
USCA1 Opinion

	




                            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 & 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.                                                   ______                                                                                              
