                                                                              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                              NOT FOR PUBLICATION                             MAR 06 2013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)).


                                           3
      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.


                                           4
AFFIRMED.




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