United States v. 2005-09-06 | 03-35994 | THORNTON VCITY OF ST. HELENS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RALPH E. THORNTON; CHERYL A.
THORNTON, No. 03-35994
Plaintiffs-Appellants, D.C. No.
v.  CV-02-00325-REJ
CITY OF ST. HELENS; WARREN OPINION
BAKER; BRIAN LITTLE,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Argued and Submitted
May 6, 2005—Portland, Oregon
Filed September 6, 2005
Before: Alfred T. Goodwin, A. Wallace Tashima and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
12445

-- 1 of 18 --

COUNSEL
James D. Huffman, Huffman & O’Hanlon, St. Helens, Ore-
gon, for the plaintiffs-appellants.
Cecil Reniche-Smith and Janet M. Schroer, Hoffman, Hart &
Wagner, LLP, Portland, Oregon, for the defendants-appellees.
12448 THORNTON v. CITY OF ST. HELENS

-- 2 of 18 --

OPINION
CLIFTON, Circuit Judge:
Ralph and Cheryl Thornton own the only automobile
wrecking yard in St. Helens, Oregon. The Thorntons claim
that the City of St. Helens has unlawfully conditioned
approval of their annual applications to renew a state wreck-
er’s certificate on compliance with local land use regulations.
Following repeated delays in the processing of the Thorntons’
renewal applications, they filed suit in district court against
the City and certain local officials. The Thorntons alleged,
among other claims, that the certificate renewal procedures
employed by the City had resulted in delays which amounted
to a deprivation of property without due process of law. The
district court denied relief. The court held that the Thorntons
did not have a property interest in the timely approval of their
renewal applications and that their related claims were with-
out merit.
We affirm. An adverse judgment in a prior state court
action brought by Mr. Thornton bars relitigation of the issue
of whether the City has discretion to condition approval of
renewal applications on compliance with local regulations.
Because we must accept the state court’s determination that
the City has discretion to deny a renewal application for non-
compliance with local regulations, we hold that the Thorntons
do not have a property interest in the timely renewal of their
wrecker certificate. The Thorntons’ related claims fail as a
matter of law.
I. Background
An operator of an auto wrecking yard in Oregon is required
to obtain a certificate from the state and must renew the certif-
icate each year. Or. Rev. Stat. § 822.125(1), (3). The proce-
dure for issuing and renewing wrecker certificates is governed
by Oregon Revised Statutes §§ 822.110, 822.115, 822.125,
12449 THORNTON v. CITY OF ST. HELENS

-- 3 of 18 --

822.135 and 822.140. Once a wrecker certificate is issued,
section 822.125(3) provides that the certificate
is valid for a one-year period and may be renewed as
provided by the department. The department shall
only renew the certificate of any certificate holder
who does all of the following:
. . .
(c) Obtains local government approval under [Or.
Rev. Stat. §] 822.140. The department may waive
the requirement that an applicant for renewal obtain
local government approval under [section] 822.140
of the suitability of the applicant to establish, main-
tain or operate a wrecking yard or business.
Or. Rev. Stat. § 822.125(3). Section 822.140(2) provides that
[a] city or county governing body shall grant
approval of a wrecker certificate or renewal when
requested under this section if the governing body:
(a) Approves the applicant as being suitable to estab-
lish, maintain or operate a wrecker yard or business;
(b) Determines that the location or proposed location
meets the requirements for location under [Or. Rev.
Stat. §] 822.110;
(c) Determines that the location does not violate any
prohibition under [Or. Rev. Stat. §] 822.135; and
(d) Approves the location and determines that the
location complies with any regulations adopted by a
city or county under this section.
Or. Rev. Stat. § 822.140(2). If a renewal application is not
approved before the existing certificate expires, the wrecking
12450 THORNTON v. CITY OF ST. HELENS

-- 4 of 18 --

yard must suspend operation until a new certificate is issued.
See Or. Rev. Stat. §§ 822.100(1)(a), 822.135(1)(a).
In 1998, final approval of the Thorntons’ renewal applica-
tion for the 1999 wrecker certificate was delayed until April
16, 1999. Because of the delay, the Thorntons were forced to
close the wrecking yard for more than three months pending
approval of the application. The Thorntons blamed the pro-
cessing delay on the City’s attempt to condition approval of
their renewal certificate on compliance with various munici-
pal regulations.
Mr. Thornton filed a declaratory judgment action against
the City in state court on May 23, 1999. As amended, the
complaint alleged that the City had no power to withhold
approval of a renewal application. The lawsuit sought a ruling
that the governing state statutes preempted the application of
local regulations in the wrecker certificate renewal process.
On December 1, 1999, while the state action was pending,
the City adopted Ordinance 2808, which established specific
procedures and criteria for reviewing renewal applications.
Shortly after Ordinance 2808 was adopted, Mr. Thornton sub-
mitted an application to renew his certificate for the year
2000. The application was initially approved and then later
denied by the City. The City eventually withdrew its objec-
tions to the application and issued a new certificate on March
14, 2000. The wrecking yard was closed for over two months
in the interim.
Mr. Thornton moved for summary judgment in the state
court action. He argued that the City lacked the power to con-
dition approval of his renewal application on compliance with
local land use laws because section 822.140 required local
governments to approve any application that complied with
sections 822.110 and 822.135. In response, the City asserted
that the relevant state statutes allowed local land use regula-
tions to supplement state law in the approval process. The
12451 THORNTON v. CITY OF ST. HELENS

-- 5 of 18 --

trial court denied the motion. In its oral decision, the court
held that state law did not preempt local regulation of wreck-
ers after the initial certificate had been granted. Shortly after
the court issued its decision, the City moved for summary
judgment. The City argued that it was entitled to dismissal
because, in denying Mr. Thornton’s motion, the court had
effectively resolved the action in favor of the City. The court
agreed and dismissed the case with prejudice. The Oregon
Court of Appeals affirmed without opinion on February 6,
2002.
The City replaced Ordinance 2808 with Ordinance 2832 on
November 15, 2000. Ordinance 2832 simplified and short-
ened the application review process, but delays in approving
the Thorntons’ annual renewal applications continued. As a
result of those delays (and time taken by the State to issue and
transmit the certificate), the Thorntons have been forced to
close the wrecking yard for a number of days at the beginning
of each year.
On March 15, 2002, the Thorntons filed the current action
in federal district court. The original complaint named the
City; the city manager, Warren Baker; the city planner, Brian
Little; and certain St. Helens elected officials as Defendants.
The complaint alleged that the City lacked the power to enact
Ordinance 2808 and that the requirements imposed by that
measure deprived the Thorntons of property without due pro-
cess of law. The Thorntons further alleged that Defendants
had conspired to deny them equal protection of the law and
had intentionally interfered with contractual relations.
Defendants moved for summary judgment. By order
entered November 19, 2002, the district court granted the
motion in part. Thornton v. City of St. Helens, 231 F. Supp.
2d 1019, 1026 (D. Or. 2002). The court reasoned that the
Thorntons were not precluded from challenging Ordinance
2808 because the validity of that measure was not actually lit-
igated in the prior action. Id. at 1024. The court concluded,
12452 THORNTON v. CITY OF ST. HELENS

-- 6 of 18 --

however, that the individual defendants were immune from
suit generally, that the Oregon Tort Claims Act (“OTCA”)
insulated the individual defendants and the City from suit on
the state law claim and that the Thorntons had not otherwise
stated a cognizable claim against the City. Id. at 1026. The
court granted the Thorntons leave to file an amended com-
plaint that “(1) eliminate[d] all constitutional claims against
the individual City Council members, and (2) allege[d] with
specificity their constitutional claim(s) against the City itself.”
Id.
In their amended complaint, the Thorntons added factual
detail to support their allegations and dropped both the state
law claim and the allegations against the elected officials. The
Thorntons again named Baker and Little as defendants. The
first count of the amended complaint largely repeated the
claim that Defendants had used Ordinance 2808 to deprive the
Thorntons of property without due process of law. The second
count alleged that Mrs. Thornton was Native American and
that Defendants, acting out of racial animus, had conspired to
deny the Thorntons due process and equal protection.
The district court granted summary judgment in favor of
Defendants. As for Little and Baker, the court concluded that
the Thorntons did not have leave to rename the individual
defendants and, even if they had, that the Thorntons had not
advanced a meritorious claim against them. Turning to the
City, the court reasoned that state law “permits the City to rest
its decision to approve or deny a wrecker’s certificate on
criteria of its own creation” and, further, that the adverse
judgment in the prior action barred the Thorntons from reliti-
gating the issue of the City’s authority. Accordingly, the court
held that the Thorntons did not have “a constitutionally pro-
tected property right in the timely annual renewal of their
automobile wrecker’s certificate.” With respect to the Thorn-
tons’ conspiracy claim, the court determined that they had
failed to show disparate treatment, a conspiracy or racial ani-
mus. The Thorntons timely appealed.
12453 THORNTON v. CITY OF ST. HELENS

-- 7 of 18 --

II. Discussion
A. Legislative Immunity
[1] Legislators are absolutely immune from liability for
their legislative acts. Bogan v. Scott-Harris, 523 U.S. 44, 46
(1998). This immunity extends to the legislative acts of state
and local legislators, even in suits brought pursuant to 42
U.S.C. § 1983. Id. at 49. For immunity to attach, the allegedly
unlawful action must have been a legislative function. Id. at
51-52.
[2] Baker and Little are not entitled to legislative immunity.
Baker is the city manager and Little is the city planner. Their
jobs are administrative in nature and they were sued for per-
forming an administrative act. Specifically, the Thorntons’
amended complaint named Baker and Little as the persons
“responsible for processing the annual renewal applica-
tion[s].” Processing an individual application pursuant to an
established policy is not a legislative function. See Haskell v.
Washington Township, 864 F.2d 1266, 1278 (6th Cir. 1988);
Scott v. Greenville County, 716 F.2d 1409, 1423 (4th Cir.
1983). Because Baker and Little are not legislators and were
not sued for performing a legislative act, legislative immunity
does not shield them from suit. See Chappell v. Robbins, 73
F.3d 918, 920-21 (9th Cir. 1996). The district court erred in
concluding otherwise.1
1Defendants argue that the Thorntons waived any claim that Baker and
Little are not entitled to legislative immunity by failing to raise that argu-
ment in district court. We disagree. Although we ordinarily do “not con-
sider arguments that are raised for the first time on appeal,” Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999), the Thorntons’ oversight is
excusable. The original complaint named Baker, Little and several St. Hel-
ens elected officials as defendants. In support of the first motion for sum-
mary judgment, Defendants argued that the individual defendants were
entitled to legislative immunity. The district court agreed and held that “to
the extent that plaintiffs’ claims against the individual City Council mem-
bers rest on enactment of Ordinance 2808, summary judgment must be
12454 THORNTON v. CITY OF ST. HELENS

-- 8 of 18 --

B. 42 U.S.C. § 1983
To prevail in a civil action against state actors for the depri-
vation of “rights, privileges, or immunities secured by the
Constitution and laws,” 42 U.S.C. § 1983, a plaintiff must
show that “(1) acts by the defendants (2) under color of state
law (3) depriv[ed] [him] of federal rights, privileges or immu-
nities [and] (4) caus[ed] [him] damage,” Shoshone-Bannock
Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 1284
(9th Cir. 1994). Section 1983 “ ‘is not itself a source of sub-
stantive rights,’ but merely provides ‘a method for vindicating
federal rights elsewhere conferred.’ ” Albright v. Oliver, 510
U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)). Accordingly, the conduct complained of
must have deprived the plaintiff of some right, privilege or
immunity protected by the Constitution or laws of the United
States. See id.
The Thorntons assert the deprivation of two constitutional
rights: procedural due process and equal protection. We
address each claim in turn.
granted in favor of the individual defendants.” Thornton, 231 F. Supp. 2d
at 1025 (emphasis added). Leave to amend was given, provided that the
Thorntons eliminated “all constitutional claims against the individual City
Council members.” Id. at 1026 (emphasis added). The amended complaint
did not rename the elected officials, only Baker and Little. Defendants did
not reassert legislative immunity in their second motion for summary
judgment. In granting summary judgment on Defendants’ second motion,
however, the court tersely observed that “[i]n disregard of this court’s
express order, plaintiffs again assert claims against the individual defen-
dants. Plaintiffs did not seek leave to do so . . . .” The court apparently
believed that Baker and Little were city councilmembers and, as the prior
order directed, the Thorntons did not have leave to rename councilmem-
bers. The court was mistaken as to Baker and Little’s official status. Until
the order dismissing the case with prejudice was issued, however, the
Thorntons had no reason to argue that Baker and Little were not entitled
to legislative immunity. We will not hold the Thorntons responsible for
failing to correct an error that they did not know the district court had
committed.
12455 THORNTON v. CITY OF ST. HELENS

-- 9 of 18 --

1. Due Process
According to the Thorntons, the applicable state statutes
require local governments to approve renewal applications
upon submission of the correct form and proof that the appli-
cant has complied with the state-mandated criteria. Because
certificate holders are entitled to renewal if they comply with
statutory conditions, so the argument goes, they have a pro-
tectible property interest in the reissuance of a certificate, or
at least in City approval of an application for the same. The
Thorntons contend that by unlawfully imposing additional
conditions on an application to renew a wrecker certificate,
the City has deprived them of property without due process of
law.
[3] A “procedural due process claim hinges on proof of two
elements: (1) a protectible liberty or property interest . . . ; and
(2) a denial of adequate procedural protections.” Foss v. Nat’l
Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998).
Property interests are not created by the Constitution but “by
existing rules or understandings that stem from an indepen-
dent source such as state law—rules or understandings that
secure certain benefits and that support claims of entitlement
to those benefits.” Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972). To have a property interest in a government benefit,
such as the right to renew a certificate, “a person clearly must
have more than an abstract need or desire for it. He must have
more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.” Id. The “mere
fact a person has received a government benefit in the past,
even for a considerable length of time, does not, without
more, rise to the level of a legitimate claim of entitlement.”
Doran v. Houle, 721 F.2d 1182, 1186 (9th Cir. 1983).
[4] At one pole, a state operating license that can be
revoked only “for cause” creates a property interest. See, e.g.,
Barry v. Barchi, 443 U.S. 55, 64 (1979). At the opposite pole,
a statute that grants the reviewing body unfettered discretion
12456 THORNTON v. CITY OF ST. HELENS

-- 10 of 18 --

to approve or deny an application does not create a property
right. See, e.g., Jacobson v. Hannifin, 627 F.2d 177, 180 (9th
Cir. 1980). Whether a statute creates a property interest in the
renewal of an existing operating license falls somewhere in
the middle of those extremes. The answer to that question
depends on “the extent to which the [governing] statute con-
tains mandatory language that restricts the discretion of the
[reviewing body] to deny [renewal] to applicants who claim
to meet” the statutory requirements.2 Id. In other words, if the
governing statute directs that a license shall be renewed upon
compliance with certain criteria, none of which involve the
exercise of discretion by the reviewing body, the licensee has
a property right in the reissuance of the license. See Stauch v.
City of Columbia Heights, 212 F.3d 425, 430 (8th Cir. 2000);
Foss, 161 F.3d at 588. Conversely, an applicant does not have
a property interest in the renewal of a license if the reviewing
body has discretion to deny renewal or to impose licensing
criteria of its own creation. See Jacobson, 627 F.2d at 180.
[5] The key issue in this case, then, is whether the City has
discretion to condition approval of a renewal application on
compliance with its regulations. That issue was litigated to
2Our caselaw provides that in the absence of statutory language creating
a property interest, a legitimate claim of entitlement can “be based on the
conduct and representations of government officials when their actions
lead to the creation of a ‘mutually explicit understanding.’ ” Doran, 721
F.2d at 1185 (quoting Perry v. Sindermann, 408 U.S. 593, 601 (1972)). In
this case, the City’s apparent practice, prior to 1998, of approving annual
renewal applications without separately verifying the Thorntons’ compli-
ance with local regulations lends support to a claim that the Thorntons had
a legitimate expectation in future approvals. See Richardson v. Town of
Eastover, 922 F.2d 1152, 1158 (4th Cir. 1991). There is, however, no evi-
dence that the Thorntons were promised automatic approval of their
renewal applications in perpetuity or that the City had disclaimed, by ordi-
nance or otherwise, the power to condition approval of a renewal applica-
tion on compliance with local regulations. Cf. Wojcik v. City of Romulus,
257 F.3d 600, 611 (6th Cir. 2001); Richardson, 922 F.2d at 1158; Doran,
721 F.2d at 1186. Longstanding enjoyment of a government benefit, with-
out more, does not create a property right. Doran, 721 F.2d at 1186.
12457 THORNTON v. CITY OF ST. HELENS

-- 11 of 18 --

finality in the prior state court action. Having lost there, the
Thorntons are not permitted to litigate the issue again here.
[6] Pursuant to the full faith and credit statute, 28 U.S.C.
§ 1738, federal courts must give state-court judgments “ ‘the
same preclusive effect as would be given . . . under the law
of the State in which the judgment was rendered.’ ”
Takahashi v. Bd. of Trustees, 783 F.2d 848, 850 (9th Cir.
1986) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ.,
465 U.S. 75, 81 (1984)). This is true “even in a suit under [§]
1983.” Caldeira v. County of Kauai, 866 F.2d 1175, 1177 (9th
Cir. 1989). Because a prior Oregon judgment is asserted as
having preclusive effect, Oregon issue preclusion law con-
trols. Dodd v. Hood River County, 136 F.3d 1219, 1225 (9th
Cir. 1998). Under Oregon law, the resolution of an issue by
one tribunal
may preclude relitigation of the issue in another pro-
ceeding if five requirements are met:
1. The issue in the two proceedings is identical.
2. The issue was actually litigated and was essen-
tial to a final decision on the merits in the prior pro-
ceeding.
3. The party sought to be precluded has had a full
and fair opportunity to be heard on that issue.
4. The party sought to be precluded was a party or
was in privity with a party to the prior proceeding.
5. The prior proceeding was the type of proceeding
to which this court will give preclusive effect.
Nelson v. Emerald People’s Util. Dist., 862 P.2d 1293, 1296-
97 (Or. 1993) (citations omitted). Oregon applies issue preclu-
12458 THORNTON v. CITY OF ST. HELENS

-- 12 of 18 --

sion to issues of fact and law. Drews v. EBI Cos. (In re Com-
pensation of Drews), 795 P.2d 531, 535 (Or. 1990).
[7] In this case, all five parts of the issue preclusion test are
satisfied. As to the first element, the issue of whether cities
may require that renewal applicants comply with local regula-
tions was at the heart of the prior action. In the state proceed-
ing, Mr. Thornton asserted that the City could not “deny . . .
wrecker certificate renewal if [he met] the standards of [Or.
Rev. Stat. §] 822.140(2)” and that the City lacked the power
to “impose requirements more restrictive than [section]
822.135 as conditions for approving” a renewal application.
In denying Mr. Thornton’s motion for summary judgment and
granting judgment in favor of the City, the trial court neces-
sarily held that the City has the power to condition renewal
applications on compliance with local regulations. Cf. Nelson,
862 P.2d at 1298-99; Scherzinger v. Portland Cust. Civil Serv.
Bd., 103 P.3d 1122, 1128-29 (Or. Ct. App. 2004). No other
holding would have resolved Mr. Thornton’s claims. In the
present litigation, the Thorntons contend that the City lacks
the power to condition a renewal application on compliance
with local regulations. That raises precisely the same issue
that was litigated to finality in the prior proceeding. Cf. Dodd,
136 F.3d at 1225; Shuler v. Distrib. Trucking Co., 994 P.2d
167, 173-74 (Or. Ct. App. 1999). Although the Thorntons
seek to distinguish the issue in the prior action on the ground
that Ordinances 2808 and 2832 were not directly involved, the
governing state statutes are the sole measure of the City’s
ability to condition approval of renewal applications on com-
pliance with local regulations. The state court interpreted
those statutes as allowing the City to consider its own regula-
tions in determining whether to approve a renewal applica-
tion. Those statutes have not changed.
[8] The remaining elements of issue preclusion are not seri-
ously disputed. The foregoing issue was actually litigated to
finality in state court, and Mr. Thornton had a full and fair
opportunity to be heard at the trial and appellate levels. Mr.
12459 THORNTON v. CITY OF ST. HELENS

-- 13 of 18 --

Thornton was a party to the first action, see Restatement (Sec-
ond) of Judgments, § 29 (1982), and the Thorntons have not
argued on appeal that Mrs. Thornton lacks privity of interest
with her husband and co-owner, so any argument of that
nature is deemed waived. See Smith, 194 F.3d at 1052; Green-
wood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). Finally, the
prior proceeding—a court action—is the type of proceeding
to which Oregon courts give preclusive effect. See, e.g., Ren-
nie v. Freeway Transp., 656 P.2d 919, 927 (Or. 1982).
[9] With all five parts of the issue preclusion test satisfied,
the Thorntons cannot revisit their challenge to the City’s
power to condition a renewal application on compliance with
local regulations. See Skeen v. Dep’t of Human Res., 17 P.3d
526, 528-29 (Or. Ct. App. 2000). Because the City has the
discretion to deny a renewal application for noncompliance
with local regulations, City approval of a renewal application
is a condition precedent to reissuance of a certificate. See,
e.g., Wojcik v. City of Romulus, 257 F.3d 600, 611 (6th Cir.
2001). Without City approval, the Thorntons cannot establish
a property right in the reissuance of a certificate, even if their
application otherwise satisfies state law. See Mustafa v. Clark
County Sch. Dist., 157 F.3d 1169, 1178 (9th Cir. 1998);
Jacobson, 627 F.2d at 180. Because the Thorntons cannot
demonstrate a property right, their due process claim fails.
See, e.g., Foss, 161 F.3d. at 588.
2. Equal Protection
[10] To state a § 1983 claim for violation of the Equal Pro-
tection Clause “ ‘a plaintiff must show that the defendants
acted with an intent or purpose to discriminate against the
plaintiff based upon membership in a protected class.’ ” Lee
v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001)
(citation omitted). “ ‘The first step in equal protection analysis
is to identify the [defendants’ asserted] classification of
groups.’ ” Freeman v. City of Santa Anna, 68 F.3d 1180, 1187
(9th Cir. 1995) (citation omitted). The groups must be com-
12460 THORNTON v. CITY OF ST. HELENS

-- 14 of 18 --

prised of similarly situated persons so that the factor motivat-
ing the alleged discrimination can be identified. Id. An equal
protection claim will not lie by “conflating all persons not
injured into a preferred class receiving better treatment” than
the plaintiff. Joyce v. Mavromatis, 783 F.2d 56, 57 (6th Cir.
1986).
[11] According to the Thorntons, the City adopted Ordi-
nance 2808 “to harm [them] because of [Mrs. Thornton’s]
American Indian Heritage.”3 The Thorntons have not, how-
ever, come forward with admissible evidence that, even
viewed in the light most favorable to them, demonstrates dis-
criminatory intent. Cf. Bingham v. City of Manhattan Beach,
341 F.3d 939, 948-49 (9th Cir. 2003); Huebschen v. Dep’t of
Health & Soc. Servs., 716 F.2d 1167, 1171 72 (7th Cir. 1983).
Although the Thorntons maintain that Defendants made a
race-based classification, they have not offered evidence of
racial discrimination, beyond the observation that Mrs. Thorn-
ton is Native American. Mere indifference to the effects of a
decision on a particular class does not give rise to an equal
protection claim, see Nabozny v. Podlesny, 92 F.3d 446, 454
(7th Cir. 1996), and conclusory statements of bias do not
carry the nonmoving party’s burden in opposition to a motion
for summary judgment,4 see Buchanan v. City of Bolivar, 99
F.3d 1352, 1360 (6th Cir. 1996). So, too, the fact that Mrs.
Thornton is Native American and certain City councilmem-
bers and administrators are not, standing alone, does not mean
that Defendants have discriminated on the basis of race.
Bingham, 341 F.3d at 948. Without evidence of discrimina-
3On appeal, the Thorntons also argue that the City retaliated against
them for exercising their First Amendment rights. We do not consider this
claim because it was not properly raised in the district court. See Sofamor
Danek Group, Inc. v. Brown, 124 F.3d 1179, 1186 n.4 (9th Cir. 1997).
4We accept Mr. Thornton’s factual averments as true, but we disregard
averments that are not based on personal knowledge, Coca-Cola Co. v.
Overland, 692 F.2d 1250, 1255 (9th Cir. 1982), or that are purely conclu-
sory in nature, Delange v. Dutra Const. Co., 183 F.3d 916, 921 (9th Cir.
1999).
12461 THORNTON v. CITY OF ST. HELENS

-- 15 of 18 --

tory intent, the Thorntons cannot make out a claim for dis-
crimination based on a suspect classification.
As a fallback classification, the Thorntons group them-
selves with other wrecking yards in the state and other busi-
nesses in the City’s “Heavy Industry” zone and contend that
those yards and businesses are not subject to the same review
requirements. Although “[a] successful equal protection claim
may be brought by a ‘class of one,’ ” the plaintiff still bears
the burden of proving that she “has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.” SeaRiver Mar.
Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir.
2002). The problem with grouping the Thorntons with other
wrecking yards in the state or other businesses in the City’s
“Heavy Industry” zone is that those groups are not comprised
of “similarly situated” persons. See id.; Freeman, 68 F.3d at
1187-88. There are no other auto wreckers in St. Helens and,
therefore, the City is not imposing a burden on the Thorntons
that it does not also impose on other wreckers within its juris-
diction. The City has no authority to regulate wreckers located
beyond its boundaries. Similarly, there is nothing in the
record to indicate that any of the other businesses in the City’s
“Heavy Industry” zone are either sufficiently comparable to
wrecking yards or subject to the same state licensing require-
ments as auto wreckers. If the other businesses are not
required to renew their respective certificates annually and are
not directed to obtain the City’s approval in the process, they
are not similarly situated to the Thorntons. Evidence of differ-
ent treatment of unlike groups does not support an equal pro-
tection claim. Cf. Freeman, 68 F.3d 1187-88.
C. 42 U.S.C. § 1985
[12] Section 1985 creates a civil action for damages caused
by two or more persons who “conspire . . . for the purpose of
depriving” the injured person of “the equal protection of the
laws, or of equal privileges and immunities under the laws”
12462 THORNTON v. CITY OF ST. HELENS

-- 16 of 18 --

and take or cause to be taken “any act in furtherance of the
object of such conspiracy.” 42 U.S.C. § 1985(3). “[T]he
absence of a section 1983 deprivation of rights precludes a
section 1985 conspiracy claim predicated on the same allega-
tions.” Caldeira, 866 F.2d at 1182. Accordingly, the Thorn-
tons cannot sustain their § 1985 claim because they could not
sustain a § 1983 claim based on the same facts. See id.
D. Oregon Tort Claims Act
[13] The OTCA, Or. Rev. Stat. §§ 30.260 to 30.300, insu-
lates public employees and public bodies from “ ‘[a]ny claim
based upon the performance of or the failure to exercise or
perform a discretionary function or duty, whether or not the
discretion is abused.’ ” Tennyson v. Children’s Servs. Div.,
775 P.2d 1365, 1370 (Or. 1989) (citation omitted). Oregon
courts define “discretionary function” as an action that
involves room for policy judgment or the responsi-
bility for deciding the adaptation of means to an end,
and discretion in determining how or whether the act
shall be done or the course pursued. . . . [I]nsofar as
an official action involves both the determination of
facts and simple cause-and-effect relationships and
also the assessment of costs and benefits, the evalua-
tion of relative effectiveness and risks, and a choice
among competing goals and priorities, an official has
discretion to the extent that he has been delegated
responsibility for the latter kind of value judgment.
McBride v. Magnuson, 578 P.2d 1259, 1260-61 (Or. 1978)
(quotation marks and citations omitted).
[14] While the line between protected discretionary acts
and unprotected ministerial acts is not always clear, the ques-
tion in this case is not a close one. The City’s decision,
expressed in two ordinances, to establish a formal process for
reviewing renewal applications presents a classic example of
12463 THORNTON v. CITY OF ST. HELENS

-- 17 of 18 --

a discretionary act, as that decision involved an exercise of
judgment on a matter of policy made by the body that had the
authority to act. See Ramirez v. Haw. T & S Enters., 39 P.3d
931, 932-34 (Or. Ct. App. 2002); Sager v. City of Portland,
684 P.2d 600, 603-05 (Or. Ct. App. 1984). The Thorntons
cannot escape the force of the OTCA by arguing that the
application of Ordinances 2808 and 2832 was tortious. If the
ordinance is contrary to state law (a question we were not cal-
led on to consider), the City is immune under section
30.265(3)(f). Burke v. Children’s Servs. Div., 607 P.2d 141,
148 (Or. 1980). If the ordinance is consonant with state law,
the City is immune because “ ‘acts of subordinates in carrying
out the operations of government in accordance with official
directions cannot be actionable.’ ” Smith v. Cooper, 475 P.2d
78, 85 n.3 (Or. 1970) (quoting Dalehite v. United States, 346
U.S. 15, 36 (1953)); see also Ramirez, 39 P.3d at 933. The
Thorntons do not complain that City officials or employees
applied the ordinances in bad faith or with malice, cf. Or. Rev.
Stat. § 30.265(3)(f), that the ordinances were applied negli-
gently or that City employees otherwise intentionally inter-
fered with their contractual relationships. Because the
ordinances were applied under apparent authority of law and
any harm to the Thorntons flows from the original, discretion-
ary act, the OTCA bars the Thorntons’ state law claim.
III. Conclusion
Summary judgment in favor of Defendants is affirmed.
AFFIRMED.
12464 THORNTON v. CITY OF ST. HELENS

-- 18 of 18 --