                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 15 2014

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

ROY FISHER; et al.,                              No. 14-15204

              Plaintiffs - Appellees,            D.C. Nos.    4:74-cv-00090-DCB
                                                              4:74-cv-00204-DCB
UNITED STATES OF AMERICA,

              Intervenor-Plaintiff -             MEMORANDUM*
Appellee,

  v.

TUCSON UNIFIED SCHOOL
DISTRICT,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                    Argued and Submitted November 19, 2014
                            San Francisco, California

Before: THOMAS, Chief Judge, and REINHARDT and CHRISTEN, Circuit
Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The Tucson Unified School District appeals four interlocutory orders issued

by the district court in this school desegregation case. We dismiss the appeal.

      As an initial matter, we grant the District’s and the Mendoza Plaintiffs’

unopposed motions for judicial notice, as well as the District’s supplemental

request for judicial notice. We take judicial notice of the district court filings in

this case that postdate the District’s notice of appeal.

      The District argues that this court has jurisdiction under 28 U.S.C. §

1292(a)(1) because the appealed orders “modified and amended prior existing

injunctive orders, namely the Appointment Order . . . and the USP . . . .” The

Unitary Status Plan can be characterized as a consent decree. We therefore apply

the three-part test set forth by the Supreme Court in Carson v. American Brands,

Inc., 450 U.S. 79 (1981), to determine whether this court has jurisdiction under

section 1292(a)(1). United States v. El Dorado Cnty., Cal., 704 F.3d 1261, 1263

(9th Cir. 2013) (“[A] court reviewing an interlocutory order involving a consent

decree should apply Carson, not just section 1292(a)(1) alone, to determine




                                           2
jurisdiction.”).1 The District must show the appealed orders: (1) have the practical

effect of modifying an injunction; (2) have serious, perhaps irreparable

consequences; and (3) can be effectively challenged only by immediate appeal. Id.

at 1263.

      With respect to the first prong of the test, the Plaintiffs argue that the

appealed orders interpreted and clarified the Unitary Status Plan. Section

1292(a)(1) does not provide for jurisdiction over interlocutory appeals of orders

interpreting, as opposed to modifying, consent decrees. See Thompson v.

Enomoto, 815 F.2d 1323, 1327 (9th Cir. 1987) (“[J]urisdictional analysis under

section 1292(a)(1) should focus on whether the interlocutory order . . . ‘modifies’

the consent decree.”). “Whether an order modifies an existing injunction rather

than merely interprets it depends on whether it substantially alters the legal

relations of the parties.” Cunningham v. David Special Commitment Ctr., 158 F.3d

1035, 1037 (9th Cir. 1998); see also Gon v. First State Ins. Co., 871 F.2d 863, 866



      1
              The Plaintiffs argue that the Appointment Order is not injunctive at
all, and thus “to the extent the challenged orders are claimed to modify the
Appointment Order they are not appealable.” The Plaintiffs’ argument is not
without merit. However, because the District’s arguments on appeal concern how
the Appointment Order and the Unitary Status Plan fit together, we decline to parse
the extent to which the appealed orders are aimed at the Appointment Order versus
the Unitary Status Plan. Instead, we treat those documents together as “a consent
decree that has injunctive effects.” El Dorado, 704 F.3d at 1265.

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(9th Cir. 1989) (holding order modified, not clarified, injunction because it

“substantially changed the terms and force of the injunction”).

      The District argues the appealed orders modified the Appointment Order and

Unitary Status Plan by curtailing the District’s right to object to the Special

Master’s reports and recommendations. We disagree. The Appointment Order

was issued before the Unitary Status Plan. It set forth the minimum content to be

included in the Unitary Status Plan, and it provided that the Special Master would

file an initial report, annual status reports, and a final report. The objection

procedure in Section V was designed for those reports. Whether and to what

extent that procedure would be applicable to the reports and recommendations

issued by the Special Master pursuant to the Unitary Status Plan was, at that time,

unspecified.

      Section I(D)(1) of the Unitary Status Plan sets forth a procedure for review

of what the Special Master termed “Action Plans.” The procedure provides that

the Plaintiffs have 30 days to object to an Action Plan, followed by a 30-day

voluntary resolution period. If disagreements remain at the end of that period, the

Special Master prepares a report and recommendation for the district court.

      The District argues Section I(D)(1) governs briefing prior to the filing of a

report and recommendation, while Section V of the Appointment Order governs


                                           4
briefing after the filing of a report and recommendation. This interpretation is

inconsistent with language of the Unitary Status Plan, which contemplates a

cohesive approach for responses to the Action Plans. It is also inconsistent with

the request the District filed seeking authorization to respond to the University

High School Report and Recommendation pursuant to Section I(D)(1).

      The district court did not agree with the District’s subsequent interpretation

of the Appointment Order and Unitary Status Plan. Its orders clearly indicate that

it intended to clarify the review provisions in Section I(D)(1) of the Unitary Status

Plan, not curtail the parties’ pre-existing rights under the Appointment Order.

Given the district court’s extensive experience with this case, we give deference to

its reasonable interpretation of the Appointment Order and Unitary Status Plan. Cf.

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

(“‘This court reviews de novo a district court’s interpretation of a consent decree . .

. but will give deference to the district court’s interpretation based on the court’s

extensive oversight of the decree . . . . A court of appeals will uphold a district

court’s reasonable interpretation of a consent decree.’” (quoting Nehmer v.

Veterans’ Admin. of Gov’t of U.S., 284 F.3d 1158, 1160 (9th Cir. 2002)) (internal

quotation marks omitted)).




                                           5
      Because the appealed orders do not substantially alter the parties’

relationship as set forth in the Appointment Order and Unitary Status Plan, the

District failed to satisfy the first prong of the Carson test, and this court does not

have jurisdiction under 28 U.S.C. § 1292(a)(1). Moreover, the District failed to

satisfy the second prong of the Carson test as well. The interpretation of the

Appointment Order and Unitary Status Plan is largely procedural in nature and

does not have serious, let alone irreparable, consequences for the District. For this

reason also, we lack jurisdiction.2

      We deny the District’s alternative request that we grant relief in the form of

mandamus. The Supreme Court has cautioned that mandamus “is a ‘drastic and

extraordinary’ remedy ‘reserved for really extraordinary causes.’” Cheney v. U.S.

Dist. Court for D.C., 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S.

258, 259–60 (1947)); accord Miller v. Gammie, 335 F.3d 889, 895 (9th Cir. 2003)

(en banc). To issue the writ, “‘we must be firmly convinced that the district court

has erred.’” Hernandez v. Tanninen, 604 F.3d 1095, 1099 (9th Cir. 2010) (quoting

Cohen v. U.S. Dist. Court for N.D. Cal., 586 F.3d 703, 708 (9th Cir. 2009)).




      2
             Although we need not reach the third prong of the Carson test, we
seriously doubt the District could satisfy that prong either.

                                           6
      Here, after carefully reviewing the record, we find no clear error in the

appealed orders or, more broadly, in the district court’s management of this case.

The district court reconsidered its initial decision not to allow briefing on the

Special Master’s reports and recommendations concerning Action Plans. The

District clearly has the opportunity to file objections, which can include as

attachments documents the District believes reflect its good faith efforts to comply

with the Unitary Status Plan, if they are not included as part of the Special Master’s

submission.

      Contrary to the District’s arguments, the district court does not appear to be

“rubber stamping” the Special Master’s reports and recommendations. Rather, the

record reflects that the district court has carefully reviewed the Special Master’s

recommendations, and the parties’ positions, before ruling. We commend the

district court for the attention it is giving to this time-consuming and challenging

case, and we encourage the parties to work together to expeditiously implement the

Unitary Status Plan.

      The pending motions for judicial notice are GRANTED. The appeal is

DISMISSED.




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