                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                                

No. 92-1949

            AMERICAN POLICYHOLDERS INSURANCE COMPANY,
                      Plaintiff, Appellant,

                                v.

                  NYACOL PRODUCTS, INC., ET AL.,
                      Defendants, Appellees.

                                             

                              Before

                      Selya, Circuit Judge,
                                          
                  Coffin, Senior Circuit Judge,
                                              
                    and Stahl, Circuit Judge.
                                            

                                             

                        ORDER OF THE COURT

                     Entered:  April 28, 1993

     The petition for rehearing  with suggestion for rehearing en
banc filed by  appellee Belaga  is, under  this court's  internal
operating procedures,  considered both by  the panel  and by  the
full court.  Panel  rehearing is hereby denied for  the following
                                              
reasons.

     First,  a party may not raise new and additional matters for
the first time in a petition for rehearing.  See Kale v. Combined
                                                                 
Ins.  Co., 924 F.2d  1161, 1169 (1st Cir.),  cert. denied, 112 S.
                                                         
Ct. 69 (1991); Anderson v. Beatrice Foods Co., 900 F.2d  388, 397
                                             
(1st  Cir.), 111  S. Ct.  233 (1990).   That rule  has particular
pertinence  here because,  following  oral  argument,  the  panel
invited supplemental briefing on the specific question of federal
court  removal jurisdiction  in  light  of International  Primate
                                                                 
Protection League v. Administrators of  Tulane Educ. Fund, 111 S.
                                                         
Ct.  1700  (1991).    Appellee's  response  at  the  time  was  a
perfunctory one; none  of the arguments  raised in her  rehearing
petition  were alluded  to  in her  supplemental  brief, even  in
passing.  We will  not revisit specific issues merely  because an
adverse result has infused new vigor  into a discontented party's
advocacy.

     Second,  even  if  we  were  to  consider  them,  appellee's
substantive  arguments in no way undermine the force of the panel
opinion.   Only one such argument merits additional comment.  The

cynosure of  Belaga's petition  is her newly  emergent contention
that  the  panel's  treatment  of Primate  Protection  League  is
                                                             
insupportable because,  she maintains, suits against  officers in
their official capacities are not equivalent to suits against the
agency.   Relying primarily on  Kozera v. Spirito,  723 F.2d 1003
                                                 
(1st Cir. 1983), a  pre-Primate Protection League case discussing
                                                 
what  is  loosely termed  an  "exception[]  to  the  doctrine  of
sovereign  immunity .  . .  in injunctive  suits against  federal
officials,"  id. at 1008  (applying Larson v.  Domestic &amp; Foreign
                                                                 
Commerce Corp., 337 U.S. 682, 689-90 (1949)), Belaga disputes the
              
statement that  "no issues  of immunity  can  possibly arise  [in
official-capacity suits] that differ from those arising in a suit
directly against  the agency."   Ante  at     [Panel  Op. at  9].
                                     
Belaga's reliance on Larson  and its progeny, such as  Kozera, is
                                                             
misplaced.

     Whatever consequences the Larson  exception may portend in a
                                     
proper case, it  has no  applicability here.   Larson comes  into
                                                     
play  when either (1) a federal officer  acts in excess of his or
her statutory authority, or (2) the statute conferring power upon
the officer  is unconstitutional, see  Kozera, 723 F.2d  at 1008;
                                             
see also Larson, 337 U.S. at 689-90.  The basis for the exception
               
is clear; where the Larson criteria are met, "the conduct against
                          
which  specific relief is  sought is beyond  the officer's powers
and  is, therefore, not the  conduct of the  sovereign."  Larson,
                                                                
337 U.S.  at 690;  where the  criteria are  not met,  however, an
official-capacity "suit  is  barred, not  because  it is  a  suit
against  an  officer of  the Government,  but  because it  is, in
substance, a suit against the Government over which the court, in
the  absence of  consent,  has no  jurisdiction."   Id.  at  688.
                                                       
Clearly,  then, the  Larson  exception concerns  the doctrine  of
                           
governmental, not  official, immunity. Where relief  would not be
obtainable  against the  agency,  as such,  because of  sovereign
immunity,  the exception  nevertheless  enables  a  plaintiff  to
obtain  specific relief when an  officer is named  and the case's
                                                      
underlying  merits satisfy  one of  the two  conditions described
above.   See  id. at 689-90.   Viewed in  this manner    as a way
                 
around the  sovereign immunity  of agencies     Larson erects  no
                                                      
shield  for protecting  individual  officers from  the impact  of
lawsuits and, indeed, enunciates no rule bearing thereon.

     This is all  distant from the jurisdictional issue  on which
the  instant case turns.   The functional purpose  of the officer
removal statute, as expressed in Primate Protection League, is to
                                                          
guarantee the availability of a federal forum  for the resolution
of complicated questions of immunity, see 111 S. Ct. at 1708, not
                                         
to guarantee such a forum for litigation of the underlying merits
of every suit against a government actor.  When a case, like this
one,  poses  no  special questions  of  immunity  as the  federal
officer/defendant was sued purely in her representative capacity,
the  defendant must be content  with the plaintiff's  choice of a
state judicial forum to resolve a state-law claim.  Belaga points
to nothing that can affect her, personally, in any way that would
differ from how  the agency would  be affected,  and, as we  have

made  clear, ante at    ,     [Panel  Op. at 4, 9], the complaint
                 
in this  case seeks  relief against  the  sovereign, not  against
Belaga personally.

     We add one final  observation.  To a large  extent, Belaga's
belated  reference  to  Larson  stirs  a  tempest  in  a  teapot.
                              
Whenever a complaint raises a federal question, which will almost
always  be the case when Larson applies, removal is allowed under
                               
28  U.S.C.   1331.  Our decision that official-capacity suits are
not  removable as  such under  28 U.S.C.    1442(a)(1)  will only
affect those  cases in  which an  officer is sued  in his  or her
official  capacity by  a  plaintiff whose  complaint raises  only
issues of state law.  This case is prototypical of that genre.

     The petition for panel rehearing is denied.
                                               
