In Re: Nanette Sisk

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE NANETTE MARIE SISK, No. 18-17445

Debtor,

D.C. No.

5:16-bk-50548

NANETTE MARIE SISK,

Appellant.

IN RE MARK IRVIN CANDALLA, No. 18-17446

Debtor,

D.C. No.

5:16-bk-50659

MARK IRVIN CANDALLA,

Appellant.

IN RE JERI LYLE SALDUA MERCADO, No. 18-17447

Debtor,

D.C. No.

5:16-bk-50651

JERI LYLE SALDUA MERCADO,

Appellant.

2 IN RE SISK

IN RE DENNIS MICHAEL ESCARCEGA, No. 18-17448

Debtor,

D.C. No.

5:16-bk-50368

DENNIS MICHAEL ESCARCEGA,

Appellant. 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.

4 IN RE SISK

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).

6 IN RE SISK

* * *

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.