                                                                           FILED
                           NOT FOR PUBLICATION                             NOV 13 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


TED PAPAS; ARCADIA                               No. 12-35467
ENTERPRISES, INC., an Oregon
corporation; DOWNTOWN DELI AND                   D.C. No. 3:10-cv-00550-BR
GREEK CUSINA, an Oregon corporation,
AKA Downtown Delicatessen, Inc.,
                                                 MEMORANDUM*
              Plaintiffs - Appellants,

  v.

CHARLES RANDALL (RANDY)
LEONARD; CITY OF PORTLAND, an
Oregon municipal corporation,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                          Submitted November 8, 2013**
                                Portland, Oregon

Before: ALARCÓN, M. SMITH, and HURWITZ, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiffs-Appellants (Plaintiffs) appeal from the district court’s order

granting Defendants-Appellees’ (Defendants) motion for summary judgment. On

appeal, Plaintiffs challenge the district court’s conclusions that they: (1) failed to

state a cognizable equal protection claim; (2) failed to produce evidence

demonstrating that Defendants engaged in First Amendment retaliation; and (3)

failed to produce evidence demonstrating that Defendants intentionally interfered

with Plaintiffs’ economic relations, in violation of Oregon law. Because the parties

are familiar with the facts and procedural history of this case, we repeat only those

facts necessary to resolve the issues raised on appeal. We affirm.

      Plaintiffs argue that Defendants subjected them to disparate treatment as a

“class-of-one,” in violation of the Equal Protection clause. Nonetheless, Plaintiffs’

allegedly disparate treatment was the result of discretionary decisionmaking, and

the “class-of-one” theory is not cognizable with regard to discretionary actions.

Towery v. Brewer, 672 F.3d 650, 660 (9th Cir. 2012) (citing Engquist v. Oregon

Dep't of Agr., 553 U.S. 591, 603 (2008)).

      With regard to Plaintiffs’ First Amendment claim, Plaintiffs failed to

produce evidence showing that a desire to chill speech was the but-for cause of

Defendants’ allegedly retaliatory conduct. Dietrich v. John Ascuaga’s Nugget, 548

F.3d 892, 900–01 (9th Cir. 2008). Absent such causal evidence, Plaintiffs’ First

Amendment claim fails.
      Finally, Plaintiffs cannot demonstrate that Defendants intentionally

interfered with Plaintiffs’ economic relations, because Plaintiffs failed to produce

evidence that Defendants acted through improper means or with an improper

motive. See Nw. Natural Gas Co. v. Chase Gardens, Inc., 982 P.2d 1117, 1123–24

(Or. 1999).

      For the foregoing reasons, the district court properly granted Defendants-

Appellees’ motion for summary judgment.

      AFFIRMED.
