                                                                    FILED
                                                             United States Court of
                                  PUBLISH                        Appeals
                                                                 Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                                  August 14, 2020
                         FOR THE TENTH CIRCUIT               Christopher M. Wolpert
                    ______________________________________       Clerk of Court

MIKE LEE CASTANON; ELITE
OILFIELD SERVICES, LLC,

       Plaintiffs - Appellants,

v.                                                  No. 19-6141

KELLY CATHEY, an individual;
MIKE CORY, an individual;
RICHARD BICKLE, an individual;
DAVID MOORE, an individual;
DEBBIE SCHAUF, an individual;
and OKLAHOMA HORSE RACING
COMMISSION.

       Defendants – Appellees,

and

DEBBIE SCHAUF, an individual,

       Defendant.
                    ______________________________________

              Appeal from the United States District Court
                 for the Western District of Oklahoma
                      (D.C. No. 5:18-CV-00537-R)
                 ______________________________________

Clark O. Brewster, Brewster & De Angelis, P.L.L.C., Tulsa, Oklahoma
(Mbilike M. Mwafulirwa with him on the briefs), for Plaintiffs-Appellants.

Randall Yates, Assistant Solicitor General, Oklahoma City, Oklahoma
(Jacqueline R. Zamarripa, Assistant Attorney General, Oklahoma City,
Oklahoma with him on the briefs), for Defendants-Appellees.
                 ______________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
             ______________________________________

BACHARACH, Circuit Judge.
            ______________________________________

      This appeal stems from the disqualification of two horses from two

races. The plaintiffs owned two horses registered to race, but state racing

officials determined that the horses were ineligible. The owners sued,

alleging denial of due process in disqualifying one of the horses. The

district court dismissed the claim based on the absence of a property or

liberty interest. The owners asked the district court to alter or amend the

judgment. The district court denied this request, and the owners appeal. We

affirm the denial of the motion to alter or amend.

      When moving to alter or amend the judgment, the owners

      •     reasserted one argument that the district court had rejected and

      •     asserted two new arguments that could have been raised earlier.

The district court acted within its discretion in rejecting these arguments

as a basis to alter or amend the judgment, for these arguments are

procedurally and substantively invalid.

      The arguments are procedurally invalid because they are not suitable

for a motion to alter or amend the judgment. This kind of motion cannot be

based on the reassertion of earlier arguments or the assertion of new

arguments that could have been raised earlier. So the owners could not


                                          2
properly raise any of these arguments in a motion to alter or amend the

judgment.

      These arguments are also substantively invalid because the racing

officials’ disqualification of the horses did not deprive the owners of a

property or liberty interest.

I.    Officials disqualified the plaintiffs’ horses based on suspension of
      the trainer.

      The plaintiffs owned two horses: EOS A Political Win and EOS

Trumpster. EOS Trumpster won a horse race, and EOS A Political Win was

set to run in a later race. Both horses had the same trainer.

      Between the two races, the Oklahoma Horse Racing Commission

found that EOS Trumpster had tested positive for a banned substance. This

finding led the Commission to suspend the trainer’s horse-racing license.

Because this trainer also handled EOS A Political Win, officials

disqualified EOS A Political Win from the upcoming race.

      But officials allegedly waited to tell the owners about the

disqualification of EOS A Political Win. The delay allegedly prevented the

owners from seeking judicial review before the race, so the owners asked

the Commission’s Executive Director to stay the order of disqualification.

He declined, and the race proceeded without EOS A Political Win.

      After the race, the owners sued for a denial of due process, naming

the Commission and four of its officials (the Executive Director and three

                                         3
stewards). 1 The Commission and its four officials moved to dismiss the

complaint and the district court granted the motion, holding that

      •     the owners lacked a property or liberty interest protected by the
            Fourteenth Amendment and

      •     any potential property or liberty interest would not have been
            clearly established.

      The owners then moved to alter or amend the judgment. As part of

the motion, the owners sought permission to amend the complaint. The

district court denied the motion to alter or amend.

II.   The district court acted within its discretion when declining to
      alter or amend the judgment.
      In their motion to alter or amend the judgment, the owners asked the

court to reconsider the existence of a property or liberty interest. 2 The

district court declined to alter or amend the judgment, and we review that

ruling for an abuse of discretion. Nelson v. City of Albuquerque, 921 F.3d

925, 929 (10th Cir. 2019). In conducting that review, we conclude that the

district court didn’t abuse its discretion in light of the absence of a

protected interest.




1
      The owners also sued the Executive Director of the Oklahoma
Quarter Horse Racing Association. But the claim against this individual is
not involved in the appeal.
2
    The owners also urged reconsideration on the issue of qualified
immunity. But we need not address this issue.
                                          4
      A.    The owners claim three property or liberty interests.

      Procedural due process is required when a plaintiff is deprived of

“interests encompassed by the Fourteenth Amendment’s protection of

liberty and property.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,

569 (1972). To evaluate a claim involving procedural due process, we ask

(1) whether the defendants’ actions deprived the plaintiffs of a property or

liberty interest and (2) if so, whether the plaintiffs “were afforded the

appropriate level of process.” M.A.K. Inv. Grp., LLC v. City of Glendale,

897 F.3d 1303, 1308–09 (10th Cir. 2018) (quoting Pater v. City of Casper,

646 F.3d 1290, 1293 (10th Cir. 2011)).

      Property interests arise from “existing rules and understandings that

stem from an independent source such as state law.” Roth, 408 U.S. at 577;

Carnes v. Parker, 922 F.2d 1506, 1509 (10th Cir. 1991). Liberty interests

“may arise from the Constitution itself, by reason of guarantees implicit in

the word ‘liberty’ . . . or . . . from an expectation or interest created by

state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).

      The owners assert three interests:

      1.    an interest in a government-sponsored program,

      2.    an interest in using property to pursue business or leisure, and

      3.    an interest in a state cause of action for judicial review.




                                           5
      B.    The owners couldn’t assert these interests in the Rule 59(e)
            motion to alter or amend the judgment.

      The owners waited to invoke two of the purported interests until the

motion to alter or amend the judgment: (1) an interest in a government-

sponsored program and (2) an interest in using the property to pursue

business or leisure. In asserting these interests, the owners invoked Federal

Rule of Civil Procedure 59(e). 3 This rule allows litigants to ask the court

to reconsider adverse judgments. But the remedy is limited: a court can

grant relief under Rule 59(e) only when the court has “misapprehended the

facts, a party’s position, or the controlling law.” Servants of the Paraclete

v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

      Given the parties’ interests in the finality of judgments, Rule 59(e)

motions are “not appropriate to revisit issues already addressed or advance

arguments that could have been raised in prior briefing.” Id. The owners

could have invoked these purported property and liberty interests when

opposing the motion to dismiss. But the owners instead waited to assert

these interests until they filed their Rule 59(e) motion.

      The owners offer no excuse for their delay. When asked if the owners

could have presented the arguments earlier, the owners’ attorney responded

that “[w]e could have, I suppose.” Oral Arg. at 8:00. Because the owners



3
      The owners also moved for relief under Rule 60(b)(6). But the Rule
60(b)(6) motion isn’t at issue in this appeal.
                                         6
could have raised these arguments earlier, the district court acted within its

discretion in rejecting these arguments newly asserted in the Rule 59(e)

motion.

      The owners also urge a property interest in their state cause of action

for judicial review. This argument appeared in the owners’ response to the

motion to dismiss. See Appellants’ App’x at 115 (“[A]s OHRC licensees,

the Oklahoma Rules of Racing entitled Plaintiffs to notice of impending

adverse action and a meaningful opportunity to be heard.”). But Rule 59(e)

“may not be used to relitigate old matters,” Exxon Shipping Co. v. Baker,

554 U.S. 471, 485 n.5 (2008) (quoting 11 C. Wright & A. Miller, Federal

Practice and Procedure § 2810.1, at 127–28 (2d ed. 1995)), unless a party

shows that the district court misunderstood the facts or the law, Servants of

Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). This part of the

motion to alter or amend the judgment simply rehashed the owners’

response to the motion to dismiss. So the district court had discretion to

decline consideration of the owners’ reasserted argument.

      C.    Even if these arguments had been properly raised, they
            would not show a property or liberty interest.

      Even if we overlook the limited scope of Rule 59(e), the state racing

officials did not deprive the owners of a property or liberty interest.




                                         7
      1.    The owners lacked a property or liberty interest in a
            government-sponsored program.

      In asserting an interest in a government-sponsored program, the

owners rely on an Oklahoma statute and the Oklahoma Administrative

Code, which require participants in a state-sanctioned horse race to be

licensees, to have a horse and trainer, and to register the horse. See Okla.

Stat. tit. 3A § 204(A); Okla. Admin. Code §§ 325:15-5-1(1)(B)–(C);

325:35-1-5(b)(4). The owners argue that they satisfied these requirements,

triggering a property or liberty interest.

      But the owners don’t show any limits on the discretion of state racing

officials to disqualify EOS A Political Win. The owners argue that a state

regulation limits discretion by providing specific grounds for denial,

refusal, suspension, or revocation of a license by the stewards. Okla.

Admin. Code §§ 325:1-1-7(a), (c)(2); id. 325:15-5-10(a).

      But the owners never explain why the stewards lacked discretion to

disqualify EOS A Political Win. The owners acknowledge that the

Oklahoma Administrative Code “empower[s] the stewards to exercise

plenary authority over all questions about horseracing.” Appellants’

Opening Br. at 7; see Okla. Admin. Code 325:20-1-8 (stating that the

Stewards are empowered to determine all questions on eligibility of horses

to race). In light of this plenary power, the owners stated in district court

that they weren’t challenging the suspension of the trainer’s license. See

                                             8
Appellants’ Opening Br. at 5 (stating that the decision to suspend the

owners’ horse trainer “is not at issue in this appeal”). With that

suspension, every horse handled by that trainer was automatically

disqualified from racing. See Okla. Admin. Code 325:25-1-10(b)(1) “([A]

horse is ineligible to start in a race if . . . [it] is trained by any person who

is suspended or ineligible for a license.”). And the owners haven’t

challenged that automatic disqualification.

      The owners point out that the suspension did not prevent substitution

of another trainer for EOS A Political Win. But the owners also conceded

in district court that state racing officials had discretion whether to allow

substitution of another trainer and could use their judgment in exercising

that discretion. See Appellants’ App’x at 206 (“The decision to refuse the

use of a substitute trainer was, in Defendants’ own words, an exercise of

discretion[,]” and “‘[t]he exercise of discretion necessarily involves the

‘exercise of judgment and choice’” (quoting Black’s Law Dictionary 534

(9th ed. 2009))).

      Despite the discretion of state racing officials, the owners argue that

Barry v. Barchi required due process “in summary suspension proceedings

for alleged horse drug violation by trainers.” Appellants’ Opening Brief at

32 (citing Barry v. Barchi, 443 U.S. 55, 64–65 (1979)). But Barchi applied

New York racing law, not Oklahoma law, and the opinion does not suggest

a right to participate in an Oklahoma horse race.
                                        9
      The owners also cite cases concerning property interests in rent

subsidies and Massachusetts driver’s licenses, but the owners don’t explain

how these cases establish a protected interest under Oklahoma law.

                                     * * *

      State racing officials had discretion to suspend the trainer’s license,

disqualify the trainer’s horses, and prevent substitution of another trainer.

So Oklahoma’s statute and administrative code did not create a protected

interest for the owners to race EOS A Political Win after the suspension of

its trainer.

      2.       The owners lacked a liberty interest in using EOS A Political
               Win to pursue business or leisure.

      The owners also allege deprivation of a liberty interest in using EOS

A Political Win to pursue business or leisure. For the sake of argument, we

may assume that the owners enjoy a liberty interest in the business of

racing horses. But the owners remained free to pursue the business of

racing horses; the owners challenge only their opportunity to participate in

a single race while the trainer was under suspension. The inability to

participate in that race did not deprive the owners of a liberty interest. See

Conn v. Gabbert, 526 U.S. 286, 292 (1999) (contrasting government

actions causing “a brief interruption” of a person’s occupation, which do

not implicate a liberty interest, with “a complete prohibition of the right to

engage in a calling”); Martin Marietta Materials, Inc. v. Kan. Dep’t of

                                         10
Transp., 810 F.3d 1161, 1185–86 (10th Cir. 2016) (holding that

governmental action barring the plaintiff’s business from supplying certain

products for state highway projects did not cause “the requisite harm to

[the plaintiff] business as needed to find a violation of its liberty interest”

because the plaintiff could still pursue other opportunities).

      The owners cite two out-of-circuit cases, one dealing with humane

societies seizing horses and the other with suspension of a driver’s license.

Appellants’ Opening Br. at 18–19 (citing Porter v. DiBlasio, 93 F.3d 301,

307 (7th Cir. 1996) (seized horses); Wall v. King, 206 F.2d 878, 882 (1st

Cir. 1953) (suspension of driver’s license)). These cases rested on different

facts; the owners don’t explain how liberty interests in a seized horse or

driver’s license would show a protected interest in racing a horse that was

ineligible because of the trainer’s suspension.

      Given the owners’ failure to identify the deprivation of a liberty

interest, the district court acted within its discretion in declining to alter or

amend the judgment based on an interest in using the horse to pursue

business or leisure.

      3.    The racing officials’ alleged failure to allow pre-deprivation
            review did not deprive the owners of due process.

      The owners also urge a property interest in a state-law cause of

action. The availability of a “statutory cause of action” can create a

property interest. M.A.K. Inv. Grp., LLC v. City of Glendale, 897 F.3d

                                          11
1303, 1309 (10th Cir. 2018). The owners invoke this interest, pointing to

Oklahoma statutes authorizing judicial review of an adverse decision by

the Oklahoma Horse Racing Commission. Okla. Stat. tit. 75, § 322.

      But even if this cause of action constitutes a property right, the

owners didn’t show a deprivation. The statute offers an opportunity for

judicial review, but the statute doesn’t say that the review must precede the

deprivation. Indeed, the statute is triggered only when the Commission has

already rendered an adverse decision.

      Given the availability of the state cause-of-action authorized by the

statute, the district court reasoned that the owners hadn’t explained how

they had been deprived of an opportunity to pursue their statutory remedy.

Cf. Gamble v. Webb, 806 F.2d 1258, 1261–62 (5th Cir. 1986) (per curiam)

(holding that the availability of a post-deprivation remedy was sufficient

for temporary suspension of the license for an owner of a racehorse). On

appeal, the owners don’t explain what was wrong with the district court’s

reasoning. See Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366 (10th

Cir. 2015) (stating that the appellant must “explain what was wrong with

the reasoning that the district court relied on in reaching its decision”).

Given the absence of an explanation, we conclude that the owners haven’t

shown a deprivation of due process. 4


4
     The owners also argue that “when . . . a party faces the threat of
imminent harm to constitutional interests, Oklahoma imagines pre-
                                       12
                                     * * *

       Once a plaintiff has established a property or liberty interest, the

right to due process attaches. But without a property or liberty interest, the

owners were not entitled to any form of process before officials

disqualified EOS A Political Win from the race. The owners could have

obtained judicial review after the race, and they haven’t explained why this

opportunity failed to supply due process.

III.   The district court did not abuse its discretion by denying leave to
       amend the complaint after dismissal of the action.
       The owners also challenge the denial of their request for leave to

amend the complaint. We reject this challenge.

       A.    We again apply the abuse-of-discretion standard.

       We usually review the denial of leave to amend a complaint under the

abuse-of-discretion standard. See Albers v. Bd. of Cty. Comm’rs of

Jefferson Cty., 771 F.3d 697, 700–01 (10th Cir. 2014). But when a district

court denies leave to amend because amendment would be futile, “our

review for abuse of discretion includes de novo review of the legal basis




deprivation remedies.” Appellants’ Opening Br. at 21. For this argument,
the owners cite an Oklahoma opinion stating that “a writ of prohibition
may be employed to control [a public officer’s unlawful] actions.” Id.
(quoting Draper v. State, 621 P.2d 1142, 1147 (Okla. 1980)). But the
owners forfeited this argument by omitting it in district court. See Richison
v. Ernest Group., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011).
                                          13
for the finding of futility.” Miller ex rel. S.M. v. Bd. of Educ. of

Albuquerque Pub. Schs., 565 F.3d 1232, 1249 (10th Cir. 2009).

      The owners argue that the district court denied the motion to amend

in part because amendment would be futile, triggering de novo review. But

the district court didn’t deny the motion to amend based on futility. The

court instead reasoned that the owners had unduly delayed and flouted a

local rule requiring attachment of the proposed amendment to the motion to

amend. Castanon v. Cathey, No. 18-cv-00537-R, slip op. at 18–19 (W.D.

Okla. Sept. 6, 2019). The court added that “[w]ithout a proposed pleading,

the Court [was] unable to assess whether amendment would be futile.” Id.

      Because the owners’ failure to comply with the local rule prevented

the district court from assessing the futility of an amendment, de novo

review is unwarranted. We instead apply the typical standard of review for

the denial of leave to amend a complaint: abuse of discretion. See p. 13,

above.

      B.    The district court did not abuse its discretion in denying
            leave to amend the complaint.

      District courts “should freely give leave [to amend] when justice so

requires.” Fed. R. Civ. P. 15(a)(2). But limits exist. Albers v. Bd. of Cty.

Comm’rs of Jefferson Cty., 771 F.3d 697, 706 (10th Cir. 2014).

      The owners contend that they were entitled to amend their complaint

because the case had been removed from state court to federal court,

                                          14
triggering greater scrutiny of the complaint. Typically, “[r]emoval from a

notice pleading jurisdiction is a natural time at which justice would call for

the court to permit . . . an amendment.” Pena v. City of Rio Grande, 879

F.3d 613, 617 (5th Cir. 2018). But here, the difference between the state

and federal pleading rules did not contribute to the denial of leave to

amend. Instead, the district court denied leave to amend because the

owners had waited too long and had failed to attach the proposed

amendment. Both reasons fell within the district court’s discretion.

      First, the district court had discretion to reject a tardy motion to

amend a complaint. District courts may deny leave to amend when a

plaintiff has waited too long and cannot account for the delay. Minter v.

Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006).

      The owners had ample time to amend their complaint, but they waited

to seek amendment until more than fourteen months after the removal. The

owners don’t explain this delay. They instead question the case law stating

that a district court may deny a request for leave to amend based on delay

alone.

      For instance, the owners point to Foman v. Davis, which states that

leave to amend should be given freely. 371 U.S. 178, 182 (1962). Though

Foman notes that leave to amend shall be given freely, Foman also

includes a limitation, stating that amendment shall be permitted only “[i]n


                                         15
the absence of any apparent or declared reason—such as undue delay . . . .”

371 U.S. at 182.

      The owners also try to distinguish Combs v. PriceWaterhouse

Coopers LLP, 382 F.3d 1196, 1206 (10th Cir. 2004). There we denied a

motion to amend a complaint based in part on the plaintiffs’ delay. 382

F.3d at 1206. The owners point out that there the plaintiffs waited even

longer, failing to seek amendment until after the district court had issued

an adverse summary-judgment ruling. Id. at 1198, 1205. But even if Combs

is distinguishable, the owners’ unexplained delay here would be enough to

affirm the district court’s decision. “[U]nexplained delay alone justifies

the district court’s discretionary decision.” Durham v. Xerox Corp., 18

F.3d 836, 840 (10th Cir. 1994).

      And the district court didn’t rest on delay alone. The court also relied

on the owners’ failure to attach a copy of the proposed amendment. For

this ground, the court cited a local rule requiring attachment of the

proposed amendment when a party moves for leave to amend under Federal

Rule of Civil Procedure 15. LCvR15.1 (eff. June 2018).

      The owners argue that this rule didn’t apply because they had based

their motion on Rule 59(e), not Rule 15, and “court rules, like other

legislative enactments, are subject to the same rules of construction as

statutes.” Appellants’ Opening Br. at 34. But the owners overlook the

applicability of Rule 15 to their request for leave to amend the complaint.
                                         16
      When an action is dismissed, the plaintiff can amend the complaint

only by

      •     moving to reopen the case under Rule 59(e) or Rule 60(b) and

      •     moving for leave to amend under Rule 15.

Requena v. Roberts, 893 F.3d 1195, 1208 (10th Cir. 2018); Glenn v. First

Nat. Bank, 868 F.2d 368, 371 (10th Cir. 1989).

      In moving to alter or amend the judgment under Rule 59(e), the

owners asked for leave to amend “if the [district court had] lingering

concerns about the factual sufficiency of the Complaint.” Appellants’

App’x at 210. Though the owners didn’t invoke Rule 15, it is the only rule

authorizing amendment of the complaint.

      Because Rule 15 applied, the district court had the discretion to

apply the local civil rule requiring a party to attach the proposed

amendment when seeking leave to amend the complaint. See Crestview

Vill. Apts. v. HUD, 383 F.3d 552, 558 (7th Cir. 2004) (upholding denial of

a Rule 59(e) motion, in which the plaintiff sought alteration or amendment

of the judgment to facilitate the filing of an amended complaint, based on

the failure to attach the proposed amendment). So the district court didn’t

abuse its discretion by relying in part on the owners’ failure to attach the

proposed amendment.

                                    * * *



                                         17
      After dismissing the action, the district court acted within its

discretion when disallowing amendment of the complaint. The court

reasonably relied on the owners’ delay and failure to attach the proposed

amendment.

IV.   Conclusion
      We conclude that the district court acted within its discretion by

rejecting the owners’ request to alter or amend the judgment. So we affirm.




                                         18
