Bureau of Materials and Research, the agency that

creates and implements the Standard Specifications and oversees the preapproved 

lists. On March 15, 2013, Martin Marietta deposed Kreider about KDOT’s Standard 

Specifications, including the considerations used in setting testing criteria for 

aggregate and D-cracking. 

On May 21, 2013, the district court denied as futile Martin Marietta’s motion to 

amend its complaint and granted KDOT’s motion for judgment on the pleadings on 

several claims.10 Relevant to this appeal, the district court concluded that Martin 

 8

 In its motion, Martin Marietta proposed adding a count for void-for-vagueness 

as an alternative claim for relief to counts one through three, seven, and eight. 

9

 When a government agency is deposed, the agency “must then designate one or 

more . . . persons who consent to testify on its behalf; and it may set out the matters 

on which each person designated will testify.” Fed. R. Civ. P. 30(b)(6). 

10 The district court granted KDOT’s judgment on the pleadings for the following 

claims: Claim One (Violation of K.A.R. § 36-31-2), Claim Two (Violation of 42 

U.S.C. § 1983: Procedural Due Process—Pre-Deprivation Notice and Hearing), 

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Marietta had not alleged a plausible claim supporting its claimed property interest in 

having its quarries on any of KDOT’s preapproved lists. As its basis, the district 

court concluded that a supplier’s being on a preapproved list does not guarantee the 

supplier any particular outcome (e.g., supplying construction aggregate). Under the 

Eleventh Amendment, the district court also dismissed KDOT as a party to the 

lawsuit. In response, Martin Marietta moved for reconsideration, contending that the 

district court had failed to consider Kreider’s testimony and failed to defer to his 

understanding and interpretation of KDOT’s rules. The district court denied the 

motion for reconsideration, stating that it had considered the proffered testimony and 

had found it consistent with KDOT’s position. 

On November 8, 2013, Martin Marietta filed its First Amended Complaint, which 

listed only the claims from its February 13, 2013 Proposed Amended Complaint that 

____________________ 

Deprivation Notice and Hearing), Claim Five (Negligent Interference with Business 

Relationships), Claim Six (Defamation), Claim Eight (Violation of 42 U.S.C. § 1983: 

Substantive Due Process), and Claim Nine (Ten in the February 13, 2013 Proposed 

Amended Complaint) (Violation of the Takings Clause). 

The district court further concluded that Claim Ten and Claim Eleven (Eleven and 

Twelve in the February 13, 2013 Proposed Amended Complaint) did not allege 

separate claims for relief but instead asked for injunctive and declaratory relief for 

the remaining claims: Claim Seven (Violation of 42 U.S.C. § 1983: Equal Protection) 

and Claim Nine (the February 13, 2013 Proposed Amended Complaint Alternative 

Count of Void of Vagueness). 

Finally, the district court denied KDOT’s motion for judgment on the pleadings, 

but granted Martin Marietta’s motion for leave to file its amended complaint, for 

Claim Four (Intentional Interference with Business Relationships), Claim Seven

(Violation of 42 U.S.C. § 1983: Equal Protection), Claim Nine (the February 13, 

2013 Proposed Amended Complaint Alternative Claim for Void for Vagueness), and 

Claim Ten and Claim Eleven (Eleven and Twelve in the February 13, 2013 Proposed 

Amended Complaint) seeking injunctive and declaratory relief. 

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the district court had later allowed in the May 21, 2013 order. Before KDOT could 

respond to the First Amended Complaint, Martin Marietta moved to dismiss all its 

claims, both from the February 13, 2013 Proposed Amended Complaint and the First 

Amended Complaint, presumably so that it could appeal. In its motion, Martin 

Marietta explained that “[d]ismissal pursuant to this motion shall not affect in any 

manner the claims that were resolved by the Court in its [May 21, 2013 order] ruling 

on Defendant’s motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 

12(c) . . . .” Appellee’s Suppl. App. at 209. It requested that the district court enter an 

order directing the “final judgment on those claims resolved by the Court in its [May 

21, 2013 order] and those claims for which [Martin Marietta] seek[s] dismissal in this 

motion.” Id. The defendants consented to the proposed dismissal, the district court 

dismissed all claims, and the clerk of court entered a final judgment on all of Martin 

Marietta’s claims. Martin Marietta timely appealed.11

On appeal, Martin Marietta does not challenge the district court’s dismissal of 

KDOT as a party. Instead, it proceeds forward solely on its claims against Mike 

King, the Secretary of Transportation, and Jerry Younger, the Deputy Secretary of 

Transportation and State Transportation Engineer, in their individual and official 

capacities. Addressing the official-capacity claims against the two men, the district 

 11 The district court’s grant of Martin Marietta’s motion to dismiss its claims 

ripened the case for appeal. See Niemi v. Lasshofer, 770 F.3d 1331, 1342 (10th Cir. 

2014) (“A dismissal of all claims with prejudice, even if voluntarily sought by the 

party who initiated the suit, is final for purposes of appellate jurisdiction, making 

[Fed. R. Civ. P.] 54(b) certification unnecessary.”). 

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court concluded that the Eleventh Amendment barred the claims. The district court 

permitted Martin Marietta to bring any prospective, federal claims against King and 

Younger, including procedural due process, equal protection, substantive due 

process, and void for vagueness. Addressing the individual-capacity claims against 

King and Younger, the court stated that the Eleventh Amendment offered no 

immunity. King challenged the claims involving the Ottawa Quarry because he did 

not become Secretary of Transportation until over a year after the Ottawa Quarry was 

removed from the Approved List. But the court noted that he had “refused to restore 

the Ottawa quarry to the [Approved List] or to grant them a due process hearing,” 

meaning that Martin Marietta had sufficiently alleged King’s personal involvement in 

the ongoing violation against Ottawa Quarry. Appellant’s. App. at 334. Thus, it 

appears from the district court’s order that Martin Marietta was free to bring any of 

its prospective federal claims against King and Younger in their official capacities 

and any of its claims—state or federal—against King and Younger in their individual 

capacities. 

In spite of the broad array of permitted claims, Martin Marietta raises on appeal 

only the procedural-due-process claim. Martin Marietta contends that King and 

Younger denied it due process under the Fourteenth Amendment by not providing it 

deprivation hearings before removing Ottawa Quarry from the Approved List 

(October 2010–January 2013) and before refusing Sunflower Quarry a place on the 

Prequalified List (post-January 2013). 

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II. DISCUSSION 

This court reviews “a dismissal granted under Rule 12(c) ‘under the standard of 

review applicable to a Rule 12(b)(6) motion to dismiss.’” Nelson v. State Farm Mut. 

Auto. Ins. Co., 419 F.3d 1117, 1119 (10th Cir. 2005) (quoting McHenry v. Utah 

Valley Hosp., 927 F.2d 1125, 1126 (10th Cir. 1991)). Thus, we review de novo a 

district court’s dismissal under Rule 12(c). Id. We must “accept all facts pleaded by 

the non-moving party as true and grant all reasonable inferences from the pleadings 

in that party’s favor.” Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 

1141 (10th Cir. 2012) (quotation marks omitted). In reviewing a motion to dismiss, 

this court must look for “plausibility in th[e] complaint.” Alvarado v. KOB-TV, 

L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (alteration in original); see Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 556 (2007) (concluding that we do “not impose a 

probability requirement at the pleading stage; it simply calls for enough fact to raise a 

reasonable expectation that discovery will reveal evidence of” the alleged claim for 

relief). 

The Fourteenth Amendment prohibits any state from “depriv[ing] any person of 

life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. 

To be entitled to procedural due process, Martin Marietta must prove it has either a 

protected property or liberty interest. See Bd. of Regents of State Colls. v. Roth, 408 

U.S. 564, 569 (1972) (“The requirements of procedural due process apply only to the 

deprivation of interests encompassed by the Fourteenth Amendment’s protection of 

liberty and property.”). A procedural-due-process claim requires (1) a 

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constitutionally cognizable liberty or property interest, (2) a deprivation of this 

interest, and (3) a lack of constitutionally adequate notice and a hearing. Id. at 

569–70. 

To determine whether a plaintiff has been deprived of procedural due process, 

courts ask two questions: (1) Did the plaintiff possess a protected property or liberty 

interest to which due process protections apply? And if so, (2) was the plaintiff 

afforded an appropriate level of process? Farthing v. City of Shawnee, 39 F.3d 1131, 

1135 (10th Cir. 1994). Because we agree with the district court that Martin Marietta 

alleged no plausible protected property or liberty interest, we need address only the 

first question. 

A. Property Interest 

As support for its claim to a protected property interest, Martin Marietta contends 

that it has a right to be on “the Approved List.” Appellant’s Opening Br. at 21. But 

this hardly helps us understand its claim, because our case involves three—not one—

preapproved lists: the Approved List (pre-October 2010), the Stop-Gap Approved 

List (October 2010 – January 2013), and the Prequalified List (post-January 2013). 

Nowhere has Martin Marietta explained what supports its view that it has a property 

interest in either of the two most recent preapproved lists (the first presumably is not 

in play since Martin Marietta sold aggregate from both quarries until October 

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2010).12 Based on its vague and ambiguous use of the term “the Approved List,” we 

understand Martin Marietta to be claiming that it had a property interest to supply 

aggregate from Ottawa Quarry to KDOT and FHWA projects from October 2010, 

when KDOT removed Ottawa Quarry from the Approved List, to January 2013, when 

the new testing was implemented, and perhaps even after that. And for Sunflower 

Quarry, we believe Martin Marietta is asserting that it had a property interest to 

supply aggregate to KDOT and FHWA projects from January 2013 until the present 

and beyond. Whatever Martin Marietta’s theory, which it has failed to explain, it 

must account for its admission that Sunflower Quarry “allegedly failed” the new 660-

cycle test required in January 2013. 

Martin Marietta argues that the district court erred in concluding that it had not 

plausibly alleged a property interest as needed to state a due-process claim. “The 

Fourteenth Amendment’s procedural protection of property is a safeguard of the 

security of interests that a person has already acquired in specific benefits.” Roth, 

408 U.S. at 576. The plaintiff “must have more than a unilateral expectation of it. He 

must, instead, have a legitimate claim of entitlement to it.” Id. at 577. Such an 

 12 The dissent also ignores the reality that this case involves the three 

mentioned lists, simply joining Martin Marietta in ambiguously lumping them 

together as “the Approved List.” Dissent at 1, 3-5, 8, 10. In addition, the dissent 

leaves unexplained how Martin Marietta could establish a property right in having its 

Ottawa or Sunflower Quarries on each of the three distinct lists. For instance, it fails 

even to acknowledge that material from the Sunflower Quarry failed the 2013 testing 

standards and that material from the Ottawa Quarry wasn’t even tested. We don’t 

“chide” Martin Marietta for this failure. Id. at 5 n.6. Instead, in resolving the case, we 

simply point out the deficiencies in its pleading and argument. 

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interest does not arise from the Due Process Clause itself, but is “defined by existing 

rules or understandings that stem from an independent source such as state law—

rules or understandings that secure certain benefits and that support claims of 

entitlement to those benefits.” Driggins v. City of Okla. City, 954 F.2d 1511, 1513 

(10th Cir. 1992) (quoting Roth, 408 U.S. at 577). Martin Marietta must demonstrate 

an “entitlement to a substantive right or benefit” supported by “rules or mutually 

explicit understandings . . . that support [its] claim of entitlement to the benefit and 

that [it] may invoke at a hearing.” Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 

1074, 1085 (10th Cir. 2006). 

On two grounds, Martin Marietta alleges that it has a property interest: 

(1) KDOT’s discretion in determining which quarries are on the preapproved lists is 

limited by the Standard Specifications; and (2) KDOT has created a mutually explicit 

understanding with suppliers that it will approve aggregate meeting the Standard 

Specifications. Because Martin Marietta has failed to adequately explain its legal 

theory justifying the first ground, we take special care to consider its argument in 

three separate pieces: (1) pre-October 2010, (2) October 2010 through January 2013, 

and (3) January 2013 and beyond. 

1. Pre-October 2010 

As mentioned, before October 2010, KDOT tested aggregate based on the 300-

cycle test at a 95% durability factor. Both Ottawa and Sunflower Quarries were on 

the Approved List and supplied aggregate to KDOT projects during this time. 

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Therefore, we do not understand Martin Marietta to assert any claim based on 

KDOT’s actions before October 2010. 

2. October 2010–January 2013

In October 2010, after observing D-cracking on Kansas roads, KDOT refined its 

Approved List by requiring that quarries not have failed the stop-gap measure. Martin 

Marietta asserts that KDOT never submitted the stop-gap measure to the FHWA and 

that KDOT never adopted the test into the Standard Specifications. At this juncture, 

Sunflower Quarry remained on the Approved List and so we focus on Ottawa Quarry. 

Ottawa Quarry failed the new stop-gap measure because KDOT employees observed 

D-cracking in at least three such roadways built with Ottawa Quarry’s aggregate and 

the cracking occurring within 20 years of constructing the roadways. As such, KDOT 

removed it from the Approved List, together with eight other quarries. 

We understand Martin Marietta to contend that, because the FHWA did not 

approve the stop-gap measure, and thus it was not included in the Standard 

Specifications, KDOT did not have the authority to remove quarries from the 

Approved List based on a quarry’s failing this test. We do not have to address this 

argument’s relevance here because Martin Marietta did not raise it before the district 

court until its motion for reconsideration. We have held that a party’s attempt to raise 

a new argument in a motion for reconsideration is “not sufficient to preserve it for 

appeal.” Braswell v. Cincinnati Inc., 731 F.3d 1081, 1093 (10th Cir. 2013). “This 

rule, however, ‘is not inflexible and the matter of what questions may be taken up 

and resolved for the first time on appeal is one left primarily to the discretion of the 

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courts of appeals, to be exercised on the facts of individual cases.’” Id. at 1092–93

(quoting Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1170 n.7 (10th Cir. 

2007)). 

Martin Marietta touched on this argument only briefly in its motion for 

reconsideration. Its argument was so cursory that the district court did not even 

address it in its order denying the motion for reconsideration. Thus, we have no 

obligation to address it at all. See Braswell, 731 F.3d at 1093 (citing Anderson v. 

Unisys Corp., 52 F.3d 764, 765 (8th Cir. 1995) (declining to rule on an argument 

raised for the first time in a motion for reconsideration when the district court did not 

address the argument)). 

But even if Martin Marietta had raised this argument below, it would fail.13 The 

remaining defendants, King and Younger, contend that nothing in Kansas law 

constrains KDOT’s authority to adopt and change the Standard Specifications to 

fulfill its duties. See Kan. Stat. Ann. § 68-404. They explain that just because the 

“amendments must be approved by the [FHWA] for KDOT to receive federal funding 

for certain projects does not create a property [interest] for a supplier such as Martin 

Marietta . . . .” Appellee’s Br. at 47 (emphasis in original). We understand the 

defendants to argue that KDOT might jeopardize federal funding by unilateral 

 13 We reiterate that Martin Marietta did not properly preserve this argument for 

appeal. 

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amendments to the Standard Specifications but that its doing so is of no concern to 

Martin Marietta. 

We agree with King and Younger. First, KDOT’s decision to strengthen its testing 

protocols to avoid D-cracking was hardly one likely to raise FHWA’s ire—by 

requiring better aggregate, KDOT would build more durable roads. Second, and 

relatedly, KDOT faced a D-cracking problem threatening public safety and taxpayer 

expenditures. If FHWA took offense to KDOT’s acting quickly on these concerns, it 

had authority to take any necessary actions. But Martin Marietta cannot assume 

FHWA’s authority. Third, KDOT considered and deliberated its potential actions 

before adopting the stop-gap measure from October 2010 to January 2013. Based on 

findings from its studious research on D-cracking,14 KDOT removed nine quarries 

from its Approved List (including Ottawa Quarry) based on demonstrated D-cracking 

associated with use of their aggregate. KDOT continued to remove quarries until 

January 2013 when it implemented its new 660-cycle test designed to ensure the 

 14 The study found that 523 lane-miles of on-grade pavement showed D-cracking 

less than 20 years after construction. Heather A. McLeod, D-Cracking Field 

Performance of Portland Cement Concrete Pavements Containing Limestone in 

Kansas: Phase 1 Report, Kan. Dep’t of Transp. 27 (May 2012), 

ntl.bts.gov/lib/45000/45200/45246/KS123_Final.pdf. The cost of reconstructing twolane concrete pavement per lane-mile is between $800,000 and $1.15 million, while 

the shorter-term remedy of resurfacing costs between $300,000 and $500,000 per 

lane-mile. Id. at 2. In addition to monetary considerations, KDOT also must account 

for its responsibility for public safety. Where a supplier is providing inferior 

aggregate, which creates dangerous conditions for drivers by increasing the amount 

of road damage, KDOT must have the flexibility to address the problem quickly. One 

mechanism for ensuring safer roads, thereby protecting the public, is for KDOT to 

heighten the quality-criteria standards for aggregate. 

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durability and safety of Kansas roadways.15 Fourth, KDOT’s actions may comport 

with the Standard Specifications. Section 102.18(a) provides that “[e]ven though a 

Contractor is qualified . . . the Prequalification Committee may determine a 

Contractor is otherwise non-responsible as lacking the skills, abilities, or integrity to 

perform the work.” See Bidding Requirements and Conditions, Kan. Dep’t of 

Transp., www.ksdot.org/Assets/wwwksdotorg/bureaus/burConsMain/specprov/2007/ 

102.pdf. If KDOT is able to deny a benefit to a prequalified contractor based upon 

concerns about the contractor’s skills or abilities to perform the work, we cannot 

believe that KDOT is unable to take similar measures to ensure that materials from 

prequalified suppliers are of the character necessary to produce a quality road. We 

find support for our view in Trout v. Koss Construction Co., 727 P.2d 450 (Kan. 

1986), where the Kansas Supreme Court stated that “it is clear from the Standard 

Specifications that . . . KDOT retains the ultimate authority to dictate safety measures 

to the contractor and to require compliance with such measures.” Trout, 727 P.2d at 

456. We think this applies with equal force to the construction suppliers. 

3. January 2013 and Beyond

 15 Kreider testified that KDOT’s change to the 660-cycle test occurred because of 

damage KDOT observed on Kansas roads. KDOT began researching the problem (the 

D-cracking project) to understand its cause. During that process, it became apparent 

to KDOT that it needed to modify its Standard Specifications. Ultimately, this led to 

a study that proposed and recommended options. From these, KDOT chose and 

imposed the 660-cycle test. 

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For the reasons given, we conclude that in January 2013, KDOT acted within its 

authority under the Standard Specifications in implementing the 660-cycle test. See 

Kan. Stat. Ann. § 68-404(h) (KDOT has the power “to make tests, do research, to 

inspect and test all materials, supplies, equipment, and machinery used for state 

highway purposes or highway projects involving federal funds, and to develop 

methods and procedures for this purpose”). Sometime near then, KDOT tested 

aggregate from the Sunflower Quarry under its new test, and the aggregate failed to 

meet the new standard. Yet even acknowledging the “allegedly failed” test, Martin 

Marietta still maintains it somehow has a property interest in the Sunflower Quarry’s 

being on the Prequalified List. Appellant’s Opening Br. at 35; Appellant’s App. at 

23, 441. Seemingly, on appeal, Martin Marietta also contends that it has a property 

interest in the Ottawa Quarry’s being on the Prequalified List. Both in its briefing and 

at oral argument, it has failed to explain its supporting rationale. Because we are 

reviewing a dismissal on the pleadings, we broadly review Martin Marietta’s claims 

to see if it has alleged even a single plausible one. See Alvarado, 493 F.3d at 1215. In 

doing so, we recognize that Martin Marietta may not make some of the claims we 

credit it as making, but given its impreciseness we will err on the side of broadly 

construing its claims to avoid overlooking any. 

Regarding Ottawa Quarry, Martin Marietta never alleges that KDOT tested 

aggregate from the Ottawa Quarry after implementing the new 660-cycle test. To 

claim that Ottawa Quarry should be on the Prequalified List, Martin Marietta must at 

least allege that Ottawa’s aggregate had been tested under the new requirements. 

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Because Martin Marietta did not plausibly allege that Ottawa Quarry was tested 

under the 660-cycle test, it has not plausibly alleged entitlement to a place on the 

Prequalified List. 

In its opening brief, Martin Marietta asserts that “[a]gency discretion and 

judgment simply do not come into play; material either meets the detailed 

specifications or it does not.” Appellant’s Opening Br. at 16. Kreider’s deposition 

testimony supports this fact. See id. at 29 (“Mr. Kreider testified that inclusion on the 

[Preapproved List] is governed by the Standard Specifications, not agency 

discretion.” (citing Appellant’s App. at 158–59)). Martin Marietta argues, and we 

agree, that quarries whose aggregate passes the 660-cycle test are placed on the 

Prequalified List, and quarries whose aggregate fails the test are not placed on the 

Prequalified List. But we do not see how this helps Martin Marietta. Aggregate tested 

from the Sunflower Quarry failed the 660-cycle test. Therefore, according to Martin 

Marietta’s own argument, KDOT had no choice but to refuse Sunflower Quarry a 

place on the Prequalified List. This would end our analysis, except Martin Marietta 

may be alleging other theories requiring that Sunflower Quarry be on the Prequalified 

List. We now turn to those possibilities. 

First, we understand that Martin Marietta might be arguing that any quarry owner 

that independently tests its aggregate under the Standard Specifications’ criteria, and 

says its aggregate passes those tests, has a protected property interest. At oral 

argument, Martin Marietta’s counsel stated, “I think you have a property right if you 

meet the criteria.” Oral Arg. at 09:02–09:15. We also see Martin Marietta alluding to 

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this idea in its brief when it writes that if it had been granted a hearing, it “could have 

shown that both quarries met the Standard Specifications existing at the time of 

removal.” Appellant’s Opening Br. at 11. This argument must fail because it would 

result in a supplier’s being able to claim a constitutionally protected property interest 

in selling its aggregate to KDOT projects without KDOT’s having any ability to 

oversee the material quality. Under KDOT’s legislatively required supervisory role, 

KDOT must “make tests, do research, to inspect and test all materials” used for road 

construction involving federal funds. Kan. Stat. Ann. § 68-404(h). Therefore, it must 

maintain oversight over a quarry’s aggregate quality to comply with state law. 

Second, we understand that Martin Marietta might be arguing that, even if a 

quarry’s aggregate fails KDOT’s test, the owner has a protected property interest if it 

contends that it would pass if given another chance at testing. In essence, Martin 

Marietta may be alleging a property interest in the right to re-test. We see an inherent 

problem in Martin Marietta’s asking for a post-deprivation hearing after its aggregate 

had already failed the 660-cycle test. A deprivation hearing’s purpose is to give an 

individual an opportunity to have a voice in the decision before he is deprived of a 

protected property interest. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 

542 (1985). But once Sunflower Quarry’s aggregate failed KDOT’s new test, we see 

nothing KDOT could deprive from Martin Marietta. 

Third, we understand that Martin Marietta might be arguing that KDOT’s new test 

is too stringent and that KDOT could adequately protect against D-cracking with 

lower test standards. We take issue with this argument because it would require that 

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we supplant KDOT in establishing the appropriate tests. It should go without saying 

that KDOT, not a federal court, should decide what tests and standards to adopt to 

protect motorists from unsafe roadways. If KDOT wants to adopt a 1000-cycle, 99% 

durability factor test, we think it would be perfectly within its rights to do so, even if 

that test would exclude many quarries’ aggregate that in fact would not have caused 

D-cracking. 

But even ignoring everything above, Martin Marietta would still not succeed on 

its appeal, because it is not in privity with KDOT and because its being on any of the 

preapproved lists would not entitle it to any particular outcome. We explain below.

4. Privity 

Because suppliers of construction materials are not in privity with KDOT and its 

contractors, we reject Martin Marietta’s contention that it has a property interest in 

being on any of KDOT’s preapproved lists. We look to the Standard Specifications 

themselves to determine whether they are for the suppliers’ benefit, and we conclude 

that they are not. The Definitions and Terms section of the Standard Specifications 

make clear that the Standard Specifications make up part of the contract between 

KDOT and the “Contractor.”16 Appellant’s App. at 376. In contrast, the Standard 

Specifications state that “[i]nspection, testing, and approval of Contractor-furnished 

 16 The “Contractor” is “[t]he individual partnership, corporation, other legal 

entity, or any acceptable combination thereof (joint venture) contracting with the 

Secretary to complete the contract.” Appellant’s App. at 376. The “Contract” 

between the Secretary of KDOT and the Contractor setting forth the parties’ 

obligations “includes . . . [the] standard specifications . . . .” Id.

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sources of supply are for KDOT’s benefit . . . .” Id. at 367 (emphasis added). A 

“Supplier” is defined as “[a]n individual, partnership, corporation, other legal entity, 

or any combination thereof (joint venture) from which the Contractor obtains 

commodities needed to fulfill the contract. Suppliers are not a party to the contract 

between the Secretary and the Contractor.” Id. at 381 (emphasis added). Thus, we 

know that Martin Marietta is not a party to the contract (that includes the Standard 

Specifications) between KDOT and the contractor. 

We agree with King and Younger that, because Martin Marietta is not a party to 

the contract, it cannot claim a property interest arising out of that contract. In Biby v. 

Boards of Regents, 419 F.3d 845 (8th Cir. 2005), the Eighth Circuit concluded that a 

non-party to the contract who gained from it an incidental benefit had no property 

interest entitling him to due process. Biby, 419 F.3d at 852; see Machisa v. Columbus 

City Bd. of Educ., 563 F. App’x 458, 463 n.5 (6th Cir. 2014) (unpublished) 

(“[B]ecause [plaintiff] was not a party to the contract, he had no property interest in 

the contract and therefore cannot bring a procedural due process claim on this basis at 

all.”); Rooker v. Ouray Cty., 504 F. App’x 734, 738 (10th Cir. 2012) (unpublished) 

(concluding that a third-party beneficiary to a contract did not have a property 

interest arising out of the contract). While Martin Marietta may plausibly allege that 

it has an incidental benefit from the contract between KDOT and the contractor—

eligibility to supply aggregate to state projects—it is not a party to the contract and 

so cannot claim a property interest arising from that contract. In Empire Transit Mix, 

Inc. v. Giuliani, 37 F. Supp. 2d 331 (S.D.N.Y. 1999), the court concluded that a 

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construction supplier did not have a property interest in its supply contracts with 

contractors on city projects, because under Second Circuit precedent “involvement in 

publicly-financed projects does not rise to the level of a property interest.” Giuliani, 

37 F. Supp. 2d at 335 (quoting Eastway Constr. Corp. v. City of N.Y., 762 F.2d 243, 

250 (2d Cir. 1985), on remand, 637 F. Supp. 558 (E.D.N.Y. 1986), modified, 821 

F.2d 121 (2d Cir. 1987)). Likewise here, Martin Marietta cannot claim a property 

interest arising from its involvement in publicly financed construction projects. 

Because KDOT’s Standard Specifications, and therefore the tests at issue, are for 

KDOT’s benefit and not the suppliers’, we conclude that Martin Marietta has no basis 

to claim a property interest arising out of the Standard Specifications. Martin 

Marietta emphasizes that the Standard Specifications “are not locked in a KDOT desk 

drawer accessible only by senior policy-making officials . . . . They are public 

documents KDOT publishes ‘so folks can figure out what specific criteria their 

material must meet.’” Appellant’s Opening Br. at 50 (quoting Appellant’s App. at 

154). But KDOT’s making the Standard Specifications available to the public has no 

bearing on their legal effect. In its very first section, the Standard Specifications state 

that “Suppliers are not a party to the contract,” which undermines Martin Marietta’s 

entire argument. Appellant’s App. at 365. KDOT’s making the Standard 

Specifications available to suppliers is an act done voluntarily and not by any legal 

duty, and therefore no legal obligation—such as providing a pre- or post-deprivation 

hearing—can arise from its having made the Standard Specifications available. 

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In addition, we point out that courts typically hesitate to second guess government 

procurement decisions in bidding cases. The Supreme Court has stated: 

Like private individuals and businesses, the Government enjoys the 

unrestricted power to produce its own supplies, to determine those with 

whom it will deal, and to fix the terms and conditions upon which it will 

make needed purchases. . . . Judicial restraint of those who administer 

the Government’s purchasing would constitute a break with settled 

judicial practice and a departure into fields hitherto wisely and happily 

apportioned by the genius of our polity to the administration of another 

branch of Government. 

Perkins v. Lukens Steel Co., 310 U.S. 113, 127–28 (1940) (footnote omitted); see 

Coyne-Delany Co. v. Capital Dev. Bd., 616 F.2d 341, 342 (7th Cir. 1980) (citing 

Perkins, 310 U.S. at 127) (“[G]overnment enjoys a broad freedom to deal with whom 

it chooses on such terms as it chooses; no one has a ‘right’ to sell to the government 

that which the government does not wish to buy.”). We see wisdom in the caution 

against courts intruding into a state agency’s decision-making authority, particularly 

when it involves public-safety issues. 

5. Entitlement 

But even if Martin Marietta was a party to the contract and thus could assert a 

property interest arising from the Standard Specifications, it would still be unable to 

allege a property interest because being on the preapproved lists would not grant it 

any entitlement. In determining whether a state has created an entitlement in a 

benefit, we must remember that “a benefit is not a protected entitlement if 

government officials may grant or deny it in their discretion.” Town of Castle Rock v. 

Gonzales, 545 U.S. 748, 756 (2005). “A property interest exists if discretion is 

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limited by the procedures in question, that is, whether the procedures, if followed, 

require a particular outcome. However, where the governing body retains discretion 

and the outcome of the proceeding is not determined by the particular procedure at 

issue,” then no property interest exists. Crown Point I, LLC v. Intermountain Rural 

Elec. Ass’n, 319 F.3d 1211, 1217 (10th Cir. 2003) (citation omitted) (emphasis 

added) (citing Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th 

Cir. 2000)); see Glover v. Mabrey, 384 F. App’x 763, 777 (10th Cir. 2010) 

(unpublished) (“There is no protected property or liberty interest when the outcome 

of the process is within the government official’s complete discretion.” (citing 

Nichols v. Bd. of Cty. Comm’rs of the City of La Plata, 506 F.3d 962, 970 (10th Cir. 

2007))). 

Martin Marietta asserts that it has a constitutionally protected property interest in 

being on the preapproved list because the detailed, technical criteria set forth in 

KDOT’s Standard Specifications exclusively govern prequalified status. 

The district court dismissed Martin Marietta’s procedural-due-process claim, 

explaining that 

To assume that the detailed, technical and objective nature of the 

specifications and testing criteria reflects an effort to limit KDOT’s 

discretion in enforcing and applying these standards ignores the nature 

and function of KDOT’s highly technical work and its compelling 

public safety responsibility. . . . Owing to its breadth, this statutory 

mandate plainly and necessarily vests all such matters in the full 

discretion of KDOT to develop its own criteria, methods and procedures 

for this public safety purpose. The related regulations and specifications 

do not otherwise restrict or delimit the manner, the scope or content of 

that discretion to such an extent as to give rise to an entitlement. 

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Appellant’s App. at 343–44. It concluded that Martin Marietta had not plausibly 

alleged a property interest because KDOT retained discretion to inspect and judge, at 

the project site, whether the aggregate satisfies the requisite quality criteria, and to 

reject it if not. Therefore, a quarry’s prequalification status does not guarantee that its 

aggregate will be accepted and used on a project. Accordingly, the district court 

concluded that a quarry’s prequalified status guarantees no particular outcome. 

We conclude that the Standard Specifications support the district court’s view. 

For instance, section 1101.5 states that KDOT “reserves the right to re-sample, test 

and reject any previously accepted aggregate if the Engineer has reason to believe it 

no longer complies with the Contract Documents.”17 Appellant’s App. at 386. Similar 

 17 Because the Contract Documents are not in the record, Martin Marietta takes 

issue with the district court’s reliance on this provision that discusses the Contract 

Documents. In response, KDOT notes that the definition of Contract Documents is 

contained in the Standard Specifications: 

An all-encompassing term for all documents relating to the contract and 

hereby incorporated by reference into the contract. The Contract 

Documents include the proposal, exploratory work documents, addenda, 

amendments, contract form, contract bond, standard specifications, 

special provisions, project special provisions, general plans, detailed 

plans, the notice to proceed, material test methods, material test reports, 

material certifications, Part V of the KDOT Construction Manual, 

change orders, payment vouchers, guarantees, warranties, and other 

agreements, if any, that are required to complete the construction of the 

work timely and in an acceptable manner. 

Appellant’s App. at 376. 

We think that this definition adequately explains what the Contract Documents 

are. Based on this definition, we believe that Martin Marietta could not, as it states 

that it could, prove that compliance with the Contract Documents means compliance 

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provisions are found in section 106(b), which governs the source of supply, and 

which gives the Engineer or Inspector the authority to “reject materials at the project 

site even if the Engineer or Inspector previously approved the materials at the source 

of supply” and the authority to “reject the materials if, at any time, the Engineer 

determines the materials do not meet the Contract Documents.” Appellant’s App. at 

367. And Part V of the Construction Manual, incorporated under section 101.3, states 

that: 

The acceptance of . . . Aggregate is contingent upon production being 

from approved beds and in compliance with “Official Quality” 

requirements. 

. . . 

(5) Continuation of Prequalified Status for [Aggregates] 

After a quarry has been prequalified to produce . . . [a]ggregate from a 

specific bed(s) the prequalified status will continue as long as no major 

changes are made in the production process or occur in the deposit 

characteristics. Changes in deposit characteristics may be discovered 

either visually or through test results performed on Production Samples. 

. . . 

When any party feels that any change in the prequalified status of a 

quarry is warranted they should notify the DME [District Materials 

Engineer] responsible for quarry inspection who in turn will advise the 

Chief of Materials and Research. The Chief of Materials and Research 

will review all available information on the changed conditions and 

render a decision on any such changes. Official notification of any 

change in . . . [a]ggregate [p]roduction status for a quarry will be 

____________________ 

merely with the Standard Specifications. Thus, we find that Martin Marietta is not 

entitled to additional discovery on what it means to be in compliance with the 

Contract Documents. 

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provided by the DME to the quarry owner/operator and the appropriate 

contractors. 

Appellant’s App. at 368, 372. 

We agree with Martin Marietta that KDOT’s ability to retest the aggregate and 

reject it at the project site does not mean that a party’s qualifying for a preapproved 

list is governed by anything but the Standard Specifications. But KDOT’s ability to 

reject the aggregate for other reasons—project special provisions, material-test 

methods, material-test reports, or change orders—demonstrates that a supplier’s 

being on a preapproved list does not entitle it to sell its material or have that material 

actually accepted at the project site. Martin Marietta even concedes that KDOT can 

reject a supplier’s aggregate at the project site for reasons other than failure to meet 

the appropriate tests, including defects in specific material or because the material 

might fail the Standard Specifications for contamination or size. In addition, Martin 

Marietta points to no law, regulation, or Standard Specification provision that says 

that having prequalified status guarantees that a contractor will actually purchase and 

use its product. 

This matters because “[b]eing on the prequalified list is not a protected interest[] 

since it does not assure the particular outcome, that is, KDOT’s acceptance of the 

aggregate.” Appellant’s App. at 346. The district court concluded that just because “a 

source or supplier has been approved is not a guarantee that its product will be 

accepted and used on a project.” Id. Because of KDOT’s ability to reject preapproved 

material for reasons other than passing or failing the Standard Specifications, the 

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district court reasoned that it was not examining a regulatory structure where the 

governing body’s “discretion is ‘constrained by particularized and comprehensive 

standards, criteria or conditions outlined by statute . . . .’” Appellant’s App. at 344 

(quoting Interior Contractors, Inc. v. Bd. of Trs. of Newman Mem’l Cty. Hosp., 185 

F. Supp. 2d 1216, 1228 (D. Kan. 2002)). 

We agree with the district court’s ultimate conclusion and find informative this 

court’s discussion of property interests in Teigen v. Renfrow, 511 F.3d 1072 (10th 

Cir. 2007). In Teigen, employees of the Colorado Department of Corrections (DOC) 

sued DOC officials under 42 U.S.C. § 1983, alleging that the officials had engaged in 

a policy of blacklisting employees in violation of the Due Process Clause. 511 F.3d at 

1077. The employees contended that they possessed, and were deprived of, a 

protected property interest in the right to be considered for promotion and transfer 

according to the standards set forth in the state statutes. Id. at 1080. The court wholly 

rejected this proposition, explaining that the “subtle distinction between the right to 

be selected for promotion and the right to take part in the promotion process is 

insufficient to salvage Plaintiffs’ due process claims.” Id. at 1080–81. “This is 

because ‘[p]rocess is not an end in itself,’ but instead serves only ‘to protect a 

substantive interest to which the individual has a legitimate claim of entitlement.’” 

Id. at 1081 (alteration in original) (quoting Olim v. Wakinekona, 461 U.S. 238, 250 

(1983)). 

Likewise, Martin Marietta’s attempt to distinguish between the right to sell its 

aggregate to KDOT projects and the right to have the opportunity to sell its aggregate 

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to KDOT projects by being on a preapproved list cannot save its due process claim. 

In Teigen, the court said that “[e]ven assuming state law grants every state employee 

the right to be fairly considered for promotion, this right is not itself a substantive 

right, but rather a vehicle for arriving at the ultimate promotion decision.” Id. Martin 

Marietta’s situation is one step removed because there is no assumption that every 

supplier is entitled to have its quarries on a preapproved list. Rather, KDOT 

explicitly requires, through the Standard Specifications, that each quarry pass the 

relevant criteria to be on a list. But even if Martin Marietta’s aggregate at the two 

quarries had passed the test and were on a preapproved list (which they were not), it 

could not plausibly allege a property interest in being on a list because the list is 

merely a “vehicle” for arriving at the ultimate decision of whether the aggregate will 

actually be purchased and used. See id. This is because KDOT expressly has the 

discretion to reject aggregate if it has “reason to believe” that the aggregate does not 

comply with the Contract Documents, which include a variety of requirements 

beyond the Standard Specifications, and also because prequalified status does not 

guarantee that Martin Marietta will actually sell its aggregate. See Horsfield 

Materials Inc. v. City of Dyersville, 834 N.W.2d 444, 459 (Iowa 2013) (finding that a 

supplier of aggregate which, for control purposes, was not included on the City’s list 

of approved suppliers, had no valid due-process claim because it had “no protected 

liberty or property interest at stake, merely an unfulfilled desire to enter into 

contracts to supply materials for Dyersville public improvements”). 

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We also find instructive the reasoning in Ruby-Collins, Inc. v. Cobb County, 515 

S.E.2d 187 (Ga. Ct. App. 1999). In Ruby-Collins, a county sued a contractor for 

breach of contract, and the contractor counter-claimed under § 1983 asserting that the 

county violated its due-process rights by disallowing the contractor from bidding on 

future projects pending the outcome of the dispute. 515 S.E.2d at 188–89. The 

contractor claimed a property interest in being on the list of pre-qualified bidders. Id.

at 189. Under Georgia law, the county could reject “some bids or any indefinite 

number of bids” for a project, which the court inferred to mean that no prospective 

bidder had a legitimate claim of entitlement to bid on future projects. Id. at 189–90. 

Consequently, it held “that [the contractor] ha[d] no protected property interest in 

remaining on a list of potential bidders pre-qualified to bid on future public works 

contracts.” Id. at 190. 

Similarly, Martin Marietta claims a property interest in being on the list of 

preapproved quarries, which in reality would qualify it only to be considered for 

KDOT projects. But KDOT is not bound under the Standard Specifications to ensure 

that aggregate from each quarry on a preapproved list is purchased and later accepted 

at the project site. See Hill v. Grp. Three Hous. Dev. Corp., 799 F.2d 385, 391 (8th 

Cir. 1986) (concluding that eligible applicants for section 8 housing are not “entitled 

to such benefits” because the private owner retains discretion to select the tenant 

from a pool of eligible applicants (emphasis omitted)); see also Eidson v. Pierce, 745 

F.2d 453, 461 (7th Cir. 1984) (same). KDOT retains its discretion to inspect 

aggregate at any time, even from previously approved sources, and to reject it if the 

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36 

Engineer determines it does not satisfy any requirements in the Contract Documents. 

See Nichols v. Bd. of Cty. Comm’rs, 506 F.3d 962, 970 (10th Cir. 2007) (“[W]here 

the governing body retains discretion and the outcome of the proceeding is not 

determined by the particular procedure at issue, no property interest is implicated.” 

(quoting Crown Point I, 319 F.3d at 1217)). In addition, KDOT may “reject any 

previously accepted aggregate if the Engineer has reason to believe it no longer 

complies with the Contract Documents.” Appellant’s App. at 386 (emphasis added).

These provisions demonstrate that even if Martin Marietta’s quarries are granted 

prequalified status, such status does not lead to a particular outcome, because 

aggregate from Martin Marietta’s quarries may never be purchased for KDOT 

projects, and even if it is, it could be rejected at the site. 

The Supreme Court has clearly stated that “[p]rocess is not an end in itself. Its 

constitutional purpose is to protect a substantive interest to which the individual has a 

legitimate claim of entitlement.” Olim, 461 U.S. at 250. Getting its quarries on a 

preapproved list is the process by which Martin Marietta achieves its ultimate goal—

supplying aggregate for KDOT and FHWA projects. Martin Marietta points to no law 

or regulation suggesting that it has a legitimate claim of entitlement to supply 

aggregate to KDOT projects. Therefore, Martin Marietta has not plausibly alleged a 

property interest. 

In addition, Martin Marietta relies heavily on a case decided after the district 

court’s order, Brown v. Eppler, 725 F.3d 1221 (10th Cir. 2013). In that case, we held 

that an individual or entity may have a protected property interest if agency rules 

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37 

compel particular relief, even when the agency has discretion to change those rules. 

Brown, 725 F.3d at 1126–27. Martin Marietta reads the district court’s order as 

dismissing its claim in large measure on KDOT’s retaining discretion under the 

Standard Specifications to change the tests and criteria for quarries to qualify for the 

preapproved list. But we read the district court’s order differently—not as saying that 

any discretion to change testing requirements per se defeats a property interest (as in 

Eppler, where we reversed the district court’s so concluding with rules governing 

who could ride the city buses), but instead as saying that because KDOT has 

discretion to reject aggregate at the project site, prequalified status does not 

guarantee a particular outcome, and thus there is no protected property interest. 

Martin Marietta also argues that Kreider’s deposition testimony establishes that 

inclusion on a preapproved list is governed by the criteria in the Standard 

Specifications. Although we do not question this point, we again note that the district 

court relied on KDOT’s discretion to reject aggregate at the project site, not its 

discretion or lack thereof in the process for determining which quarries’ aggregate 

receives prequalified status. And we rely not only on KDOT’s ability to reject 

aggregate at the project site but also on the basis that KDOT does not guarantee sales 

to any supplier simply because it is on a preapproved list. We can imagine many 

scenarios in which contractors choose not to purchase materials from certain 

suppliers. 

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38 

Next, Martin Marietta argues that the district court erred in comparing “right-totest procedures”18 and “right-to-bid cases.” Appellant’s Opening Br. at 40. We agree 

with the district court that the right-to-bid cases are instructive because part of their 

rationale defeating any property interests is the lack of any guaranteed outcome from 

a right to bid. As with contract bidders, prequalified status does not guarantee 

aggregate sellers any sales of aggregate or acceptance at the project site. See S. 

Disposal, Inc. v. Tex. Waste Mgmt., 161 F.3d 1259, 1265 (10th Cir. 1998) (“‘[A] 

disappointed bidder has no constitutionally protected property interest’ until it is 

actually awarded the contract.” (quoting Curtis Ambulance of Fla., Inc. v. Bd. of Cty. 

Comm’rs, 811 F.2d 1371, 1376–77 (10th Cir. 1987))); see also Interior Contractors, 

185 F. Supp. 2d at 1225. By the same token, a potential supplier has no entitlement to 

sell its material. See Coyne-Delany, 616 F.2d at 343 (“[A] potential supplier to the 

state has no property interest in having its product purchased or specified.”).

Therefore, regardless of the other differences between these types of cases, we agree 

with the district court’s general premise. Martin Marietta’s ability to distinguish the 

cases in other ways does not help it to undermine our ultimate conclusion. 

In supporting its argument, Martin Marietta also emphasizes the content of King 

and Younger’s fifth footnote, which reads as follows: 

It is accurate that KDOT adopted the 660 cycle test and received 

approval for doing so from [FHWA]. As a result, all quarries were 

 18 We note that Martin Marietta itself described its alleged property interest as a 

right-to-procedure interest. The Supreme Court has concluded that a party cannot 

claim a property interest in a procedure. Olim, 461 U.S. at 250. 

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39 

essentially taken back to square one and required to meet that standard 

in order to be on the [Prequalified List]. From and after January 1, 2013, 

the presence or absence of Martin Marietta’s aggregate on the 

[Prequalified List] has been based simply upon whether the product can 

meet the new freeze/thaw criteria, rather than the field testing that 

caused the initial removal of the Ottawa Quarry. 

Appellee’s Br. at 10 n.5 (citation omitted). Martin Marietta contends that King and 

Younger concede three points here. “First, it confirms that testing under the old 

criteria led to KDOT’s removal of the Ottawa Quarry.” Appellant’s Reply Br. at 23.

We have no reason to question this statement. “Second, it confirms that inclusion on 

the [Prequalified List] ‘from and after January 1, 2013’ is governed by the new 

criteria.” Id. Again, we see no reason to contest this assertion. But Martin Marietta 

has not plausibly alleged that aggregate from Sunflower Quarry passed the new test 

or that aggregate from Ottawa Quarry was ever even tested. And even if it could, we 

still would reject its claim on our earlier stated bases. First, Martin Marietta cannot 

claim a property interest deriving from a contract to which it is not a party. And 

second, it cannot allege a property interest in being on a preapproved list because the 

list does not guarantee any particular outcome. 

Finally, Martin Marietta argues that the district court failed to apply the 

plausibility standard correctly in ruling on the motion for judgment on the pleadings. 

It contends that the court weighed the evidence and drew inferences against the 

plaintiff in violation of that standard. We disagree with how Martin Marietta 

characterizes the district court’s application of the standard. The court relied on the 

provisions of the Standard Specifications, which give KDOT discretion to reject any 

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40 

material, even from a prequalified source, to conclude that prequalified status does 

not guarantee a particular outcome. The court did not draw inferences against Martin 

Marietta in coming to that conclusion. Therefore, we find no error in the court’s 

application of the plausibility standard. 

To conclude, we note that in our view Martin Marietta is essentially asking us to 

move outside of the judicial realm and become a super-KDOT. We decline to do so. 

We lack any scientific expertise to determine what aggregate builds safe roads, and 

we lack KDOT’s statutory responsibility for motorist or taxpayer safety. KDOT is in 

the best position to determine the level of error it will tolerate in D-cracking testing, 

and we refuse to question its decision. 

6. Mutually Explicit Understanding

Martin Marietta also urges us to find that it has established a property interest 

based on a mutually explicit understanding fostered by KDOT—that material 

complying with the Standard Specifications will remain on the preapproved list. 

Although a claim of entitlement may be grounded on specific statutory or contractual 

provisions, it need not be. “A person’s interest in a benefit is a ‘property’ interest for 

due process purposes if there are . . . rules or mutually explicit understandings that 

support his claim of entitlement to the benefit and that he may invoke at a hearing.” 

Casias v. City of Raton, 738 F.2d 392, 394 (10th Cir. 1984) (quoting Perry v. 

Sindermann, 408 U.S. 593, 601 (1972)); see Perry, 408 U.S. at 602–03 (holding for 

the first time that a protected property interest derived from a mutually explicit 

understanding rather than laws or regulations). In our view, KDOT has expressly 

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41 

stated the requirements to win placement on its approved lists and, as explained, 

Martin Marietta cannot meet them. 

B. Liberty Interest 

Martin Marietta also argues that the district court erred in dismissing its dueprocess claim in which it asserts that it has a liberty interest in its reputation. It 

claims that the Constitution protects this right by guaranteeing Martin Marietta a 

procedure in which it can clear its name. The Fourteenth Amendment protects 

citizens from being deprived of “liberty” as well as “property” without “due 

process.” Gwinn v. Awmiller, 354 F.3d 1211, 1216 (10th Cir. 2004). Martin Marietta 

argues that it has a protected interest in its reputation, “including a right not to be 

defamed by government officials in a manner that harms its ability to earn a living or 

causes ‘damage [to] [its] standing and associations in [its] community.’” Appellant’s 

Opening Br. at 51 (second and third alterations in original) (quoting Roth, 408 U.S. at 

572–73). 

“‘Where a person’s good name, reputation, honor, or integrity is at stake because 

of what the government is doing to him,’ a protectable liberty interest may be 

implicated that requires procedural due process in the form of a hearing to clear his 

name.” Gwinn, 354 F.3d at 1216 (quoting Jensen v. Redev. Agency of Sandy City, 998 

F.2d 1550, 1558 (10th Cir. 1993)). Damage to reputation alone, however, is not 

sufficient. Id.; see Paul v. Davis, 424 U.S. 693, 711–12 (1976) (holding that damage 

to reputation alone was not sufficient to establish a protected liberty interest). 

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42 

For a plaintiff to prevail on a claim that the government has violated the Due 

Process Clause by damaging its reputation, that plaintiff must satisfy the “stigmaplus” standard. That standard requires the plaintiff to demonstrate both 

“(1) governmental defamation and (2) an alteration in legal status.” Nixon v. City and 

Cty. of Denver, 784 F.3d 1364, 1368 (10th Cir. 2015) (quoting Guttman v. Khalsa, 

669 F.3d 1101, 1125 (10th Cir. 2012)). 

Martin Marietta claims that KDOT defamed it (1) when KDOT employees 

announced to the concrete and pavement industry that aggregate from Martin 

Marietta’s two quarries could not be trusted to make concrete meeting the Standard 

Specifications, and (2) when KDOT employees attended meetings with some of 

Martin Marietta’s customers and told them that Martin Marietta’s material was poor 

quality. Martin Marietta claims it will show, if permitted, that KDOT “published a 

document with Martin Marietta quarries listed as providing either ‘poor’ or 

‘unacceptable’ performance.” Appellant’s Opening Br. at 52. Martin Marietta then 

alleges that purely private contractors refused to accept limestone from Martin 

Marietta’s quarries as a result of those statements. 

Assuming all of these allegations are true, we fail to see how they amount to 

defamation. In order to constitute a defamatory statement, the speaker must make a 

false statement. See Bundren v. Parriott, 245 F. App’x 822, 826 (10th Cir. 2007) 

(unpublished) (listing the elements of defamation under Kansas law to include “false 

. . . words” (quoting Hall v. Kan. Farm Bureau, 50 P.3d 495, 504 (Kan. 2002))). 

Here, KDOT performed tests on Martin Marietta’s two quarries, and it determined 

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43 

that the quarries’ aggregate failed those tests. KDOT then disseminated this 

information to the public. 

KDOT did not make any false statements. In fact, Martin Marietta concedes that 

KDOT did not place Sunflower Quarry on the Prequalified List, because it 

determined that its aggregate had failed the new, more stringent freeze-thaw test. 

Because KDOT did not make a false statement regarding Sunflower Quarry, it did 

not defame Martin Marietta. And for Ottawa Quarry, Martin Marietta acknowledges 

that another entity operated Ottawa Quarry and provided the aggregate for pavement 

where a KDOT employee later observed D-cracking. We thus agree with the district 

court’s finding that KDOT’s removal of Ottawa Quarry does not implicate Martin 

Marietta’s business practices because it did not even own the quarry when the 

material in question for D-cracking was provided. Upon review, we find no evidence 

that KDOT made a defamatory statement against Martin Marietta.19

But even if Martin Marietta could prove that the government had made 

defamatory statements regarding its materials, it could not satisfy the “plus” of the 

stigma-plus standard. First, it cannot argue that the loss of its property interest meets 

the second prong of the stigma-plus standard, see WMX Techs., Inc. v. Miller, 197 

F.3d 367, 376 (9th Cir. 1999) (rejecting a stigma-plus claim because the alleged 

 19 If, however, KDOT had told members of the industry that they should not do 

business with Martin Marietta because it would cheat them, then we would consider a 

defamation claim. But merely sharing information that KDOT believes truthful about 

the quality of aggregate from the Ottawa and Sunflower Quarries does not constitute 

defamation. 

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44 

damage to reputation did not amount to the deprivation of a protected property 

interest), because we hold above that Martin Marietta did not plausibly allege a 

property interest. 

Second, Martin Marietta contends that, even if we do not find a property interest, 

it can satisfy the “plus” prong because it has alleged significant harm to its business 

resulting from KDOT’s allegedly false statements. If true, this could satisfy the 

“plus” prong of the test. But we see no basis for this contention. Martin Marietta 

alleges that KDOT’s actions have caused it “financial and economic repercussions 

beyond [its] ability to supply material for KDOT projects,” Appellant’s App. at 21, 

and have “impact[ed] [its] ability to earn a living by selling construction aggregate,” 

id. at 27. 

Assuming these statements to be true, we believe that they fail to demonstrate the 

requisite harm to Martin Marietta’s business as needed to find a violation of its 

liberty interest. Martin Marietta must show more harm to its business than the mere 

fact that it “was no longer able to supply material for [KDOT-funded] jobs.” 

Appellant’s Opening Br. at 54; cf. Jensen, 998 F.2d at 1559 (“Damage to prospective 

employment opportunities is too intangible to constitute deprivation of a liberty 

interest.”); Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1269 (10th Cir. 1989) 

(stating that mere injury to business reputation is insufficient); Perry v. Fed. Bureau 

of Investigation, 781 F.2d 1294, 1302 (7th Cir. 1986) (“[A] liberty interest is not 

implicated merely by a reduction in an individual’s attractiveness to potential 

employers.”); Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 982 (10th Cir. 1991) 

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45 

(“Only where the stigmatization results in the inability to obtain other employment 

does [a liberty-interest] claim rise to a constitutional level.”), overruled on other 

grounds by Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220 (10th Cir. 2000). 

Numerous courts have declined to find a liberty interest when the plaintiff is 

denied government business but can still engage in private business. See, e.g., 

Morley’s AutoBody, Inc. v. Hunter, 70 F.3d 1209, 1217 n.5 (11th Cir. 1995). Not 

only can Martin Marietta continue to sell aggregate from its Ottawa and Sunflower 

Quarries to contractors engaged in private projects, it can also supply other types of 

rock from the quarries to KDOT-funded projects. We agree with the district court 

that these factual allegations “do not plausibly support . . . a significant impairment 

to [Martin Marietta’s] operating business due to the quarries’ removal from [either 

list].” Appellant’s App. at 355–56. 

Martin Marietta has failed to allege that the defendants have significantly 

impaired its activities as the “second largest producer of construction aggregate used 

in the United States,” Appellee’s Suppl. App. at 1, by not approving Martin 

Marietta’s aggregate from Sunflower and Ottawa. As such, we hold that Martin 

Marietta has not plausibly alleged a liberty interest. 

III. CONCLUSION 

In sum, we hold that Martin Marietta has failed to demonstrate either a 

constitutionally protected property or liberty interest. Therefore, we affirm the 

district court’s decision denying relief. 

Appellate Case: 13-3314 Document: 01019553129 Date Filed: 01/13/2016 Page: 45 
No. 13-3314, Martin Marietta Materials, Inc. v. Kansas Department of Transportation

MORITZ, J., concurring in part and dissenting in part. 

Throughout its opinion, the majority repeatedly and consistently states that Martin 

Marietta asserts a property interest in actually supplying aggregate from its quarries to 

KDOT projects. Yet Martin Marietta challenges only the dismissal of its claim that it has 

a property interest in inclusion or retention on the Approved List—not in actually 

supplying aggregate. 

Applying a properly cabined due process analysis and considering only whether 

Martin Marietta has a property interest in inclusion or retention on the Approved List, I 

would hold that Martin Marietta has plausibly stated a legitimate claim to entitlement. 

Therefore, Martin Marietta’s removal from that list without notice or hearing violated its 

right to due process under the Fourteenth Amendment. Thus, I dissent from the 

majority’s decision affirming the district court’s dismissal of Martin Marietta’s 

procedural due process claim with respect to its asserted property interest. 

However, because Martin Marietta hasn’t challenged on appeal the district court’s 

conclusion that it wasn’t defamed, I concur in the majority’s decision to affirm the 

dismissal of its liberty interest claim. 

I. Martin Marietta asserts a legitimate claim of entitlement to inclusion and 

retention on the Approved List. 

To possess a protected property interest, Martin Marietta must show that state 

statutes, established rules, or mutually explicit understandings give it a “legitimate claim 

of entitlement” to that interest. An “‘abstract need or desire for it’ or a ‘unilateral 

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2 

expectation’ is insufficient.” Curtis Ambulance of Fla., Inc. v. Bd. of Cty. Comm’rs, 811 

F.2d 1371, 1375 (10th Cir. 1987) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 

564, 577 (1972)). 

“A property interest exists if . . . the procedures in question, . . . if followed, 

require a particular outcome.” Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 

319 F.3d 1211, 1217 (10th Cir. 2003). State laws, rules, and regulations don’t create 

property interests if “the governing body retains discretion” to confer or deny a benefit. 

Id. In determining “whether a plaintiff presents a legitimate claim of entitlement,” the 

court “focus[es] on the degree of discretion given the decisionmaker and not on the 

probability of the decision’s favorable outcome,” Jacobs, Visconsi & Jacobs, Co. v. City 

of Lawrence, 927 F.2d 1111, 1116 (10th Cir. 1991), or on whether the laws, rules, 

regulations, and procedures in question can be changed, see Brown v. Eppler, 725 F.3d 

1221, 1226-27 (10th Cir. 2013). 

The majority’s analysis goes awry early on when it misstates or miscomprehends 

the interest to which Martin Marietta claims it has a “legitimate claim of entitlement.” 

Specifically, the majority consistently and repeatedly mischaracterizes Martin Marietta’s 

asserted property interest as an interest in actually supplying aggregate from its quarries 

to KDOT projects.1

 1 See, e.g., Maj. Op. 15 (“[W]e understand Martin Marietta to be claiming that it 

had a property interest to supply aggregate from Ottawa Quarry to KDOT and FHWA 

projects.” (emphasis added)); id. at 15-16 ((“[F]or Sunflower Quarry, we believe Martin 

Marietta is asserting that it had a property interest to supply aggregate to KDOT and 

FHWA projects.” (emphasis added)); id. at 31 (“Martin Marietta points to no law, 

regulation, or Standard Specification provision that says that having prequalified status 

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3 

Admittedly, Martin Marietta’s pleadings contain some conflicting language 

regarding the scope of the interest it asserts.2

 And the district court may have conflated 

those two possible interests in dismissing this case.3

 But on appeal, Martin Marietta 

clearly challenges only the district court’s conclusion that it had no property interest in 

remaining on the Approved List, and it concedes its property interest isn’t contingent on 

actually supplying material to KDOT projects. See Aplt. Reply Br. 25 (“Being on the 

Approved List is . . . a right to sell,” which doesn’t “guarantee sales.” (emphasis added)); 

cf. Ripley v. Wyo. Med. Ctr., Inc., 559 F.3d 1119, 1124-25 (10th Cir. 2009) (discussing 

alternative property interests—one in receiving hospital privileges and another in 

exercising those privileges).4

 Moreover, KDOT recognizes that Martin Marietta argues it 

______________________ 

guarantees that a contractor will actually purchase and use its product.” (emphasis 

added)); id. at 35-36 (“Martin Marietta points to no law or regulation suggesting that it 

has a legitimate claim of entitlement to supply aggregate to KDOT projects.” (emphasis 

added)). 

2 See, e.g., Compl., Doc. 1, ¶ 45, at 12 (“Martin Marietta has a liberty and property 

interest in being on the A-Listing and in supplying limestone from its Ottawa Quarry to 

KDOT projects . . . .” (emphasis added)); Proposed First Am. Compl., Doc. 31-1, ¶ 52, at 

13 (“Martin Marietta has a liberty and property interest in being on the A-Listing/PQL 

and in supplying limestone from its Ottawa and Sunflower Quarries to KDOT 

projects . . . . (emphasis added)). 

3

 See Mem. & Order, Doc. 59, at 29 (“[P]laintiffs are unable to allege a plausible 

claim of a protected property interest in remaining on the A-Listing/PQL or in supplying 

aggregate for concrete in KDOT’s on-grade pavement projects.” (emphasis added)). 

4

 Further, in response to questioning at oral argument, Martin Marietta explicitly 

confirmed that its due process claim is based solely on remaining on KDOT’s Approved 

List of aggregate suppliers. See Oral Arg. Trans. at 11:04-11:12 (responding to the 

question, “Are you saying there [are] two different property interests, there’s one 

combined property interest, what is your position?,” with, “Our property interest is being 

on the Approved List.”). 

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4 

has a property interest in having “aggregate from its quarries on KDOT’s Approved List 

for use in on-grade pavement.” Aplee. Br. 16-17. 

Martin Marietta clearly asserts a property interest in its inclusion and retention on 

the Approved List, and I would consider only that asserted interest in determining 

whether Martin Marietta has plausibly alleged a violation of procedural due process. 

II. KDOT lacks discretion to include or remove a qualified quarry from its 

Approved List if that quarry meets the Standard Specifications. 

Having mischaracterized the nature of the asserted property interest, the majority 

compounds its error by applying the degree-of-discretion test to KDOT’s discretion to 

oversee the quality of the aggregate actually used by suppliers.5

 But again, Martin 

Marietta doesn’t claim an interest in ultimately supplying aggregate, or in contracting 

with any particular contractor. Nor does Martin Marietta contend that KDOT lacks 

discretion to oversee the quality of aggregate actually used by contractors. I would 

restrict application of the degree-of-discretion test to the property interest alleged, and 

 5 See, e.g., Maj. Op. 23 (“[Martin Marietta’s] argument must fail because it would 

result in a supplier being able to claim a constitutionally protected property interest in 

selling its aggregate to KDOT projects without KDOT having any ability to oversee the 

material quality.” (emphasis added)); id. at 31 (“But KDOT’s ability to reject the 

aggregate for other reasons—project special provisions, material-test methods, materialtest reports, or change orders—demonstrates that a supplier’s being on a preapproved list 

does not entitle it to sell its material or have that material actually accepted at the project 

site.” (emphasis added)); id. at 33 (“[P]requalified status does not guarantee that Martin 

Marietta will actually sell its aggregate.” (emphasis added)); id. at 36-37 (“And we rely 

not only on KDOT’s ability to reject aggregate at the project site but also on the basis that 

KDOT does not guarantee sales to any supplier simply because it is on a preapproved 

list.” (emphasis added)). 

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5 

consider whether KDOT has discretion to include or remove suppliers from its Approved 

List.6

 

A. KDOT’s procedure for including a quarry on the Approved List 

Kansas’ Secretary of Transportation has broad supervisory authority over the 

“construction and maintenance of all roads . . . throughout the state,” with certain 

exceptions not relevant here. Kan. Stat. Ann. § 68-404(a). This includes authority “to 

make tests, do research, to inspect and test all materials, supplies, equipment, and 

machinery used for state highway purposes, and to develop methods and procedures for 

this purpose.” Id. § 68-404(h). The Secretary may exercise this authority by “adopt[ing] 

rules and regulations,” id. § 68-404(k), and performing “such other acts and duties,” id. 

§ 68-404(j), necessary to carry out the State’s transportation-related laws. 

The Secretary has exercised this authority by adopting the Standard Specifications 

for State Road and Bridge Construction (2007), as amended by the Special Provisions to 

the Standard Specifications. Division 1100 of the Standard Specifications “covers the 

 6

 The majority chides Martin Marietta for failing to distinguish between the 

Ottawa quarry’s inclusion on the Approved List prior to 2013 and the Sunflower quarry’s 

inclusion on what the majority refers to as a “new” list after 2013. I find the majority’s 

insistence on referring to distinct lists confusing at best, since none of the parties have 

asserted such a distinction. In any event, the majority’s distinction appears to be based on 

KDOT’s ability to change its specifications and create a new list with new specifications, 

which the majority suggests KDOT did in 2013. But as discussed infra, Martin Marietta 

doesn’t dispute KDOT’s ability to change its specifications or even to create a new list 

with new specifications. See Aplt. Br. 23-24. Instead, it simply argues that KDOT not 

only lacks discretion to remove suppliers from the existing Approved List, but also lacks 

discretion to exclude suppliers from the Approved List in the first instance if the supplier 

meets the specifications. See Aplt. Br. 5-10. Thus, even assuming KDOT created an 

entirely new list in 2013, if KDOT lacked discretion to exclude a qualified supplier from 

that list, then the supplier has a property interest in inclusion on that list. 

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6 

basis of approval, certification and acceptance of aggregates,” Std. Specs. § 1101.1, and 

incorporates the sampling and testing requirements contained in Part V of KDOT’s 

Construction Manual,7 id. § 1101.2(b)(2). Part V, in turn, provides a specific procedure 

and substantive requirements for sources to prequalify. These procedures and 

requirements are significant because KDOT will reject any aggregates “produced from 

deposits, ledges, or beds that have not been previously approved for quality.” Id.

§ 1101.2(b)(4). 

Inclusion on the Approved List, however, doesn’t guarantee a source will be used 

to supply a KDOT project because contractors choose which source or sources to use. See

id. § 101, at 9 (defining “suppliers” as entities “from which the Contractor obtains 

commodities needed to fulfill the contract”). 

Part V of KDOT’s Construction Manual provides the process for prequalifying to 

supply aggregate. In general, 

[a]dditional testing is performed on concrete produced with Class I and 

Class II Aggregates to determine if acceptable levels of concrete 

freeze/thaw resistance are provided. The freeze/thaw testing is intended to 

reduce the risk of the occurrence of premature “D-Cracking.” . . . 

Prequalification to produce Class I and Class II Aggregate is granted to a 

quarry on a bed by bed basis for each distinct bed in the quarry face. 

“Official Quality” sampling and testing is also required. The acceptance of 

Class I and Class II Aggregate is contingent upon production being from 

approved beds and in compliance with “Official Quality” requirements. 

Part V § 5.02(c)(1). 

 7

 Citations to Part V are to the 2007 version of the Manual, which is located at 

Doc. No. 59-4 of the district court docket. 

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7 

Specifically, for inclusion on the Approved List, a quarry operator contacts the 

District Materials Engineer (DME), who is responsible for initiating KDOT’s 

prequalification process. Id. § 5.02(c)(2)a. The Chief Geologist then arranges for a quarry 

inventory and sample collection. Id. § 5.02(c)(2)b. “The quarry inventory and sampling 

procedures will be conducted in accordance with written guidelines maintained by the 

Chief Geologist.” Id. (emphasis added). Then, 

[t]he Engineer of Tests will process and test the . . . samples to determine if 

each bed is in compliance with the specified requirements for Class I and 

Class II Aggregate. . . . The Engineer of Tests will prepare and distribute a 

listing showing the approved Class I and Class II beds for each quarry. . . . 

Inclusion on the approved listing requires 2 consecutive passing 

Production Samples representing current production from beds meeting the 

Class I or Class II requirement. . . . Exception to this process will require 

approval of the Chief of Materials and Research. 

 

Id. § 5.02(c)(2)c (emphasis added). 

In light of these provisions, it’s clear that inclusion of a quarry bed on the 

Approved List isn’t left to KDOT’s discretion.8

 After all, the Standard Specifications 

speak in terms of procedures that “will be conducted in accordance with written 

guidelines,” id. § 5.02(c)(2)b (emphasis added), and require testing to determine 

“compliance with the specified requirements,” id. § 5.02(c)(2)c (emphasis added). By 

adopting these Specifications, KDOT has severely limited its broad statutory discretion; 

if a quarry has two consecutive passing samples meeting the technical substantive 

 8

 Indeed, the majority appears to concede that inclusion on the list is governed 

solely by objective criteria, not KDOT’s discretion. See Maj. Op. 31 (“We agree with 

Martin Marietta that KDOT’s ability to retest the aggregate and reject it at the project site 

does not mean that a party’s qualifying for a preapproved list is governed by anything but 

the Standard Specifications.” (emphasis added)). 

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8 

requirements in the Standard Specifications, KDOT must include the quarry on the 

Approved List. See id. 

B. KDOT’s procedure for removing a quarry from the Approved List 

Just as KDOT has adopted rules and specifications limiting its discretion with 

respect to inclusion of a quarry on the Approved List, it has adopted rules and 

specifications similarly limiting its discretion to remove a quarry from the list once that 

quarry has been prequalified. Specifically, Part V provides that “[a]fter a quarry has been 

prequalified . . . the prequalified status will continue as long as no major changes are 

made in the production process or occur in the deposit characteristics.” Id. § 5.02(c)(5) 

(emphasis added); see also Std. Specs. § 1101.4 (“Approved sources remain approved 

only if there are no major changes in the production methods or deposit characteristics.”). 

“Changes in deposit characteristics may be discovered either visually or through test 

results performed on Production Samples.” Part V § 5.02(c)(5). 

Importantly, the meaning of the term “major changes” is not left to KDOT’s 

discretion. Rather, a “major change” occurs if (1) a mining operation moves a 

“significant distance from where the last inventory inspection was made”; (2) “significant 

changes are observed in the deposit characteristics”; (3) it has been two years since an 

active quarry was last reinventoried; or (4) “a production sample fails.” Id. 

Only one provision, Part V § 5.02(c)(5), arguably stands in tension with these nondiscretionary provisions. It states, “When any party feels that any change in the 

prequalified status of a quarry is warranted they should notify the DME responsible for 

quarry inspection who in turn will advise the Chief of Materials and Research,” who will 

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9 

then “review all available information on the changed conditions and render a decision 

on any such changes.” Id. (emphasis added). Both KDOT and the majority rely, at least 

to some extent, on Part V § 5.02(c)(5) to conclude that KDOT’s discretion is sufficient to 

destroy Martin Marietta’s property interest. For the reasons discussed below, § 5.02(c)(5) 

just isn’t capable of that kind of heavy lifting. 

First, KDOT suggests that § 5.02(c)(5) gives it discretion to remove from the 

Approved List any quarry that, “in its judgment, does not produce a product of sufficient 

quality.” See Aplee. Br. 38-39. But interpreting Part V § 5.02(c)(5) to allow KDOT to 

remove a supplier from the list for any reason whatsoever is inconsistent with the 

provisions discussed above, which specifically provide that a quarry’s “prequalified 

status will continue as long as no major changes”—which are specified in Part V and 

which do not apply here—“are made in the production process or occur in the deposit 

characteristics.” Part V § 5.02(c)(5) (emphasis added). 

The majority, on the other hand, concludes Part V § 5.02(c)(5) gives KDOT 

“discretion to reject aggregate if it has ‘reason to believe’ that the aggregate does not 

comply with the Contract documents, which include a variety of requirements beyond the 

Standard Specifications.” Maj. Op. 33 (emphasis added). Even assuming the majority is 

correct, this interpretation renders § 5.02(c)(5) irrelevant to our discussion. The question 

here is whether KDOT retains discretion to remove a supplier from the list—not whether 

it retains discretion to reject aggregate. 

Instead, the most natural and reasonable interpretation of the Part V § 5.02(c)(5) 

is that it permits “any party” to request that the Chief of Materials and Research verify 

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10 

that a quarry, once on the Approved List, continues to meet the requirements for 

inclusion on that list as spelled out in the Standard Specifications. Thus, Part V 

§ 5.02(c)(5)’s reference to “any change” refers back to the “major changes” specified in 

that section, which provides, “After a quarry has been prequalified . . . the prequalified 

status will continue as long as no major changes are made in the production process or 

occur in the deposit characteristics.” Id. (emphasis added); see also Std. Specs. § 1101.4 

(“Approved sources remain approved only if there are no major changes in the 

production methods or deposit characteristics.” (emphasis added)). This interpretation is 

not only internally consistent but avoids rendering the “major changes” provisions of Part 

V § 5.02(c)(5) and § 1101.4 of the Standard Specifications meaningless. 

Thus, I would hold that KDOT has adopted rules and specifications which limit its 

discretion to remove a preapproved supplier from the Approved List.9

C. KDOT’s regulations governing the bidding and supply process don’t 

apply to Martin Marietta’s asserted property right 

Finally, I can’t accept the majority’s attempt to liken Martin Marietta’s asserted 

property interest to that of a “disappointed bidder” or an incidental third-party 

beneficiary, both of which generally lack a property interest in a government contract. 

See Maj. Op. 25-26, 37. Neither analogy is apt. The disappointed-bidder cases the 

 9

 KDOT suggests that it “could not perform its legislatively-mandated duties if 

[its] use of technical specifications was construed to prevent it from exercising discretion 

to remove materials that do not perform as required.” Aplee. Br. 56-57. Once again, this 

dire prediction misconstrues the issue and misstates the remedy sought. Nothing prevents 

KDOT from removing a supplier’s quarry from the Approved List if the quarry’s 

aggregate no longer meets the criteria in the Standard Specifications, so long as the 

supplier is afforded due process (e.g., notice and a pre- or post-deprivation hearing) to 

contest the allegations. 

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11 

majority cites turn on an examination of the particular regulations governing the bidding 

process, all of which implicitly or explicitly gave the government broad discretion in 

selecting the winning bid.10 As discussed, that is not the case here. Similarly, any analogy 

to third-party beneficiaries of government contracts is also unpersuasive because it 

assumes Martin Marietta claims a property interest as a result of a provision in a contract 

between KDOT and a contractor. But Martin Marietta’s property interest claim doesn’t 

rely on the existence of a contract; it relies on the requirements detailed in the Standard 

Specifications. Privity isn’t a requirement in this circumstance. 

Because KDOT has retained no discretion to exclude or remove a quarry from the 

Approved List so long as that quarry satisfies the Standard Specifications, I would hold 

that Martin Marietta has properly asserted a property interest protected by the Due 

Process Clause of the Fourteenth Amendment. 

 10 See, e.g., Glover v. Mabrey, 384 F. App’x 763, 777 (10th Cir. 2010)

(unpublished) (holding no property or liberty interest in being prequalified bidder 

because prequalified bidder determination is subject to department of transportation’s 

sole discretion); S. Disposal, Inc. v. Tex. Waste Mgmt., a Div. of Waste Mgmt. of Tex., 

Inc., 161 F.3d 1259, 1265 (10th Cir. 1998) (holding plaintiff had no property interest as a 

bidder to waste disposal contract because it was never guaranteed the contract); Curtis 

Ambulance of Fla., 811 F.2d at 1383 (holding plaintiff lacked property interest in contract 

for ambulance services when procedures provided that defendant “may” enter into a 

contract for professional services by competitive bidding); Interior Contractors, Inc. v. 

Bd. of Trs. of Newman Mem’l Cty. Hosp., 185 F. Supp. 2d 1216, 1228 (D. Kan. 2002) 

(holding Kansas competitive bidding statute requiring certain contracts to go to “lowest 

and best bid” doesn’t confer property right to bidders because standard leaves broad 

discretion to decisionmaker). 

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12 

III. Martin Marietta hasn’t plausibly stated a liberty interest because it hasn’t 

challenged the district court’s defamation holding. 

Martin Marietta also claims a liberty interest in its reputation, specifically a right 

not to be defamed by government officials in a manner that harms its ability to earn a 

living or damages its standing in the community. It alleges that by removing its quarries 

from the Approved List, KDOT announced to the industry that the Ottawa and Sunflower 

quarries could not be trusted to produce acceptable concrete. The district court dismissed 

Martin Marietta’s liberty interest claim, at least in part, because it held that Martin 

Marietta couldn’t establish a property interest. 

The majority affirms the district court’s dismissal of Martin Marietta’s liberty 

interest claim on substantive grounds. But as KDOT points out, Martin Marietta hasn’t 

appealed the district court’s judgment with respect to the state law defamation claim. See 

Mem. & Order, Doc. 59, at 44-47 (dismissing Martin Marietta’s defamation claim for 

failure to state a claim because Kansas doesn’t recognize the tort of product 

disparagement); Aplee. Br. 51 (noting that “Martin Marietta has not appealed the district 

court’s determination that it does not have a valid defamation claim and that 

determination is now the law of the case.”).11 Thus, because Martin Marietta hasn’t 

alleged an actionable defamation claim that could give rise to a protected liberty interest, 

I concur with that portion of the majority’s decision affirming the dismissal of Martin 

Marietta’s procedural due process claim based on an asserted liberty interest. 

 11 In its reply, Martin Marietta doesn’t challenge KDOT’s assertion that the district 

court’s defamation holding is now the law of the case. Rather, Martin Marietta simply 

reiterates its argument that it plausibly alleged defamation in its complaint. See Aplt. 

Reply Br. 11-13. 

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