United States v. 2020-09-01 | 18-17445 | IN RE: NANETTE SISK | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

IN RE NANETTE MARIE SISK,
Debtor,

NANETTE MARIE SISK,
Appellant.
No. 18-17445

D.C. No.
5:16-bk-50548

IN RE MARK IRVIN CANDALLA,
Debtor,

MARK IRVIN CANDALLA,
Appellant.
No. 18-17446

D.C. No.
5:16-bk-50659

IN RE JERI LYLE SALDUA MERCADO,
Debtor,

JERI LYLE SALDUA MERCADO,
Appellant.

No. 18-17447

D.C. No.
5:16-bk-50651

2 IN RE SISK

IN RE DENNIS MICHAEL ESCARCEGA,
Debtor,

DENNIS MICHAEL ESCARCEGA,
Appellant.
No. 18-17448

D.C. No.
5:16-bk-50368

ORDER

Filed September 1, 2020

Before: Kim McLane Wardlaw, Milan D. Smith, Jr.
and Patrick J. Bumatay, Circuit Judges.

Order

SUMMARY
*

Bankruptcy / Equal Access to Justice Act

The panel filed an order denying applications for
attorney fees under the Equal Access to Justice Act, filed by
debtors in four bankruptcy appeals.

The panel reversed the bankruptcy court’s and the
Bankruptcy Appellate Panel’s denial of Chapter 13
bankruptcy plans and held that the Bankruptcy Code allowed
the debtors’ original plans to be confirmed. As the
prevailing parties, debtors then moved for attorney fees
against the lower courts pursuant to the EAJA, which

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

IN RE SISK 3

authorizes fees incurred by a prevailing party in a civil action
brought by or against the United States. The panel held that
the EAJA did not authorize attorney fees because a
bankruptcy court does not fall within the EAJA’s definition
of “United States,” and uncontested bankruptcy cases are not
“civil actions brought by or against the United States.”

COUNSEL

Norma L. Hammes, James J. Gold, and Lucinda L.H. Gold,
Gold and Hammes, San Jose, California, for Debtor-
Appellants Nanette Marie Sisk, Mark Irvin Candalla, and
Dennis Michael Escarcega.

James S.K. Shulman, Shulman Law Offices, San Jose,
California, for Debtor-Appellant Jeri Lyle Saldua Mercado.

ORDER
We consider applications for attorney fees pursuant to
the Equal Access to Justice Act (‘‘EAJA’’), 28 U.S.C.
§ 2412(d), in four bankruptcy appeals. Because the
applications present similar issues, we consider them
together.
I.
This case first came before us from the bankruptcy court
and Bankruptcy Appellate Panel (“BAP”) after Debtors
appealed the denial of their initial Chapter 13 bankruptcy
plans. The Debtors’ preferred plans included estimated,
rather than fixed, plan durations, which no trustee or creditor
had opposed. In re Sisk, 962 F.3d 1133, 1140 (9th Cir.

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2020). Nevertheless, the bankruptcy court and BAP rejected
the proposals sua sponte. Id. We reversed and held that the
Bankruptcy Code allowed Debtors’ original plans to be
confirmed. Id. at 1151. As the prevailing parties, Debtors
have now filed a timely motion for attorney fees against the
lower courts pursuant to the EAJA. We deny it.
II.
“[B]ecause the EAJA is a limited waiver of the
government’s sovereign immunity, it must be strictly
construed in favor of maintaining immunity not specifically
and clearly waived.” Kreines v. United States, 33 F.3d 1105,
1109 (9th Cir. 1994). It provides, in relevant part:
[A] court shall award to a prevailing party . . .
fees and other expenses . . . incurred by that
party in any civil action . . . including
proceedings for judicial review of agency
action, brought by or against the United
States . . . unless the court finds that the
position of the United States was
substantially justified or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A) (emphasis added).
Debtors contend that (1) the bankruptcy court and BAP
are organs of “the United States” for purposes of the EAJA,
and that (2) their bankruptcy cases constitute “civil
actions[s] . . . brought by or against the United States.” Id.
The text of the EAJA, coupled with the presumption of
sovereign immunity, forecloses both arguments.
First, a bankruptcy court does not clearly fall within the
EAJA’s definition of “United States.” On its face, the

IN RE SISK 5

statute’s definition of “United States” appears to encompass
bankruptcy judges: “any . . . official of the United States
acting in his or her official capacity.” Id. § 2412(d)(2)(C).
But, problematically for Debtors, § 2412(d)(1)(A) also uses
“court” in the same sentence as “United States,” which
strongly indicates that the terms “court,” “agency,” and
“official” are not coterminous. See S.E.C. v. McCarthy,
322 F.3d 650, 656 (9th Cir. 2003) (“It is a well-established
canon of statutory interpretation that the use of different
words or terms within a statute demonstrates that Congress
intended to convey a different meaning for those words.”).
Moreover, the statute itself provides separate definitions for
the terms “court” and “United States,” signifying their
distinct meanings. Compare 28 U.S.C. § 2412(d)(2)(F),
with id. § 2412(d)(2)(C).
Second, uncontested bankruptcy cases do not clearly
constitute “civil action[s] brought by or against the United
States” within the meaning of the EAJA.
1
In contrast to
cases where the United States plays an active, adversarial
role in the adjudication, such as immigration or social
security cases, see, e.g., Meier v. Colvin, 727 F.3d 867, 871
(9th Cir. 2013); Thangaraja v. Gonzales, 428 F.3d 870, 874
(9th Cir. 2005), the United States has no such involvement
in uncontested bankruptcy matters. Nor are uncontested
Chapter 13 bankruptcy cases “brought by or against” the
United States—they are brought by Debtors seeking relief
from their creditors.

1
The EAJA’s spare definition of a “civil action brought by or
against the United States” provides no help to Debtors, as their appeals
are not brought “by a party . . . from a decision of a contracting officer
rendered pursuant to a disputes clause in a contract with the Government
or pursuant to chapter 71 of title 41.” 28 U.S.C. § 2412(d)(2)(E).

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* * *
We acknowledge that Debtors’ counsel expended
considerable time and resources pursuing these ultimately
successful appeals. The EAJA, however, does not clearly
authorize attorney fees under these circumstances.
Accordingly, Debtors’ applications for attorney fees are
DENIED.