Cheryl Cason v. Optimum Health Institute

FILED
NOT FOR PUBLICATION MAR 06 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERYL CASON, No. 11-16575
Plaintiff, D.C. No. 3:10-cv-0792 EMC
v.
MEMORANDUM*
FEDERATED LIFE INSURANCE CO.,
Defendant/Appellee.
OPTIMUM HEALTH INSTITUTE,
Real-Party-In-Interest/Appellant.
On Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted February 15, 2013
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER and MURGUIA, Circuit Judges, and MCNAMEE, Senior
District Judge.**
Appellant Optimum Health Institute appeals from a civil contempt order by
the district court. The district court held Appellant in civil contempt after it
refused to comply with the court’s order that it disclose certain documents to
Federated Life Insurance Company. We have jurisdiction pursuant to 28 U.S.C. §
1291. We review orders of contempt for an abuse of discretion, but a district court
abuses its discretion if it applies incorrect law. F.T.C. v. Affordable Media, 179
F.3d 1228, 1239 (9th Cir. 1999); Allen v. Shalala, 48 F.3d 456, 457 (9th Cir.
1995), abrogated on other grounds by Gisbrecht v. Barnhart, 535 U.S. 789, 799
(2002). We affirm the district court’s contempt order.
Appellant contends that the district court erred by discounting its argument
that documents sought by Federated were protected from discovery by
constitutional privilege under the religion clauses of the First Amendment. The
district court properly held that Appellant’s documents were not protected from
discovery by any constitutional privilege.
**
The Honorable Stephen M. McNamee, Senior District Judge for the
U.S. District Court for the District of Arizona, sitting by designation.
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Appellant’s documents were not protected from disclosure under the Free
Exercise clause because the subpoena ordering the disclosure of records relating to
Cason’s attendance at OHI – put into issue in her secular dispute with Federated by
Cason herself – could, at most, have only incidentally affected OHI’s ability to
practice its religion. Cf. Emp’t Div., Dep't of Human Res. of Oregon v. Smith, 494
U.S. 872, 879 (1990) (neutral and generally applicable laws which only
incidentally burden religion do not violate the Free Exercise clause).
Appellant’s documents were not protected by the right to associational
privacy because the documents did not disclose any private association, because
Cason herself disclosed that she attended OHI, and OHI was permitted to redact
the name of any other person from all the documents. See Perry v.
Schwarzenegger, 591 F.3d 1126, 1139-40 (9th Cir. 2009) (the party asserting a free
association privilege must make a prima facie showing that there is arguably an
infringement of that party’s right of free association).
Appellant’s documents were not protected under the Establishment Clause
because the subpoena had a secular purpose, did not advance or inhibit religion,
and did not foster excessive government entanglement with religion. Newdow v.
Rio Linda Union Sch. Dist., 597 F.3d 1007, 1017 (9th Cir. 2010) (citing Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971)).
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Appellant also contends that the district court erred by finding that Appellant
had waived its claim of a privacy privilege when it inadvertently disclosed
purportedly privileged documents. However, the district court explicitly held that
the documents over which Appellant asserted privacy privilege would not have
been protected by that privilege regardless. Therefore, any error was harmless.
Finally, OHI did not make a Religious Freedom Restoration Act (“RFRA”)
challenge to the subpoena until its 28j letter one week before oral argument. See,
e.g., United States v. Quesada, 972 F.2d 281, 284 (9th Cir. 1992) (“Because
appellant failed to present this issue to the district court, we deem it waived.”).
From the beginning of this dispute, OHI challenged the subpoena on First
Amendment grounds, which is not the same as raising a RFRA challenge to the
subpoena. See, e.g., United States v. Lafley, 656 F.3d 936, 939 (9th Cir. 2011)
(“On appeal, Lafley does not challenge the Condition on First Amendment
grounds. Rather, he argues that insofar as the Condition prohibits his religious use
of marijuana during the term of his supervised release, it violates RFRA.”).
Therefore, OHI’s RFRA argument is waived.
Accordingly, the court did not abuse its discretion in holding Appellant in
civil contempt for failure to comply with the court’s order that Appellant produce
the documents.
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AFFIRMED.
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