UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE: EXEC OFF PRES


00-5134a

D.C. Cir. 2000


*	*	*


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.


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 


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


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


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


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


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.