USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 93-2041
UNITED STATES OF AMERICA,
Appellant,
v.
RICHARD A. HORN, ET AL.,
Defendants, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
_________________________

Ellen R. Meltzer, Special Counsel, Fraud Section, U.S. Dep't

________________

of Justice, with whom Peter E. Papps, United States Attorney, and

______________
Alexander Weir III, Trial Attorney, U.S. Dep't of Justice, were
on brief, for the United States.
Christopher R. Goddu and Peter G. Callaghan, with whom James
____________________
__________________
_____
M. Costello, Robert E. McDaniel, Devine, Millimet & Branch P.A.,
___________ ___________________ ______________________________
Steven M. Gordon, Shaheen, Cappiello, Stein & Gordon, William E.
________________ ___________________________________ __________
Brennan, Timothy I. Robinson, and Brennan, Caron, Lenehan &
_______
____________________
___________________________
Iacopino were on consolidated brief, for appellees.
________
_________________________
July 25, 1994
_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________
first

impression:

Do principles

federal district court,

assessing

attorneys'

government

in

affirmatively and,

fees

of

immunity bar

supervisory power,

and

costs

against

case?

We

answer

the

district court's

therefore, annul

FACTUAL BACKGROUND
FACTUAL BACKGROUND

today a question

of sovereign

exercising its

criminal

shifting orders.
I.
I.

We decide

the
this

from

federal

question

fee-

This

appeal

arises

out

of

unpardonable

committed by

a federal prosecutor who should

The

background

factual

misconduct occurred
alia,
____

the

criminal

a multi-defendant

conspiracy

institution

of

to

defraud

have known better.

case

in

which

prosecution for,

federally

insured

the

inter
_____

financial

is memorialized in a recent opinion of this court.

See United States v.

___ _____________
[No. 93-1845,

Lacroix, ___ F.3d ___, ___

_______

slip op.

at 2-4].

The

Horn, 811
____

F. Supp. 739,

(1st Cir. 1994)

facts pertaining

misconduct are recounted in the opinion below.

v.

misconduct

See United States

___ _____________

741-44, 748-51 (D.N.H.

1992).

purposes of deciding the abstract question of law that

us today, we largely omit

to the

the former set of facts, and

For

confronts

limn the

latter in less than exegetic detail.

In mid-1992, a federal
indictment

against seven

conspiracy

to

market

fraudulent means.

grand jury returned a 102-count

individuals

and

sell

allegedly

newly

involved in

constructed

homes

by

The indictment charged violations of 18 U.S.C.

2371, 1014 and 1344.

The prosecutors who controlled the case

2

were members of the Justice Department's "New England Bank

Task

Force," so

called.

The

defendants,

none of

Fraud

whom

were

the government made

more

indigent, obtained counsel at their own expense.

During pretrial proceedings,
than

10,000 documents

available

office of Aspen Systems,

retained

by the

for inspection

at the

Boston

an independent document management firm

Task Force.

On November 9,

representing defendants Matthew Zsofka,

1992, an attorney

John Lee, and Evangelist

Lacroix visited the document repository to search for papers that

might prove helpful in cross-examination.
volunteered to have a member

of Aspen's clerical staff photocopy

any document that caught the lawyer's eye.

the

offer.

lead

The attorney accepted

When the paralegal mentioned this undertaking to the

prosecutor, she was

make an

A government paralegal

extra copy

instructed to have

of each

government's edification.

defense-selected
Defense

the Aspen employee

document for

counsel was not

the

informed of

this added flourish.

To paraphrase the Scottish poet, the
of mice

and prosecutors often go

Mouse (1785).
_____

When the

awry.

than seemed

reasonable, the

rat.

investigation

experiment

in

demanded that

Cf. Robert
___

photocopying of desired

longer

cursory

best-laid schemes

duplicitous
the government

Burns, To a
____

documents took

defense attorney
uncovered

duplication.
return its

the

The
copies

smelled a

prosecution's

lawyer
of the

promptly

papers

culled by the

defense.

When

immediately drafted a motion

his demand fell

on deaf ears,

to seal, filed the motion

he

with the

district court, and servedit before theclose of business thatday.

At this
kerosene

delicate juncture, the lead

on a raging

fire.1

She did

prosecutor poured

not passively

await the

court's ruling on the motion, but, instead, during the three days
that

elapsed before the district

prosecutor
discussed
prepare

reviewed
them

the

with two

witness).

granted

the motion

of her

Thus, by

subalterns,

defense

or

take

documents,

and used

(in the presence

November 13, 1992,

to seal and

prosecutor not to make

the motion, the

surreptitiously duplicated

a key prosecution witness

possible

the

court took up

of a second

when the court

explicitly instructed

the lead

further use of the papers singled

further

advantage

of

them to

the

out by

situation,

appreciable damage already had been done.

The lead
Two

prosecutor then

pages mysteriously

made a bad

disappeared from

situation worse.

the lead

prosecutor's

cache of ill-gotten documents before the set was submitted to the

district

court for

sealing.

And

in

direct defiance

of

the

court's order,
for her own

the lead prosecutor

use.

affidavit of

Adding

prepared a complete

insult to injury,

she next signed

somewhat questionable veracity.

appeared before

the district court

new set

an

Finally, when she

to discuss the

bizarre game

____________________

1The district court made a deliberate decision to spare the

lead prosecutor public humiliation and revised its order before
publication to delete any mention of the prosecutor's name.
Although we, if writing on a pristine page, might not be so
solicitous, we honor the district court's exercise of its
discretion, mindful that its choice has substantive implications.
Cf. United States v. Hasting, 461 U.S. 499, 506 n.5 (1983)
___ _____________
_______
(listing public chastisement of errant attorney as a permissible
form of sanction for misconduct).
4

she

had

been

playing,

statements evincing what

candor."

she

made

series

of

the court charitably called

inconsistent

a "lack of

Horn, 811 F. Supp. at 749, 750 n.4.

____
From

the outset, defendants

had mounted a cooperative defense.

equally

vulnerable

to

the

Zsofka, Lee,

and Lacroix

Thus, the three of them were

misconduct

that

occurred.

Not

surprisingly, the trio moved to dismiss the case on the ground of

prosecutorial
evaluating the

misconduct.2

The

motions, the lower

government

objected.

court ruled that

In

the current

selection
insight

during the
into

privileged

discovery phase of

counsel's

work product.

thoughts,

and,

See id. at
___ ___

a pending

therefore, constitutes

745-47 (citing In re San

__________

Juan Dupont Plaza Hotel Fire Litig., 859

______________________________________
1988)).

After rejecting

privilege

had been

prosecutor,
selected
ruled that

the

by furtively

F.2d 1007

government's

waived, the

(1st Cir.

argument that

court determined that

copying and

the

the lead

thereafter reviewing

documents, crossed the ethical line.

this prosecutorial

case offers

the

The court further

misconduct not only

violated the

defendants' work-product privilege, but also abridged their Fifth

Amendment right to due process and their Sixth Amendment right to

____________________

2For ease in reference, we call Zsofka, Lee, and Lacroix

"the appellees."
Withal, we note that the district court
permitted three other defendants
Richard Horn, Patrick Dion,
and Patricia Dion
to join in the request for dismissal. See
___
Horn, 811 F. Supp. at 744-45.
Though they had no connection to
____
the duped attorney, these three defendants ultimately received
modest fee awards. Notwithstanding, their monetary interest in
this appeal, they eschewed the filing of appellate briefs.
Consequently, we make no further reference to them or to a
seventh defendant, Susan Yildiz,
who entered into a plea
agreement before the misconduct occurred.
5

effective assistance of counsel.

See id. at 747-52.

___ ___

Finding prejudice, but

justify

dismissing the

stitched

together

indictment,
serviceable

remedies, see id. at 751-52.

___ ___
provide the

not a stain so

defense with

see id.
___ ___
fabric

indelible as to

at 751,

of narrowly

the court

tailored

The court ordered the government to

summaries of its

witnesses' testimony

and lists of its exhibits;

permit the defense to depose

the two

potential

had

bootleg

witnesses

documents; refrain
the

documents

remove

the

who

except in

the

court
by

response
from

court referred

disciplinary committees of
portion

exposed

from referring at

lead prosecutor

Additionally,

been

of its order

to

trial to the
to

substance of

defense references;

the case.
the

the

lead

See
___

id.
___

and

at 752.

prosecutor to

the

her two bar associations, and, in the

that sparked the

current controversy, the

directed the government to pay the fees and costs incurred

the defendants in litigating

the misconduct issue.

See id.
___ ___

Although the court's original order was inexplicit concerning the

source of its authority to

assess fees and costs, the

denying the government's motion

court, in

to reconsider, explained that it

grounded this sanction in the judiciary's supervisory power.

See
___

id. at 753-54.
___
Zsofka,
They

were each

Lee, and
convicted

Lacroix stood
on

at

least

trial early
one

count,

in 1993.
and

were

sentenced

in

July.3

On August

18,

1993, the

district court

3The other four defendants pled guilty at

They were all sentenced in May of 1993.

various times.

____________________

quantified

its

earlier

$46,477.80

in fees

order,

assessing

and costs.

The

that

remains of

grand

other sanctions

carried out and the defense no longer presses

district court should

is the

of

have been

the claim that the

have dismissed the indictment.

the case

total

government's appeal

Hence, all

from the

assessment of fees.

The government contests the award chiefly on the ground

that

it

Extracted
rancor,

is prohibited
from its
and

by

principles

complicated

separated

from

factual
other,

of sovereign

immunity.4

predicate, drained
essentially

of

extraneous

disputes, this appeal requires us to serve as the dispatcher at a

crossing where two powerful engines
power

and

the

government's

collision course.
II.
II.

DOCTRINAL BACKGROUND
DOCTRINAL BACKGROUND

the judiciary's supervisory

sovereign

immunity

are

on

In

ascertaining what

derivation frequently becomes

happens
important.

when

doctrines

Thus, we turn

clash,

to this

task.
A.
A.
Supervisory

Supervisory Power.
Supervisory Power.
_________________

power, sometimes known

as inherent power,

encompasses those powers which, though "not specifically required

by

the Constitution or the

Congress," United States v. Hasting,

_____________
_______

____________________

4The government also maintains that it could not have

violated any applicable work-product privilege, and cannot be
penalized for so doing, because the defense waived any such
privilege by making voluntary disclosures to a government agent,
namely, the Aspen office worker.
Because we agree that the
government is shielded from the monetary award by principles of
sovereign immunity, we take no view of this asseveration.
7

461

U.S.

499, 505

(1983),

are nonetheless

"necessary

to the

exercise of all others," Roadway Express, Inc. v. Piper, 447 U.S.

_____________________
_____
752,

764 (1980)

Cranch)

(quoting United States v.

______________

32, 34 (1812)).

Hudson, 11
______

U.S. (7

See generally United States v. Santana,

___ _________ _____________
_______

6 F.3d 1, 9-10 (1st Cir. 1993).

Although the

doctrine's ancestry can be

traced to the

early days of the Republic, see, e.g., Hudson, 11 U.S. at 34; see
___ ____ ______
___
also
____

Ex parte
__ _____

(observing

Robinson,
________

86 U.S.

(19

Wall.) 505,

510

(1873)

that the "moment the courts of the United States were

called into existence .

. . they became possessed

genealogical

dig would

of [inherent]

power"),

a full-scale

serve no

useful

purpose.

It suffices to say that the doctrine emerged in

modern

form roughly a half-century ago, see McNabb v. United States, 318

___ ______
_____________

U.S. 332, 341 (1943), and it has since developed most robustly in

the area of criminal procedure, see Sara Sun Beale, Reconsidering

___
_____________
Supervisory Power in Criminal Cases, 84
______________________________________
1435-64 (1984).

While

to

the Constitution,

derive from

Article III
implicit

in

separation

may limit the

either as

incidental to

see id. at 1464-83,

___ ___

of powers,

Trucking, Inc., 757 F.2d 557, 562

______________
made it clear that,

Rev. 1433,

supervisory power is sometimes understood

grant of judicial power,

the

Colum. L.

see
___

Eash
____

v.

or as

Riggins
_______

(3d Cir. 1985), the Court

at least as a general

power of lower federal courts

the

has

proposition, Congress

by rule or statute,

see Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991).5

____________
___________
____________________

5It is not yet settled whether some residuum of the courts'

supervisory power is so integral to the judicial function that it
may not be regulated by Congress (or, alternatively, may only be

In what
Court

is not necessarily an

has recognized

three

power may be dedicated:

exhaustive listing, the

purposes to

which the

"to implement a

supervisory

remedy for violation of

recognized rights, to preserve judicial integrity . . . and . . .

as a remedy
U.S. at
theme,

designed to

505 (internal citations

we

have

supervisory
extreme

warned that

power

in

misconduct

enforcement of `better
those who fail
F.2d

deter illegal conduct."

we

omitted).
will

criminal cases
and

prejudice,"

Invoking

"[w]hen
in

confronted

order

461

this third

consider unleashing

prosecutorial practice

to observe it.'"

Hasting,
_______

"to

the

with

secure

and reprimand

United States v. Osorio,

______________
______

of

929

753, 763 (1st Cir. 1991) (quoting United States v. Pacheco_____________

________

Ortiz, 889 F.2d 301, 310-11 (1st Cir. 1989)).

_____
The

supervisory

Hasting, 461 U.S. at

_______

505.

doctrine is interstitial in

power

has

definite

For one thing,

limits.

See
___

the supervisory power

the sense that it applies

only when

there is no

effective alternative provided by rule,

constitutional clause.
another

thing, even

invoked,

they

circumspection,

See Chambers,
___ ________
when

must

501 U.S. at

inherent powers
be

exercised

both "because

[they] are

statute, or
50-51.

For

legitimately can
with

restraint

shielded

be

and

from direct

____________________

regulated up to a certain point). In this connection, we note

that, although some courts of appeals have attempted to subdivide
the supervisory power into three categories ranged along a
continuum
according
to their
degree of
necessity, and,
concomitantly, the extent to which they may be subject to
congressional limitation, see In re Stone, 986 F.2d 898, 901-03
___ ____________
(5th Cir. 1993); Eash, 757 F.2d at 562-63, the Supreme Court has
____
expressly declined to adopt this taxonomy, see Chambers, 501 U.S.
___ ________
at 48 n.12.
9

democratic

controls,"

Roadway Express,
_______________

447

U.S.

at 764,

and

"[b]ecause of their very potency," Chambers, 501 U.S. at 44.

________
In

particular,

it

is

inappropriate

for

courts

to

attempt to use the supervisory power to justify an extreme remedy

when, short

of such heroic

measures, the

construct a

satisfactory anodyne

means are at

more narrowly tailored

hand to

to the

objective.

See
___

Hasting, 461
_______

supervisory

power

to

deter

reversal of conviction).
to gear

up the

limitation

U.S. at

506 (overturning

prosecutorial

use of

misconduct

through

It is equally inappropriate for a court

supervisory power in

an effort to

firmly established under

circumvent a

conventional doctrine.

See
___

Bank of Nova Scotia v. United States, 487 U.S. 250, 254-55 (1988)
___________________
_____________

(overturning use of supervisory power to evade the harmless error

inquiry;

United States v.
_____________

Payner, 447
______

U.S. 727,

735-36 (1980)

(overturning use of supervisory power to craft a new exclusionary

rule

designed to

reach situations

exclusionary

rule

is not

point,

court

has

this

supervisory power to

in which

triggered).
ruled

it

the constitutional

Illustrating the

inappropriate

redress misconduct that

to

same

use

the

did not result

harm, see Santana, 6 F.3d at 11 (citing cases), or

___ _______

in

that resulted

in harm to someone other than the complaining defendants, see id.

___ ___
It

has

supervisory powers
against

either

situations.

been squarely

held

includes the power to

parties

or

their

See Roadway Express, 447

___ ________________

Cordova Gonzalez,
________________

that a

726 F.2d 16,

array of

assess attorneys' fees

attorneys
U.S.

20 (1st Cir.

10

court's

in

befitting

at 764-67;
1984).

The

In re
_____

Court

recently

reaffirmed this rule, see Chambers, 501 U.S. at 49, and

___ ________

clarified its contours.

While a court may invoke its supervisory

power to

assess

sanction

responding to a display of bad faith, the bad faith may

occur
Id.
___
by

fees only

in connection with
at 46.

when

"a full

Moreover, even

a specific

statute or

supervisory power to

the

fees are

range of

though a particular abuse is covered

rule, a

provision is inadequate to the task.

The principle

as

litigation abuses."

court

still may

address the abuse if the

B.
B.

intended

invoke its

existing remedial

Id. at 50-51.
___

Sovereign Immunity.
Sovereign Immunity.
__________________
of

sovereign immunity,

in its

primary

form, dictates that the United States may not be sued except with
its

consent.

This tenet was first

Justice Marshall in Cohens

______
411-12

(1821) (dictum).

this past term.

stated, ipse dixit, by Chief

____ _____

v. Virginia, 19 U.S. (6
________
It

has been reaffirmed

See FDIC v. Meyer, 114 S. Ct.

___ ____
_____

see also Gonsalves v. IRS,

___ ____ _________
___

Wheat.) 264,

as recently as

996, 1000 (1994);

975 F.2d 13, 16 (1st Cir.

1992) (per

curiam).
The

secondary principle that monetary penalties cannot

be collected from
first articulated,

the federal government absent

in the narrow

context of

costs, in United States v.

______________

Hooe, 7
____

(1805).

Court made no

sovereign
the

two

McLemore,
________

However, the Hooe

____

U.S. (3

its consent was

an assessment
Cranch) 73,

for

90-91

explicit reference to

immunity, and it was not until four decades later that

principles formally
45 U.S. (4 How.)

converged,

see
___

United States
_____________

286, 287-88 (1846).

v.

They have been

11

taken in tandem ever since in cases involving costs.

United States v.
_____________
curiam);
(1927);

Bodcaw, 440
______

U.S. 202, 203-04

Fairmont Creamery Co. v. Minnesota,

_____________________
_________

See,
___

n.3 (1979)

e.g.,
____

(per

275 U.S. 70, 73-74

United States v. Chemical Found., Inc., 272

_____________
______________________

U.S. 1, 20

(1926); Shewan v. United States, 267 U.S. 86, 87 (1925).

______
_____________

The Supreme Court recently removed any vestige of doubt

that

may

sovereign

have lingered
immunity as

as
a

bar

to whether

these

not only

to

cases envisioned

costs

but also

to

attorneys'

fees.6

685 (1983)

(holding that, waiver aside,

sovereign immunity bars

of attorneys' fees against

the federal government)

the shifting

See Ruckelshaus v. Sierra Club, 463 U.S. 680,

___ ___________
___________

(citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y,

__________________________
________________
240, 267-68 &
sovereign
become

n.42 (1975)).

immunity

bars the

Since then,
recovery

the proposition

of

ensconced at the circuit level.

421 U.S.

attorneys' fees

that

has

See, e.g., In re Turner,

___ ____ ____________

14 F.3d 637, 640 (D.C. Cir. 1994) (per curiam); In re Perry, 882
____________
F.2d

534, 543-44 (1st Cir. 1989); Campbell v. United States, 835

________
_____________

F.2d 193, 195 (9th Cir. 1987);

F.2d

613,

penalties

616

(11th

against

prohibition,

the

Cir.

Ewing & Thomas, P.A. v. Heye, 803

____________________
____
1986).

government

Civil
are

and administrative

subject

to

the

same

see, e.g., Department of Energy v. Ohio, 112 S. Ct.

___ ____ ____________________
____

1627, 1631 (1992), as

is interest on (congressionally permitted)

____________________

6We think it is unlikely that such doubts were entertained

in earnest. After all, Congress would not have felt impelled to
enact the many statutes waiving immunity to attorneys' fees, see
___
1 Mary Frances Derfner & Arthur D. Wolf, Court Awarded Attorneys'
________________________
Fees
5.03[12][b] (1993) (cataloguing statutes), unless it
____
understood that, in the absence of such statutes, attorneys' fees
would not be recoverable against the federal sovereign.
12

court
310,
it

awards, see, e.g., Library of Congress v.

___ ____ ____________________
314 (1986).

Shaw, 478 U.S.

____

Viewed against this austere backdrop, we think

is fair to say

that, by common

understanding, the secondary

principle of sovereign immunity operates on the broadest possible

level:

it stands as an obstacle to virtually all direct assaults

against

the public fisc, save only those incursions from time to

time authorized by Congress.

Those

who

seek

profundities are likely to

deep understanding

of

the

law's

find sovereign immunity a frustrating

topic, for, from the very beginning, sovereign immunity has

"accepted as

a point

of departure unquestioned,"

been

Cunningham v.
__________

Macon & Brunswick R.R., 109 U.S. 446, 451 (1883), or, put another
______________________
way,

simply taken at face

doctrine,"
Although

United States
______________

as an established

v.

196,

Lee, 106
___

U.S.

207 (1882).

we know relatively little, we do know that the doctrine

derives from the

insulated

value and "treated

common law

from suit

tradition that the

absent his

Creamery, 275 U.S. at 73; see

consent.

See,
___

king should

be

e.g., Fairmont
____ ________

also Chisolm v. Georgia, 2 U.S. (2

________

___

Dall.) 419,

____ _______

435-45 (1793) (Iredell,

historical origins of doctrine).

could not be
sovereignty

was diffused

horizontally

(by the

J., dissenting) (discussing

To

transplanted root

_______

be

sure,

this

and branch into

both

vertically

separation

tradition

a system

where

(by federalism)

of powers).

Accordingly,

and

in

regard to the federal government, the law adapted the doctrine in

such a way that
granting

Congress inherited the king's sovereign

consent

to

be sued.

See
___

Chisolm,
_______

2 U.S.

role of
at

436

13

(Iredell, J., dissenting).

that

executive officers

One consequence of this adaptation is

lack

the power

government's sovereign immunity.

U.S. 495,

501 (1940); Munro

_____

to

waive the

See United States v.

___ _____________

v. United States,
_____________

federal

Shaw, 309
____

303 U.S. 36,

41

(1938); Chemical Found., 272 U.S. at 20-21.

_______________
Courts
adapted

have mentioned two rationales for retaining the

doctrine

theorized that

it

in a

democratic

is necessary

to

society.

Some

protect the

judges have

operations

of

government from
See,
___

undue interference and

financial embarrassment.

e.g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S.

____ ______
_________________________________

682, 704 (1949); Lee, 106 U.S. at 226 (Gray, J., dissenting); The
___
___
Siren, 74 U.S. (7 Wall.) 152, 154 (1868).
_____
more positivist view

of law,

Other judges, taking a

have suggested that

the right

to

recover against the government cannot exist unless the government

itself

deigns to create such

a right.7

See, e.g., Kawananakoa

___ ____ ___________

v. Polybank, 205 U.S. 349, 353 (1907).

________
Regardless

of

whether

tradition, reason, or inertia,

in American law.

sovereign

immunity

rests

on

the doctrine is deeply entrenched

Withal, Congress

has liberally exercised

its

prerogative to abolish particular manifestations of the doctrine.

____________________

7For
its
part,
the scholarly
community
has
been
overwhelmingly hostile to the doctrine, often denouncing it as
mischievous formalism,
see Kenneth Culp Davis,
Suing the
___
__________
Government by Falsely Pretending to Sue an Officer, 29 U. Chi. L.
__________________________________________________
Rev. 435, 436-38 (1962), with little basis in English history,
see Louis L. Jaffe, Suits Against Government and Officers:
___
_________________________________________
Sovereign Immunity, 77 Harv. L. Rev. 1, 2-19 (1963), and
___________________
antithetical to the democratic spirit, see John E. H. Sherry, The
___
___
Myth that the King Can Do No Wrong, 22 Admin. L. Rev. 39, 56-57
___________________________________
(1969).
14

See, e.g.,
___ ____
Claims

28 U.S.C.

Act)

1346(b), 2671-2678,

(subjecting

the

government to

torts); 28

U.S.C.

government

to suit for damages

see also Derfner &

___ ____
governmental

2680 (Federal Torts

1346(a),

1491 (Tucker Act)

to claims

specialized contexts); cf.

___

for

various

(subjecting the

in, inter alia, contract cases);

_____ ____

Wolf, supra note 6 (listing

_____

immunity

suit

for

counsel

18 U.S.C.

3006A

statutes waiving
fees in

various

(Criminal Justice

Act) (requiring government to pay counsel fees and other expenses

on behalf of indigent criminal defendants).
In considering legislation that
effect of

waiving sovereign

cases, courts usually

immunity in

is claimed to have the

a particular

have been guided by two

maxims.

class of

First, a

waiver of sovereign immunity must be definitely and unequivocally

expressed.

See
___

United States
_____________

v. Mitchell,
________

(1980); In re Perry, 882 F.2d at 544.

___________
as

445 U.S.

The Court has gone

535, 538

so far

to suggest that the unequivocal expression must appear in the

text of the statute itself.

See United States v. Nordic Village,

___ _____________
_______________

Inc., 112 S. Ct. 1011, 1016

____

(1992); Ardestani v. INS, 112 S. Ct.

_________
___

515, 520 (1991).

Second, a waiver of sovereign

is to be construed
and must not be

strictly in favor of the

immunity always

federal government,

enlarged beyond such boundaries as

plainly requires.

See Nordic Village, 112 S.

___ _______________

its language

Ct. at

1014-15;

Ruckelshaus, 463 U.S. at 685; In re Perry, 882 F.2d at 544.

___________
___________

monetary

Applying

these

sanctions

for

tests, several
litigation

courts have

abuse

are

not

held that
barred

by

sovereign immunity in certain classes of cases on the theory that

15

an

enacted statute,

(EAJA), 28 U.S.C.
fees

from the

typically the Equal

2412

government

proceedings), serves

Access to

Justice Act

(allowing prevailing parties to recover

in certain

to waive

civil and

administrative

the government's immunity.

See,
___

e.g., M. A. Mortensen Co. v. United States, 996 F.2d 1177, 1181____ ____________________
_____________
82 (Fed.

Cir. 1993) (holding

that the

EAJA works

a waiver

of

immunity sufficient to allow the imposition of fees under Fed. R.

Civ. P. 37); In re Good Hope Indus., Inc., 886 F.2d 480, 482 (1st
____________________________
Cir. 1989) (same,

in respect to fees under 28

U.S.C.

1912 and

Fed. R.

App. P. 38); Adamson

_______

Cir. 1988) (same, in

v. Bowen, 855 F.2d

_____

668, 672 (10th

respect to monetary sanction under

Fed. R.

Civ. P. 11); United States v. Gavilan Joint Comm'y Coll. Dist.,

______________
_________________________________
849 F.2d 1246, 1251

(9th Cir. 1988) (similar); see

___

also Schanen
____ _______

v. United States DOJ, 798 F.2d 348, 350 (9th Cir. 1985) (imposing
_________________
monetary penalty against government

under Fed. R. Civ. P.

60(b)

without addressing sovereign immunity); United States v. National

_____________
________
Medical Enters., Inc.,
______________________

792 F.2d

906,

(upholding penalty against government

P. 37(b)

910-11 (9th

Cir.

1986)

imposed under Fed. R. Civ.

without addressing sovereign immunity).

Two panels in

the Ninth Circuit have suggested that the Civil Rules themselves,
having been authorized
waiver of sovereign
939

F.2d 816, 818

by Congress, may provide the basis for a

immunity.

See
___

(9th Cir. 1991)

Mattingly v. United States,

_________
______________
(discussing Fed. R.

Civ. P.

11); Barry v. Bowen, 884 F.2d 442, 444 (9th Cir. 1989) (same).8
_____
_____
____________________

8At least one writer has expressed grave reservations about

decisions. See Timothy J. Simeone, Comment, Rule 11 and
___
___________
Federal Sovereign Immunity:
Respecting the Explicit Waiver
_________________________________________________________________
these

16

At the same time,

have

been

contexts.

found to

monetary penalties under court rules

be barred

by

sovereign immunity

See, e.g., United States v. Woodley,

___ ____ _____________
_______

in other

9 F.3d 774, 781-

82 (9th Cir. 1993) (holding that neither a local rule nor Fed. R.
Crim. P. 16(d)(2) works a waiver).
federal

statute, 18

federal

district courts

courts

continue

imposed fines for

U.S.C.

401,

to punish

to hold

that

And, moreover, even though a

confers

broad powers

contumacious

sovereign

conduct,9 most

immunity bars

contempt against the government.

v. Espy, 986
____

F.2d 1184,

compensatory

contempt

1191-92 (8th Cir.

sanctions

are

court-

See Coleman
___ _______

1993) (holding

barred

upon

by

that

sovereign

immunity); Barry, 884 F.2d at 444 (holding that coercive contempt

_____
sanctions are barred

by sovereign immunity); see also McBride v.

___ ____ _______

Coleman, 955 F.2d 571, 576-77 (8th Cir. 1992) (dictum; expressing
_______
grave

doubt that

compensatory contempt

sanctions can

override

____________________

Requirement, 60 U. Chi. L. Rev. 1043, 1052-57 (1993) (criticizing

___________
cases employing
the narrow and broad
rationale alike as
inconsistent with the Court's rigid adherence in recent years to
the unequivocal expression requirement).
9The statute provides:

A court of the United States shall have power

to punish by fine or imprisonment, at its
discretion, such contempt of its authority,
and none other, as
(1)
Misbehavior of any person in its
presence or so near thereto as to obstruct
the administration of justice;
(2) Misbehavior of any of its officers in
their official transactions;
(3) Disobedience or resistance
to its
lawful writ, process, order, rule, decree, or
command.
18 U.S.C.

401.
17

sovereign immunity).

But see Armstrong

___ ___ _________

v. Executive Office of
____________________

the Pres., 821 F. Supp. 761, 773 (D.D.C. 1993) (holding, without
__________
undertaking

any

waiver

analysis,

that

coercive

contempt

sanction is not barred by sovereign immunity).

To our knowledge, no court has considered on the merits

the

applicability of

assessed under

sovereign immunity

the judiciary's

to a

monetary penalty

supervisory power in

a criminal

case.10
III.
III.

ANALYSIS
ANALYSIS
In this

supervisory

case, the doctrines of

power, each

formidable

sovereign immunity and

in its

own

right, are

in

unavoidable

tension.11

Despite the fact

that, in recent years,

____________________
10Although

the

district

court

in

Woodley shifted fees

_______
against the government partially in reliance on its supervisory
power, the Ninth Circuit overturned the fee award, reasoning on
this issue that the availability of other sanctions precluded the
court from unleashing its supervisory power. See Woodley, 9 F.3d
___ _______
at 781-82.
The ensuing dictum to the effect that sovereign
immunity does not bar fee-shifting under the supervisory power,
see id. at 782, is both gratuitous and unsupported.
___ ___
Our research has also unearthed an occasional near
miss.
For example, in Andrulonis v. United States, 724 F. Supp.
__________
_____________
1421, 1537 (N.D.N.Y. 1989), aff'd in part, rev'd in part on other
_____________________________________
grounds, 924 F.2d 1210 (2d Cir. 1991), vacated on other grounds,
_______
________________________
112 S. Ct. 39 (1992), the court granted a motion for sanctions
against the federal government made under Rule 11, 28 U.S.C.
1926, and the court's inherent powers, without specifying the
source for the sanction imposed.
See also United States v.
___ ____ ______________
Prince, 1994 U.S. Dist. LEXIS 2962 at *1-*4 (E.D.N.Y. 1994)
______
(withdrawing assessment of jury costs against U.S. Attorney's
Office under court's supervisory power, in the face of a motion
for reconsideration arguing constraints imposed by sovereign
immunity).

11We see no way to avoid this tension by upholding the fee

award on an alternative ground.
While government counsel's
disobedience and deception of the court perhaps could have been
punished under the contempt statute, 18 U.S.C.
401, and the
entire fiasco, if conceived as a discovery violation within the
18

the domain of sovereign

immunity has tended to contract

and the

domain of supervisory power has tended to expand, we believe that

sovereign immunity

ordinarily will trump supervisory

head-to-head confrontation.

The critical determinant is that the

doctrines are of fundamentally different character:

powers are

discretionary and carefully

immunity is
former
the

mandatory and

may be invoked in
___

latter must
____

statute; and
impose

be

certain remedial

latter must be
____

the

the

Consequently,

whereas the

an applicable statute,

absence of

former may be
___
measures

supervisory

circumscribed; sovereign

the absence of

an

tempered by a

and to

applied mechanically,

words, unlike the

sovereign

absolute.

invoked in

whereas the

power in a

applicable

court to

withhold others,

come what may.

In

the

other

doctrine of supervisory power, the doctrine of

immunity proceeds by fiat:

sovereign's immunity

in

obliged to honor that immunity.

a given

if Congress has not waived

context,

the courts

See, e.g., Meyer, 114

___ ____ _____

are

S. Ct. at

____________________

ambit of Fed. R. Crim. P. 16(b)(2), might have been punishable

under the broadly worded sanction authority of Fed. R. Crim. P.
16(d)(2), these possibilities afford no hope of averting a headon collision between judicial power and sovereign immunity. In
the first place, the district court's order made it pellucid that
supervisory power comprised the sole foundation on which the
monetary sanction rested. See Horn, 811 F. Supp. at 753-54. We
___ ____
will not go behind such a determination and speculate what the
court might (or might not) have done had it analyzed the
prosecutor's misconduct under a different standard.
See R.W.
___ ____
Int'l Corp. v. Welch Foods, Inc., 937 F.2d 11, 19 (1st Cir.

____________
__________________
1991). In the second place, neither section 401 nor Criminal
Rule 16 offer a vehicle powerful enough to overrun sovereign
immunity. See Woodley, 9 F.3d at 781-82 (holding that Fed. R.
___ _______
Crim. P. 16 does not work a waiver of sovereign immunity); Espy,
____
986 F.2d at 1191 (holding that 18 U.S.C.
401 does not work a
waiver of sovereign immunity).
Thus, dressing the district
court's decision in different, less confrontational garb would
not sidestep the imminent doctrinal clash.
19

1000.
The government tells
case:

us that this is

precisely such a

since Congress has not acted, the government's immunity to

fee awards in criminal cases remains intact.

conclusion

seems sound.

We are

able

avenues

by which

appellees arguably

result.

We trace each of these routes.

At first blush, the

to discern

might tip-toe

only

three

around this

The most obvious detour around the barrier presented by

sovereign immunity depends on waiver.

If appellees can identify

some statute or rule,

and show that Congress thereby

lifted the

federal

sovereign

particular

government's

context, they would

such

immunity

in

this

have an unobstructed path.

statute or rule applicable

here

credit, do not pretend that one exists.

and

But there is no

appellees, to their

The
appropriate
override

second detour
cases, the

the

We

judicial interference in

Larson, 337 U.S.

______

at 704, and

the naked

believe that this

One of the main purposes of

guard against

assumption that,

judiciary possesses

sovereign immunity.

dead end.

embodies

in

power to

avenue is a

sovereign immunity is to

executive functions, see

___

the notion of a

judicial override

operating ex proprio vigore would largely frustrate this purpose.

__ _______ ______
In

any event,

wall:

the proposed

Congress, not the

representative for

detour runs

headlong into

courts, is the government's

purposes of waiving sovereign

supra p.13 and cases cited; see also Hans

_____
___ ____ ____

a stone

authorized

immunity.

See
___

v. Louisiana, 134 U.S.

_________

1, 21 (1890) (declaring that, because the "legislative department

20

of a State represents its polity and its will," "the legislature,

and

not the

courts, is

the judge"

of when

sovereign immunity

ought be waived).
A

third possible route around

the barrier is to argue

that,

for whatever

immunity does

reason,

the federal

government's sovereign

not extend to monetary sanctions, such as punitive

fee awards, levied under a court's supervisory power.

avenue

that

rhetoric,

appellees

they assert

immunity does not

most

vigorously

explore.

three

basic reasons

why

cover such situations.

It is this
Shorn

of

the shield

of

We mull each reason in

turn.
1.
1.
purposes

of

precluded

sovereign

parties and not when

litigation abuse.

called

immunity,

This

Appellees assert that, for

the

fee-shifting only when it

prevailing
for

Reward v. Punishment.
Reward v. Punishment.
____________________

law

historically

is employed as

it is employed

foray suggests

a reward to

as a punishment

that what

the secondary principle of sovereign immunity

holding

that

the government

imposed

in court

cases

shifted fees are intended

is

immune

precludes

has

to monetary

fee-shifting only

to reward a prevailing party,

we have

the tenet

penalties

when the

and not

when they are meant to reprimand a misbehaving party.

Appellees starts out
the older
immunity

on solid ground in the sense that

cases discussing the secondary

all

involved

monetary

principle of sovereign

awards to

directly attributable to litigatory success.

prevailing

See, e.g., Fairmont

___ ____ ________

Creamery, 275 U.S. at 73-74; McLemore, 45 U.S. at 288.

________
________
21

parties

But those

cases were cases involving costs (or fees taxable as costs)

and

costs always have been awarded to prevailing parties, at least in

the

court's discretion.12

pursuant to a
provides

statute (or

Because

costs are

a rule having

invariably taxed

statutory force)

that

for the award, the fact that they are routinely awarded

against the government in civil cases (under 28 U.S.C.

2412) is

of no assistance to the appellees in this case.

Once
fees,

we move beyond

the realm of

costs to attorneys'

appellees' argument makes very little sense.

Apart from a

statute or rule so providing, counsel fees cannot be shifted as a

reward
whether

to a

prevailing party

or not the

Pipeline, 421 U.S.

________
account
argument
against

the ground
must

mean

in any

case, civil

or criminal,

government is the

fee target.

See Alyeska
___ _______

at 247 (limning "American rule"). Taking into

rules
that

of

American

litigation,

sovereign immunity

the government only when

the fees are

bars

appellees'
fee

awards

assessed under a

____________________

12At early common law, costs were awarded to prevailing

parties as a matter of course in all cases.
See Arthur L.
___
Goodhart, Costs, 38 Yale L.J. 849, 851-53 (1929).
Before the
_____
adoption of the Civil Rules, costs were generally awarded to
prevailing parties as a matter of right in actions at law, and at
the judge's discretion on the equity side.
See Ex parte

___ _________
In modern practice, costs

Peterson, 253 U.S. 300, 317-18 (1920).

________
are commonly taxed against non-prevailing parties in civil cases,
see Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437,
___ _____________________
____________________
441 (1987); In re Two Appeals Arising out of the San Juan Dupont
_____________________________________________________
Plaza Hotel Fire Litig., 994 F.2d 956, 962-64 (1st Cir. 1993);
________________________
see also Fed. R. Civ. P. 54(d), although the judge retains some
___ ____
discretion, see
In re
Two
Appeals, 994
F.2d at
962.
___
______________________
Theoretically, costs are similarly taxable against convicted
defendants in criminal cases, see 28 U.S.C.
1918(b), although
___
the actuality is seldom seen. The statute listing categories of
costs generally available, 28 U.S.C.
1920, applies to both
civil and criminal cases.
See United States v. Procario, 361
___ _____________
________
F.2d 683, 684 (2d Cir. 1966) (per curiam).
22

fee-shifting

statute or

rule.

But

the

case law

is

arrayed

against appellees' position, for the courts have never structured

the

secondary principle

configuration.
qualification
allowable at
What

Cf.,
___
that

of

sovereign immunity

e.g.,
____

fee

id.
___

awards

all, must be

at

267-68

against

the

in such
(stating

an odd

without

government,

expressly provided for

"if

by statute").

is more, a number of courts, ruling on comparable bad-faith

sanctions, have either held

that sovereign immunity applies, see

___
supra pp.
_____

16-17, or

taken for

granted that

sovereign immunity

would apply absent a waiver, see supra pp. 15-16.13

___ _____
The

straw that

snaps

the camel's

back

is that

the

appellees have offered no plausible explanation why the shield of

immunity

should

designed as
protect

leave

the

sanctions for

government exposed

to

litigation abuse, but

fee

awards

simultaneously

it from fees or other monetary awards routinely given to

prevailing
success.
fee awards

parties

as

virtual

bonuses

The simple, unarguable

to

reward

fact is that any

would deplete the public

litigatory

and all such

coffers, and, consequently,

____________________

13In this regard, fines for civil contempt under 18 U.S.C.

401, quoted supra note 9, are of special interest because
_____
contempt originated as an aspect of the supervisory power, see
___
Shillitani v. United States, 384 U.S. 364, 370 (1966), and it
__________
______________
continues to serve essentially "the same purpose" as do sanctions
imposed under the supervisory power in respect to litigants' and
lawyers' bad-faith tactics, Chambers, 501 U.S. at 53 (citation
________
omitted).
The better reasoned decisions hold that, when the two
doctrines lock horns, contempt is barred by sovereign immunity.
See supra p. 17.
Although these decisions have little bearing
___ _____
here because they turn, explicitly or implicitly, on statutory
interpretation, they do show that the principle of immunity to
monetary damages is understood by thoughtful courts to sweep
broadly.
23

they all must stand

on the same footing vis-a-vis

sovereign immunity.

It follows inexorably that, absent a statute

or

rule

effectuating

immunity

bars

sovereign

waiver,

the

principles of

secondary

fee-shifting

awards

principle

of

against

the

government, whatever their intended purpose.

2.
2.

The Eleventh Amendment Analogy.

The Eleventh Amendment Analogy.
________________________________

that an award of attorney's fees

is

not subject

to the

It

is "settled

ancillary to prospective relief

strictures

of the

Eleventh Amendment."

Missouri v. Jenkins, 491 U.S. 274, 279 (1989); see also Fortin v.
________
_______
___ ____ ______
Commissioner, 692
____________

F.2d 790, 797-98 (1st Cir.

same theory, that avoidable fines

for contempt against the State

are not barred by the Eleventh Amendment).

extend

this exception to the

1982) (holding, on

Appellees urge us

law of federal sovereign immunity.

Although this idea is not original, see McBride,

___ _______
(Lay,

C.J.,

suggestion),

concurring

to

and

dissenting)

embracing it would entail

955 F.2d at 582

(making

a leap of

similar

faith that we

are unwilling to take.

The

Eleventh

Amendment

focuses

immunity

shared by the several

States.

11;

also
____

at

see
___

Hans, 134
____

U.S.

10-11

exclusively

See
___

on

an

U.S. Const. amend.

(explicating text

of

Eleventh

Amendment).

exceptions to
sovereign

Freely

the precincts

transposing

Eleventh

Amendment

patrolled by principles

immunity would create

of federal

a dysfunctional jurisprudential

motley and, moreover, would constitute an impermissible deviation

from a course previously charted by the Court.

Jenkins, the very

_______

case bruited by appellees, definitively rejects the argument they

24

advance.

There,

"dealt with
then

in

Eleventh

the sovereign

such

retrospective

the Court explained

event

Jenkins, 491
_______

immunity of the

there

distinction as

Amendment

immunity

U.S. at 282

that, had the

would

have

Federal Government,"
been "no

there

is when

of

State

n.4; see also

___ ____

controversy

prospective-

. .

that is

it
at

In re Shafer,
____________

is the

issue."

146 B.R.

477, 480 n.6 (D. Kan. 1992) (echoing Jenkins footnote).

_______
3.
3.
is

Separation of Powers.
Separation of Powers.
_____________________

Appellees' final contention

that stripping away the power to assess monetary penalties in

criminal cases would leave courts

defenseless against litigation

abuses committed by the government

which is, after all, a party

to every criminal case in the federal system

offend the separation of

powers.

(Lay,

and

C.J.,

thesis);
Cir.

concurring

See McBride,
___ _______

dissenting)

(making

different context;

comparable

(developing

upholding

prosecutor

suggestion

This

582

similar

1313, 1327 (5th

in

monetary sanction

personally).

would

955 F.2d at

cf. Chilcutt v. United States, 4 F.3d

___ ________
______________

1993)

federal

and thereby

significantly
levied

contention

against

seriously

overstates the case, and, in all events, asks us to do Congress's

work.
The

fact

imposition of

immunity

prosecutors.

judge

forecloses

Courts

have many

at the mercy of
other weapons

This case aptly illustrates the point.

ordered, among

other

things,

the

federal government

does not leave federal courts

their armamentarium.
district

sovereign

monetary sanctions against the

in criminal cases
cantankerous

that

the removal

in

The

and

25

quarantine

of the

documents, and

lead prosecutor,

the suppression

the advance disclosure of

of tainted

the government's trial

strategy.

In

addition, the

prosecutor to pay the

1319 (upholding
for time

judge could have

ordered the

accumulated fees, see Chilcutt, 4

___ ________

order that

spent by defense

government counsel pay,

counsel at contempt

being reimbursed); United States

_____________

lead

F.3d at

inter alia,
_____ ____

hearing, without

v. Sumitomo Marine & Fire Ins.

____________________________

Co., 617 F.2d 1365, 1370-71 (9th Cir. 1980) (upholding imposition
___
of

monetary

sanction

for discovery

abuse

against

government

attorney as the "only available target for such sanctions"),

did

not see

prosecutor
Chilcutt,
________

fit to

do so.14

He also

could have

ordered the

to attend

ethics

seminars at

her own

expense, see
___

her

the

F.3d

at

Department's internal
at

506

but

n.5,

or

1319,

dispatched

Justice

disciplinary office, see Hasting, 461 U.S.

___ _______

publicly reprimanded

itself, see United States

___ _____________
at *1-*4 (E.D.N.Y. 1994).15
we are confident that

to

the

Justice

Department

v. Prince, 1994 U.S. Dist.

______

LEXIS 2962

While this list is

not exhaustive,

it shows beyond serious question

that the

court had ample means at its disposal, even without fee-shifting,

____________________

14There would seem to be no sovereign immunity bar to

imposing a monetary penalty as a sanction against a rogue
attorney merely because she happens to represent the federal
government. See Larson, 337 U.S. at 693 (noting that sovereign
___ ______
immunity does not protect federal officials in the performance of
acts that are
unconstitutional or beyond
their statutory
authority); see also Chilcutt, 4 F.3d at 1327; Sumitomo Marine,
___ ____ ________
________________

617 F.2d at 1370-71.

15Although the district court eschewed these additional

remedies, the Justice Department later engaged its internal
disciplinary mechanism on its own initiative.
26

to catch the Justice

Department's attention, punish the culprit,

and deter future prosecutorial excesses.

Of

course, there is a more

broadly focused reason why

the separation-of-powers argument will not wash.

immunity may
there

marginally limit

is nothing

sanctions.
supervisory
This

inherent power

to shift

power in
note

9.

See
___

authority

Chambers,
________

to place

See Alyeska,
___ _______

power in

the courts to

particular situations, unless

respect to contempt.
Circumscription

of

to impose
to

limit

501 U.S.

at 47.

restrictions on

fees.

also includes the authority

to function,

the courts' power

wide-ranging

authority

(recognizing "inherent

It

has

powers generally.

includes the

fees in

the courts' ability

sacrosanct about

Congress

While sovereign

421

courts'

U.S. at

259

allow attorneys'

forbidden by

Congress").

to regulate the courts' inherent

See 18 U.S.C.
___
the

401, quoted supra

_____

fee-shifting

power

by

the

application of an ancient (but still viable) common law doctrine,

subject

to

waiver through

congressional

action,

comprises no

greater insult to the independence of the Judicial Branch.

Our

last

argument is to note
be,

and has

response to

appellees' separation-of-powers

its indeterminacy.

been, turned

180

The same

degrees.

At

argument could

least one

highly

respected scholar maintains that sovereign immunity "furthers the

________
separation of powers by
conduct . . .

limiting judicial oversight of executive

[and thus] avoid[ing] situations where

the courts

will impose orders on the other branches of government that might

be

disregarded."

Erwin

Chemirinsky,

Federal Jurisdiction
_____________________

27

9.2.1, at 545-46 (2d ed. 1994) (emphasis supplied).

We

will

not

paint

the lily.

Neither

policy

nor

precedent supports the proposition

that the separation of powers

requires

essayed by

Leaving
other

taking the

quantum leap

monetary imposts
sanctions, remedial

federal criminal

to one

side, the

and punitive,

the

range and

that are

courts permit those courts

court below.

reach of

available to

to administer their

dockets and
hand.

conduct judicial

business with a

sufficiently free

Courts, like litigants, must abide by certain rules

to the

extent that sovereign immunity curbs

restraint

judicial power, the

is tolerable in the constitutional sense.

analysis, then,

appellees' contention that

sanction against the government

In the last

criminal courts

left impotent if they are deprived of the power to

a

and

is as empty

are

shift fees as

as a mendicant's

purse.
To

summarize, none

of

manage to bypass

the barrier

therefore,

fee-shifting

that

accomplished only in

authorizes

enactment, the
the federal

various possible

of sovereign immunity.
against

the

conjunction with the

(or a sufficiently explicit

that

the

such an

award.

secondary principle

passage of a

In the

absence

of sovereign

government harmless from all

We

government

rule having the force of

detours

hold,
can

be

statute

a statute)
of such

an

immunity saves

court-imposed monetary

assessments, regardless of their timing and purpose.

IV.
IV.

APPELLATE JURISDICTION
APPELLATE JURISDICTION
We have one more

bridge to cross.
28

It

is hornbook law

that

a court

jurisdiction;

cannot

act

and that,

court is obliged

in
when

the

absence

subject

such jurisdiction

to note the defect on its

United States v. Pierro,

_____________
______

of

matter

is lacking,

own initiative.

___ F.3d ___, ___ (1st

See
___

Cir. 1994) [No.

93-1313, slip op. at 13-14]; In re Recticel Foam Corp., 859 F.2d

__________________________
1000, 1002
Co. v.
___

(1st Cir. 1988); see also American Policyholders Ins.

___ ____ ___________________________

Nyacol Prods., Inc., 989 F.2d 1256, 1258 (1st Cir. 1993).
___________________

Thus, even though the appellees have not questioned the existence
of appellate

jurisdiction, we

must pursue

the point.

Parties

cannot confer subject matter jurisdiction on either a trial or an

appellate

court

by

indolence,

oversight,

acquiescence,

or

consent.
A.
A.

Appeal as of Right.
Appeal as of Right.
__________________

The Appellate Rules require

contain "a statement of
of

appeals .

establish

that an appellant's

the basis for jurisdiction in

. with

reference to

such jurisdiction."

the

Fed. R.

brief

the court

applicable facts
App. P.

to

28(a)(2)(ii).

Complying, perhaps, with the letter of the rule, but not with its
spirit,

the government's

brief

states in

a purely

conclusory

fashion only that its appeal is authorized under 28 U.S.C.

(1988).16

Despite

entitlement

to an

problematic.

this
appeal

blithe
as of

We explain briefly.

assurance,
right

the

1291

government's

under section

1291

is

____________________

16The statute provides in pertinent part, with exceptions

not relevant here, that "the courts of appeals . . . shall have
jurisdiction of appeals from all final decisions of the district
courts of the United States . . . ." 28 U.S.C.
1291.
29

An

appeal by the government in a criminal case must be

specifically authorized by statute.

144 U.S.

310, 312

(1892).

See United States v. Sanges,

___ _____________
______

The appeal before

the confines

into

United

States a right of appeal from certain described orders in

in

criminal

(permitting the

very

contained

special
in

of seized

conferring a
cases,

right

e.g.,
____

United States to appeal

determinations).
of

the return

specialized statute

government

3731

(affording the

orders dismissing indictments, suppressing

evidence, or mandating
more

U.S.C.

not fit

neatly

criminal cases, e.g.,

____

of 18

us does

18

property), or
of appeal
U.S.C.

any

on the

3742(b)

from certain sentencing

And it is settled that, at least in the absence

circumstances,

section

1291

authorize an appeal by the

is

not

the

general

sufficiently

authorization
specific

government in a criminal case.

to

See,
___

e.g., Arizona v. Manypenny,

____ _______
_________
cases); United States v.
_____________

451 U.S. 232, 246-47 (1981)

Patterson, 882 F.2d 595, 599

_________

(citing

(1st Cir.

1989), cert. denied, 493 U.S. 1027 (1990).

_____ ______
Notwithstanding
jurisdiction
involves a

under

section

looming

1291,

sufficiently special

the exception rather than

that, under

this

what we

we believe

to

appellate

that

this

set of circumstances

the rule.

choose to

obstacle

Some courts

to engage

have suggested

call the "special

exception, a government appeal may

case

circumstance"

be entertained in a

criminal

case on the authority of section 1291 if the appeal satisfies the

conditions
e.g.,
____

of the

Carroll
_______

v.

so-called

collateral order

United States,
______________

354

U.S.

doctrine.
394,

403

See,
___

(1957)

30

(dictum); Patterson, 882

_________
622

F.2d at 599;

F.2d 317, 319-20 n.2 (8th Cir.),

(1980).

United States v.
_____________

Powers,
______

cert. denied, 449 U.S. 837

_____ ______

Application of the collateral order doctrine is "limited

to

orders that

questions
the

(1) conclusively

which are (3)

underlying action

appeal

from

determine (2)

important legal

completely separate from

and are

(4) effectively

final judgment."

Doughty
_______

Lloyd's, London, 6 F.3d 856, 862

_______________

the merits of

unreviewable on

v. Underwriters at
________________

(1st Cir. 1993); see also Cohen

___ ____ _____

v. Beneficial Loan Corp., 337 U.S. 541,

______________________

546 (1949) (originating

doctrine). We think that these conditions are met in

Moreover,

the

particular

this case.

circumstances

at

hand,

especially the procedural posture in which this appeal arises and

the

nature of the relief

appeal

to go

forward.

sought, are conducive

In criminal

to allowing the

cases, the

policy against

permitting appeals to be taken too freely is heightened by speedy

trial and double jeopardy
389

U.S. 90, 96 (1967); DiBella

_______

126 (1962).
the

concerns.

has

interlocutory

of

been
in

any

the

United States,
_____________

v. United States, 369 U.S. 121,

_____________

Here, those concerns do not come

determination

sentence

See Will v.
___ ____

defendants'

guilt

imposed,

the

attempted

sense,

and

no

into play at all:

has

been

appeal

prospect

of

made,
is

not

piecemeal

litigation endures.
We conclude, therefore, that
the

instant

appeal

under 28

we have jurisdiction over

U.S.C.

however, that our holding is a narrow one.

the

collateral order doctrine

1291.

emphasize,

Rather than importing

lock, stock, and

31

We

barrel into our

criminal

jurisprudence,

conditions

of the

we hold

collateral

and the prudential concerns

allowing
are

at

order

least

neutral in

the

as

doctrine are

in a criminal

respect

then section

government may

that when,

now, the

satisfied,17

that traditionally militate against

the government to appeal

government appeal,
which

only

to,

the

availability of

1291 affords a

seek appellate

case favor, or

vehicle through

review in

a criminal

case.
B.
B.
We are

Mandamus.
Mandamus.
________

fortified in our resolve to

this appeal by the knowledge

right, we possess
discretionary

hear and determine

that, even if no appeal lies

and can appropriately exercise

review, via

mandamus,18 to address

as of

the power of

the important

question raised in this case.

____________________

17We are not the first court to deem an assessment against

the government qua prosecutor to be a collateral order for
___
jurisdictional purposes. See United States v. Baker, 603 F.2d
___ _____________
_____
759, 761-62 (9th Cir. 1979) (per curiam) (entertaining government
appeal, under section 1291, from district court's Rule 15(c)
assessment against government of deposition-related attorneys'

fees);

United States v. Rogalsky, 575 F.2d 457, 459 (3d Cir.

_____________
________
1978) (entertaining government appeal, under section 1291, from
district court's assessment against government of costs arising
from psychiatric examination of indigent defendant, see 18 U.S.C.
___
3006A); but see In re Attorney General, 596 F.2d 58, 61 (2d
___ ___ _______________________
Cir.) (holding that contempt fine for discovery abuse against
U.S. Attorney General is not a collateral order for purposes of
section 1291), cert. denied, 444 U.S. 903 (1979).
_____ ______

18Technically, this case calls for the issuance of a writ of

prohibition rather than a writ of mandamus. Because prohibition
is simply the obverse of mandamus
the two writs derive from the
same source, see 28 U.S.C.
1651, and incorporate the same
___
standards
we often use the two terms interchangeably. See In
___ __
re Pearson, 990 F.2d 653, 656 (1st Cir. 1993); Recticel, 859 F.2d
__________
________
at 1005 n.4. We do so here.
32

federal court of appeals

attempted appeal from an

order as a petition for
the

United States
______________

to treat an

unappealable (or possibly unappealable)

a writ of mandamus or prohibition

All-Writs Act, 28 U.S.C.

States v. Sorren,
______
______

has the power

1651 (1988).

See, e.g., United

___ ____ ______

605 F.2d 1211, 1215 (1st Cir.

v. Collamore,
_________

868 F.2d

24,

under

1979); see also

___ ____

27 (1st

Cir. 1989)

(proceeding

under

propriety

of

mandamus powers

asserting

Mandamus is ordinarily
the
anent

issuance (or

See
___

existed as

to

jurisdiction).

appropriate in those rare

cases in which

nonissuance) of an

harm to

doubt

appellate

order presents

power, poses some

the appellant,

In re Pearson, 900
______________

Recticel,
________

F.2d 653,

and is
656 &

a question

special risk of

palpably erroneous.
n.4 (1st

Cir. 1993);

859 F.2d at 1005-06; see also Mallard v. United States

___ ____ _______
_____________

Dist. Court,
___________
class

mandatory

the limits of judicial

irreparable

where

490 U.S. 296,

of cases,

mandamus

standards are not met.

308-09 (1989).
may lie

even

In a still
though all

smaller

the

usual

See In re Arvedon, 523 F.2d 914, 915 (1st

___ _____________

Cir. 1975); In re Ellsberg, 446 F.2d 954, 956-57 (1st Cir. 1971);
______________
see generally 16 Charles
___ _________

A. Wright et al., Federal Practice and

_____________________

Procedure
_________

Supp. 1994).

3934 (1977 &

This tiny class

of cases

involves what we have come to call advisory mandamus.19

____________________

19We think it is wise to distinguish supervisory mandamus

from advisory mandamus.
The former is used when an appellate
court issues the writ to correct an established trial court
practice that significantly distorts proper procedure.
See,
___
e.g., United States v. Kane, 646 F.2d 4, 9 n.7 (1st Cir. 1981);
____ _____________
____
Grinnell Corp. v. Hackett, 519 F.2d 595, 599 (1st Cir.), cert.
_______________
_______
_____
denied, 423 U.S. 1033 (1975); see also La Buy v. Howes Leather
______
___ ____ ______
_____________
Co., 352 U.S. 249, 256-60 (1957). This differs from advisory
___
mandamus in that, far from being novel, the problem sparking

33

Advisory

mandamus

has

its

reference to

mandamus review of "basic,

Schlagenhauf
____________

v. Holder,
______

appropriate when the

379

U.S.

roots

to recur.

Court of Puerto Rico, 695 F.2d

____________________

the

Court's

undecided question[s]."

104,

110

issue presented is

importance, and likely

in

(1964).

novel, of great

It

is

public

See In re Justices of Supreme

___ __________________________

17, 25 (1st Cir. 1982).

Advisory

mandamus is not meant to allow review of "interstitial matters of

case

administration,"

circumvent

limits

interlocutory

Recticel,
________
on

859

appellate

rulings, see
___

F.2d

review

Sorren, 605 F.2d

______

advisory mandamus is reserved for big game.

be

employed

to

address

repetition prior to
assist

other

Assocs., Inc.,
______________
omitted).20

1006,

of

discretionary

at 1216.

or

to

Rather,

It "should primarily

`likely

of

significant

effective review,' so that our opinion would

jurists,
864

questions

at

parties,

F.2d 241,

or lawyers."
247

(1st

Cir.

In re Bushkin
______________

1989) (citation

____________________
supervisory mandamus has by
occasions.

definition manifested itself on many

20Because situations that properly call for the use of

advisory mandamus "are hen's-teeth rare," In re Bushkin, 864 F.2d
_____________
at 247, relatively few prototypes exist. This is not to say that
the writ has fallen into desuetude.
See, e.g., In re Globe
___
____
____________
Newspaper Co., 920 F.2d 88, 90 (1st Cir. 1990) (issuing writ of
_____________
mandamus directing district court to grant members of press
access to jury list, on
theory that issue presented was
"sufficiently novel and important" to warrant review); In re
______
Justices, 695 F.2d at 25 (indicating that advisory writ of
________
prohibition is an appropriate means by which to direct district
court not to hear facial challenges to rules governing bar
membership and dues); see also Nasuti v. Scannell, 906 F.2d 802,
___ ____ ______
________
811 n.15 (1st Cir. 1990) (suggesting advisory mandamus would be
appropriate to clarify status of federal employee immunity under
amendments to Federal Tort Claims Act).
34

If no right of appeal were to exist, the case before us

today

would be

issue

presented has never before been

is

a prime

likely to recur, given

in modern practice.
harm in

candidate for

advisory mandamus.

The

squarely decided; yet, it

the pervasiveness of litigation abuse

There is a sufficient showing of irreparable

the sense that,

were no

court to

entertain either

an

appeal or a petition
evade

review.

relationship

for mandamus, the matter

Finally,
between

the

the

issue

Judicial

bears
Branch

might perpetually
importantly on
and

the

the

Executive

Branch.
We

regard the

case

for mandamus

here as

compelling because it is important in the right way.

elemental

question of

judicial authority

especially

It poses an

involving precisely

the sort of "Article III-type jurisdictional considerations" that

traditionally have
695

triggered mandamus

review.

In re Justices,
_______________

F.2d at 25; see also In re Pearson, 990 F.2d at 656 (noting

___ ____ ______________

that

mandamus

historically

has

been used

to

check

judicial

usurpation of power); In re Attorney General, 596 F.2d 58, 64 (2d

______________________
Cir.)

(granting mandamus

relief due in

part to

"separation of

powers overtones"), cert. denied, 444 U.S. 903 (1979).

_____ ______

In short, we believe that this attempted appeal, if not

entertainable as of right under 28 U.S.C.
classic

1291, would present a

case for the granting of advisory mandamus.

Either way,

the government is entitled to the relief that it seeks.

V.
V.

CONCLUSION
CONCLUSION
Having satisfied ourselves that
35

appellate jurisdiction

inheres, we now recapitulate.

the

government

misconduct.
right

to

We do not
ignore

misconduct.
cannot

committed

The

intrude,

We agree with the lower court that

egregious

acts

of

prosecutorial

believe, however, that the court had

sovereign
court's

immunity

in

responding

supervisory power,

unaided,

into

the

although

sovereign's

to

the

that

potent,

protected

preserves.
We need go no further.
immunity bar a federal court

Because principles of sovereign

from invoking its supervisory power

to compel the federal government to pay attorneys' fees and costs

as a sanction for prosecutorial misconduct in a criminal case, we

reverse
to

the orders of the district court insofar as they purport

shift such fees and costs.

costs in this court.

Reversed.
________

No costs.
________

All parties shall bear their own

36