In Re: Exec Off Pres

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 18, 2000 Decided May 26, 2000

No. 00-5134

In re: Executive Office of the President,
Petitioner

On Petition for Writ of Mandamus

William B. Schultz, Deputy Assistant Attorney General,
United States Department of Justice, argued the cause for
petitioner. With him on the petition were David W. Ogden,
Acting Assistant Attorney General, Mark B. Stern, Michael
S. Raab, and Colette G. Matzzie, Attorneys.

Larry E. Klayman argued the cause and filed the response
for respondents.

Before: Edwards, Chief Judge, Ginsburg and Tatel,
Circuit Judges.

Opinion for the Court filed Per Curiam:

Per Curiam: This matter involves an Emergency Petition
for Writ of Mandamus, filed by the Department of Justice on

behalf of the Executive Office of the President ("EOP"),
challenging a discovery order by the District Court.

The underlying law suit is a civil action brought by plain-
tiffs who claim inter alia that the FBI improperly gave the
White House FBI files of former political appointees, and that
the White House improperly maintained those files, in viola-
tion of the Privacy Act, 5 U.S.C. s 552a (1994). The Govern-
ment moved to dismiss Count II of the complaint for lack of
jurisdiction, claiming that the President's personal staff and
White House units whose sole function is to advise and assist
the President (hereafter referred to as "White House Office")
are not "agencies" subject to the Privacy Act. The Govern-
ment argued that the definition of "agency" in the Privacy
Act is taken directly from the Freedom of Information Act
("FOIA"), 5 U.S.C. s 552(f), and the courts consistently have
interpreted FOIA to exclude the White House Office. See
Kissinger v. Reporters Comm. for Freedom of the Press, 445
U.S. 136, 156 (1980). The District Court, however, denied the
motion to dismiss, finding that "the concerns of FOIA and the
Privacy Act are quite different." Alexander v. FBI, 971
F. Supp. 603, 606 (D.D.C. 1997). The District Court held, in
particular, that the reasons for exempting the White House
Office from the definition of "agency" under FOIA did not
apply to the Privacy Act. Accordingly, it held that the White
House Office constituted an "agency" for the purposes of the
Privacy Act. See id. at 606-07.

Recognizing that its holding presented a judgment "as to
which there is substantial ground for difference of opinion,"
the District Court certified the question for appeal under 28
U.S.C. s 1292(b) (1994). See Alexander v. FBI, No. 96-2123
(D.D.C. Aug. 12, 1997) (order certifying interlocutory appeal).
This court denied the certified petition for permission to
appeal from the interlocutory order, holding that the question
raised did not "present a controlling issue of law, the resolu-
tion of which [would] materially advance the ultimate termi-
nation of the litigation." See Alexander v. FBI, No. 97-8059
(D.C. Cir. Oct. 10, 1997) (order denying permission to appeal
interlocutory order).

 Following this court's refusal to consider the certified
question, plaintiffs pursued discovery in support of their
Privacy Act claim. At issue here is plaintiffs' interrogatory
asking for "[a]ny and all knowledge" of Bruce Lindsey,
Deputy Counsel to the President, concerning "the release or
use of any documents between Kathleen Willey and President
Clinton or his aides, or documents relating to telephone calls
or visits between Willey and the President or his aides."
Emergency Petition for Writ of Mandamus ("Petition") at 8
("Willey-file Interrogatory"). Although Ms. Willey is neither
a named plaintiff in this case nor a putative class member, the
District Court nonetheless ruled that the discovery was per-
missible, because "if the [Willey] file was maintained in a way
that implicated the Privacy Act, then its misuse could prove
to be circumstantial evidence of file misuse aimed at the
plaintiffs in the case at bar." Alexander v. FBI, 186 F.R.D.
113, 115 (D.D.C. 1998).

EOP nonetheless persisted in objecting to the Willey-file
Interrogatory, asserting attorney-client, work-product, and
deliberative-process privileges. In a Memorandum and Or-
der issued on March 29, 2000, the District Court rejected
each of the asserted privileges. See Alexander v. FBI, No.
96-2123, Mem. Op. at 10 (D.D.C. Mar. 29, 2000). The District
Court rejected the attorney-client privilege on the grounds
that "EOP [had] not met its burden of establishing that the
information withheld pertained to a confidential communica-
tion from the client." Id. With regard to the work-product
privilege, the District Court stated that it was "questionable
that the work-product privilege would apply to the discus-
sions at issue," because "there is no prospect of 'litigation'."
Id. at 21-22 n.13. And, finally, the District Court stated that
"it appears that the deliberative process privilege would not
be applicable in this case," because the "privilege does not
apply when a cause of action is directed at the government's
intent...." Id. at 23 n.14 (citations and internal quotation
marks omitted).

In dicta, the District Court also rejected the asserted
privileges on the ground that, "when the President and the
EOP released the [Willey] letters, they were fully aware of

[the District Court's] ruling that the Privacy Act was applica-
ble, and that disclosure of the letters was therefore prohibited
by the Privacy Act." Id. at 18. "Thus," according to the
District Court, because "the President had the requisite
intent for committing a criminal violation of the Privacy Act,"
id. at 19, and "the release of the Willey letters was a criminal
violation of the Privacy Act," id. at 20, the "crime-fraud"
exception vitiated the asserted privileges.

EOP now seeks to vacate the District Court's March 29,
2000 Order through this Emergency Writ of Mandamus.
"The remedy of mandamus is a drastic one, to be invoked
only in extraordinary situations." Kerr v. United States
District Court, 426 U.S. 394, 402 (1976). In determining
whether we are faced with an "extraordinary situation" re-
quiring mandamus relief, we consider:

(1) whether the party seeking the writ has any other
adequate means, such as a direct appeal, to attain
the desired relief;

(2) whether that party will be harmed in a way not
correctable on appeal;

(3) whether the district court clearly erred or abused its
discretion;

(4) whether the district court's order is an oft-repeated
error; and

(5) whether the district court's order raises important
and novel problems or issues of law.

National Assoc. of Criminal Defense Lawyers, Inc. v. United
States Dep't of Justice, 182 F.3d 981, 987 (D.C. Cir. 1999).

Almost the entire thrust of EOP's petition is that the
District Court erred in concluding that the White House is
subject to the Privacy Act. And EOP's principal claim for
relief is a request that this court "issue a writ of mandamus
directing dismissal of the Privacy Act claim." Petition at 20.
This court has already ruled that the matter regarding the
applicability of the Privacy Act raises a question that properly
may be addressed on an appeal of the final judgment in the
underlying case. We declined to address the issue as a

certified question under 28 U.S.C. s 1292(b), and we see no
basis now to address the issue pursuant to a petition for
mandamus. Even assuming, arguendo, that the District
Court's holding on the scope of the Privacy Act is clear error,
mandamus relief is not warranted in this case. This is so
because, on the record at hand, there has been no showing of
harm of the sort required to justify the drastic remedy of
mandamus. See National Assoc. of Criminal Defense Law-
yers, 182 F.3d at 987 ("In no event ... could clear error alone
support the issuance of a writ of mandamus in this case
because, as we have seen, any error--even a clear one--could
be corrected on appeal without irreparable harm either to the
Department or to the administration of the FOIA in this
circuit.").

EOP first claims that it will suffer serious harm if required
to answer the Willey-file Interrogatory, because this will
result in the release of information it regards as privileged.
There are occasions when mandamus relief may be appropri-
ate to challenge a District Court's discovery order. See, e.g.,
In re Papandreou, 139 F.3d 247 (D.C. Cir. 1998) (granting
mandamus relief of district court order that diplomats submit
to depositions); In re: Sealed Case, 151 F.3d 1059 (D.C. Cir.
1998) (granting mandamus where district court's discovery
order would have revealed secret grand jury information).
As we recognized in Papandreou, "disclosure [of highly privi-
leged material] followed by appeal after final judgment is
obviously not adequate in such cases--the cat is out of the
bag." 139 F.3d at 251. In the normal course, however,
mandamus is not available to review a discovery order. This
is especially true when, as here, granting such relief "would
permit an application for review of a discovery order to serve
in effect as a vehicle for interlocutory review of the underly-
ing merits of the law suit." Pacific Union Conference of
Seventh-Day Adventists v. Marshall, 434 U.S. 1305, 1309
(1977). See also Byrd v. Reno, 180 F.3d 298, 303 (D.C. Cir.
1999) (denying mandamus of discovery order where attorney
claimed work-product privilege).

EOP has not met its burden of showing the need for
mandamus relief to overturn the District Court's denial of the

asserted privileges, because it has offered us no argument
that it is even entitled to the privileges. In fact, EOP
presents no substantive argument whatsoever in opposition to
the trial court's holdings that the attorney-client privilege,
work-product privilege, and deliberative-process privilege find
no support in this record. Rather, EOP simply says that,
"although we have not in this Petition separately briefed the
applicability of the work product doctrine and the attorney-
client and deliberative process privileges, we continue to
disagree with the district court's conclusions on these ques-
tions." Petition at 15 n.7. This is far short of what is
necessary to support a petition for mandamus relief. Absent
a viable claim that some important privilege will be infringed
if discovery is allowed to proceed, this court has no jurisdic-
tion to review the interlocutory order on this ground.

EOP's second asserted ground for mandamus relief is that
"[t]he district court's order of March 29 now makes the EOP
legally accountable for failing to treat [the District Court's]
1997 interlocutory order as if it was legally binding in the
ongoing operations of the EOP." Petition at 10. In this
regard, EOP claims that mandamus relief is warranted, be-
cause the District Court "committed significant legal error in
concluding that the President committed a criminal violation
by acting inconsistently with [the District Court's] non-
binding statement of the law." Petition at 11. In short, EOP
contends that the President's interactions with his closest
advisors will be irreparably damaged in the future, because
the District Court has sought to coerce the White House, on
threat of criminal sanction, into following a view of the
Privacy Act to which it does not subscribe. EOP's conten-
tions on this score are meritless, because they are based on
faulty premises regarding the weight of the District Court's
opinion.

We view the District Court's discussion of the crime-fraud
exception as unnecessary to his decision. Indeed, it was
inappropriate for the District Court gratuitously to invoke
sweeping pronouncements on alleged criminal activity that
extended well beyond what was necessary to decide the
matters at hand. In the March 29, 2000 Order, the District

Court found that EOP had failed to establish that the
attorney-client privilege applied; the court also stated that,
even without considering the crime-fraud exception, the work-
product and deliberative-process privileges were not applica-
ble in this case. There was nothing more to be said. "Too
frequently our dicta cause future strains rather than avoid
them," Quaker Action Group v. Morton, 516 F.2d 717, 745
(D.C. Cir. 1975) (MacKinnon, J., concurring in part and
dissenting in part), and this case may be an example of just
that. Nonetheless, the disputed dicta here are of no moment.
The District Court's observations on alleged criminal activity
are entirely superfluous--they "are not binding on a subse-
quent court, whether as a matter of stare decisis or as a
matter of law of the case," Wilder v. Apfel, 153 F.3d 799, 803
(7th Cir. 1998)--and, thus, they provide no basis for manda-
mus relief.

In short, we do not take seriously EOP's argument that the
President and the members of the White House Office are
now disabled from functioning because of an implicit threat
underlying the District Court's Order. As EOP should know,
the District Court has no free-wheeling authority to run the
affairs of the White House with respect to matters that are
not related to the instant case. District Court decisions do
not establish the law of the circuit, City Stores Co. v. Lerner
Shops, 410 F.2d 1010, 1014 (D.C. Cir. 1969), nor, indeed, do
they even establish "the law of the district," Threadgill v.
Armstrong World Indus., Inc., 928 F.2d 1366, 1371 (3rd Cir.
1991). The members of the White House Office are under no
real threat of criminal prosecution by reason of the District
Court's Order, because the court has no control over the
decision whether to pursue such criminal actions. In activi-
ties unrelated to the instant case, the White House, as it has
done for many years on the advice and counsel of the
Department of Justice, remains free to adhere to the position
that the Privacy Act does not cover members of the White
House Office. The District Court's view on this matter will
be subject to review on appeal following final judgment in this
case.

In sum, we find no basis upon which to exercise mandamus
jurisdiction. The petition is accordingly dismissed.