D.C. No. 3:09-cv-02292-VRW Northern District of California, San Francisco.
Before: WARDLAW, FISHER AND BERZON, Circuit Judges.
Third party appellants Equality California and No on Proposition 8, Campaign for Marriage Equality, a Project of the American Civil Liberties Union of Northern California ("appellants") appeal from the district court's March 5, 2010 (Doc. #610) and March 22, 2010 (Doc. #623) orders compelling them to produce documents they contend are protected under the First Amendment privilege against the compelled disclosure of internal campaign communications. Appellants assert jurisdiction under 28 U.S.C. § 1291 and in the alternative seek issuance of a writ of mandamus. Appellants moved for a stay pending appeal, to expedite the appeal and for assignment of the appeal to the panel that decided Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) (Perry I). On March 26, 2010, we granted appellants' motion requesting assignment of this appeal to the panel that decided Perry I and granted appellants' emergency motion for a stay of the district court's March 22, 2010 order pending appeal. On March 31, 2010, we directed the parties to file simultaneous briefs addressing whether this court has jurisdiction over this appeal and whether mandamus is appropriate. In that order, we asked the parties to address Vizcaino v. United States District Court, 173 F.3d 713 (9th Cir. 1999), and In re Subpoena Served on California Public Utilities Commission, 813 F.2d 1473, 1476 (9th Cir. 1987). Having reviewed the parties' briefs, we dismiss the appeal for lack of jurisdiction and deny the petition for issuance of a writ of mandamus.
A. Appellate Jurisdiction under 28 U.S.C. § 1291
Appellants assert that this court may exercise jurisdiction over this appeal under 28 U.S.C. § 1291. As appellants are nonparties in the underlying litigation, however, they can obtain review of the district court's order compelling production of documents they contend are protected under the First Amendment privilege we articulated in Perry I only by electing to ignore the order and appealing any ensuing contempt citation. See In re Subpoena Served on Cal. Pub. Util. Comm'n, 813 F.2d 1473, 1476 (9th Cir. 1987). Appellants recognize as much in their brief on appeal regarding jurisdiction, stating that "if [they] decline to produce th[e] documents [ordered produced by the district court] and are cited for contempt as a consequence, they will have an appealable order." Until then, we lack jurisdiction under 28 U.S.C. § 1291 to review the district court's order. Id.; see id. at 1476 n.1 ("The requirement that a nonparty must be in contempt of court in this situation is a serious matter and serves to illustrate the strictness in applying the final judgment rule.").
1. Mandamus Jurisdiction under Vizcaino
Appellants contend in the alternative that the Court may exercise mandamus jurisdiction over this appeal to compel the district court to follow our mandate in Perry I, which charged the district court with the determination of those persons involved in the "Yes on 8" campaign "who logically should be included [in the core group of persons in the 'Yes on 8' campaign engaged in the formulation of campaign strategy and messages] in light of the First Amendment associational interests the [First Amendment] privilege is intended to protect." Perry I, 591 F.3d at 1165 n.12.
In Vizcaino, we recognized that mandamus jurisdiction is available when a district court disregards a prior appellate mandate on remand. 173 F.3d at 718--20. Specifically, we held that mandamus was the appropriate remedy where the district court revised a class definition on remand even though the appellate mandate could not be read as contemplating redefinition of the class and charged the district court only with the determination of individual eligibility for benefits and calculation of the damages or benefits due class members. Id. at 721--22. The district court's order on remand therefore conflicted with and did not conform to the mandate.
By contrast, the district court's order here cannot conflict with our appellate mandate. The earlier appeal concerned the application of a First Amendment privilege to discovery requests between the parties to this litigation-in particular, to requests by the plaintiffs to the proponents of Proposition 8 who intervened in this litigation ("Proponents"). The present appeal concerns subpoenas issued by the Proponents to third parties to the pending litigation, not involved in the prior appeal (except as amicus curiae), asking for different documents from the ones involved in the previous appeal. Although the district court in the order now appealed from applied the First Amendment privilege we articulated in Perry I and thus interpreted our earlier opinion, the earlier mandate was not directly applicable to that order; instead, our opinion in Perry I was pertinent essentially as precedent. Under these circumstances, the Vizcaino principle that mandamus is available to assure compliance with a prior mandate has no application.
2. Mandamus Jurisdiction under the Bauman factors
Having determined that the rule recognized in Vizcaino does not apply here, we address appellants' petition for issuance of a writ of mandamus under Bauman v. United States District Court, 557 F.2d 650 (9th Cir.1977), where "we established five guidelines to determine whether mandamus is appropriate in a given case: (1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal; (3) whether the district court's order is clearly erroneous as a matter of law; (4) whether the district court's order is an oft repeated error or manifests a persistent disregard of the federal ...