American Policyhol v. Nyacol ( 1993 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                            ______________________________

          No. 92-1949

                      AMERICAN POLICYHOLDERS INSURANCE COMPANY,
                                Plaintiff, Appellant,

                                          v.

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

                              _________________________

                                        Before

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

                              _________________________

                                  ORDER OF THE COURT

                               Entered:  April 28, 1993
           
               The petition for rehearing  with suggestion for rehearing en
          banc filed by  appellee Belaga  is, under  this court's  internal
          operating procedures,  considered both by  the panel  and by  the
          full court.  Panel  rehearing is hereby denied for  the following
                                                  ______
          reasons.

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

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














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

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

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














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

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

               The petition for panel rehearing is denied.
                                                   ______