[652]*652WALLACE, Circuit Judge:
Bauman and Espinóla, plaintiffs in a sex-discrimination-in-employment suit brought against Union Oil Company under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq., moved the district court to certify their action as a class action pursuant to Rule 23(b)(2), Fed.R.Civ.P. Pursuant to Rule 23(c)(1) and (d)(2), the court conditionally certified the class, ordered the plaintiffs to “give individual notice to- all class members identifiable through reasonable effort,” and prescribed the contents of the notice. Bauman and Espinóla (hereafter referred to jointly as Bauman) thereupon petitioned this court for a writ of mandamus commanding the district court to modify portions of its order. We decline to issue the writ.
I
In 1973, Bauman filed a complaint against Union Oil, alleging that the company’s employment practices in its San Francisco and Sacramento offices regarding hiring, promotion, compensation, discipline, termination and pregnancy leave violated Title VII’s proscriptions of sex-based discrimination in employment. The complaint sought injunctive and other equitable relief and back-pay. On October 17, 1975, Bauman moved for an order certifying the action as a class action pursuant to Rule 23(a) and (b)(2), Fed.R.Civ.P. The motion was accompanied by both a thorough brief of the legal issues and an extensive, detailed summary of the factual underpinnings of the complaint and the class certification motion.1
On March 19, 1976, the district court responded to the motion with the following oral order:
It’s the judgment of the Court with reference to the various motions that we have on file in this matter, first that the plaintiffs’ motion for a class certification, with reference to that, I’m going to provisionally certify this as a class under 23(c) (1), provisionally, and I direct the plaintiffs to give notice at their own expense to everyone in the class, and notice should include a provision that the member can opt out, if they so desire to opt out. If they want to stay in, then they should give a short statement of what the discrimination against them has been. If they say there’s been no discrimination, then they should so state and are thereby bound by their statement.
Bauman thereafter moved the court to reconsider and modify its order. Specifically, she wanted the court to delete the “opt-out” provision and the provision regarding “a short statement” of discrimination or nondiscrimination.
On April 30, 1976, the district court filed a written order denying the motion for modification. In that order the court both clarified its prescription for the contents of the class notice and set forth its supporting reasoning. The order directed that the notice conform to the following guidelines:
(1) that the class member so notified be allowed to state whether or not she chooses to be excluded from the class, and, if so, whether the reason for that choice was (a) that the class member, while believing she has a claim against this defendant for discrimination on the basis of sex, does not wish to be represented in this class by these plaintiffs, or (b) that the class member does not believe that any discrimination on the basis of sex has been practiced against her by this defendant, in which case she should so state and be bound thereby; and (2) that if the class member so notified desires to remain in the class, she submit a short statement of the nature of the sex discrimination charge she believes she has against this defendant.
In support of the notice requirement, the court stated that “[a]t the time of plaintiffs’ request for certification, the court was without a proper factual foundation definitively to conclude that all requirements of [653]*653Rule 23 had been met.” Accordingly, the notice was a means of obtaining information in order to determine whether the Rule 23(a) elements of numerosity, typicality, commonality, and adequacy of representation were satisfied prior to final class certification. The court viewed Rule 23(d)(2) as the source of its authority to order the special notice.2
Soon after the filing of the order of April 30, Bauman petitioned this court for a writ of mandamus commanding the district court to delete from that order “those provisions . . . which permit class members to ‘opt out’ of the action below for injunctive relief, and which require class members to ‘opt in’ by making individualized allegations of discrimination in order to be represented in the said action ,.”3
II
One of the most significant challenges presently facing the federal appellate courts centers on the use of their power to issue extraordinary writs under the venerable All Writs Statute, 28 U.S.C. § 1651. Since the advent of the concept of “supervisory mandamus” in LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), the challenge to the federal appellate courts has been to formulate objective principles to guide the exercise of their section 1651 power. The dangers of unprincipled use of that power are obvious. In the absence of guiding and limiting principles, appellate use of the peremptory writs could readily subvert the policies underlying the finality rule, 28 U.^.C. § 1291, or the carefully limited congressional scheme governing interlocutory appeals, 28 U.S.C. § 1292.4 Unprincipled use of that power could also operate to undermine the mutual respect that generally and necessarily marks the relationship between federal trial and appellate courts.5 Further, without articulable and practically applicable guidelines to govern the issuance of extra-ordinary writs, appellate judges would continually be subject to the temptation to grant such relief merely because they are sympathetic with the purposes of the petitioners’ [654]*654underlying actions, or because they question the trial court’s ability to direct the litigation efficiently or impartially. As with many other facets of judicial power, the continuing effectiveness of an appellate court’s section 1651 power depends on its reasoned and principled exercise.
A review of Supreme Court and recent Ninth Circuit cases pertaining to the appellate use of peremptory writs discloses some general admonitory language and five guiding principles. The admonitory language has been partially collected in the Supreme Court’s most recent case on the subject, Kerr v. United States District Court, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976), aff’g, 511 F.2d 192 (9th Cir. 1975):
The remedy of mandamus is a drastic one, to be involved only in extraordinary situations. Will v. United States, 389 U.S. 90, 95 [88 S.Ct. 269, 273, 19 L.Ed.2d 305] (1967); Banker’s Life & Cas. Co. v. Holland, 346 U.S. 379, 382-385 [74 S.Ct. 145, 147-149, 98 L.Ed. 106] (1953); Ex parte Fahey, 332 U.S. 258, 259, [67 S.Ct. 1558, 1559, 91 L.Ed. 2041] (1947). As we have observed, the writ “has traditionally been used in the federal courts only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ ” Will v. United States, 389 U.S., at 95, [88 S.Ct. [269], at 273] quoting Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 [63 S.Ct. 938, 941, 87 L.Ed. 1185] (1943). And, while we have not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of “jurisdiction,” Will v. United States, 389 U.S., at 95, [88 S.Ct. [269], at 273] the fact still remains that “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” Ibid.
Id. at 402, 96 S.Ct. at 2124. Other cases and authorities bristle with language likewise suggesting that mandamus will issue only in “drastic,” “exceptional” and “extra-ordinary” circumstances. E. g., Will v. United States, 389 U.S. 90, 95-96, 107, 108, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Arthur Young & Co. v. United States District Court, 549 F.2d 686, 691-692 (9th Cir. 1977); Kerr v. United States District Court, 511 F.2d 192, 196 (9th Cir. 1975), aff’d, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); Hartley Pen Co. v. United States District Court, 287 F.2d 324, 328 (9th Cir. 1961); 9 J. Moore, Federal Practice ¶ 110.28, at 302. In addition, as the Supreme Court twice stated in Will, review by mandamus does not “run the gauntlet of reversible errors.” Will v. United States, supra, 389 U.S. at 98 n.6, 104, 88 S.Ct. at 275.
Although this admonitory language is helpful in framing the boundaries of section 1651 power, it serves at most only as a starting point in the effort to develop a specific framework which can assist when practical application of the generalities is required. Even more helpful in that task are the judicial directions discernible from an analysis of the cases dealing with mandamus. From those cases we have identified five specific guidelines: (1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. Kerr v. United States District Court, supra, 426 U.S. at 403, 96 S.Ct. 2119; Roche v. Evaporated Milk Ass’n., 319 U.S. 21, 26, 27-29, 63 S.Ct. 938, 87 L.Ed. 1185 (1943); Arthur Young & Co. v. United States District Court, supra, 549 F.2d at 691-692; American Fid. Fire Ins. Co. v. United States District Court, 538 F.2d 1371, 1374 (9th Cir. 1976); Pan American World Airways, Inc. v. United States District Court, 523 F.2d 1073, 1076 (9th Cir. 1975); Kerr v. United States District Court, supra, 511 F.2d at 196; Belfer v. Pence, 435 F.2d 121, 123 (9th Cir. 1970). (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (This guideline is closely related to the first.) Arthur Young & Co. v. United States District Court, supra, 549 F.2d at 691-692; Pan American World Airways, Inc. v. United States District Court, supra, 523 F.2d at 1076; Kerr v. United States District Court, supra, 511 F.2d at 196; Belfer v. Pence, supra, 435 F.2d at 123. (3) The district court’s order is clearly erroneous as a mat[655]*655ter of law. Arthur Young & Co. v. United States District Court, supra, 549 F.2d at 691-692, 692-697; Hartland v. Alaska Airlines, 544 F.2d 992 (9th Cir. 1976); Green v. Occidental Petroleum Corp., 541 F.2d 1335 (9th Cir. 1976); Commercial Lighting Products, Inc. v. United States District Court, 537 F.2d 1078, 1079 (9th Cir. 1976); Pan American World Airways, Inc. v. United States District Court, supra, 523 F.2d at 1076, 1077-81; McDonnell Douglas Corp. v. United States District Court, 523 F.2d 1083 (9th Cir. 1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976); Kerr v. United States District Court, supra, 511 F.2d at 196. (4) The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal'rules. La-Buy v. Howes Leather Co., supra, 352 U.S. at 255-60, 77 S.Ct. 309; McDonnell Douglas Corp. v. United States District Court, supra, 523 F.2d at 1087. (5) The district court’s order raises new and important problems, or issues of law of first impression. Schlagenhauf v. Holder, 379 U.S. 104, 111, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); Pan American World Airways, Inc. v. United States District Court, supra, 523 F.2d at 1076.
Although these guidelines are helpful, they of course do not always result in bright-line distinctions. First, the guidelines often raise questions of degree: How clear is it that the lower court’s order is wrong as a matter of law? How severe will damage to the petitioner be if extraordinary relief is withheld? Second, rarely if ever will a case arise where all the guidelines point in the same direction or even where each- guideline is relevant or applicable. The considerations are cumulative and proper disposition will often require a balancing of conflicting indicators. This last point is borne out by a review of four of the most recent Ninth Circuit cases granting extraordinary relief.
In Green v. Occidental Petroleum Corp., supra, 541 F.2d 1335, the defendant successfully petitioned for mandamus to reverse certification of a class under Rule 23(b)(1). In granting the extraordinary relief, we noted that the class certification decision was not appealable under either 28 U.S.C. § 1291 or § 1292. Further, the district court’s decision, as a matter of law, was quite clearly erroneous, and without extraordinary relief the petitioner would have been prejudiced by “erroneous notice and opt-out procedures.”
In Hartland v. Alaska Airlines, supra, 544 F.2d 992, we issued a writ of mandamus directing the district judge to release to the petitioners money they had previously been required to pay to a Plaintiffs’ Discovery Committee fund. The district judge’s assumption of jurisdiction over the petitioners was clearly erroneous and amounted to judicial usurpation of power. Regarding the question of finality, and hence appealability, the majority found the issue close and declined to resolve it, but a concurring member of the panel concluded that the petitioners clearly had no avenue of appeal.
In Pan American World Airways, Inc. v. United States District Court, supra, 523 F.2d 1073, we prohibited the district judge in an airline crash case from notifying potential plaintiffs of the pending actions. Direct appeal under section 1291 or section 1292 was not available to petitioners. Also, as we noted, the petitioners would be severely prejudiced in that they could not “be relieved [on appeal] of the burden of actions filed in response to such notice.” Id. at 1076. Further, we characterized the trial judge’s proposed action as “extraordinary” in that it was both novel and not authorized by any rule.
In McDonnell Douglas Corp. v. United States District Court, supra, 523 F.2d 1083, we ordered the trial judge in an air crash case to vacate his certification of a class action under Rule 23(b)(1)(A)—(B) and (b)(2). We found the certification decision clearly wrong in light of a prior case. We also stated our awareness “that the district court has reached an identical decision in a prior case. . . . Repeated errors of this magnitude in applying the Federal Rules of Civil Procedure may be corrected by mandamus.” Id. at 1087 (emphasis added, citations omitted).
[656]*656In none of these four decisions did we grant mandamus on the basis of only one of the five guidelines listed above. Also, in none did we grant extraordinary relief where most of the guidelines pointed against such relief.
Ill
After applying the five guidelines discussed above to the facts of the present case, we conclude that extraordinary relief is not warranted here.
1. Does Bauman have other adequate means, such as a direct appeal, to attain the relief she desires ?
Bauman argues, citing Price v. Lucky Stores, Inc., 501 F.2d 1177 (9th Cir. 1974), that two portions of the district court’s order are so onerous and damaging to the class action that the order amounts to a denial of class certification and injunctive relief and that the order is therefore appealable under 28 U.S.C. § 1292(a)(1). The offending portions of the order are those that direct that the class notice contain opt-out provisions and what Bauman characterizes as opt-in provisions. It is contended that because of Union Oil Company’s allegedly retaliatory practices, and because of the class members’ alleged lack of sophistication regarding and understanding of their rights, class members will either opt out or not opt in, thus providing a basis for decertification on numerosity grounds, with a resulting diminution in the scope of injunctive relief.6
Because of our construction of the district court’s order, see part III, 3 infra, we do not believe that the order will have the same damaging effect Bauman ascribes to it. But even if we were to accept her argument, this only leads her further away from her desired goal of demonstrating the prerequisites for extraordinary relief. The availability of a direct appeal would weigh strongly against a grant of mandamus. Moreover, even if the grant of an interlocutory appeal from the order is not a foregone conclusion, the possibility remains—for the very reasons Bauman herself sets forth— that a section 1292(a)(1) appeal may be available. That possibility, or uncertainty, regarding appealability militates against issuance of a writ here. The Supreme Court has repeatedly stated that a mandamus petitioner must “satisfy ‘the burden of showing that [his] right to issuance of the writ is “clear and indisputable.” ’ ” Kerr v. United States District Court, supra, 426 U.S. at 403, 96 S.Ct. at 2124 (citations omitted). This means that Bauman has the burden of showing that a section 1292(a)(1) appeal is not available. Because there is substantial uncertainty on that point, her right to the writ is anything but “clear and indisputable,” and accordingly she has failed to meet her burden.7
2. Does the district court’s order damage Bauman in a way not correctable on appeal?
This question requires analysis in two parts. The order of the district court—specifically that portion permitting class members to opt out—may have the effect of reducing the size of the class. Alternatively, if sufficient people opt out, it may have the effect of foreclosing class certification. In either case, we must determine whether the damage to Bauman arising from the order is correctable on appeal.
[657]*657A recent decision of this court stands as persuasive authority that any injury occasioned by an order of the district court which effectively reduces the size of a certified class may be corrected on appeal after a final judgment and hence is not irreparable. In Catena v. Capitol Industries, Inc., 543 F.2d 77 (9th Cir. 1976), the district court provisionally certified the plaintiff’s securities fraud case as a Rule 23(b)(3) class action, but also ordered that notice be
sent to class members [with] a demand for information concerning individual losses sustained by each shareholder and a provision that anyone failing to provide such information, but not “opting out” of the class within a specified time, would be bound by the judgment but would not be permitted to recover damages should defendants be found liable.
Id. at 78. Plaintiff attempted to take a section 1291 appeal from those portions of the order concerning notice. We dismissed the appeal for want of jurisdiction when we found that no Cohen exception to the finality rule of section 1291 was available. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We stated:
While the order appealed from in this case is collateral to the merits and while it presents a serious and unsettled question, we do not find that delaying review would cause irreparable harm to any rights involved. The clause in the notice to class members requiring that information be supplied in order to qualify to collect damages does not put anyone in a position which cannot be corrected on appeal after the final judgment. The same is true of those shareholders who failed to send the information but did not opt out of the class. They have not yet been finally denied any damage claim, and the district court may change its mind and award them damages despite the notice warning. If plaintiffs are successful on the liability issue, and the court renders a judgment, and if the court adheres to the policy of denying recovery to those shareholders, an appeal may be taken at that point. If this court then agrees with [plaintiff] that the affirmative action requirement is invalid, the damage award can be expanded to include those who had been denied recovery because of it. Thus, delaying this appeal until after final judgment will cause irreparable harm to no one .
Catena v. Capitol Industries, Inc., supra, 543 F.2d at 78 (emphasis added).
Although Catena involved a Rule 23(b)(3) class and money damages, rather than the Rule 23(b)(2) class and injunctive relief involved in the present case, we believe that the principles we articulated in Catena are applicable here. If the district court’s order —specifically, that portion permitting class members to opt out—is wrong, and if Bauman prevails on the merits, the error can be remedied on appeal without great difficulty. The district court’s equitable remedy could at that time be expanded or otherwise modified to include all those improperly excluded from the class.
A somewhat different situation arises if the number of class members who opt out is so great that the district judge denies class certification on grounds of numerosity. Where this occurs, the order would be appealable under 28 U.S.C. § 1292(a)(1) because its effect would be to deny the broad injunctive relief which Bauman sought on behalf of the class. Price v. Lucky Stores, Inc., supra, 501 F.2d 1177.8
Thus, whether the effect of the order is to reduce the size of the class or to foreclose class certification completely, there is no damage to Bauman which is not correctable on appeal. We recognize, of course, that any error in the district court’s order may promote delay and the additional expenditure of judicial and private- resources. Nevertheless, the orderly and efficient administration of justice is not promoted by using the extraordinary writs to correct ordinary errors or to serve as an alternative to ordinary appeals. See Will v. [658]*658United States, supra, 389 U.S. at 98 n. 6, 104, 88 S.Ct. 269. Importantly, for our analysis of Bauman’s petition, the Supreme Court has cautioned “that the writ is not to be used as a substitute for appeal . even though hardship may result from delay and perhaps unnecessary trial . . .” Schlagenhauf v. Holder, supra, 379 U.S. at 110, 85 S.Ct. at 238 (citations omitted).
3. Is the district court’s order clearly erroneous as a matter of law I
This question requires analysis of three separate aspects of the district court’s order: (1) the district court’s use of its Rule 23(d)(2) discretionary power to notify the class to determine whether Rule 23(a) prerequisites to a class action are satisfied; (2) the inclusion in the ordered notice of opt-out provisions; and (3) the use of notice to members of a Rule 23(b)(2) class to measure adequacy of class representation.9 This analysis in turn can be substantially furthered by a careful determination of exactly what the district court’s order does and does not require. First, the order provides that the notice shall allow class members to respond. Nowhere does the order direct that the notice require members to respond. Second, under the order, there is no penalty, such as exclusion from the class, for failure to respond.10 Third, the court will use the response of opting-out members both to determine numerosity and to exclude those members from the benefits of any remedy in the event liability is affixed.
A. Rule 23(d)(2) discretion. Bauman is not contending that a district judge per se abuses his Rule 23(d)(2) discretionary power when he uses it as an aid to determine whether Rule 23(a) prerequisites to a class action are satisfied. Bauman’s contention here is that the manner in which that power is used in this case amounts to an abuse of discretion. In particular, she argues that her showing of entitlement to a class certification order was so strong that no need exists for additional steps—such as the ordered notice—to determine compliance with Rule 23(a).
We believe that Bauman’s documentation regarding numerosity, typicality and commonality is more than adequate to sustain an order certifying the class under Rule 23(b)(2). See Blackie v. Barrack, 524 F.2d 891, 900-08 (9th Cir. 1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). Indeed, had the court refused to certify the class on the basis of Bauman’s apparently uncontroverted documentation, the decision most probably would have been reversed on appeal. See generally Gibson v. Local 40, Supercargoes & Checkers, 543 F.2d 1259 (9th Cir. 1976); Rich v. Martin Marietta Corp., 522 F.2d 333, 339—42 (10th Cir. 1975). Given this evaluation of the documentation, the question before us is considerably narrowed: When named plaintiffs make an initial showing of compliance with Rule 23(a), does a court-ordered notice seeking further information from the class regarding Rule 23(a) requirements amount to an abuse of discretion?
[659]*659We believe the answer to that question is no—if nonresponses are not used to measure numerosity. In such a case, the notice would at worst be unnecessary.11 If the district court intends, however, to use non-responses to determine that the numerosity requirement has not been satisfied, it is abusing its discretion because the probable practical effect of the notice would be to preclude all class actions in major employment discrimination cases. This result would run counter to the principle that class actions are generally appropriate in Title VII employment discrimination cases. See Gay v. Waiters’ and Dairy Lunchmen’s Union, 549 F.2d 1330, 1333 (9th Cir. 1977); Rich v. Martin Marietta Corp., supra, 522 F.2d at 340 & cases cited there; Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719-21 (7th Cir. 1969).
B. The opt-out provision. Neither the Supreme Court nor our court has yet decided whether members of a Rule 23(b)(2) class may exclude themselves from the class. Among other federal courts, there is a split in authority. Most courts have accepted the conclusion of Professor Moore that “[mjembers of the class in an action under (b)(1) or (b)(2) have no privilege of opting out.” 3B J. Moore, Federal Practice ¶ 23.60, at p. 23-1202 (2d ed. 1977). E. g., Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 249, 252-53 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Air Line Stewards & Stewardesses Ass’n v. American Airlines, Inc., 490 F.2d 636, 642 (7th Cir. 1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2406, 40 L.Ed.2d 773 (1974); Bertozzi v. King Louie International, Inc., 420 F.Supp. 1166, 1180-81 (D.R.I.1976); Redhail v. Zablocki, 418 F.Supp. 1061, 1067 (E.D. Wis.1976) (three-judge court); Brandt v. Owens-Illinois, Inc., 62 F.R.D. 160, 167-68 (S.D.N.Y.1974); Van Gemert v. Boeing Co., 259 F.Supp. 125, 130 (S.D.N.Y.1966).12 Some courts, however, have permitted members of a Rule 23(b)(2) class to withdraw from the action. Walker v. Styrex Industries, 21 Fed.Rules Service 2d 355 (M.D.N.C. Jan. 7, 1976);13 Ostapowicz v. Johnson Bronze Co., 54 F.R.D. 465 (W.D.Pa. 1972);14 see Clark v. American Marine [660]*660Corp., 297 F.Supp. 1305, 1306 (E.D.La.1969). In light of this absence of Supreme Court and Ninth Circuit decisions and a split of authority in other jurisdictions, we simply cannot conclude that the district court’s order is clearly erroneous as a matter of law as that term is used in mandamus analysis.
C. Notice and adequacy of class representation. The order allows a class member to state, in response to the class notice, that “while believing she has a claim against this defendant for discrimination on the basis of sex, [she] does not wish to be represented in this class by these plaintiffs . . . .” Because of explicit language in Rule 23, this particular portion of the order stands on surer legal footing than the balance of the order. Rule 23(d)(2) provides in part that the district court “may make appropriate orders . . . requiring . . . that notice be given in such manner as the court may direct to some or all members of . the opportunity of members to signify whether they consider the representation fair and adequate . . .” (Emphasis added.) It would seem to be anything but an abuse of power, or a clear legal error, for the district court to do exactly what the federal rules state it may do. This portion of the order is facially unassailable. See Hoston v. United States Gypsum Co., 67 F.R.D. 650, 658 (E.D.La.1975).
We emphasize that our analysis of the district court’s order is based on the following construction of that order: (1) Class members are permitted but not required to respond. (2) Nonresponding class • members will not be excluded from the class. (3) Nonresponses will not be used to determine that the numerosity requirement has not been met. If the district court has other intentions than these, our analysis might be different and may lead to a finding of clear error. Our construction of the order, however, follows fairly from its language. Also, we believe it wise to adopt any fair reading of a district court order that enables us to avoid wielding the mandamus club.
4. Is the district court’s order an oft-repeated error and does it therefore manifest a persistent disregard of the federal rules ?
Bauman argues that the present order is part of a recurring pattern of similar and erroneous rulings by the same district judge and that therefore this case is within the scope of the principle articulated by the Supreme Court in LaBuy v. Howes Leather Co., supra, 352 U.S. at 257-60, 77 S.Ct. 309, and by us in McDonnell Douglas Corp. v. United States District Court, supra, 523 F.2d at 1087. As instances of prior similar and erroneous rulings by the district court, Bauman relies on two orders of the same judge that we reversed on appeal subsequent to the entry of the present order. Gay v. Waiters’ and Dairy Lunchmen’s Union, supra, 549 F.2d 1330, rev’g 10 FEP Cases 864 (N.D.Cal.1975); Roberts v. Golden Gate Disposal Co., No. 75-3114, (9th Cir. March 11, 1977). (Unpublished memorandum.)
We believe that the orders in Gay and Roberts, even though reversed on appeal, cannot be coupled with the present order to bring this case within the scope of LaBuy and McDonnell Douglas. Neither LaBuy nor McDonnell Douglas applied the “persistent disregard of the federal rules” concept to a district judge who had not received, prior to making the objectionable order, warning that such was erroneous. In LaBuy, the Supreme Court was careful to point out that the Seventh Circuit had warned its district judges against excessive use of reference to special masters for at least 17 years before Judge LaBuy’s improper reference. 352 U.S. at 257-58, 77 S.Ct. 309. In McDonnell Douglas, we issued a writ of mandamus against a district judge who had certified a class under Rule 23(b)(1) after a decision of this court, La Mar v. H & B Novelty & Loan Co., 489 F.2d [661]*661461 (9th Cir. 1973), that rendered the certification clearly erroneous. 523 F.2d at 1085-87. Since neither we nor the Supreme Court has yet held that an order of the type being reviewed here is erroneous, and since, as noted above, there is a split of authority regarding the propriety of permitting class members to opt-out of Rule 23(b)(2) actions, the “persistent disregard” concept of La-Buy is simply not applicable in the present case.
5. Does the district court’s order raise issues of first impression and create new and important problems ?
As noted above, this petition does not raise the issue whether a district judge may use his Rule 23(d)(2) power as an aid in determining satisfaction of Rule 23(a) requirements. Petitioners are objecting only to the way the district court is using that power in this particular case. The controversy here, therefore, is necessarily tied to the peculiar facts of this action and accordingly is of narrow scope. It does not begin to approach the magnitude of the issues raised by the district court’s order in Schlagenhauf v. Holder, supra, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152: (1) Does rule 35 of the Federal Rules of Civil Procedure violate the Constitution or the Enabling Act? (2) Does Rule 35 ever permit the mental or physical examination of a defendant? (3) What is the meaning of the terms “in controversy” and “good cause” in Rule 35?
The order does reveal, however, an intention on the part of the district judge to permit class members to opt out of a Rule 23(b)(2) class. While the question whether class members can opt out of a Rule 23(b)(2) action is open in this circuit, and even assuming, without deciding, that this would constitute the type of new and important issue that could be considered in a mandamus proceeding, it should be remembered that the present order reveals only an intention to permit opting out. As we noted when reviewing a somewhat similar order in Catena v. Capitol Industries, Inc., supra, 543 F.2d 77, the district judge may change his mind and not carry into effect any intention he may presently have to exclude class members. Id. at 78. If the opting-out question is deemed sufficiently new and important to warrant mandamus review, that review may more appropriately be of the order actually excluding opting-out members (if such an order is ever made). Such a course would avoid the risk of reviewing unnecessarily and prematurely an issue of first impression.15 See Arthur Young & Co. v. United States District Court, supra, 549 F.2d at 691-692.
IV
Our final task is to review the guidelines as they apply to the facts of this case and to determine in light of the guidelines whether our writ should issue. In doing so, we find that no close analysis is required. We are not faced here with the more difficult task which would arise when some guidelines suggest one conclusion while others suggest the opposite, thereby requiring us to measure and balance. Here all five guidelines, when applied to the facts of this case, point substantially in the same direction. (1) Bauman may be able to appeal the order directly under 28 U.S.C. § 1292(a)(1). Uncertainty on this point hinders, not helps, her position. (2) Requiring Bauman to appeal will not result in irreparable damage. (3) It is not necessary for us to hold that the district court’s order, when narrowly but fairly construed, is clearly erroneous. If the order contains error, it lies in the opt-out provisions, but given the split in authority on this issue, the error would be anything but the required clear error. (4) There has been no showing of a “persistent disregard of the federal rules,” especially in light of the absence of any prior warnings to the district judge. (5) Finally, even if we were to assume that the opt-out provisions raise “new and important problems” and [662]*662“issues of first impression,” review of those issues now would be unwise and premature.
Bauman’s failure to meet her burden under the guideline analysis, coupled with the Supreme Court’s direction requiring restraint in the use of extraordinary relief, clearly dictates our result. Bauman has failed to establish that her right to a writ of mandamus is “clear and indisputable.” Kerr v. United States District Court, supra, 426 U.S. at 403, 96 S.Ct. 2119.
WRIT DENIED.