The panel acknowledged Mohawk, distinguished it, and then stated that even if Mohawk prohibits interlocutory review, the panel would still retain mandamus jurisdiction over the District Court’s ruling.The panel then held that, under the circumstances of the case, mandamus was warranted.It is unclear how the en banc review based on Mohawk would affect the mandamus ruling.I suppose the idea is that the en banc court is much less likely to buy into the panel’s reasoning that the circumstances are so extraordinary as to deserve mandamus.

Granting mandamus in these circumstances seems like an extremely unlikely motivator for rehearing en banc. But, the panel’s tentative holding that, as a class, First Amendment privilege discovery disputes satisfy the collateral-order doctrine seems like something the court might want to revisit. After all, that is (sort of) Circuit precedent that other panels would need to honor. Reversing the collateral-order jurisdiction holding, but leaving the mandamus and, perhaps, First Amendment privilege holdings intact may be what the judge is after.

Of course, for all I know, it is the substance of the First Amendment application that the motivated the judge requesting the vote.

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“The crucial question, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders.”

Slip op. at 7.

But the Ninth Circuit panel knew that. Mohawk came out a few days before the panel’s opinion. The panel acknowledged Mohawk, distinguished it, and then stated that even if Mohawk prohibits interlocutory review, the panel would still retain mandamus jurisdiction over the District Court’s ruling. The panel then held that, under the circumstances of the case, mandamus was warranted.

It is unclear how the en banc review based on Mohawk would affect the mandamus ruling. I suppose the idea is that the en banc court is much less likely to buy into the panel’s reasoning that the circumstances are so extraordinary as to deserve mandamus.

Before: WARDLAW, FISHER and BERZON, Circuit Judges.
A judge of this court has called for a vote to determine whether this case will be reheard en banc under Federal Rule of Appellate Procedure 35(a). The parties are requested to file simultaneous briefs setting forth their respective positions on whether this case should be reheard en banc, including whether rehearing en banc is warranted in light of Mohawk Industries, Inc. v. Carpenter, 558 U.S. —, No. 08- 678 (Dec. 8, 2009).

The briefs shall be filed on or before December 24, 2009. Parties who are registered for ECF must file the brief electronically without submission of paper copies. Parties who are not registered ECF filers must file the original brief plus 50 paper copies.

IT IS SO ORDERED.