for emotional distress, concluding that Congress had not waived the federal government’s sovereign immunity for emotional distress damages as a contempt sanction for violation of the discharge injunction. In re Rivera Torres, 432 F.3d 20 (1st Cir.2005). The First Circuit noted that: The BAP erred when it concluded the government had waived its arguments for immunity by not raising particular arguments in the bankruptcy court or to it. The rule is that the defense of sovereign immunity cannot be waived in litigation. See United States v. United States Fid. and Guar. Co., 309 U.S. 506, 513, 60 S.Ct. 653, 84 L.Ed. 894 (1940); Dep’t of the Army v. Fed. Labor Relations Auth., 56 F.3d 273, 275 (D.C.Cir.1995); see also Irving v. United States, 162 F.3d 154, 159-61 (1st Cir.1998)(en banc)(<HOLDING>). Id. at 23 n. 3. The First Circuit indicated
holding that the constitution can limit the discretion of federal officials such that the ftcas discretionary function exception will not apply holding that the discretionary function exception may apply in the absence of a conscious decision  recognizing a discretionary function exception to that waiver holding federal tort claims act discretionary function exception does not apply if prison personnel violate a mandatory regulation holding that the government cannot waive or forfeit an argument that the discretionary function exception to the federal tort claims act ftca should apply