Sandra Slater v. United States Steel Corporation

Case: 12-15548 Date Filed: 02/24/2016 Page: 1 of 113

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

__________________________

No. 12-15548

__________________________

D.C. Docket No. 2:09-cv-01732-KOB

SANDRA SLATER,

Plaintiff - Appellant,

versus

U. S. STEEL CORPORATION,

Defendant - Appellee.

__________________________

Appeal from the United States District Court

for the Northern District of Alabama

__________________________

(February 24, 2016)

Before TJOFLAT and WILLIAM PRYOR, Circuit Judges, and SCOLA, * District

Judge.

*Honorable Robert N. Scola, Jr., United States District Judge for the Southern District of

Florida, sitting by designation.

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PER CURIAM:

The equitable doctrine of judicial estoppel, also known as the doctrine of

preclusion of inconsistent positions, “precludes a party from asserting a . . .

position that contradicts or is inconsistent with a prior position taken by the same

party.” 18 James Wm. Moore et al., Moore’s Federal Practice ¶ 131.13[6][a] (3d

ed. 2015). The doctrine differs from the doctrines of issue and claim preclusion in

that the policy animating it “is not [primarily] concerned with preserving the

finality of judgments” but is concerned, instead, with “the orderly administration of

justice and regard for the dignity of court proceedings.” Id. ¶ 131.13[6][c]. The

doctrine may be invoked by a third party: that is, someone who was not a party in

the adversary’s prior proceeding and therefore would suffer no prejudice were the

adversary permitted to go forward with the inconsistent position. Id. ¶ 134.33[1]. 1

This is so in our circuit. We do not require that the party invoking the

doctrine have been a party in the prior proceeding. “The doctrine of judicial

estoppel protects the integrity of the judicial system, not the litigants; therefore, . . .

[w]hile privity and/or detrimental reliance are often present in judicial estoppel

cases, they are not required.” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282,

1286 (11th Cir. 2002) (alteration in original) (quotation marks omitted) (quoting

1

“The majority rule is that a party is not required to have been a party to the prior

proceeding to be able to invoke judicial estoppel.” 18 James Wm. Moore et al., Moore’s Federal

Practice, ¶ 134.33[1] (3d ed. 2015).

2

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Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 360 (3d Cir.

1996)).

I.

A.

The case at hand is an employment-discrimination action brought by Sandra

Slater against United States Steel Corporation (“U.S. Steel”), her former

employer. 2 Slater raises two issues on appeal: (1) whether the District Court

correctly granted summary judgment to U.S. Steel on her claim for “racial . . .

discrimination,” and (2) whether the District Court correctly dismissed other

employment-discrimination claims based on judicial estoppel that had proceeded

past summary judgment and were set for trial. We affirm the District Court on

both issues. 3

2

Slater’s complaint contained three counts. In Count One, Slater alleged that U.S. Steel

discriminated against her on the basis of gender, in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C § 2000e et seq. (“Title VII”), when U.S. Steel (1) refused to count the time

Slater spent in its Gary, Indiana mill toward her seniority status at its Fairfield, Alabama mill; (2)

assigned Slater to perform menial janitorial duties; and (3) refused to train Slater to operate

heavy machinery. In addition, the District Court interpreted Count One to make out a “claim for

sex discrimination based on quid pro quo discrimination.”

In Count Two, Slater alleged that U.S. Steel retaliated against her, in violation of Title

VII and 42 U.S.C. § 1981, when it laid her off after she complained about (1) “racial and sexual

discrimination” and (2) U.S. Steel’s decision to retain a white woman with less than three years

of service at U.S. Steel, while laying off more-senior African-American employees during a

round of layoffs supposedly restricted to employees with three years of service or less.

In Count Three, Slater attempted to recast each of the previous allegations as “racial and

sexual discrimination,” in violation 42 U.S.C. § 1981.

3

The District Court correctly granted U.S. Steel summary judgment on Slater’s claim for

racial discrimination based on disparate treatment “because . . . [Slater] failed to present

evidence that . . . [U.S. Steel] treated similarly situated white employees more favorably and

3

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Twenty-one months after bringing this lawsuit, Slater, represented by

separate counsel, filed a Chapter 7 bankruptcy petition.4 In filling out the

Statement of Financial Affairs part of her petition, Slater, under penalty of perjury,

answered “none” to the Personal Property Schedule B question asking whether she

had any “contingent and unliquidated claims” and “none” to the Statement of

Financial Affairs question asking whether she was, or had been within one year

immediately preceding the filing of her petition, “a party” to any “suits and

administrative proceedings.”

ha[d] failed to establish her prima facie case on th[e] claim.” We agree. We review the District

Court’s grant of summary judgment de novo. Cook v. Bennett, 792 F.3d 1294, 1298 (11th Cir.

2015). As part of her prima facie case, Slater needed to prove: (1) she belonged to a protected

class; (2) she was qualified for her job; (3) she suffered an adverse employment action; and (4)

the employer treated a similarly situated employee outside of her protected class more favorably.

Flowers v. Troup Cty. Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015); Maynard v. Bd. of

Regents, 342 F.3d 1281, 1289 (11th Cir. 2003) (citing McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973)). Slater, who is black, contended

that Carolyn Farless, a white woman, is a similarly situated employee outside of Slater’s

protected class who was treated more favorably because Farless had been allowed to transfer

service time earned at a different worksite to Farless’s current worksite to count toward her

seniority status, while Slater was not able to transfer her service time. Farless is not a proper

comparator because, unlike Slater, she was not a transfer employee. Similarly situated

employees must be “nearly identical to the plaintiff in order ‘to prevent courts from second-

guessing employers’ reasonable decisions and confusing apples with oranges.’” Silvera v.

Orange Cty. Sch. Bd., 244 F.3d 1253, 1260 (11th Cir. 2001) (quoting Maniccia v. Brown, 171

F.3d 1364, 1368–69 (11th Cir. 1999)).

Slater also argues that Ricci v. DeStefano, 557 U.S. 557, 577–78, 129 S. Ct. 2568, 2672–

73, 174 L. Ed. 2d 490 (2009) (discussing the prohibition on disparate-impact discrimination),

applies to her claim for racial discrimination. Because this argument was raised for the first time

on appeal, we decline to address it. See, e.g., Reider v. Philip Morris USA, Inc., 793 F.3d 1254,

1258 (11th Cir. 2015).

The other claims disposed of on summary judgment that Slater has not appealed are

affirmed by operation of law.

4

Chapter 7 Voluntary Pet., In re Slater, No. 11-02865 (Bankr. N.D. Ala. June 2, 2011),

ECF No. 1.

4

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When U.S. Steel learned of the bankruptcy case—that Slater’s Chapter 7

petition had not disclosed the employment-discrimination claims she was pursuing

against it in the District Court and that the Chapter 7 Trustee was treating the

bankruptcy as a “no asset” case5 and had filed a Report of No Distribution with the

Bankruptcy Court—it moved the District Court alternatively to dismiss the case or

for summary judgment. U.S. Steel argued that the case should be dismissed

because Slater lacked standing to prosecute it 6 or that summary judgment should

be granted under the doctrine of judicial estoppel pursuant to Burnes v. Pemco

Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), and its progeny. 7 Burnes was an

employment-discrimination case like Slater’s that was dismissed because the

plaintiff, who was in bankruptcy, failed to disclose the pendency of federal-district-

court litigation to the Bankruptcy Court.

5

A no-asset bankruptcy case is one in which no non-exempt assets are sold to pay the

debtor’s creditors. See Barger v. City of Cartersville, 348 F.3d 1289, 1291 (11th Cir. 2003)

(“Since it was a ‘no asset discharge’, no assets were distributed and the trustee was relieved of all

further duties.”); In re Baitcher, 781 F.2d 1529, 1530 (11th Cir. 1986) (“It had been a ‘no assets’

bankruptcy in which all the creditors got nothing.”).

6

Once Slater petitioned the Bankruptcy Court for Chapter 7 relief, all of her assets,

including her claims against U.S. Steel, became assets of the bankruptcy estate by operation of

law. See 11 U.S.C. § 541 (2012). Only the trustee of the bankruptcy estate would have standing

to pursue her claims against U.S. Steel.

7

See Br. of U.S. Steel in Supp. of Mot. to Dismiss Compl. or, in the alternative,

for Summ. J. at 6, Slater v. U.S. Steel Corp., No. 2:09-cv-01732-KOB (N.D. Ala. Aug.

16, 2011), ECF No. 67 (citing the following employment-discrimination cases: Robinson

v. Tyson Foods, Inc., 595 F.3d 1269,1272 (11th Cir. 2010); Barger, 348 F.3d at 1297; De

Leon v. Comcar Indus., Inc., 321 F.3d 1289, 1292 (11th Cir. 2003); Burnes, 291 F.3d at

1289; Pavlov v. Ingles Mkts., Inc., No. 06-16011, 2007 WL 1649099, at *1 (11th Cir.

June 6, 2007); Casanova v. Pre Sols., Inc., No. 06-12417, 2007 WL 934424, at *2 (11th

Cir. Mar. 28, 2007); Hands v. Winn-Dixie Stores, Inc., No. 09-0619-WS-N, 2010 WL

4496798, at *5 (S.D. Ala. Nov. 1, 2010)).

5

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On receiving U.S. Steel’s alternative motions, Slater immediately amended

her bankruptcy petition to identify her lawsuit against U.S. Steel and the claims

being litigated.8 Slater also filed with the District Court a memorandum in

opposition to U.S. Steel’s motions and an affidavit stating that she did not

intentionally withhold mention of her lawsuit in her bankruptcy petition and that

when she realized what she had done, she had her bankruptcy attorney amend her

answers to the Statement of Financial Affairs questions to reveal the current

litigation.

In her memorandum, Slater argued that invoking the doctrine of judicial

estoppel would be inappropriate for three reasons, two based on the United States

Supreme Court’s decision in New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct.

1808, 149 L. Ed. 2d 968 (2001), the third based on the Fourth Circuit’s decision in

Folio v. City of Clarksburg, 134 F.3d 1211 (4th Cir. 1998). First, Slater argued

that judicial estoppel would be inappropriate under New Hampshire because she

had not “‘succeeded in persuading [the bankruptcy] court to accept [her] position’”

that she had no claims pending against U.S. Steel, because she had not yet received

a discharge of her debts by the Bankruptcy Court, and therefore had created “‘no

risk of inconsistent court determinations’” that could pose a “threat to judicial

integrity.” Second, Slater contended that judicial estoppel should not be invoked

8

Fed. R. Bankr. P. 1009(a) (“A voluntary petition, list, schedule, or statement may be

amended by the debtor as a matter of course at any time before the case is closed.”).

6

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because allowing her employment-discrimination case to go forward would not

give her an “‘unfair advantage or impose an unfair detriment on’” U.S. Steel. And

third, to be estopped, Slater argued that she “must have acted intentionally, not

inadvertently” in failing to disclose the litigation against U.S. Steel in her Chapter

7 petition and, as indicated in her affidavit, her failure to disclose her claims and

the litigation was inadvertent.

While U.S. Steel’s alternative motions were pending, the following

occurred. First, the Bankruptcy Court approved the application of the trustee of

Slater’s bankruptcy estate to employ the lawyers representing Slater in her case

against U.S. Steel as special counsel for the bankruptcy estate and, in that capacity,

continue to pursue the claims being litigated. Second, a short time later, Slater,

through counsel, petitioned the court to convert her Chapter 7 case to a Chapter 13

case. The court granted her motion, and Slater promptly filed a Chapter 13 petition

and an Amended Personal Property Schedule B. Three months later, the

Bankruptcy Court affirmed the plan Slater proposed for the payment of her debts

over a period of forty-two months.

The District Court ruled on U.S. Steel’s alternative motions while Slater’s

plan was being carried out. The court declared moot U.S. Steel’s motion to

dismiss the case on the ground that Slater lacked standing. A Chapter 13 debtor

7

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has standing to prosecute a claim of the bankruptcy estate as the debtor in

possession, 9 and the court found that Slater was appearing in that capacity.

B.

The District Court concluded that the doctrine of judicial estoppel as

formulated in Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), and

Robinson v. Tyson Foods, Inc., 595 F.3d 1269 (11th Cir. 2010), controlled its

decision. In Burnes, we observed that

[i]n the Eleventh Circuit, courts consider two factors in the application

of judicial estoppel to a particular case. First, it must be shown that

the allegedly inconsistent positions were made under oath in a prior

proceeding. Second, such inconsistencies must be shown to have

been calculated to make a mockery of the judicial system.

291 F.3d at 1285 (quotation marks and citation omitted) (quoting Salomon Smith

Barney, Inc. v. Harvey, 260 F.3d 1302, 1308 (11th Cir. 2001), vacated on other

grounds, 537 U.S. 1085, 123 S. Ct. 718, 154 L. Ed. 2d 629 (2002)). In Robinson,

we observed that “[w]hen considering a party’s intent [under the second prong of

our test] . . . the debtor’s failure to satisfy its statutory disclosure duty is

‘inadvertent’ only when, in general, the debtor either lacks knowledge of the

9

“The Chapter 13 debtor remains in possession of all property of the estate, both exempt

and non-exempt.” David S. Kennedy, Chapter 13 Under the Bankruptcy Code, 19 Mem. St. U.

L. Rev. 137, 139 (1989) (citing 11 U.S.C. § 1306(b) (2012)). The debtor in possession has many

of the rights and powers of a trustee. See 11 U.S.C. § 1303 (2012). The debtor in possession

also retains standing to pursue a claim of the bankruptcy estate. Crosby v. Monroe Cty., 394

F.3d 1328, 1331 n.2 (11th Cir. 2004) (citing 11 U.S.C. § 1303; Fed. R. Bankr. P. 6009; In re

Mosley, 260 B.R. 590, 595 (Bankr. S.D. Ga. 2000)).

8

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undisclosed claims or has no motive for their concealment.” 595 F.3d at 1275

(quotation marks omitted) (quoting Barger, 348 F.3d at 1295–96).

U.S. Steel was entitled to summary judgment, the District Court held,

because it established both Burnes factors as a matter of law. The court summarily

dispatched Slater’s argument that U.S. Steel failed to establish the two New

Hampshire factors she had cited in her memorandum in opposition to U.S. Steel’s

alternative motions with the statement that Burnes “[i]ncorporat[ed] those

considerations” in “outlin[ing] [the] two factors whose presence call for the

imposition of judicial estoppel.”

The District Court viewed Burnes and Robinson as controlling its decision

because, like Slater’s case, they

involved the plaintiff’s inconsistent sworn testimony in two separate

proceedings, a bankruptcy proceeding and a federal employment

discrimination case. In both cases, the plaintiff failed to disclose the

existence of the pending lawsuit seeking monetary compensation as

an asset in the bankruptcy proceeding. The Eleventh Circuit found in

both cases that the plaintiff had a duty to disclose the federal lawsuit

as an asset; that the failure to reflect the lawsuit in the bankruptcy case

was a breach of that duty resulting in inconsistent positions under

oath; that the district court, in its discretion, could infer from the

record the requisite intent to make a mockery of the judicial system;

and thus, that the court’s application of the doctrine of judicial

estoppel to grant summary judgment was not clear error. 10

10

The District Court observed that Slater failed to address Burnes, Robinson, and the

similar decisions U.S. Steel cited in its Brief in Support of Motion to Dismiss Complaint or, in

the alternative, for Summary Judgment. Slater chose, instead, to rely on the fact that her failure

to disclose the claims against U.S. Steel was “inadvertent and has . . . been rectified,” that the

Bankruptcy Court took “no final action” on the failure, and that U.S. Steel had suffered no harm.

9

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Just like the plaintiffs in Burnes and Robinson, Slater took inconsistent

positions under oath when she breached the duty to disclose her ongoing

employment discrimination claims in her bankruptcy petition. So the question the

District Court had to decide, in order to grant U.S. Steel summary judgment, was

whether Slater’s inconsistencies were “calculated to make a mockery of the

judicial system.” See Burnes, 291 F.3d at 1285 (quotation marks omitted) (quoting

Salomon, 260 F.3d at 1308). In the District Court’s words, in answering that

question, it had to “analyze [Slater’s] intent, because the Eleventh Circuit requires

intentional contradictions, not simple error or inadvertence.” The District Court

noted that, in Robinson,

the Eleventh Circuit explained that ‘the relevant inquiry is intent at the

time of non-disclosure’– the motive to conceal is measured prior to

the time the adversary discovers and reveals the concealment. It

further explained that . . . ‘the motive to conceal stems from the

possibility of defrauding the courts and not from any actual fraudulent

result.’

The District Court stated, “The Eleventh Circuit emphasized, not only in Robinson

but also in Burnes, that waiting until after being caught to rectify the omission is

too little, too late.” In Burnes, the District Court noted,

the Eleventh Circuit . . . explain[ed] that allowing a plaintiff to amend

his bankruptcy petition ‘only after his omission has been challenged

by an adversary, suggests that a debtor should consider disclosing

potential assets only if he is caught concealing them. The so-called

remedy would only diminish the necessary incentive to provide the

bankruptcy court with a truthful disclosure of the debtors’ assets.’

10

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Because Slater amended her Chapter 7 petition “only after U.S. Steel caught and

exposed her omission,” the District Court concluded that “allowing her to do so

without penalty would encourage rather than discourage debtors like her to conceal

their assets unless or until they are caught.” To avoid this consequence, and

because it inferred that Slater’s concealment of her claims against U.S. Steel when

she filed her Chapter 7 petition was intentional and not inadvertent, the District

Court concluded that she intended “to make a mockery of the judicial system” and

granted U.S. Steel a final judgment dismissing her case.

Slater appeals the District Court’s judgment. For the reasons that follow, we

affirm.

II.

Slater seeks the vacation of the District Court’s judgment and a remand of

the case for further proceedings on two alternative grounds.11 First, Slater argues

that the District Court failed to give appropriate weight to two of the three factors

the Supreme Court deemed critical in New Hampshire in considering whether to

apply the doctrine of judicial estoppel. Second, she contends, the New Hampshire

factors aside, that the District Court erred in applying Eleventh Circuit precedent.12

11

Slater’s opening brief on appeal does not frame the argument alternatively. We do so

because, giving the brief a fair reading, we sense that Slater is contending that the District Court

misapplied New Hampshire and Eleventh Circuit precedent.

12

Slater also argues that judicial estoppel is not applicable here because the bankruptcy

trustee is the real party in interest, and the bankruptcy trustee has not made any inconsistent

11

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Judicial estoppel is an equitable doctrine. We review a trial court’s decision

whether to apply the doctrine for abuse of discretion. Robinson v. Tyson Foods,

Inc., 595 F.3d. 1269, 1273 (11th Cir. 2010). An abuse of discretion occurs when

the court bases its ruling on an incorrect legal standard. Klay v. United

Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004) (citing Martin v.

Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1336 (11th Cir. 2002)).

III.

The overriding purpose of the doctrine of judicial estoppel as stated in New

Hampshire and by the federal circuits is “to prevent the perversion of the judicial

process,” indeed “the essential integrity of [that] . . . process, by prohibiting parties

from changing positions according to the exigencies of the moment.” See New

Hampshire v. Maine, 532 U.S. 742, 749–50, 121 S. Ct. 1808, 1814–15, 149 L. Ed.

2d 968 (2001) (quotation marks and citations omitted) (citing the doctrine’s

purpose as expressed in various federal courts of appeal). The doctrine has been

applied broadly to legal proceedings in various contexts before a variety of

statements. This argument fails per our precedent in Barger, where we attributed the debtor’s

inconsistent statements to the bankruptcy trustee. See Barger v. City of Cartersville, 348 F.3d

1289, 1292–93, 1296–97 (11th Cir. 2003). Furthermore, Slater’s bankruptcy case was converted

to a Chapter 13 case by the time the motion for summary judgment was filed, meaning that she

was, in fact, a real party in interest as the debtor in possession. 11 U.S.C. § 1303; Fed. R. Bankr.

P. 6009; Crosby v. Monroe Cty., 394 F.3d 1328, 1331 n.2 (11th Cir. 2004).

Additionally, Slater argues that judicial estoppel is inapplicable to a claim for injunctive

relief. Because this argument was raised for the first time on appeal, we decline to address it.

See, e.g., Reider v. Philip Morris USA, Inc., 793 F.3d 1254, 1258 (11th Cir. 2015).

12

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tribunals, including administrative forums. 18 James Wm. Moore et al., Moore’s

Federal Practice ¶ 134.30, at 69–70 (3d ed. 2015).

The doctrine is ordinarily applied in two scenarios. The first is where the

party asserting the doctrine was a party in the earlier proceeding in which the

party’s adversary took a position inconsistent with the position the adversary is

currently advancing. New Hampshire presents this scenario. The second scenario

is where the party asserting the doctrine was not a party in the earlier proceeding

and thus did not have to deal with the position its adversary took in that

proceeding. Burnes presents this scenario.13

13

The Supreme Court has implied that the doctrine of judicial estoppel applies in the

Burnes scenario. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 807, 119 S. Ct. 1597,

1604, 143 L. Ed. 2d 966 (1999). In that case, the Fifth Circuit had affirmed the District Court’s

application of judicial estoppel to bar summary judgment on the plaintiff’s claim against her

former employer under the Americans with Disabilities Act of 1990 that “‘with . . . reasonable

accommodation’ she could ‘perform the essential functions’ of her job,” id. at 797, 119 S. Ct. at

1599–1600, because in an earlier case she had obtained Social Security disability benefits by

taking the position that she was unable to perform her job. The Supreme Court granted

certiorari, vacated the Fifth Circuit’s judgment, and remanded the case for further proceedings

because

[w]hen faced with a plaintiff’s previous sworn statement asserting “total

disability” or the like, the court should require an explanation of any apparent

inconsistency with the necessary elements of an ADA claim. To defeat summary

judgment, that explanation must be sufficient to warrant a reasonable juror’s

concluding that, assuming the truth of, or the plaintiff’s good-faith belief in, the

earlier statement, the plaintiff could nonetheless “perform the essential functions”

of her job, with or without “reasonable accommodation.”

Id. at 807, 119 S. Ct. at 1604.

We note that the Supreme Court did not cite Cleveland in its New Hampshire decision.

In New Hampshire, the Court recognized that judicial estoppel applies in a variety of contexts

and then went on to articulate factors particularly relevant to cases involving the same parties in

two proceedings. New Hampshire, 532 U.S. at 749–51, 121 S. Ct. at 1814–15. From this, one

might infer that the Supreme Court considers the New Hampshire scenario and the Burnes

scenario to involve entirely different settings.

13

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In this part of our opinion, we consider whether, as Slater contends, the

District Court erred, and thus abused its discretion, in failing to give appropriate

weight to two of the three factors that led the Supreme Court to rest its New

Hampshire decision on judicial estoppel. When we compare the factual predicate

that prompted the Court to apply the doctrine in that case with the factual predicate

that prompted the District Court to apply the doctrine we articulated in Burnes, we

find that the factual predicates are materially dissimilar. This being so, we

conclude that New Hampshire did not govern the District Court’s application of

judicial estoppel in Slater’s case.

A.

New Hampshire v. Maine involved a boundary dispute. New Hampshire

brought an original action in the Supreme Court in 2000 seeking a decree fixing

the New Hampshire–Maine boundary that follows the Piscataqua River. New

Hampshire, 532 U.S. at 745, 121 S. Ct. at 1812. New Hampshire “contend[ed] that

the inland river boundary ‘run[s] along the low water mark on the Maine shore,’ . .

. and assert[ed] sovereignty over the entire river.” Id. at 747, 121 S. Ct. at 1813

(second alteration in the original). Maine moved the Court to dismiss New

Hampshire’s complaint on the ground that “two prior proceedings—a 1740

boundary determination by King George II and a 1977 consent judgment entered

by th[e] Court—definitively fixed the Piscataqua River boundary at the middle of

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the river’s main channel of navigation” and thus should be given preclusive effect.

Id. at 745, 121 S. Ct. at 1812. Maine argued that three distinct doctrines—claim

preclusion, issue preclusion, and judicial estoppel—required the complaint’s

dismissal. Def.’s Mot. to Dismiss and Br. in Supp. of Mot. to Dismiss, New

Hampshire, 532 U.S. 742, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001) (No. 130),

2000 WL 35258927, at *20–30.

The Court granted Maine’s motion. In doing so, it “pretermit[ted] the

States’ competing historical claims along with their arguments on the application

vel non of the res judicata doctrines commonly called claim and issue preclusion.”

New Hampshire, 532 U.S. at 748, 121 S. Ct. at 1814. Instead, the Court concluded

that “a discrete doctrine, judicial estoppel, best fit[ ] the controversy.” Id. at 749,

121 S. Ct. at 1814.

After noting that “[c]ourts have observed that the circumstances under which

judicial estoppel may appropriately be invoked are probably not reducible to any

general formulation of principle,” id. at 750, 121 S. Ct. at 1815 (alterations and

quotation marks omitted) (quoting Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166

(4th Cir. 1982)), the Court identified the three factors that “typically inform the

decision whether to apply the doctrine in a particular case”:

First, a party’s later position must be “clearly inconsistent” with its

earlier position. Second, . . . whether the party has succeeded in

persuading a court to accept that party’s earlier position, so that

judicial acceptance of an inconsistent position in a later proceeding

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would create “the perception that either the first or the second court

was misled.” Absent success in a prior proceeding, a party’s later

inconsistent position introduces “no risk of inconsistent court

determinations,” and thus poses little threat to judicial integrity. . . .

[T]hird[,] . . . whether the party seeking to assert an inconsistent

position would derive an unfair advantage or impose an unfair

detriment on the opposing party if not estopped.

Id. at 750–51, 121 S. Ct. at 1815 (quotation marks and citations omitted).

The Court found the second and third factors dispositive, as the following

passage of its opinion indicates:

[C]onsiderations of equity persuade us that application of judicial

estoppel is appropriate in this case. Having convinced this Court to

accept one interpretation of “Middle of the River,” and having

benefited from that interpretation, New Hampshire now urges an

inconsistent interpretation to gain an additional advantage at Maine’s

expense. Were we to accept New Hampshire’s latest view, the “risk

of inconsistent court determinations” would become a reality. We

cannot interpret “Middle of the River” in the 1740 decree to mean two

different things along the same boundary line without undermining

the integrity of the judicial process.

Id. at 755, 121 S. Ct. at 1817 (citation omitted) (quoting United States v. C.I.T.

Constr. Inc., 944 F.2d 253, 259 (5th Cir. 1991)).

The factual predicate that prompted the Court to apply the doctrine was this:

permitting New Hampshire to go forward would be unfair to Maine. New

Hampshire got what it wanted in the 1977 consent decree. Now it wanted the

Court to effectively undo that decree and afford it an additional advantage at

Maine’s expense. The Court dismissed New Hampshire’s complaint because it

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could not give New Hampshire what it wanted without undermining the integrity

of the judicial process.

B.

Burnes v. Pemco Aeroplex, Inc. involved inconsistent positions taken by a

debtor in a Chapter 7 bankruptcy case and in an employment-discrimination case.14

291 F.3d 1282, 1284 (11th Cir. 2002). The salient facts were these.

In July 1997, Levi Billups petitioned the Bankruptcy Court for the Northern

District of Alabama for Chapter 13 relief. Id. On January 30, 1998, “Billups filed

a charge of discrimination with the EEOC against Pemco.” Id. In December 1999,

he and thirty-five other Pemco employees brought a lawsuit against Pemco

alleging discrimination in the workplace in violation of Title VII of the Civil

Rights Act of 1964. Id. Billups, however, did not amend his Chapter 13 schedule

of assets to reflect the lawsuit. Id.

In October 2000, the Bankruptcy Court converted Billups’s Chapter 13 case

to a Chapter 7 case and “ordered Billups to [submit] amended or updated schedules

to the Chapter 7 trustee reflecting any financial changes since he first filed

schedules with the bankruptcy court.” Id. Billups filed the amended schedules,

14

We pause here to state that the instant case and Burnes differ in one respect. In

Burnes, the bankruptcy case in which the debtor, Billups, asserted the inconsistent position was

no longer pending when the District Court applied judicial estoppel to bar his employment-

discrimination claims. In the instant case, by contrast, Slater’s bankruptcy case was still pending

when the District Court applied the doctrine. As we indicate infra Part IV., this difference is not

material.

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but he failed to update them to reflect the lawsuit. Id. In January 2001, after the

bankruptcy trustee filed a “no asset” report, the Bankruptcy Court, acting on the

report, ordered Billups’s debts discharged. Id. Pemco learned of Billups’s

bankruptcy after his Chapter 7 case had closed. See id. After it discovered that

Billups failed to disclose the Title VII litigation in his bankruptcy filings, it moved

the District Court for summary judgment, asserting judicial estoppel.

The District Court granted the motion because the material facts before it fit

hand in glove with the facts in Chandler v. Samford University, 35 F. Supp. 2d 861

(N.D. Ala. 1999). Mem. Op. at 5, Burnes v. Pemco Aeroplex, Inc., No. 2:99-cv-

03280-WMA (N.D. Ala. June 4, 2001), ECF No. 53. In that case, the plaintiff,

Joycealyn Chandler, filed a Title VII race-discrimination suit against Samford

University, her former employer. Chandler, 35 F. Supp. 2d at 862. After her

Chapter 13 bankruptcy case had been converted to a Chapter 7 case, she failed to

inform the Bankruptcy Court of the lawsuit. Id. at 862–63. The Bankruptcy Court,

finding that she had no reachable assets, ordered Chandler’s debts discharged. Id.

at 863. Samford University, having learned of the bankruptcy and Chandler’s

failure to reveal her lawsuit during the bankruptcy proceedings, moved the District

Court for summary judgment, asserting judicial estoppel. Id.

The District Court in Chandler considered the application of judicial

estoppel “to be one of first impression for . . . the Eleventh Circuit,” but

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join[ed] the multitude of courts recognizing the doctrine of judicial

estoppel as a bar to a debtor’s assertion of a claim not identified as an

asset in an earlier bankruptcy proceeding. In doing so, th[e] court

accept[ed] the two-pronged analysis requiring a demonstration that the

assertion of the claim is inconsistent with the earlier non-disclosure

and that the assertion of inconsistent positions is an attempt to

deliberately manipulate the judicial system.

Id. at 864. Finding that Chandler had been well aware of her duty to inform the

Bankruptcy Court of her pending Title VII suit 15 and had “an obvious motive for

concealing her claims against Samford,” the court applied the doctrine and refused

to entertain her claims. Id. at 865.

The District Court granted Pemco’s motion for summary judgment on June

4, 2001, six days after the opinion in New Hampshire came down. 16 Mem. Op. at

1, Burnes v. Pemco Aeroplex, Inc., No. 2:99-cv-03280-WMA (N.D. Ala. June 4,

2001), ECF No. 53. One of the issues Billups presented to this court on appeal was

whether New Hampshire effectively overruled Chandler’s judicial-estoppel

analysis, which the District Court had applied in reaching its decision. We

addressed the issue after restating the Chandler analysis to conform to Eleventh

Circuit precedent. Burnes, 291 F.3d at 1285–86. Citing Salomon Smith Barney,

Inc. v. Harvey, 260 F.3d 1302, 1308 (11th Cir. 2001), vacated on other grounds,

15

Chandler had attended law school and testified that bankruptcy law was one of her

favorite classes. Chandler, 35 F. Supp. 2d at 865.

16

The opinion in New Hampshire issued on May 29, 2001. Rehearing was denied on

August 6, 2001. New Hampshire v. Maine, 533 U.S. 968, 122 S. Ct. 10, 150 L. Ed. 2d 793

(2001) (Mem.).

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537 U.S. 1085, 123 S. Ct. 718, 154 L. Ed. 2d 629 (2002), we said that in deciding

whether to apply judicial estoppel, two factors are considered: (1) whether the

party against whom the doctrine is invoked is asserting a position that is

inconsistent with a position the party took in a prior proceeding under oath; and (2)

whether the party is asserting the inconsistent position with the intent to make a

mockery of the judicial system. 17 Burnes, 291 F.3d at 1285. We then

acknowledged the three factors that informed the New Hampshire decision:

17

Salomon Smith Barney, Inc. involved a dispute over the arbitrability of certain claims.

Salomon Smith Barney (“Smith Barney”), an investment firm, recommended that Harvey and

others purchase limited partnerships that were unsuitable for their investment objectives. 260

F.3d at 1304–05. The case did not present a Burnes scenario. Rather, it presented a New

Hampshire scenario in that the party asserting judicial estoppel, Harvey, was a party in the prior

proceeding, which was an appeal taken by Smith Barney to the Florida District Court of Appeal.

Id. at 1305. Nor did the case before the District Court involve a false statement made under oath

in that case or the state-court case on appeal. The allegedly inconsistent statement was in the

form of an argument Smith Barney made in that appeal, an argument the panel held was not

inconsistent with the position Smith Barney was taking in the District Court. Id. at 1308 (“Smith

Barney did not maintain inconsistent positions, but rather it continuously argued that Florida was

an inconvenient forum.”). The Salomon Court therefore rejected Harvey’s argument that the

District Court should have estopped Smith Barney from pursuing the position it was taking, i.e.,

that the District Court should exercise jurisdiction over the case it had filed. Id.

Although the panel did not estop Smith Barney—because it had not pursued inconsistent

positions in the two cases—it described judicial estoppel thusly:

Judicial estoppel “is applied to the calculated assertion of divergent sworn

positions . . . [and] is designed to prevent parties from making a mockery of

justice by inconsistent pleadings.” McKinnon v. Blue Cross & Blue Shield of

Ala., 935 F.2d 1187, 1192 (11th Cir. 1991) (citation omitted). This circuit’s

approach contemplates two elements. First, it must be shown that the allegedly

inconsistent positions were made under oath in a prior proceeding. Second, such

inconsistencies must be shown to have been calculated to make a mockery of the

judicial system.

Id. Salomon was decided on August 9, 2001, three days after the Supreme Court denied

rehearing in New Hampshire, and thus, quite understandably, did not cite the New Hampshire

decision.

By way of historical background, the quotation attributed to McKinnon was taken from

American National Bank v. Federal Deposit Insurance Corporation, 710 F.2d 1528, 1536 (11th

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(1) whether the present position is ‘clearly inconsistent’ with the

earlier position; (2) whether the party succeeded in persuading a

tribunal to accept the earlier position, so that judicial acceptance of the

inconsistent position in a later proceeding creates the perception that

either court was misled; and (3) whether the party advancing the

inconsistent position would derive an unfair advantage on the

opposing party.

Id. (citing New Hampshire, 532 U.S. at 750-51, 121 S. Ct. at 1815). We noted that

the Supreme Court had been quick to say that these factors did not constitute

“‘inflexible prerequisites or an exhaustive formula for determining the applicability

Cir. 1983). American National Bank cited Johnson Service Co. v. TransAmerica Insurance Co.,

485 F.2d 164, 174 (5th Cir. 1973), a diversity case based on Texas common law, as the authority

for the doctrine. “Judicial estoppel is applied to the calculated assertion of divergent sworn

positions. The doctrine is designed to prevent parties from making a mockery of justice by

inconsistent pleadings.” Am. Nat’l Bank, 710 F.2d at 1536 (citing Johnson Serv., 485 F.2d at

174).

The Salomon Court relied specifically on two cases in articulating the elements of

judicial estoppel. The first case was Taylor v. Food World, Inc., 133 F.3d 1419 (11th Cir. 1998).

Taylor presented a Burnes scenario. Gary Taylor’s guardian sued Taylor’s employer claiming

that the employer had terminated Taylor in violation of his rights under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and seeking reinstatement. Id. at 1421.

While the suit was pending, the guardian obtained supplemental security income benefits on

Taylor’s behalf. Id. The District Court, applying the doctrine of judicial estoppel, dismissed the

ADA claim. On appeal, we described judicial estoppel in the words the court in McKinnon used:

“Judicial estoppel ‘is applied to the calculated assertion of divergent sworn positions . . . [and] is

designed to prevent parties from making a mockery of justice by inconsistent pleadings.’” Id. at

1422 (quoting McKinnon, 935 F.2d at 1192). We reversed the dismissal on the ground that

“[t]he medical records [Taylor] submitted to the SSA do not clearly contradict his assertion that

he is ‘qualified’ under the ADA.” Id. at 1423.

The second case was Johnson Service. In that case, the former Fifth Circuit applied the

doctrine of judicial estoppel as formulated by Texas common law. 485 F.2d at 174. In Chrysler

Credit Corporation v. Rebhan, which presented a New Hampshire scenario, this court cited

Johnson Service in formulating for the first time in the Eleventh Circuit the doctrine of judicial

estoppel as a matter of federal law. Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1261 (11th

Cir. 1988), abrogated on other grounds by Grogan v. Garner, 498 U.S. 279, 111 S. Ct. 654, 112

L. Ed. 2d 755 (1991) (“The policy interests [which gave rise to the doctrine] are simply stated by

the doctrine itself. The doctrine of judicial estoppel ‘is directed against those who would attempt

to manipulate the court system through the calculated assertion of divergent sworn positions in

judicial proceedings.’” (quoting Johnson Serv., 485 F.2d at 174)).

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of judicial estoppel,’” as “‘[a]dditional considerations may inform the doctrine’s

application in specific factual contexts.’” Id. (quoting New Hampshire, 532 U.S. at

750–51, 121 S. Ct. at 1815). We accordingly concluded that “the two factors

applied in the Eleventh Circuit are consistent with the Supreme Court’s

instructions [in New Hampshire], and provide courts with sufficient flexibility in

determining the applicability of the doctrine of judicial estoppel based on the facts

of a particular case.” Id. at 1285–86.

We then held that each of the two judicial-estoppel factors spelled out in

Salomon had been met. Id. at 1286–88. First, Billups took an inconsistent position

under oath when he represented that he had no assets in the form of pending legal

claims despite the fact that he was in the process of pursuing a Title VII claim

against Pemco. 18 Id. at 1286. Second, the District Court did not err when it

18

The Chapter 13 schedule-of-assets form Billups filed with his Chapter 13 petition

“specifically asked [him] to report any contingent or unliquidated claims of any kind.” Burnes,

291 F.3d at 1284. We held that Billups’s duty to disclose all of his assets was a “continuing one”

that did not end with his submission of the form. Id. at 1286. Rather, he was required to amend

the form to reveal the lawsuit against Pemco. The Bankruptcy Court reinforced this continuing

duty to disclose when, as part of its conversion of his Chapter 13 case to a Chapter 7 case, the

court ordered Billups to submit “amended or updated schedules . . . [to] reflect[] any financial

changes” that had occurred since the filing of his Chapter 13 petition. Id. at 1284. Billups

amended his schedules, but he failed to list his Title VII claim and the pending litigation. We

treated the failure as a false statement under oath that he had no Title VII claim.

In Ajaka v. BrooksAmerica Mortgage Corporation, 453 F.3d 1339 (11th Cir. 2006), we

considered the debtor’s failure to “amend his Chapter 13 reorganization plan to reflect his

contingent [Truth in Lending Act] claim” as taking an “inconsistent position[ ] . . . under oath in

a prior proceeding.” 453 F.3d at 1344 (quoting Burnes, 291 F.3d at 1285). “Because . . . Ajaka

failed to assert his TILA claim as an asset in the bankruptcy proceeding, the first [factor] of our

judicial estoppel test is satisfied. See [Burnes, 291 F.3d] at 1285 (finding similar failure to

disclose in bankruptcy proceeding to satisfy the first factor).” Id.; see also Robinson v. Tyson

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inferred from the record that Billups intended to make a mockery of the judicial

system because he had knowledge of his undisclosed claims and a motive to

conceal them. 19 Id. at 1286–88. That Billups stood to gain an advantage by

concealing the claims from the Bankruptcy Court was undisputed. Id. at 1288. “It

is unlikely he would have received the benefit of a conversion to Chapter 7

followed by a no asset, complete discharge had his creditors, the trustee, or the

bankruptcy court known of a lawsuit claiming millions of dollars in damages.” Id.

In an attempt to avoid the dismissal of his claims, Billups argued that he

should be permitted to re-open his bankruptcy case to comply with the Bankruptcy

Court’s order that he inform the Chapter 7 trustee of his lawsuit against Pemco. Id.

We rejected the argument and affirmed the District Court’s judgment. Allowing

Billups to re-open his case and amend his bankruptcy filings to reveal his lawsuit

Foods, Inc., 595 F.3d 1269, 1275 (11th Cir. 2010) (“By failing to update her bankruptcy

schedule to reflect her pending claim, Robinson represented that she had no legal claims to the

bankruptcy court while simultaneously pursuing her legal claim against Tyson in the district

court. These actions, both taken under oath, are clearly inconsistent. Therefore, in accordance

with Ajaka, Robinson took inconsistent positions under oath and the issue of judicial estoppel

centers on her intent.”).

19

Billups argued that he did not have “the requisite intent to mislead the bankruptcy

court.” Burnes, 291 F.3d at 1286. He claimed that an “inadvertent error resulted in the

continued omission of his discrimination claim from his bankruptcy schedules.” Id. But, as we

indicate supra Part I.B., Billups’s failure to inform the Bankruptcy Court of his discrimination

claim was not inadvertent. Such failure is “inadvertent only when, in general, the debtor either

lacks knowledge of the undisclosed claims or has no motive for their concealment.” Id. at 1287

(quotation marks omitted) (quoting In re Coastal Plains, Inc., 179 F.3d 197, 210 (5th Cir.

1999)); see also Robinson, 595 F.3d at 1275. In Burnes, the “undisputed facts ma[d]e it clear

that Billups had knowledge of his claims during the bankruptcy proceedings . . . . [and] stood to

gain an advantage by concealing the claims from the bankruptcy court.” Burnes, 291 F.3d at

1288.

23

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against Pemco, “would only diminish the necessary incentive to provide the

bankruptcy court with a truthful disclosure of the debtors’ assets.” Id.

The factual predicate that prompted this court to apply the doctrine was this:

Billups intentionally concealed from the Bankruptcy Court his claim against

Pemco thereby depriving the Chapter 7 trustee of the ability to intervene and

prosecute his claim for the benefit of the bankruptcy estate and his creditors. If

this court permitted Billups to re-open his bankruptcy case, it would be condoning

his behavior, and, to the extent that such behavior would be noised about, it would

be encouraging future debtors to follow suit. In short, we would be undermining

the administration of the bankruptcy law and the integrity of the judicial process.

We reiterated this concern in Barger v. City of Cartersville, 348 F.3d 1289

(11th Cir. 2003). The City of Cartersville demoted Barger from her position as

Personnel Director to customer-sales representative on January 8, 2001. Id. at

1291. On July 18, 2001, Barger sued the City in the District Court claiming that

her demotion violated the Americans with Disabilities Act, the Age Discrimination

in Employment Act, and the Family Medical Leave Act. Id. For relief, she sought

reinstatement to her Personnel Director position. Id. On September 4, 2001,

Barger, represented by a bankruptcy attorney, petitioned the Bankruptcy Court for

Chapter 7 protection. Id. The lawsuit with the City was not disclosed in the

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Statement of Financial Affairs and Personal Property Schedule B, which the

attorney prepared and she signed under penalty of perjury. Id.

On November 7, 2001, after negotiations with the City failed, her

employment attorney amended her complaint against the City to add claims for

compensatory and punitive damages. Id. The next day, at a meeting of creditors,

Barger told her bankruptcy attorney, and in turn, the trustee, about her case against

the City. Id. She told them that she was seeking reinstatement to her former

position, as Personnel Director, but omitted to say that she was also seeking

damages. Id. Despite this, no amendment was made to the Statement of Financial

Affairs and Personal Property Schedule B to reflect the pending lawsuit. See id.

The Bankruptcy Court subsequently granted Barger a complete discharge of

her debts; it was a “no asset discharge.” Id. When the City learned that Barger had

been in bankruptcy and had concealed her case against the City from the

Bankruptcy Court, it moved the District Court for summary judgment, asserting

that the doctrine of judicial estoppel barred Barger’s claims. Id. Barger responded

by moving the Bankruptcy Court to reopen her Chapter 7 case, so that the trustee

of her bankruptcy estate could prosecute the pending lawsuit in her stead. Id. at

1291–92. The Bankruptcy Court, over the City’s objection, granted her motion

and reopened the case for that purpose, finding that Barger “‘did not conceal the

[discrimination] claim or attempt to obtain a financial advantage for herself’. In

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the Bankruptcy Court’s estimation, the failure to list the discrimination suit in

Barger’s Statement of Financial Affairs was caused by her bankruptcy attorney’s

‘inadvertence’ and had no substantive effect on the bankruptcy petition.” Id. at

1292 (alteration in original). Despite these findings, the District Court granted the

City’s motion for summary judgment. Id.

On appeal, we considered the trustee of Barger’s bankruptcy estate the

appellant since Barger’s claims constituted property of the estate. Id. at 1292–93.

But we attributed to the trustee Barger’s conduct in determining whether the

District Court had abused its discretion in invoking judicial estoppel to bar the

claims. Id. at 1295.

In seeking the reversal of the District Court’s judgment, the trustee focused

on the District Court’s rejection of the Bankruptcy Court’s findings and its

substitution for such findings the determination that Barger intended to manipulate

the judicial system. Id. The trustee cited the following undisputed facts:

(1) Barger’s attorney failed to list her lawsuit against the City in the Statement of

Financial Affairs despite the fact that she specifically told him about the suit;

(2) Barger informed the trustee about her suit against the City during the creditors’

meeting; and (3) the Bankruptcy Court reopened Barger’s Chapter 7 case so that

the trustee could prosecute the suit against the City. Id.

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We upheld the District Court’s determination notwithstanding those

undisputed facts. As for the first fact, we attributed to Barger her attorney’s failure

to list the lawsuit against the City as an asset of the bankruptcy estate because she

voluntarily hired the attorney and could not avoid the consequences of his acts or

omissions. Id. Her “remedy is against the attorney in a suit for malpractice.” Id.

(quotation marks omitted) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 634

n.10, 82 S. Ct. 1386, 1390 n.10, 8 L. Ed. 2d 734 (1962)). But “[e]ven if [her]

failure to disclose could be blamed on her attorney, the nondisclosure could not in

any event be considered inadvertent” and thus excusable for judicial-estoppel

purposes. Id. A “debtor’s failure to satisfy [her] statutory disclosure duty is

‘inadvertent’ only when . . . the debtor either lacks knowledge of the undisclosed

claims or has no motive for their concealment.” Id. at 1296 (quotation marks

omitted) (quoting In re Coastal Plains, Inc., 179 F.3d 197, 210 (5th Cir. 1999)).

Barger obviously had knowledge of the undisclosed claims against the City and

she had a motive to conceal the claims because “by omitting the claims, she could

keep any proceeds for herself and not have them become part of the bankruptcy

estate. Thus, [her] knowledge of her discrimination claims and motive to conceal

them [were] sufficient evidence from which to infer her intentional manipulation.”

Id. (citing Burnes, 291 F.3d at 1287).

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We discounted the second fact for the reason that when asked by the trustee

for “the monetary value of the lawsuit, [Barger] informed him that she only sought

reinstatement of her previous position with the City of Cartersville. Barger did not

tell the trustee that she was also seeking backpay, liquidated damages,

compensatory damages, and punitive damages.” Id. As for the third fact, we said

this:

Barger’s attempt to reopen the bankruptcy estate to include her

discrimination claim hardly casts her in the good light she would like.

She only sought to reopen the bankruptcy estate after the defendants

moved the district court to enter summary judgment against her on

judicial estoppel grounds. “Allowing [a debtor] to back-up, re-open

the bankruptcy case, and amend his bankruptcy filings, only after his

omission has been challenged by an adversary, suggests that a debtor

should consider disclosing potential assets only if he is caught

concealing them. This so-called remedy would only diminish the

necessary incentive to provide the bankruptcy court with a truthful

disclosure of the debtor’s assets.” As such, Barger’s disclosure upon

re-opening the bankruptcy estate deserves no favor.

Id. at 1297 (alteration in original and citation omitted) (quoting Burnes, 291 F.3d at

1288). 20

20

We note in passing that Parker v. Wendy’s International, Inc., 365 F.3d 1268 (11th

Cir. 2004), is factually on all fours with Barger, but reached the opposite result. In that case, the

District Court attributed to the trustee of Parker’s bankruptcy estate Parker’s failure to disclose a

Title VII claim of racial discrimination she had brought against Wendy’s and then applied the

doctrine of judicial estoppel to bar the trustee’s prosecution of the claim. Id. at 1270–71. The

trustee appealed. We reversed, observing that “the claim against Wendy’s belong[ed] to the

bankruptcy estate and its representative, the trustee[,]” not Parker, the debtor. Id. at 1273. “The

trustee made no false or inconsistent statement under oath in a prior proceeding and [was] not

tainted or burdened by the debtor’s misconduct.” Id.

In contrast, Barger held that the trustee was bound by the debtor’s failure to disclose in

her bankruptcy filings that the claims she was prosecuting were assets of the bankruptcy estate.

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C.

The policy the Supreme Court implemented in New Hampshire and this

court implemented in Burnes was the same: the protection of “the integrity of the

judicial process” by preventing “the perversion” of that process by parties who

would “deliberately chang[e] positions according to the exigencies of the

moment.” New Hampshire, 532 U.S. at 749–50, 121 S. Ct. at 1814 (quotation

marks omitted). While the policy was the same, the factual contexts of the two

cases were as different as night and day. In Burnes, the issue was whether the

debtor intentionally concealed the claims he was prosecuting against his employer

from the Bankruptcy Court, and if so, whether in prosecuting those same claims in

District Court, he intended to make a mockery of the judicial system. The fact that

Pemco had established New Hampshire’s second factor—that Billups had

“succeeded in persuading [that] court to accept” his position—was not dispositive.

The concealment of his claims against Pemco had already performed its odious

service, undermining the orderly administration of justice in his bankruptcy case.

The concealment continued to do that until he was caught. In short, to give

dispositive weight to New Hampshire’s second factor would be to hold that judicial

Under our prior-panel-precedent rule, United States v. Puentes-Hurtado, 794 F.3d 1278, 1287

(11th Cir. 2015), we are bound to follow Barger and to disregard Parker’s holding to the

contrary.

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estoppel is inapplicable in the Burnes scenario until after the bankruptcy case has

run its course and plaintiff’s debts have been discharged.

New Hampshire’s third factor is also not dispositive. That factor applies in

the New Hampshire scenario but not the Burnes scenario, as is presented in the

instant case. Allowing Slater’s claims to go forward could not—in New

Hampshire’s sense of the words—give Slater an “unfair advantage” or impose on

U.S. Steel an “unfair detriment” because U.S. Steel had not been burdened with

opposing Slater’s claims in the Bankruptcy Court. These words apply only in a

two-case setting, where the party asserting the doctrine was a party in the earlier

proceeding.

In sum, Slater’s argument that the District Court erred in failing to give these

New Hampshire factors appropriate weight, and thus abused its discretion in

barring her claims on the judicial estoppel ground, fails.21

21

This court has applied the three New Hampshire factors in cases presenting the New

Hampshire scenario. See, e.g., Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171 (11th Cir.

2013); Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-

Seven Feet in Length, 649 F.3d 1259 (11th Cir. 2011), rev’d on other grounds sub nom. Lozman

v. City of Riviera Beach, 568 U.S. ___, 133 S. Ct. 735, 184 L. Ed. 2d 604 (2013). Both of these

decisions involved straightforward applications of New Hampshire and Zedner v. United States,

547 U.S. 489, 126 S. Ct. 1976, 164 L. Ed. 2d 749 (2006), which applied New Hampshire’s three

dispositive factors. Neither Eleventh Circuit decision cites the two judicial-estoppel factors

Burnes relied on, (1) the party against whom the doctrine is invoked is asserting a position that is

inconsistent with a position the party took in a prior proceeding under oath and (2) the party is

asserting the inconsistent position with the intent to make a mockery of the judicial system. And

neither decision refers to the prior inconsistent position as being under oath. The impression is

thus created that the oath requirement applies only in cases presenting the Burnes scenario, with

its focus on false statements made in the Bankruptcy Court under penalty of perjury.

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IV.

Slater argues alternatively that the District Court erred in applying Eleventh

Circuit precedent, namely Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th

Cir. 2002), and Robinson v. Tyson Foods, Inc., 595 F.3d 1269 (11th Cir. 2010). In

both of those cases, the Bankruptcy Court had accepted, albeit tacitly, the debtor’s

failure to disclose as property of the bankruptcy estate claims the debtor was

litigating in federal district court. That is, in each case, the bankruptcy proceeding

had run its course. We find no merit in Slater’s argument for two reasons.

First, this court’s precedent in cases involving the non-disclosure in

bankruptcy of claims the debtor is simultaneously prosecuting in federal district

court does not require, as a condition precedent to the application of judicial

estoppel, the termination of the bankruptcy proceedings. Whether the bankruptcy

proceeding has ended is not dispositive. The factors that trigger the application of

the doctrine are (1) an inconsistent position taken under oath in the Bankruptcy

Court, and (2) advancing an inconsistent position in the District Court with the

intent to make a mockery of justice.

Second, to condition the invocation of judicial estoppel on what transpires in

the bankruptcy case after the debtor’s failure to list the claim being litigated in the

District Court has been discovered would, as the Burnes Court explained, “only

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diminish the necessary incentive to provide the bankruptcy court with a truthful

disclosure of the debtors’ assets.” Burnes, 291 F.3d at 1288.

V.

For the foregoing reasons, the judgment of the District Court is

AFFIRMED.

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TJOFLAT, Circuit Judge, specially concurring:

I concur in the court’s judgment because the result is dictated by Eleventh

Circuit precedent. I write separately because that precedent, the doctrine of

judicial estoppel as laid out in Burnes v. Pemco Aeroplex, Inc.1 and Barger v. City

of Cartersville, 2 was wrongly decided. The consequences of today’s decision

make the problem clear: U.S. Steel is granted a windfall, Slater’s creditors are

deprived of an asset, and the Bankruptcy Court is stripped of its discretion.

Sandra Slater filed a Chapter 7 bankruptcy petition twenty-one months after

bringing suit for employment discrimination against her former employer, U.S.

Steel. 3 Under oath, she failed to list that suit as a contingent asset on her

bankruptcy petition. Upon discovery, U.S. Steel moved the District Court to bar

the suit on judicial-estoppel grounds. According to U.S. Steel, Slater’s inconsistent

positions would “make a mockery of the judicial system.” 4

While U.S. Steel’s motion was pending, the Bankruptcy Court first learned

of Slater’s nondisclosed suit during a hearing on a related matter. 5 The bankruptcy

1

Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002).

2

Barger v. City of Cartersville, 348 F.3d 1289 (11th Cir. 2003).

3

See In re Slater, No. 11-02865 (Bankr. N.D. Ala. June 2, 2011).

4

See Burnes, 291 F.3d at 1285 (quotation marks omitted) (quoting Salomon Smith

Barney, Inc. v. Harvey, 260 F.3d 1302, 1308 (11th Cir. 2001), vacated on other grounds, 537

U.S. 1085, 123 S. Ct. 718, 154 L. Ed. 2d 629 (2002)).

5

Slater amended her petition to reflect her suit against U.S. Steel only after U.S. Steel

submitted to the District Court its motion for summary judgment based on judicial estoppel. Per

Rule 1009(a) of the Federal Rules of Bankruptcy Procedure, Slater was allowed to amend her

petition as a matter of course since the case was still open. See Fed. R. Bankr. P. 1009(a). The

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judge noted that he “normally . . . g[ot] [motions based on nondisclosed lawsuits]

after they’ve settled them.” 6 The Bankruptcy Judge’s statement suggests that he

hears about contingent assets, like lawsuits, somewhat regularly and usually only

after their values become fixed. Having Slater’s employment-discrimination

claims go undisclosed, then, did not appear particularly troubling from the judge’s

perspective. He was willing to let Slater pursue her claims.

The District Court then granted summary judgment to U.S. Steel. The

District Judge, concluding—correctly—that Burnes and Barger eliminated the

Bankruptcy Judge’s reasoned discretion in such circumstances, found that judicial

estoppel barred Slater’s claim. Judicial estoppel requires the court to consider two

factors: “First, it must be shown that the allegedly inconsistent positions were

hearing at which Slater’s suit was discovered by the Bankruptcy Court concerned a motion to

convert the case from Chapter 7 bankruptcy to Chapter 13 bankruptcy and an application to

employ counsel. Both the motion and the application were eventually granted. U.S. Steel had

also moved the District Court to bar Slater’s claim for lack of standing because the trustee of the

bankruptcy estate, not Slater, was the only party who could properly maintain the employment-

discrimination suit when it was in Chapter 7 bankruptcy. The District Court ultimately declared

the standing question moot because, once she became a Chapter 13 debtor in possession, Slater

had standing herself to sue on behalf of the bankruptcy estate.

6

Hr’g on Mot. to Convert to Chapter 13 Bankruptcy and Trustee Appl. to Employ

Roderick Graham and Charles Tatum at 8:35–8:38, In re Slater, No. 11-02865 (Bankr. N.D.

Ala. Sept. 27, 2011). Nondisclosed lawsuits and settlements would normally come to the

Bankruptcy Judge’s attention on a motion to reopen the case pursuant to 11 U.S.C. § 350. If a

case were still open, the debtor would not need to bring the matter to the court’s attention

because Rule 1009 of the Federal Rules of Bankruptcy Procedure gives the debtor the right to

amend his schedules “as a matter of course at any time” while the case is open, without obtaining

leave of court. See infra note 85. The reason why the Judge commented on the matter was

because the trustee was requesting the court’s approval to employ counsel to pursue Slater’s

claims against U.S. Steel.

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made under oath in a prior proceeding. Second, such inconsistencies must be

shown to have been calculated to make a mockery of the judicial system.” 7 That

Slater took inconsistent positions was uncontested and the District Court inferred

the requisite intent to “make a mockery of the judicial system” from Slater’s failure

to list her claims on the bankruptcy petition. It granted summary judgment based

on judicial estoppel in part to protect the integrity of the Bankruptcy Court. Today

we affirm that decision.

The results of today’s decision speak for themselves. U.S. Steel no longer

faces a set of potentially meritorious employment-discrimination claims. Judicial

estoppel disposes of Slater’s claims, without examination on the merits; indeed, the

doctrine blocks them altogether. U.S. Steel is free and clear from any liability it

may have owed to Slater. Conversely, for Slater’s creditors, there will be no

recovery on the claims, which belonged, by operation of law, to the bankruptcy

estate the moment Slater filed her bankruptcy petition. And, the Bankruptcy Court,

despite expressing no concern about the late-arriving claim, receives no

“protection” through the doctrine. Instead, its experience and discretion are

disregarded in favor of the District Court’s judgment.

7

Burnes, 291 F.3d at 1285 (quotation marks omitted) (quoting Salomon, 260 F.3d at

1308).

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This special concurrence proceeds in three parts.8 In Part I., I provide a brief

overview of how the bankruptcy process is designed to work in the absence of

judicial estoppel, with particular emphasis placed on the roles played by the trustee

and the bankruptcy judge. In Part II., I trace the doctrine of judicial estoppel’s

historical development in the Eleventh Circuit. In Part III., I turn to the stark

implications that stem from the continued application of judicial estoppel as

required by Burnes and Barger. I conclude by calling for en banc review to set

straight the doctrine of judicial estoppel.

I.

The Eleventh Circuit’s judicial-estoppel precedent to be applied by Article

III courts in bankruptcy proceedings, which works instead against the structure and

purpose of the bankruptcy system, fails to accord the broad deference to the

bankruptcy courts that Congress intended. Before explaining why this is so, I

begin with an overview of the relevant dynamics present in these proceedings for

the those not already familiar.

The federal bankruptcy laws are designed to “give[] . . . the honest but

unfortunate debtor . . . a new opportunity in life and a clear field for future effort,

8

Also included in two appendices to this opinion, in order to assist the reader to make

out the development of the doctrine of judicial estoppel in the Eleventh Circuit, are a chart and

timeline laying out the relevant case law and a compendium of the hundreds of cases invoking

Burnes and Barger in the Eleventh Circuit.

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unhampered by the pressure and discouragement of pre-existing debt.”9 In

exchange for the discharge of his debts, the debtor is required, to the extent

possible, to make his creditors whole with the property he owns at the time of

bankruptcy. 10 Because the debtor’s property is self-reported, “the importance of

full and honest disclosure [in a bankruptcy case] cannot be overstated.”11 Candor

is unquestionably “crucial to the effective functioning of the federal bankruptcy

system.” 12

The role of the bankruptcy judge is, of course, to resolve disputes that arise.

But the bankruptcy judge’s time is also often occupied in a broad supervisory

manner, generally ensuring that the case is administered in a “just, speedy, and

inexpensive” manner. 13 “[T]he bankruptcy court is the ultimate custodian of the

estate.”14

9

Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S. Ct. 695, 699, 78 L. Ed. 1230 (1934).

10

Id.

11

Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1286 (11th Cir. 2002) (quotation

marks omitted).

12

Id. (quotation marks omitted).

13

Fed. R. Bankr. P. 1001; see Hon. Stephen A. Stripp, An Analysis of the Role of the

Bankruptcy Judge and the Use of Judicial Time, 23 Seton Hall L. Rev. 1329, 1336–37 (1993)

(“The bankruptcy judge . . . has traditionally had other, nonadjudicative duties which are unique

to the bankruptcy process.” (citing H.R. Rep. No. 95-595, at 88 (1978), as reprinted in 1978

U.S.C.C.A.N. 5963, 6050)).

H.R. Rep. No. 95-595, at 88 (1978), as reprinted in 1978 U.S.C.C.A.N. 5963, 6050

provides:

Bankruptcy is an area where there exists a significant potential for fraud, for self-

dealing, and for diversion of funds. In contrast to general civil litigation, where

cases affect only two or a few parties at most, bankruptcy cases may affect

hundreds of scattered and ill-represented creditors. . . . In bankruptcy cases, . . .

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Filing a petition “creates an estate [that is] comprised of . . . all legal or

equitable interests of the debtor in property as of the commencement of the case,”

regardless of where such property is located or who holds it.15 Thus, as a matter of

law, the estate—not the debtor—owns all assets the moment the debtor files his

bankruptcy petition. Additionally, an automatic stay protects all assets of the

estate, also as a matter of law, as soon as the petition is filed. 16 The stay protects

against, as relevant here, “any act to obtain possession of property of the estate or

of property from the estate or to exercise control over property of the estate.”17

A bankruptcy trustee 18 is appointed to represent the estate and guide the

bankruptcy case through the process to its conclusion.19 The trustee is an

active supervision is essential. Bankruptcy affects too many people to allow it to

proceed untended by a[n] impartial supervisor.

(footnotes omitted). As a caveat, the above language is in reference to the Bankruptcy Act of

1898, which was superseded by the Bankruptcy Act of 1978, which in turn was held

unconstitutional. See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87–88,

102 S. Ct. 2858, 2880, 73 L. Ed. 2d 598 (1982) (plurality opinion); see also Stern v. Marshall,

564 U.S. __, 131 S. Ct. 2594, 2620, 180 L. Ed. 2d 475 (2011). The sentiment still holds

generally true.

14

United States v. Dennis, 237 F.3d 1295, 1299 (11th Cir. 2001) (quotation marks

omitted).

15

11 U.S.C. § 541(a).

16

11 U.S.C. § 362.

17

Id. § 362(a)(3).

18

In a Chapter 7 bankruptcy, the trustee and the debtor are two separate individuals,

whereas in Chapter 13 proceedings, the debtor may step into the shoes of a trustee, and in this

capacity is named the “debtor in possession.” See 11 U.S.C. § 1303; Fed. R. Bankr. P. 6009. In

Chapter 7 proceedings, only the trustee has standing to pursue claims on behalf of the estate, 11

U.S.C. § 323(a); Barger v. City of Cartersville, 348 F.3d 1289, 1292 (11th Cir. 2003), whereas in

Chapter 13 proceedings, when the debtor is acting as the debtor in possession, she retains

standing to pursue claims on behalf of the estate. 11 U.S.C. § 1303; Fed. R. Bankr. P. 6009;

Crosby v. Monroe Cty., 394 F.3d 1328, 1331 n.2 (11th Cir. 2004).

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indispensable party to the bankruptcy because the bankruptcy process is complex,

is not self-executing, and requires the good faith of all involved. The trustee is a

fiduciary to the estate. 20 The Bankruptcy Court and the trustee work together

supervising the case, marshalling all of the debtor’s assets for distribution to the

creditors.

The district courts have jurisdiction over bankruptcy cases,21 though the

district courts may provide in their local rules that bankruptcy cases be referred to

the bankruptcy courts. 22 If an order of the Bankruptcy Court is appealed, the

District Court sits as an appellate court in reviewing the Bankruptcy Court’s

order. 23 The District Court is bound to a clear-error standard for the Bankruptcy

Court’s factual findings and an abuse-of-discretion standard for the Bankruptcy

Court’s discretionary decisions, such as the decision whether to reopen a case. 24

Orders resulting from the District Court’s review may then move through the

normal federal appellate process.25

I now turn to the evolution of judicial estoppel, a supposedly equitable

doctrine overlaying this intricately designed bankruptcy system, which has

19

See 11 U.S.C. § 323(a).

20

See Mosser v. Darrow, 341 U.S. 267, 271, 71 S. Ct. 680, 682, 95 L. Ed. 927 (1951).

21

28 U.S.C. § 1334.

22

Id. § 157(a).

23

Id. § 158(a).

24

Fed. R. Bankr. P. 7052; Fed. R. Bankr. P. 9014(c); Fed. R. Civ. P. 52; e.g., In re

Herman, 737 F.3d 449, 452 (7th Cir. 2013).

25

28 U.S.C. §§ 158(d)(1), 1254(1), 1291.

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managed to strip the Bankruptcy Court of its broad discretion as the “ultimate

custodian of the estate.” 26

II.

As Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d

§ 4477 observes, “[T]he number of federal appellate decisions grappling with [the

doctrine of judicial estoppel] has grown dramatically.”

The cases tend to cluster around a few salient points, leaving

uncertainty in between. Some sense of order can be found by

focusing on three major approaches. The narrowest approach

precludes inconsistent positons only on a theory akin to equitable

estoppel, requiring reliance by a party who would be injured by

permitting a change of position. A more open approach, which has

become dominant in the federal courts, looks for reliance by an

adjudicating tribunal. This approach in turn blends into a still more

open-ended approach that, by seeking to prevent a party from

“playing fast and loose” with the courts, implies distinctions between

seemly and unseemly adversary behavior. All of these approaches

must come to terms with the well-entrenched principle that modern

procedure welcomes inconsistent positions in the course of a single

litigation.27

Each of these approaches is solicitous of one or more discrete interests. The

“narrowest approach” protects a party who has relied on its adversary’s former

position from the injury it would suffer if the court allowed the adversary to

abandon its former position and pursue a contrary position. This approach also

protects the court’s integrity, which may be called into question if it issues a

26

United States v. Dennis, 237 F.3d 1295, 1299 (11th Cir. 2001) (quotation marks

omitted)

27

18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice

and Procedure: Jurisdiction § 4477 (2d ed. 2002) (emphasis added).

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decision that appears to be unjust. The “more open approach” protects the

previous court’s appearance of competence by not issuing a ruling the previous

court should have made but did not. The “still more open-ended approach”

protects the court from inconsistent pleadings that are not barred by the doctrines

of issue and claim preclusion but are disrespectful of the judicial process. This

Circuit’s doctrine best resembles the “still more open-ended approach.”28

In the remainder of Part II., I trace the evolution of judicial estoppel in this

circuit. In its first iteration, the doctrine required that the inconsistent positions at

issue be taken under oath in separate judicial proceedings. To invoke the doctrine,

a party had to show that its adversary was advancing a position in the District

Court that was inconsistent with a position it took in an earlier judicial proceeding.

28

There are two exceptions: City of Riviera Beach v. That Certain Unnamed Gray, Two-

story Vessel Approximately Fifty-seven Feet in Length, 649 F.3d 1259 (11th Cir. 2011), rev’d on

other grounds sub nom. Lozman v. City of Riviera Beach, 568 U.S. ___, 133 S. Ct. 735, 184 L.

Ed. 2d 604 (2013) and Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171 (11th Cir. 2013).

See ante at 31 n.21. The party asserting the doctrine in Riviera Beach was a party in the earlier

proceeding in which its adversary took the allegedly inconsistent position—the New Hampshire

scenario. Ante at 13. Tampa Bay Water presented a one-case scenario, in which a party took the

allegedly inconsistent positions in the same suit. See infra note 129. The doctrine of judicial

estoppel the court considered in these two cases resembled a combination of the “narrowest

approach” and the “more open approach” Wright, Miller & Cooper describe because in each

case, the court considered whether there was reliance by a party, in accordance with the

“narrowest approach,” and whether there was reliance by a court, in accordance with the “more

open approach.” Specifically, the court considered the following factors in each of the two

cases:

(1) whether there is a clear inconsistency between the earlier position and the later

position; (2) a party’s success in convincing a court of the earlier position, so that

judicial acceptance of the inconsistent later position would create the perception

that either the earlier or later court was misled; and (3) whether the inconsistent

later position would unfairly prejudice the opposing party.

Tampa Bay Water, 731 F.3d at 1182; Riviera Beach, 649 F.3d at 1273.

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The doctrine assumed that the adversary’s first position was true, and its second

position false. The District Court invoked the doctrine and estopped the adversary

from asserting the second position to protect the judicial system’s integrity.

Allowing the adversary to go forward with a false claim would be to tolerate the

perversion of the judicial process and that, obviously, would undermine the

integrity of the judicial process.

Over time, this formulation of the doctrine changed. The requirement of an

oath in both the prior proceeding and the District Court was modified to exclude

the oath in the District Court. 29 Moreover, the “prior proceeding” requirement was

also changed such that the “prior” proceeding no longer needs to come first in

time. If, for example, the adversary’s position under oath is that the claim he is

litigating in the District Court does not exist, the District Court must dismiss the

claim on the merits. That is, the doctrine assumes that the position stated under

oath is true, and that the position in the District Court is therefore false. The

District Court therefore invokes the doctrine and estops the adversary’s position to

vindicate the integrity of the prior proceeding.

29

Burnes cited both the two-oath and the one-oath requirement. Burnes, 291 F.3d at

1285. Burnes applied judicial estoppel when only one oath was present thereby making clear

that it was modifying the doctrine to only require one oath. Id. at 1286. The development in

Burnes dropping the second-oath requirement likely occurred in recognition that the Federal

Rules of Civil Procedure do not require verified pleadings.

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A. 30

The doctrine of judicial estoppel first appeared in Eleventh Circuit

precedent 31 in 1953, in Livesay Industries, Inc. v. Livesay Window Co. 32 For our

purposes, however, the doctrine expressed in Burnes and Barger sprouts from a

1973 decision, Johnson Service Co. v. Transamerica Insurance Co. 33 In Johnson

Service, the party asserting the doctrine was not a party in the prior proceeding—

the Burnes scenario. 34 Sitting in diversity and therefore bound to apply the

30

As mentioned above, a timeline and chart tracking the progress of these cases is

included in Appendix I.

31

Eleventh Circuit precedent includes the decisions of the former U.S. Court of Appeals

for the Fifth Circuit handed down prior to October 1, 1981, the effective date of the division of

the Fifth Judicial Circuit into the current Fifth Judicial Circuit and the Eleventh Judicial Circuit.

See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

32

Livesay Indus., Inc. v. Livesay Window Co., 202 F.2d 378 (5th Cir. 1953). Livesay

was a patent infringement action. The District Court held that on the basis of the judgment in

Livesay v. Drolet, 38 F. Supp. 885 (S.D. Fla. 1941), which upheld the validity of the plaintiff’s

patent, the defendant was barred “on the grounds of res adjudicata and estoppel” from contesting

the validity of the plaintiff’s patent. The Fifth Circuit affirmed, holding that the judgment in

Livesay v. Drolet estopped the defendant on the validity issue: “where one in whose favor a

judgment is rendered accepts the benefits, he is estopped from questioning the validity, of the

judgment in any subsequent litigation.” Livesay Indus., 202 F.2d at 382. After so holding, the

court added this statement about the doctrine: “[I]t ought to be, we think it is, clear that, upon

every principle of judicial estoppel, including the estoppel arising out of inconsistent positions in

legal proceedings, defendant may not, as it attempts to do here, so trifle with the judicial

process.” Id. (footnote omitted).

As the late Judge Robert M. Hill subsequently observed in USLIFE Corp. v. U.S. Life

Insurance Co.,

The law of the Fifth Circuit . . . is scant on the subject of judicial estoppel. . . . It

may be observed that in each of the cases that this Court has discovered where the

doctrine was applied, the party to be estopped was, in fact, previously successful

in its urging of its inconsistent position. However, in none of these cases did the

Fifth Circuit undertake an elaboration of the requisites for the application of

judicial estoppel.

560 F. Supp. 1302, 1305–06 (N.D. Tex. 1983) (footnote omitted).

33

Johnson Serv. Co. v. Transamerica Ins. Co., 485 F.2d 164 (5th Cir. 1973).

34

See ante 13–14.

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relevant state law, the Johnson Service Court looked to the Supreme Court of

Texas’s pronouncement in Long v. Knox, 35 which provided that

“[t]he doctrine of judicial estoppel is not strictly speaking estoppel at

all but arises from positive rules of procedure based on justice and

sound public policy. It is to be distinguished from equitable estoppel

based on inconsistency in judicial proceedings because the elements

of reliance and injury essential to equitable estoppel need not be

present. Under the doctrine of judicial estoppel . . . a party is estopped

merely by the fact of having alleged or admitted in his pleadings in a

former proceeding under oath the contrary to the assertion sought to

be made. It . . . is not necessary that the party invoking this doctrine

have been a party to the former proceeding.” 36

The Johnson Service Court then explained that,

Judicial estoppel is a technical rule designed to meet needs of broad

public policy. It is directed against those who would attempt to

manipulate the court system through the calculated assertion of

divergent sworn positions in judicial proceedings. Because the rule

looks toward cold manipulation and not an unthinking or confused

blunder, it has never been applied where plaintiff's assertions were

based on . . . inadvertence[] or mistake.37

Thus, Wright, Miller & Cooper’s “still more open-ended approach” gained its first

foothold.

Having already been applied when the party asserting judicial estoppel was

not a party to the prior proceeding, the next appearance of the doctrine involved the

35

Long v. Knox, 291 S.W.2d 292 (Tex. 1956).

36

Johnson Serv., 485 F.2d at 174 (quotation marks omitted) (citations omitted) (quoting

Long, 291 S.W.2d at 295).

37

Id. at 175 (emphasis added). The Johnson Service Court ultimately held the doctrine

inapplicable. See id. at 175.

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New Hampshire scenario 38 in which the party asserting estoppel was a party to the

prior proceeding. Like Johnson Service, American National Bank of Jacksonville

v. Federal Deposit Insurance Corp. 39 was a diversity case in which the court was

tasked with applying state law. 40 The American National Bank Court cited

Johnson Service for the proposition that “[j]udicial estoppel is applied to the

calculated assertion of divergent sworn positions.” 41 It also noted that “[t]he

doctrine is designed to prevent parties from making a mockery of justice by

inconsistent pleadings.” 42

38

Ante at 13.

39

Am. Nat’l Bank of Jacksonville v. Fed. Deposit Ins. Corp., 710 F.2d 1528 (11th Cir.

1983).

40

This court’s opinion does not indicate the state-law source of the doctrine the court

applied. The opinion cites Johnson Service’s formulation of judicial estoppel, so I assume that

the parties’ briefs cited Johnson Service for the state-law source of the doctrine. As it turned out,

the court held the doctrine inapplicable.

41

See Am. Nat’l Bank, 485 F.2d at 1536 (citing Johnson Serv., 485 F.2d at 174).

42

Id. American National Bank was this court’s initial use of the phrase “mockery of

justice” and “making a mockery of justice by inconsistent pleadings.” Id. Webster’s defines

“mockery” variously as “insulting or contemptuous action or speech: derision”; “a subject of

laughter, derision, or sport”; “a counterfeit appearance: imitation”; “something ridiculously or

imprudently unsuitable”; and “an insincere, contemptible, or impertinent imitation.” Mockery,

Webster’s Third New International Dictionary (3d ed. 1993). Under this last definition, the

usage “arbitrary methods that made a mockery of justice” is given as an example. Id.

The former Fifth Circuit had used the phrase “mockery of justice” but only in habeas

cases. Williams v. Beto, the seminal case for the phrase, expressed it in these words:

It is the general rule that relief from a final conviction on the ground of

incompetent or ineffective counsel will be granted only when the trial was a farce,

or a mockery of justice, or was shocking to the conscience of the reviewing court,

or the purported representation was only perfunctory, in bad faith, a sham, a

pretense, or without adequate opportunity for conference and preparation.

354 F.2d 698, 704–05 (5th Cir. 1965) (emphasis added) (citations omitted).

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B.

In 1988, this court, in Chrysler Credit Corp. v. Rebhan, 43 considered for the

first time whether to recognize judicial estoppel as a federal rule and thus part of

the law of the Eleventh Circuit. Chrysler Credit presented the New Hampshire

scenario and involved the application of the Bankruptcy Code. 44 The debtor,45

Rebhan, was attempting to maintain a factual position under oath in an adversary

proceeding initiated by Chrysler Credit that was directly contrary to the factual

position he had pursued under oath against Chrysler Credit in a state court.46

Chrysler Credit objected, arguing that judicial estoppel barred Rebhan’s position.

43

Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257 (11th Cir. 1988), abrogated on other

grounds by Grogan v. Garner, 498 U.S. 279, 111 S. Ct. 654, 112 L. Ed. 2d 755 (1991).

44

The issue was whether a debt was dischargeable under 11 U.S.C. §§ 523(a)(4) and (6).

See Chrysler Credit, 842 F.2d at 1258.

45

For consistency, brevity, and clarity, I use the terms “debtor,” “trustee,” and

“defendant” to the extent practicable. The “debtor” is, of course, the debtor in bankruptcy. The

“trustee” is the appointed trustee in the bankruptcy proceeding. The “defendant” is the party

against which the debtor or trustee is asserting a claim in District Court. This claim is typically

the claim that has not been listed as an asset in the bankruptcy proceeding.

46

Chrysler Credit sued Rebhan in a North Carolina court, and Rebhan counterclaimed,

asserting a position contrary to the position he was advancing in the Bankruptcy Court. Unlike

the situation in New Hampshire, where New Hampshire prevailed against Maine in the prior

proceeding and Maine pled judicial estoppel as a defense in the second proceeding, Rebhan did

not prevail in the prior proceeding on his counterclaim against Chrysler Credit. The Bankruptcy

Court applied the doctrine merely because Rebhan made inconsistent statements under oath in

each of the two proceedings. In re Rebhan, 45 B.R. 609, 612 (Bankr. S.D. Fla. 1985). In doing

so, the Bankruptcy Court, and this court on appeal, effectively reiterated what the Johnson

Service Court, referring to Texas common law, had said: “[Judicial estoppel] is to be

distinguished from equitable estoppel based on inconsistency in judicial proceedings because the

elements of reliance and injury essential to equitable estoppel need not be present.” Johnson

Serv., 485 F.2d at 174. In brief, Rebhan was estopped solely because the position he was

asserting under oath in the Bankruptcy Court was contrary to the position he had previously

asserted before the North Carolina court.

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The Bankruptcy Court agreed, the District Court affirmed, and Rebhan appealed to

this court. In that this court was “not bound . . . to apply any rigid formulation of

the doctrine,” having previously applied judicial estoppel only as state law, it

looked to “common law or to the policies supporting the doctrine itself for

guidance,” and specifically to the Texas law that had informed the Johnson Service

Court’s decision.47 Importantly, the court commented on the purpose of judicial

estoppel. It found that the doctrine’s purpose was to prevent parties from

“attempt[ing] to manipulate the court system through the calculated assertion of

divergent sworn positions in judicial proceedings,” 48 and affirmed the lower

courts’ rejection of Rebhan’s position because he was attempting to manipulate the

Bankruptcy Court’s decision. 49

Three years later, this court once again applied the doctrine of judicial

estoppel as federal law in a case presenting the New Hampshire scenario. In

McKinnon v. Blue Cross & Blue Shield of Alabama, 50 we adopted the state-law

47

Chrysler Credit, 842 F.2d at 1261.

48

Id. (quoting Johnson Serv., 485 F.2d at 174 (quotation marks omitted)). The same

language the court took from Johnson Service appears in the American National Bank opinion,

which the Chrysler Credit opinion does not cite.

49

The Chrysler Credit opinion does not mention the Johnson Service opinion’s

statement that “[b]ecause [judicial estoppel] looks toward cold manipulation and not an

unthinking or confused blunder, it has never been applied where plaintiff’s assertions were based

on fraud, inadvertence, or mistake.” See Johnson Serv., 485 F.2d at 175. A statement by this

court to the effect that judicial estoppel does not apply where the plaintiff’s position in the prior

proceeding was inadvertent or mistaken next appeared in Burnes, 291 F.3d at 1286–87.

50

McKinnon v. Blue Cross & Blue Shield of Ala., 935 F.2d 1187 (11th Cir. 1999). The

lawsuit was a private cause of action brought under 29 U.S.C. § 1132 for an alleged violation of

47

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formulation articulated in American National Bank: “Judicial estoppel is applied

to the calculated assertion of divergent sworn positions. The doctrine is designed

to prevent parties from making a mockery of justice by inconsistent pleadings” 51

(collectively the “divergent-sworn-positions-and-mockery-of-justice rule”). 52 The

divergent-sworn-positions requirement had previously been adopted into federal

law through Chrysler Credit, and McKinnon added the “mockery of justice”

language to federal law. This divergent-sworn-positions-and-mockery-of-justice

rule was then applied verbatim in Talavera v. School Board of Palm Beach

County53 and Taylor v. Food World, Inc. 54

29 U.S.C. § 1140, the anti-retaliation provision of the Employee Retirement Income Security Act

of 1974, 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq. McKinnon, 935 F.2d at 1189–90.

51

Id. at 1192 (quotation marks omitted) (quoting Am. Nat’l Bank, 710 F.2d at 1536).

The McKinnon opinion does not cite Chrysler Credit, which had adopted judicial estoppel as

federal law and constituted precedent that bound the McKinnon Court. But McKinnon, in citing

American National Bank, repeated the Chrysler Credit expression that judicial estoppel is

applied to “the calculated assertion of divergent sworn positions.” Id. McKinnon added a gloss

to that Chrysler Credit expression, a gloss that, in my view, Chrysler Credit precedent did not

foreclose: “The doctrine is designed to prevent parties from making a mockery of justice by

inconsistent pleadings.” Id. (quotation marks omitted) (quoting Am. Nat’l Bank,710 F.2d at

1536). This “gloss” came from the state-law decision American National Bank, and McKinnon

adopted it into federal law.

52

The doctrine of judicial estoppel had no bearing on the McKinnon decision because

McKinnon failed to establish that the position Blue Cross and Blue Shield of Alabama was

asserting was inconsistent with a position it had asserted in a prior proceeding. Id. at 1192–93.

53

Talavera v. Sch. Bd. of Palm Beach Cty., 129 F.3d 1214 (11th Cir. 1997). Talavera

presented a Burnes scenario. Talavera, a secretary working for the School Board of Palm Beach

County, became unable to perform her job, and her one-year renewable contract was not

renewed. Id. at 1215. Claiming that she was totally disabled, she applied for and received

disability benefits from the Social Security Administration (“SSA”), then sued the School Board

under the Americans with Disability Act (“ADA”), alleging that the Board had violated her

rights under the ADA by failing to accommodate her disability and refusing to renew her

contract because of it. Id. at 1216.

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In Salomon Smith Barney, Inc. v. Harvey, 55 a diversity case, the court looked

to federal law instead of state law for the elements of judicial estoppel.56 After

The District Court granted the School Board summary judgment on the ground that

Talavera was “judicially estopped from claiming she was a ‘qualified’ individual with a

disability under the ADA, having certified to the SSA that she was totally disabled.” Id.

Applying the divergent-sworn-positions-and-mockery-of-justice rule, we reversed the District

Court’s judgment and remanded the case for further proceedings because the statements Talavera

made in support of her SSA application “d[id] not rule out the possibility that she could perform

the essential functions of her job with reasonable accommodation.” Id. at 1221.

We said, in the words of McKinnon, “Judicial estoppel ‘is applied to the calculated

assertion of divergent sworn positions. The doctrine is designed to prevent parties from making a

mockery of justice by inconsistent pleadings.’” Talavera, 129 F.3d at 1217 (quoting McKinnon,

935 F.2d at 1192).

54

Taylor v. Food World, Inc., 133 F.3d 1419 (11th Cir. 1998). Taylor presented a Burnes

scenario with facts similar to those in Talavera. The case involved statements by Gary Taylor’s

guardian, Patricia Taylor, made in an ADA lawsuit that were allegedly inconsistent with

statements she had previously made in the application she submitted on Gary’s behalf to the SSA

for disability benefits. Id. at 1421. After referring to the Talavera decision, in which “this court

addressed the issue of whether a plaintiff who applies for and receives disability benefits is per

se judicially estopped from later bringing a claim under the ADA,” id. at 1423 (citing Talavera,

129 F.3d at 1214), we said:

[T]his court determined that a certification of total disability on a disability

benefits application is not inherently inconsistent with being ‘qualified’ under the

ADA. This court reasoned that the SSA, in determining whether an individual is

entitled to disability benefits, does not take account of the effect of reasonable

accommodation on an individual's ability to work. Accordingly, the determination

of whether an individual who has certified total disability to the SSA is judicially

estopped from later bringing a claim under the ADA will depend upon the

specific statements made in the application and other relevant evidence in the

record.

Id. (citations omitted). On the record before us, we found that the statements Gary Taylor

made in the application to the SSA did not rule out the possibility that he was a

“‘qualified’ individual . . . who can perform [his] job ‘with or without accommodation.’”

Id. at 1425.

The court quoted McKinnon in describing the doctrine: “Judicial estoppel ‘is

applied to the calculated assertion of divergent sworn positions ... [and] is designed to

prevent parties from making a mockery of justice by inconsistent pleadings.’” Id. at 1422

(alteration in original) (quoting McKinnon, 935 F.2d at 1192).

55

Salomon Smith Barney, Inc. v. Harvey, 260 F.3d 1302 (11th Cir. 2001), vacated on

other grounds, 537 U.S. 1085, 123 S. Ct. 718, 154 L. Ed. 2d 629 (2002). Salomon, like Chrysler

Credit and McKinnon, presented a New Hampshire scenario.

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quoting the federal divergent-sworn-positions-and-mockery-of-justice rule the

court explained what the party asserting judicial estoppel must establish in order to

prevail. “This circuit’s approach contemplates two elements. First, it must be

shown that the allegedly inconsistent positions were made under oath in a prior

proceeding. Second, such inconsistencies must be shown to have been calculated

to make a mockery of the judicial system” 57 (collectively the “two-element

statement”).58

56

In diversity cases, judicial estoppel is governed by state law under the Erie doctrine.

See, e.g., Original Appalachian Artworks, Inc. v. S. Diamond Assocs., Inc., 44 F.3d 925, 930

(11th Cir. 1995) (per curiam) (citing Chrysler Credit, 842 F.2d at 1261). The Salomon Court

therefore erred by looking to the federal divergent-sworn-positions-and-mockery-of-justice rule

rather than the relevant judicial-estoppel rule under the applicable state law.

57

Salomon, 260 F.3d at 1308. (emphasis added). The Salomon opinion cites three cases

in support of the quoted statement. See id. (citing McKinnon, 935 F.2d at 1192; Taylor, 133 F.3d

at 1422; Johnson Serv., 485 F.2d at 174–75). McKinnon includes a statement—judicial estoppel

is “designed to prevent parties from making a mockery of justice by inconsistent pleadings,”

McKinnon, 935 F.2d at 1192— relating to the second element espoused by the Salomon Court,

without affirmatively requiring proof that the inconsistencies be calculated to make a mockery of

the judicial system. As to the second element, McKinnon contains a statement mandating an

assertion of “divergent sworn positions,” rather than inconsistent positions made under oath in a

prior proceeding. Id. Taylor contains no statement resembling the quoted statement. The

Johnson Service citation refers to the requirement that the first of the divergent positions must be

made under oath in a prior proceeding, but does not mention the second element:

Long v. Knox specifically applies the estoppel only in the event that pleadings

have been made under oath in a prior proceeding. The December 16 letter [which

contained the prior inconsistent statement], however, was not included in

plaintiff's pleadings in the state court suit. Moreover, the original petition filed in

state court was not made under oath, nor was it required to be by the Texas Rules

of Civil Procedure..

Johnson Serv., 485 F.2d at 175 (footnote omitted). Johnson Service also says that there must be

“divergent sworn positions.” Id. It does not describe the second of the divergent sworn

positions, which is the statement that triggers application of judicial estoppel. See id.

58

Salomon is the first of the then-newly established Eleventh Circuit’s judicial-estoppel

decisions to use the term “a prior proceeding” in articulating the burden of proof a party asserting

judicial estoppel assumes. The party invoking the doctrine, Harvey, argued that the position

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Although the Salomon Court was applying a state-law formulation of

judicial estoppel, in referring to “[t]his circuit’s approach” the court created the

impression that it was dealing with the doctrine as a federal, not a state, rule. This

made the Court’s quotation of the divergent-sworn-positions-and-mockery-of-

justice rule problematic. The question was whether the juxtaposition of the

divergent-sworn-positions-and-mockery-of-justice rule’s description of

“inconsistent pleadings” as “divergent sworn positions” with the two-element

statement that the “inconsistent positions [must be] made under oath in a prior

proceeding” merely reinforced the divergent-sworn-positions-and-mockery-of-

justice rule’s requirement that the first, as well as the second, of the “divergent

sworn positions” be under oath, or instead whether it meant that only the first of

the divergent positions needed to be under oath.

Without elaboration, the Burnes and Barger Courts would subsequently

conclude, by implication and in the context here, that the two-element statement

amounted to a proper interpretation of the divergent-sworn-positions-and-mockery-

Salomon Smith Barney had taken in the Florida District Court of Appeal during an earlier

proceeding was inconsistent with the position it was asserting in the District Court and therefore

should be estopped. Salomon, 260 F.3d at 1308; ante at 21, n.17. Salomon presumably cites the

former Fifth Circuit’s opinion in Johnson Service for the “prior proceeding” language. Id.

Johnson Service also used an apparently equivalent term, “a former proceeding,” in explaining

that “[u]nder the doctrine of judicial estoppel . . . a party is estopped merely by the fact of having

alleged or admitted in his pleadings in a former proceeding under oath the contrary to the

assertion sought to be made.” Johnson Serv., 485 F.2d at 174 (emphasis added) (quotation

marks omitted).

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of-justice rule that only the position taken in “a prior proceeding” needed to be

under oath.59 Moreover, the “prior” proceeding could actually be a subsequent

proceeding. 60 In Burnes, the first proceeding was the lawsuit the debtor filed in the

59

In Burnes and Barger, the “prior proceeding” is the proceeding in which the debtor

made the false statement under oath that triggered the application of judicial estoppel (after the

debtor was caught). As indicated in the following text, that proceeding could be a proceeding

that, despite its label, occurs later in time. My use of the term “a prior proceeding” throughout

this special concurrence should be read as incorporating this use of the term and as referring to

another proceeding.

60

For example, in Barger, the debtor brought the District Court action first, then filed a

Chapter 7 petition in the Bankruptcy Court. Barger, 348 F.3d at 1291. The proceeding in which

the debtor made the false sworn statement that triggered the application of judicial estoppel, that

is, her failure to amend her schedules to disclose the District Court litigation, was the Chapter 7

case, the so-called “prior proceeding.” See id. In Burnes, the debtor petitioned the Bankruptcy

Court for Chapter 13 relief first, then brought suit in the District Court. Burnes, 291 F.3d at

1284. The proceeding in which the debtor made the false sworn statement that triggered the

application of judicial estoppel—that is, his failure to list the District Court litigation in

amending his schedules pursuant to an order the Bankruptcy Court issued when it converted his

Chapter 13 case to a Chapter 7 case—was the Chapter 7 case. See id. In this case, Slater

brought suit in the District Court first, then 21 months later filed a Chapter 7 petition in the

Bankruptcy Court. The false statement that triggered the application of judicial estoppel

occurred in the Bankruptcy Court, in the “prior proceeding,” when she failed to list the lawsuit at

the time she filed her Chapter 7 petition.

Under Burnes and Barger, it is always the case that judicial estoppel is triggered in a

situation where the debtor files for bankruptcy, omits to list an actionable claim as an asset either

in his initial bankruptcy filings (if the claim is then cognizable) or in an amendment to the filings

(when the claim becomes cognizable or he sues on the claim in the District Court), and his

adversary discovers the omission. If, as is the situation here, the debtor pursues the claim in the

District Court before filing for bankruptcy, the application of judicial estoppel depends on when

he lists the lawsuit in his bankruptcy filings. If he lists the lawsuit in conjunction with the filing

of his petition, the doctrine does not apply. If he lists the lawsuit after his adversary discovers

that it has not been listed, the doctrine applies.

In United States v. Campa, 459 F.3d 1121 (11th Cir. 2006) (en banc), a criminal

prosecution, one of the defendants’ arguments was that “the government’s subsequent legal

position in the Ramirez case constituted prosecutorial misconduct that warrant[ed] a new trial.”

Id. at 1152 (emphasis added). We thought the argument was essentially a claim of judicial

estoppel and said this, citing Burnes:

Judicial estoppel bars a party from asserting a position in a legal proceeding that

is inconsistent with its position in a previous, related proceeding. It “is designed

to prevent parties from making a mockery of justice by inconsistent pleadings.”

Courts consider two factors in determining whether to apply the doctrine: whether

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District Court; the second proceeding was the debtor’s Chapter 7 case. Similarly,

in Barger, the first proceeding was the District Court action; the second proceeding

was the Chapter 7 case. In both situations, the second proceeding became the

“prior proceeding” because it was the only proceeding in which the debtor asserted

the positon under oath that triggered the application of judicial estoppel. The

debtor’s position in the District Court was not asserted under oath because verified

pleadings are no longer required by the Federal Rules of Civil Procedure. 61 The

the “allegedly inconsistent positions were made under oath in a prior proceeding”

and whether such inconsistencies were “calculated to make a mockery of the

judicial system.”

Campa, 459 F.3d at 1152 (footnotes omitted) (quoting Burnes, 291 F.3d at 1285). We then held

that judicial estoppel was inapplicable

because Ramirez was not a related proceeding, but rather an employment

discrimination lawsuit. Moreover, the position that the government took in

Ramirez occurred subsequent to—not before—its position in this case. The

government filed its motion for change of venue in Ramirez on June 25, 2002,

more than one year after the defendants were convicted. Therefore, the

defendants' argument that the government should have been estopped from

opposing its change of venue motions in a prior proceeding is chronologically

unsound, and the court did not abuse its discretion in denying the defendants’

motion for new trial based on newly discovered evidence.

Id. (emphasis added) (footnotes omitted). The fact that Burnes and Barger, which the

court did not cite, treated a subsequent proceeding as “a prior proceeding”—because the

subsequent proceeding was the only proceeding in which a position was taken under oath—was

not mentioned. Given the court’s silence on the point and the Supreme Court’s statements in

New Hampshire that “Courts have observed that ‘[t]he circumstances under which judicial

estoppel may appropriately be invoked are probably not reducible to any general formulation of

principle,’” and that it was “not establish[ing] inflexible prerequisites or an exhaustive formula

for determining the applicability of judicial estoppel,” New Hampshire, 532 U.S. at 750–51, 121

S. Ct. at 1815 (alteration in original) (quoting Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th

Cir. 1982)), I do not view Campa as having overruled by implication any aspect of the holdings

of Burnes or Barger. Rather Campa confirms that the Burnes–Barger formulation of judicial

estoppel extends beyond the bankruptcy context.

61

In fact, the Burnes and Barger opinions contain not a word about the inconsistent

position stated by the debtor under oath in the District Court.

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divergent-sworn-positions-and-mockery-of-justice rule’s “divergent sworn

positions” element thus fell by the wayside. 62

C.

1.

Judicial estoppel’s next doctrinal development, in Burnes, occurred when

this court changed its focus from protecting the integrity of the judicial system to

punishing debtors who do not fully disclose their assets. Because Burnes followed

directly on the heels of the Supreme Court’s decision in New Hampshire v.

Maine,63 the court first had to consider that case’s impact on the Circuit’s own

precedent. In New Hampshire, the Supreme Court identified three factors that

guided its judicial-estoppel analysis—the degree to which the two statements at

issue were inconsistent; whether a judicial tribunal accepted the earlier position so

that it would appear, if a later court adopts a contrary position, that either court had

been misled; and whether the party advancing the inconsistent position would

62

In effectively eliminating the divergent-sworn-positions-and-mockery-of-justice rule’s

requirement of “divergent sworn positions,” Burnes expanded judicial estoppel’s reach far

beyond that contemplated by this court when, in Chrysler Credit and McKinnon, it incorporated

the doctrine (as articulated in American National Bank) into the law of the Eleventh Circuit for

application in cases presenting the New Hampshire scenario and then, in Talavera and Taylor,

for application in cases presenting the Burnes scenario. Absent the divergent-sworn-positions

requirement endorsed in those decisions, a plaintiff could file suit in the District Court and

litigate the case to final judgment on a claim the existence of which the plaintiff denied under

oath in a “prior proceeding.” The District Court’s entertainment of such a claim would not result

in a mockery of justice for two reasons. First, Rule 8(d)(3) of the Federal Rules of Civil

Procedure permits the pleading of inconsistent claims (and defenses). Second, the plaintiff’s

adversary would impeach him with his prior inconsistent sworn statement. See infra notes 161–

163 and accompanying text.

63

New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001).

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derive an “unfair advantage or impose an unfair detriment on the opposing party if

not estopped”64—but went on to conclude that these factors were not “inflexible

prerequisites or an exhaustive formula for determining the applicability of judicial

estoppel.”65 Against this uncertain backdrop, the Burnes Court recited verbatim

the divergent-sworn-positions-and-mockery-of-justice rule 66 and followed it with

the two-element statement:

In the Eleventh Circuit, courts consider two factors in the application

of judicial estoppel to a particular case. “First, it must be shown that

the allegedly inconsistent positions were made under oath in a prior

proceeding. Second, such inconsistencies must be shown to have

been calculated to make a mockery of the judicial system.” 67

The court then considered whether basing the application of judicial estoppel on

these two factors would comport with the Supreme Court’s “instructions” in New

Hampshire, and concluded that the two factors “provide courts with sufficient

flexibility in determining the applicability of the doctrine of judicial estoppel based

on the facts of a particular case.”68

Addressing the first factor, the Burnes Court focused solely on the

debtor’s position before the Bankruptcy Court,69 stating that there was “no

64

See id. at 750–51, 121 S. Ct. at 1815.

65

Id. at 751, 121 S. Ct. at 1815.

66

See Burnes, 291 F.3d at 1285.

67

Id. (citation omitted) (quoting Salomon, 260 F.3d at 1308).

68

Id. at 1285–86.

69

The court made no mention of the position the debtor took under oath in the District

Court. The fact that the debtor brought suit on a claim he did not disclose to the Bankruptcy

Court apparently constituted a “position” that rendered inconsistent the “position” the debtor

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debate that [the debtor’s] financial disclosure forms were submitted under

oath to the bankruptcy court; therefore, the issue bec[ame] one of intent.” 70

That is, were the inconsistent positions the debtor had taken “calculated to

make a mockery of the judicial system”? Specifically, when he amended his

bankruptcy schedules pursuant to the Bankruptcy Court’s order but failed to

disclose his Title VII claim and the lawsuit against his employer, was the

nondisclosure inadvertent or mistaken?

Appearing to equate the phrase “calculated to make a mockery of the

judicial system” with the phrase “intentional manipulation” of the system, the court

observed that “several circuits, in considering the particular issue of judicial

estoppel and the omission of assets in a bankruptcy case, have concluded that

deliberate or intentional manipulation can be inferred from the record.” 71 Then,

citing decisions of other circuits, the court reasoned that whether an intent to

manipulate the system can be inferred turns on whether the debtor, at the time he

breached the duty to disclose the claim, either lacked knowledge of the claim or

took under oath in the Bankruptcy Court and thus established the first element of the two-

element statement. Id. at 1286.

70

Id. Implicit in the court’s statement was the notion that the debtor’s failure to

disclose the lawsuit against his employer in amending the schedules in his Chapter 7 case

was the functional equivalent of a false statement under oath that the claim did not exist.

See ante at 23 & n.18.

71

Burnes, 291 F.3d at 1287.

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had no motive for concealing it. 72 If the debtor knew of the claim or had a motive

for concealing it, the failure to disclose the claim could not have been inadvertent

or a mistake. 73

The court concluded that the record before it contained “sufficient evidence

from which to infer intentional manipulation by [the debtor]” 74 as a matter of law,

and thus affirmed the District Court’s grant of summary judgment to the defendant.

The debtor obviously knew about the Title VII litigation pending against the

72

Id. The Burnes Court cited, among other cases, PaylessWholesale Distribs. Inc. v.

Alberto Culver (P.R.), Inc., 989 F.2d 570 (1st Cir. 1993), which the court characterized as

“holding that judicial estoppel barred a former debtor from asserting racketeering, antitrust and

fraud claims because the debtor intentionally failed to disclose the claims in a prior bankruptcy

proceeding, even though [the debtor] knew about the claims and had the motive to conceal

them.” Burnes, 291 F.3d at 1287. The Burnes Court also turned its focus to Oneida Motor

Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 417–18 (3d Cir. 1988), in which the Third

Circuit held, “Oneida had knowledge of its claim when it completed the schedule of assets in the

bankruptcy, and . . . it also had the motive to conceal the claims because creditors may have

voted against the reorganization had they known about the potential offset.” Burnes, 291 F.3d at

1287.

Judicial estoppel is triggered when the debtor breaches the duty of disclosure (and his

adversary in the district-court action discovers the breach). The time of the breach is critical.

See ante at 23 & n.18; see also Love v. Tyson Foods, Inc., 677 F.3d 258, 262 (5th Cir. 2012)

(observing that “whether Love had a financial motive to conceal his claims against Tyson at the

time Love failed to meet his disclosure obligations . . . is the relevant time frame for the judicial

estoppel analysis.”); Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1276 (11th Cir. 2010)

(“When reviewing potential motive, the relevant inquiry is intent at the time of non-disclosure.”

(emphasis added)).

73

Burnes, 291 F.3d at 1287 (“‘[T]he debtor’s failure to satisfy its statutory disclosure

duty is “inadvertent” only when, in general, the debtor either lacks knowledge or the undisclosed

claims or has no motive for their concealment.’” (quoting In re Coastal Plains, Inc., 179 F.3d

197, 210 (5th Cir. 1999))).

74

Id. The court does not identify the “judicial system”—whether the Bankruptcy Court

or the District Court—the debtor intended to manipulate. See infra note 153. I suggest that it

was the Bankruptcy Court’s because the intent to manipulate occurred at the moment the debtor

amended his bankruptcy schedules but omitted to disclose his Title VII claim and the litigation

against his employer.

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defendant when he amended his schedule of assets but failed to disclose the

litigation, and he had a motive for concealing it:

As to motive, it is undisputed that [the debtor] stood to gain an

advantage by concealing the claims from the bankruptcy court. It is

unlikely he would have received the benefit of a conversion to

Chapter 7 followed by a no asset, complete discharge had his

creditors, the trustee, or the bankruptcy court known of a lawsuit

claiming millions of dollars in damages.75

That the debtor’s failure to disclose the claim could be remedied if his

Chapter 7 case were reopened was, in the court’s view, irrelevant because

[t]he success of our bankruptcy laws requires a debtor’s full and

honest disclosure. Allowing [the debtor] to back-up, re-open the

bankruptcy case, and amend his bankruptcy filings, only after his

omission has been challenged by an adversary, suggests that a debtor

should consider disclosing potential assets only if he is caught

concealing them. This so-called remedy would only diminish the

necessary incentive to provide the bankruptcy court with a truthful

disclosure of the debtors’ assets.76

Shifting the focus of the judicial-estoppel inquiry from preserving the integrity of

the judicial system to punishing the debtor for failing to fully disclose his assets,

the Burnes Court set the stage for the doctrine’s final extension in Barger.

75

Burnes, 291 F.3d at 1288.

76

Id.

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2.

a.

Barger v. City of Cartersville77 further weakened the intent requirement by

reinforcing Burnes’s conclusion that it would diminish debtors’ “necessary

incentive to provide the bankruptcy court with a truthful disclosure of the debtors’

assets” if a noncompliant debtor were “allow[ed] to back up, re-open the

bankruptcy case, and amend his bankruptcy filings, only after his omission has

been challenged by an adversary.” 78 In Barger, the debtor, Donna Barger, sued the

City of Cartersville after a demotion, seeking reinstatement. 79 Shortly thereafter,

she also sought Chapter 7 bankruptcy relief. 80 While her bankruptcy estate was

being administered, she amended her complaint against the City to seek

compensatory and punitive damages in addition to reinstatement. 81 Because she

was now seeking damages, she was required to amend her bankruptcy filings but

failed to do so. 82

77

Barger v. City of Cartersville, 348 F.3d 1289 (11th Cir. 2003).

78

Id. at 1297 (quoting Burnes, 291 F.3d at 1288).

79

Id. at 1291.

80

Id.

81

Id.

82

Id. In Burnes, the court held that the debtor’s “undisclosed claim for injunctive relief

offered nothing of value to the estate and was of no consequence to the trustee or the creditors.”

Burnes, 291 F.3d at 1289 (emphasis added). Thus, the debtor’s failure to schedule that claim did

not constitute a breach of the disclosure requirements of 11 U.S.C. § 521(a)(1)(B)(i) and (iii),

and Rule 1007 of the Federal Rules of Bankruptcy Procedure. See infra notes 171–175 and

accompanying text. Relying on Burnes, the Barger Court came to the same conclusion regarding

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When the City discovered this it moved the District Court for summary

judgment based on judicial estoppel, and the bankruptcy trustee intervened.83 The

debtor responded by moving the Bankruptcy Court to reopen her case 84 so she

could disclose the litigation.85 Although the City objected to reopening the case86

the court exercised its discretion and granted Barger’s motion.87

“Barger's claim for injunctive relief (i.e. her request for reinstatement).” See Barger, 348 F.3d at

1297.

83

Without elaboration, this court attributed to the trustee the debtor’s conduct in

concealing her claims against the City and the pending District Court litigation even though “it

seem[ed] clear that Barger [had] deceived the trustee.” Barger, 348 F.3d at 1296.

Barger did not tell the trustee that she was . . . seeking . . . liquidated damages,

compensatory damages, and punitive damages. She did not inform the trustee

about these additional damages even though she added them to her prayer for

relief [in the District Court litigation] a mere two days before the creditors

meeting [conducted by the trustee].

Id.

84

There appears to be an additional wrinkle not dealt with by the courts in the Barger

litigation that is worth mentioning. It relates to the automatic stay created by 11 U.S.C. § 362.

Section 362 provides, in pertinent part, that the filing of a voluntary petition for bankruptcy relief

“operates as a stay . . . of any act to obtain possession of property of the estate or of property

from the estate or to exercise control over property of the estate,” 11 U.S.C. § 362(a)(3), and that

“the stay of an act against property of the estate . . . continues until such property is no longer

property of the estate,” id. § 362(c)(1).

When the City opposed the debtor’s, Barger’s, motion to reopen her Chapter 7 case on

the ground that the trustee would be estopped to pursue the claims that she had been litigating in

the District Court, the City was engaging in an “act to obtain possession of property of the

estate.” That act was a nullity. See United States v. White, 466 F.3d 1241, 1244 (11th Cir. 2006)

(“It is the law of this Circuit that ‘[a]ctions taken in violation of the automatic stay are void and

without effect.’” (quoting Borg–Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th

Cir. 1982)). In the same vein, if the City initiated an adversary proceeding in the Chapter 7 case

to obtain a declaration that the claims at issue belonged to the City via the operation of judicial

estoppel, that proceeding would be a nullity as well.

85

In re Barger, 279 B.R. 900, 901 (Bankr. N.D. Ga. 2002). Rule 5010 of the Federal

Rules of Bankruptcy Procedure, which governs reopenings, provides:

A case may be reopened on motion of the debtor or other party in interest

pursuant to §350(b) of the Code. In a chapter 7, 12, or 13 case a trustee shall not

be appointed by the United States trustee unless the court determines that a trustee

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As indicated in the order, the court first decided that it had the authority to

reopen the Chapter 7 case.88 Under 11 U.S.C. § 350(b), the case could be

“reopened . . . to administer assets, to accord relief to the debtor, or for other

cause.”89 The claims against the City, which became assets of the debtor’s estate

on the filing of the Chapter 7 petition but were not scheduled, remained assets of

the estate after the case closed since the claims had not been abandoned by the

trustee90 or otherwise administered. “It would ordinarily follow,” the court

is necessary to protect the interests of creditors and the debtor or to insure

efficient administration of the case.

Fed. R. Bankr. P. 5010.

The Bankruptcy Court “has broad discretion to reopen to permit administration of

assets.” 9 Collier on Bankruptcy, ¶ 5010.01 (Alan N. Resnick & Henry J. Sommer eds., 16th

ed.); In re Faden, 96 F.3d 792, 796 (5th Cir. 1996); In re Bianucci, 4 F.3d 526, 528 (7th Cir.

1993); see also In re Upshur, 317 B.R. 446, 451 (Bankr. N.D. Ga. 2004) (“Although a motion to

reopen is addressed to the sound discretion of the bankruptcy court, the court in fact has a duty to

reopen the estate whenever there is proof that it has not been fully administered. The proper

focus is on the benefit to the creditors, so that if the action has any value, the case should be

reopened.”).

If the Bankruptcy Court granted the debtor’s motion to reopen, the debtor could amend

her schedules as a matter of right under Rule 1009 of the Federal Rules of Bankruptcy

Procedure, “Amendments of Voluntary Petitions, Lists, Schedules and Statements.” Rule 1009,

“General Right to Amend,” states, in pertinent part: “A voluntary petition, list, schedule, or

statement may be amended by the debtor as a matter of course at any time before the case is

closed. The debtor shall give notice of the amendment to the trustee and to any entity affected

thereby.” Fed. R. Bankr. P. 1009(a).

86

The City had standing to object to the debtor’s motion to reopen. In re Lewis, 273

B.R. 739, 749 (Bankr. N.D. Ga. 2001).

87

In re Barger, 279 B.R. at 909.

88

Id.

89

11 U.S.C. § 350(b).

90

In re Barger, 279 B.R. at 905. “Abandonment of property of the estate,” 11 U.S.C.

§ 554, states, in pertinent part:

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concluded, “that the case should be reopened to administer the claim[s] for the

benefit of creditors.”91 The Bankruptcy Court did, however, address the question

of whether the doctrine of judicial estoppel, as applied in Burnes, should foreclose

Barger’s motion. In the court’s mind, the question turned on whether the debtor, in

failing to amend her schedules, “operate[d] with an intentional or manipulative

disregard of the legal system or the bankruptcy processes in this Court.”92 The

court found that she had not.

She truthfully and voluntarily disclosed the existence of the Litigation

to the Trustee, the person responsible for pursuing it, whether or not it

had been scheduled. Her counsel’s failure to amend her schedules

could not, and did not, gain any advantage for her and, indeed, that

failure was actually adverse to her interests. Her counsel has admitted

that this failure was inadvertent oversight and there is nothing in the

record or this Court’s experience that would indicate otherwise.

(a) After notice and a hearing, the trustee may abandon any property of the estate

that is burdensome to the estate or that is of inconsequential value and benefit to

the estate.

....

(c) Unless the court orders otherwise, any property scheduled under section

521(a)(1) of this title not otherwise administered at the time of the closing of a

case is abandoned to the debtor and administered for purposes of section 350 of

this title.

(d) Unless the court orders otherwise, property of the estate that is not abandoned

under this section and that is not administered in the case remains property of the

estate.

11 U.S.C. § 554. “[P]roperly scheduled assets that are not administered at the time the case is

closed are deemed abandoned.” 3 Collier on Bankruptcy, ¶ 350.03 (emphasis added). While the

Chapter 7 case was ongoing, the trustee was unaware of the claims against the City and, thus,

could not have abandoned them.

91

In re Barger, 279 at 904. The court added that “[w]hether that administration would

also benefit [the debtor] remains to be seen. . . . Unless [the debtor] is entitled to exempt the

claim, creditors will receive the benefit of any recovery, after payment of fees and expenses [of

the litigation], under the distributive provisions of 11 U.S.C. § 726.” Id.

92

Id. at 908.

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The Federal Rules of Bankruptcy Procedure are to be construed ‘‘to

secure the just, speedy, and inexpensive determination of every case

and proceeding.’’ FED. R. BANKR. P. 1001. It would not serve the

objectives of those Rules to hold that, in these circumstances,

Debtor’s failure to amend schedules to list a claim that had been

voluntarily disclosed to the Chapter 7 Trustee at the § 341(a) meeting

of creditors should preclude reopening of the case to correct that

failure. To the contrary, because the voluntary disclosure to the trustee

served the same substantive purpose as an amendment, because

Debtor did not and could not benefit by the failure to amend, and

because the failure is due to inadvertence, the just determination of

this case requires reopening so that the claim can be administered. 93

Assuming, however, that the debtor was at fault for failing to amend her schedules,

the court noted that the bankruptcy law provided “punishments other than judicial

estoppel that can be directed at a debtor, rather than the estate and creditors,” to

deter debtors from concealing their assets, including sanctions under Rule 9011 of

the Federal Rules of Bankruptcy Procedure, 94 revocation of the discharge,95 or

93

Id.

94

If a debtor were to make a false statement in his schedule of assets, Rule 9011 of the

Federal Rules of Bankruptcy Procedure provides authority for the Bankruptcy Court to sanction

him. Fed. R. Bankr. P. 9011. Rule 9011(b) provides that “[b]y presenting to the court (whether

by signing, filing, submitting, or later advocating) a petition, pleading, written motion, or other

paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge,

information, and belief” that “the allegations and other factual contentions have evidentiary

support” and that “the denials of factual contentions are warranted on the evidence or, if so

identified, are reasonably based on a lack of information or belief.” Fed. R. Bankr. P. 9011(b).

If a party violates Rule 9011(b) by filing a schedule denying that he has any claims when he

does, in fact, have claims such that that statement is a “denial . . . [not] warranted on the

evidence,” then “the court may . . . impose an appropriate sanction” on the debtor. Fed. R.

Bankr. P. 9011(c).

95

Under 11 U.S.C. § 727, “Discharge,” the Bankruptcy Court may deny a debtor a

discharge for concealing property of the estate or the trustee or a creditor may request the

revocation of a discharge obtained through fraud. Section 727 states, in pertinent part:

(a) The court shall grant the debtor a discharge, unless—

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denial of any exemption in the claim and its proceeds. 96 Recognizing that judicial

estoppel was a discretionary doctrine,97 the court concluded that the “important

interests of creditors, militate[d] against its application.” 98

....

(2) the debtor, with intent to hinder, delay, or defraud a creditor . . . has . . .

concealed—

(A) property of the debtor, within one year before the date of the filing of the

petition; or

(B) property of the estate, after the date of the filing of the petition;

...

(c) (1) The trustee, a creditor, or the United States trustee may object to the

granting of a discharge under subsection (a) of this section.

(2) On request of a party in interest, the court may order the trustee to examine

the acts and conduct of the debtor to determine whether a ground exists for

denial of discharge.

(d) On request of the trustee, a creditor, or the United States trustee, and after

notice and a hearing, the court shall revoke a discharge granted under subsection

(a) of this section if—

(1) such discharge was obtained through the fraud of the debtor, and the

requesting party did not know of such fraud until after the granting of such

discharge;

(2) the debtor acquired property that is property of the estate, or became

entitled to acquire property that would be property of the estate, and

knowingly and fraudulently failed to report the acquisition of or entitlement to

such property, or to deliver or surrender such property to the trustee;

....

(e) The trustee, a creditor, or the United States trustee may request a revocation

of a discharge—

(1) under subsection (d)(1) of this section within one year after such discharge

is granted; or

(2) under subsection (d)(2) or (d)(3) of this section before the later of—

(A) one year after the granting of such discharge; and

(B) the date the case is closed.

11 U.S.C. § 727.

96

In re Barger, 279 B.R. at 908 (citing In re Lewis, 273 B.R. 739, 748 (Bankr. N.D. Ga.

2001)).

97

The Bankruptcy Appellant Panel of the Ninth Circuit, in reversing the Bankruptcy

Court’s denial of a motion to reopen filed by a debtor, who, like Barger, had failed to schedule a

lawsuit she had filed against her employer, stated that there are methods other than judicial

estoppel for punishing a contumacious debtor:

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It [would be] incongruous to punish Debtor’s creditors and impair

their prospects for a potential recovery in the bankruptcy case in order

to improve the City’s judicial estoppel argument in District Court. In

In re Daniel, 205 B.R. 346 (Bankr. N.D. Ga. 1997) (Murphy, J.), the

court observed that reopening a bankruptcy case in order for a debtor

to disclose an asset is appropriate even if it deprives a defendant of a

judicial estoppel defense.99

Moreover, “[a]ny advantage which Debtor may have gained by omitting the asset

from her schedules is eliminated by reopening, amending the schedules and

allowing the Chapter 7 Trustee to administer the asset.” 100 The court concluded

that “the interests of Debtor’s creditors override any detriment that the City may

sustain as a result of reopening the case and that the Debtor’s conduct does not

preclude such reopening.”101

[A]ny legitimate concerns about a former debtor's misconduct can be addressed

by other methods, rather than refusing to reopen a bankruptcy case. In appropriate

situations a debtor can be subject to prosecution and penalties. See, e.g., 18 U.S.C.

§§ 152 and 3571. If a debtor shows bad faith, or if third parties are prejudiced by

nondisclosure of an asset, then the bankruptcy court can exercise its discretion to

disallow any claimed exemption in the asset, in whole or in part. In the

circumstances of this appeal, where all creditors might get paid in full, Lopez still

might receive a substantial portion of any recovery in the Action (11 U.S.C. §

726(a)(6)), but presumably that recovery would be because the Action had merit,

not because Lopez gained any advantage by failing to list the Action.

In re Lopez, 283 B.R. 22, 30 (B.A.P. 9th Cir. 2002) (citation omitted).

98

In re Barger, 279 B.R. at 908.

99

Id. at 909.

100

Id. (quoting In re Daniel, 205 B.R. at 349).

101

Id.

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The District Court then applied judicial estoppel and granted the City’s

motion for summary judgment. 102 In doing so, the court effectively rejected the

Bankruptcy Court’s findings and conclusions, and substituted its own, to-wit: the

debtor, in failing to list the claims and her lawsuit against the City in her schedules,

intended to manipulate the judicial system. 103

b.

On appeal, this court applied the two-element statement in determining

whether the City had established the defense of judicial estoppel. 104 This meant

the City’s task was two-fold: “First, . . . [Barger]’s allegedly inconsistent positions

must have been ‘made under oath in a prior proceeding.’ Second, the

102

See Barger, 348 F.3d at 1292. Before it entered its final judgment in the case, the

District Court was aware that the debtor’s claims were assets of her bankruptcy estate and that

the trustee could succeed to her position pursuant to Rule 25(c) of the Federal Rules of Civil

Procedure. Id. The District Court did not order the substitution, but this court did on appeal:

“Since the district court never directed the Trustee to substitute for Barger or join in her in this

suit, the Trustee simply takes Barger’s place from hereon.” Id. at 1293.

103

In substituting its own findings and conclusions for the Bankruptcy Court’s, the

District Court was not exercising its role as an appellate court reviewing an interlocutory order of

the Bankruptcy Court pursuant to 28 U.S.C. § 158(a)(3). See In re F.D.R. Hickory House, Inc.,

60 F.3d 724, 725 (11th Cir. 1995) (“[A] district court, at its discretion, may review interlocutory

judgments and orders of a bankruptcy court . . . .”). Rather, the District Court was ruling on the

question of whether to grant the City summary judgment based on its affirmative judicial

estoppel defense. See Barger, 348 F.3d at 1292.

104

At this point, the trustee had intervened, as this court recognized that the debtor

lacked standing. Id. Without elaboration, this court attributed to the trustee the debtor’s conduct

in concealing her claims against the City and the pending District Court litigation even though “it

seem[ed] clear that Barger [had] deceived the trustee,” id. at 1296:

[She] did not tell the trustee that she was . . . seeking . . . liquidated damages,

compensatory damages, and punitive damages. She did not inform the trustee

about these additional damages even though she added them to her prayer for

relief [in the District Court litigation] a mere two days before the creditors

meeting [conducted by the trustee].

Id.

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‘inconsistencies must be shown to have been calculated to make a mockery of the

judicial system.’” 105

The City, of course, could show that the claims Barger was asserting in the

District Court were inconsistent with the claims she had presented to the

Bankruptcy Court and that her Statement of Financial Affairs to the Bankruptcy

Court was, by its very nature, under oath.106

Having satisfied the first prong, the City still had to show that Barger filed

the false statement with the intent to manipulate the judicial system:

[T]he issue here is intent. For purposes of judicial estoppel, intent is a

purposeful contradiction—not simple error or inadvertence.

“[D]eliberate or intentional manipulation can be inferred from the

record,” where the debtor has knowledge of the undisclosed claims

and has motive for concealment. 107

Because the court accepted that Barger’s intent to manipulate the judicial system

was inferable as a matter of law, the City was able to make this showing and thus

satisfy both prongs of the test.108 The court noted that Barger had knowledge of

the claims she was pursuing against the City at the time she failed to disclose the

claims, and found that she had a motive for concealing them. 109

Barger appeared to gain an advantage when she failed to list her

discrimination claims on her schedule of assets. Omitting the

105

Id. at 1293–94 (citation omitted) (quoting Salomon, 260 F.3d at 1308).

106

See supra note 70.

107

Barger, 348 F.3d at 1294 (quoting Burnes, 291 F.3d at 1287).

108

Id. at 1294–97.

109

Id. The intent to manipulate the bankruptcy system occurred at the moment Barger

was under a duty to disclose her pending claims but did not do so. See supra note 60.

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discrimination claims from the schedule of assets appeared to benefit

her because, by omitting the claims, she could keep any proceeds for

herself and not have them become part of the bankruptcy estate. Thus,

Barger's knowledge of her discrimination claims and motive to

conceal them are sufficient evidence from which to infer her

intentional manipulation. 110

The court affirmed the District Court’s application of judicial estoppel because the

City had satisfied the two-element statement’s requirements.

3.

Though the doctrine of judicial estoppel as expressed by Burnes and Barger

continues to be binding precedent in this circuit, 111 a subsequent panel reached a

directly contrary decision in Parker v. Wendy’s International, Inc., 112 a case

presenting a set of facts materially indistinguishable from those in Barger. 113 The

Parker Court concluded that “[t]he correct analysis here compels the conclusion

that judicial estoppel should not be applied at all” to bar the trustee of the

110

Id. at 1296 (citing Burnes, 291 F.3d at 1287).

111

Under this court’s prior-panel-precedent rule, “a prior panel’s holding is binding on

all subsequent panels unless and until it is overruled or undermined to the point of abrogation by

the Supreme Court or by this court sitting en banc.” In re Lambrix, 776 F.3d 789, 794 (11th Cir.

2015) (per curiam) (quoting United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)).

112

Parker v. Wendy’s Int’l, Inc., 365 F.3d 1268 (11th Cir. 2004).

113

I must confess that I sat on the panel that decided Parker, whose decision

inadvertently violated this circuit’s prior-panel-precedent rule and reached a result opposite to

the one compelled by Burnes and Barger, as well as the panel that decided Salomon, which

actually turned on an unspecified state-law source of the doctrine but relied on the Eleventh

Circuit’s formulation then in effect. Therefore, I bear part of the responsibility for allowing the

current state of judicial estoppel to persist unresolved for as long as it has. Mea culpa, mea

maxima culpa. “Under these circumstances, except for any personal humiliation involved in

admitting that I do not always understand the opinions of this Court, I see no reason why I

should be consciously wrong today because I was unconsciously wrong yesterday.” See

Massachusetts v. United States, 333 U.S. 611, 639–40, 68 S. Ct. 747, 763, 92 L. Ed. 968 (1948)

(Jackson, J., dissenting).

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bankruptcy estate from pursuing an undeclared lawsuit.114 Because the trustee had

not been “tainted or burdened by the debtor’s misconduct”—the post-petition

inconsistent statements in the Bankruptcy Court and in the District Court—it

would be inappropriate to punish the trustee in the debtor’s stead, and by extension

deprive the debtor’s creditors of property that belonged, by operation of law, to the

estate.115

Notably, though the Parker panel cited each New Hampshire, Burnes, and

Barger multiple times, it never explained why Barger did not dictate the result.116

Many courts and commentators have cited Parker favorably, often mistakenly

referring to Parker as the Eleventh Circuit’s controlling statement of judicial

estoppel.117 Indeed, the Fifth Circuit, sitting en banc, relied extensively on

Parker’s logic to overturn a panel decision applying judicial estoppel to bar an

innocent trustee from pursuing an undisclosed claim. 118 As the decision in Parker

demonstrates, the current state of our judicial-estoppel jurisprudence is both

114

Parker, 365 F.3d at 1272.

115

Id. at 1271–73.

116

Disagreement with the reasoning of prior precedent is not alone a basis for

disregarding that precedent. See In re Lambrix, 776 F.3d at 794. The Parker Court did question

whether the debtor in Burnes lacked standing but said nothing as to the propriety of the

controlling Barger decision. See Parker, 365 F.3d at 1272.

117

See, e.g., Stephenson v. Malloy, 700 F.3d 265, 271 (6th Cir. 2012); Reed v. City of

Arlington, 650 F.3d 571, 578 (5th Cir. 2011) (en banc); Perry v. Blum, 629 F.3d 1, 9 (1st Cir.

2010); George Klidonas & Regina L. Griffin, Estoppel Does Not Extend to Innocent Trustees, 30

Am. Bankr. Inst. J. 44, 44 n.6 (Nov. 2011).

118

See Reed, 650 F.3d at 578–79.

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confused and confusing, calling to mind the old saw that justice ought not be

dispensed under a rule that varies by the length of the presiding judge’s foot.119

D.

In sum then, trying to reconcile this court’s decisions applying judicial

estoppel as a uniform doctrine proves problematic, to say the least. The vast

majority of the decisions discussed above fall in the category Wright, Miller &

Cooper labels the “still more open-ended approach.”120 And with minimal

exception, all focus on and penalize the same “unseemly adversarial behavior”—

taking false positions under oath.121

Judicial estoppel first became this court’s law in Chrysler Credit, which

involved statements under oath in two forums, a North Carolina court and the

Bankruptcy Court, and held that the doctrine’s purpose was to prevent parties from

“attempt[ing] to manipulate the court system through the calculated assertion of

119

As then–Lord Chancellor John Scott, who later became the first Earl of Eldon,

admonished,

The doctrines of this Court ought to be as well settled, and made as uniform

almost as those of the common law, laying down fixed principles, but taking care

that they are to be applied according to the circumstances of each case. . . .

Nothing would inflict on me greater pain, in quitting this place, than the

recollection that I had done anything to justify the reproach that the equity of this

court varies like the Chancellor’s foot.

Gee v. Pritchard, (1818) 2 Swans. 402, 414.

120

18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice

and Procedure: Jurisdiction § 4477 (2d ed. 2002). As far as I can tell, this is so with the

exception of Riviera Beach and Tampa Bay Water. See supra note 28.

121

The exceptions are again Riviera Beach and Tampa Bay Water. See also infra note

129.

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