                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 27 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PACIFIC COMMUNITY RESOURCE                      No.    15-35280
CENTER, (PCRC); MICHAEL J.
CASSIDY, Director, Pacific Community            D.C. No. 6:13-cv-01272-MC
Resource Center,

                Plaintiffs-Appellants,
v.                                              MEMORANDUM*

CITY OF GLENDALE, OREGON, City
Staff and Council Members; FRED
JENSEN, Mayor; BETTY STANFIL, City
Manager; KAREN MEHL, Council
Member; ALLEN KING, Council Member;
AUDINA JEPHSON, Council Member; JIM
E. STANDARD, Council Member; BILL
BOAL, Council Member; CONNIE
STEVENS, Council Member,

                Defendants-Appellees.

                   Appeal from the United States District Court
                             for the District of Oregon
                   Michael J. McShane, District Judge, Presiding

                        Argued and Submitted June 9, 2017
                                Portland, Oregon

Before: GOULD and RAWLINSON, Circuit Judges, and RAYES,** District

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Douglas L. Rayes, United States District Judge for the
Judge.

      Pacific Community Resource Center and Michael J. Cassidy (collectively,

“PCRC”) appeal from the jury verdict and judgment in favor of the City of

Glendale, Oregon and various city officials (collectively, “City”). PCRC’s failure

to designate the judgment in its Notice of Appeal, as required by Federal Rule of

Appellate Procedure 3(c)(1)(B), is not a jurisdictional bar because PCRC’s intent

to appeal the judgment can be fairly inferred and the omission did not prejudice the

City. Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d 1472, 1481 (9th Cir.

1986). We therefore have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

      PCRC challenges the district court’s jury instruction that “[t]o establish a

‘class of one’ claim under the Equal Protection Clause, plaintiffs must demonstrate

by a preponderance of the evidence that: (1) defendants intentionally treated

plaintiffs differently from others similarly situated; and (2) there was no rational

basis for this difference in treatment.” PCRC contends that the district court

misstated the law by not instructing the jury that the City bore an initial burden of

providing a rational basis for treating PCRC differently than others similarly

situated.

      PCRC did not contemporaneously object to the district court’s instruction,

and such an objection would not have been pointless under the circumstances.


District of Arizona, sitting by designation.

                                           2
Because PCRC did not properly preserve its challenge, we have discretion to

review the district court’s instruction for, at most, plain error. Chess v. Dovey, 790

F.3d 961, 970–71 (9th Cir. 2015); C.B. v. City of Sonora, 769 F.3d 1005, 1016–18

(9th Cir. 2014) (en banc); Fed. R. Civ. P. 51(d)(2). Under plain error review, we

consider “whether (1) there was an error; (2) the error was obvious; and (3) the

error affected substantial rights.” City of Sonora, 769 F.3d at 1018.

      Applying this standard, the district court’s instruction was not plainly

erroneous. The final instruction correctly stated the law and comported with the

way in which this Court and the United States Supreme Court previously have

described the essential elements of a “class of one” claim. See Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); Gerhart v. Lake

Cty. Mont., 637 F.3d 1013, 1022 (9th Cir. 2011); N. Pacifica LLC v. City of

Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).

      AFFIRMED.




                                          3
