Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1417 (9th Cir. 1990)

Jack E. GULICK, Sharon Litchfield Gulick, Plaintiffs-Appellants,v.DEPARTMENT of the TREASURY-INTERNAL REVENUE SERVICE, UnitedStates of America, Defendants-Appellees.

No. 88-4321.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 6, 1989.Decided Feb. 7, 1990.

Before CANBY, WIGGINS, FERNANDEZ, Circuit Judges.


Jack Gulick appeals the bankruptcy court's refusal to award him attorney's fees pursuant to 11 U.S.C. § 362(h) in his action against the Internal Revenue Service (IRS) for violating his automatic bankruptcy stay. The IRS argues that the bankruptcy court has no jurisdiction over a section 362(h) claim for attorney's fees because the government has not waived its sovereign immunity for such relief. We have jurisdiction under 28 U.S.C. § 158(d), and we affirm.

A waiver of sovereign immunity is a jurisdictional prerequisite to actions against the United States. United States v. Mitchell, 463 U.S. 206, 212 (1983). Money awards may be awarded against the United States only where there has been an express waiver of sovereign immunity. Barry v. Bowen, 884 F.2d 442, 443 (9th Cir. 1989). Gulick contends that section 106(c) of the Bankruptcy Code constitutes a waiver of the government's sovereign immunity for the relief he seeks.1 

The Supreme Court recently considered section 106(c), and found that it does not authorize monetary judgments against the governmental units, but provides only for declaratory and injunctive relief. Hoffman v. Connecticut Dept. of Income Maintenance, 109 S. Ct. 2818, 2823 (1989). Following Hoffman, the Eighth Circuit reversed an award of punitive damages against the United States under section 362(h), because section 106(c) does not waive the government's immunity for monetary damages. Small Business Admin. v. Rinehart, 887 F.2d 165, 169-70 (8th Cir. 1989).

Here, Gulick seeks attorney's fees from the United States, pursuant to section 362(h) which allows attorney's fees when an entity willfully violates an automatic bankruptcy stay. Because section 106(c) does not waive the government's sovereign immunity for these fees, the bankruptcy court correctly declined to award them. See Barry, 884 F.2d at 443 (court may not award contempt sanctions against the government where there has been no waiver of sovereign immunity).



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


At oral argument, Gulick stated that section 106(c) is the only provision which could constitute a waiver of sovereign immunity for this relief. We, therefore, do not consider whether any other section of the Bankruptcy Code constitutes such a waiver