Martin Marietta Materials, Inc. v. Kan. Dep't of Transp.
| Decision Date | 13 January 2016 |
| Docket Number | No. 13–3314.,13–3314. |
| Citation | 810 F.3d 1161 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Tenth Circuit |
H. Wayne Phears (Daniel L. Delnero, with him on the briefs), McGuireWoods LLP, Atlanta, GA, for Plaintiffs–Appellants.
Lyndon W. Vix (Carmen D. Tucker Bakarich and Gelene D. Savage, Kansas Department of Transportation, Topeka, KS, and Charles E. Milsap, Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, KS with him on the brief), Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, KS, for Kansas Department of Transportation, Defendant–Appellee.
Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.
INTRODUCTION
Martin Marietta Materials, Inc. appeals the district court's dismissal of its due-process claims against the Kansas Department of Transportation (KDOT). After KDOT removed two Martin Marietta quarries from its preapproved lists of limestone-aggregate 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 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.
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 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.
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.
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.
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 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 D-cracking.
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.
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 more-stringent 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.
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.
To continue reading
Request your trial
-
Caldwell v. Univ. of N.M. Bd. of Regents
...protections. Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). See Martin Marietta Materials, Inc. v. Kansas Dept. of Transp., 810 F.3d 1161, 1184 (10th Cir. 2016) ("Damage to reputation alone ... is not sufficient."); Gwinn v. Awmiller, 354 F.3d 1211, 1216 (10th Cir. ......
-
Gutierrez v. Johnson & Johnson Int'l, Inc.
...leave to amend." Martin Marietta Materials, Inc. v. Kansas Dep't of Transp. , 953 F. Supp. 2d 1176, 1181 (D. Kan. 2013), aff'd , 810 F.3d 1161 (10th Cir. 2016). The Court will consider the parties’ pending motions in light of the foregoing standards.B. The Court will deny Defendant's First ......
-
McGuire v. Nielsen
...is not determined by the particular procedure at issue,’ then no property interest exists." Martin Marietta Materials, Inc. v. Kan. Dep't of Transp., 810 F.3d 1161, 1178 (10th Cir. 2016) (quoting Crown Point I, LLC v. Intermountain Rural Elec. Ass'n, 319 F.3d 1211, 1217 (10th Cir. 2003)) (e......
-
Weise v. Colo. Springs, Civil Action No. 17-cv-02696-PAB-NYW
...due process rights by damaging her reputation must satisfy the "stigma-plus" standard. See Martin Marietta Materials, Inc. v. Kan. Dep't of Transp. , 810 F.3d 1161, 1184 (10th Cir. 2016) (internal quotation marks omitted). Under that standard, a plaintiff must show: "(1) governmental defama......