*3 May stating, in part, relevant MARCUS, Before FAY and “the property of the estate shall not vest in ANDERSON, Judges. *4 the Debtor until a discharge granted § FAY, under Judge: 1328 or the case is dismissed.”1 While in the of a Chapter midst In September 2005, Robinson resigned plan, bankruptcy plaintiff-appellant Bren- her employment Tyson (“Ty- Foods da brought an employment Robinson dis- son”). In her letter of resignation, Robin- claim against crimination her em- former son claimed that subjected been to ployer, defendant-appellee Tyson Foods. “harassment, racial abuse and intimi- The granted district summary judg- 2006, dation.” In October Robinson ment for Foods on the threshold brought civil suit against Tyson, alleging judicial issue of The estoppel. court rea- employment unlawful practices and mis- soned that because Robinson failed to dis- treatment on the basis of race severe close her employment discrimination suit enough to constitute constructive termi- court, to the bankruptcy she had taken nation.2 sought Robinson compensatory, positions under oath with the punitive liquidated and damages. intent misleading the court. Robinson 2007, In May one of Robinson’s creditors that she did contends not take inconsistent moved for a dismissal of her bankruptcy positions under oath because she did not plan because her payments were delin- have a continuing disclose changes quent, resulting in a material default. Be- in her asset Additionally, schedule. Rob- fore the hearing, Robinson brought her inson claims she had no reason to mislead payments current and the motion was paid court as she off her debt full. withdrawn. Two July months later in We judicial hold that estoppel was appro- 2007, Robinson completed her priate and affirm the district grant court’s plan, repaying all her debts receiv- and of summary judgment. ing a full discharge from bankruptcy. I. FACTS AND PROCEEDING In preparation for her employment dis- BELOW: suit, crimination Tyson took Robinson’s de- There are two interlaced events in position in September 2007. During the case; a bankruptcy proceeding and em- deposition, an Robinson revealed that she had ployment discrimination claim. In April not disclosed her against Tyson suit 2002, Brenda Robinson voluntarily dis- bankruptcy court. The deposition also re- missed her Chapter 13 case because her vealed her following husband’s death § 1328, 1. § 1328 refers to 11 U.S.C. Rights which Act of multiple Alabama requirements outlines discharge. provisions. state law § 42 U.S.C. 2000 et seq., § 42 U.S.C. 1981. 2. brought Robinson her under claim Title VII Rights of the Civil ofAct the Civil III. compen- filed a DISCUSSION worker’s Drum- employer, his against claim sation judicial purpose The claim was still mond Coal. integrity is “to protect Robinson declared when chang process by prohibiting parties from However, Robinson failed April ing positions according exigencies anywhere on her the claim list Maine, Hampshire the moment.” New v. asked she had whether schedules. When 742, 749,121 1808, 1814, 149 532 U.S. S.Ct. administrative proceedings any suits or (2001). Specifically, judicial L.Ed.2d 968 “NONE” on Robinson checked pending, designed “prevent party estoppel is forms. schedule disclosure asserting legal in a proceed from claim taken ing that is inconsistent with claim her Due to failure claim previous in a party preceding.” court, Tyson to against (3d § ed. Moore’s Federal Practice 134.30 was pre- that Robinson Tyson contended 2008). Maine, Hampshire In New on the pursuing from her suit basis cluded Supreme recognized Court that while the *5 Tyson argued judicial estoppel. that of might which a court circumstances under in- Robinson’s non-disclosure constituted judicial estoppel vary, invoke will three positions oath that consistent under were (1) the typically factors inform decision: mockery judi- of the calculated to make is in present position whether the agreed system. The district court cial (2) position; consistent with the earlier judgment summary Tyson. granted party the persuading whether succeeded appeal only followed. The issue on This accept position, to earlier so the the district court abused appeal whether judicial acceptance that of the inconsistent applying judicial estoppel. its discretion position proceeding in a later would create perception the that either the first or sec II. STANDARDS OF REVIEW and; (3) ond whether mislead posi the party advancing the inconsistent Generally, grant we the review tion advantage. would derive an unfair Id. novo, summary judgment de and the ing of 750-51,121 at S.Ct. at 1815-16. findings of fact for clear district court’s in the Eleventh v. Reliance Standard The seminal case error. Levinson Co., judicial theory estoppel F.3d 1325 on of is Bumes Ins. 245 the Life Cir.2001). However, Aeroplex, 291 review the dis v. Perneo F.3d 1282 we (11th Cir.2002). judicial Incorporating of the stan- application trict court’s Court, by Supreme discretion. Talavera v. dards enumerated for abuse of County, primary outlined factors for Bd. Palm Beach 129 Bumes two School of (11th Cir.1997). 1214,' judicial establishing estoppel. As this the bar of 1216 F.3d “First, allegedly be upon theory of it must shown case is decided positions were made under estoppel, applicable standard review inconsistent Second, discretion, proceeding. finding prior of oath in a such is abuse shown to have An inconsistencies must be facts held to clear error. abuse mockery to make a requires us to “affirm been calculated discretion review rec- judicial system.” has Id. at 1285. Bumes unless we find that district court ognized that these factors are not exhaus- judgment, or has made clear error tive; rather, always give must due wrong legal courts applied standard.” Unit Frazier, to 1259 consideration the circumstances ed States v. banc). (11th Cir.2004) (en case. id. particular See Duty court; bankruptcy A. submitted to the to Disclose rather the debtor must amend financial [her] positions un- Robinson took statements if change”). circumstances had a continuing duty der oath if she Therefore, under the established law of changes as- circuit, this 13 debtor Chapter has a set schedule. Robinson contends that as a statutory duty changes to disclose in as- debtor, she did not have a sets. duty disclose her continuing assets to disagree. court. We The law is clear that “[u]nder the prior rule, precedent we are bound to fol emphasized
Our court
low a prior binding precedent
importance
honest
unless and
of full and
disclosure in
until it is overruled
this court en banc
bankruptcy proceedings, stating that it is
byor
Supreme
“crucial”
system’s
“effective func
Court.” United States
tioning.”
Vega-Castillo,
A
seeking
Id.
debtor
shelter
Cir.2008)
curiam).
statutory
(per
above,
under the
laws has a
As noted
assets,
duty
potential
to disclose all
or
precedent
circuit’s
holds that a Chap
assets to the
court. 11
ter
statutory
U.S.C.
13 debtor
duty
has a
541(a)(7).
521(1),
§§
“The
to disclose
amend her financial schedule to reflect her
is a
continuing one
does not
such,
end once
current assets. As
we hold that
the forms
are submitted
the bankruptcy
statutory duty
Robinson had a
to amend
court; rather the debtor must amend [her]
her schedule of
assets
reflect her claims
financial
if
statements
circumstances
*6
against Tyson.
Bumes,
change.”
Inc.,
(11th
1289,
Cir.2003).
321 F.3d
1291
pendency
bankruptcy
of her
belonged to
that
argues
Robinson
our current case her bankruptcy
and not
person
estate
her
law mandating
continuing
a
statutory duty
ally.
to disclose can be traced back to dicta in
incorrectly
undisputed
Bumes and
It
is
that a
perpetuated
pending
as law
However,
monetary
lawsuit
subsequent
seeking
compensation
cases.
even if
dicta,
qualifies
reasoning Bumes is
as an asset. Parker v. Wendy’s
became
Intern.,
(11th
the law of
this circuit
the holdings of De
1275 Cartersville, 1303; City § In re 1295- 11 U.S.C. all creditors. See (Bankr.S.D.Ga. (11th Cir.2003). 590, 595 96 Mosley, 260 B.R. 2000). Therefore, we find that Robinson estopped party’s While an con ordered statutory court had both intentional, tradiction must such intent be to re- duty to amend her asset schedules Bumes, may be inferred from the record. Tyson. against her claims flect F.3d at 1285. This 291 inference is consid finding by a factual the court and ered Positions Under Oath B. Inconsistent clearly held to a erroneous A standard. timely amend Ajaka that failure held finding is erroneous “al when Chapter reorganization plan 13 to reflect it, there though support is evidence simultaneously purs- pending claim while reviewing court on the entire evidence is in another of law ing that claim with a and firm that left definite conviction under positions constitutes a mistake been committed.” United Ajaka, F.3d at When oath. 453 Oregon Society, States State Medical her sched- Robinson submitted 326, 339, 690, 698, 343 U.S. S.Ct. oath, also that under she submitted ules (1952). L.Ed. re- would those schedules as update Therefore, when Robinson filed quired. It undisputed that Robinson she had against Tyson, suit a sworn Therefore, knowledge claims. of'her to disclose that suit her the issue of is the determining motive fac estate. tor this case. Robinson contends she against lacked motive to conceal her claims By update bankrupt failing to her plan her Tyson proposed as claim, her cy schedule to reflect repayment. However, complete full mone no le she had represented not tary repayment necessarily pre does while gal claims to the finding clude of a motive conceal. See claim simultaneously pursuing legal (concluded Bumes, 291 at 1286 *7 against in the district court. These judicial estoppel pro since is intended actions, oath, clearly both taken under are judicial system, asserting those tect Therefore, inconsistent. in accordance preju need not demonstrate individual Ajaka, po Robinson took inconsistent dice). judicial application estoppel The of judicial under oath and the of sitions issue require not does nondisclosure estoppel centers on her intent. must lead to a result in the bank different Superior'Crew- In re ruptcy proceeding. Mockery System C. the Judicial of (5th Cir.2004). boats, 335-36 in party’s considering When Rather, the motive to conceal stems from judicial purpose estoppel, for the tent possibility defrauding the courts and contradictions, not require we “intentional any not from actual fraudulent result. Am. Nat’l simple error or inadvertence.” FDIC, The district court found that Robinson Bank Jacksonville Cir.1983). a motive her claim because “In consider had to conceal cases, any proceeds for if “she realized from the suit ing statutory discharge of her satisfy prior the debtor’s failure to its when, for kept proceeds ... she could have disclosure is ‘inadvertent’ becoming of the general, part either lacks knowl herself without their the debtor going her credi- or has no estate and edge undisclosed claims satisfy Barger v. her debts.” The district motive for their concealment.” tors nine month she sought compensatory, punitive court on the window and liq- focused brought between her claim when Robinson uidated in her damages lawsuit. The she against Tyson and when was dismissed questions regarding repayment coupled bankruptcy. Specifically, from district monetary gain with the chance of con- court if Robinson’s claim found that had vinced the district court Robinson had period, settled in she would have this time a motive to conceal her claims. This find- proceeds been keep able to herself ing has not left with the definite us and opportunity and fair denied creditors firm conviction that a mistake has been rightfully to claim what was theirs. Of such, made and as not erroneous. course, pend- the same holds true for the ing claim. compensation worker’s D. Additional Factors objects to the district Bumes, accordance with In reasoning, stating court’s that even though district court specific considered the cir she claim pending against Tyson, had a cumstances of the case addition to fac yet any she has to receive monies from specifically tors enumerated. The district that claim. Robinson contends that recognized that this was not Robin district penalize court cannot her based on son’s regarding first mistake her bank speculative recovery considering the fact ruptcy proceedings. Robinson failed to paid that she debts in off her full. Howev disclose her pending compensa worker’s er, making Robinson has the benefit of against tion claim Drummond Coal when argument in hindsight. When reviewing initially declared in 2002. motive, potential the relevant inquiry is Specifically any if she asked pending intent at the time of non-disclosure. Casa claims, Robinson checked “NONE.” Rob Solutions, Inc., nova v. Pre Fed.Appx. inson presented explanation no as to Cir.2007). 837, 841 why she failed to this claim At the time she chose not to dis bankruptcy court. The district against close her Tyson, suit Rob found this intentional omission constituted process repayment inson was in the additional evidence Robinson’s intent to moving trustee was to dismiss the conceal claims an and such inference is not bankruptcy plan on based Robinson’s fail clearly mistaken. stay ure to payments. current on her district court challenged noted Robinson’s IV. CONCLUSION history regarding credit management. *8 Robinson to was forced abandon her initial The law is clear that Robinson had a Chapter payments 13 case because her duty to changes disclose substantial her “beyond increased to a ability rate her to Additionally, assets. the district court pay.” Robinson then defaulted on her sec found Robinson a motive to had conceal ond bankruptcy plan, causing a creditor to keep any claims order to settlement seek relief stay from the automatic im proceeds finding and this was reasonable posed by the court. There on the presented. record The district fore, rightfully the district recog requisite then inferred the intent to nized that at the time she chose not to make mockery system a of the suit, disclose her pending legiti there were from finding the record. This of fact is questions mate regarding repayment. held to the erroneous standard and
Additionally, obviously Robinson presented had has not sufficient evi- expectation some monetary recovery, of dence to as overturn this deferential burden.
1277 judicial estop- under which judg- circumstances reasons, summary foregoing For the are invoked may appropriately be pel AF- Foods is in favor ment any general for- to not reducible probably FIRMED. at principle.” mulation ANDERSON, Judge, Maine, 532 (citing Hampshire New 1285 concurring: 1808, 1815, 149 742, 750-51, 121 S.Ct. U.S. (2001)). that, in added We L.Ed.2d 968 panel binding I believe because I concur test, “courts must two-prong applying our result, I but write that dictates precedent to all of the consideration always due give agree my concerns. I to voice separately case when particular of a circumstances that Robin- the Court for opinion the with of this doc- applicability considering continuing duty son had I that we have at 1286. fear trine.” Id. discrimina- employment of her existence for “inadver- an inflexible formula created failure to that her agree I also claim. tion thorough- from prevents courts tence” that to re- plan timely amend her of a the circumstances examining all of ly claim con- discrimination that flect particular case. posi- taking of an stituted tion. presents problems I this formula think my con- express separately I write where, here, posture as particular application our related to cern my In summary judgment. case system prong mockery-of-the-judicial evidence of is sufficient judgment, there See judicial estoppel. invoking for the test genuine issue of to create lack of intent F.3d Aeroplex, v. Perneo Bumes Robin- regarding whether fact material Cir.2002). determining In 1282,1285 an intent to evinces failure to disclose son’s position an inconsistent taking of that the judicial system. mockery make mockery of make a was calculated bankruptcy case activity in the only “inten- requires prong judicial system, that discrimination pendency of the during the or contradictions, simple error not tional May July between case occurred Fay’s opinion Judge As inadvertence.” activity, Robinson that During to hold notes, opinion seems Barger our her discrimi- have disclosed clearly should comply failure “the debtor’s that claim, fact that she com- nation but duty is disclosure Bankruptcy Code’s by July all creditors up pletely paid party either when a ‘inadvertent’ inference that a reasonable rise to gives claim knowledge of the undisclosed lacks creditors in no value there was their concealment.” has no motive or Bolstering this in- claim. discrimination Cir.2003). I 1289, 1295 is no evidence fact that there is the ference that Robinson undisputed it is agree claim recovery on the discrimination claim. her discrimination knowledge of imminent, Although even realistic. or also had motive probably I think her work- to disclose failure Robinson’s a theoretical conceal; there is at least in the earlier claim compensation man’s *9 Thus, by precedent I bound am motive. contrary evidence constitutes case. affirm this not, my estoppel, does in favor the reasonable however, so overwhelm Bumes, judgment, noted in As we to eliminate favoring Robinson inferences refused “establish Supreme Court Thus, fact. issue of material genuine or an exhaustive prerequisites inflexible fail- Robinson’s finding that mandating a applicability determining the formula merely not inadvertent was ure to disclose observing “the judicial estoppel,” knowledge and a because she had theoreti- seems to me to
cal motive to conceal be summary judgment
inconsistent with the
posture of this case and seems to me to
conflict with our well-established law that question ordinarily
intent is of fact for See, Chanel, jury. Inc. v. e.g., Italian Fla.,
Activewear (11th Cir.1991). However, Barger summary also a judgment case to me
posture, and it seems that there too probably genuine
there was a issue of ma- requisite
terial fact as to the intent.
Accordingly, I the judgment concur I I
because believe am bound to do so
precedent.
Francisco Javier Rivera AGREDANO Leon,
and Alfonso Calderon Appellants,
Plaintiffs-Cross STATES,
UNITED Defendant-
Appellant. 2008-5114,
Nos. 2008-5115.
United of Appeals, States Court
Federal Circuit.
Feb. 2010.
Reharing Rehearing En Banc April
Denied