FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANNA MARGARET WICKER; SANDY 

L. HENDERSON; JANE GRAY;

CARMELLE L. HARTIN,

Plaintiffs,

and

SALEM-KEIZER SCHOOL DISTRICT,

Intervenor-Appellee,

v.

THE STATE OF OREGON, by and

through the Bureau of Labor and No. 07-35429 the Board of Higher Education;

NORMAN D.C. No. O. NILSEN Commissioner 

of Labor; ROY LIEUALLEN, CV-74-00538-GMK

Chancellor of the Board of Higher OPINION

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; EVA

KRIPALANI; JAMES DALTON,

Defendants-Appellees, 

13117
v. 

SAWALAK EBNER; RICHARD

MULLINS; JANTICE PITTS; JANE POE;

EILEEN SHAFFER; AIMEE YOGI,

Movants-Appellants,

and

JACQUELINE DAVAIS; JERRY 

TRIERWEILLER; TIM WOOLERY,

Movants,

v.

GINA SANTACROCE; RICHARD

MULLINS,

Third-party-defendant-Appellees. 

Appeal from the United States District Court

for the District of Oregon

Garr M. King, District Judge, Presiding

Argued and Submitted

July 7, 2008—Portland, Oregon

Filed September 17, 2008

Before: Harry Pregerson and Stephen Reinhardt,

Circuit Judges, and Consuelo B. Marshall,* District Judge.

Opinion by Judge Pregerson

*The Honorable Consuelo B. Marshall, United States District Judge for

the Central District of California, sitting by designation. 

13118 EBNER v. OREGON
COUNSEL

Henry J. Kaplan and Gregory A. Hartman, Bennett, Hartman,

Morris, & Kaplan, LLP, Portland, Oregon, for the petitionersappellants. 

Jeremy D. Sacks and Amy Edwards, Stoel Rives LLP, Portland, Oregon, for defendant-appellee State of Oregon. 

Joseph M. Malkin and Sarah C. Marriott, Orrick, Herrington,

& Sutcliffe LLP, San Francisco, California, for defendantsappellees Members of the Public Employees Retirement

Board. 

William F. Gary and Sharon A. Rudnick, Harrang Long Gary

Rudnick P.C., Eugene, Oregon, for intervenor-appellee

Salem-Keizer School District. 

OPINION

PREGERSON, Circuit Judge: 

Petitioners are Oregon public employees who are members

of the state’s Public Employee Retirement System (“PERS”).

They appeal the district court’s summary judgment order that

held that the 1978 Title VII consent decree entered was not

intended to permanently lock in the 1978 refund annuity rates

for all PERS members. After reviewing the language of the

consent decree and the evidence of the parties’ intent in the

context of the litigation as a whole, we conclude that the consent decree was not meant to create a perpetual floor on

refund annuity benefits. Accordingly, we affirm the district

court.

EBNER v. OREGON 13121
BACKGROUND

I. PERS and Refund Annuities

PERS is a statutory retirement plan for state and local government employees in Oregon. Many retired PERS members

receive a monthly “service retirement allowance” composed

of two parts: (1) a “refund annuity” and (2) a life pension.1

The amount of the refund annuity depends upon three variables: (1) life expectancy rates for persons in the retiree’s age

group; (2) assumed interest rates; and (3) the size of the retiree’s account balance at the time of retirement. The first two

variables, life expectancy and assumed interest rates, are “actuarial equivalency factors” (“AEFs”) used to convert the

third variable, the retiree’s account balance at the time of

retirement, into the monthly refund annuity. See Or. Rev. Stat.

§ 238A.005(2). 

PERS governing statutes mandate that the refund annuity

be “the actuarial equivalent of accumulated contributions, if

any, by the member and interest thereon at the time of retirement.” Or. Rev. Stat. § 238.300. Thus, to convert a sum of

money to a refund annuity, the PERS actuary multiplies that

sum of accumulated contributions by the appropriate AEF

from an annuity table adopted by Oregon’s Public Employee

Retirement Board (“Board”), the governing authority for

PERS. For example, if a retiree had accumulated $100,000 in

contributions and earnings, and the appropriate AEF for that

retiree was 8.32 per $1,000, the retiree would receive a

monthly refund annuity payment of $832 until death.

II. Henderson I and the 1978 Consent Decree

In 1974, four female PERS members filed a lawsuit in the

United States District Court for the District of Oregon against

1Certain PERS members may opt to receive a lump-sum payment rather

than monthly allowances. Or. Rev. Stat. § 238.315. 

13122 EBNER v. OREGON
the State of Oregon and the Board (“Henderson I”). The Henderson I plaintiffs alleged that the Board’s practice of using

two sets of life expectancy tables, one for men and another for

women, in calculating refund annuities for retired PERS

members constituted sex discrimination in violation of Title

VII of the Civil Rights Act of 1964. The challenged practice

resulted in lower monthly refund annuities for female PERS

members, who were actuarially shown to live longer than

their male counterparts. 

The district court issued an order holding that the use of

sex-segregated life expectancy tables violated Title VII, but

staying any injunctive relief pending appeal. While the Henderson I appeal was pending, the United States Supreme

Court ruled in City of Los Angeles Dep’t of Water and Power

v. Manhart, 435 U.S. 702 (1978), that Title VII’s prohibitions

on sex-based discrimination applied to employee benefit

plans. 

Following Manhart, the parties agreed to a settlement.

Thus, the district court vacated its order and judgment and

entered a consent decree on September 20, 1978. The consent

decree provided:

1. The judgment of this Court dated January 16,

1976 is set aside and this judgment is entered in

lieu of it. 

2. Title VII of the Civil Rights Act of 1964 prohibits the use of sex-segregated life expectancy

tables in calculating “refund annuity” retirement

allowances of employee members of the Oregon

Public Employee Retirement System. 

3. Defendant Public Employee Retirement System

is permanently enjoined and restrained from the

use of sex-segregated life expectancy tables in

calculating “refund annuity” retirement allowEBNER v. OREGON 13123
ance 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 received prior to that date. Defendant

shall have no obligation to recalculate “refund

annuity” retirement allowances to female members already retired or retiring before July 1,

1978. 

4. Plaintiffs shall have and recover against defendants costs and counsel fees in the total amount

of $7,000.00. 

The Henderson I consent decree remains in effect today. 

III. Legislative Reforms to PERS

The Board has used gender-neutral life expectancy tables

ever since the district court entered the 1978 consent decree.

Additionally, from 1978 through 2003, despite changing life

expectancy and interest rate assumptions, the Board did not

apply any updated AEFs that would have decreased a PERS

member’s projected monthly refund annuity. 

The use of outdated AEFs, however, created unfunded liabilities for PERS. As a result, in 2003, Oregon Governor

Kulongski signed the PERS Reform and Stabilization Act of

2003 (“Reform Legislation”). The Reform Legislation

required that the Board adopt updated actuarial equivalency

tables every two years. Accordingly, on June 10, 2003, the

Board adopted new annuity tables based on current AEFs to

calculate refund annuities for PERS members retiring after

July 1, 2003. 

13124 EBNER v. OREGON
The Reform Legislation provided that its constitutionality

could be challenged directly in the Oregon Supreme Court.

On March 8, 2005, the Oregon Supreme Court decided Strunk

v. Public Employees Retirement Bd., 108 P.3d 1058 (Or.

2005). Strunk rejected several constitutional and contractual

challenges to the Reform Legislation.2 Specifically, Strunk

rejected challenges to the requirement that the Board adopt

and use current AEFs when calculating retirement benefits.

Id. at 1109-10. Strunk further determined that the Board lacks

the authority to use outdated AEFs. Id. at 1110.

IV. Henderson II and III 

On October 16, 2003, six PERS members challenged the

Board’s use of updated life expectancy tables by filing a new

action in the United States District Court for the District of

Oregon (“Henderson II”). In Henderson II, the PERS members moved to reopen Henderson I and to hold the Board in

civil contempt for violating the terms of the consent decree.

They argued that the consent decree requires the Board “to

provide all PERS members, retiring thereafter, a ‘refund

annuity’ allowance based upon the actuarial life expectancy

tables in effect for males on July 1, 1978.” At oral argument

on June 10, 2004, the district court issued a minute order

denying both the motion to reopen and the motion for civil contempt.3

 The Henderson II plaintiffs appealed that minute order

to this court. 

On September 16, 2004, six PERS members (including two

Henderson II plaintiffs) filed another action in the United

2

Stunk also sustained two constitutional challenges to the Reform Legislation. Strunk, 108 P.3d at 1064. Those challenges, however, are not at

issue here. 

3The district court did not interpret the meaning of the consent decree

in its minute order. Instead, the district court stated at oral argument that

the decree lacked “sufficient clarity” to determine that it created “a floor

of rates or benefits that would make the reform legislation in violation of

the decree.” 

EBNER v. OREGON 13125
States District Court for the District of Oregon (“Henderson

III”). They sought to reopen Henderson I and requested a different remedy, a “declaration that the September 20, 1978

injunction requires [the Board] to adopt and use refund annuity tables which grant benefits not less than those benefits

which were in effect for male members of [PERS] on July 1,

1978.” On October 25, 2004, the district court issued a minute

order denying the motion to reopen and denying as moot the

motion for declaratory judgment. The Henderson III plaintiffs

also appealed that minute order to this court.

Henderson II and III were consolidated on appeal. On

October 20, 2006, we issued a disposition addressing the

issues raised in Henderson II and Henderson III. Henderson

v. Oregon, 203 Fed. Appx. 45, 49-50 (9th Cir. 2006) (unpublished memorandum disposition).4

 We held that the district

court had not abused its discretion when it denied the motion

for civil contempt filed in Henderson II because “viewing the

language in the Henderson consent decree in favor of [the

Board] . . . the consent decree is not sufficiently specific to

give notice to [the Board] that it would violate the consent

decree by updating the actuarial tables.” Id. at 50. We further

held that the motions to reopen were properly denied because

the motions were not needed to invoke the district court’s

continuing jurisdiction over the Henderson I consent decree.

Id. at 52. 

However, we also held that the district court had improperly denied as moot the motion for declaratory judgment filed

in Henderson III because the district court had never actually

interpreted the language of the consent decree. Id. at 50-51.

Accordingly, the panel remanded the Henderson litigation to

the district court for a ruling on the meaning of the consent

decree.

4The 2006 memorandum disposition refers to the Henderson II plaintiffs as the Santacroce-Appellants and the Henderson III plaintiffs as the

Ebner-Appellants. 

13126 EBNER v. OREGON
V. Current Appeal

On remand, the parties filed cross-motions for summary

judgment regarding the correct interpretation of the consent

decree. On April 18, 2007, the district court issued an order

denying the PERS members’ summary judgment motion and

granting the Board’s summary judgment motion. Henderson

v. Oregon, 2007 WL 1187978 (D. Or. Apr. 18, 2007). The

district court held that the text of the consent degree was

ambiguous, id. at *5, but that extrinsic evidence of the parties’

intent demonstrated that the consent decree “does not require

[the Board] to use refund annuity tables which grant benefits

no less than the benefits in effect for males on July 1, 1978,”

id. at *8. The district court also struck certain paragraphs from

affidavits filed in support of the PERS members’ summary

judgment motion. 

On May 15, 2007, the PERS members filed their timely

notice of appeal. 

JURISDICTION

The district court had jurisdiction under 28 U.S.C. § 1331.

We have jurisdiction under 28 U.S.C. § 1291.

STANDARD OF REVIEW

We review de novo a district court’s decision on cross

motions for summary judgment. See Arakaki v. Hawaii, 314

F.3d 1091, 1094 (9th Cir. 2002). On appeal, we must determine, viewing the evidence in the light most favorable to the

nonmoving party, whether there are any genuine issues of

material fact and whether the district court correctly applied

the relevant substantive law. See Olsen v. Idaho State Bd. of

Medicine, 363 F.3d 916, 922 (9th Cir. 2004). 

We review the district court’s evidentiary rulings for an

abuse of discretion. Tritchler v. County of Lake, 358 F.3d

1150, 1155 (9th Cir. 2004). 

EBNER v. OREGON 13127
DISCUSSION

I. The Consent Decree Does Not Require a Perpetual

Floor on Benefits Measured by the Refund Annuity

Allowance Rates in Effect for Males in 1978

[1] Our main task on appeal is to construe the consent

decree. “Because a consent decree has attributes of both a

contract and a judicial act, courts use contract principles in

construing it.” Washington v. Penwell, 700 F.2d 570, 573 (9th

Cir. 1983) (internal citation omitted), abrogated on other

grounds as recognized by Jeff D. v. Kempthorne, 365 F.3d

844, 852 (9th Cir. 2004). Here, the parties entered into the

consent decree in Oregon. Therefore, Oregon law on contract

interpretation applies. Gates v. Gomez, 60 F.3d 525, 530 (9th

Cir. 1995) (“A consent decree is construed with reference to

ordinary contract principles of the state in which the decree is

signed.”).

[2] Oregon courts follow three steps when interpreting contractual provisions. First, they examine “the text of the disputed provision, in the context of the document as a whole.”

Yogman v. Parrott, 937 P.2d 1019, 1021 (Or. 1997). “If the

provision is clear, the analysis ends.” Id. However, if the contractual provision at issue is ambiguous, Oregon courts follow

the second step of “examin[ing] extrinsic evidence of the contracting parties’ intent.” Id. at 1022. If the second step fails to

resolve the ambiguity, Oregon courts rely on “appropriate

maxims of construction.” Id.

A. Text of the Consent Decree

[3] We turn first to the text of the consent decree, viewed

in the context of the document as a whole. The third paragraph of the consent decree contains the disputed provision:

3. Defendant Public Employee Retirement System

is permanently enjoined and restrained from the

13128 EBNER v. OREGON
use of sex-segregated life expectancy tables in

calculating “refund annuity” retirement allowance 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 received prior to that date. Defendant

shall have no obligation to recalculate “refund

annuity” retirement allowances to female members already retired or retiring before July 1,

1978. 

(Emphasis added.) 

The PERS members argue that the disputed provision

means that, from the date of the consent decree onward, all

PERS members were entitled to receive refund annuity allowances in the same amount as those received by male PERS

members before 1978. Thus, the PERS members believe that

the consent decree created a perpetual “floor” on benefits.5

They argue that the “thereafter” clause is superfluous if it is

not interpreted to create a benefits floor. 

By contrast, the Board argues that the disputed provision

means that, from the date of the consent decree onward, all

similarly situated male and female PERS members were entitled to receive identical refund annuity allowances. The Board

contends that the “thereafter” clause memorializes the

Board’s decision to “top up” (i.e., raise) female allowances on

July 1, 1978 to the male allowance levels in effect prior to

that date; the clause does not demonstrate an agreement

between the parties to lock in a permanent allowance rate. 

5Notably, the PERS members do not argue that the consent decree also

created a “ceiling” on benefits. In other words, the PERS members would

like us to read the term “identical” as used in the decree to mean “not less

than.” We are unwilling to do so. 

EBNER v. OREGON 13129
As we previously stated in our 2006 memorandum disposition, given the Title VII context of this case, both parties’

constructions of the disputed provision are arguably plausible.

There, we explained: 

The “prior to that date” language of the Henderson

consent decree to a degree supports [the] argument

that the consent decree literally established a floor

for female employee refund annuity tables. But taken

in its context, a Title VII claim of sex discrimination,

in which parity on payments to men and women was

the goal, the consent order’s prohibition might be

read only to order PERB to stop using segregated

actuarial tables, and from July 1, 1978, onward, to

use identical refund annuity tables for women and

men. 

203 Fed. Appx. at 49-50.6

[4] Because the disputed provision is susceptible to at least

two plausible interpretations when examined in the context of

the contract as a whole, it is legally ambiguous. Moon v.

Moon, 914 P.2d 1133, 1135 (Or. 1996). Therefore, we proceed to the extrinsic evidence analysis.

B. Extrinsic Evidence of the Parties’ Intent

The PERS members make two main arguments that the

extrinsic evidence of the parties’ intent supports their interpretation of the consent decree. We address those arguments in

turn. 

6As noted above, we did not actually interpret the consent decree; we

only identified the decree as ambiguous for purposes of our ruling on contempt. 

13130 EBNER v. OREGON
1. Retroactive Relief

The PERS members first argue that the consent decree

embodied a “quid pro quo” exchange of their rights to retroactive relief under Title VII in return for a permanent benefits

floor. In support of this argument, they point to the last sentence of paragraph three of the consent decree: 

Defendant shall have no obligation to recalculate

“refund annuity” retirement allowances to female

members already retired or retiring before July 1,

1978.

The PERS members maintain that this sentence was included

in the consent decree to memorialize the parties’ exchange of

rights. 

The Board argues that no such exchange of rights was contemplated by this sentence. Instead, the sentence was merely

intended to clarify the scope of relief. The Board also argues

that the original Henderson litigants did not have any such

rights to retroactive relief, and, even if they did, the Board

would not have opted to create a permanent benefits floor to

avoid paying retroactive relief. 

To understand these arguments, we turn to the state of Title

VII case law in 1978. The parties entered into the consent

decree after the Supreme Court issued its decision in Manhart. The Court held for the first time in Manhart that Title

VII’s prohibitions on sex-based discrimination applied to

employee benefit plans. Nevertheless, the Court reversed the

district court’s award of retroactive relief to the retirees, reasoning that “retroactive liability could be devastating for a

pension fund” because the “harm would fall in large part on

innocent third parties.” 435 U.S. at 723. 

[5] When viewed from hindsight, the timing and holding of

Manhart suggest that the original Henderson plaintiffs would

EBNER v. OREGON 13131
not have believed that they were entitled to retroactive relief.

But in 1978, Manhart was new law, and Title VII case law on

retroactivity was not uniform. Moreover, it was not entirely

clear that Manhart’s holding on retroactivity applied to the

facts of the Henderson litigation. Thus, it is theoretically possible that the parties were concerned about retroactive relief

when drafting the 1978 consent decree. However, this does

not necessarily mean that any quid pro quo arrangement with

respect to a permanent refund annuity allowance rate was

reached. 

[6] Therefore, we look to the evidence in the record. The

PERS members contend that the assumptions of the Board

and its intent on retroactivity are revealed by the briefs filed

in Henderson I, the district court’s pre-Manhart decision in

Henderson I, the understandings of the parties as expressed by

minutes from the Board’s 1978 meeting about the consent

decree, the affidavit of the 1978 PERS Director, the affidavit

of the 1978 PERS Assistant Director, and the Affidavit of

PERS counsel. 

[7] Our review of this evidence, however, reveals that it

does not support the PERS members’ contention. There is

nothing in the Henderson I briefs, the district court’s preManhart decision, or the various affidavits that indicates the

parties believed that the PERS members were waiving any

rights they may have had to retroactive relief in exchange for

a permanent floor on refund annuity rates. By contrast, the

minutes from the 1978 meeting actually support the Board’s

position. At that meeting, the Board discussed whether to give

female PERS members the same benefits as male PERS members, or whether to adopt an average between the male and

female rates. The Board’s attorney “questioned the legality of

such a reduction in benefits” for male members. Then, “[t]o

resolve the matter the Board directed [the attorney] to attempt

a negotiated consent judgment with the plaintiffs, agree to

increase the female annuity factor to that of the male rate

effective July 1, 1978 and thereafter.” Later in that same

13132 EBNER v. OREGON
meeting, the Board acted to top up female benefits by passing

a motion that “the refund annuity benefit for females be equal

to that received by the males.” This language makes it clear

that the reason the Board chose to top-up female benefits was

its concern over a reduction in male benefits, and not a concern about retroactive damages.7

 This language also indicates

that the Board’s goal was to equalize male and female rates

from 1978 onward. Tellingly, the minutes say nothing about

locking in the 1978 rates. 

Finally, as the district court recognized, “[e]ven if the settlement released retroactive liability in exchange for topping

up the tables for female members, that does not mean that the

newly topped-up benefit was to act as a floor in perpetuity.”

The Board had two options available to desegregate its refund

annuity allowance system: (1) it could create blended rates, or

(2) it could “top up” the female rates. “Topping up” the

female rates was the best option for the PERS members. Thus,

even if PERS members did consciously abandon any rights to

retroactive relief, they may have decided to do so in return for

the “topping up” option, not the creation of a permanent benefits floor. 

[8] In short, we find that, even viewing the evidence on

retroactive relief in the light most favorable to the PERS

members, the parties did not intend to create a permanent

floor on benefits by entering into the consent decree.

2. Course of Conduct

The PERS members also argue that the Board’s course of

conduct after 1978 supports their interpretation of the consent

decree. Again, we disagree. 

7

Indeed, the only mention of retroactive damages appears in the minutes

two paragraphs earlier in connection with a discussion of the possibility

of fighting the appeal—not in connection with negotiation of the consent

decree. 

EBNER v. OREGON 13133
[9] It is undisputed that, from the date of the consent decree

until the Reform Legislation was enacted in 2003, the Board

maintained refund annuity rates at or above those in effect for

males on July 1, 1978, at least for those members who joined

PERS prior to 1999. The PERS members contend that the

Board’s practice of maintaining annuity rates at those levels

suggests that the Board believed that lowering rates would

violate the consent decree. However, as discussed above, the

minutes from the Board meeting suggest that the Board’s

refusal to lower annuity rates was attributed to a fear that

male PERS members might have vested property rights in the

1978 rates—not to a fear that lowering the rates would violate

the consent decree. Moreover, as the Oregon Supreme Court

explained in Strunk, the Board adopted administrative rules in

the 1990s to maintain the rates at or above the 1978 levels “in

response to legal advice that it had received regarding maintaining the fund’s status as a qualified governmental retirement plan and trust under the Internal Revenue Code.” Strunk,

108 P.3d at 1106. Finally, there is no contemporaneous documentary evidence indicating that, when the Board modified

the rates in the years following entry of the consent decree, it

was concerned about a benefits floor deriving from the consent decree. 

[10] In sum, we find that the Board’s continued use of the

1978 male annuity refund rates cannot be attributed to its fear

of violating the consent decree. To the contrary, the evidence

suggests that the Board did not dip below the 1978 rates due

to other, unrelated legal concerns. 

C. Conclusion

For the foregoing reasons, we hold that the extrinsic evidence of the parties’ intent demonstrates that the consent

decree was intended only as a remedy for sex discrimination

in the calculation of refund annuity payments. 

We note that the overall context of this case plays an

important role in our decision. This case began as a Title VII

13134 EBNER v. OREGON
lawsuit. The Henderson I plaintiffs filed the suit to end

PERB’s practice of using sex-segregated refund annuity rates

—not to establish that all PERS members were entitled to a

minimum level of benefits. It is highly unlikely that the parties intended to create a permanent floor on refund annuity

rates when they stipulated to the consent decree. It is much

more likely that they decided to equalize the rates from 1978

onward, and tried to draft the consent decree to that effect. 

Accordingly, we affirm the district court’s summary judgment order on the meaning of the consent decree.

II. The District Court Did Not Abuse Its Discretion When

It Struck Certain Paragraphs From the PERS Members’

Summary Judgment Affidavits

Finally, we address the PERS members’ two challenges to

the district court’s evidentiary rulings on summary judgment.

To reverse on the basis of an erroneous evidentiary ruling, the

court must conclude not only that the district court abused its

discretion, but also that the error was prejudicial. Tritchler v.

County of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004). 

First, the PERS members challenge the district court’s

refusal to consider paragraphs two through four, and parts of

paragraph seven, of the affidavit of former PERS attorney

William Hoelscher. However, as the district court correctly

noted, paragraphs two through four of the affidavit, which

described the holdings of Henderson I and Manhart, merely

stated legal conclusions. Moreover, the language stricken

from paragraph seven contained improper speculation about

the judge’s understanding of the case. Thus, the district court

did not abuse its discretion in deciding that these paragraphs

were not admissible summary judgment evidence. 

Second, the PERS members challenge the district court’s

decision to strike paragraphs four, six, and eight8 of the virtu8Paragraphs six and eight were misnumbered — they are actually paragraphs five and six. 

EBNER v. OREGON 13135
ally identical affidavits submitted by the former PERS Director and Assistant Director. These paragraphs described the

negotiations that occurred at the 1978 Board meeting. The

district court struck the paragraphs because they lacked any

facts demonstrating that the PERS Director or Assistant

Director were actually at that meeting. The affiants’ assertions

about a meeting which they apparently did not attend and

about which they had no personal knowledge are not the

proper subject of an affidavit. Thus, the district court also did

not abuse its discretion in striking these paragraphs.

CONCLUSION

The consent decree was intended to ensure that male and

female PERS members who had the same balances in their

PERS accounts at the time of retirement would receive identical refund annuities from the date of the consent decree

onward. The consent decree was not meant to lock in the 1978

refund annuity rates. Therefore, we affirm the judgment of the

district court. 

AFFIRMED.

13136 EBNER v. OREGON