Heard May 3, 1994.
Decided July 25, 1994.
Ellen R. Meltzer. Sp. Counsel, Fraud Section, U.S. Dept. of Justice, Washington, DC, with whom Peter E. Papps, U.S. Atty., Concord, NH, and Alexander Weir III, Trial Atty., U.S. Dept. of Justice, Washington, DC, were on brief, for U.S.
Christopher R. Goddu and Peter G. Callaghan, with whom James M. Costello, Robert E. McDaniel, Devine, Millimet Branch P.A., Manchester, N.H. Steven M. Gordon, Shaheen, Cappiello, Stein Gordon, Concord, NH, William E. Brennan, Timothy I. Robinson, and Brennan, Caron, Lenehan Iacopino, Manchester, NH, were on consolidated brief, for appellees.
Appeal from the United States District Court for the District of New Hampshire.
Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.
SELYA, Circuit Judge.
We decide today a question of first impression: Do principles of sovereign immunity bar a federal district court, exercising its supervisory power, from assessing attorneys' fees and costs against the federal government in a criminal case? We answer this question affirmatively and, therefore, annual the district court's fee-shifting orders.
I. FACTUAL BACKGROUND
This appeal arises out of unpardonable misconduct committed by a federal prosecutor who should have known better. The factual background of the criminal case in which the misconduct occurred — a multi-defendant prosecution for, inter alia, conspiracy to defraud a federally insured financial institution — is memorialized in a recent opinion of this court. See United States v. Lacroix, 28 F.3d 223, 225-226 (1st Cir. 1994). The facts pertaining to the misconduct are recounted in the opinion below. See United States v. Horn, 811 F. Supp. 739, 741-44, 748-51 (D.N.H. 1992). For purposes of deciding the abstract question of law that confronts us today, we largely omit the former set of facts, and limn the latter in less than exegetic detail.
In mid-1992, a federal grand jury returned a 102-count indictment against seven individuals allegedly involved in a conspiracy to market and sell newly constructed homes by fraudulent means. The indictment charged violations of 18 U.S.C. §§ 371, 1014 and 1344. The prosecutors who controlled the case were members of the Justice Department's "New England Bank Fraud Task Force," so called. The defendants, none of whom were indigent, obtained counsel at their own expense.
During pretrial proceedings, the government made more than 10,000 documents available for inspection at the Boston office of Aspen Systems, an independent document management firm retained by the Task Force. On November 9, 1992, an attorney representing defendants Matthew Zsofka, John Lee, and Evangelist Lacroix visited the document repository to search for papers that might prove helpful in cross-examination. A government paralegal volunteered to have a member of Aspen's clerical staff photocopy any document that caught the lawyer's eye. The attorney accepted the offer. When the paralegal mention this undertaking to the lead prosecutor, she was instructed to have the Aspen employee make an extra copy of each defense-selected document for the governments edification. Defense counsel was not informed of this added flourish.
To paraphrase the Scottish poet, the best-laid schemes of mice of mice and prosecutors often go awry. Cf. Robert Burns, To a Mouse (1785). When the photocopying of desired documents took longer than seemed reasonable, the defense attorney smelled a rat. A cursory investigation uncovered the prosecution's experiment in duplicitous duplication. The lawyer promptly demanded that the government return its copied of the papers culled by the defense. When his demand fell on deaf ears, he immediately drafted a motion to seal, filed the motion with the district court, and served it before the close of business that day.
At this delicate juncture, the lead Prosecutor poured Kerosene on a raging fire. She did not passively await the court's ruling on the motion, but, instead, during the three days that elapsed before the district court took up the motion, the prosecutor reviewed the surreptitiously duplicated documents, discussed them with two of her subalterns, and used them to prepare a key prosecution witness (in the presence of a second possible witness). Thus, by November 13, 1992, when the court granted the motion to seal and explicitly instructed the lead prosecutor not to make further use of the papers singled out by the defense or take further advantage of the situation, appreciable damage already had been done.
The 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. Hastings, 461 U.S. 499, 506 n. 5, 103 S.Ct. 1974, 1979 n. 5, 76 L.Ed.2d 96 (1983) (listing public chastisement of errant attorney as a permissible form of sanction for misconduct).
The lead prosecutor then made a bad situation worse. Two pages mysteriously disappeared from the lead prosecutors'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, the lead prosecutor prepared a complete new set for her own use. Adding insult to injury, she next signed an affidavit of somewhat questionable veracity. Finally, when she appeared before the district court to discuss the bizaree game she had been playing, she made a series of inconsistent statements evincing what the court charitably called a "lack of candor." Horn, 811 F. Supp. at 749, 750 n. 4.
From the outset, defendants Zsofka, Lee, and Lacroix had mounted a cooperative defense. Thus, the three of them were equally vulnerable to the misconduct that occurred. Not surprisingly, the trio moved to dismiss the case on the ground of prosecutorial misconduct. The government objected. In evaluating the motions, the lower court ruled that the current selection during the discovery phase of a pending case offers insight into counsel's thoughts, and, therefore, constitutes privileged work product. See id. at 745-47 (citing In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007 (1st Cir. 1988)). After rejecting the government's argument that the privilege has been waived, the court determined that the lead prosecutor, by furtively copying and thereafter reviewing the selected documents, crossed the ethical line. The court further ruled that this prosecutorial 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 effective assistance of counsel. See Id. at 747-52.
For ease in reference, we call Zsofka, Lee, and Lacroix "the appellees." Withal, we note that the district court permitted there other defendants — Richard Horn, Patrick Dion, and patricia Dion, — to join 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 brief. 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.
Finding prejudice, but not a stain so indelible as to justify dismissing the indictment, see id. at 751, the court stitched together a serviceable fabric of narrowly tailored remedies, see id. at 751-52. The court ordered the government to provide the defense with summaries of the witnesses' testimony and lists of its exhibits; permit the defense to depose the two potential witnesses who has been exposed to the bootleg documents; refrain from referring at trial to the substance of the documents except in response to defense references; and remove the lead prosecutor from the case. See id. at 752. Additionally, the court referred the lead prosecutor to the disciplinary committees of her two bar associations, and, in the portion of its order that sparked the current controversy, the court directed the government to pay the fees and costs incurred by the defendants in litigating the misconduct issue. See id. though the court's original order was inexplicit concerning the source of its authority to assess fees and costs, the court, in denying the government's motion to reconsider, explained that it grounded this sanction in the judiciary's supervisory power. See id. at 753-54.
Zsofka, Lee, and Lacroix stood trial early in 1993. They were each convicted on at least one count, and were sentenced in July. On August 18, 1993, the district court quantified its earlier order, assessing a grand total of $46,477.80 in fees and costs. The other sanctions have been carried out and the defense no longer presses the claim that the district court should have dismissed the indictment. Hence, all that remains of the case is the government's appeal from the assessment of fees.
The other four defendants pled guilty at various times. They were all sentenced in May of 1993.
The government contests the award chiefly on the ground that it is prohibited by principles of sovereign immunity. Extracted from its complicated factual predicated, drained of rancor, and separate from other, essentially extraneous disputes, this appeal requires us to serve as the dispatcher at a crossing where two powerful engines — the judiciary's supervisory power and the government's sovereign immunity — are on a collision course.
The government also maintains that it could not have violated may 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 the no view of this asseveration.
II. DOCTRINAL BACKGROUND
In ascertaining what happens when doctrines clash, derivation frequently becomes important. Thus, we turn to this task.
A. Supervisory Power.
Supervisory power, sometimes known as inherent power, encompasses those powers which, though "not specifically required by the Constitution or the Congress," United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983), are nonetheless "necessary to the exercise of all others," Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980) (quoting United States v. Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812)). 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 Robinson, 86 U.S. (19 Wall.) 505, 510, 22 L.Ed. 205 (1873) (observing that the "moment the courts of the United States were called into existence . . . they became possessed to [inherent] power"), a full-scale genealogical dig would serve no useful purpose. It suffices to say that the doctrine emerged in modern from roughly a half-century ago, see McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943), and it has since developed must robustly in the area of criminal procedure, see Sara Sun Beale, Reconsidering Supervisory Power in Criminal Cases, 84 Colum.L.Rev. 1433, 1435-64 (1984). While supervisory power is sometimes understood to derive from the Constitution, either as incidental to the Article III grant of judicial power, see id. at 1464-83, or as implicit in the separation of powers, see Eash v. Riggins Trucking, Inc., 757 F.2d 557, 562 (3d Cir. 1985), the Court has made it clear that, at least as a general proposition, Congress may limit the power of lower federal courts by rule or statute, see Chambers v. NASCO, Inc., 501 U.S. 32, 47, 111 S.Ct. 2123, 2134, 115 L.Ed.2d 27 (1991).
It is not yet settled whether some residuum of the court's supervisory power is so integral to the judicial function that it may not be regulated by Congress (or, alternatively, may only be regulated up to a certain point). In this connection, we note that, although some courts of appeal have attempted to subdivide the supervisory power into three categories ranged power along a continuum according to their degree of necessarily, and a 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, 111 S.Ct. at 2134 n. 12.
In what is not necessarily an exhaustive listing, the Court has recognized three purposes to which the supervisory power may be dedicated: "to implement a remedy for violation of recognized rights, to preserve judicial integrity . . . and . . . as a remedy designed to deter illegal conduct." Hasting, 461 U.S. at 505, 103 S.Ct. at 1978 (internal citations omitted). Invoking this third theme, we have warned that we will consider unleashing the supervisory power in criminal cases "[w]hen confronted with extreme misconduct and prejudice," in order "to secure enforcement of "better prosecutorial practice and reprimand of those who fail to observe it.'" United States v. Osorio, 929 F.2d 753, 763 (1st Cir. 1991) (quoting United States v. Pacheco-Ortiz, 889 F.2d 301, 310-11 (1st Cir. 1989)).
The supervisory power has definite limits. See Hasting, 461 U.S. at 505, 103 S.Ct. at 1978. For one thing, the supervisory power doctrine is interstitial in the sense that it applies only when there is no effective alternative provided by rule, statute, or constitutional clause. See Chambers, 501 U.S. at 50-51, 111 S.Ct. at 2135-36. For another thing, even when inherent powers legitimately can be invoked, they must be exercised with restraint and circumspection, both "because [they] are shielded from direct democratic controls," Roadway Express, 447 U.S. at 769, 100 S.Ct. at 2463, and "[b]ecause of their very potency," Chambers, 501 U.S. at 44, 111 S.Ct. at 2132.
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 means are at hand to construct a satisfactory anodyne more narrowly tailored to the objective. See Hasting, 461 U.S. at 506, 103 S.Ct. at 1979 (overruling use of supervisory power to deter prosecutorial misconduct through reversal of conviction). It is equally inappropriate for a court to gear up the supervisory power in an effort to circumvent a limitation firmly established under conventional doctrine. See Bank of Nova Scotia v. United States, 487 U.S. 250, 254-55, 108 S.Ct. 2369, 2373-74, 101 L.Ed.2d 228 (1988) (overturning use of supervisory power of evade the harmless error inquiry); United States v. Payner, 447 U.S. 727, 735-36, 100 S.Ct. 2439, 2446-47, 65 L.Ed.2d 468 (1980) (overturning use of supervisory power to craft a new exclusionary rule designed to reach situations in which the constitutional exclusionary rule is not triggered). Illustrating the same point, this court has ruled it inappropriate to use the supervisory power to redress misconduct that did not result in harm, see Santana, 6 F.3d at 11 (citing cases), or that resulted in harm to someone other than the complaining defendants, see id.
It has been squarely held that a court's array of supervisory powers includes the power of assess attorney's fees against either parties or their attorneys in befitting situations. See Roadway Express, 447 U.S. at 764-67, 100 S.Ct. at 2463-65; In re Cordova Gonzalez, 726 F.2d 16, 20 (1st Cir. 1984). The Court recently reaffirmed this rule, see Chambers, 501 U.S. at 49, 111 S.Ct. at 2135, and clarified it contours. While a court may invokes its supervisory power to assess fees only when the fees are intended as a sanction responding to a display of bad faith, the bad faith may occur in connection with a "full range of litigation abuses." Id. at 46, 111 S.Ct. at 2134. Moreover, even those a particular abuse is covered by a specific statute or rule, a court still may invoke its supervisory power to address the abuse if the existing remedial provision is inadequate to the task. Id. at 50-51, 111 S.Ct. at 2135-36.
B. Sovereign Immunity.
The principle of sovereign immunity, in its primary form, dictates that the United States may not be sued except with its consent. This tenet was first stated, ipse dixit, by Chief Justice Marshall in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411-12, 5 L.Ed. 257 (1821) (dictum). It has been reaffirmed as recently as this past term. See FDIC v. Meyer, ___ U.S. ___, ___, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994); see also Gonsalves v. IRS, 975 F.2d 13, 16 (1st Cir. 1992) (per curiam).
The secondary principle that monetary penalties cannot be collected from the federal government absent its consent was first articulated, in the narrow context of an assessment for costs, in United States v. Hooe, 7 U.S. (3 Cranch) 73, 90-91, 2 L.Ed. 370 (1805). However, the Hooe Court made no explicit reference to sovereign immunity, and it was not until four decades later that the two principles formally converged, see United States v. McLemore, 45 U.S. (4 How.) 286, 287-88, 11 L.Ed. 977 (1846). They have been taken in tandem ever since in cases involving costs. See, e.g., United States v. Bodcaw, 440 U.S. 202, 203-04 n. 3, 99 S.Ct. 1066, 1067 n. 3, 59 L.Ed.2d 257 (1979) (per curiam); Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 73-74, 48 S.Ct. 97, 98-99, 72 L.Ed. 168 (1927); United States v. Chemical Found., Inc., 272 U.S. 1, 20, 47 S.Ct. 1, 8, 71 L.Ed. 131 (1926); Shewan v. United States, 267 U.S. 86, 87, 45 S.Ct. 238, 238-39, 69 L.Ed. 527 (1925).
The Supreme Court recently removed any vestige of doubt that may have lingered as to whether these cases envisioned sovereign immunity as a bar not only to costs but also to attorneys' fees. See Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3277-78, 77 L.Ed.2d 938 (1983) (holding that, waiver aside, sovereign immunity bars the shifting of attorneys' fees against the federal government) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 267-68 n. 42, 95 S.Ct. 1612, 1626 n. 42, 44 L.Ed.2d 141 (1975)). Since then, the proposition that sovereign immunity bars the recovery of attorneys' fees has become ensconced at the circuit level. 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); Ewing Thomas, P.A. v. Heye, 803 F.2d 613, 616 (11th Cir. 1986). Civil and administrative penalties against the government are subject to the same prohibition, see, e.g., Department of Energy v. Ohio, ___ U.S. ___, ___, 112 S.Ct. 1627, 1631, 118 L.Ed.2d 255 (1992), as is interest on (congressionally permitted) court awards, see, e.g., Library of Congress v. Shaw, 478 U.S. 310, 314, 106 S.Ct. 2957, 2961, 92 L.Ed.2d 250 (1986). Viewed against this austere backdrop, we think it 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.
We 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 attorney's fees, see 1 Mary Frances Derfner Arthur D. Wolf, Court Awarded Attorneys' Fees ¶ 5.03[b] (1993) (cataloguing statutes), unless it understood that, in the absence of such statutes, attorneys' fees would not be recoverable against the federal sovereign.
Those who seek a deep understanding of the law's profundities are likely to find sovereign immunity a frustrating topic, for, from the very beginning, sovereign immunity has been "accepted as a point of departure unquestioned," Cunningham v. Macon Brunswick R.R., 109 U.S. 446, 451, 3 S.Ct. 292, 296, 27 L.Ed. 992 (1883), or, put another way, simply taken at face value and "treated as an established doctrine," United States v. Lee, 106 U.S. 196, 207, 1 S.Ct. 240, 250, 27 L.Ed. 171 (1882). Although we know relatively little, we do know that the doctrine derives from the common law tradition that the king should be insulated from suit absent his consent. See, e.g., Fairmont Creamery, 275 U.S. at 73, 48 S.Ct. at 98-99; see also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435-45, 1 L.Ed. 440 (1793) (Iredell, J., dissenting) (discussing historical origins of doctrine). To be sure, this tradition could not be transplanted root and branch into a system where sovereignty was diffused both vertically (by federalism) and horizontally (by the separation of powers). Accordingly, in regard to the federal government, the law adopted the doctrine in such a way that Congress inherited the king's sovereign role of granting consent to be sued. See Chisholm, 2 U.S. at 436 (Iredell, J., dissenting). One consequence of this adaptation is that executive officers lack the power to waive the federal government's sovereign immunity. See United States v. Shaw, 309 U.S. 495, 501, 60 S.Ct. 659, 661-62, 84 L.Ed. 888 (1940); Munro v. United States, 303 U.S. 36, 41, 58 S.Ct. 421, 423-24, 82 L.Ed. 633 (1938); Chemical Found, 272 U.S. at 20-21, 47 S.Ct. at 8.
Courts have mentioned two rationales for retaining the adapted doctrine in a democratic society. Some judges have theorized that it is necessary to protect the operations of government from undue interference and financial embarrassment. See, e.g., Larson v. Domestic Foreign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct. 1457, 1468-69, 93 L.Ed. 1628 (1949); Lee, 106 U.S. at 226, 1 S.Ct. at 265 (Gray, J., dissenting); The Siren, 74 U.S. (7 Wall.) 152, 154, 19 L.Ed. 129 (1868). Other judges, taking a more positivist view of law, have suggested that the right to recover against the government cannot exist unless the government itself deigns to create such a right. See, e.g., Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834 (1907).
For 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).
Regardless of whether sovereign immunity rests on tradition, reason, or inertia, the doctrine is deeply entrenched in American law. Withal, Congress has liberally exercised its prerogative to abolish particular manifestations of the doctrine. See, e.g., 28 U.S.C. §§ 1346(b), 2671-2678, 2680 (Federal Torts Claims Act) (subjecting the government to suit for various torts); 28 U.S.C. § 1346(a), 1491 (Tucker Act) (subjecting the government to suit for damages in, inter alia, contract cases); see also Derfner Wolf, supra note 6 (listing statutes waiving governmental immunity to claims for counsel fees in various specialized contexts); cf. 18 U.S.C. § 3006A (Criminal Justice Act) (requiring government to pay counsel fees and other expenses on behalf of indigent criminal defendants).
In considering legislation that is claimed to have the effect of waiving sovereign immunity in a particular class of cases, courts usually have been guided by two maxims. First, a waiver of sovereign immunity must be definitely and unequivocally expressed. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980); In re Perry, 882 F.2d at 544. The Court has gone so far as to suggest that the unequivocal expression must appear in the text of the statute itself. See United States v. Nordic Village, Inc., ___ U.S. ___, ___, 112 S.Ct. 1011, 1016, 117 L.Ed.2d 181 (1992); Ardestani v. INS, 502 U.S. 129, ___, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991). Second, a waiver of sovereign immunity always is to be construed strictly in favor of the federal government, and must not be enlarged beyond such boundaries as its language plainly requires. See Nordic Village, ___ U.S. at ___-___, 112 S.Ct. at 1014-15; Ruckelshaus, 463 U.S. at 685, 103 S.Ct. at 3277-78; In re Perry, 882 F.2d at 544.
Applying these tests, several courts have held that monetary sanctions for litigation abuse are not barred by sovereign immunity in certain classes of cases on the theory that an enacted statute, typically the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (allowing prevailing parties to recover fees from the government in certain civil and administrative proceedings), serves to waive the government's immunity. See, e.g., M.A. Mortenson 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 v. Bowen, 855 F.2d 668, 672 (10th Cir. 1988) (same, in 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, 910-11 (9th Cir. 1986) (upholding penalty against government imposed under Fed.R.Civ.P. 37(b) without addressing sovereign immunity). Two panels in the Ninth Circuit have suggested that the Civil Rules themselves, having been authorized by Congress, may provide the basis for a waiver of sovereign immunity. See Mattingly v. United States, 939 F.2d 816, 818 (9th Cir. 1991) (discussing Fed.R.Civ.P. 11); Barry v. Bowen, 884 F.2d 442, 444 (9th Cir. 1989) (same).
At least one writer has expressed grave reservations about these decisions. See Timothy J. Simeone, Comment, Rule 11 and Federal Sovereign Immunity: Respecting the Explicit Waiver 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).
At the same time, monetary penalties under court rules have been found to be barred by sovereign immunity in other contexts. See, e.g., United States v. Woodley, 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). And, moreover, even though a federal statute, 18 U.S.C. § 401, confers broad powers upon federal district courts to punish contumacious conduct, most courts continue to hold that sovereign immunity bars court-imposed fines for contempt against the government. See Coleman v. Espy, 986 F.2d 1184, 1191-92 (8th Cir. 1993) (holding that compensatory contempt sanctions are barred by 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 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 a coercive contempt sanction is not barred by sovereign immunity).
The 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.
To our knowledge, no court has considered on the merits the applicability of sovereign immunity to a monetary penalty assessed under the judiciary's supervisory power in a criminal case.
Although 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, ___ U.S. ___, 112 S.Ct. 39, 116 L.Ed.2d 18 (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 WL 99231 at *1-2, 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).
In this case, the doctrines of sovereign immunity and supervisory power, each formidable in its own right, are in unavoidable tension. Despite the fact that, in recent years, 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 power in a head-to-head confrontation. The critical determinant is that the doctrines are of fundamentally different character: supervisory powers are discretionary and carefully circumscribed; sovereign immunity is mandatory and absolute. Consequently, whereas the former may be invoked in the absence of an applicable statute, the latter must be invoked in the absence of an applicable statute; and whereas the former may be tempered by a court to impose certain remedial measures and to withhold others, the latter must be applied mechanically, come what may. In other words, unlike the doctrine of supervisory power, the doctrine of sovereign immunity proceeds by flat: if Congress has not waived the sovereign's immunity in a given context, the courts are obliged to honor that immunity. See, e.g., Meyer, ___ U.S. at ___, 114 S.Ct. at 1000.
We 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 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 head-on 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.
The government tells us that this is precisely such a case: since Congress has not acted, the government's immunity to fee awards in criminal cases remains intact. At first blush, the conclusion seems sound. We are able to discern only three avenues by which appellees arguably might tip-toe around this result. We trace each of these routes.
The most obvious detour around the barrier presented by sovereign immunity depends on waiver. If appellees can identity some statute or rule, and show that Congress thereby lifted the federal government's sovereign immunity in this particular context, they would have an unobstructed path. But there is no such statute or rule applicable here — and appellees, to their credit, do not pretend that one exists.
The second detour embodies the assumption that, in appropriate cases, the judiciary possesses the naked power to override sovereign immunity. We believe that this avenue is a dead end. One of the main purposes of sovereign immunity is to guard against judicial interference in executive functions, see Larson, 337 U.S. at 704, 69 S.Ct. at 1468-69, and the notion of a judicial override operating ex proprio vigore would largely frustrate this purpose. In any event, the proposed detour runs headlong into a stone wall: Congress, not the courts, is the government's authorized representative for purposes of waiving sovereign immunity. See supra p. 13 and cases cited; see also Hans v. Louisiana, 134 U.S. 1, 21, 10 S.Ct. 504, 509, 33 L.Ed. 842 (1890) (declaring that, because the "legislative department 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 reason, the federal government's sovereign immunity does not extend to monetary sanctions, such as punitive fee awards, levied under a court's supervisory power. It is this avenue that appellees most vigorously explore. Shorn of rhetoric, they assert three basic reasons why the shield of immunity does not cover such situations. We mull each reason in turn.
1. Reward v. Punishment. Appellees assert that, for purpose of sovereign immunity, the law historically has precluded fee-shifting only when it is employed as a reward to prevailing parties and not when it is employed as a punishment for litigation abuse. This foray suggests that what we have called the secondary principle of sovereign immunity — the tenet holding that the government is immune to monetary penalties imposed in court cases — precludes fee-shifting only when the shifted fees are intended to reward a prevailing party, and not when they are meant to reprimand a misbehaving party.
Appellees starts out on solid ground in the sense that the older cases discussing the secondary principle of sovereign immunity all involved monetary awards to prevailing parties directly attributable to litigatory success. See, e.g., Fairmont Creamery, 275 U.S. at 73-74, 48 S.Ct. at 98-99; McLemore, 45 U.S. at 288. 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. Because costs are invariably taxed pursuant to a statute (or a rule having statutory force) that provides 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.
At 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 Peterson, 253 U.S. 300, 317-18, 40 S.Ct. 543, 549, 64 L.Ed. 919 (1920). In modern practice, costs are commonly taxed against non-prevailing parties in civil cases, see Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441, 107 S.Ct. 2494, 2497, 96 L.Ed.2d 385 (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).
Once we move beyond the realm of costs to attorneys' fees, appellees' argument makes very little sense. Apart from a statute or rule so providing, counsel fees cannot be shifted as a reward to a prevailing party in any case, civil or criminal, whether or not the government is the fee target. See Alyeska Pipeline, 421 U.S. at 247, 95 S.Ct. at 1616 (limning "American rule"). Taking into account the ground rules of American litigation, appellees' argument must mean that sovereign immunity bars fee awards against the government only when the fees are assessed under a fee-shifting statute or rule. But the case law is arrayed against appellees' position, for the courts have never structured the secondary principle of sovereign immunity in such an odd configuration. Cf., e.g., id. at 267-68, 95 S.Ct. at 1626-27 (stating without qualification that fee awards against the government, "if allowable at all, must be expressly provided for by statute"). What 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.
In 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, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (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, 111 S.Ct. at 2137 (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.
The straw that snaps the camel's back is that the appellees have offered no plausible explanation why the shield of immunity should leave the government exposed to fee awards designed as sanctions for litigation abuse, but simultaneously protect it from fees or other monetary awards routinely given to prevailing parties as virtual bonuses to reward litigatory success. The simple, unarguable fact is that any and all such fee awards would deplete the public coffers, and, consequently, they all must stand on the same footing vis-a-vis principles of sovereign immunity. It follows inexorably that, absent a statute or rule effectuating a waiver, the secondary principle of sovereign immunity bars fee-shifting awards against the government, whatever their intended purpose.
2. The Eleventh Amendment Analogy. It is "settled that an award of attorney's fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment." Missouri v. Jenkins, 491 U.S. 274, 279, 109 S.Ct. 2463, 2467, 105 L.Ed.2d 229 (1989); see also Fortin v. Commissioner, 692 F.2d 790, 797-98 (1st Cir. 1982) (holding, on same theory, that avoidable fines for contempt against the State are not barred by the Eleventh Amendment). Appellees urge us to extend this exception to the law of federal sovereign immunity. Although this idea is not original, see McBride, 955 F.2d at 582 (Lay, C.J., concurring and dissenting) (making similar suggestion), embracing it would entail a leap of faith that we are unwilling to take.
The Eleventh Amendment focuses exclusively on an immunity shared by the several States. See U.S. Const. amend. 11; see also Hans, 134 U.S. at 10-11, 10 S.Ct. at 505-06 (explicating text of Eleventh Amendment). Freely transposing Eleventh Amendment exceptions to the precincts patrolled by principles of federal sovereign immunity would create 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 advance. There, the Court explained that, had the controversy "dealt with the sovereign immunity of the Federal Government," then in such event there would have been "no prospective-retrospective distinction as there is when . . . it is the Eleventh Amendment immunity of a State that is at issue." Jenkins, 491 U.S. at 282 n. 4, 109 S.Ct. at 2468 n. 4; see also In re Shafer, 146 B.R. 477, 480 n. 6 (D.Kan. 1992) (echoing Jenkins footnote).
3. Separation of Powers. Appellees' final contention is 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 — and thereby would offend the separation of powers. See McBride, 955 F.2d at 582 (Lay, C.J., concurring and dissenting) (developing similar thesis); cf. Chilcutt v. United States, 4 F.3d 1313, 1327 (5th Cir. 1993) (making comparable suggestion in significantly different context; upholding monetary sanction levied against federal prosecutor personally). This contention seriously overstates the case, and, in all events, asks us to do Congress's work.
The fact that sovereign immunity forecloses the imposition of monetary sanctions against the federal government in criminal cases does not leave federal courts at the mercy of cantankerous prosecutors. Courts have many other weapons in their armamentarium. This case aptly illustrates the point. The district judge ordered, among other things, the removal and quarantine of the lead prosecutor, the suppression of tainted documents, and the advance disclosure of the government's trial strategy. In addition, the judge could have ordered the lead prosecutor to pay the accumulated fees, see Chilcutt, 4 F.3d at 1319 (upholding order that government counsel pay, inter alia, for time spent by defense counsel at contempt hearing, without being reimbursed); United States 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"), but did not see fit to do so. He also could have ordered the prosecutor to attend ethics seminars at her own expense, see Chilcutt, 4 F.3d at 1319, dispatched her to the Justice Department's internal disciplinary office, see Hasting, 461 U.S. at 506 n. 5, 103 S.Ct. at 1979 n. 5, or publicly reprimanded the Justice Department itself, see United States v. Prince, 1994 WL 99231 at *1-2, 1994 U.S.Dist. LEXIS 2962 at *1-*4 (E.D.N.Y. 1994). While this list is not exhaustive, we are confident that it shows beyond serious question that the court had ample means at its disposal, even without fee-shifting, to catch the Justice Department's attention, punish the culprit, and deter future prosecutorial excesses.
There 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, 69 S.Ct. at 1463 (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.
Although the district court eschewed these additional remedies, the Justice Department later engaged its internal disciplinary mechanism on its own initiative.
Of course, there is a more broadly focused reason why the separation-of-powers argument will not wash. While sovereign immunity may marginally limit the courts' ability to function, there is nothing sacrosanct about the courts' power to impose sanctions. Congress has wide-ranging authority to limit supervisory powers generally. See Chambers, 501 U.S. at 47, 111 S.Ct. at 2134. This includes the authority to place restrictions on courts' inherent power to shift fees. See Alyeska, 421 U.S. at 259, 95 S.Ct. at 1622 (recognizing "inherent power in the courts to allow attorneys' fees in particular situations, unless forbidden by Congress"). It also includes the authority to regulate the courts' inherent power in respect to contempt. See 18 U.S.C. § 401, quoted supra note 9. Circumscription of the 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 response to appellees' separation-of-powers argument is to note its indeterminacy. The same argument could be, and has been, turned 180 degrees. At least one highly respected scholar maintains that sovereign immunity " furthers the separation of powers by limiting judicial oversight of executive conduct . . . [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 § 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 taking the quantum leap essayed by the court below. Leaving monetary imposts to one side, the range and reach of other sanctions, remedial and punitive, that are available to federal criminal courts permit those courts to administer their dockets and conduct judicial business with a sufficiently free hand. Courts, like litigants, must abide by certain rules — and to the extent that sovereign immunity curbs judicial power, the restraint is tolerable in the constitutional sense. In the last analysis, then, appellees' contention that criminal courts are left impotent if they are deprived of the power to shift fees as a sanction against the government is as empty as a mendicant's purse.
To summarize, none of the various possible detours manage to bypass the barrier of sovereign immunity. We hold, therefore, that fee-shifting against the government can be accomplished only in conjunction with the passage of a statute (or a sufficiently explicit rule having the force of a statute) that authorizes such an award. In the absence of such an enactment, the secondary principle of sovereign immunity saves the federal government harmless from all court-imposed monetary assessments, regardless of their timing and purpose.
IV. APPELLATE JURISDICTION
We have one more bridge to cross. It is hornbook law that a court cannot act in the absence of subject matter jurisdiction; and that, when such jurisdiction is lacking, a court is obliged to note the defect on its own initiative. See United States v. Pierro, 32 F.3d 611, 618-19 (1st Cir. 1994); In re Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir. 1988); see also American Policyholders Ins. Co. v. 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. Appeal as of Right
The Appellate Rules require that an appellant's brief contain "a statement of the basis for jurisdiction in the court of appeals . . . with reference to the applicable facts to establish such jurisdiction." Fed.R.App.P. 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. § 1291 (1988). Despite this blithe assurance, the government's entitlement to an appeal as of right under section 1291 is problematic. We explain briefly.
The 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.
An appeal by the government in a criminal case must be specifically authorized by statute. See United States v. Sanges, 144 U.S. 310, 312, 12 S.Ct. 609, 609-10, 36 L.Ed. 445 (1892). The appeal before us does not fit neatly into the confines of 18 U.S.C. § 3731 (affording the United States a right of appeal from certain described orders in criminal cases, e.g., orders dismissing indictments, suppressing evidence, or mandating the return of seized property), or any more specialized statute conferring a right of appeal on the government in criminal cases, e.g., 18 U.S.C. § 3742(b) (permitting the United States to appeal from certain sentencing determinations). And it is settled that, at least in the absence of very special circumstances, the general authorization contained in section 1291 is not sufficiently specific to authorize an appeal by the government in a criminal case. See, e.g., Arizona v. Manypenny, 451 U.S. 232, 246-47, 101 S.Ct. 1657, 1666-67, 68 L.Ed.2d 58 (1981) (citing cases); United States v. Patterson, 882 F.2d 595, 599 (1st Cir. 1989), cert. denied, 493 U.S. 1027, 110 S.Ct. 737, 107 L.Ed.2d 755 (1990).
Notwithstanding this looming obstacle to appellate jurisdiction under section 1291, we believe that this case involves a sufficiently special set of circumstances to engage the exception rather than the rule. Some courts have suggested that, under what we choose to call the "special circumstance" exception, a government appeal may be entertained in a criminal case on the authority of section 1291 if the appeal satisfies the conditions of the so-called collateral order doctrine. See, e.g., Carroll v. United States, 354 U.S. 394, 403, 77 S.Ct. 1332, 1338, 1 L.Ed.2d 1442 (1957) (dictum); Patterson, 882 F.2d at 599; United States v. Powers, 622 F.2d 317, 319-20 n. 2 (8th Cir.), cert. denied, 449 U.S. 837, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980). Application of the collateral order doctrine is "limited to orders that (1) conclusively determine (2) important legal questions which are (3) completely separate from the merits of the underlying action and are (4) effectively unreviewable on appeal from a final judgment." Doughty v. Underwriters at Lloyd's, London, 6 F.3d 856, 862 (1st Cir. 1993); see also Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949) (originating doctrine). We think that these conditions are met in this case.
Moreover, the particular circumstances at hand, especially the procedural posture in which this appeal arises and the nature of the relief sought, are conducive to allowing the appeal to go forward. In criminal cases, the policy against permitting appeals to be taken too freely is heightened by speedy trial and double jeopardy concerns. See Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967); DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657-58, 7 L.Ed.2d 614 (1962). Here, those concerns do not come into play at all: the determination of the defendants' guilt has been made, sentence has been imposed, the attempted appeal is not interlocutory in any sense, and no prospect of piecemeal litigation endures.
We conclude, therefore, that we have jurisdiction over the instant appeal under 28 U.S.C. § 1291. We emphasize, however, that our holding is a narrow one. Rather than importing the collateral order doctrine lock, stock, and barrel into our criminal jurisprudence, we hold only that when, as now, the conditions of the collateral order doctrine are satisfied, and the prudential concerns that traditionally militate against allowing the government to appeal in a criminal case favor, or are at least neutral in respect to, the availability of a government appeal, then section 1291 affords a vehicle through which the government may seek appellate review in a criminal case.
We 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, 100 S.Ct. 217, 62 L.Ed.2d 141 (1979).
We are fortified in our resolve to hear and determine this appeal by the knowledge that, even if no appeal lies as of right, we possess — and can appropriately exercise — the power of discretionary review, via mandamus, to address the important question raised in this case.
Technically, 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.
A federal court of appeals has the power to treat an attempted appeal from an unappealable (or possibly unappealable) order as a petition for a writ of mandamus or prohibition under the All-Writs Act, 28 U.S.C. § 1651 (1988). See, e.g., United States v. Sorren, 605 F.2d 1211, 1215 (1st Cir. 1979); see also United States v. Collamore, 868 F.2d 24, 27 (1st Cir. 1989) (proceeding under mandamus powers where doubt existed as to propriety of asserting mandatory appellate jurisdiction). Mandamus is ordinarily appropriate in those rare cases in which the issuance (or nonissuance) of an order presents a question anent the limits of judicial power, poses some special risk of irreparable harm to the appellant, and is palpably erroneous. See In re Pearson, 990 F.2d 653, 656 n. 4 (1st Cir. 1993); Recticel, 859 F.2d at 1005-06; see also Mallard v. United States Dist. Court, 490 U.S. 296, 308-09, 109 S.Ct. 1814, 1821-22, 104 L.Ed.2d 318 (1989). In a still smaller class of cases, mandamus may lie even though all the usual standards are not met. See In re Arvedon, 523 F.2d 914, 915 (1st Cir. 1975); In re Ellsberg, 446 F.2d 954, 956-57 (1st Cir. 1975); see generally 16 Charles A. Wright et al., Federal Practice and Procedure § 3934 (1977 Supp. 1994). This tiny class of cases involves what we have come to call advisory mandamus.
We 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, 96 S.Ct. 566, 46 L.Ed.2d 407 (1975); see also La Buy v. Howes Leather Co., 352 U.S. 249, 256-60, 77 S.Ct. 309, 313-16, 1 L.Ed.2d 290 (1957). This differs from advisory mandamus in that, far from being novel, the problem sparking supervisory mandamus has by definition manifested itself on many occasions.
Advisory mandamus has its roots in the Court's reference to mandamus review of "basic, undecided question[s]." Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S.Ct. 234, 238, 13 L.Ed.2d 152 (1964). It is appropriate when the issue presented is novel, of great public importance, and likely to recur. See In re Justices of Supreme Court of Puerto Rico, 695 F.2d 17, 25 (1st Cir. 1982). Advisory mandamus is not meant to allow review of "interstitial matters of case administration," Recticel, 859 F.2d at 1006, or to circumvent limits on appellate review of discretionary interlocutory rulings, see Sorren, 605 F.2d at 1216. Rather, advisory mandamus is reserved for big game. It "should primarily be employed to address questions `likely of significant repetition prior to effective review,' so that our opinion would assist other jurists, parties, or lawyers." In re Bushkin Assocs., Inc., 864 F.2d 241, 247 (1st Cir. 1989) (citation omitted).
Because 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).
If no right of appeal were to exist, the case before us today would be a prime candidate for advisory mandamus. The issue presented has never before been squarely decided; yet, it is likely to recur, given the pervasiveness of litigation abuse in modern practice. There is a sufficient showing of irreparable harm in the sense that, were no court to entertain either an appeal or a petition for mandamus, the matter might perpetually evade review. Finally, the issue bears importantly on the relationship between the Judicial Branch and the Executive Branch.
We regard the case for mandamus here as especially compelling because it is important in the right way. It poses an elemental question of judicial authority — involving precisely the sort of "Article III-type jurisdictional considerations" that traditionally have triggered mandamus review. In re Justices, 695 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, 100 S.Ct. 217, 62 L.Ed.2d 141 (1979).
In short, we believe that this attempted appeal, if not entertainable as of right under 28 U.S.C. § 1291, would present a classic case for the granting of advisory mandamus. Either way, the government is entitled to the relief that it seeks.
Having satisfied ourselves that appellate jurisdiction inheres, we now recapitulate. We agree with the lower court that the government committed egregious acts of prosecutorial misconduct. We do not believe, however, that the court had the right to ignore sovereign immunity in responding to that misconduct. The court's supervisory power, although potent, cannot intrude, unaided, into the sovereign's protected preserves.
We need go no further. Because principles of sovereign immunity bar a federal court 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 the orders of the district court insofar as they purport to shift such fees and costs. All parties shall bear their own costs in this court.
Reversed. No costs.