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 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

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."

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 it6 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.

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 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 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

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 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

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 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,

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

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 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

In this part of our opinion, we consider whether, as Slater contends, the District Court erred, and thus abused its discretion, in failing to give appropriate weight to two of the three factors that led the Supreme Court to rest its New Hampshire decision on judicial estoppel. When we compare the factual predicate that prompted the Court to apply the doctrine in that case with the factual predicate that prompted the District Court to apply the doctrine we articulated in Burnes, we find that the factual predicates are materially dissimilar. This being so, we conclude that New Hampshire did not govern the District Court's application of judicial estoppel in Slater's case.

A.

New Hampshire v. Maine involved a boundary dispute. New Hampshire brought an original action in the Supreme Court in 2000 seeking a decree fixing the New Hampshire-Maine boundary that follows the Piscataqua River. New Hampshire, 532 U.S. at 745, 121 S.Ct. at 1812. New Hampshire "contend[ed] that the inland river boundary `run[s] along the low water mark on the Maine shore,' ... and assert[ed] sovereignty over the entire river." Id. at 747, 121 S.Ct. at 1813 (second alteration in the original). Maine moved the Court to dismiss New Hampshire's complaint on the ground that "two prior proceedings — a 1740 boundary determination by King George II and a 1977 consent judgment entered by th[e] Court — definitively fixed the Piscataqua River boundary at the middle of 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":

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:

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 could not give New Hampshire what it wanted without undermining the integrity of the judicial process.

B.

Burnes v. Pemco Aeroplex, Inc. involved inconsistent positions taken by a debtor in a Chapter 7 bankruptcy case and in an employment-discrimination case.14 291 F.3d 1282, 1284 (11th Cir.2002). The salient facts were these.

In July 1997, Levi Billups petitioned the Bankruptcy Court for the Northern District of Alabama for Chapter 13 relief. Id. On January 30, 1998, "Billups filed a charge of discrimination with the EEOC against Pemco." Id. In December 1999, he and thirty-five other Pemco employees brought a lawsuit against Pemco alleging discrimination in the workplace in violation of Title VII of the Civil Rights Act of 1964. Id. Billups, however, did not amend his Chapter 13 schedule of assets to reflect the lawsuit. Id.

In October 2000, the Bankruptcy Court converted Billups's Chapter 13 case to a Chapter 7 case and "ordered Billups to [submit] amended or updated schedules to the Chapter 7 trustee reflecting any financial changes since he first filed schedules with the bankruptcy court." Id. Billups filed the amended schedules, 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

Id. at 864. Finding that Chandler had been well aware of her duty to inform the Bankruptcy Court of her pending Title VII suit15 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, 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:

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 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 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 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 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 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.

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).

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:

Id. at 1297 (alteration in original and citation omitted) (quoting Burnes, 291 F.3d at 1288).20

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 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

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 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.

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 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 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.

This special concurrence proceeds in three parts.8 In Part I., I provide a brief overview of how the bankruptcy process is designed to work in the absence of judicial estoppel, with particular emphasis placed on the roles played by the trustee and the bankruptcy judge. In Part II., I trace the doctrine of judicial estoppel's historical development in the Eleventh Circuit. In Part III., I turn to the stark implications that stem from the continued application of judicial estoppel as required by Burnes and Barger. I conclude by calling for en banc review to set straight the doctrine of judicial estoppel.

I.

The Eleventh Circuit's judicial-estoppel precedent to be applied by Article III courts in bankruptcy proceedings, which works instead against the structure and purpose of the bankruptcy system, fails to accord the broad deference to the bankruptcy courts that Congress intended. Before explaining why this is so, I begin with an overview of the relevant dynamics present in these proceedings for the those not already familiar.

The federal bankruptcy laws are designed to "give[] ... the honest but unfortunate debtor ... a new opportunity in life and a clear field for future effort, 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

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 trustee18 is appointed to represent the estate and guide the bankruptcy case through the process to its conclusion.19 The trustee is an 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 managed to strip the Bankruptcy Court of its broad discretion as the "ultimate custodian of the estate."26

II.

As Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4477 observes, "[T]he number of federal appellate decisions grappling with [the doctrine of judicial estoppel] has grown dramatically."

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 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. 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.

A.30

The doctrine of judicial estoppel first appeared in Eleventh Circuit precedent31 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 relevant state law, the Johnson Service Court looked to the Supreme Court of Texas's pronouncement in Long v. Knox,35 which provided that

The Johnson Service Court then explained that,

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 New Hampshire scenario38 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

B.

In 1988, this court, in Chrysler Credit Corp. v. Rebhan,43 considered for the first time whether to recognize judicial estoppel as a federal rule and thus part of the law of the Eleventh Circuit. Chrysler Credit presented the New Hampshire scenario and involved the application of the Bankruptcy Code.44 The debtor,45 Rebhan, was attempting to maintain a factual position under oath in an adversary proceeding initiated by Chrysler Credit that was directly contrary to the factual position he had pursued under oath against Chrysler Credit in a state court.46 Chrysler Credit objected, arguing that judicial estoppel barred Rebhan's position. The Bankruptcy Court agreed, the District Court affirmed, and Rebhan appealed to this court. In that this court was "not bound ... to apply any rigid formulation of the doctrine," having previously applied judicial estoppel only as state law, it looked to "common law or to the policies supporting the doctrine itself for guidance," and specifically to the Texas law that had informed the Johnson Service Court's decision.47 Importantly, the court commented on the purpose of judicial estoppel. It found that the doctrine's purpose was to prevent parties from "attempt[ing] to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings,"48 and affirmed the lower courts' rejection of Rebhan's position because he was attempting to manipulate the Bankruptcy Court's decision.49

Three years later, this court once again applied the doctrine of judicial estoppel as federal law in a case presenting the New Hampshire scenario. In McKinnon v. Blue Cross & Blue Shield of Alabama,50 we adopted the state-law formulation articulated in American National Bank: "Judicial estoppel is applied to the calculated assertion of divergent sworn positions. The doctrine is designed to prevent parties from making a mockery of justice by inconsistent pleadings"51 (collectively the "divergent-sworn-positions-and-mockery-of-justice rule").52 The divergent-sworn-positions requirement had previously been adopted into federal law through Chrysler Credit, and McKinnon added the "mockery of justice" language to federal law. This divergent-sworn-positions-and-mockery-of-justice rule was then applied verbatim in Talavera v. School Board of Palm Beach County53 and Taylor v. Food World, Inc.54

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 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

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 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 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 position 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 divergent-sworn-positions-and-mockery-of-justice rule's "divergent sworn positions" element thus fell by the wayside.62

C.

1.

Judicial estoppel's next doctrinal development, in Burnes, occurred when this court changed its focus from protecting the integrity of the judicial system to punishing debtors who do not fully disclose their assets. Because Burnes followed directly on the heels of the Supreme Court's decision in New Hampshire v. Maine,63 the court first had to consider that case's impact on the Circuit's own precedent. In New Hampshire, the Supreme Court identified three factors that guided its judicial-estoppel analysis — the degree to which the two statements at issue were inconsistent; whether a judicial tribunal accepted the earlier position so that it would appear, if a later court adopts a contrary position, that either court had been misled; and whether the party advancing the inconsistent position would 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 rule66 and followed it with the two-element statement:

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 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 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 defendant when he amended his schedule of assets but failed to disclose the litigation, and he had a motive for concealing it:

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

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.

2.

a.

Barger v. City of Cartersville77 further weakened the intent requirement by reinforcing Burnes's conclusion that it would diminish debtors' "necessary incentive to provide the bankruptcy court with a truthful disclosure of the debtors' assets" if a noncompliant debtor were "allow[ed] to back up, re-open the bankruptcy case, and amend his bankruptcy filings, only after his omission has been challenged by an adversary."78 In Barger, the debtor, Donna Barger, sued the City of Cartersville after a demotion, seeking reinstatement.79 Shortly thereafter, she also sought Chapter 7 bankruptcy relief.80 While her bankruptcy estate was being administered, she amended her complaint against the City to seek compensatory and punitive damages in addition to reinstatement.81 Because she was now seeking damages, she was required to amend her bankruptcy filings but failed to do so.82

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 case84 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

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 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.

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 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

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

The District Court then applied judicial estoppel and granted the City's motion for summary judgment.102 In doing so, the court effectively rejected the Bankruptcy Court's findings and conclusions, and substituted its own, to-wit: the debtor, in failing to list the claims and her lawsuit against the City in her schedules, intended to manipulate the judicial system.103

b.

On appeal, this court applied the two-element statement in determining whether the City had established the defense of judicial estoppel.104 This meant the City's task was two-fold: "First, ... [Barger]'s allegedly inconsistent positions must have been `made under oath in a prior proceeding.' Second, the `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:

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

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 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 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 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.

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 court noted, the Supreme Court in New Hampshire acknowledged that "the 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 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 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 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.

III.

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.

A.

1.

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.

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 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,

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 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 explanation 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 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 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:

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.

2.

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. There is simply no deterrence for the cold and calculating litigant, who stands to gain much and lose nothing.

B.

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 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.

1.

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 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 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 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 motion.187 The court left the issue of punishment for the District Court to decide.188

2.

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 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 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 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 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 — the effect on the interests of creditors, the debtor, the City and the public — counseled reopening the debtor's case.

3.

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 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.

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.

C.

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 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.

1.

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 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 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.

2.

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

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 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.

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 be punished. The punishment? Not under the criminal law of perjury211 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 at 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.

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.

[Editor's Note: The preceding image contains the reference for footnote.†.]

Timeline of Judicial Estoppel Cases in the Eleventh Circuit

     Case name                        Citation     Date       Jurisdiction     Burnes or     One oath or
                                                                               NH?†           two?‡

Johnson Serv. Co. v.         485 F.2d     1973       Diversity      Burnes         Either
   Transamerica Ins. Co.        164

Am. Nat'l Bank of            710 F.2d     1983       Diversity        NH            Two
Jacksonville v. Fed.           1528
     Deposit Ins. Corp.

Chrysler Credit Corp. v.     842 F.2d     1988     Federal            NH            Two
          Rebhan               1257                  question

McKinnon v. Blue Cross &     935 F.2d     1991     Federal            NH            Two
    Blue Shield of Ala.        1186                  question

Talavera v. School Bd. of    129 F.3d     1995     Federal          Burnes          Two
    Palm Beach Cty.            1214                  question

Taylor v. Food World, Inc.   133 F.3d     1998     Federal          Burnes          Two
                                 1419                  question

Salomon Smith Barney,        260 F.3d     2001       Diversity        NH           Either
     Inc. v. Harvey            1302

Burnes v. Pemco Aeroplex,    291 F.3d     2002     Federal          Burnes         Either
            Inc.               1282                  question

Barger v. City of            348 F.3d     2003     Federal          Burnes           One
         Cartersville          1289                  question

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.