                  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 &amp; Branch P.A.,
                                                                
Steven M. Gordon, Shaheen, Cappiello,  Stein &amp; Gordon, William E.
                                                                 
Brennan,  Timothy  I. Robinson,  and  Brennan,  Caron, Lenehan  &amp;
                                                                 
Iacopino were on consolidated brief, for appellees.
        

                                             

                          July 25, 1994

                                             

          SELYA, Circuit Judge.   We decide  today a question  of
          SELYA, Circuit Judge.
                              

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, annul  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,     F.3d    ,      (1st Cir. 1994)
                             

[No. 93-1845,  slip op.  at 2-4].   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.

    2371, 1014 and 1344.  The prosecutors who controlled the case

                                2

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 mentioned 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

government's edification.   Defense  counsel was not  informed of

this added flourish.

          To paraphrase the Scottish poet, the  best-laid schemes

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  copies  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

                                3

district court, and servedit before theclose of business thatday.

          At this  delicate juncture, the lead  prosecutor poured

kerosene  on a raging  fire.1   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 lead  prosecutor then  made a bad  situation worse.

Two  pages mysteriously  disappeared from  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,  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  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,  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.2     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  had 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

                    

     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  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 its  witnesses' testimony

and lists of its exhibits;  permit the defense to depose  the two

potential  witnesses   who  had  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.
                                                                 

Although 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.3   On August  18,  1993, the  district court

                    

     3The  other four  defendants pled  guilty at  various times.
They were all sentenced in May of 1993.

                                6

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 government contests the award chiefly on the ground

that  it  is prohibited  by  principles  of sovereign  immunity.4

Extracted  from its  complicated  factual  predicate, drained  of

rancor,   and  separated   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.

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,
                                                                

                    

     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)  (quoting United  States v.  Hudson, 11  U.S. (7
                                                    

Cranch)  32, 34 (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  (1873)
                        

(observing  that the "moment the courts of the United States were

called into existence .  . . they became possessed  of [inherent]

power"),  a full-scale  genealogical  dig would  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  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 (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

                                8

          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 (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.  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.   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

                    

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  means are at  hand to

construct a  satisfactory anodyne  more narrowly tailored  to the

objective.   See  Hasting, 461  U.S. at  506 (overturning  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 (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  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 to  assess attorneys' fees

against   either   parties  or   their  attorneys   in  befitting

situations.    See Roadway  Express, 447  U.S.  at 764-67;  In re
                                                                 

Cordova Gonzalez,  726 F.2d 16,  20 (1st Cir.  1984).  The  Court
                

                                10

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  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.  Moreover, even  though 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.
                                         

                     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  (1821) (dictum).  It  has been reaffirmed  as recently as

this past term.  See FDIC v. Meyer, 114 S. Ct.  996, 1000 (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
                                 

(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 (1846).   They have been
        

                                11

taken in tandem ever since in cases involving costs.  See,  e.g.,
                                                                

United States v.  Bodcaw, 440  U.S. 202, 203-04  n.3 (1979)  (per
                        

curiam);  Fairmont Creamery Co. v. Minnesota,  275 U.S. 70, 73-74
                                            

(1927);  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  have lingered  as  to whether  these  cases envisioned

sovereign  immunity as  a  bar  not only  to  costs  but also  to

attorneys'  fees.6  See Ruckelshaus v. Sierra Club, 463 U.S. 680,
                                                  

685 (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 &amp;  n.42 (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 &amp; 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, 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 &amp; 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  awards, see, e.g., Library  of Congress v.  Shaw, 478 U.S.
                                                       

310,  314 (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.

          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 &amp; Brunswick R.R., 109 U.S. 446, 451 (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 (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; see  also Chisolm v. Georgia, 2 U.S. (2
                                                      

Dall.) 419,  435-45 (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 adapted the doctrine in

such a way that  Congress inherited the king's sovereign  role of

granting  consent  to  be sued.    See  Chisolm,  2 U.S.  at  436
                                               

                                13

(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 (1940); Munro  v. United States,  303 U.S. 36,  41
                                              

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

          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 &amp; 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).  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.7   See, e.g., Kawananakoa
                                                                 

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

          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.

                    

     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.,  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 &amp;  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
                                            

(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., 112 S. Ct. 1011, 1016  (1992); Ardestani v. INS, 112 S. Ct.
                                                     

515, 520 (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, 112 S.  Ct. at  1014-15;
                                       

Ruckelshaus, 463 U.S. at 685; 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

                                15

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.  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  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).8
                   

                    

     8At 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
                                                                 

                                16

          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,9 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

                    

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   a  coercive  contempt

sanction is not barred by sovereign immunity).

          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.10

III.  ANALYSIS

          In this  case, the doctrines of  sovereign immunity and

supervisory  power, each  formidable  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  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 fiat:  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, 114  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 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.

                                19

1000.

          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 identify

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, 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 (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  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
          1.   Reward v. Punishment.
                                   

purposes  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; McLemore, 45 U.S. at 288.  But those
                                     

                                21

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   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.

          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 (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

                    

     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
                                                                 
Peterson, 253 U.S. 300, 317-18 (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 (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  of  sovereign immunity  in such  an odd

configuration.    Cf.,  e.g.,  id.  at  267-68  (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. 15-16.13
                                      

          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,

                    

     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  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
          2.   The  Eleventh Amendment  Analogy.
                                               

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 (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  (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

                                24

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; 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
          3.  Separation of  Powers.
                                   

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

                                25

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 &amp;  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.14   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,  or  publicly reprimanded  the  Justice  Department

itself, see United States  v. Prince, 1994 U.S. Dist.  LEXIS 2962
                                    

at *1-*4 (E.D.N.Y. 1994).15   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,

                    

     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.  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.
                                              

This  includes the  authority  to place  restrictions on  courts'

inherent power  to shift  fees.   See Alyeska,  421  U.S. at  259
                                             

(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  
                                                               

                                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  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

                                28

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,      F.3d    ,     (1st  Cir. 1994) [No.
                       

93-1313, slip op. at 13-14]; 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).16    Despite  this  blithe  assurance,  the  government's

entitlement  to an  appeal  as of  right  under section  1291  is

problematic.  We explain briefly.

                    

     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.  See United States v. Sanges,
                                                                

144 U.S.  310, 312  (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 (1981)  (citing
                          

cases); United States v.  Patterson, 882 F.2d 595, 599  (1st Cir.
                                   

1989), cert. denied, 493 U.S. 1027 (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  (1957)
                                  

                                30

(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
                                                   

(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 (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 (1967); DiBella  v. United States, 369 U.S. 121,
                                                  

126 (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

                                31

criminal  jurisprudence,  we hold  only  that when,  as  now, the

conditions  of the  collateral  order  doctrine are  satisfied,17

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.

                          B.  Mandamus.
                                      

          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,18 to address  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

          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, 900  F.2d 653,  656 &amp;  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 (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. 1971);
                          

see generally 16 Charles  A. Wright et al., Federal  Practice and
                                                                 

Procedure   3934 (1977 &amp;  Supp. 1994).  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  roots  in   the  Court's

reference to  mandamus review of "basic,  undecided question[s]."

Schlagenhauf  v. Holder,  379  U.S.  104,  110  (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).20

                    

supervisory mandamus has by  definition manifested itself on many
occasions.

     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  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 (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.

V.  CONCLUSION

          Having satisfied ourselves that  appellate jurisdiction

                                35

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.
                             

                                36
