Sandra Slater v. United States Steel Corporation

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 24, 2016
• Docket: 12-15548
• Status: Published

Opinion

Case: 12-15548 Date Filed: 02/24/2016 Page: 1 of 112

[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. Case: 12-15548 Date Filed: 02/24/2016 Page: 2 of 112

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 Case: 12-15548 Date Filed: 02/24/2016 Page: 3 of 112

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 Case: 12-15548 Date Filed: 02/24/2016 Page: 4 of 112

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 Case: 12-15548 Date Filed: 02/24/2016 Page: 5 of 112

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 Case: 12-15548 Date Filed: 02/24/2016 Page: 6 of 112

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 Case: 12-15548 Date Filed: 02/24/2016 Page: 7 of 112

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 Case: 12-15548 Date Filed: 02/24/2016 Page: 8 of 112

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 Case: 12-15548 Date Filed: 02/24/2016 Page: 9 of 112

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 Case: 12-15548 Date Filed: 02/24/2016 Page: 10 of 112

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 Case: 12-15548 Date Filed: 02/24/2016 Page: 11 of 112

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 Case: 12-15548 Date Filed: 02/24/2016 Page: 12 of 112

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 Case: 12-15548 Date Filed: 02/24/2016 Page: 13 of 112

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 Case: 12-15548 Date Filed: 02/24/2016 Page: 14 of 112

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.

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

14 Case: 12-15548 Date Filed: 02/24/2016 Page: 15 of 112

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 15 Case: 12-15548 Date Filed: 02/24/2016 Page: 16 of 112

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

16 Case: 12-15548 Date Filed: 02/24/2016 Page: 17 of 112

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

of the judicial process.

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. 17 Case: 12-15548 Date Filed: 02/24/2016 Page: 18 of 112

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

18 Case: 12-15548 Date Filed: 02/24/2016 Page: 19 of 112

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.). 19 Case: 12-15548 Date Filed: 02/24/2016 Page: 20 of 112

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 20 Case: 12-15548 Date Filed: 02/24/2016 Page: 21 of 112

(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)). 21 Case: 12-15548 Date Filed: 02/24/2016 Page: 22 of 112

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 22 Case: 12-15548 Date Filed: 02/24/2016 Page: 23 of 112

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 Case: 12-15548 Date Filed: 02/24/2016 Page: 24 of 112

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

24 Case: 12-15548 Date Filed: 02/24/2016 Page: 25 of 112

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

25 Case: 12-15548 Date Filed: 02/24/2016 Page: 26 of 112

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.

26 Case: 12-15548 Date Filed: 02/24/2016 Page: 27 of 112

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).

27 Case: 12-15548 Date Filed: 02/24/2016 Page: 28 of 112

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. 28 Case: 12-15548 Date Filed: 02/24/2016 Page: 29 of 112

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. 29 Case: 12-15548 Date Filed: 02/24/2016 Page: 30 of 112

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. 30 Case: 12-15548 Date Filed: 02/24/2016 Page: 31 of 112

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

31 Case: 12-15548 Date Filed: 02/24/2016 Page: 32 of 112

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.

32 Case: 12-15548 Date Filed: 02/24/2016 Page: 33 of 112

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 33 Case: 12-15548 Date Filed: 02/24/2016 Page: 34 of 112

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. 34 Case: 12-15548 Date Filed: 02/24/2016 Page: 35 of 112

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). 35 Case: 12-15548 Date Filed: 02/24/2016 Page: 36 of 112

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.

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. 36 Case: 12-15548 Date Filed: 02/24/2016 Page: 37 of 112

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, . . . 37 Case: 12-15548 Date Filed: 02/24/2016 Page: 38 of 112

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). 38 Case: 12-15548 Date Filed: 02/24/2016 Page: 39 of 112

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. 39 Case: 12-15548 Date Filed: 02/24/2016 Page: 40 of 112

managed to strip the Bankruptcy Court of its broad discretion as the “ultimate

custodian of the estate.” 26

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). 40 Case: 12-15548 Date Filed: 02/24/2016 Page: 41 of 112

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. 41 Case: 12-15548 Date Filed: 02/24/2016 Page: 42 of 112

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. 42 Case: 12-15548 Date Filed: 02/24/2016 Page: 43 of 112

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. 43 Case: 12-15548 Date Filed: 02/24/2016 Page: 44 of 112

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. 44 Case: 12-15548 Date Filed: 02/24/2016 Page: 45 of 112

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). 45 Case: 12-15548 Date Filed: 02/24/2016 Page: 46 of 112

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.

The Bankruptcy Court agreed, the District Court affirmed, and Rebhan appealed to

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. 46 Case: 12-15548 Date Filed: 02/24/2016 Page: 47 of 112

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

formulation articulated in American National Bank: “Judicial estoppel is applied

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 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. 47 Case: 12-15548 Date Filed: 02/24/2016 Page: 48 of 112

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

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. 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 48 Case: 12-15548 Date Filed: 02/24/2016 Page: 49 of 112

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

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. 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. 49 Case: 12-15548 Date Filed: 02/24/2016 Page: 50 of 112

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

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 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 50 Case: 12-15548 Date Filed: 02/24/2016 Page: 51 of 112

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-

of-justice rule that only the position taken in “a prior proceeding” needed to be

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). 51 Case: 12-15548 Date Filed: 02/24/2016 Page: 52 of 112

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 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.” 52 Case: 12-15548 Date Filed: 02/24/2016 Page: 53 of 112

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

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. 53 Case: 12-15548 Date Filed: 02/24/2016 Page: 54 of 112

divergent-sworn-positions-and-mockery-of-justice rule’s “divergent sworn

positions” element thus fell by the wayside. 62

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). 54 Case: 12-15548 Date Filed: 02/24/2016 Page: 55 of 112

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 55 Case: 12-15548 Date Filed: 02/24/2016 Page: 56 of 112

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. 56 Case: 12-15548 Date Filed: 02/24/2016 Page: 57 of 112

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. 57 Case: 12-15548 Date Filed: 02/24/2016 Page: 58 of 112

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. 58 Case: 12-15548 Date Filed: 02/24/2016 Page: 59 of 112

2.

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 59 Case: 12-15548 Date Filed: 02/24/2016 Page: 60 of 112

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 60 Case: 12-15548 Date Filed: 02/24/2016 Page: 61 of 112

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: 61 Case: 12-15548 Date Filed: 02/24/2016 Page: 62 of 112

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. 62 Case: 12-15548 Date Filed: 02/24/2016 Page: 63 of 112

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— 63 Case: 12-15548 Date Filed: 02/24/2016 Page: 64 of 112

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: 64 Case: 12-15548 Date Filed: 02/24/2016 Page: 65 of 112

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. 65 Case: 12-15548 Date Filed: 02/24/2016 Page: 66 of 112

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

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. 66 Case: 12-15548 Date Filed: 02/24/2016 Page: 67 of 112

‘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. 67 Case: 12-15548 Date Filed: 02/24/2016 Page: 68 of 112

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). 68 Case: 12-15548 Date Filed: 02/24/2016 Page: 69 of 112

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. 69 Case: 12-15548 Date Filed: 02/24/2016 Page: 70 of 112

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. 70 Case: 12-15548 Date Filed: 02/24/2016 Page: 71 of 112

divergent sworn positions in judicial proceedings.”122 In so many words, we said

that permitting a party to assert under oath a position directly contrary to a position

he had taken under oath in a former judicial proceeding would pervert the judicial

process.123 Judicial estoppel, in barring the asserted position, protects that process.

In McKinnon, the court adhered to the Chrysler Credit formulation of the

doctrine and said, in effect, that in attempting to manipulate the court system

through the assertion of divergent sworn positions, a party was “making a mockery

of justice by inconsistent pleadings.” 124 In Salomon, a diversity case, 125 after

reiterating verbatim the divergent-sworn-positions-and-mockery-of-justice rule, the

court stated that: “[t]his 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,” 126 the two-element

statement. Because the court was applying a state-law version of judicial estoppel,

the added sentence had no effect on the federal version of the doctrine this court

had adopted in Chrysler Credit and applied foursquare in McKinnon.

122 Chrysler Credit, 842 F.2d at 1261 (quoting Johnson Serv., 585 F.2d at 174). In that case, Rebhan was actually attempting to manipulate the system in the Bankruptcy Court by asserting under oath a position directly contrary to the position he had taken in a North Carolina court also under oath. See id. 123 Id. 124 McKinnon, 935 F.2d at 1192 (quoting Am. Nat’l Bank, 710 F.2d at 1536). 125 See 28 U.S.C. § 1332. 126 Salomon, 260 F.3d at 1308. 71 Case: 12-15548 Date Filed: 02/24/2016 Page: 72 of 112

Nine months later, in Burnes, a federal-question case, the court treated

Salomon as if it were a federal-question case rather than a diversity case and

adopted the two-element statement as expressing the burden of proof a party must

satisfy to invoke judicial estoppel before the District Court. 127 A party need only

show that the debtor is prosecuting a claim that he had not disclosed to the

Bankruptcy Court as required by 11 U.S.C. § 521(a).

The Burnes Court would have realized, of course, that there is a difference

between the requirements of the divergent-sworn-positions-and-mockery-of-justice

rule and the two-element statement in terms of what a party must prove to establish

the judicial-estoppel defense and that it was bound to apply the divergent-sworn-

positions-and-mockery-of-justice rule, if applicable. I assume that the court

considered the divergent-sworn-positions-and-mockery-of-justice rule inapplicable

in the sense that Chrysler Credit (which McKinnon followed) set an example by

formulating a version of judicial estoppel appropriate for the specific factual

situation presented in that case.128 Chrysler Credit gave the court leeway to do the

same thing, to fashion a rule for the specific situation at hand.129 Moreover, as the

127 See Burnes, 291 F.3d at 1285–86 (adopting the two-element statement). 128 Chrysler Credit, 842 F.2d at 1261 (“Because this is a bankruptcy case, involving . . . issues of dischargeability, we are . . . free to apply a formulation of the judicial estoppel doctrine as we think proper.”). 129 “We conclude 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.” Burnes, 291 F.3d at 1285–86. 72 Case: 12-15548 Date Filed: 02/24/2016 Page: 73 of 112

court noted, the Supreme Court in New Hampshire acknowledged that “the

I posit that this is what this court did first in 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 then in Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171 (11th Cir. 2013); it formulated a version of judicial estoppel appropriate for the circumstances at hand, although in neither case did it invoke doctrine. Riviera Beach was an in rem proceeding in admiralty. Riviera Beach, 649 F.3d at 1262. The appellant, Lozman, argued that Riviera Beach was judicially estopped from bringing a maritime claim against the defendant vessel because its position was allegedly inconsistent with its position (neither of which was under oath) in an earlier lawsuit between the same parties. Id. at 1265. In rejecting the estoppel argument, the court cited McKinnon, with the exception of the “divergent sworn positions” element of the divergent-sworn-positions-and-mockery-of-justice rule, id. at 1275, and Zedner v. United States, 547 U.S. 489, 126 S. Ct. 1976, 164 L. Ed. 2d 749 (2006), which adhered to the elements of the doctrine New Hampshire invoked: Judicial estoppel is “designed to prevent parties from making a mockery of justice by inconsistent pleadings.” McKinnon[, 935 F.3d at 1192]. While judicial estoppel “cannot be reduced to a precise formula or test,” Zedner[, 547 U.S. at 504, 126 S. Ct. at 1976], three factors typically inform the inquiry: (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 if not estopped. Riviera Beach, 649 F.3d at 1273. In Tampa Bay Water, Tampa Bay argued that HDR Engineering was estopped because of an inconsistent position it had taken in an earlier phase of the same case (not under oath). 731 F.3d at 1177. The court did not apply the doctrine because the positions were not inconsistent. Id. at 1182. Though it did not cite Riviera Beach for the version of the doctrine it considered, the court repeated Riviera Beach’s version verbatim. The Tampa Bay Water Court also cited this Circuit’s earlier recitation of the three New Hampshire elements (which Zedner reiterated) in Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010), but not the Burnes formulation, which the Robinson Court actually applied in these words: The seminal case in the Eleventh Circuit on the theory of judicial estoppel is Burnes . . . . Incorporating the standards enumerated by the Supreme Court, Burnes outlined two primary factors for establishing the bar of judicial estoppel. “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.” Burnes recognized that these factors are not exhaustive; rather, courts must always give due consideration to the circumstances of the particular case. See id. at 1273 (citation omitted) (quoting Burnes, 291 F.3d at 1285). Neither Riviera Beach nor Tampa Bay Water has been cited in any of our reported opinions in cases presenting the Burnes– Barger context and the situation here. 73 Case: 12-15548 Date Filed: 02/24/2016 Page: 74 of 112

circumstances under which judicial estoppel may appropriately be invoked are

probably not reducible to any general formulation of principle.”130

So, the Burnes Court formulated a different version of judicial estoppel, one

appropriate for the situation before it. Judicial estoppel can apply even though the

debtor’s inconsistent position in the District Court is not under oath. This no doubt

explains why the Burnes opinion does not identify the position the debtor took

under oath in that court. 131 All that matters is that the debtor got caught

prosecuting a lawsuit he had concealed from the Bankruptcy Court. The Barger

Court thereafter applied Burnes’s formulation of the doctrine to estop a bankruptcy

trustee who had been substituted as plaintiff for the debtor, who lacked standing to

sue.132

Under Barger, a trustee will be able to avoid summary judgment only if, on

the evidence presented, 133 it could reasonably be inferred that at the time the debtor

failed to disclose the claim and the litigation to the Bankruptcy Court, the debtor

130 Burnes, 291 F.3d at 1285 (quoting New Hampshire, 532 U.S. at 750, 121 S. Ct. at 1815). 131 Like the Burnes opinion, the Barger opinion does not identify the position the debtor took under oath in the District Court. 132 This is the scenario the instant case presents, except that, at the time the District Court granted U.S. Steel summary judgment, Slater was proceeding as the debtor in possession of her Chapter 13 bankruptcy estate and not as the trustee of the estate. 133 The court would consider the evidence in the light most favorable to the trustee. 74 Case: 12-15548 Date Filed: 02/24/2016 Page: 75 of 112

either lacked knowledge of the claim or a motive for concealing it or, conversely,

that the nondisclosure was inadvertent or a mistake.134

As a practical matter, the evidence will yield neither inference.135 Moreover,

that the trustee lacked knowledge of the debtor’s nondisclosure or the

nondisclosure was the debtor’s lawyer’s fault is irrelevant. 136 In truth, to say that a

trustee could avoid summary judgment if he established that the debtor’s

nondisclosure was inadvertent or a mistake is to say that the trustee could not

establish either fact. The words inadvertent and mistake are meaningless.

Given this reality, a bankruptcy trustee has two options. The first assumes

that the value of the debtor’s previously undisclosed claim is such that it would be

prudent to expend the funds necessary to seek en banc review of the Barger

precedent. Two alternative routes to the en banc court would be available. The

first would begin in the District Court. The trustee would intervene in the case the

debtor brought in the District Court and suffer an adverse judgment there and in

134 See supra Part II.C.2. 135 This is essentially what the Fifth Circuit observed in Love v. Tyson Foods, Inc.: As one court has stated, “the motivation sub-element is almost always met if a debtor fails to disclose a claim or possible claim to the bankruptcy court. Motivation in this context is self-evident because of potential financial benefit resulting from the nondisclosure.” Similarly, this court has found that debtors had a motivation to conceal where they stood to “reap a windfall had they been able to recover on the undisclosed claim without having disclosed it to the creditors.” 677 F.3d 258, 262 (5th Cir. 2012) (citations omitted). 136 See Barger, 348 F.3d at 1295–96; supra notes 71–76 and accompanying text. 75 Case: 12-15548 Date Filed: 02/24/2016 Page: 76 of 112

this court on appeal.137 The second would begin in the Bankruptcy Court. The

trustee would commence an adversary proceeding and suffer an adverse judgment

there, in the District Court,138 and in this court on appeal.139

The second option, which the trustee would take if the value of the claim did

not counsel taking the first option, would be to abandon the claim pursuant to 11

U.S.C. § 554, 140 in which event the claim would revert to the debtor. The claim

would be worthless. The party potentially liable on the claim would not honor the

claim because, if the debtor sued, judicial estoppel would bar the claim. 141

In sum, as long as the Barger decision continues to be binding precedent, the

trustee of the bankruptcy estate will be unable to step in for the debtor and

prosecute the claim he tried to conceal from the Bankruptcy Court. By operation

137 See 28 U.S.C. § 1291. 138 Id. § 158(a)(3). 139 Id. § 158(d). 140 Section 554, “Abandonment of property of the estate,” states, in pertinent part: (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. 11 U.S.C. § 554. After the District Court issued an order dismissing the debtor’s claim for lack of standing, the trustee would inform the District Court that he was opting not to intervene, in which event the court would enter a final judgment dismissing the case without prejudice. At this point, the claim would be sitting in the bankruptcy estate subject to administration by the trustee. 141 The debtor could file the lawsuit because the District Court would have dismissed the earlier suit without prejudice for the debtor’s lack of standing. 76 Case: 12-15548 Date Filed: 02/24/2016 Page: 77 of 112

of law, due to a judgment based on judicial estoppel, the claim will be conveyed

from the bankruptcy estate to the party potentially liable to the estate, or the claim

will be abandoned to the debtor as a worthless asset.

Allowing the first of these two outcomes by continuing to apply a precedent

that has long been detached from its moorings in equity only guarantees the very

mockery of justice the doctrine of judicial estoppel was designed to avoid.

In Part III., having discussed the doctrine’s historical underpinnings at some

length, I begin unpacking the effect of the judicial estoppel mandated by Burnes v.

Pemco Aeroplex, Inc.142 and Barger v. City of Cartersville143 by explaining how

their continued application fails both to preserve the integrity of the judicial system

and to punish and deter oath-breaking. Then, I turn to the impropriety of

fashioning such an equitable remedy in the face of the perfectly adequate range of

criminal and civil legal remedies designed by Congress to apply across

proceedings in the bankruptcy system, which are in clear tension with the

invocation of judicial estoppel. I conclude my analysis with the observation that

this state of affairs, which cannot be justified as an exercise of this or any court’s

equitable power and works to impugn, rather than preserve, the judicial system’s

integrity, must be set straight by the en banc court.

142 Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002). 143 Barger v. City of Cartersville, 348 F.3d 1289 (11th Cir. 2003). 77 Case: 12-15548 Date Filed: 02/24/2016 Page: 78 of 112

Before explaining why applying judicial estoppel as required by Burnes and

Barger fails to achieve that doctrine’s purpose, it is first necessary to flush out

exactly what that purpose is and what it is not. Judicial estoppel, properly

understood, is concerned with the “integrity of the judicial system, not the

litigants.”144 It focuses on the “‘judicial process’”145—specifically, the intentional

use of “‘inconsistent positions’” 146 or “‘inconsistent pleadings’”147 to “manipulate

the judicial system” 148 or to “‘make a mockery of the judicial system.’” 149 What

might constitute “a mockery of justice” is elusive. Our cases don’t define the

phrase.150 I assume that the intentional manipulation of a judicial system would

constitute a mockery of justice.

144 Burnes, 291 F.3d at 1286. 145 Id. at 1285 (quoting New Hampshire v. Maine, 532 U.S. 742, 749, 121 S. Ct. 1808, 1814, 149 L. Ed. 2d 968 (2001)). 146 Id. (quoting Salomon Smith Barney, Inc. v. Harvey, 260 F.3d 1302, 1308 (11th Cir. 2001), cert. granted and vacated on other grounds, 537 U.S. 1085, 123 S. Ct. 718, 154 L. Ed. 2d 629 (2002)). 147 Id. (quoting Am. Nat’l Bank of Jacksonville v. Fed. Deposit Ins. Corp., 710 F.2d 1528, 1536 (11th Cir. 1983)). 148 Id. 149 Id. (quoting Salomon, 260 F.3d at 1308). 150 I do not include the habeas cases decided by the former Fifth Circuit that are discussed in note 42 supra. 78 Case: 12-15548 Date Filed: 02/24/2016 Page: 79 of 112

The doctrine’s sine qua non in the context we’re dealing with here is that the

debtor’s position in the Bankruptcy Court is under oath and is false. 151 It is false

because his position in the District Court is inconsistent with that position.152 If the

debtor’s position in the Bankruptcy Court is not under oath, the doctrine does not

apply—even if the debtor intends to manipulate the judicial system.

Burnes and Barger involved two judicial systems, 153 the District Court’s and

the Bankruptcy Court’s. 154 Did the District Court apply the doctrine of judicial

estoppel and bar the claims in those cases to protect the integrity of both judicial

systems or only one? I posit that the District Court applied the doctrine to protect

151 During the debtor’s prosecution of his claim in the District Court, his position in the Bankruptcy Court is essentially a statement that he is not prosecuting the claim in the District Court—that he possesses no such claim. That he is prosecuting the claim proves that such statement is false. 152 The opposite conclusion was reached in 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). There, the debtor made inconsistent statements under oath in a North Carolina court and subsequently in the Bankruptcy Court. Id. at 1261. In applying the doctrine, the Bankruptcy Court considered the first statement as true and the later statement as false. Id. at 1260. 153 The doctrine of judicial estoppel appears to have been originally understood by this court as protecting a unitary “judicial system” against calculating litigants who would take different positions under oath in different courts, causing harm to the system as a whole. See, e.g., Johnson Serv. Co. v. Transamerica Ins. Co., 485 F.2d 164, 175 (5th Cir. 1973) (describing judicial estoppel as protecting against “those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings” (emphasis added)). But this understanding has given way as the doctrine has been extended so that Article III courts may now invoke judicial estoppel to vindicate the interests of bankruptcy and state courts as well. See, e.g., Burnes, 291 F.3d at 1282 (applying judicial estoppel to a prior inconsistent position taken in bankruptcy court); Chrysler Credit, 842 F.2d at 1257 (same for a prior inconsistent position taken in state court). For purposes of this opinion, I refer to the Bankruptcy Court and the District Court, which serve discrete interests, as separate “judicial systems.” 154 The same is of course true about the instant case and the Burnes and Barger progeny. 79 Case: 12-15548 Date Filed: 02/24/2016 Page: 80 of 112

the system in the Bankruptcy Court only, 155 to cause future debtors to make a full

disclosure of their assets—here, assets in the form of actionable claims for

damages. 156

The opinions in Burnes and Barger all but say this explicitly. The opinions

emphasize at length the need for debtors to disclose their assets and potential assets

to the Bankruptcy Court as required by 11 U.S.C. §§ 521(a)(1)(B)(i) and (iii).

Moreover,

[t]he duty to disclose is a continuing one that does not end once the forms are submitted to the bankruptcy court; rather, a debtor must amend his financial statements if circumstances change. Full and honest disclosure in a bankruptcy case is crucial to the effective functioning of the federal bankruptcy system. For example, creditors rely on a debtor's disclosure statements in determining whether to contest or consent to a no asset discharge. Bankruptcy courts also rely on the accuracy of the disclosure statements when considering

155 The Fifth Circuit agreed in Reed v. City of Arlington, 650 F.3d 571 (5th Cir. 2011) (en banc), a case on all fours with Barger in that the debtors’ lawsuit was filed prior to the filing of the debtors’ Chapter 7 petition and the debtors failed to schedule the judgment as an asset of the bankruptcy estate. Id. at 573; Barger, 348 F.3d at 1291. In refusing to invoke the doctrine of judicial estoppel against the bankruptcy trustee, who had intervened in the case after the nondisclosure of the judgment, the court stated: “This result upholds the purpose of judicial estoppel, which in this context is to protect the integrity of the bankruptcy process, by adhering to basic tenets of bankruptcy law and by preserving the assets of the bankruptcy estate for equitable distribution to the estate’s innocent creditors.” Reed, 650 F.3d at 572–73 (emphasis added). 156 Although bankruptcy courts are not Article III courts, it is not surprising, given their overlapping but distinct spheres of authority, that the district courts would be especially solicitous of the bankruptcy courts’ interests. See Stern v. Marshall, 564 U.S. ___, ___, 131 S. Ct. 2594, 2609–11, 180 L. Ed. 2d 475 (2011) (explaining the constitutional limits of bankruptcy courts’ decisionmaking authority); see also N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 60–76, 102 S. Ct. 2858, 2866–74, 73 L. Ed. 2d 598 (1982) (plurality opinion). 80 Case: 12-15548 Date Filed: 02/24/2016 Page: 81 of 112

whether to approve a no asset discharge. Accordingly, the importance of full and honest disclosure cannot be overstated.157

The Burnes and Barger debtors failed to disclose the claims they were

pursuing, so the dispositive question became whether they intended to

mislead the Bankruptcy Court. In both cases, the District Court found the

intent to mislead as a matter of law and, applying the doctrine, granted

summary judgment. 158 In affirming the judgments, this court made it clear

that the invocation of judicial estoppel was necessary to protect the

bankruptcy system, not the processing of litigation in the District Court. 159

Indeed, the opinions in Burnes and Barger have nothing to say about the

judicial process in the District Court except to state, or imply, that the debtor

took an inconsistent position in that court. 160 The inconsistent position made

false the debtor’s position in the Bankruptcy Court and thus set the stage for

judicial estoppel to perform its service—the protection of the integrity of the

bankruptcy system.

The District Court does not need protection from a litigant’s assertion of an

inconsistent claim (or defense), even where, in another proceeding, the litigant

denied under oath the existence of the claim or defense. In fact, the assertion of

inconsistent claims (or defenses) is commonplace in district court litigation. The 157 Burnes, 291 F.3d at 1286 (quotations marks and citations omitted). 158 See Barger, 348 F.3d at 1292; Burnes, 291 F.3d at 1284. 159 Barger, 348 F.3d at 1294–97; Burnes, 291 F.3d at 1286. 160 See Barger, 348 F.3d at 1293–94; Burnes, 291 F.3d at 1286. 81 Case: 12-15548 Date Filed: 02/24/2016 Page: 82 of 112

Federal Rules of Civil Procedure permit their assertion. As Rule 8(d)(3) provides,

“A party may state as many separate claims or defenses as it has, regardless of

consistency.” 161

The Burnes and Barger opinions contain no mention of Rule 8(d)(3), much

less an explain why it is inoperative when the previous statement was under oath,

but operative when the previous statement was not under oath. I fail to

comprehend why an oath should make a difference.

Prior inconsistent statements made under oath are ubiquitous in litigation

regardless of the forum in which they are made. They occur in all sorts of

settings—on deposition or in sworn answers to interrogatories in the case being

litigated or in previous proceedings. Prior inconsistent statements are the stuff of

impeachment on cross-examination. If made by a party, the party’s adversary may

introduce them into evidence as admissions. 162

Striking a meritorious claim that has been pled as permitted by Rule 8—

because the claimant previously swore that the claim did not exist—in order to

161 Fed. R. Civ. P. 8(d)(3); see also United Techs. Corp. v. Mazer, 556 F.3d 1260, 1273 (11th Cir. 2009) (“Rule 8(d) of the Federal Rules of Civil Procedure expressly permits the pleading of both alternative and inconsistent claims.”); Allstate Ins. Co. v. James, 779 F.2d 1536, 1540–41 (11th Cir. 1986) (“Litigants in federal court may pursue alternative theories of recovery, regardless of their consistency.”). The substance of Rule 8(d)(3) has been in effect since the adoption of the Federal Rules of Civil Procedure in 1937, when the then-current version provided that “[a] party may . . . state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in Rule 11.” Fed. R. Civ. P. 8(e)(2) (1937). 162 See Fed. R. Evid. 801(d)(2). 82 Case: 12-15548 Date Filed: 02/24/2016 Page: 83 of 112

protect the integrity of the judicial process in the District Court is inconceivable to

me. 163 I cannot imagine a District Judge dismissing a cognizable claim simply

because the debtor previously stated under oath that the claim did not exist. The

Barger Court, however, read Burnes as commanding District Judges to do just that,

even though the claim no longer belongs to the debtor, but to the bankruptcy estate

instead, and that the estate’s trustee is pursuing the claim for the benefit of the

creditors, who are innocent of the debtor’s transgression.

In affirming the dismissal of the trustee’s claims, the Barger Court

acknowledged that the trustee was faultless, 164 and thus beyond sanction. The

court also knew that the creditors would be bearing the loss of the claims’ value,

which the District Court’s judgment would, by operation of law, transfer to the

defendant as a pure windfall. The rationale for such a disposition is the one the

163 Throughout this special concurrence, I am assuming that the claims that are estopped are at least potentially meritorious, in that they have withstood, or are capable of withstanding, a motion to dismiss. See Fed. R. Civ. P. 12(b)(6). I am also assuming that the bankruptcy trustee (who has replaced the debtor, who lacks standing) is not subject to sanction under Rule 11 of the Federal Rules of Civil Procedure. After all, in order for the District Court to treat the debtor’s position in the Bankruptcy Court as false, it must assume that debtor’s position in the District Court litigation, which the trustee has endorsed, is true. 164 Barger, 348 F.3d at 1296; see supra note 104. The court said this in response to the Bankruptcy Court’s statement that the debtor “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,” In re Barger, 279 B.R. 900, 908 (Bankr. N.D. Ga. 2002): The Court is not persuaded by the bankruptcy court's reasoning. The foremost responsibility in this matter was for Barger to fully disclose her assets. She did not satisfy her duty. Instead, she dissembled to the trustee and indicated that her discrimination claim had no monetary value. As such, the trustee can hardly be faulted for not further investigating Barger's discrimination suit. Barger, 348 F.3d at 1296. 83 Case: 12-15548 Date Filed: 02/24/2016 Page: 84 of 112

court borrowed from Burnes. The trustee’s claim must be dismissed in order to

stimulate the “necessary incentive [of future debtors] to provide the bankruptcy

court with a truthful disclosure of [their] assets.” 165 Presumably, once debtors

realized the harm they will cause their creditors if they are caught hiding their

assets, and the shame that may engender, they may think twice. The loss of future

relationship with some of their creditors will move debtors to make a truthful

disclosure of their assets.

The Bankruptcy Court in Barger read Burnes as using judicial estoppel as a

means of punishing oath-breaking. In overruling the City’s objection to the

debtor’s motion to reopen her Chapter 7 case, the court addressed the City’s

Burnes-based argument—that the debtor had to pay a penalty for concealing her

claims—thusly:

If there are adverse consequences that a debtor should suffer due to omission of a scheduled claim, there are punishments other than judicial estoppel that can be directed at a debtor, rather than the estate and creditors, such as sanctions under Fed. R. Bankr. P. 9011, revocation of the discharge, or denial of any exemption in the claim and its proceeds.166

Burnes and Barger imply that judicial estoppel’s service is to stimulate the full

disclosure, or deter the concealment, of debtors’ assets, not to punish the debtor. I

agree with the Bankruptcy Court. The doctrine’s service is punishment.

165 Id. at 1297 (quoting Burnes, 291 F.3d at 1288). 166 In re Barger, 279 B.R. at 908 (emphasis added) (citing In re Lewis, 273 B.R. 739, 748 (Bankr. N.D. Ga. 2001)). 84 Case: 12-15548 Date Filed: 02/24/2016 Page: 85 of 112

Having described the subtle yet crucial shift in the motivating rationale

behind judicial estoppel that occurred in Burnes and Barger, it should not be hard

to understand why borrowing an equitable remedy specially fashioned for the

preservation of the integrity of the judicial system to punish inconsistent pleadings

will fail to achieve either the former or the latter. Debtors will be prompted to

make full disclosure of their assets, instead of hiding them, when they realize, on

reflection, that if they are caught hiding them, they will be penalized. The debtors

in Burnes and Barger were caught, but were they penalized? They gave up

property that wasn’t theirs. But that was the extent of it. 167

Standing alone, relieving a thief of stolen property is unlikely to deter theft.

If anything, it would encourage more theft. Applying the equitable remedy of

judicial estoppel—to the exclusion of the extensive, but apparently inadequate,

range of criminal and civil legal remedies for oath-breaking—would guarantee that

all that would happen to debtors who get caught prosecuting undisclosed claims

would be that those claims get dismissed. The only downside for the debtor,

therefore, is the psychic cost to his conscience and the expense of bringing suit.

167 The debtors in Burnes and Barger would, in fact, be penalized if their claims were sufficiently valuable to pay off their creditors with additional funds left over. Future creditors might engage in a sort of cost–benefit analysis in deciding whether to conceal actionable claims for damages. 85 Case: 12-15548 Date Filed: 02/24/2016 Page: 86 of 112

There is simply no deterrence for the cold and calculating litigant, who stands to

gain much and lose nothing.

Not only is the particular equitable remedy Burnes and Barger created

ineffective, but resorting to an equitable remedy to punish oath-breaking debtors

itself is inappropriate, given the extensive range of perfectly adequate criminal and

civil legal remedies with which the logic and effect of judicial estoppel are at odds.

I accept for the moment that the doctrine’s objective is not to punish the debtor but

to motivate debtors to make full disclosure of their assets168 and turn to the effect

Barger’s pursuit of that objective has on the Bankruptcy Court’s application of the

rules and statutory provisions, criminal as well as civil, Congress has set in place to

achieve it. 169 I begin, in Part III.B.1., with Rule 1009 of the Federal Rules of

168 Full disclosure is “crucial to the effective functioning of the federal bankruptcy system.” Burnes, 291 F.3d at 1286 (quotation marks omitted). “[T]he importance of full and honest disclosure cannot be overstated.” Id. (quotation marks omitted). Consider another highly technical area of the law in which voluntary compliance is critical: the federal income-tax regime. It would be quite strange indeed if the Internal Revenue Code provided for the “punishment” of taxpayers who fail to report the proceeds of meritorious lawsuits by doing nothing more than return the taxable portion of any recovery to the defendants in those suits. Such a rule would impose no deterrent on future tax evaders, do nothing to encourage reporting, fail to raise any revenue for the Government, and inappropriately lump together inadvertent or negligent taxpayers with the consciously recalcitrant despite the general policy of tolerance toward nonintentional noncompliance. Cf. Ratzlaf v. United States, 510 U.S. 135, 144–47, 114 S. Ct. 655, 660–62, 126 L. Ed. 2d 615 (1994); Cheek v. United States, 498 U.S. 192, 201–04, 111 S. Ct. 604, 610–12, 112 L. Ed. 2d 617 (1991). That an analogous equitable doctrine would be considered necessary in the context of bankruptcy law is at least an equally dubious proposition. 169 I omit reference to Burnes in this discussion because, in Burnes, the appellant was the debtor, not the bankruptcy trustee. Burnes, 291 F.3d at 1284. The court was not faced with the question of whether the trustee’s, i.e., the creditors’ interests, should be taken into account in 86 Case: 12-15548 Date Filed: 02/24/2016 Page: 87 of 112

Bankruptcy Procedure and 11 U.S.C. § 350 because their immediate purpose is to

foster full disclosure of assets and thereby “secure the just, speedy, and

inexpensive determination of every case and proceeding.”170 Part III.B.2. next

explains how Barger obstructs the Bankruptcy Court’s ability to use Rule 1009 and

§ 350 and the other tools it has been provided to foster full disclosure. And Part

III.B.3. explains the intolerable dilemma Barger has created for the Bankruptcy

Courts.

The full and complete scheduling of a debtor’s assets as required by the

Bankruptcy Code does not always happen. Omissions frequently occur in the

Statement of Financial Affairs and Schedules of Assets and Liabilities a debtor

files with his bankruptcy petition, 171 and they occur when, as in Burnes, the debtor

amends his schedules as the bankruptcy estate is being administered.172 The

Supreme Court, in proposing Rule 1009 to Congress, and Congress, in adopting

it,173 realized this, so Rule 1009 provides that “[a] voluntary petition, list, schedule,

or statement may be amended by the debtor as a matter of course at any time

determining whether, as a matter of equitable discretion, judicial estoppel should be invoked. In Barger, the trustee’s interests were at stake and dealt with. Barger, 348 F.3d at 1292–93. 170 Fed. R. Bankr. P. 1001. 171 See 11 U.S.C. § 521(a)(1)(B)(i), (iii); Fed. R. Bankr. P. 1007(b)(1)(A), (D). 172 Burnes, 291 F.3d at 1284. 173 See 28 U.S.C. § 2075. 87 Case: 12-15548 Date Filed: 02/24/2016 Page: 88 of 112

before the case is closed.” 174 These filings may be amended to include an asset of

the bankruptcy estate whether the debtor’s failure to list the asset earlier was

inadvertent or a mistake or was “calculated to make a mockery of the judicial

system.” 175

Sometimes a debtor’s failure to disclose an asset of the estate is not

discovered until after the case is closed. Since the asset had never been scheduled

and the bankruptcy trustee, obviously unaware of the asset, had not abandoned it,

the asset is still property of the bankruptcy estate.176 The asset is in limbo. The

174 Fed. R. Bankr. P. 1009(a); see supra note 85. 175 Burnes, 291 F.3d at 1285. The Supreme Court and Congress obviously had cases like Burnes in mind in providing without qualification that a debtor may amend his bankruptcy filings “as a matter of course at any time before the case is closed.” Fed. R. Bankr. P. 1009(a). The Burnes opinion does not mention Rule 1009 at all. Nonetheless, I assume that Burnes would not preclude a debtor from amending his filings to list a cognizable claim for damages before his nondisclosure has been discovered. It would appear, though, that if the party potentially liable on the claim discovers that the claim has not been scheduled and brings the matter to the bankruptcy trustee’s attention, he thereby sets the stage for the application of judicial estoppel should the debtor amend his schedules and the trustee thereafter takes steps to recover on the claim. 176 See 11 U.S.C. § 541. Section 541, “Property of the estate,” provides, in pertinent part, that the filing of a voluntary petition for bankruptcy relief “creates an estate . . . comprised of . . . all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a). “Even after the case is closed, the estate continues to retain its interest in unscheduled property.” 5 Collier on Bankruptcy, ¶ 554.03 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.). Moreover, where the debtor fails to notify either the trustee or the creditors of a claim, the doctrine of abandonment does not apply. First Nat’l Bank of Jacksboro v. Lasater, 196 U.S. 115, 119, 25 S. Ct. 206, 208 49 L. Ed. 408 (1905). As the court put it in In re Upshur, 317 B.R. 446, 451–52 (Bankr. N.D. Ga. 2004): Property that is not correctly scheduled remains property of the estate forever, until administered or formally abandoned by the trustee. Thus, in the case of an omitted cause of action, the trustee is the real party in interest and the correct defense is one of standing, i.e., the action is not being prosecuted by the real party in interest which is the trustee, not the debtor. Cases like this must be reopened to permit the trustee to deal with the property of the estate. 88 Case: 12-15548 Date Filed: 02/24/2016 Page: 89 of 112

debtor can’t possess or otherwise realize it; neither can the trustee of the

bankruptcy estate because he has been discharged. Congress anticipated this

situation. In enacting 11 U.S.C. § 350, it gave the Bankruptcy Court discretion to

reopen a closed case on “motion of the debtor or other party in interest,” 177 in order

“to administer” for the benefit of the creditors an asset that had not been

scheduled.178 The court may exercise such discretion whether or not the debtor’s

failure to schedule the asset was inadvertent or a mistake or was intentional.179

This is what happened in Barger. Barger had not scheduled her claims for

damages so she moved the Bankruptcy Court to reopen her Chapter 7 case to list

them. 180 The City objected, citing Burnes. 181 If the City’s objection to reopening

Barger’s case were an attempt to exercise control over Barger’s claims, it could

constitute a violation of the stay that had automatically been put in place by 11

177 Fed. R. Bankr. P. 5010. 178 See 11 U.S.C. § 350(b) (providing that “[a] case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.”) The Supreme Court and Congress surely contemplated that if the debtor were attempting to manipulate the Bankruptcy Court, the court, at some point after reopening the case, would sanction the debtor, as the In re Barger Court suggested. In re Barger, 279 B.R. 900, 908 (Bankr. N.D. Ga. 2002). 179 See In re Barger, 279 B.R. at 901; 3 Collier on Bankruptcy, ¶ 350.03[1] (“[T]he discovery of unadministered assets . . . continues to be a sufficient reason for the court to exercise its power [to reopen a case]. . . . [I]t is clear that assets that are not properly disclosed on the schedules are not abandoned and remain property of the estate that can be administered if the case is reopened.”). 180 In re Barger, 279 B.R. at 901. 181 See id. 89 Case: 12-15548 Date Filed: 02/24/2016 Page: 90 of 112

U.S.C. § 362(a)(3) the moment Barger filed her Chapter 7 petition.182 The court,

however, did not view the objection in that way. Instead, it treated the objection as

the City framed it, an argument that Barger should be punished for falsifying her

schedules.183 Accordingly, in ruling on the motion to reopen and the City’s

objection, the court treated the motion and the objection as raising mutually

exclusive issues.184

The court reopened the case because reopening is ordinarily granted for the

benefit of the creditors—to enable the administration of assets of the estate that

were not scheduled or abandoned by the trustee.185 In the matter before it, the

court said that “it [would be] incongruous to punish [Barger’s] creditors and impair

their prospects for a potential recovery . . . in order to improve the City’s judicial

estoppel argument in the District Court.”186 It therefore granted the debtor’s

182 See 11 U.S.C. § 362(a)(3) (providing that the filing of a bankruptcy petition “operates as a stay, applicable to all entities, 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.”). “One of the principal purposes of the automatic stay is to preserve the property of the debtor's estate for the benefit of all the creditors.” In re Prudential Lines Inc., 928 F.2d 565, 573–74 (2d Cir. 1991). The court in In re Barger was obviously aware of this purpose of the stay and that sustaining the City’s objection would remove property from the bankruptcy estate and injure the creditors. See In re Barger, 279 B.R. at 908–09. 183 In re Barger, 279 B.R. at 908–09. 184 See id. at 904. 185 As the court in In re Upshur put it, “the court . . . 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.” 317 B.R. at 451. 186 In re Barger, 279 B.R. at 909. 90 Case: 12-15548 Date Filed: 02/24/2016 Page: 91 of 112

motion.187 The court left the issue of punishment for the District Court to

decide. 188

Barger has obstructed the Bankruptcy Court’s ability to use the tools

Congress has provided to motivate debtor compliance with 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.189 And Barger did so not in an appeal, under 28

U.S.C. § 158(d)(1), from a District Court decision affirming or reversing on

interlocutory appeal the Bankruptcy Court’s decision to reopen under 11 U.S.C.

§ 350, but in an appeal, under 28 U.S.C. § 1291, of the District Court’s decision

estopping the trustee’s claims on summary judgment.

Barger nevertheless appears to be a de novo review of the Bankruptcy

Court’s decision to reopen. It also gives the appearance that this court was

exercising its supervisory power190 over the Bankruptcy Court, instructing the

187 Id. 188 The Bankruptcy Court’s finding that Barger, in failing to amend her schedules, had not “operat[ed] with an intentional or manipulative disregard of the legal system or the bankruptcy processes in this Court,” id. at 908, implies the conclusion that sanctions under the Bankruptcy Code were not called for. 189 See supra note 94. 190 The “supervisory power” refers to this court’s inherent authority to oversee the procedures followed by the district courts and to “fashion[] procedures and remedies that ensure the judicial process remains a fair one.” Reynolds v. Roberts, 207 F.3d 1288, 1301 n.25 (11th Cir. 2000) (quoting Piambino v. Bailey, 757 F.2d 1112, 1145–46 (11th Cir. 1985)). Relevant here, we have previously invoked the supervisory power to prevent “substantial prejudice” to innocent third parties whose interests were harmed by a debtor’s failure to disclose contested property during bankruptcy proceedings. See In re Furlong, 885 F.2d 815, 818–19 (11th Cir. 91 Case: 12-15548 Date Filed: 02/24/2016 Page: 92 of 112

court that, at bottom, it is to deny reopening in any case in which the debtor

omitted to schedule a lawsuit he brought on a claim that belonged to the

bankruptcy estate and filed a motion to reopen after the party he sued discovered

the omission.

The District Court, following Burnes, estopped the estate’s claims for

damages because Barger’s failure to schedule them after her complaint had been

amended to seek damages against the City was neither inadvertent nor a mistake. 191

On appeal, the bankruptcy trustee argued that the Bankruptcy Court’s decision to

reopen should be reviewed under the abuse-of-discretion standard and therefore

affirmed unless the facts supporting the decision were clearly erroneous. Treating

the case as if it were an appeal under § 158(d)(1), the trustee submitted that the

findings of fact set out in the Bankruptcy Court’s order issued pursuant to Rule

52(a) of the Federal Rules of Civil Procedure were fully supported by the record

1989); id. at 819 (Brown, J., concurring) (highlighting the “extreme importance” of protecting third parties and not allowing a debtor to “bargain away their rights” in bankruptcy proceedings). I note in passing that In re Barger was referred to the Bankruptcy Court under the umbrella of 28 U.S.C. § 157(a). Section 157(d), gives the District Court the authority to “withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown.” Id. § 157(d). In light of Reynolds, Piambino, and in particular, In re Furlong, one might posit that the relationship between this court and the district and bankruptcy courts could provide for the exercise of supervisory power with respect to a bankruptcy court’s practices. 191 Barger’s failure to amend her schedules to reflect the pending litigation was undisputed. The Bankruptcy Court found that the failure was excusable, and moreover, that the schedules didn’t need to be amended because the trustee knew about the lawsuit and the claims for damages. The District Court, in granting summary judgment, found that Barger’s conduct was inexcusable because it was neither inadvertent nor a mistake. Thus the District Court effectively substituted its view of the evidence for the Bankruptcy Court’s. 92 Case: 12-15548 Date Filed: 02/24/2016 Page: 93 of 112

and justified the court’s decision to reopen notwithstanding Barger’s failure to

amend her schedules and list the lawsuit pending against the City. 192 The court

found the failure irrelevant since the trustee knew about the litigation. This court,

essentially disregarding the Bankruptcy Court’s findings and conclusions, found on

the same record that Barger’s failure to amend her schedules was intentional, not

inadvertent or a mistake, and therefore was a calculated attempt to manipulate the

judicial system. Burnes required that the District Court’s application of judicial

estoppel be affirmed.

I translate the affirmance into a statement that the Bankruptcy Court abused

its discretion in reopening Barger’s case because it based its decision on an error of

law. This court held that the Bankruptcy Court erred in applying Burnes’s test for

determining whether the debtor’s failure to amend her schedules amounted to a

calculated attempt to manipulate the judicial system. That test, again, is whether

the nondisclosure was inadvertent or a mistake. If Barger was unaware of the

lawsuit or had no motive for pursuing it, the nondisclosure would be inadvertent

and thus could not be considered a calculated attempt to manipulate the judicial

system. But she failed the test: Barger was plainly aware of the lawsuit and had a

192 I assume that the Bankruptcy Court complied with Rule 52(a) in anticipation of the possibility that the City might appeal to the District Court its decision to reopen. This court, in effect, reviewed the Bankruptcy Court’s Rule 52(a) findings and conclusions, which were issued after the District Court issued its order granting summary judgment to the City, in reaching its decision. See Barger, 348 F.3d at 1292, 1294–97. 93 Case: 12-15548 Date Filed: 02/24/2016 Page: 94 of 112

motive for pursuing it; she would reap the benefit of any recovery the lawsuit

might yield. Judicial estoppel accordingly applied as a matter of law. Because it

did, the reopening constituted an abuse of discretion.

That said, I sense that the Barger Court did not view its decision as a review

of the Bankruptcy Court’s decision to reopen. If it did, the court would have

discussed § 350 and Rule 1009 and the policies and the Congressional intent they

implement. But neither § 350 nor Rule 1009 was mentioned. They didn’t have to

be. All that mattered was that Barger failed to amend her schedules to disclose the

claims in litigation. The failure constituted a statement, under penalty of perjury,

that she had no claims for damages pending against the City, a statement that

Barger knew was false. Because it was, Barger, in making it, intended to

manipulate the bankruptcy system.

However one views the Barger Court’s § 1291 decision—whether it

constituted a review of the Bankruptcy Court’s decision to reopen or punishment

for the debtor’s false schedules—its negative effect on the ability of the

Bankruptcy Courts to use the tools Congress provided to enhance full disclosure of

assets is clear. As an initial matter, § 350 and Rule 1009, the primary tools for

ensuring full disclosure, are for all practical purposes rendered inoperative. If a

case has been closed, reopening the case under § 350 to allow the debtor to amend

his schedules pursuant to Rule 1009 and list a previously nonscheduled claim will

94 Case: 12-15548 Date Filed: 02/24/2016 Page: 95 of 112

turn out to be a useless act once the party sued discovers the nondisclosure. The

party will immediately move the District Court to dismiss the debtor from the case

for lack of standing, and the court must grant the motion. If, after the debtor’s

schedules have been amended, the bankruptcy trustee persuades the District Court

to vacate its dismissal and intervenes in place of the debtor or initiates an adversary

proceeding in the Bankruptcy Court, the trustee will be confronted with judicial

estoppel.

If a case remains open and the debtor amends his schedules to reveal the

nondisclosed claim, the trustee will similarly be faced with judicial estoppel. Even

if suit has not been filed, if the debtor’s claim is cognizable (and ready for suit) and

the defendant potentially liable learns of the claim and informs the bankruptcy

trustee, the defendant will have set the stage for invoking judicial estoppel to bar

the trustee’s appearance in the District Court or before the Bankruptcy Court in an

adversary proceeding.

Moreover, the secondary tools Congress has provided to enhance full

disclosure of assets are also rendered practically inoperative.193 The In re Barger

Court opined that those tools, when used, are fully capable of deterring debtors

from concealing their assets and that any deterrence judicial estoppel might

provide would be problematic at best. Moreover, a full weighing of the equities—

193 I describe these secondary tools below. See infra notes 210–212 and accompanying text. 95 Case: 12-15548 Date Filed: 02/24/2016 Page: 96 of 112

the effect on the interests of creditors, the debtor, the City and the public—

counseled reopening the debtor’s case.

In addition to rendering all but inoperative the tools Congress has provided

to enhance the full disclosure of a debtor’s assets, Barger has created a serious

dilemma for a Bankruptcy Court presented, as was the case in Barger, with a

debtor’s motion to reopen in order to schedule an unscheduled claim after the

District Court has dismissed the claim because the debtor lacked standing to

prosecute it. The Bankruptcy Court has two choices. It can heed the dictates of

Barger and sustain the objection to reopening. Or it can disregard the dictates of

Barger and grant the debtor’s motion to reopen. I consider in order the

consequences that result from the exercise of choices.

An immediate consequence of denying reopening is that the court may have

sanctioned the violation of the automatic stay. 194 How? The court has placed its

imprimatur on an “act[, i.e., the objection to reopening,] to exercise control over

194 I would be remiss if I did not mention again an issue that was neither raised nor briefed in this appeal, which is whether the automatic stay, 11 U.S.C. § 362(c)(1), bars the District Court from granting the defendant summary judgment on a set of facts like those in Barger. See supra note 84. Judicial estoppel is not a true affirmative defense. The facts supporting the defense are provided by the debtor’s post-petition behavior, not prepetition behavior relating to his claim and the defendant’s defense to that claim. It is as if the defendant were asking the District Court to bar the trustee’s claim because the debtor robbed a bank. The defense operates like a permissive counterclaim, and in the language of § 362(c)(1), it constitutes “an act against property of the estate.” 96 Case: 12-15548 Date Filed: 02/24/2016 Page: 97 of 112

property of the estate.” 195 Assuming that the denial would not violate the stay,

what happens to the asset, the claim? The claim occupies the same status it was

occupying after the District Court dismissed the debtor’s case. The claim had

neither been scheduled nor abandoned.196 The claim “remains property of the

estate.”197 And under 11 U.S.C. § 362(c)(1), the automatic “stay of an act against

[the unscheduled claim] continues until such property is no longer property of the

estate.”198 In short, since the claim cannot be disturbed, it remains in limbo.

Because the claim is in limbo, the objecting party, who obtained the ruling he

sought, has received a windfall. The windfall is an indefinite postponement of the

reopening of the debtor’s bankruptcy case; following reopening it might be sued by

the trustee or named as a respondent in an adversary proceeding. That is not likely

to occur unless the claim is very valuable and the creditors have gone hence

without day.

195 See 11 U.S.C. § 362(a)(3). 196 The Bankruptcy Court’s order denying reopening could not be construed as the court’s abandonment of the claim because it is generally the trustee’s decision whether to abandon an asset of the bankruptcy estate. See 11 U.S.C. § 554, supra note 140. 197 See In re Dunning Bros. Co., 410 B.R. 877, 879, 887–88 (E.D. Cal. 2009) (citation and quotation marks omitted) (“In the context of unscheduled property, the question of whether the case should be reopened requires only a decision whether there may be unscheduled property that could be administered by a trustee. It is not an appropriate occasion to consider or decide whether defenses could be established against the trustee. So, for example, the equitable defense of laches is not relevant to the decision whether to reopen a case, even though it may later be raised as a defense in the litigation that may follow.”). 198 11 U.S.C. § 362(c)(1) states, in pertinent part: “the stay of an act against property of the estate under subsection (a) of this section continues until such property is no longer property of the estate.” I suggest that, in a case like In re Barger, the stay would have the effect of tolling the statute of limitations on the claim in issue. 97 Case: 12-15548 Date Filed: 02/24/2016 Page: 98 of 112

If the Bankruptcy Court disregards Barger’s dictates and reopens the case,

the consequences are those that flow from a debtor’s amendment of his schedules

in a bankruptcy case that has not been closed. The trustee can move the District

Court to vacate the dismissal of the debtor’s claim and obtain intervention or he

can initiate an adversary proceeding in the Bankruptcy Court. Assuming that

granting judgment to the party the trustee is suing in order to punish the debtor for

his post-petition conduct—filing false schedules—would not violate the automatic

stay, the trustee will be estopped.

Despite this court’s assertions to the contrary, 199 the supposedly equitable

doctrine of judicial estoppel as formulated in Burnes and applied in Barger—

supposedly a doctrine of inconsistent pleadings—is not a doctrine of inconsistent

pleadings. Nor is it an equitable doctrine. Instead, it is a quasi-criminal sanction—

created by this court and masked as judicial estoppel—to punish debtors who make

false statements under oath about the existence of actionable claims they are

prosecuting in the District Court. The application of this doctrine is akin to abuse

199 See Barger, 348 F.3d at 1293 (“Judicial estoppel is an equitable doctrine that precludes a party from ‘asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.’ The doctrine exists ‘to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.’” (citations omitted) (quoting Burnes, 291 F.3d at 1285). 98 Case: 12-15548 Date Filed: 02/24/2016 Page: 99 of 112

of process, the common-law tort, 200 and thus impugns the integrity of the District

Court. At the same time it blemishes the reputation of the Bankruptcy Court and

impedes its ability “to secure the just, speedy, and inexpensive determination of

every case and proceeding”201 pending before it.

The doctrine of judicial estoppel, as formulated first in McKinnon v. Blue

Cross & Blue Shield of Alabama202 and later in New Hampshire v. Maine,203

focuses on the second of the litigant’s two inconsistent pleadings or positions. The

court strikes the second position, the one immediately before it, because the party

is trifling or playing “fast and loose” with the court.204 The Burnes–Barger

doctrine focuses on the litigant’s position in the Bankruptcy Court, whether or not

200 At common law, using a process for which it was not designed is called “abuse of process.” “One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.” Restatement (Second) of Torts § 682 (Am. Law Inst. 1977). “The gravamen of the misconduct . . . is the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish.” Id. § 682 cmt. a. For example, an abuse of the criminal process would occur if a merchant had a person arrested for writing a bad check but dropped the charge the moment the person made good on his debt. The purpose of judicial estoppel, the doctrine of inconsistent pleadings, is to preserve the integrity of the judicial system, not to punish someone for lying under oath. Using judicial estoppel to punish oath-breaking, in line with Burnes and Barger, is therefore analogous to abuse of process. 201 Fed. R. Bankr. P. 1001. 202 McKinnon v. Blue Cross & Blue Shield of Ala., 935 F.2d 1187 (11th Cir. 1999). 203 New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001). 204 See id. at 750, 121 S. Ct. at 1814 (providing that “judicial estoppel prevents parties from playing fast and loose with the courts.” (quotation marks omitted) (quoting Scarano v. Cent. R.R. Co. of N.J., 203 F.2d 510, 513 (3d Cir. 1953))); see also Burnes, 291 F.3d at 1285 (“The purpose of the doctrine is to protect the integrity of the judicial process by preventing parties from playing fast and loose with the courts to suit the exigencies of self interest.” (alteration omitted) (quoting In re Coastal Plains, Inc., 179 F.3d 197, 205 (11th Cir. 1999))). 99 Case: 12-15548 Date Filed: 02/24/2016 Page: 100 of 112

it is his second position. The question is instead whether the litigant’s position in

the Bankruptcy Court is inconsistent with his position in the District Court. If it is,

the court strikes the position in the District Court. That position is stricken because

the position in the Bankruptcy Court, which the litigant took under oath, was false.

The position the litigant is pursuing in the District Court is a prepetition

claim. It existed before he petitioned the Bankruptcy Court for relief. If he files

suit before repairing to the Bankruptcy Court, that is his first position; he has a

claim for damages. If he then files for bankruptcy and denies the existence of the

claim, that is his second position; he has no claim for damages. Under the doctrine

as formulated in McKinnon, the second position is rejected. Under the Burnes–

Barger doctrine, however, the first position is rejected.

If the litigant files for bankruptcy first and schedules no claim (because it

does not then exist), and then files suit (because it does exist at some later point),

the question becomes whether the claim was cognizable205 when he filed for

bankruptcy or became cognizable afterwards. If the claim became cognizable

afterwards, his first bankruptcy position—that the claim does not exist—was true.

Once the claim became cognizable and he filed suit, though, the litigant’s first

position became false because he did not update it, by amending his bankruptcy

schedules, the moment the claim became cognizable. The litigant’s failure to

205 The question is whether the claim was capable of being tried in the District Court. 100 Case: 12-15548 Date Filed: 02/24/2016 Page: 101 of 112

amend itself becomes his second position and is accepted by the court while his

first position is rejected as false.

In sum, it doesn’t matter which of the two inconsistent positions is the

“second” position, that is, the one the divergent-sworn-positions-and-mockery-of-

justice rule would reject, because the Burnes–Barger doctrine is not concerned

with inconsistent pleadings. All that matters is that the debtor falsified his

bankruptcy position under oath, and that cannot be tolerated.

The Burnes–Barger doctrine is not an equitable doctrine because its

application produces at-least-inequitable results, if not manifestly unjust ones. A

debtor deprives his bankruptcy estate of an asset by concealing it. Then the

District Court, acting as a court of equity, furthers the deprivation by giving the

asset to the defendant, who owes the claim’s value to the bankruptcy estate, as a

pure windfall. The estate’s creditors, who are totally innocent, provide the

windfall. The explicit rationale for doing this is that the deprivation deters future

debtors from concealing assets of the bankruptcy estate. The implicit rationale is

that the bankruptcy courts are either unwilling or incapable of providing such

deterrence.206

206 I refer generally to the bankruptcy courts because the Burnes–Barger doctrine applies in all cases, regardless of the particular presiding judge. 101 Case: 12-15548 Date Filed: 02/24/2016 Page: 102 of 112

All of this aside, I will assume that the Burnes–Barger doctrine is indeed an

equitable doctrine and examine it in the light of the traditional maxims of equity. 207

I start with the parties whose interests the doctrine implicates. There is the party

asserting the doctrine, the defendant. The defendant simply wants to avoid liability

by having the estate’s claim rejected. The defendant’s role is that of an informant.

It informs the court that the debtor has lied under oath in the Bankruptcy Court in

failing to disclose the litigation at hand. Anyone aware of the debtor’s bankruptcy

proceedings could perform the same service. The defendant, therefore, is simply

not a party for purposes of weighing the equities.

The Bankruptcy Court, in contrast, is a party because the integrity of its

processes and its reputation for competency are implicated. Likewise, the trustee

is a party because, as part of his fiduciary duties, he must marshal and administer

the assets of the bankruptcy estate. The trustee does that for the benefit of the

creditors, so they, too, are parties. The debtor was a party, but he has exited the

stage because his claim has, by operation of law, been transferred to the

207 The following list includes many of the major traditional maxims of equity: (1) Equity does not suffer a wrong to go without a remedy. (2) Equity regards substance rather than form. (3) Equity regards as done that which ought to be done. (4) Equality is equity. (5) Where the equities are equal, the first in time will prevail. (6) Where the equities are equal, the law will prevail. (7) Equity follows the law. (8) One who comes into equity must come with clean hands. (9) One who seeks equity must do equity. (10) Equity aids the vigilant not those who sleep on their rights. (11) Delay defeats equity. (12) Equitable remedies are given as a matter of grace or discretion, not of right. (13) Equity acts in personam, not in rem. 1 Dan B. Dobbs, Law of Remedies § 2.3(4) n.7 (2d ed. 1993). 102 Case: 12-15548 Date Filed: 02/24/2016 Page: 103 of 112

administration of his estate. His interest is in obtaining a discharge of his debts,

and that is a matter the Bankruptcy Court will handle.

The District Court is also a party, and it also has at stake its integrity.

Inconsistent pleadings, however, whether or not under oath, are of no concern.

Rule 8(d) of the Federal Rules of Civil Procedure permits inconsistent pleadings,

and in my view, equity would not countenance a judge-made rule to negate that

feature of Rule 8. Neither is the fact that the trustee’s likely key witness in the suit,

the debtor, lied under oath. Prior inconsistent statements, whether or not under

oath, are grist for the litigation mill.

Additionally, applying judicial estoppel in the circumstances depicted in

Barger and in the case at hand necessarily precludes the bankruptcy courts from

exercising the case-specific discretion that Congress intended. I focus on the

situation in Barger because the Bankruptcy Court’s interest in that case is a matter

of record, as discussed in the In re Barger Court’s findings of fact and conclusions

of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. 208 In a

nutshell, the Bankruptcy Court reopened the debtor’s Chapter 7 case because

Barger’s damages claims against the City had value and the creditors were entitled

to the benefit of that value.

208 See Fed. R. Civ. P. 52(a)(1) (providing that, “In an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.”). 103 Case: 12-15548 Date Filed: 02/24/2016 Page: 104 of 112

The District Court in Barger nevertheless estopped the trustee’s claims to

punish Barger for failing to amend her schedules and list her claims against the

City. But the Bankruptcy Court had already considered the matter of punishment.

It was well aware of the sanctions the law provides—the criminal law and the

bankruptcy law—and concluded that none applied. If the court had “reasonable

grounds for believing” that Barger had committed perjury, it would have reported

the matter to the U.S. Attorney, as required by 18 U.S.C. § 3057. 209 But no

grounds were present. 210 The District Judge agreed with the Bankruptcy Judge.

Otherwise, since § 3057 applies to a District Judge just as it applies to a

Bankruptcy Judge, the District Judge would have reported the matter to the U.S.

Attorney. Yet, this court agreed with the District Judge that the debtor’s failure to

amend her schedules constituted a false statement under oath, and that she had to

209 Section 3057 provides, in relevant part, Any judge, receiver, or trustee having reasonable grounds for believing that any violation under chapter 9 of this title or other laws of the United States relating to insolvent debtors, receiverships or reorganization plans has been committed, or that an investigation should be had in connection therewith, shall report to the appropriate United States attorney all the facts and circumstances of the case, the names of the witnesses and the offense or offenses believed to have been committed. Where one of such officers has made such report, the others need not do so. 11 U.S.C. § 3057(a) (emphasis added). 210 Nor did the Bankruptcy Court see any basis for finding that the debtor had violated Rule 9011 of the Federal Rules of Bankruptcy Procedure, which mimics Rule 11 of the Federal Rules of Civil Procedure. Compare Fed. R. Bankr. P. 9011 with Fed. R. Civ. P. 11. The District Court and this court did not mention Rule 9011, so I assume that they saw no reason to invoke it. 104 Case: 12-15548 Date Filed: 02/24/2016 Page: 105 of 112

be punished. The punishment? Not under the criminal law of perjury 211 or of

contempt, 212 but under a judge-made rule that punishes innocent parties in the

debtor’s stead.

In the end, the parties with the most as stake, the Bankruptcy Court and the

creditors, ask the District Court to withhold the judicial-estoppel remedy. Rather

than make them whole, it will cause them irreparable harm. In applying the

doctrine notwithstanding their request and against the clear thrust of governing

law, the District Court undermines its own integrity in the eyes of the public and

implies that the Bankruptcy Court is either unwilling or incapable of overseeing

debtor compliance with the law.

The only solution to this unfortunate predicament is the en banc court.

211 A debtor who files false bankruptcy schedules pursuant to 11 U.S.C. §§ 521(a)(1) (B)(i) and (iii) and Rule 1007 of the Federal Rules of Bankruptcy Procedure under penalty of perjury, see 28 U.S.C. § 1746, may have committed perjury in violation of 18 U.S.C. § 1621. 212 See 18 U.S.C. § 401; Fed. R. Crim. P. 42. 105 Case: 12-15548 Date Filed: 02/24/2016 Page: 106 of 112

APPENDIX I.

† This visual aid should be read as follows. The arrows show that the language in the case at the tail of the arrow was adopted in the case at the head of the arrow. For example, Johnson Service’s “calculated assertion of divergent sworn positions” language was adopted in Chrysler Credit, indicating that two oaths were required for the application of judicial estoppel. Similarly, Johnson Service’s “made under oath in a prior proceeding” language was adopted in Salomon, and McKinnon’s inheritance of the “calculated assertion of divergent sworn positions” language was adopted in Salomon, making it unclear whether one or two oaths were required. The cases proceed in roughly chronological order from the top-left corner to the bottom-right corner. The text inside each case box indicates whether there was federal-question or diversity jurisdiction in the case, whether it cited the language for one oath or for two oaths, and whether the case presented either a Burnes or a New Hampshire scenario. See note 1 of the Timeline of Judicial Estoppel Cases in the Eleventh Circuit for a brief explanation of these scenarios.

106 Case: 12-15548 Date Filed: 02/24/2016 Page: 107 of 112

Timeline of Judicial Estoppel Cases in the Eleventh Circuit

Burnes One oath Case name Citation Date Jurisdiction or NH? † or two? ‡ Johnson Serv. Co. v. 485 F.2d 1973 Diversity Burnes Either Transamerica Ins. Co. 164 Am. Nat’l Bank of 710 F.2d Jacksonville v. Fed. Deposit 1983 Diversity NH Two 1528 Ins. Corp. Chrysler Credit Corp. v. 842 F.2d Federal 1988 NH Two Rebhan 1257 question McKinnon v. Blue Cross & 935 F.2d Federal 1991 NH Two Blue Shield of Ala. 1186 question Talavera v. School Bd. of 129 F.3d Federal 1995 Burnes Two Palm Beach Cty. 1214 question 133 F.3d Federal Taylor v. Food World, Inc. 1998 Burnes Two 1419 question Salomon Smith Barney, Inc. v. 260 F.3d 2001 Diversity NH Either Harvey 1302 Burnes v. Pemco Aeroplex, 291 F.3d Federal 2002 Burnes Either Inc. 1282 question 348 F.3d Federal Barger v. City of Cartersville 2003 Burnes One 1289 question

† This column indicates whether the case presented a Burnes scenario, in which the party that is asserting judicial estoppel was not a party in the prior proceeding, or a New Hampshire scenario, in which the party that is asserting judicial estoppel was a party in the prior proceeding. As indicated in Part II.B. of the Special Concurrence, “prior proceeding” does not necessarily mean the lawsuit first filed. It has instead come to mean “another proceeding” where the violation of the oath occurs. ‡ This column indicates whether the case cites the language requiring one statement under oath or the language requiring two statements under oath for the doctrine of judicial estoppel to apply. In some instances, the case cites both the language requiring one oath and two oaths, which is indicated by “Either.” 107 Case: 12-15548 Date Filed: 02/24/2016 Page: 108 of 112

APPENDIX II.

The following is a list of court of appeals, district court, and bankruptcy

court decisions within the Eleventh Circuit that cite Burnes v. Pemco Aeroplex,

Inc., 291 F.3d 1282 (11th Cir. 2002), Barger v. City of Cartersville, 348 F.3d 1289

(11th Cir. 2003), or both as of February 22, 2016. I have included only cases that

cite Burnes or Barger for judicial estoppel purposes. The first four columns

indicate the year the case was decided, the court that decided the case, the case

name, and the case citation. The last three columns are coded as follows. For the

“Application of JE” column, “C.A.” indicates that the court cited and applied

judicial estoppel, “C.N.A.” indicates that the court cited and did not apply judicial

estoppel, “C.D.A.” indicates that the court cited the doctrine disapprovingly, but

still applied judicial estoppel, and “C.D.N.A.” means the court cited the doctrine

disapprovingly and did not apply judicial estoppel. For the “Burnes/Barger”

column, entries with only “Burnes” or “Barger” mean that only that one case was

cited, and an entry of “Burnes/Barger” means both cases were cited. For the final,

“Bankruptcy Context” column, “Yes” indicates that the case occurred in the

bankruptcy context, and “No” indicates that the case did not occur in the

bankruptcy context.

* Subsequent case history omitted from citation.

108 Case: 12-15548 Date Filed: 02/24/2016 Page: 109 of 112

Eleventh Circuit Cases Citing Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002) and/or Barger v. City of Cartersville, 348 F.3d 1289 (11th Cir. 2003) Year Court Case Citation Application of JE Burnes/Barger Bankruptcy Context 2016 11th Cir. Hoefling v. City of Miami No. 14-12482, slip op. (11th Cir. Jan. 25, 2016) C.N.A. Burnes No 2016 11th Cir. Palmer Ranch Holdings Ltd. v. Comm'r. No. 14-14167, slip op. (11th Cir. Feb. 5, 2016) C.N.A. Burnes No 2016 DC Ortega v. Bel Fuse, Inc. No. 15-21229-CIV, 2016 WL 524220 (S.D. Fla. Feb. 10, 2016) C.N.A. Burnes Yes 2016 DC Shields v. Univ. of W. Ala. No. 7:14-CV-02198-LSC, 2016 WL 192074 (N.D. Ala. Jan. 15, 2016) C.A. Burnes/Barger Yes 2016 Bk In re Guerra No. 8:11-BK-15663-MGW, 2016 WL 350849 (Bankr. M.D. Fla. Jan. 28, 2016) C.N.A. Burnes Yes 2015 11th Cir. Anderson v. Brown Inds. 614 F. App'x 415 (11th Cir. 2015) C.A. Burnes No 2015 11th Cir. D'Antignac v. Deere & Co. 604 F. App'x 875 (11th Cir. 2015) C.A. Burnes/Barger Yes 2015 11th Cir. Ward v. AMS Servicing, LLC 606 F. App'x 506 (11th Cir. 2015) C.A. Burnes Yes 2015 DC Advantus, Corp. v. Allen No. 3:13-CV-1430-J-32PDB, 2015 WL 4429199 (M.D. Fla. July 20, 2015) C.A. Burnes/Barger Yes 2015 DC Allen v. Senior Home Care, Inc. No. 14-81408-CIV, 2015 WL 1097408 (S.D. Fla. Mar. 11, 2015) C.N.A. Burnes Yes 2015 DC Banks v. Tanner Med. Ctr., Inc. No. 1:12-CV-4450-RWS, 2015 WL 1481472 (N.D. Ga. Mar. 31, 2015) C.A. Burnes Yes 2015 DC Brown v. Winn-Dixie Stores, Inc. No. CV 214-052, 2015 WL 3448614 (S.D. Ga. May 20, 2015) * C.A. Burnes/Barger Yes 2015 DC Copeland v. Birmingham Nursing & Rehabilitation Center, LLC No. 2:14-cv-1523-JHH, 2015 WL 4068647 (N.D. Ala. July 1, 2015) C.A. Burnes/Barger Yes 2015 DC Ellis v. CB & T Bank of Middle Ga. No. 5:14-CV-102 CAR, 2015 WL 1636822 (M.D. Ga. Apr. 13, 2015) C.A. Burnes/Barger Yes 2015 DC Keeton v. Big Lots Stores, Inc. 84 F. Supp. 3d 1290 (N.D. Ala. 2015) C.A. Burnes/Barger Yes 2015 DC Lee v. Morgan No. 2:14-CV-01204-RDP, 2015 WL 1958800 (N.D. Ala. May 1, 2015) C.A. Burnes/Barger Yes 2015 DC Marshall v. Sandersville R.R. Co. No. 5:12-CV-425 MTT, 2015 WL 3648603 (M.D. Ga. June 10, 2015) C.N.A. Burnes/Barger Yes 2015 DC Moorer v. Rooms to Go Ala. Corp. No. 2:13-cv-2199-SLB, 2015 WL 4426085 (N.D. Ala. July 20, 2015) C.N.A. Burnes Yes 2015 DC MTJ Trucking, Inc. v. Progressive Mountain Ins. Co. No. 1:14-CV-02915-RWS, 2015 WL 4077747 (N.D. Ga. July 6, 2015) C.A. Burnes/Barger Yes 2015 DC Nichols v. Ala. State Bar No. 2:15-cv-179-WMA, 2015 WL 3823929 (N.D. Ala. June 19, 2015) C.N.A Burnes No 2015 DC Perez v. Anastasia M. Garcia, P.A. No. 15-20615-CIV, 2015 WL 5050548 (S.D. Fla. Aug. 26, 2015) C.N.A. Burnes/Barger No 2015 DC Pharma Supply, Inc. v. Stein No. 14-80374-CIV, 2015 WL 328228 (S.D. Fla. Jan. 26, 2015) C.N.A. Burnes No 2015 DC Phillips v. Ocwen Loan Servicing, LLC 92 F. Supp. 3d 1255 (N.D. Ga. 2015) * C.N.A. Burnes Yes 2015 DC Prison Legal News v. Jones No. 4:12cv239-MW/CAS, 2015 WL 5047957 (N.D. Fla. Aug. 27, 2015) * C.N.A. Burnes No 2015 DC Smith v. Haynes & Haynes PC No. 2:14-CV-1334-RDP, 2015 WL 4173024 (N.D. Ala. July 10, 2015) C.A. Burnes/Barger Yes 2015 DC Ussery v. Allstate Fire and Cas. Ins. Co. No. 5:13-CV-83 LJA, --- F. Supp. 3d ---, 2015 WL 8773291 (M.D. Ga. Dec. 14, 2015) C.N.A. Burnes/Barger Yes 2015 Bk In re Buckley No. 12-65335-MHM, 2015 WL 798535 (Bankr. N.D. Ga. Feb. 17, 2015) C.N.A. Barger Yes 2015 Bk In re Fundamental Long Term Care, Inc. 542 B.R. 299 (Bankr. M.D. Fla. 2015) C.A. Burnes Yes 2015 Bk In re Kimrow, Inc. 534 B.R. 219 (Bankr. M.D. Ga. 2015) C.N.A. Burnes/Barger Yes 2015 Bk In re Kourogenis 539 B.R. 625 (Bankr. S.D. Fla. 2015) C.N.A. Burnes Yes 2015 Bk In re S & Shack, LLC No. 09-67151-MGD, 09-68410-MGD, 2015 WL 1523635 (Bankr. N.D. Ga. Feb. 13, 2015) C.A. Burnes Yes 2015 Bk In re Trigeant Holdings, Ltd. 523 B.R. 273 (Bankr. S.D. Fla. 2015) C.N.A. Burnes Yes 2015 Bk In re Wells No 13-13309-BKC-RBR, 2015 WL 8928332 (Bankr. S.D. Fla. Nov. 3, 2015) C.A. Burnes Yes 2014 11th Cir. Baloco v. Drummond Co., Inc. 767 F.3d 1229 (11th Cir. 2014) C.A. Burnes No 2014 11th Cir. Dunn v. Advanced Med. Specialities, Inc. 556 F. App’x 785 (11th Cir. 2014) C.A. Burnes/Barger Yes 2014 11th Cir. Marable v. Marion Military Inst. 595 F. App'x 921 (11th Cir. 2014) C.A. Burnes Yes 2014 DC Banks v. Tanner Med. Ctr., Inc. No. 1:12-CV-4450-RWS, 2014 WL 8391889 (N.D. Ga. Sept. 10, 2014) C.A. Burnes/Barger Yes 2014 DC Batdorf v. Athens Archery, Inc. No. 13-0316-CG-B, 2014 WL 1826617 (S.D. Ala. May 8, 2014) C.A. Burnes/Barger Yes 2014 DC EMCASCO Ins. Co. v. Knight No. CV-12-S-1890-NW, 2014 WL 5020044 (N.D. Ala. Oct. 7, 2014) C.A. Burnes Yes 2014 DC Fletcher v. Supreme Beverage Co. No. 2:11-cv-0056-MHH, 2014 WL 5518294 (N.D. Ala. Oct. 31, 2014) C.N.A. Burnes Yes 2014 DC Job v. AirTran Airways, Inc. No. 1:13-CV-2061-TWT, 2014 WL 414224 (N.D. Ga. Feb. 4, 2014) C.N.A. Burnes Yes 2014 DC Kunstmann v. Aaron Rents, Inc. No. 2:08-cv-01969-KOB, 2014 WL 1388387 (N.D. Ala. Apr. 9, 2014) C.A. Burnes/Barger Yes 2014 DC Milian v. Wells Fargo & Co. 507 B.R. 386 (S.D. Fla. 2014) * C.A. Burnes/Barger Yes 2014 DC Norman v. Norman No. CV-12-J-2136-S, 2014 WL 457710 (N.D. Ala. Feb. 4, 2014) C.A. Burnes/Barger Yes 2014 DC Pringle v. Family Dollar Stores of Ga., Inc. No. cv-112-044, 2014 WL 4926386 (S.D. Ga. Sept. 30, 2014) C.N.A. Burnes Yes 2014 DC Rambeault v. Accurate Mach. & Tool, LLC No. 14-CIV-20136, 302 F.R.D. 675 (S.D. Fla. Oct. 2, 2014) C.N.A. Burnes No 2014 DC Smith v. Werner Enters., Inc. 65 F.Supp.3d 1305 (S.D. Ala. 2014) C.N.A. Burnes/Barger Yes 2014 DC Summersill v. Kelly No. 5:12-CV-667-OC-10PRL, 2014 WL 1333206 (M.D. Fla. Apr. 3, 2014) C.A. Burnes/Barger Yes 2014 DC Tuten v. Target Corp. No. 4:14-cv-3, 2014 WL 6908866 (S.D. Ga. Dec. 8, 2014) C.N.A. Burnes Yes 2014 DC Vignoli v. Clifton Apartments, Inc. No. 12-CV-24508, 2014 WL 6850778 (S.D. Fla. Dec. 3, 2014) C.N.A. Burnes/Barger No 2014 DC Welker v. Orkin, LLC No. 5:13-CV-126 MTT, 2014 WL 1572535 (M.D. Ga. Apr. 17, 2014) C.A. Burnes/Barger Yes 2014 DC Young v. City of Mobile No. CIV.A. 13-00586-KD-B, 2014 WL 3870716 (S.D. Ala. Aug. 7, 2014) C.N.A. Burnes/Barger Yes 2014 Bk In re Fist Foliage, L.C. No. 10-27532-BKC-LMI, 2014 WL 2616618 (Bankr. S.D. Fla. June 11, 2014) C.N.A. Burnes Yes 2014 Bk In re Gregg No. 11-40125JTL, 2014 WL 3339595 (Bankr. M.D. Ga. July 7, 2014) C.A. Barger Yes 2014 Bk In re McDaniel 523 B.R. 895 (Bankr. M.D. Ga. 2014) C.N.A. Burnes/Barger Yes 2014 Bk In re PMF Enters., Inc. 517 B.R. 350 (Bankr. M.D. Ga. 2014) C.N.A. Burnes Yes 2014 Bk In re Presta No. 3:09-bk-1222-JAF, 2014 WL 2448444 (Bankr. M.D. Fla. May 28, 2014) C.A. Burnes Yes 2013 DC Antietam Inds., Inc. v. Morgan Keegan & Co., Inc. No. 6:12-cv-1250-Orl-36TBS, 2013 WL 1213059 (M.D. Fla. Mar. 25, 2013) C.N.A. Burnes No 2013 DC Apotex, Inc. v. UCB, Inc. 970 F. Supp. 2d 1297 (S.D. Fla. 2013) C.A. Burnes No Case: 12-15548 Date Filed: 02/24/2016 Page: 110 of 112 2013 DC Brothers v. Bojangles' Rests., Inc. No. CV-12-BE-2212-E, 2013 WL 6145332 (N.D. Ala. Nov. 21, 2013) C.A. Burnes/Barger Yes 2013 DC D'Antignac v. Deere & Co. No. CV 110-116, 2013 WL 6383113 (S.D. Ga. Dec. 5, 2013) * C.A. Burnes/Barger Yes 2013 DC Drakes v. Glenwood, Inc. No. 2:10-CV-2659-VEH, 2013 WL 3356944 (N.D. Ala. June 28, 2013) C.N.A. Burnes/Barger Yes 2013 DC Helton v. Token, Inc. No. 6:11-cv-02846-LSC, 2013 WL 1767831 (N.D. Ala. Apr. 23, 2013) C.A. Burnes Yes 2013 DC Pate v. Infirmary Health Sys., Inc. No. CIV.A. 12-00513-KD-C, 2013 WL 5234312 (S.D. Ala. Sept. 17, 2013) C.A. Burnes/Barger Yes 2013 DC Perkins v. Berg Spiral Pipe Corp. No. CIV.A. 12-0468-CG-N, 2013 WL 489164 (S.D. Ala. Feb. 7, 2013) C.A. Burnes/Barger Yes 2013 DC Stuart v. Resurgens Risk Mgmt., Inc. No. 1:11-cv-04251-RWS, 2013 WL 2903571 (N.D. Ga. June 12, 2013) C.N.A. Burnes/Barger Yes 2013 DC Taylor v. Novartis Pharm. Corp. 506 B.R. 157 (S.D. Fla. 2013) C.A. Burnes/Barger Yes 2013 DC Thompson v. EarthLink Shared Servs., LLC 956 F.Supp.2d 1317 (N.D. Ala. 2013) C.N.A. Burnes/Barger Yes 2013 DC Willis v. Homesite Ins. Co. of the Midwest No. CV 4:10-1933-RBP, 2013 WL 4013477 (N.D. Ala. Aug. 6, 2013) C.A. Burnes/Barger Yes 2013 DC Wolfe v. Solomon Law Grp., P.A. No. 8:09-cv-1207-T-17AEP, 2013 WL 4719343 (M.D. Fla. 2013) C.N.A. Burnes Yes 2013 Bk In re D'Antignac No. 05-10620, 2013 WL 1084214 (Bankr. S.D. Ga. Feb. 19, 2013) C.N.A. Barger Yes 2013 Bk In re Dig. Comm. Networks, Inc. 496 B.R. 243 (Bankr. M.D. Fla. 2013) C.N.A. Barger Yes 2013 Bk In re Fields No. 11-06065-BGC-12, 12-00122, 2013 WL 1136923 (Bankr. Mar. 19, 2013) C.N.A. Burnes Yes 2013 Bk In re Foster No. 11-30021, 2013 WL 5376040 (Bankr. S.D. Ga. Sept. 24, 2013) C.A. Burnes Yes 2013 Bk In re Inv'rs Lending Grp., LLC No. 11-41963 (Bankr. S.D. Ga. Jan. 9, 2013) C.A. Burnes Yes 2013 Bk In re James 487 B.R. 587 (Bankr. N.D. Ga. 2013) C.N.A. Burnes Yes 2013 Bk In re Mixon No. 11-41568 (Bankr. S.D. Ga. 2013) C.A. Burnes Yes 2013 Bk In re Mouttet 493 B.R. 640 (Bankr. S.D. Fla. 2013) C.N.A. Burnes Yes 2013 Bk In re Palm Beach Fin. Partners, L.P. 517 B.R. 310 (Bankr. S.D. Fla. 2013) C.N.A. Burnes Yes 2013 Bk Riggins v. Ambrose 500 B.R. 190 (Bankr. N.D. Ga. 2013) C.N.A. Burnes/Barger Yes 2012 11th Cir. Jones v. United States 467 F. App'x 815 (11th Cir. 2012) C.A. Burnes/Barger Yes 2012 DC Axiom Worldwide, Inc. v. HTRD Grp. Hong Kong Ltd. No. 8:11-cv-1468-T-33TBM, 2012 WL 4077505 (M.D. Fla. July 18, 2012) C.N.A. Burnes/Barger No 2012 DC Burch v. AmerOnc, Inc. No. 7:11-CV-2342-RDP, 2012 WL 1566155 (N.D. Ala. Apr. 25, 2012) C.A. Burnes/Barger Yes 2012 DC Cain v. Hyundai Motor Mfg. Alabama LLC No. 2:11CV363-CSC, 2012 WL 1161443 (M.D. Ala. Apr. 6, 2012) C.A. Burnes/Barger Yes 2012 DC Carter v. Hartford Fire Ins. Co. No. 1:11-cv-04008-TWT-GGB, 2012 WL 4888533 (N.D. Ga. Sept. 17, 2012) C.A. Barger Yes 2012 DC Cashatt v. Merrimac Assocs., Inc. 853 F. Supp. 2d 1244 (N.D. Ga. 2012) C.N.A. Burnes Yes 2012 DC Evans v. Books-A-Million 907 F. Supp. 2d 1284 (N.D. Ala. 2012) C.A. Burnes No 2012 DC Huff v. Macon Behavioral Health Treatment No. 5:11-CV-455 MTT, 2012 WL 1344355 (M.D. Ga. Apr. 18, 2012) C.A. Burnes/Barger Yes 2012 DC Lay v. Hixon No. 09-0075-WS-M, 2012 WL 1946346 (S.D. Ala. May 20, 2012) C.N.A. Burnes No 2012 DC Likes v. DHL Exp. (USA), Inc. No. 2:08-cv-00428-AKK, 2012 WL 8499732 (N.D. Ala. Mar. 7, 2012) C.N.A. Burnes Yes 2012 DC Lopez v. F.D.I.C. No. 2:10-CV-00158-RWS, 2012 WL 1898798 (N.D. Ga. May 23, 2012) C.A. Burnes Yes 2012 DC Marable v. Marion Military Inst. 906 F. Supp. 2d 1237 (S.D. Ala. 2012) aff'd, 595 F. App'x 921 (11th Cir. 2014) C.A. Burnes/Barger Yes 2012 DC Morton v. Bank of Am. Corp. No. 5:12-CV-188 CAR, 2012 WL 3901749 (M.D. Ga. Sept. 7, 2012) C.A. Burnes/Barger Yes 2012 DC Reynolds v. Ala. Dep't of Transp. No. 2:85CV665-MHT, 2012 WL 1110121 (M.D. Ala. Apr. 3, 2012) C.N.A. Burnes/Barger Yes 2012 DC Slater v. U.S. Steel Corp. No. CV-09-BE-1732-S, 2012 WL 4478981 (N.D. Ala. Sept. 25, 2012) C.A. Burnes/Barger Yes 2012 DC Smith v. Wayne Farms, L.L.C. No. CV-11-S-3590-NE, 2012 WL 1746857 (N.D. Ala. May 16, 2012) C.A. Burnes/Barger Yes 2012 DC Terrell v. Rathman No. 1:11-cv-00199-WMA-HGD, 2012 WL 4953128 (N.D. Ala. Sept. 13, 2013) C.A. Burnes No 2012 DC U.S. ex rel. Bibby v. Wells Fargo Bank, N.A. 906 F.Supp.2d 1288 (N.D. Ga. 2012) C.N.A. Burnes/Barger Yes 2012 Bk In re SOL, LLC No. 09-12684-BKC-AJC, 2012 WL 2673254 (Bankr. S.D. Fla. 2012) C.N.A. Burnes Yes 2012 Bk In re Tinney No. 07-42020-JJR13, 2012 WL 2742457 (Bankr. N.D. Ala. July 9, 2012) C.N.A. Burnes Yes 2011 11th Cir. Warfield v. Stewart 434 F. App'x 777 (11th Cir. 2011) C.N.A. Burnes No 2011 DC Alvarez v. Royal Atl. Developers, Inc. 854 F. Supp. 2d 1219 (S.D. Fla. 2011) C.A. Burnes/Barger Yes 2011 DC Bennett v. Flagstar Bank No. CV 210-181, 2011 WL 6152940 (S.D. Ga. Dec. 8, 2011) C.N.A. Burnes/Barger Yes 2011 DC Daniels v. Tucker No. 5:09cv328/RS/EMT, 2011 WL 7153921 (N.D. Fla. Nov. 22, 2011) C.N.A. Burnes No 2011 DC Farr v. Hall Cty. No. 2:11-CV-00074-RWS, 2011 WL 5921462 (N.D. Ga. Nov. 28, 2011) C.N.A. Burnes/Barger Yes 2011 DC Mac v. Brooks No. 3:11cv313-WHA, 2011 WL 3794683 (M.D. Ala. Aug. 25, 2011) C.N.A. Burnes No 2011 DC Mason v. Mitchell's Contracting Serv., LLC 816 F. Supp. 2d 1178 (S.D. Ala. 2011) C.A. Burnes/Barger Yes 2011 DC Matheus v. Wagner & Hunt, P.A. No. 10-61596-CIV, 2011 WL 1878582 (S.D. Fla. May 17, 2011) C.N.A. Burnes Yes 2011 DC Nettles v. State Farm Fire & Cas. Co. No. 4:10-CV-106 CDL, 2011 WL 2462556 (M.D. Ga. June 17, 2011) C.N.A. Burnes/Barger Yes 2011 DC Pace v. Hurst Boiler & Welding Co. No. 7:10-CV-116 HL, 2011 WL 97244 (M.D. Ga. Jan. 12, 2011) C.A. Burnes/Barger Yes 2011 DC Reynolds v. Ala. Dep't of Transp. No. 2:85CV665-MHT, 2011 WL 2650244 (M.D. Ala. July 6, 2011) C.A. Burnes/Barger Yes 2011 DC Schreiber v. Ocwen Loan Servicing, LLC No. 5:11-CV-211-OC-32TBS, 2011 WL 6055417 (M.D. Fla. Dec. 6, 2011) C.N.A. Burnes/Barger Yes 2011 DC United States v. All Funds in the Account of Prop. Futures, Inc. 820 F. Supp. 2d 1305 (S.D. Fla. 2011) C.N.A. Burnes No 2011 Bk In re Aum Shree of Tampa, LLC 449 B.R. 584 (Bankr. M.D. Fla. 2011) C.N.A. Burnes Yes 2010 11th Cir. Hamilton v. Sec'y, DOC 410 F. App'x 216 (11th Cir. 2014) C.N.A. Burnes No C.A. (majority); 2010 11th Cir. Robinson v. Tyson Foods, Inc. 595 F.3d 1269 (11th Cir. 2010) Burnes/Barger Yes C.D.A. (concurrence) 2010 DC Counts v. Red Coats, Inc. No. 1:09-CV-3038-TWT-ECS, 2010 WL 2674423 (N.D. Ga. May 28, 2010) C.N.A. Burnes Yes 2010 DC Fla. Farm Bureau Gen. Ins. Co. v. Concille Jerigan No. 3:09CV145/MCR/EMT, 2010 WL 3927816 (N.D. Fla. Sept. 30, 2010) C.N.A. Burnes No 2010 DC Hands v. Winn-Dixie Stores, Inc. No. CIV.A. 09-0619-WS N, 2010 WL 4496798 (S.D. Ala. Nov. 1, 2010) C.A. Burnes/Barger Yes 2010 DC In re Tyson Foods, Inc. 732 F.Supp.2d 1363 (M.D. Ga. 2010) C.A. Burnes/Barger Yes Case: 12-15548 Date Filed: 02/24/2016 Page: 111 of 112 2010 DC Peyovich v. World Mortg. Co. No. 6:08-cv-404-Orl-28KRS, 2010 WL 3516721 (M.D. Fla. July 29, 2010) C.N.A. Burnes No 2010 DC Reynolds v. Ala. Dep't of Transp. No. CIVA 2:85CV665-MHT, 2010 WL 1658284 (M.D. Ala. Apr. 21, 2010) C.A. Burnes/Barger Yes 2010 DC Solomon Tech., Inc. v. Toyota Motor Corp. No. 8:05-cv-1702-T-MAP, 2010 WL 715243 (M.D. Fla. Jan. 26, 2010) C.A. Burnes No 2010 DC State Farm Fire and Cas. Co. v. Billingsley No. 09-0267-KD-C, 2010 WL 1511560 (S.D. Ala. Apr. 14, 2010) C.N.A. Burnes Yes 2010 DC Wesley v. Nat'l Mentor Healthcare, LLC No. CIV.A.109-CV-978-TWT, 2010 WL 520759 (N.D. Ga. Feb. 8, 2010) C.N.A. Barger Yes 2010 DC Yerk v. People for the Ethical Treatment of Animals No. 209CV537FTM29SPC, 2010 WL 3746815 (M.D. Fla. Sept. 21, 2010) C.N.A. Burnes/Barger Yes 2010 Bk In re Boston No. 6:98-bk-08958-KSJ, 2010 WL 4117450 (Bankr. M.D. Fla. Oct. 18, 2010) C.N.A. Burnes Yes 2010 Bk In re Justo No. 09-12516-BKC-AJC, 2010 WL 5018353 (Bankr. Dec. 3, 2010) C.N.A. Burnes Yes 2010 Bk In re Sandlin No. 06-03792-TOM-13, 2010 WL 1416699 (Bankr. N.D. Ala. Apr. 8, 2010) C.N.A. Barger Yes 2010 Bk In re Shelton No. 07-81534-JAC-7, 2010 WL 1743210 (Bankr. N.D. Ala. Apr. 26, 2010) C.A. Burnes/Barger Yes 2010 Bk In re Vasko No. 09-79334-MGD, 2010 WL 4638600 (Bankr. N.D. Ga. Aug. 9, 2010) C.A. Burnes Yes 2009 DC Bender v. Tropic Star Seafood, Inc. No. 4:07-CV-438-SPM, 2009 WL 903351 (N.D. Fla. Apr. 1, 2009) C.N.A. Burnes Yes 2009 DC Bishop's Prop. & Invs., LLC v. Protective Life Ins. Co. 597 F. Supp. 2d 1354 (M.D. Ga. 2009) C.A. Burnes No 2009 DC Coppedge v. Suntrust Banks, Inc. No. CIV.A. 3:08-CV-23(HL) 2009 WL 111639 (M.D. Ga. Jan. 14, 2009) C.A. Burnes/Barger Yes 2009 DC Evans v. Potter No. 1:08-CV-1687-TWT, 2009 WL 529599 (N.D. Ga. Feb. 27, 2009) C.N.A. Burnes Yes 2009 DC Great Lakes Reinsurance (UK) PLC. v. Roca No. 07-23322-CIV, 2009 WL 200257 (S.D. Fla. Jan. 23, 2009) C.N.A. Burnes No 2009 DC Melton v. Nat'l Dairy Holdings, L.P. No. CIV.A. 1:08CV174-TFM, 2009 WL 653024 (M.D. Ala. Mar. 10, 2009) C.N.A. Burnes/Barger Yes 2009 DC Reynolds v. Ala. Dep't of Transp. No. 2:85cv665-MHT, 2009 WL 4456339 (M.D. Ala. Nov. 24, 2009) C.A. Burnes Yes 2009 DC Roots v. Morehouse Sch. of Med., Inc. No. CIVA1:07-CV-00112JOF, 2009 WL 4798217 (N.D. Ga. Dec. 8, 2009) C.N.A. Burnes/Barger Yes 2009 DC Russell v. Promove, LLC No. CIVA.106-CV-00659RWS, 2009 WL 1285885 (N.D. Ga. May 5, 2009) C.N.A. Burnes/Barger Yes 2009 DC Welt v. Amerisourcebergen Drug Corp. No. 08-80287-CIV, 2009 WL 2730167 (S.D. Fla. Aug. 25, 2009) C.N.A. Burnes/Barger Yes 2009 Bk In re Grelier 400 B.R. 826 (Bankr. N.D. Ala. 2009) C.A. Burnes/Barger Yes 2009 Bk In re Vann No. 08-11824-DHW, 2009 WL 1311592 (Bankr. M.D. Ala. May 11, 2009) C.N.A. Burnes Yes 2009 Bk In re Webb No. 96-74639, 2009 WL 6499125 (Bankr. N.D. Ga. Aug. 26, 2009) C.N.A. Burnes Yes 2008 11th Cir. Betancur v. U.S. Atty. Gen. 261 F. App'x 218 (11th Cir. 2008) C.N.A. Burnes No 2008 DC Ameritox, Ltd. v. Aegis Servs. Corp. No. 07-80498-CIV, 2008 WL 4540063 (S.D. Fla. Oct. 10, 2008) C.N.A. Burnes No 2008 DC Geico Cas. Co. v. Beauford No. 8:05-cv-697-T-24 EAJ, 2008 WL 2600861 (M.D. Fla. June 30, 2008) C.A. Burnes No 2008 DC Jackson v. Advanced Disposal Servs. No. 307-CV-773-J-33TEM, 2008 WL 958110 (M.D. Fla. Apr. 8, 2008) C.N.A. Burnes/Barger Yes 2008 DC Mark v. Labar No. 08-80646-CIV, 2008 WL 4753745 (S.D. Fla. Oct. 27, 2008) C.N.A. Burnes Yes 2008 DC Oldfield v. Dolgencorp, Inc. No. 3:08CV317/RS-EMT, 2008 WL 5191688 (N.D. Fla. Dec. 10, 2008) C.A. Burnes/Barger Yes 2008 DC Pendlebury v. Starbucks Coffee Co. No. 04-80521-CIV, 2008 WL 763213 (S.D. Fla. Mar. 13, 2008) C.N.A. Burnes No 2008 DC Wood v. Green No. 3:07CV95/MCR/EMT, 2008 WL 3200659 (N.D. Fla. Aug. 4, 2008) C.N.A. Burnes/Barger Yes 2008 Bk In re Brooks No. 06-81704-JAC-7, 2008 WL 1721876 (Bankr. N.D. Ala. Apr. 10, 2008) C.A. Barger Yes 2008 Bk In re Hackney No. 07-40952-JJR-11, 2008 WL 4830040 (Bankr. N.D. Ala. Oct. 10, 2008) C.A. Burnes Yes 2008 Bk In re Sholar No. 07-12927-WHD, 2008 WL 7874791 (Bankr. N.D. Ga. Sept. 4, 2008) C.N.A. Burnes/Barger Yes 2008 Bk Thompson v. Quarles 392 B.R. 517 (Bankr. S.D. Ga. 2008) C.D.N.A. Burnes/Barger Yes 2007 11th Cir. Casanova v. Pre Sols., Inc. 228 F. App'x 837 (11th Cir. 2007) C.A. Burnes/Barger Yes 2007 11th Cir. Pavlov v. Ingles Mkts., Inc. 236 F. App'x 549 (11th Cir. 2008) C.A. Burnes Yes 2007 11th Cir. State Farm Fire and Cas. Co. v. Simmons 217 F. App'x 851 (11th Cir. 2007) C.A. Burnes Yes 2007 DC Brown v. Brock No. 5:04-CV-339 (CAR), 2007 WL 2128191 (M.D. Ga. July 25, 2007) C.A. Burnes/Barger Yes 2007 DC Crosby v. Mobile Cty. No. CIV.A.04-0144CG-M, 2007 WL 4125895 (S.D. Ala. Nov. 14, 2007) C.N.A. Burnes/Barger Yes 2007 DC Isaac v. Am. Intercontinental Univ. No. 1:05-CV-2839-JEC, 2007 WL 1959201 (N.D. Ga June 28, 2007) C.A. Burnes/Barger Yes 2007 DC Kuehn v. Cadle Co. No. 5:04CV432 OC10GRJ, 2007 WL 809656 (M.D. Fla. Mar. 15, 2007) C.N.A. Burnes/Barger Yes 2007 DC McKenzie v. Citation Corp., LLC No. CIV.A. 05-0138-CG-C, 2007 WL 1424555 (S.D. Ala. May 11, 2007) C.N.A. Burnes/Barger Yes 2007 DC SFM Holdings, Ltd. v. Banc Of Am. Sec., LLC No. 06-80652-CIV-RYSKAMP, 2007 WL 7124464 (S.D. Fla. Feb. 12, 2007) * C.N.A. Burnes/Barger No 2007 DC Tedford v. United States No. 8:05CV1017-T-30TGW, 2007 WL 1098506 (M.D. Fla. Apr. 12, 2007) C.N.A. Burnes/Barger Yes 2007 DC The Coca-Cola Co. v. Pepsi-Cola Co. 500 F. Supp. 2d 1364 (N.D. Ga. 2007) C.A. Burnes No 2007 Bk In re Engelbrecht 368 B.R. 898 (Bankr. M.D. Fla. 2007) C.N.A. Burnes/Barger Yes 2007 Bk In re Foreman 378 B.R. 717 (Bank. S.D. Ga. 2007) C.N.A. Burnes/Barger Yes 2007 Bk In re Jones 381 B.R. 555 (Bankr. M.D. Fla. 2007) C.N.A. Burnes/Barger Yes 2007 Bk In re Lentek Int'l 377 B.R. 396 (Bankr. M.D. Fla. 2007) C.N.A. Burnes Yes 2007 Bk In re Leto No. 06-12939-BKC-PGH, 2007 WL 4117271 (Bankr. S.D. Fla. Nov. 15, 2007) C.A. Burnes Yes 2007 Bk In re Pace Tr. of Pace Irreocovable Tr. 376 B.R. 334 (Bankr. M.D. Fla. 2007) C.N.A. Burnes Yes 2007 Bk In re Reed No. 04-13062, 2007 WL 274322 (Bankr. S.D. Ala. Jan. 26, 2007) C.N.A. Burnes Yes 2007 Bk In re Tarver No. 05-12028-DHW, 2007 WL 1876369 (Bankr. M.D. Ala. June 28, 2007) C.N.A. Burnes Yes 2007 Bk In re Taylor 363 B.R. 303 (Bankr. M.D. Fla. 2007) C.N.A. Burnes/Barger Yes 2006 11th Cir. Ajaka v. BrooksAmerica Mortg. Corp. 453 F.3d 1339 (11th Cir. 2006) C.N.A. Burnes Yes 2006 11th Cir. Bridge Capital Inv'rs, II v. Susquehanna Radio Corp. 458 F.3d 1212 (11th Cir. 2006) C.N.A. Burnes Yes 2006 11th Cir. Strauss v. Rent-A-Ctr., Inc. 192 F. App'x 821 (11th Cir. 2006) C.N.A. Burnes/Barger Yes 2006 11th Cir. United States v. Campa 459 F.3d 1121 (11th Cir. 2006) C.N.A. Burnes No 2006 DC Belnavis v. Nicholson No. 8:05-CV-778-T-23TGW, 2006 WL 3359684 (M.D. Fla. Nov. 20, 2006) C.A. Burnes/Barger Yes 2006 DC Carroll v. Henry Cty. 336 B.R. 578 (N.D. Ga. 2006) C.N.A. Burnes Yes Case: 12-15548 Date Filed: 02/24/2016 Page: 112 of 112 2006 DC Casanova v. Pre Sols., Inc. No. 1:04-CV-2053-RLV, 2006 WL 5451193 (N.D. Ga. Mar. 29, 2006) C.A. Burnes Yes 2006 DC Franklin v. Blue Cross & Blue Shield of Fla., Inc., Short Term Disability Plan No. 306CV101J32TEM, 2006 WL 2792893 (M.D. Fla. Sept. 27, 2006) C.N.A. Barger No 2006 DC Helson v. Nuvell Fin. Servs. Corp. No. 8:05-CIV1788T17MAP, 2006 WL 1804583 (M.D. Fla. June 27, 2006) C.A. Burnes Yes 2006 DC Jones v. Comm. Newpapers, Inc. No. 3:05-cv-240-J-16MMH, 2006 WL 2507610 (M.D. Fla. Aug. 28, 2006) C.N.A. Burnes Yes 2006 DC Kennedy v. Jim's Formal Wear Co. No. CIVA1:05CV1280JEC, 2006 WL 2661264 (N.D. Ga. Sept. 14, 2006) C.N.A. Burnes/Barger Yes 2006 DC Lett v. Reliable Ruskin No. 1:05CV479-WHA, 2006 WL 2056582 (M.D. Ala. July 24, 2006) C.A. Burnes/Barger Yes 2006 DC Marshall v. Electrolux Home Prods., Inc. No. 605CV-1587ORL-18KRS, 2006 WL 3756574 (M.D. Fla. Dec. 19, 2006) C.A. Burnes/Barger Yes 2006 DC Moore v. Fred's Stores of Tenn., Inc. No. 4:05CV133 CDL, 2006 WL 2374768 (M.D. Ga. Aug. 16, 2006) C.A. Burnes/Barger Yes 2006 DC Pavlov v. Ingles Mkts., Inc No. CIV.A. 1:03CV1647JOF, 2006 WL 949934 (N.D. Ga. Apr. 11, 2006) * C.A. Burnes/Barger Yes 2006 DC Smith v. Scales Express, Inc. No. Civ.A. 05-0331-BH-B, 2006 WL 2190575 (S.D. Ala. Sept. 7, 2006) C.N.A. Burnes Yes 2006 DC Smith v. Scales Express, Inc. No. 05-331-BH-B, 2006 WL 2190575 (S.D. Ala. Aug. 2. 2006) C.N.A. Burnes Yes 2006 DC Snowden v. Fred's Stores of Tenn., Inc. 419 F. Supp. 2d 1367 (M.D. Ala. 2006) C.N.A. Burnes/Barger Yes 2006 DC Stephens v. Hoffmann-La Roche, Inc. No. 8:04 CV 2643 T 30TBM, 2006 WL 3694644 (M.D. Fla. Dec. 13, 2006) C.N.A. Burnes/Barger Yes 2006 DC Wheeler v. Fla. Dep't. of Corrections No. 3:04-cv-1147-J-32MCR, 2006 WL 2321114 (M.D. Fla. Aug. 9, 2006) C.N.A. Burnes/Barger Yes 2006 Bk In re Full Gospel Assembly of Delray Beach, Inc. No. 05-23067-BKC-JKO, 2006 WL 3922110 (Bankr. S.D. Fla. Dec. 14, 2006) C.N.A. Burnes Yes 2006 Bk In re Parker 351 B.R. 790 (Bankr. N.D. Ga. 2006) C.A. Barger Yes 2006 Bk In re Sudderth No. BKR. 04-63227, 2006 WL 6591618 (Bankr. N.D. Ga. Apr. 4, 2006) C.N.A. Barger Yes 2005 11th Cir. Muse v. Accord Human Res., Inc. 129 F. App'x 487 (11th Cir. 2005) C.N.A. Burnes Yes 2005 11th Cir. Palmer & Cay, Inc. v. Marsh & McLennan Cos., Inc. 404 F.3d 1297 (11th Cir. 2005) C.N.A. Burnes No 2005 11th Cir. Transamerica Leasing, Inc. v. Inst. of London Underwriters 430 F.3d 1326 (11th Cir. 2005) C.N.A. Burnes No 2005 DC Ajaka v. BrooksAmerica Mortg. Corp. No. CIVA103CV0977BBM, 2005 WL 6075374 (N.D. Ga. Mar. 16, 2005) * C.A. Burnes/Barger Yes 2005 DC Allapattah Servs., Inc. v. Exxon Corp. 372 F. Supp. 2d 1344 (S.D. Fla. 2005) C.A. Burnes No 2005 DC Arlaine & Gina Rockey, Inc. v. Cordis Corp. No. 02-22555-CIV, 2005 WL 6111611 (S.D. Fla. Jan. 26, 2005) C.N.A. Barger No 2005 DC Brown v. Brock No. 5:04CV339DF, 2005 WL 1429756 (M.D. Ga. June 13, 2005) * C.A. Burnes Yes 2005 DC Davis v. Valley Hosp. Servs., LLC. 372 F. Supp. 2d 641 (M.D. Ga. 2005) * C.N.A. Barger Yes 2005 DC DePaola v. Nissan Hosp. Am., Inc. No. Civ.A. 1:04CV267-W, 2005 WL 2122265 (M.D. Ala. Jan. 28, 2005) C.N.A. Burnes Yes 2005 DC Gipson v. Cross Country Bank 354 F. Supp. 2d 1278 (M.D. Ala. 2005) C.N.A Burnes No Nos. Civ.A. 203CV0943D, Civ.A. 203CV1284D, Civ.A. 204CV960D, 2005 WL 1705636 2005 DC Killebrew v. CSX Transp., Inc. C.N.A. Burnes/Barger Yes (M.D. Ala. July 19, 2005) 2005 DC Spann v. DynCorp. Tech. Servs., LLC 403 F. Supp. 2d 1082 (M.D. Ala. 2005) C.N.A Burnes Yes 2005 DC Strauss v. Rent-A-Center, Inc. No. 6:04-cv-1133ORL22KRS, 2005 WL 2647893 (M.D. Fla. Oct. 17, 2005) C.A. Burnes/Barger Yes 2005 Bk In re Farmer 324 B.R. 918 (Bankr. M.D. Ga. 2005) C.N.A Burnes Yes 2005 Bk In re Heidkamp 334 B.R. 713 (Bankr. M.D. Fla. 2005) C.N.A. Burnes Yes 2005 Bk In re Phelps 329 B.R. 904 (Bankr. M.D. Ga. 2005) C.N.A. Burnes Yes 2005 Bk In re Transit Grp., Inc 332 B.R. 45 (Bankr. M.D. Fla. 2005) C.N.A. Burnes/Barger Yes 2004 11th Cir. Parker v. Wendy's Intern., Inc. 365 F.3d 1268 (11th Cir. 2004) C.N.A. Burnes/Barger Yes 2004 Bk In re Baldwin 307 B.R. 251 (Bankr. M.D. Ala. 2004) C.N.A. Burnes/Barger Yes 2004 Bk In re Moore 312 B.R. 902 (Bankr. N.D. Ala. 2004) C.N.A. Burnes/Barger Yes 2004 Bk In re Rochester 308 B.R. 596 (Bankr. N.D. Ga. 2004) C.N.A. Burnes/Barger Yes 2004 Bk In re Williams 310 B.R. 442 (Bankr. N.D. Ala. 2004) C.A. Burnes/Barger Yes C.A. (majority); 2003 11th Cir. Barger v. City of Cartersville, Ga. 348 F.3d 1289 (11th Cir. 2003) Burnes Yes C.N.A. (dissent) 2003 11th Cir. De Leon v. Comcar Inds., Inc. 321 F.3d 1289 (11th Cir. 2003) C.A. Burnes Yes 2003 11th Cir. In re Cox 338 F.3d 1238 (11th Cir. 2003) C.A. Burnes Yes 2003 DC Kroll v. Home Depot U.S.A., Inc. No. Civ.A. CV202-113, 2003 WL 23332905 (S.D. Ga. Aug. 20, 2003) C.A. Burnes Yes 2003 DC Walton v. Life Ins. Co. of Ga. No. Civ.A. 1:02-CV3489TWT, 2003 WL 22053116 (N.D. Ga. Aug. 22, 2003) C.A. Burnes Yes 2003 Bk In re Bercu 293 B.R. 806 (Bankr. M.D. Fla. 2003) C.N.A. Burnes Yes 2003 Bk In re Galbreath No. 99-60517, 2003 WL 26119288 (Bankr. S.D. Ga. Aug. 27, 2003) C.N.A. Burnes Yes 2003 Bk In re Haskett 297 B.R. 637 (Bankr. N.D. Ala. 2003) C.N.A. Burnes/Barger Yes 2003 Bk In re Henderson 297 B.R. 875 (Bankr. M.D. Fla. 2003) C.N.A. Burnes Yes 2003 Bk In re Huggins 305 B.R. 63 (Bankr. N.D. Ala. 2003) C.A. Barger Yes 2002 DC Gonzalez v. M/V DESTINY No. 00-1690-CIV, 2002 WL 31962167 (S.D. Fla. Sept. 30, 2002) C.A. Burnes No 2002 DC Lane v. Health Options, Inc. 221 F. Supp. 2d 1301 (S.D. Fla. 2002) C.N.A. Burnes Yes 2002 DC Walker v. Delta Air Lines, Inc. No. Civ.A. 100CV0558-TWT, 2002 WL 32136202 (N.D. Ga. 2002) C.A. Burnes Yes 2002 Bk In re Barger 279 B.R. 900 (Bankr. N.D. Ga. 2002) C.N.A. Burnes Yes 2002 Bk In re Old Naples Secs., Inc. 311 B.R. 607 (Bankr. M.D. Fla. 2002) C.A. Burnes Yes 2002 Bk In re Peagler 307 B.R. 270 (Bankr. M.D. Ala. 2002) C.N.A. Burnes Yes