may not be incorporated into the Commission Rules, we need not decide whether the doctrine of sovereign immunity also precludes an award of Rule 11 sanctions against the United States in proceedings before the Commission.”). Our sister courts of appeals have reached different conclusions on the point. Four courts of appeals have held that the immunity question, like the Article III question, must be resolved before the merits. See United States v. Tex. Tech Univ., 171 F.3d 279, 285-86 (5th Cir.1999); In re Jackson, 184 F.3d 1046, 1048 (9th Cir. 1999); Martin v. Kansas, 190 F.3d 1120, 1126 (10th Cir.1999); Seaborn v. Fla. Dep’t of Corr., 143 F.3d 1405, 1407 (11th Cir. 1998). And six courts of appeals have held that the immuni .2005) and Hale v. Mann, 219 F.3d 61, 66-67 (2d Cir.2000) (<HOLDING>). While the trend in this area seems to favor
holding that although the board set forth the appropriate standard of review at the outset of its decision in this case whether the bia properly applied that standard was a question of law holding that the court may avoid the sovereignimmunity question holding that this court must remand to the bia to allow it to address in the first instance an issue that it has not yet considered holding that the court must address the sovereignimmunity question at the outset because it is jurisdictional holding it is a question of fact