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 DebtorAppellants 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.