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 fiftyfive 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

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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

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mandamus proceeding, asking the court to intervene by declaring

that the Act and related regulations shield an additional fiftyfive 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. 

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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.

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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

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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.

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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).

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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.

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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).

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"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

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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,

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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

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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"

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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

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"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 nonexistence 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.

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than copies of the transactional documents themselves"). That

leaves the narrow sliver of the fifty-five pages featuring nontransactional 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.

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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. 

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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. 

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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.

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