
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-2041                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                               RICHARD A. HORN, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Ellen R. Meltzer, Special Counsel, Fraud Section, U.S. Dep't               ________________          of Justice, with whom Peter E. Papps, United States Attorney, and                                ______________          Alexander Weir III, Trial  Attorney, U.S. Dep't of  Justice, were          on brief, for the United States.               Christopher R. Goddu and Peter G. Callaghan, with whom James               ____________________     __________________            _____          M. Costello, Robert  E. McDaniel, Devine, Millimet & Branch P.A.,          ___________  ___________________  ______________________________          Steven M. Gordon, Shaheen, Cappiello,  Stein & Gordon, William E.          ________________  ___________________________________  __________          Brennan,  Timothy  I. Robinson,  and  Brennan,  Caron, Lenehan  &          _______   ____________________        ___________________________          Iacopino were on consolidated brief, for appellees.          ________                              _________________________                                    July 25, 1994                              _________________________                    SELYA, Circuit Judge.   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          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          II.  DOCTRINAL BACKGROUND                    In  ascertaining what  happens  when  doctrines  clash,          derivation frequently becomes  important.  Thus, we turn  to this          task.                                A.  Supervisory Power.                                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.                               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 &  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 & 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 & 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 & 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 & 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 &  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          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 &  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          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.                               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.                                    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 &  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 &  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          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
