US v. Horn
Case Date: 07/25/1994
Court: United States Court of Appeals
Docket No: 93-1845,slipop.at2-4]
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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. |