          United States Court of Appeals
                      For the First Circuit


No. 14-8015

                IN RE: JPMORGAN CHASE BANK, N.A.,

                           Petitioner.



     ON PETITION FOR EXTRAORDINARY WRIT TO THE UNITED STATES
         DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Judith G. Dein, U.S. Magistrate Judge]


                              Before

                       Howard, Chief Judge,
              Thompson and Kayatta, Circuit Judges.



     Beth I.Z. Boland, with whom Michael Thompson, Stephen J.
Quinlan, Rachel M. Blise and Foley & Lardner LLP were on brief, for
petitioner.
     Keith L. Miller for respondent.




                         August 21, 2015
          HOWARD,   Chief   Judge.     JPMorgan   Chase   Bank,   N.A.

(hereinafter, "Chase") initiated this mandamus proceeding, asking

the court to intervene in what essentially is a discovery dispute.

Before the district court, Chase unsuccessfully argued that fifty-

five pages of Chase records were shielded from production or use in

the underlying putative class action per a provision of the Bank

Secrecy Act, 31 U.S.C. § 5318(g) (hereinafter, "the Act"), and

related regulations.    As explained   below, there are significant

reasons to doubt that the Act and related regulations apply at all

to the unique facts of this case. Moreover, even assuming that the

Act and regulations apply and that the protections emanating

therefrom extend as far as Chase suggests, the documents disputed

here would not be shielded from discovery or use in litigation.

Accordingly, Chase has not demonstrated a clear entitlement to the

relief it seeks, and the petition for writ of mandamus will be

denied.

I.

          An abbreviated version of the relevant facts will suffice

for current purposes.   Through a convoluted course of events that

need not be described here, counsel for the name plaintiffs in the

underlying putative class action obtained a sizable collection of

Chase records from the receiver.     Counsel and the name plaintiffs

wished to rely on the documents in order to pursue various claims

sounding in fraud, deceit, and conversion against Chase.     The name


                                -2-
plaintiffs alleged that a customer had used his accounts with Chase

and a predecessor bank acquired by Chase to operate a Ponzi scheme

that the banks had failed to detect and stop.        A dispute arose as

to whether portions of the Chase records were shielded from

discovery and litigation use under the Act and related regulations.

The Director of the Litigation Division for the Office of the

Comptroller of the Currency ("OCC") and the Financial Crimes

Enforcement Network ("FinCEN") were notified of the dispute as

required by 12 C.F.R. § 21.11(k)(1)(i).          The OCC declined to

intervene in the matter and expressed support for the district

court's plan to conduct in camera review of the disputed documents.

Both agencies declined to review the specific documents disputed in

this case.     The OCC eventually did file an amicus brief in the

district court, offering a general overview of relevant legal

principles but making clear that the documents at issue in this

case had not been reviewed.

           After    much   legal   wrangling,    a   magistrate     judge

adjudicating the action by consent ultimately reviewed all the

disputed documents in camera and concluded that the vast majority

of the documents were not shielded by statute or regulation,

leaving the name plaintiffs free to rely upon all but a small

sliver of the Chase records in counsel's possession.       The district

court rejected Chase's request that the ruling be certified for

review   via   interlocutory   appeal.   Chase   then   initiated   this


                                   -3-
mandamus proceeding, asking the court to intervene by declaring

that the Act and related regulations shield an additional fifty-

five pages of records from evidentiary or other use in the putative

class action.1           Seizing upon language from prior cases, Chase

characterizes those fifty-five pages as "Evaluative Documents" and

claims that the documents are protected because they were prepared

for purposes of determining Chase's obligations under the Act and

related regulations to report certain transactions to FinCEN. This

court has conducted de novo review of those fifty-five pages in

camera.

II.

                 A.      Mandamus Standard

                 "A petitioner seeking mandamus must show both that there

is    a       clear   entitlement   to   the   relief   requested,   and   that

irreparable harm will likely occur if the writ is withheld." In re

Cargill, 66 F.3d 1256, 1260 (1st Cir. 1995).             The alleged error to

which a petitioner points must be "palpable."                In re Cambridge

Literary Props., Ltd., 271 F.3d 348, 349 (1st Cir. 2001). "[I]t is


          1
        At points in its papers, Chase also has invited this court
to involve itself in other aspects of the district court
proceeding, including entry of orders directly striking filings in
the district court. The court declines the invitation to seize
control of the underlying proceeding from a magistrate judge who,
up to this point, appears to have handled the matter quite ably.
This opinion, which focuses exclusively on the question whether
Chase is clearly entitled to a ruling that the fifty-five pages of
so-called "Evaluative Documents" are privileged, should provide the
magistrate judge with the guidance necessary to continue
effectively refereeing the parties' privilege dispute.

                                         -4-
well-established that an extraordinary writ, such as a . . . writ

of mandamus, may not be used as a substitute for an appeal and will

not lie if an appeal is an available remedy."            In re Urohealth

Sys., Inc., 252 F.3d 504, 507 (1st Cir. 2001).               Analogizing to

mandamus petitions centered on claims of attorney-client privilege,

we assume without definitively deciding that there is no general

bar to Chase's use of a mandamus petition to pursue the claim at

bar.   See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 114

(2009) ("We expect that the combination of standard postjudgment

appeals, § 1292(b) appeals, mandamus, and contempt appeals will

continue to provide adequate protection to litigants ordered to

disclose materials purportedly subject to the attorney-client

privilege.").

           B.     Relevant Legal Principles

           Here, the "clear entitlement" prong of the mandamus

standard   requires   careful   consideration   of     the    Act,   related

regulations,    the   limited   body    of   caselaw     applying      those

authorities, and the guidance offered by FinCEN and the OCC as the

primary agencies charged with implementing the Act and related

regulations. A general overview is in order. The relevant portion

of the Act, 31 U.S.C. § 5318(g) -- added in 1992 as part of the

Annunzio-Wylie Act -- requires financial institutions "to report

any suspicious transaction relevant to a possible violation of law

or regulation."   Annunzio-Wylie Anti-Money Laundering Act, Pub. L.


                                  -5-
102-550, 106 Stat. 3672 (1992).      Key for current purposes, the Act

also imposes limits as to whom financial institutions, government

officials, and others may notify when a "suspicious transaction"

has been reported.    Id. § 5318(g)(2).   No involved person, whether

on the financial institution side or the government side, "may

notify any person involved in the transaction that the transaction

has been reported."    Id.    The statute also creates a "safe harbor"

for   reporting   financial    institutions,   stating   that   reporting

institutions and employees

           shall not be liable to any person under any
           law or regulation of the United States, any
           constitution, law, or regulation of any State
           or political subdivision of any State, or
           under   any   contract    or   other    legally
           enforceable    agreement     (including     any
           arbitration agreement), for such disclosure or
           for any failure to provide notice of such
           disclosure to the person who is the subject of
           such disclosure or any other person identified
           in the disclosure.

Id. § 5318(g)(3).

           Several pertinent regulations have been promulgated under

the Act, including 12 C.F.R. § 21.11(k) from the OCC, which refers

to a suspicious activity report as a "SAR" and dictates, inter

alia, that "[a] SAR, and any information that would reveal the

existence of a SAR, are confidential, and shall not be disclosed




                                   -6-
except as authorized in this paragraph."2            The regulation further

specifies:

             No national bank, and no director, officer,
             employee, or agent of a national bank, shall
             disclose a SAR or any information that would
             reveal the existence of a SAR. Any national
             bank, and any director, officer, employee, or
             agent of any national bank that is subpoenaed
             or otherwise requested to disclose a SAR, or
             any   information  that   would  reveal   the
             existence of a SAR, shall decline to produce
             the SAR or such information, citing this
             section and 31 U.S.C. 5318(g)(2)(A)(I).

12 C.F.R. § 21.11(k)(1)(i).        In addition to other limitations not

relevant    for   current   purposes,     the    regulation   specifies   that

"[p]rovided that no person involved in any reported suspicious

transaction is notified that the transaction has been reported,"

the regulation should "not be construed as prohibiting . . . [t]he

disclosure . . . of . . . [t]he underlying facts, transactions, and

documents     upon    which    a    SAR     is     based."       12   C.F.R.

§ 21.11(k)(1)(ii)(A)(2).

             Against this backdrop, a body of district court caselaw

has emerged, examining the scope of the protections emanating from

the Act and related regulations. District courts have extrapolated

from the statute and regulations "an unqualified discovery and

evidentiary privilege that . . . cannot be waived."               See, e.g.,

Whitney Nat. Bank v. Karam, 306 F. Supp. 2d 678, 682 (S.D. Tex.


     2
       Nearly identical regulations from FinCEN may be found at 31
C.F.R. § 1020.320(e). For the sake of simplicity, only the OCC
regulations are referenced infra.

                                     -7-
2004) (collecting cases).     The trickier task for the district

courts has been to define the universe of documents encompassed by

this "privilege."   See id. at 682-83.   The Whitney court concluded

that the universe of protected documents

          may consist of a SAR itself; communications
          pertaining to a SAR or its contents;
          communications preceding the filing of a SAR
          and   preparatory   or   preliminary  to   it;
          communications that follow the filing of a SAR
          and are explanations or follow-up discussions;
          or oral communications o[f] suspected or
          possible violations that did not culminate in
          the filing of a SAR.

Id.   Other categories of documents are not shielded, including

"documents produced in the ordinary course of business pertaining

to the defendants' banking activities, transactions, and accounts"

that do not suggest the existence of a SAR.    Id. at 683.

          That position is consistent with the regulation quoted

above, and other courts have drawn similar distinctions between

SARs and supporting documentation.    See United States v. Holihan,

248 F. Supp. 2d 179, 187 (W.D.N.Y. 2003) ("[A]ny supporting

documentation which would not reveal either the fact that an [sic]

SAR was filed or its contents cannot be shielded from otherwise

appropriate discovery based solely on its connection to an SAR.");

see also Cotton v. PrivateBank & Trust Co., 235 F. Supp. 2d 809,

815 (N.D. Ill. 2002); Gregory v. Bank One Corp. Inc., 200 F. Supp.

2d 1000, 1002 (S.D. Ind. 2002); Weil v. Long Island Sav. Bank, 195

F. Supp. 2d 383, 390 (E.D.N.Y. 2001).


                                -8-
On the issue of scope, FinCEN has provided some guidance:

        Clearly,     any    document     or   other
information that affirmatively states that a
SAR has been filed constitutes information
that would reveal the existence of a SAR and
should be kept confidential. By extension, an
institution also should afford confidentiality
to any document stating that a SAR has not
been filed. Were FinCEN to allow disclosure
of information when a SAR is not filed,
institutions would implicitly reveal the
existence of a SAR any time they were unable
to produce records because a SAR was filed.
        The more difficult situation is when a
document or other information is silent as to
whether a SAR has or has not been filed.
Documents    that    may    identify     suspicious
activity but that do not reveal whether a SAR
exists (e.g., a document memorializing a
customer transaction, such as an account
statement indicating a cash deposit or a
record of a funds transfer), should be treated
as falling within the underlying facts,
transactions, and documents upon which a SAR
may be based, and should not be afforded
confidentiality.       This distinction is set
forth in the final rule's second rule of
construction and reflects relevant case law.
        However, the strong public policy that
underlies the SAR system as a whole--namely,
the creation of an environment that encourages
financial institutions to report suspicious
activity without fear of reprisal--leans
heavily     in     favor     of     applying    SAR
confidentiality not only to a SAR itself, but
also in appropriate circumstances to material
prepared by the financial institution as part
of its process to detect and report suspicious
activity,    regardless     of    whether   a   SAR
ultimately     was    filed    or    not.      This
interpretation also reflects relevant case
law.




                       -9-
Confidentiality of Suspicious Activity Reports, 75 Fed. Reg. 75593,

75595 (Dec. 3, 2010) (footnotes omitted).3

             The final paragraph of the FinCEN guidance, with its

reference to "material prepared . . . as part of [the financial

institution's] process to detect and report suspicious activity,"

may   seem   ambiguous,   but   the   cases   cited   in   support   of   that

paragraph are telling. See id. at n.15. FinCEN cited, inter alia,

the Whitney and Cotton decisions referenced above and characterized

those cases as having to do with communications, draft SARs, or

other materials protected because they suggested the existence or

non-existence of a SAR.     See id. (citing Whitney, 306 F. Supp. 2d

at 682; Cotton, 235 F. Supp. 2d at 815).

             Decisions post-dating the FinCEN guidance have tended to

focus on whether implicated documents were created "in the ordinary

course of business in monitoring unusual activity," as opposed to

being documents "of an evaluative nature intended to comply with

federal reporting requirements."         See Wiand v. Wells Fargo Bank,

N.A., 981 F. Supp. 2d 1214, 1218 (M.D. Fla. 2013).            Applying this

dichotomy, the Wiand court declared the following types of records

to be outside the scope of the Act and related regulations:

"copies of transactional documents," "list[s] or description[s] of

certain transactions," and "internal bank emails and reports" not


      3
        The OCC provided essentially identical guidance on the same
day as FinCEN. See Confidentiality of Suspicious Activity Reports,
75 Fed. Reg. 75576, 75578-79 (Dec. 3, 2010).

                                      -10-
"of an evaluative nature."             Id.; see also In re Whitley, No.

10-10426C-7G, 2011 WL 6202895 at *4 (Bankr. M.D.N.C. Dec. 13, 2011)

("[A]lthough a bank may undertake an internal investigation in

anticipation of filing a SAR, it is also a standard business

practice    for    banks     to   investigate     suspicious     activity     as   a

necessary and appropriate measure to protect the bank's interests,

and the internal bank reports or memorandum generated by the bank

regarding       such   an   investigation       are   not   protected    by    SAR

privilege."); Freedman & Gersten, LLP v. Bank of Am., N.A., No.

09-5351, 2010 WL 5139874 at *3 (D.N.J. Dec. 8, 2010) ("[T]he Court

finds good cause to permit the disclosure of supplemental discovery

related    to    documents    and    facts     pertaining   to   the   suspicious

activity at issue in this matter, which were created in the

ordinary course of business.").

            C.         Application to This Case

            As is likely clear by this point, the scope of the

protections stemming from the Act and related regulations is an

evolving area of the law.           However, two distinct issues lead us to

question whether those authorities apply to this case to any extent

at all, and that certainly does not bode well for Chase in its

quest to demonstrate "a clear entitlement" to mandamus relief,

Cargill, 66 F.3d at 1260, or a "palpable" error, Cambridge Literary

Props., 271 F.3d at 349.          First, there is the question whether the

Act and related regulations prevent disclosure by third parties


                                        -11-
like the name plaintiffs.             As set out above, the Act itself

expressly     forbids     disclosure     only        by    reporting       financial

institutions and their officers and agents, and by government

entities, officials, and agents on the receiving end of SARs.                       See

31 U.S.C. § 5318(g)(2).            Indeed, each of the cases cited and

discussed above involved a financial institution relying upon the

Act to resist disclosure of a SAR and related documentation; none

of    the   cases    involved     attempts    to    keep    third       parties    from

disclosing SARs. Also, the FinCEN guidance quoted above focuses on

financial institutions and does not address in any way the issue of

third-party applicability.

             It is true that the regulations fleshing out the Act do

begin with the broad proposition that SARs and documents speaking

to their existence "are confidential, and shall not be disclosed

except as authorized" by regulation.                   12 C.F.R. § 21.11(k).

However,    the     regulations    proceed    to     enumerate      a    universe    of

individuals to whom the prohibition against disclosure applies that

is functionally equivalent to that set out in the Act (i.e.,

financial     institutions      and   their        officers     and     agents,     and

government entities and their officials and agents).                     See id.    Per

the   so-called     "general/specific        canon,"      the   specific     list    of

subject entities and individuals trumps any suggestion of a broader

universe of individuals bound by the prohibition on disclosure.

See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065,


                                      -12-
2071 (2012) ("'It is an old and familiar rule that, where there is,

in the same statute, a particular enactment, and also a general

one, which, in its most comprehensive sense, would include what is

embraced in the former, the particular enactment must be operative,

and the general enactment must be taken to affect only such cases

within its general language as are not within the provisions of the

particular enactment.'" (quoting United States v. Chase, 135 U.S.

255, 260 (1890))).        Thus, it would appear that neither the Act nor

the regulations restrict third parties -- that is, parties on

neither the financial-institution side nor the government side of

a SAR exchange -- from disclosing the existence or non-existence of

a particular SAR.

               That reading also would comport with general agency

principles.        The    specific    manner     in   which   the      disclosure

prohibition is set out in the Act suggests an intent on the part of

Congress   to     limit   only   disclosure      by   specific   entities    and

individuals for the specific purposes of encouraging reporting by

financial institutions and preserving investigatory latitude.                See

Maine Ass'n of Interdependent Neighborhoods v. Comm'r, Maine Dep't

of Human Servs., 946 F.2d 4, 6 (1st Cir. 1991)                      ("We first

determine if Congress has spoken to the precise question at issue

. . . .    At this stage we look to the statute's language, history

and purpose.       If congressional intent is clear, we simply give

effect    to    that   intent.")     (internal    quotations     and    citation


                                      -13-
omitted); see also Ernst & Ernst v. Hochfelder, 425 U.S. 185,

213-14 (1976) ("The rulemaking power granted to an administrative

agency charged with the administration of a federal statute is not

the    power    to   make   law.      Rather,      it    is    the   power    to   adopt

regulations to carry into effect the will of Congress as expressed

by the statute.") (internal quotations omitted).                      Where Congress

has    spoken    with     specificity,       an    agency      may   not     promulgate

regulations that are "an attempted addition to the statute of

something which is not there," even if the intent behind the

attempted      addition     is   consistent       with   the    intent     behind       the

authorizing statute.         See United States v. Calamaro, 354 U.S. 351,

358-359 (1957) (holding that treasury regulation could not extend

coverage of statute imposing occupational tax on those in the

business of "receiving" wagers to so-called "pick-up men").                              In

sum,    while    resolution      of   this   case       does   not   require       us    to

specifically demarcate the universe of individuals encompassed by

the disclosure limitations, we conclude that Chase cannot satisfy

the demanding mandamus standard where there is such uncertainty as

to the applicability of the disclosure limitations to parties like

the name plaintiffs.

               Issues of scope to the side, there is a second concern

causing us to question the very applicability of the disclosure

limitations, and that concern stems from circumstances unique to

this case.      Both the Act and the regulations speak of "disclosure"


                                        -14-
of SARs and documents speaking to their existence.                 See 31 U.S.C.

§ 5318(g); 12 C.F.R. § 21.11(k).              "'Dictionaries of the English

language are a fundamental tool in ascertaining the plain meaning

of terms used in statutes and regulations.'" Rhode Island Hosp. v.

Leavitt, 548 F.3d 29, 35 (1st Cir. 2008) (quoting United States v.

Lachman, 387 F.3d 42, 51 (1st Cir. 2004)).              Webster's Dictionary

defines "disclose" as "to expose to view" or "to make known or

public."     Merriam-Webster's Collegiate Dictionary 356 (11th ed.

2012).   It is undisputed among the parties that, through a series

of events we need not limn, the SAR to which the relevant documents

relate was placed into the public record via court filings in prior

litigation and that electronic versions of the SAR reside on the

internet.     As such, even assuming applicability of the Act and

regulations, it is doubtful that the name plaintiffs are even

capable of exposing the SAR to view or making it known or public

because, right or wrong, the SAR already has been exposed to view

and has been made public by other actors.

             The   two   issues   just    discussed    lead   us    to   question

strongly the very applicability of the Act and regulations to this

case and, standing alone, would lead us to conclude that Chase has

not satisfied the demanding mandamus standard.                However, we need

not arrive at a definitive conclusion as to the reach of the Act

and regulations at this time.            Even assuming, arguendo, that the

disclosure    limitations     apply      in   this   case   and    constitute   a


                                      -15-
"privilege" against disclosure of the same scope as prior precedent

and agency guidance would suggest, the court would deny mandamus

relief because in camera review of the documents at issue here

reveals that the documents fall outside the scope of that so-called

"privilege."

             As conveyed above, both relevant agencies and some courts

have suggested that the "privilege" extends, not just to the SAR

itself and documents expressly stating the existence of a SAR, but

also to documents that indirectly suggest the existence or non-

existence of a SAR.           For current purposes, the court will assume

the correctness of that position.                  Even so, Chase's claim of

privilege would fail.          First, the vast majority of the allegedly

privileged       documents     in   this    case    feature    only   lists   and

descriptions of transactions.               As described previously, courts

uniformly have concluded that such documents are not encompassed by

the   Act   or    the   regulations    but,     instead,      constitute   "[t]he

underlying facts, transactions, and documents upon which a SAR is

based,"     which       are     expressly     declared     exempt     from    the

confidentiality obligation at 12 C.F.R. § 21.11(k)(1)(ii)(A)(2).4

See, e.g., Wiand, 981 F. Supp. 2d 1214, 1217-18 (finding to be

unprotected "a list or description of certain transactions rather



      4
        Nothing in this opinion should be construed as forbidding
redactions necessary to comply with court rules regarding the
filing of papers featuring personally identifiable information and
other sensitive materials.

                                       -16-
than copies of the transactional documents themselves").                              That

leaves the narrow sliver of the fifty-five pages featuring non-

transactional information.             Under the existing law and guidance

previously described, the key query is whether any of those

documents suggest, directly or indirectly, that a SAR was or was

not filed.       See, e.g., 75 Fed. Reg. 75593, 75595 n.15 (citing

Whitney, 306 F. Supp. 2d at 682; Cotton, 235 F. Supp. 2d at 815).

Careful de novo in camera review of the documents reveals that none

of   them   do.5        For    example,      none   of   the    documents       at    issue

constitute a draft SAR, and none of the documents reflect the

decision-making process as to whether a SAR should be filed, the

process of preparing a SAR, or an attempt to explain the content of

a SAR post-filing.            See Whitney, 306 F. Supp. 2d at 682; Cotton,

235 F. Supp. 2d at 815.

            In     arriving      at   this    conclusion,       the     court   declines

Chase's invitation to view the "privilege" as extending to any

document that might speak to the investigative methods of financial

institutions.           While     FinCEN      and    the    OCC       have   identified

safeguarding       of    investigative         methods     as     one    goal    of    the


      5
        In arriving at this conclusion, we have not relied upon the
"in the ordinary course of business in monitoring unusual activity"
versus "of an evaluative nature intended to comply with federal
reporting requirements" dichotomy previously discussed and relied
upon to some degree by the district court in this case. See supra
pp. 10-11. Demarcating the border between ordinary monitoring and
compliance-related monitoring would be a difficult, if not
impossible, task in some cases.         We save for another day
consideration of the merits of that approach to the issue.

                                          -17-
confidentiality provisions, see 75 Fed. Reg. 75576, 75578 (OCC); 75

Fed. Reg. 75593, 75595 (FinCEN), the Act and related regulations

refer only to SARs and documents speaking to the existence of SARs.

Chase's suggested approach would see the bulk of a financial

institution's investigative file in a particular case shielded from

discovery.   Congress and/or the agencies certainly would have used

broader,   less   specific    language      had   that   been   their   intent.

Further, Chase's suggested approach, in many instances, would be

inconsistent with the portions of the regulations specifically

exempting from protection "[t]he underlying facts, transactions,

and   documents    upon      which   a      SAR   is     based,"   12   C.F.R.

§ 21.11(k)(1)(ii)(A)(2), as well as with the body of caselaw

described previously.6        Finally, it is worth noting that the

documents in this case do not reveal a great deal about Chase's

investigative methods that could not be guessed by the average

would-be wrongdoer.       Moreover, nothing in this opinion would

prevent Chase from asking the district court to continue sealing



      6
        Contrary to Chase's contentions, this narrower approach
also is not inconsistent with Regions Bank v. Allen, 33 So. 3d 72,
77-78 (Fla. Dist. Ct. App. 2010). There, a state appellate court
simply held that a blanket order from the trial court calling for
redactions of "any reference to a SAR or any language disclosing
whether there was or was not a SAR or whether a SAR was or will be
prepared" might not be sufficient and that, instead, any documents
falling into a "grey area" should be reviewed by the trial court in
camera prior to production.    See id.    Nothing in that decision
supports a broader view of the scope of the privilege than is being
assumed here, and, in this case, both the district court and this
court have reviewed the relevant documents in camera already.

                                     -18-
any filed copies of the fifty-five pages or filings describing

their content.7   It is entirely possible, then, that Chase will not

be prejudiced to the extent suggested in its papers and that an

appeal at the conclusion of district court proceedings would allow

Chase a sufficient opportunity to pursue its claim of privilege.

See Urohealth Sys., 252 F.3d at 507 ("[A] writ of mandamus[] may

not be used as a substitute for an appeal and will not lie if an

appeal is an available remedy.").8

          D.      Outstanding Motions

          Two outstanding motions require attention.   First, Chase

filed a motion for sanctions against plaintiff-respondents, arguing

that counsel on at least two occasions had failed to comply with

orders placing certain documents under seal. In each instance, the

non-compliance was remedied promptly, and counsel has accounted for

any lapses.    The motion for sanctions will be denied, though the

court trusts that counsel will redouble his efforts to comply

strictly with any orders placing documents under seal in this court

and in the district court.     Second, the parties have tendered a

supplemental joint appendix and requested leave to file the same.

The motion is granted, and, to the extent relevant, the documents

in the tendered appendix have been considered.


     7
        The court expresses no opinion as to whether the district
court should grant such relief.
     8
        In light of the foregoing, the court need not reach the
plaintiff-respondents' standing and First Amendment arguments.

                                -19-
III.

          The petition for writ of mandamus is denied due to

Chase's failure to demonstrate a clear entitlement to the relief

sought.   The motion for sanctions is denied, and the motion for

leave to file a joint supplemental appendix is granted.




                              -20-
