Petition for Writ of Certiorari — Valarie Davis, Petitioner v. Fiat Chrysler Automobiles U.S., LLC

Supreme Court briefJan 9, 2019

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No. _______

IN THE

Supreme Court of the United States

VALARIE DAVIS,

Petitioner,

FIAT CHRYSLER AUTOMOBILES U.S., LLC,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Shereef H. Akeel

Adam W. Hansen

Adam S. Akeel

Counsel of Record

AKEEL & VALENTINE, PLC APOLLO LAW LLC

888 West Big Beaver

3217 Hennepin Avenue

South

Road

Suite 7

Suite 420

Minneapolis, MN 55408

Troy, Michigan 48084

(612) 927-2969

adam@apollo-law.com

Counsel for Petitioner

QUESTIONS PRESENTED

The doctrine of judicial estoppel holds that “where

a party assumes a certain position in a legal

proceeding, and succeeds in maintaining that

position, he may not thereafter, simply because his

interests have changed, assume a contrary position,

especially if it be to the prejudice of the party who has

acquiesced in the position formerly taken by him.”

New Hampshire v. Maine, 532 U.S. 742, 749 (2001).

Over the past 20 years, judicial estoppel has grown

from an obscure and seldom-used doctrine to a

fearsome judge-made rule invoked in thousands of

cases. See 18B Charles Alan Wright, Arthur R. Miller

& Edward H. Cooper, Federal Practice and Procedure:

Jurisdiction § 4477 (“Wright & Miller”). Nowhere has

this sudden change been felt more acutely than in the

area of bankruptcy law. There, some circuits have

adopted “a basic default rule: If a plaintiff-debtor

omits a pending (or soon-to-be-filed) lawsuit from

[her] bankruptcy schedules and obtains a discharge

(or plan confirmation), judicial estoppel bars [the

plaintiff-debtor from pursuing] the action.” See Ah

Quin v. Cnty. of Kauai Dept. of Transp., 733 F.3d 267,

271 (9th Cir. 2013).

The question presented is:

Whether a plaintiff who fails to disclose her civil

claim in bankruptcy is barred, under the doctrine of

judicial estoppel, from pursuing her claim—even

where there is no evidence that the plaintiff made the

omission in bad faith.

PARTIES TO THE PROCEEDINGS

Petitioner Valarie Davis was the plaintiff before

the district court and appellant before the court of

appeals. Respondent Fiat Chrysler Automobiles U.S.,

LLC was the defendant in the district court and

appellee in the court of appeals.

iii

TABLE OF CONTENTS

OPINIONS BELOW .................................................... 1

STATEMENT OF JURISDICTION............................ 1

STATUTORY PROVISIONS INVOLVED ................. 1

STATEMENT OF THE CASE .................................... 1

REASONS FOR GRANTING THE PETITION ......... 7

THIS COURT SHOULD GRANT REVIEW TO RESOLVE

THE CONFLICT OVER THE BREADTH AND SCOPE OF

THE DOCTRINE OF JUDICIAL ESTOPPEL .................. 7

II. THIS COURT SHOULD GRANT REVIEW TO DEFINE

AND DELIMIT THE SCOPE OF THE JUDICIAL

ESTOPPEL DOCTRINE ............................................ 10

CONCLUSION .......................................................... 14

INDEX TO APPENDIX

Davis v. Fiat Chrysler Autos. U.S., LLC, No. 17-2016,

2018 WL 4026445 (6th Cir. Aug. 22, 2018) .............. 1a

Davis v. FCA US LLC, No. 15-13773, 2017 WL

3601946 (E.D. Mich. Aug. 22, 2017) ....................... 16a

Order Denying Petition for Rehearing En Banc .... 35a

TABLE OF AUTHORITIES

CASES

Ah Quin v. Cnty. of Kauai Dept. of Transp.,

733 F.3d 267 (9th Cir. 2013).......................... 1, 3, 9–12

Cannon–Stokes v. Potter,

453 F.3d 446 (7th Cir. 2006) ...................................... 11

Davis v. Fiat Chrysler Autos. U.S., LLC,

No. 17-2016, 2018 WL 4026445

(6th Cir. Aug. 22, 2018) ......................................... 8, 11

EEOC v. Shell Oil Co.,

466 U.S. 54 (1984) ...................................................... 13

Flugence v. Axis Surplus Ins.,

738 F.3d 126 (5th Cir. 2013) ........................................ 9

Eubanks v. CBSK Financial Group, Inc.,

385 F.3d 894 (6th Cir. 2004) ........................................ 2

In re Miller,

347 B.R. 48 (Bankr. S.D. Tex. 2006) ........................... 2

Jones v. Bob Evans Farms, Inc.,

811 F.3d 1030 (8th Cir. 2016) ...................................... 5

Kane v. National Union Fire Ins. Co.,

535 F.3d 380 (7th Cir. 2008) ........................................ 2

Lewis v. Weyerhaeuser Co.,

141 Fed. App’x 420 (6th Cir. 2005) ......................... 2, 8

Local Loan Co. v. Hunt,

292 U.S. 234 (1934) ...................................................... 2

Monroe v. FTS USA, LLC,

860 F.3d 389 (6th Cir. 2017) ...................................... 13

New Hampshire v. Maine,

532 U.S. 742 (2001) ............................................ passim

Nichols v. Scott,

69 F.3d 1255 (5th Cir. 1995) ...................................... 13

Moses v. Howard University Hosp.,

606 F.3d 789 (D.C. Cir. 2010) ...................................... 9

Oneida Motor Freight, Inc. v. United Jersey Bank,

848 F.2d 414 (3d Cir. 1988) ................................... 3, 12

Queen v. TA Operating, LLC,

734 F.3d 1081 (10th Cir. 2013) .................................... 9

Rodriguez v. United States,

480 U.S. 522 (1987) .................................................... 13

Slater v. United States Steel Corp. (“Slater I”),

820 F.3d 1193 (11th Cir. 2016) ............................ 12–13

Slater v. United States Steel Corp. (“Slater II”),

871 F.3d 1174 (11th Cir. 2017) (en banc).................... 9

Spaine v. Community Contacts, Inc.,

756 F.3d 542 (7th Cir. 2014) ........................................ 9

Stephenson v. Malloy,

700 F.3d 265 (6th Cir. 2012) ........................................ 7

United States v. Jones,

159 F.3d 969 (6th Cir. 1998) ........................................ 5

White v. Wyndham Vacation Ownership, Inc.,

617 F.3d 472 (6th Cir. 2010).............................. 7–8, 11

Zinkand v. Brown,

478 F.3d 634 (4th Cir. 2007) ........................................ 9

STATUTES

11 U.S.C. § 301 ............................................................. 2

11 U.S.C. § 350 ....................................................... 3, 12

11 U.S.C. § 521 ............................................................. 2

11 U.S.C. § 541 ............................................................. 2

11 U.S.C. § 554 ............................................................. 3

11 U.S.C. § 704 ............................................................. 2

11 U.S.C. § 726 ............................................................. 2

11 U.S.C. § 1306 ........................................................... 2

11 U.S.C. § 1325 ........................................................... 2

11 U.S.C. § 1326 ........................................................... 2

11 U.S.C. § 1328 ........................................................... 2

18 U.S.C. § 152 ....................................................... 3, 12

vii

18 U.S.C. § 1621 ..................................................... 3, 12

OTHER AUTHORITIES

Theresa M. Beiner & Robert B. Chapman, Take What

You Can, Give Nothing Back: Judicial Estoppel,

Employment Discrimination, Bankruptcy, and Piracy

in the Courts, 60 U. Miami L. Rev. 1, 31-33 (2005) .. 10

18B Charles Alan Wright, Arthur R. Miller & Edward

H. Cooper, Federal Practice and Procedure:

Jurisdiction § 4477............................................... 13–14

Fed. R. Bank. P. 1009 ............................................ 3, 12

Fed. R. Bank. P. 9011 ............................................ 3, 12

Fed. R. Civ. P. 8 ......................................................... 12

Fed. R. Evid. 801 ........................................................ 12

PETITION FOR A WRIT OF CERTIORARI

Petitioner Valarie Davis respectfully requests

that this Court issue a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Sixth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit is available at Davis v. Fiat

Chrysler Autos. U.S., LLC, No. 17-2016, 2018 WL

4026445 (6th Cir. Aug. 22, 2018) and is reproduced at

App. 1a. The district court’s opinion is available at

Davis v. FCA US LLC, No. 15-13773, 2017 WL

3601946 (E.D. Mich. Aug. 22, 2017) and is reproduced

at App. 16a.

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Sixth

Circuit issued its Opinion and Final Judgment on

August 22, 2018. App. 1a. The Sixth Circuit denied

Petitioner’s timely-filed petition for rehearing en banc

on October 11, 2018. App. 35a. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This case principally concerns the common law

doctrine of judicial estoppel. Relevant provisions of

the bankruptcy code are contained in this petition.

STATEMENT OF THE CASE

This case involves the intersection of bankruptcy

law and the judge-made doctrine of judicial estoppel.

Each is explained here briefly.

1. Bankruptcy laws are designed to “give[ ] . . . the

honest but unfortunate debtor . . . a new opportunity

in life and a clear field for future effort, unhampered

by the pressure and discouragement of pre-existing

debt.” Local Loan Co. v. Hunt, 292 U.S. 234, 244

(1934). The filing of a bankruptcy petition creates a

bankruptcy estate that includes “all legal or equitable

interests of the debtor in property as of the

commencement of the case.” 11 U.S.C. §§ 301, 541(a).

A Chapter 7 bankruptcy estate becomes the owner of

all of the debtor’s nonexempt assets on the date the

petition is filed. See 11 U.S.C. §§ 704(1), 726. The

estate then liquidates those assets and distributes the

proceeds to the creditors, and the debtor receives a

discharge. Id. Under Chapter 13, by contrast, the

bankruptcy court confirms a plan to repay the debtor’s

debts. 11 U.S.C. §§ 1325-26. Once the payments

contemplated by the plan are complete, the debtor

receives a discharge. 11 U.S.C. §§ 1328(a). Unlike a

Chapter 7 debtor, a debtor traveling under Chapter 13

remains under a continuing obligation to disclose

assets acquired during the pendency of the

bankruptcy proceeding. 11 U.S.C. §§ 1306.

Section 521(1) of the bankruptcy code requires a

debtor to file “a schedule of assets and liabilities, a

schedule of current income and current expenditures,

and a statement of the debtor’s financial affairs.” 11

U.S.C. § 521(1). “It is well-settled that a cause of

action is an asset that must be scheduled under §

521(1).” See Lewis v. Weyerhaeuser Co., 141 Fed. App’x

420, 424 (6th Cir. 2005) (citing Eubanks v. CBSK

Financial Group, Inc., 385 F.3d 894, 897 (6th Cir.

2004)).

Failures to disclose assets in bankruptcy,

unfortunately, “happen[] all the time, especially with

claims.” Kane v. National Union Fire Ins. Co., 535

F.3d 380, 385 (7th Cir. 2008) (quoting In re Miller, 347

B.R. 48, 53 (Bankr. S.D. Tex. 2006)). Such failures, of

course, run the gamut from good faith mistakes to

negligent omissions to full-fledged bankruptcy fraud.

For that reason, the bankruptcy code, along with

other provisions of the U.S. Code, contain a wide range

of flexible tools designed to encourage complete

disclosures, protect the interests of creditors, and

punish genuine bankruptcy fraud. An estate may opt

to “abandon” a scheduled cause of action—effectively

returning the claim to the debtor. 11 U.S.C. § 554.

However, undisclosed assets, including undisclosed

claims, cannot be abandoned; they remain property of

the estate even after discharge. Id. Section 350(b) of

the bankruptcy code explicitly allows courts to reopen

bankruptcy

cases

administer

previously

undisclosed assets for the benefit of the creditors. 11

U.S.C. §§ 350(b); Fed. R. Bank. P. 1009. A bankruptcy

court can impose sanctions for nondisclosures,

including monetary penalties, loss of exemptions, and

denial of a discharge. See Fed. R. Bankr. P. 9011. And,

of course, courts may refer dishonest debtors to the

United States Attorney’s office for criminal

prosecution. See 18 U.S.C. § 152 (criminalizing the

concealment of assets, false oaths, and claims); 18

U.S.C. § 1621 (perjury). These provisions “adequately

deter nondisclosure.” Ah Quin v. Cnty. of Kauai Dept.

of Transp., 733 F.3d 267, 275 (9th Cir. 2013) (quoting

Oneida Motor Freight, Inc. v. United Jersey Bank, 848

F.2d 414, 423 (3d Cir. 1988) (Stapleton, J.,

dissenting)).

2. This Court has described the doctrine of judicial

estoppel as follows: “[W]here a party assumes a

certain position in a legal proceeding, and succeeds in

maintaining that position, he may not thereafter,

simply because his interests have changed, assume a

contrary position, especially if it be to the prejudice of

the party who has acquiesced in the position formerly

taken by him.” New Hampshire v. Maine, 532 U.S.

742, 749 (2001) (internal quotation marks omitted).

The doctrine’s “purpose is to protect the integrity of

the judicial process by prohibiting parties from

deliberately changing positions according to the

exigencies of the moment.” Id. at 749–50 (citation and

internal quotation marks omitted).

Although the application of the doctrine is not

“reducible to any general formulation of principle,” id.

at 750, the Court has outlined several relevant factors.

First, “a party’s later position must be ‘clearly

inconsistent’ with its earlier position.” Id. Second,

“courts regularly inquire 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 would

create the perception that either the first or the second

court was misled.” Id. Third, courts examine “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 751. Finally, courts should “resist application of

judicial estoppel when a party’s prior position was

based on inadvertence or mistake.” Id. at 753.

3. Petitioner Valarie Davis, an African-American

woman, has been employed as a clay modeler with

respondent Fiat Chrysler Automobiles US, LLC

(“Fiat”) since 2000. MSJ Resp., R.14, PageID.380.

In April 2008, Davis petitioned for Chapter 13

bankruptcy. Id., PageID.382. In October 2008, the

bankruptcy court confirmed a five-year plan to repay

her creditors. Id.

In or around April 2013—now four-and-a-half

years into her five-year repayment plan—Davis began

to experience racial harassment at work. Specifically,

co-workers began hanging stuffed monkeys—some by

their necks—near Davis’ workstation. Id., R.14,

PageID.383.

But the timing of the harassment is significant:

only a handful of incidents involving a stuffed monkey

occurred before Davis’ bankruptcy plan was

discharged on December 10, 2013. Discharge Letter,

R.14-13, PageID.783. Davis reported the initial April

2013 incident to Fiat’s human resources department,

which concluded that the monkey was not objectively

offensive. MSJ Order, R.17, PageID.1026.

After Davis’ bankruptcy plan was discharged,

however, the racial harassment intensified. On or

near December 25, 2013, one of Davis’ coworkers

brought a sock monkey to the workplace and hung it

in her cubicle. Davis T/C, R.14-8, PageID.689; Motion

Hearing T/C, R.23, PageID.1081. Discovery revealed

that the coworker hung the monkey fully aware of—

indeed because of—Davis’ sensitivities to monkeys.

MSJ Resp., R.14, PageID.392-93; cf. United States v.

Jones, 159 F.3d 969, 977 (6th Cir. 1998) (“Given the

history of racial stereotypes against African–

Americans and the prevalent one of African–

Americans as animals or monkeys, it is a reasonable—

perhaps even an obvious—conclusion that [the

reference to monkeys is] intended [as a] racial insult .

. . .”). Employees in Fiat’s sculpting studio knew and

understood that Davis was conscious about being

compared to a monkey. Id., PageID.382. Now armed

with the imprimatur of Fiat’s human resources

department’s initial finding that the first monkey was

not offensive, Davis’ coworkers escalated matters

significantly. Over the course of the next 15 months,

they displayed all manner of monkeys in the

workplace, including a four-foot-tall gorilla suspended

over the studio, a sock monkey that sat on top of a

computer, a monkey again hung from Christmas

lights, and another monkey hung from an overhead

light. Id.; Dorothy T/C, R.14-16, PageID.832; Davis

T/C, R.14-8, PageID.696; Menendez T/C, R.14-20,

PageID.893. One coworker brought a mechanical

monkey to the workplace. Throughout the day he

would push a button to make the monkey laugh.

Wilson T/C, R.14-9, PageID.713. Yet another

employee brought a monkey mold to work. Joseph

Marcum, R.14-10, PageID.735-736, 739. He

attempted to give the monkey mold to Davis. When

she refused, he set it down next to her and said “well,

I’ll sit them down here.” Id. Davis spoke to her

supervisor about the harassment, but the monkeys

remained on display. Davis T/C, R.14-8, PageID.697.

4. After exhausting her administrative remedies,

Davis filed suit, alleging race discrimination under

federal and state law. The district court granted

summary judgment in favor of Fiat, holding (1) that

Davis’ failure to amend her bankruptcy schedules to

include her harassment claim estopped her from

proceeding, and (2) the harassment was insufficiently

severe or pervasive to state a claim. MSJ Order, R.17;

App. 16a-34a.

5. A panel of the Sixth Circuit affirmed, holding

that Davis’ claim was barred by the doctrine of judicial

estoppel. Davis, 2018 WL 4026445, at *1; App. 1a.

Despite the fact that the course of harassment barely

overlapped with Davis’ bankruptcy proceedings, the

panel held that “she knew enough information about

a possible cause of action for discrimination against

[Fiat] by December 2013 to trigger her duty to disclose

the claim to the bankruptcy court.” Id. at *3; App.3a.

The panel next concluded that Davis had failed to

prove that her omission was the result of mistake or

inadvertence because Davis, on the Court’s view,

understood the factual basis for her claim, and “there

[was] no evidence that Davis made any disclosure

about a potential claim to the bankruptcy court.” Id.

at *5; App. 14a.

REASONS FOR GRANTING THE PETITION

THIS COURT SHOULD GRANT REVIEW TO

RESOLVE THE CONFLICT OVER THE BREADTH AND

SCOPE OF THE DOCTRINE OF JUDICIAL

ESTOPPEL.

This Court should grant review to resolve a

longstanding circuit split over the breadth and scope

of the judicial estoppel doctrine as a mechanism to bar

civil claims that were not disclosed in bankruptcy.

Some circuits, including the Sixth Circuit below,

have developed a body of caselaw that requires

dismissal in the vast run of cases. The Sixth Circuit,

for example, examines whether (1) a party “assumed

a position that was contrary to the one that she

asserted under oath in the bankruptcy proceedings,”

(2) “the bankruptcy court adopted the contrary

position either as a preliminary matter or as part of a

final disposition,” and (3) the omission “did not result

from mistake or inadvertence.” See, e.g., White v.

Wyndham Vacation Ownership, Inc., 617 F.3d 472,

478 (6th Cir. 2010).

But several of these elements are essentially

inoperative—met in every case involving undisclosed

claims in bankruptcy. With respect to the first

element—whether a party “assumed a position that

was contrary to the one that she asserted under oath

in the bankruptcy proceedings,”—the Sixth Circuit

treats omissions as “equivalent to a statement that

there were no such claims.” Stephenson v. Malloy, 700

F.3d 265, 274 (6th Cir. 2012). The first element is

therefore satisfied in every bankruptcy case where a

debtor omits a claim. The Sixth Circuit treats the

second element as satisfied if the bankruptcy court

confirms a Chapter 13 payment plan or enters a

discharge. See White, 617 F.3d at 479; Davis v. Fiat

Chrysler Autos. U.S., LLC, No. 17-2016, 2018 WL

4026445, at *4 (6th Cir. Aug. 22, 2018). The second

element is therefore satisfied in every bankruptcy

case reaches its conclusion. The third element—

whether the omission “did not result from mistake or

inadvertence”—turns on three factors: the debtor’s

“knowledge of the factual basis of the undisclosed

claims,” any “motive for concealment,” and evidence

“indicat[ing] an absence of bad faith”—with particular

focus on any attempt “to advise the bankruptcy court

of [an] omitted claim.” White, 617 F.3d at 479. But

these factors, too, are virtually always met as a matter

of law. A debtor is deemed to have “knowledge of the

factual basis of the undisclosed claims” if she “had

sufficient information to know that she had a possible

cause of action.” Davis, 2018 WL 4026445, at *4. The

Sixth Circuit has held that a “motive to conceal” exists

in every bankruptcy case where an omission occurs.

See id.; Lewis, 141 F. App’x at 426 (“It is always in a

Chapter 13 petitioner’s interest to minimize income

and assets.”); White, 617 F.3d at 479. And the debtor

bears a heavy burden in the Sixth Circuit of proving

“an absence of bad faith.” A debtor’s own testimony

that the omission was innocent is deemed insufficient

by the Sixth Circuit to demonstrate the absence of bad

faith. Lewis, 141 F. App’x at 427. And evidence that

the debtor attempted to correct the omission after a

judicial estoppel motion has been filed will not help

either; on the contrary, the Sixth Circuit treats such

belated efforts as affirmative evidence of bad faith.

White, 617 F.3d at 481.

In sum, while the Sixth Circuit’s standards

maintain the veneer of a multi-factor test, the

application of judicial estoppel is rigid and

“formulaic.” Id. at 485 (Clay, J., dissenting). Stripped

of its inoperative appendages, the rule applied in the

Sixth Circuit is as follows: if a debtor knows the

factual basis for a potential claim, fails to disclose that

claim in bankruptcy, and cannot prove the absence of

bad faith by showing that he advised the bankruptcy

court of the omitted claim before the judicial estoppel

motion was filed, judicial estoppel bars the claim.

Like the Sixth Circuit, other circuits follow the

same “basic default rule: If a plaintiff-debtor omits a

pending (or soon-to-be-filed) lawsuit from the

bankruptcy schedules and obtains a discharge (or plan

confirmation), judicial estoppel bars the action.” Ah

Quin, 733 F.3d at 271. See, e.g., Moses v. Howard

University Hosp., 606 F.3d 789 (D.C. Cir. 2010); Jones

v. Bob Evans Farms, Inc., 811 F.3d 1030 (8th Cir.

2016); Queen v. TA Operating, LLC, 734 F.3d 1081

(10th Cir. 2013); Flugence v. Axis Surplus Ins., 738

F.3d 126 (5th Cir. 2013).

These courts’ jurisprudence deviates significantly

from that of other circuits, which require proof that a

debtor intentionally misled the bankruptcy court

before applying judicial estoppel. In Slater v. United

States Steel Corp., 871 F.3d 1174 (11th Cir. 2017) (en

banc) (“Slater II”), for example, the Eleventh Circuit,

sitting en banc, unanimously rejected the Sixth

Circuit’s approach and held that judicial estoppel

requires affirmative evidence that the debtor “who

failed to disclose a civil lawsuit in bankruptcy filings

intended to make a mockery of the judicial system.”

Slater II, 871 F.3d at 1176-77. The Seventh Circuit

requires defendants invoking the doctrine to “prove

that [the debtor]’s omission . . . was an intentional

effort to conceal an asset from her creditors.” Spaine

v. Community Contacts, Inc., 756 F.3d 542, 548 (7th

Cir. 2014). In the Fourth Circuit, “the party against

whom judicial estoppel is to be applied must have

intentionally misled the court to gain unfair

advantage. This bad faith requirement is the

determinative factor.” Zinkand v. Brown, 478 F.3d

634, 638 (4th Cir. 2007). The Ninth Circuit similarly

rejects the “presumption of deceit” applied elsewhere

and instead requires an inquiry into whether “the

omission occurred by accident or was made without

intent to conceal.” Ah Quin, 733 F.3d at 276-77.

The Court should grant certiorari to resolve this

fundamental dispute over the doctrine’s breadth.

II. THIS COURT SHOULD GRANT REVIEW TO DEFINE

AND DELIMIT THE SCOPE OF THE JUDICIAL

ESTOPPEL DOCTRINE.

The Court should also grant certiorari to define

and delimit the proper scope of the judicial estoppel

doctrine.

The strict rule applied by the Sixth Circuit and

other circuits, to be sure, has a simple and intuitive

appeal: list you claim or lose it. Omitted your claim by

accident? Then prove it. But upon closer examination,

this approach is unsupported by law and inconsistent

with the equitable principles the rule seeks to

vindicate.

First, the Sixth Circuit’s strict application of

judicial estoppel stands in considerable tension with

the judicial estoppel factors identified by this Court.

Where a debtor, realizing his mistaken omission, reopens his bankruptcy and discloses the claim, the

bankruptcy court ultimately does not “accept that

party’s earlier position.” Ah Quin, 733 F.3d at 274

(citing New Hampshire, 532 U.S. at 750–51); Theresa

M. Beiner & Robert B. Chapman, Take What You Can,

Give Nothing Back: Judicial Estoppel, Employment

Discrimination, Bankruptcy, and Piracy in the

Courts, 60 U. Miami L. Rev. 1, 31-33 (2005). What is

more, a plaintiff “obtain[s] no [unfair] advantage”

when the claim is ultimately disclosed and

administered as contemplated by the bankruptcy

code. Id.; White, 617 F.3d at 481 at 485 (Clay, J.,

dissenting). Finally, by treating an omission as

tantamount to an affirmative lie, the strict application

of judicial estoppel stands in tension with the

doctrine’s requirement that “a party’s later position

must be ‘clearly inconsistent’ with its earlier position.”

New Hampshire, 532 U.S. at 750.

In the main, however, “the application of judicial

estoppel . . . operates to the detriment primarily of

innocent creditors and to the benefit of only an alleged

bad actor.” Ah Quin, 733 F.3d at 274. By stopping a

lawsuit in its tracks, “the creditors lose out on a

potential recovery.” Id. Perversely, “the only ‘winner’

in this scenario is the alleged bad actor in the estopped

lawsuit.” Id. Because the doctrine does not account for

the merits of the underlying claim, “the alleged bad

actor could be someone who clearly does not warrant

a windfall (e.g., someone who physically assaulted the

plaintiff and badly injured him or her).” Id. It is

difficult “to justify a policy that takes money from

innocent third-party creditors and gives it, for

example, to a violent criminal.” Id.; see Cannon–

Stokes v. Potter, 453 F.3d 446, 448 (7th Cir. 2006)

(acknowledging that judicial estoppel “is an equitable

doctrine, and it is not equitable to employ it to injure

creditors who are themselves victims of the debtor’s

deceit”); White, 617 F.3d at 481 at 485 (Clay, J.,

dissenting) (The Sixth Circuit’s test “ignores the fact

that Defendant suffered no prejudice from Plaintiff’s

initial failure to disclose her claim”).

Nor does the strict application of the judicial

estoppel doctrine serve the doctrine’s equitable goals.

Although encouraging disclosure in bankruptcy

vindicates the goals of the bankruptcy regime, it does

not “protect[] the integrity of the courts.” Ah Quin, 733

F.3d at 275. Simply put, “[c]ourt[s] do[] not need

protection from a litigant’s assertion of an

inconsistent claim (or defense).” Slater v. United

States Steel Corp., 820 F.3d 1193, 1237 (11th Cir.

2016) (Tjoflat, J., concurring) (“Slater I”). Inconsistent

claims are presented in court every day without

diminishing the integrity of the judicial system. See,

e.g., Fed. R. Civ. P. 8(d)(3); Fed. R. Evid. 801(d)(2). The

Sixth Circuit’s harsh formulation of judicial estoppel

actually “impugn[s], rather than preserve[s], the

judicial system’s integrity.” Slater I, 820 F.3d at 1235

(Tjoflat, J., concurring). Refusing to consider even

meritorious claims that may have real value to

innocent creditors does far more to undermine the

integrity of the courts than permitting a debtor to

maintain two allegedly contrary positions. Id.

Moreover, principles of punishment and

deterrence do not justify the strict application of the

doctrine. Ah Quin, 733 F.3d at 275; Slater I, 820 F.3d

at 1239 (Tjoflat, J., concurring) (“[R]elieving a thief of

stolen property is unlikely to deter theft. If anything,

it would encourage more theft.”). A harsh application

of the judicial estoppel doctrine is not necessary “given

the extensive range of perfectly adequate criminal and

civil legal remedies with which the logic and effect of

judicial estoppel are at odds.” Id. at. 1239; 11 U.S.C.

§§ 350(b) (allowing the bankruptcy court to

administer omitted claims); Fed. R. Bank. P. 1009

(same); Fed. R. Bankr. P. 9011 (permitting sanctions

for false statements and omissions); 18 U.S.C. § 152

(criminalizing the concealment of assets, false oaths,

and claims); 18 U.S.C. § 1621 (perjury). These

provisions “adequately deter nondisclosure.” Ah Quin,

733 F.3d at 275 (quoting Oneida Motor Freight, 848

F.2d at 423). The “perfectly adequate range of

criminal and civil legal remedies designed by

Congress to apply across proceedings in the

bankruptcy system” stand in clear “tension with the

invocation of judicial estoppel.” Slater v. United States

Steel Corp., 820 F.3d 1193, 1235 (11th Cir. 2016)

(Tjoflat, J., concurring) (“Slater I”).

Judicial estoppel also undermines countless

statutory regimes and frustrates the will of Congress.

This case serves as a prime example. Davis, the

petitioner here, brought claims alleging workplace

discrimination. “The dominant purpose of [Title VII],

of course, is to root out discrimination in

employment.” EEOC v. Shell Oil Co., 466 U.S. 54, 76

(1984). By barring claims regardless of their merits or

importance to congressional policy, the judge-made

judicial estoppel doctrine “pursues its purposes at all

costs,” see Rodriguez v. United States, 480 U.S. 522,

525-26 (1987), and “snubs the purpose” of countless

federal and state laws. See Monroe v. FTS USA, LLC,

860 F.3d 389, 403 (6th Cir. 2017).

By the same token, the strict application of

judicial estoppel unfairly punishes innocent debtors.

Take again the petitioner in this case, Valarie Davis.

There is simply no evidence in this case that Davis

was trying to hide anything when she failed to return

to bankruptcy court to report that she was being

mistreated at work and might have a legal claim. But

Davis, like so many other debtors, was cast out of

court because she knew some of the facts that would

ultimately make up her claim and could not negate

the Sixth Circuit’s strong presumption of bad faith.

Finally, there is no question that the proper scope

of the judicial estoppel doctrine is an issue of

exceptional importance warranting this Court’s

review. Only 20 years ago, judicial estoppel was

regarded by courts as an “ ‘obscure doctrine’ ” of

uncertain contours and uncertain acceptance in

federal courts.” See Wright & Miller § 4477 (quoting

Nichols v. Scott, 69 F.3d 1255, 1272 (5th Cir. 1995).

No longer. After this Court’s decision in New

Hampshire, “the number of federal appellate decisions

grappling with [the doctrine of judicial estoppel] has

grown dramatically” and shows no sign of abating. See

Wright & Miller § 4477.

This Court’s review is essential to define and

delimit the proper scope of the doctrine.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,