Henderson v. Oregon
Opinion of the Court
MEMORANDUM
Scroiacroce-Appellants appeal both the district court’s grant of summary judgment for Stmíacroce-Appellees, and its denial of their motion to reopen. We affirm. ETraer-Appellants appeal both the district court’s denial of their motion to reopen and its dismissal as moot of their declaratory judgment action. We affirm in part and reverse in part. Efroer-Appellants move to strike the State of Oregon’s affidavit not included in either district court record. We grant the motion to strike.
Factual Background and Procedural History
In August 1974, female employee members of Oregon’s Public Employee Retirement System (“PERS”), filed a lawsuit in the United States District Court for the District of Oregon against the State of Oregon and the Public Employees Retirement Board (“PERB”) alleging that the use of life expectancy tables by the State of Oregon and PERB to calculate refund annuity allowance benefits of PERS members constituted sex discrimination under Title VII of the Civil Rights Act of 1964, as amended. This litigation resulted in a consent decree, entered by United States District Judge Gus J. Solomon, stating in part that PERB was
permanently enjoined and restrained from the use of sex-segregated life expectancy tables in calculating “refund annuity” retirement allowances prospectively only for members retiring effective July 1, 1978, and thereafter, shall provide a monthly “refund annuity” retirement allowance to female members retiring after that date which is identical to the “refund annuity” retirement allowance males of the same age and amount of contributions received prior to that date.
Henderson v. State of Oregon, No. 74-538, Judgment (D.Or. Sept. 20, 1978) (“Henderson consent decree”) (emphasis added).
On June 10, 2003, PERB adopted actuarial tables that, when applied to female employees, were below the 1978 refund annuity table levels for male retirees. In October 2003, the Nomtocroee-Appellants filed a motion in the United States District Court for the District of Oregon to reopen the original 1974 litigation and a motion for order to show cause why the Santa-croce-Appellees should not be held in civil contempt for violating the Henderson consent decree. The Santacroce-Appellants alleged that the Henderson consent decree established that beginning on July 1, 1978, all refund annuity tables for female Oregon employees were required to be at least equal to the 1978 male refund annuity tables.
Both parties filed cross motions for summary judgment on the civil contempt motion. On June 10, 2004, the district court denied the Scroiacroce-Appellants’ motions for civil contempt and for summary judgment, and granted the Santacroce-Appel-lees’ motion for summary judgment. The
On September 16, 2004, two of the San-tacroce Appellants and four other female Oregon employees (collectively “Ebner-Appellants”), filed a motion in the United States District Court for the District of Oregon to reopen the original 1974 litigation and a motion for declaratory relief seeking a declaration of their rights under the Henderson consent decree. The Eb-wer-Appellants filed a motion for summary judgment on October 11, 2004.
The district court, without elaboration, denied the Aimer-Appellants’ motion to reopen and dismissed as moot the Ebner-Appellants’ motions for declaratory judgment and for summary judgment, by order of October 25, 2004.
The Santacroce-Appellants appeal the denial of their motion for civil contempt. The Aimer-Appellants appeal the dismissal of their motion for declaratory judgment for mootness. These cases were consolidated for appeal.
Motion For Civil Contempt
We address first the district court’s denial of the Ncmfacroce-Appellants’ motion for civil contempt.
A consent decree is an injunction. See Gates v. Shinn, 98 F.3d 463, 468 (9th Cir. 1996). Like an injunction, if a consent decree “does not clearly describe [the] prohibited or required conduct, it is not enforceable by contempt.” Id. A consent decree’s reasonable specificity serves to give “fair notice” to a party of proscribed conduct to which it has agreed. See International Longshoremen’s Ass’n v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 76, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967). This protects a party to a consent decree “from obligations to which that party has not agreed.” Gates, 98 F.3d at 468 n. 3 (citing United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971)).
When determining if a consent decree was violated, rather than interpreting a consent decree’s language or ruling on its enforcement, we examine the four corners of the consent decree itself. See Armour, 402 U.S. at 681-82, 91 S.Ct. 1752 (establishing that “the scope of a consent decree must be discerned within its four corners”); United States v. ITT Cont’l Baking Co., 420 U.S. 223, 237-38, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975) (limiting the Armour four corner rule to where a court must determine if a consent decree was violated, rather than interpreting a consent decree’s language or ruling on its enforcement).
The S'cmtacroce-Appellants argue that the Henderson consent decree sets the 1978 male retirement allowance tables as a minimum for female employee retirement allowance tables, whereas the Santacroce-Appellees contend that the consent decree only states that from July 1, 1978, and thereafter, all employee refund annuity tables must be identical.
The “prior to that date” language of the Henderson consent decree to a degree
In the context of a civil contempt proceeding, the concept of notice to the defendants has implications separate from traditional contract interpretation. When a civil contempt proceeding is filed against a defendant, ambiguities in the consent decree’s language “ ‘are resolved in favor of the person subject to the injunction.’ ” Clark v. Coye, 60 F.3d 600, 604 (9th Cir. 1995) (quoting United States v. Holtzman, 762 F.2d 720, 726 (9th Cir. 1985)). Viewing the language in the Henderson consent decree in favor of Scmiacroce-Appellees, we agree with the district court that the consent decree is not sufficiently specific to give notice to PERB that it would violate the consent decree by updating the actuarial tables. See Gates, 98 F.3d at 472. There was no abuse of discretion in denying the motion for civil contempt.
Motion For Declaratory Judgment
Aimer-Appellants appeal the district court’s order dismissing the motion for declaratory judgment as moot. We review a dismissal for mootness de novo. See Southern Oregon Barter Fair v. Jackson County, Oregon, 372 F.3d 1128, 1133 (9th Cir. 2004).
We cannot be certain why the district court dismissed the declaratory judgment action as moot because the district court’s summary order was unsupported by reasoning or explanation. The A&wer-Appel-lees argue that the declaratory judgment action was moot in light of the ruling on the contempt motion, or that dismissal was otherwise correct in light of claim or issue preclusion.
A case or controversy is moot “ ‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’ ” City of Erie v. Pap’s A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). For the A(mer-Appellants’ declaratory judgment motion to be moot in the context here, the district court must have already interpreted the Henderson consent decree’s language. In Santacroce, however, we read the transcript of the district court’s ruling on civil contempt to indicate that the district court was not making a definitive interpretation of the meaning of the consent decree, but rather was addressing whether there was civil contempt,
Also, the Aimer-Appellants’ claim is not precluded by either claim or issue preclusion. As for the issue of claim preclusion, it “bars further claims by parties or their privies based on the same cause of action.” Headwaters Inc. v. U.S. Forest Service, 399 F.3d 1047, 1051 (9th Cir. 2005) (citation omitted). It prevents relitigation of issues that were or could have been raised in an earlier action. Rivet v. Regions Bank of La., 522 U.S. 470, 476, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998). The elements necessary to establish claim preclusion are: “ ‘(1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.’ ” Id. at 1052 (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003)).
Applying these principles, we conclude that the element of privity is not satisfied. Although Ahner-Appellants Shaffer and Mullins are parties to both the Santacroce and Ebner litigation, A&wer-Appellants Ebner, Pitts, Poe, and Yogi are only parties to the Ebner litigation. They could neither have brought a declaratory judgment action in Santacroce, nor are they in privity with the Santacroce Appellants who could have done so.
We next address issue preclusion, which may arise “once an issue is actually litigated and necessarily determined.” U.S. v. ITT Rayonier, Inc., 627 F.2d 996, 1000 (9th Cir. 1980). This doctrine prevents relitigation between the same parties on an issue that was actually litigated. Here, the Santacroce-Appellants filed a motion for civil contempt, attempting to find the Rtroiocroce-Appellees in violation of the consent decree. The Aimer-Appellants filed a motion for declaratory judgment, seeking a declaration of the meaning of the consent decree’s language. A civil contempt claim differs from a declaratory judgment action. In a declaratory judgment action the court declares “the rights and obligations of [the] litigants,” (10B Charles Alan Wright, Arthur R. Miller &
Motions To Reopen
The jS'crotocroce-Appellants and the Ebner-Appellants appeal the district courts’s denial of their motion to reopen.
There is no Federal Rule of Civil Procedure or federal statutory rule that required Appellants in either case to file a motion to reopen.
Motion To Strike
The State of Oregon attached an affidavit, not included in the Ebner or Santacroce district court record, to its answering brief in Ebner. The Aimer-Appellees ask us to take judicial notice of the affidavit in connection with the legal argument concerning virtual privity above reviewed. See supra, note 5. We decline to do so and grant the Aimer-Appellants’ motion to strike.
The Aimer-Appellees’ affidavit is not part of the district court record. A party generally may not add to or enlarge the record on appeal to include material that was not before the district court. Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003). Although this Court, under FED. R. EVID. 201, may take judicial notice of adjudicative facts, the Aimer-Appellees present no precedent to support the notion that we should take judicial notice, not of other courts’ proceedings, but of an affidavit filed in another courts’ proceedings. It is rarely appropriate for us to take judicial notice of matters outside the record. Yag-man v. Republic Ins., 987 F.2d 622, 626 n. 3 (9th Cir. 1993). Moreover, adjudicative facts appropriate for judicial notice are typically different from facts found in affidavits supporting litigation positions, which often present facts subject to dispute. Accordingly, we conclude that we must refrain from taking judicial notice of
Conclusion
We AFFIRM the denial of civil contempt in Santacroce and the dismissal of both Appellants’ motions to reopen; we GRANT Appellants’ motion to strike in Ebner; and we REVERSE the dismissal of the motion for declaratory judgment and REMAND for further proceedings consistent with this memorandum disposition. Costs on the Santacroce appeal shall be awarded to Appellees. Costs on the Ebner appeal shall be borne equally by the parties.
The Honorable John S. Rhoades, Sr., Senior United States District Judge for the Southern District of California, sitting by designation.
. Because the parties are familiar with the factual and procedural history of this case, we do not recount it in detail here. However, we think it appropriate to describe the prior consent order and the procedural history of the appeals before us.
. We review a court’s denial of civil contempt for an abuse of discretion. Irwin v. Mascott, 370 F.3d 924, 931 (9th Cir. 2004).
. At one point, the district court said, "what we’re talking about here is civil contempt, whether this decree is sufficiently clear to make certain ... that the conduct engaged in ... violates [the consent decree] .... And that's different in deciding what a consent decree means when you’re about to modify it or about to impose penalties.” Transcript of Oral Argument at 45, Henderson v. State of Oregon, No. 74-538 (D.Or. June 18, 2004). At another point, the district court said, "even considering extrinsic evidence in light of whether there is civil contempt, as opposed to in light of what the decree actually means, I find that it would not be civil contempt for what the reform legislation has done in light of the document itself.” Id. at 47 (emphasis added).
. The order entered by the district court reads: "The court finds that Judge Solomon’s consent decree is insufficiently specific and definite to support a finding of civil contempt,
. Privity exists when a person is "so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved.” Headwaters, 399 F.3d at 1052-53 (citations omitted). Here, the Fhwer-Appellants did not have control over the Santacroce-Appellants and were not representatives of the Santa-croce-Appellants, so no privity exists in a classical sense. However, the Ebner-Appellees also argue that “virtual privity" exists. Although a " ‘close relationship, substantial participation, and tactical maneuvering’ ” between the parties supports a finding of virtual privity, " ‘identity of interests and adequate representation are necessary to such a finding.’ " Headwaters, 399 F.3d at 1053-54 (quoting Irwin v. Mascott, 370 F.3d 924, 930 (9th Cir. 2004)). The representation involved in pressing a civil contempt motion is different from what is involved in bringing a declaratory judgment action. In the former, a litigant argues that the language of the consent decree is unambiguous, whereas in the latter action, the party contests the meaning of that language and seeks a definitive interpretation. We conclude that virtual privity does not exist.
. We normally review a denial of a motion to reopen for abuse of discretion. See Fishing Co. of Alaska, Inc. v. United States, 333 F.3d 1045, 1046 (9th Cir. 2003) (administrative record); In re Staffer, 306 F.3d 967, 971 (9th Cir. 2002) (bankruptcy court). However, as explained above, a motion to reopen was not needed to invoke the district court's jurisdiction over its prior consent order.
. Appellants do not argue that a reason exists to reopen the consent decree, such as fraud or mistake, under Federal Rule of Civil Procedure 60(b). See F.R.Civ.P. 60(b).
Reference
- Full Case Name
- Sandy L. HENDERSON Anna Margaret Wicker Jane Gray Carmelle L. Hartin, and Salem-Keiz School District, Intervenor-Appellee, Gina Santacroce Richard Mullins Jacqueline Davis Jerry Trierweiller Tim Woolery Eileen Shaffer, Intervenors-Appellants v. STATE OF OREGON, by and through the Bureau of Labor and the Board of Higher Education Norman O. Nilsen, Commissioner of Labor Roy Lieuallen, Dr., Chancellor of the Board of Higher Education Public Employees Retirement System Joseph J. Adams Hugh McKinely Chalmers L. Jones Roger S. Meier Edwin H. Armstrong, in their capacity as members of the Public Employees Retirement Board Brenda Rocklin, Thomas Grimsley Michael Pittman P Eva Kripalani James Dalton, Sandy L. Henderson Anna Margaret Wicker Jane Gray Carmelle L. Hartin, and Jacqueline Davis Jerry Trierweiller Tim Woolery, Intervenors-Appellees, Eileen Shaffer Sawalak Ebner Richard Mullins Janice Pitts Jane Poe Aimee Yogi, Intervenors-Appellants v. Brenda Rocklin, Thomas Grimsley Michael Pittman P Eva Kripalani James Dalton State of Oregon Public Employees Retirement Board
- Cited By
- 3 cases
- Status
- Published