FILED

NOT FOR PUBLICATION NOV 03 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OFFICERS FOR JUSTICE; et al., No. 09-16399

Plaintiffs - Appellants, D.C. Nos. 3:73-cv-00657-CRB 77-cv-02884-CRB and

UNITED STATES OF AMERICA, MEMORANDUM*

Plaintiff,

v.

THE CIVIL SERVICE COMMISSION

OF CITY AND COUNTY OF SAN

FRANCISCO; et al.,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted October 6, 2010 San Francisco, California

Before: HUG, RYMER and N.R. SMITH, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Officers for Justice and individual appellants (“OFJ”) appeal the district

court’s interpretation of and denial of enforcement of two stipulations and orders

entered into by OFJ and the City and County of San Francisco and city officials

(“City”). We review de novo the district court’s interpretation of a consent decree.

Nehmer v. U.S. Dep’t of Veterans Affairs, 494 F.3d 846, 855 (9th Cir. 2007). We

affirm.1 Because the parties are familiar with the facts, we repeat them only as

necessary to explain our decision.

In 1998, the parties entered into court-approved stipulations and orders, one

of which stipulated to the procedures for appointments to the Q-35 Assistant

Inspector rank (“Q-35 Order”) and the other which terminated in part and modified

in part a long-standing consent decree (“Termination Order”). Pursuant to the Q-

35 Order, the City was obligated to make all appointments to the rank of Assistant

Inspector from the corresponding Assistant Inspector eligibility list. In 2007, the

City assigned investigative duties (duties generally performed by an Assistant

Inspector) to those holding the rank of Sergeant. OFJ contends that the assignment

of investigative duties to those holding the rank of Sergeant constituted an

appointment to the rank of Assistant Inspector, in violation of the Q-35 Order.

1 We grant OFJ’s request to take judicial notice of The Civil Service Commission’s official hearing transcripts.

2 The district court did not err in its interpretation of the stipulations and

orders. A consent decree is treated like a contract for enforcement purposes.

United States v. Asarco, Inc., 430 F.3d 972, 980 (9th Cir. 2005). “The rules of

contract interpretation of the situs state govern the interpretation of the consent

decree.” Gates v. Rowland, 39 F.3d 1439, 1444 (9th Cir. 1994). Under California

law, if contractual language is clear and explicit, it governs. Cal. Civ. Code §

1638; California v. Allstate Ins. Co., 45 Cal.4th 1008, 1019 (2009).

In this case, the stipulations and orders are clear and explicit. The specific

language in the Q-35 Order provides that Assistant Inspector “appointments” will

be made from the list. It does not address the assignment of general Assistant

Inspector duties to those outside of the Assistant Inspector rank, and we reject

OFJ’s contention that the plain meaning of the terms includes the prohibition on

the assignment of investigative duties.

OFJ also argues that Civil Service Commission Rules, which presumably

prohibit the City’s actions here, should be incorporated as a part of the Q-35 Order

and that a violation of those rules should be considered a violation of the court’s

order. Pursuant to California law, applicable laws in existence when an agreement

is made are incorporated into the agreement. See Edwards v. Arthur Andersen

LLP, 44 Cal.4th 937, 954 (2008). However, this rule of construction and contract

3 interpretation is unnecessary in this instance because, as discussed above, the

language of the stipulation and order is clear.

OFJ also urges this court to consider the underlying purposes of the

stipulations and orders, but the language of the stipulations and orders is clear and

explicit, and the court “cannot impose substantive duties or limits on the

contracting parties beyond those incorporated in the specific terms of their

agreement.” See Guz v. Bechtel Nat’l, Inc., 24 Cal.4th 317, 349-50 (2000).

AFFIRMED.

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