FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN M. PERRY; SANDRA B.
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO,
Plaintiffs-Appellees,
and
CITY AND COUNTY OF SAN
FRANCISCO,
Intervenor-Plaintiff,
v.
ARNOLD SCHWARZENEGGER, in his
official capacity as Governor of
California; EDMUND G. BROWN, JR.,
in his official capacity as Attorney
General of California; MARK B.
HORTON, in his official capacity as
director of the California
Department of Public Health and
state registrar of vital statistics;
LINETTE SCOTT, in her official
capacity as deputy director of
health information & strategic
planning for the California
Department of Public Health;
PATRICK O’CONNELL, in his official
capacity as clerk-recorder of the
County of Alameda; DEAN C.
LOGAN, in his official capacity as
registrar-recorder/county-clerk for
the County of Los Angeles,
Defendants,
5653
5654 PERRY v. SCHWARZENEGGER
and
DENNIS HOLLINGSWORTH; GAIL J.
KNIGHT; MARTIN F. GUTIERREZ;
HAK-SHING WILLIAM TAM; MARK
A. JANSSON; PROTECTMARRIAGE.COM-
YES ON 8, A PROJECT OF
CALIFORNIA RENEWAL, as official
proponents of Proposition 8, No. 10-15649
Intervenor-Defendants-Appellees, D.C. No.
3:09-cv-02292-
EQUALITY CALIFORNIA; NO ON VRW
Northern District of
PROPOSITION 8, CAMPAIGN FOR California,
MARRIAGE EQUALITY, A San Francisco
PROJECT OF THE AMERICAN CIVIL
LIBERTIES UNION OF NORTHERN ORDER
CALIFORNIA,
Third parties-Appellants,
and
CALIFORNIANS AGAINST ELIMINATING
BASIC RIGHTS,
Third party.
Filed April 12, 2010
Before: Kim McLane Wardlaw, Raymond C. Fisher and
Marsha S. Berzon, Circuit Judges.
ORDER
Third party appellants Equality California and No on Prop-
osition 8, Campaign for Marriage Equality, a Project of the
American Civil Liberties Union of Northern California
PERRY v. SCHWARZENEGGER 5655
(“appellants”) appeal from the district court’s March 5, 2010
(Doc. #610) and March 22, 2010 (Doc. #623) orders compel-
ling 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 alterna-
tive 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 dis-
miss the appeal for lack of jurisdiction and deny the petition
for issuance of a writ of mandamus.
I. Discussion
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 produc-
tion of documents they contend are protected under the First
Amendment privilege we articulated in Perry I only by elect-
ing 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 jurisdic-
5656 PERRY v. SCHWARZENEGGER
tion, stating that “if [they] decline to produce th[e] documents
[ordered produced by the district court] and are cited for con-
tempt 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.”).
B. Mandamus Jurisdiction
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 pro-
tect.” 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 rede-
finition of the class and charged the district court only with
the determination of individual eligibility for benefits and cal-
culation of the damages or benefits due class members. Id. at
721-22. The district court’s order on remand therefore con-
flicted 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
PERRY v. SCHWARZENEGGER 5657
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 docu-
ments 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 avail-
able to assure compliance with a prior mandate has no appli-
cation.
2. Mandamus Jurisdiction under the Bauman
factors
Having determined that the rule recognized in Vizcaino
does not apply here, we address appellants’ petition for issu-
ance of a writ of mandamus under Bauman v. United States
District Court, 557 F.2d 650 (9th Cir.1977), where “we estab-
lished 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 preju-
diced 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 rules; and (5)
whether the district court’s order raises new and important
problems or issues of first impression.” Perry I, 591 F.3d at
1156 (citing Bauman, 557 F.2d at 654-55).
The first and second factors disfavor issuance of the writ.
As we have explained, appellants have a means of obtaining
5658 PERRY v. SCHWARZENEGGER
appellate review, and protecting themselves from injury from
compelled disclosure, by defying the district court’s discovery
orders and appealing from a final, appealable contempt order.
That route was not available to the parties from whom discov-
ery was sought in Perry I until the end of the litigation. See,
e.g., Koninklijke Philips Elecs. N.V. v. KSD Tech., Inc., 539
F.3d 1039, 1042 (9th Cir. 2008) (explaining that we lack
jurisdiction to hear interlocutory appeals from civil contempt
orders entered against parties to litigation). The fourth factor
also counsels against issuance of the writ. The district court
has not committed an oft-repeated error or manifested a per-
sistent disregard of the federal rules.
The third factor—legal error—arguably militates in favor
of issuance of the writ, because the district court may have
partly misinterpreted the legal boundaries of the First Amend-
ment privilege we articulated in Perry I. In Perry I, we held
that the disclosure of internal campaign communications can
“have a deterrent effect on participation in campaigns,” as
well as a “deterrent effect on the free flow of information
within campaigns,” which is necessary to “formulate [cam-
paign] strategy and messages.” Id. at 1162. As applied to the
claims before the court at that time, we held that the official
proponents of Proposition 8 had made a prima facie showing
that disclosure of their internal campaign communications
would chill participation in campaigns and the free exchange
of ideas within such campaigns. See id. at 1163. In addition,
we emphasized that our holding was limited to “communica-
tions among the core group of persons engaged in the formu-
lation of campaign strategy and messages.” Id. at 1165 n.12
(emphasis in original). We left to the district court the deter-
mination of the “core group of persons” engaged in formulat-
ing campaign strategy and messaging, but did not hold that
the privilege is limited only to persons within a particular
organization or entity.
In the March 22, 2010 order, the district court said as a
matter of law that “the First Amendment privilege does not
PERRY v. SCHWARZENEGGER 5659
cover communications between [or among] separate organiza-
tions.” Doc. #623 at 13 (brackets in original). If the district
court meant that the privilege cannot apply to persons who are
part of a political association spanning more than one organi-
zation or entity, then this interpretation was questionable.
Under Perry I, the privilege applies to the core group of per-
sons engaged in the formulation of strategy and messages,
whether or not they are members of a single organization or
entity. The operative inquiry is whether they are part of an
association subject to First Amendment protection. We did
not hold that the privilege cannot apply to a core group of
associated persons spanning more than one entity.
Nonetheless, there does not appear to have been clear error.
The district court granted in part Proponents’ motion to com-
pel because appellants “in any event failed to furnish the mag-
istrate [judge] information from which a functional
interpretation of [an inter-organizational] core group . . . could
be derived.” Doc. #623 at 10. Thus, even if we were per-
suaded that the court misinterpreted Perry I, it is not clear that
the district court’s ultimate conclusions were clearly errone-
ous as a matter of law. Accordingly, the third factor at most
lends some support to the case for mandamus.
The fifth factor disfavors mandamus jurisdiction. In Perry
I, we exercised mandamus jurisdiction because the proceed-
ings raised a particularly novel and important question of first
impression—whether the First Amendment provides any pro-
tection against compelled disclosure of internal campaign
communications, an issue that might otherwise have evaded
appellate review. See Perry I, 591 F.3d at 1156-57, 1159. By
contrast, the current proceedings present the application of
that now recognized privilege. They thus do not present com-
parable concerns of novelty and evasion of review.
On balance, mandamus jurisdiction is not appropriate under
the Bauman factors. Although the district court may have
erred to the extent it concluded as a matter of law that the
5660 PERRY v. SCHWARZENEGGER
First Amendment privilege cannot apply to persons who are
members of a single political association comprised of differ-
ent organizations, appellants have not demonstrated that the
district court’s ultimate conclusions were clearly erroneous as
a matter of law, and the other four factors disfavor issuance
of the writ. As we explained in Perry I, “[t]he writ of manda-
mus is an ‘extraordinary’ remedy limited to ‘extraordinary’
causes.” Id. at 1156 (quoting Burlington Northern & Santa Fe
Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1146 (9th Cir.
2005) (quoting Cheney v. U.S. Dist. Court, 542 U.S. 367, 380
(2004)) (internal quotation marks omitted). We therefore deny
the petition for issuance of a writ of mandamus.
II. Conclusion
For the foregoing reasons, we dismiss the appeal for lack
of jurisdiction and deny the petition for issuance of a writ of
mandamus. Appellants’ motion to expedite the appeal is
denied as moot. Each party shall bear its own costs of these
proceedings.
APPEAL DISMISSED. PETITION FOR WRIT OF
MANDAMUS DENIED.