                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 28 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CHARLES WIPER, INC., an Oregon                   No. 11-35401
corporation,
                                                 D.C. No. 6:08-cv-06226-AA
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

CITY OF EUGENE, an Oregon
municipality,

              Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                        Argued and Submitted May 7, 2012
                                Portland, Oregon

Before: TASHIMA, TALLMAN, and IKUTA, Circuit Judges.


       We affirm the district court’s grant of summary judgment to the City of

Eugene on Charles Wiper, Inc.’s procedural due process, substantive due process,

and equal protection claims under 42 U.S.C. § 1983.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Wiper’s application for benefits under Measure 37 did not create a protected

property interest because the “nature and extent of the alleged entitlement [under

Measure 37] are vague,” “indeterminate,” and subject to the “functional discretion”

of the public entity evaluating its claim. See Doyle v. City of Medford, 606 F.3d

667, 675 (9th Cir. 2010). Wiper has not established that it is entitled to benefits

under Measure 37. Even if it were entitled to some benefits, the City could have

awarded a Measure 37 waiver rather than pay just compensation, Or. Rev. Stat.

§ 197.352(8) (2005), and could have granted a materially different waiver than that

sought by Wiper, see, e.g., Corey v. Dep’t of Land Conservation & Dev., 152 P.3d

933, 934 (Or. Ct. App. 2007). Alternatively, the City could have determined that

Wiper was eligible for an award of just compensation, but then exercised its

discretion to not use “available funds” to pay the award. See Or. Rev. Stat.

§ 197.352(10). Because the benefit Measure 37 will yield to an applicant “is

unpredictable in the abstract and scarcely provides ‘an expectation of

entitlement,’” Doyle, 606 F.3d at 675 (quoting Jacobson v. Hannifin, 627 F.2d 177,

180 (9th Cir. 1980)), Wiper’s procedural due process claim on that ground fails.

      Wiper’s claimed interest in the processing of its Measure 37 claim also fails,

because it is at best “an entitlement to nothing but procedure,” which is insufficient

to create a protected property interest. See Town of Castle Rock v. Gonzales, 545


                                           2
U.S. 748, 764 (2005). Finally, Wiper had no protected property interest in the

vesting of its Measure 37 waiver under Measure 49 because it had not obtained a

Measure 37 waiver. See Or. Laws 2007, Ch. 424 § 5(3); Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 60–61 (1999).

      Because Wiper could not demonstrate that it acquired any protected property

interest by filing for benefits under Measure 37, we also affirm the district court’s

grant of summary judgment to the City on Wiper’s substantive due process claim.

See Gerhart v. Lake Cnty., 637 F.3d 1013, 1019 (9th Cir. 2011).

      In cancelling Wiper’s hearing, the City did not treat Wiper differently than

similarly situated parties with then pending applications for relief under Measure

37. Therefore, Wiper’s equal protection claim also fails.

      AFFIRMED.




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