Ah Quin v. County of Kauai Department of Transportation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KATHLEEN M. AH QUIN, No. 10-16000
Plaintiff-Appellant,
D.C. No.
v. 1:08-cv-00507-
BMK
COUNTY OF KAUAI DEPARTMENT OF
TRANSPORTATION,
Defendant-Appellee. OPINION

Appeal from the United States District Court
for the District of Hawaii
Barry M. Kurren, Magistrate Judge, Presiding

Argued and Submitted
February 12, 2013—Honolulu, Hawaii

Filed July 24, 2013

Before: Susan P. Graber, Jay S. Bybee, and
Morgan Christen, Circuit Judges.

Opinion by Judge Graber;
Dissent by Judge Bybee
2 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

SUMMARY*

Bankruptcy / Judicial Estoppel

The panel vacated the district court’s summary judgment
holding that judicial estoppel prohibited the plaintiff from
proceeding with her employment discrimination action,
which she had failed to list in her bankruptcy schedules.

Disagreeing with the test articulated by other circuits, the
panel held that the district court applied the wrong legal
standard in determining whether the plaintiff’s bankruptcy
omission was “mistaken” or “inadvertent.” The panel
concluded that when a plaintiff-debtor has reopened the
bankruptcy proceedings and has corrected the initial filing
error, narrow interpretations of “mistake” and inadvertence”
do not apply. The panel stated that in these circumstances,
rather than the application of a presumption of deceit, judicial
estoppel requires an inquiry into whether the plaintiff’s
bankruptcy filing was, in fact, inadvertent or mistaken, as
those terms are commonly understood. The panel remanded
the case for application of the correct legal standard.

Dissenting, Judge Bybee wrote that the majority’s holding
was at odds with the law of other circuits and also with this
court’s case law, which holds that the relevant inquiry when
considering inadvertence or mistake is limited to (1) the
plaintiff’s knowledge of the pending claim and (2) the
universal motive to conceal a potential asset. Judge Bybee
wrote that in addition, even applying a broader understanding

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 3

of inadvertence or mistake, the evidence could not support a
finding that the plaintiff’s subjective intent was innocent.

COUNSEL

William H. Burgess (argued) and Dominic E. Draye,
Kirkland & Ellis LLP, Washington, D.C., for Plaintiff-
Appellant.

Barbara A. Petrus (argued), Shannon H. Sagum, and Jordan
M. Odo, Goodsill Anderson Quinn & Stifel LLP, Honolulu,
Hawaii, for Defendant-Appellee.

OPINION

GRABER, Circuit Judge:

Plaintiff Kathleen M. Ah Quin contends that her
employer, Defendant County of Kauai Department of
Transportation, discriminated against her because she is a
woman. While pursuing this action, however, Plaintiff filed
for Chapter 7 bankruptcy protection and initially failed to list
this action in her bankruptcy schedules. The district court
held that judicial estoppel prohibits her from proceeding and,
therefore, granted summary judgment to Defendant. We hold
that the district court applied the wrong legal standard in
determining whether Plaintiff’s bankruptcy omission was
“mistaken” or “inadvertent.” Accordingly, we vacate the
judgment and remand for further proceedings.
4 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff initiated this employment-discrimination action
on November 10, 2008. She alleges that, because of her
gender, Defendant reduced her work hours and denied her
full-time status, in violation of various discrimination statutes
and under the common law. On December 18, 2009, the
district court denied Defendant’s motion for summary
judgment on the merits. The court scheduled the case for a
jury trial in April 2010.

Meanwhile, Plaintiff had obtained bankruptcy protection.
Represented by a different lawyer than her lawyer in this
case, Plaintiff filed for Chapter 7 bankruptcy on April 4,
2009. A debtor must list all pending lawsuits in the
bankruptcy schedules, but Plaintiff checked the box “None”
next to this line item: “List all suits and administrative
proceedings to which the debtor is or was a party within one
year immediately preceding the filing of this bankruptcy
case.” (Emphasis omitted.) At a bankruptcy hearing,
Plaintiff testified that she had listed all of her assets and that
the answers in her petition and schedules are “true and
correct.” She did not mention this pending action. During a
colloquy concerning her husband’s losing his job, Plaintiff
responded to a question about whether she had a claim by
saying: “No. No.”1 On September 1, 2009, the bankruptcy
court issued an order of discharge and closed the case.

1
The parties dispute the significance of that colloquy. In our view, the
most plausible reading is that Plaintiff was referring to a claim for her
husband’s loss of work, not to a claim in general. But we do not resolve
that factual dispute.
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 5

At some point, Plaintiff’s lawyer in this case became
aware of the potential effect of Plaintiff’s bankruptcy
proceeding. At a settlement conference on December 21,
2009, Plaintiff’s lawyer informed Defendant of Plaintiff’s
bankruptcy filing.

On December 29, 2009, Defendant wrote a letter to the
district court setting forth the position that it could move to
dismiss the action under the doctrine of judicial estoppel.
The next day, the district court vacated all dates and
deadlines, and it scheduled a status conference for January
14, 2010.

On January 13, 2010, Plaintiff moved to reopen her
bankruptcy case and to set aside the discharge. The motion,
accompanied by declarations from her bankruptcy lawyer’s
staff and from Plaintiff, explained that Plaintiff had never
disclosed the pending lawsuit to her bankruptcy lawyer or his
staff and that Plaintiff’s failure to list the lawsuit as an asset
stemmed from Plaintiff’s misunderstanding of what she was
required to do. The bankruptcy court reopened the case the
same day. Plaintiff amended her bankruptcy schedules to list
this pending claim as an asset.

On February 10, 2010, Defendant filed a motion for
summary judgment in the discrimination action, on the
ground that judicial estoppel prohibits Plaintiff from
proceeding. The district court agreed and granted summary
judgment in an order dated April 1, 2010. Plaintiff timely
appeals.

On June 20, 2010, the bankruptcy trustee filed a report
that abandoned the trustee’s interest in the pending
discrimination action. Plaintiff’s unsecured creditors did not
6 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

object to that action by the trustee. On July 21, 2010, the
bankruptcy court closed the reopened case.

STANDARDS OF REVIEW

We review de novo a grant of summary judgment.
Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782
(9th Cir. 2001). We review “the district court’s application
of the doctrine of judicial estoppel to the facts of [a] case for
an abuse of discretion.” Id. “The district court . . .
necessarily abuses its discretion when it bases its decision on
an erroneous legal standard . . . .” Farris v. Seabrook,
677 F.3d 858, 864 (9th Cir. 2012) (internal quotation marks
omitted).

DISCUSSION

“[J]udicial estoppel is an equitable doctrine invoked by a
court at its discretion.” New Hampshire v. Maine, 532 U.S.
742, 750 (2001) (internal quotation marks omitted). “[I]ts
purpose is to protect the integrity of the judicial process by
prohibiting parties from deliberately changing positions
according to the exigencies of the moment.” Id. at 749–50
(citation and internal quotation marks omitted).

Although judicial estoppel is “probably not reducible to
any general formulation of principle, . . . several factors
typically inform the decision whether to apply the doctrine in
a particular case.” Id. at 750 (citations and internal quotation
marks omitted). “First, a party’s later position must be
‘clearly inconsistent’ with its earlier position.” Id. “Second,
courts regularly inquire whether the party has succeeded in
persuading a court to accept that party’s earlier position, so
that judicial acceptance of an inconsistent position in a later
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 7

proceeding would create the perception that either the first or
the second court was misled.” Id. (internal quotation marks
omitted). “A third consideration is whether the party seeking
to assert an inconsistent position would derive an unfair
advantage or impose an unfair detriment on the opposing
party if not estopped.” Id. at 751. “In enumerating these
factors, we do not establish inflexible prerequisites or an
exhaustive formula for determining the applicability of
judicial estoppel. Additional considerations may inform the
doctrine’s application in specific factual contexts.” Id.

In the bankruptcy context, the federal courts have
developed a basic default rule: If a plaintiff-debtor omits a
pending (or soon-to-be-filed) lawsuit from the bankruptcy
schedules and obtains a discharge (or plan confirmation),
judicial estoppel bars the action. See, e.g., Payless Wholesale
Distribs., Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570, 571
(1st Cir. 1993) (“Conceal your claims; get rid of your
creditors on the cheap, and start over with a bundle of rights.
This is a palpable fraud that the court will not tolerate, even
passively.”); Hay v. First Interstate Bank of Kalispell, N.A.,
978 F.2d 555, 557 (9th Cir. 1992) (holding that “[f]ailure to
give the required notice [to the bankruptcy court] estops [the
plaintiff-debtor] and justifies the grant of summary judgment
to the defendants”). The reason is that the plaintiff-debtor
represented in the bankruptcy case that no claim existed, so
he or she is estopped from representing in the lawsuit that a
claim does exist. That basic rule comports fully with the
Supreme Court’s decision in New Hampshire: (1) the
positions are clearly inconsistent (“a claim does not exist” vs.
“a claim does exist”); (2) the plaintiff-debtor succeeded in
getting the first court (the bankruptcy court) to accept the first
position; and (3) the plaintiff-debtor obtained an unfair
advantage (discharge or plan confirmation without allowing
8 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

the creditors to learn of the pending lawsuit). The general
rule also comports fully with the policy reasons underlying
the doctrine of judicial estoppel: to prevent litigants from
playing “fast and loose” with the courts and to protect the
integrity of the judicial system. New Hampshire, 532 U.S. at
749–50.

Of particular relevance here, though, the Supreme Court
held in New Hampshire, that “it may be appropriate to resist
application of judicial estoppel when a party’s prior position
was based on inadvertence or mistake.” 532 U.S. at 753
(internal quotation marks omitted). We have not addressed
the effect of an inadvertent or mistaken omission from a
bankruptcy filing, but several of our sister circuits have.
Eastman v. Union Pac. R.R. Co., 493 F.3d 1151, 1157 (10th
Cir. 2007); Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282,
1286–87 (11th Cir. 2002); Browning v. Levy, 283 F.3d 761,
776 (6th Cir. 2002); Browning Mfg. v. Mims (In re Coastal
Plains, Inc.), 179 F.3d 197, 206 (5th Cir. 1999). Those courts
generally have interpreted this factor narrowly. The courts
have asked not whether the debtor’s omission of the pending
claim from the bankruptcy schedules was inadvertent or
mistaken; instead, they have asked only whether the debtor
knew about the claim when he or she filed the bankruptcy
schedules and whether the debtor had a motive to conceal the
claim. See, e.g., Eastman, 493 F.3d at 1157 (“Where a debtor
has both knowledge of the claims and a motive to conceal
them, courts routinely, albeit at times sub silentio, infer
deliberate manipulation.”). This interpretation of
“inadvertence” is narrow in part because the motive to
conceal claims from the bankruptcy court is, as several courts
have explained, nearly always present. Jethroe v. Omnova
Solutions, Inc., 412 F.3d 598, 601 (5th Cir. 2005); Coastal
Plains, 179 F.3d at 212–13.
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 9

Here, the district court applied that narrow interpretation.
Defendant argued repeatedly to the district court that, to
overcome Plaintiff’s inadvertence argument, all it had to
show was that Plaintiff (1) knew of her claim and (2) had a
motive to conceal the claim from the bankruptcy court.
Defendant argued that the doctrine of judicial estoppel
“should be and must be applied” to Plaintiff’s circumstances.
The district court appeared to adopt Defendant’s argument.
It reasoned: “I think the Court is bound to apply that law to
the circumstances we have here and accordingly, summary
judgment will be entered in favor of the defense.”2
(Emphasis added.) The district court’s belief that it was
bound to preclude Plaintiff from bringing her discrimination
claim is mistaken and fundamentally at odds with equitable
principles. Judicial estoppel is a discretionary doctrine,
applied on a case-by-case basis. See New Hampshire,
532 U.S. at 751 (refusing to “establish inflexible prerequisites
or an exhaustive formula for determining the applicability of
judicial estoppel”). A court is not “bound” to apply judicial
estoppel, particularly when “a party’s prior position was
based on inadvertence or mistake.”3 Id. at 753 (internal
quotation marks omitted).

2
Whether the district court thought that it was “bound” by Hamilton or
by out-of-circuit case law, it was mistaken. In Hamilton, we were not
presented with an opportunity to address inadvertence or mistake. See
infra note 6.
3
Consider, for example, a litigant who is not represented by counsel or
who speaks English as a second language and fails to include a claim on
her bankruptcy schedule because she does not understand that she was
required to do so. The narrow rule applied by the district court would
punish the litigant for making an honest mistake and would leave no room
for equitable considerations.
10 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

The court held that Plaintiff’s bankruptcy filing was not
“inadvertent” because, as Plaintiff concedes, she knew about
the existence of this action when she filed for bankruptcy and
because, as is true in practically all bankruptcy cases, Plaintiff
had a motive to conceal the claim: keeping any potential
proceeds from creditors.

The parties dispute whether the district court applied the
correct legal standard when it found that Plaintiff’s omission
was not a result of inadvertence or mistake. See, e.g., Milton
H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d
983, 992 (9th Cir. 2012) (holding that, when reviewing
applications of judicial estoppel, we first must determine
“whether the trial court identified the correct legal rule”).
The starting point for our analysis is that our cases have not
addressed the effect of an inadvertent or mistaken omission
from a bankruptcy filing.4 Many of the dissent’s arguments
hinge on its repeated assertions that our previous cases have
already answered this question, dissent at 25–27, 30–39,
despite the fact that not one of our previous cases has even
considered it. We are unwilling to glean the legal standard
for what constitutes “inadvertence or mistake” in a
bankruptcy filing from cases that plainly did not concern that
factor. As explained below, we agree with Plaintiff that the
district court erred in applying the narrow interpretation of
“inadvertence” because, in the circumstances, that
interpretation is too stringent.

4
The district court turned to Tenth Circuit authority to interpret the
meaning of “inadvertence or mistake.” The district court thus seems to
have recognized that our circuit had not defined these terms in the present
context.
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 11

A key factor is that Plaintiff reopened her bankruptcy
proceedings and filed amended bankruptcy schedules that
properly listed this claim as an asset. When a plaintiff-debtor
has not reopened bankruptcy proceedings, a narrow exception
for good faith is consistent with New Hampshire and with the
policies animating the doctrine of judicial estoppel. The three
primary New Hampshire factors are still met (inconsistency,
bankruptcy court accepted the contrary position, to the
debtor’s unfair advantage). And, as courts repeatedly stress,
the importance of full disclosure in bankruptcy proceedings
“cannot be overemphasized.” Coastal Plains, 179 F.3d at
208; see also, e.g., Ryan Operations G.P. v. Santiam-Midwest
Lumber Co., 81 F.3d 355, 362 (3d Cir. 1996) (“[T]he
importance of full and honest disclosure cannot be
overstated.”); Oneida Motor Freight, Inc. v. United Jersey
Bank, 848 F.2d 414, 417 (3d Cir. 1988) (holding that “we
cannot overemphasize the debtor’s obligation” to provide full
disclosure). In sum, given the strong need for full disclosure
in bankruptcy proceedings and the fact that the plaintiff-
debtor received an unfair advantage in the bankruptcy court,
it makes sense to apply a presumption of deliberate
manipulation. See Eastman, 493 F.3d at 1159 (“That he well
knew of his pending lawsuit and simply did not disclose it to
the bankruptcy court is the only reasonable inference to be
drawn from the evidence.”). But where, as here, the plaintiff-
debtor reopens bankruptcy proceedings, corrects her initial
error, and allows the bankruptcy court to re-process the
bankruptcy with the full and correct information, a
presumption of deceit no longer comports with New
Hampshire.

Along with most of our sister circuits, we have held
that—at least where the plaintiff-debtor does not claim
inadvertence or mistake—the reopening of a bankruptcy case
12 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

is generally irrelevant to the analysis of judicial estoppel.
Eastman, 493 F.3d at 1160; Barger v. City of Cartersville,
348 F.3d 1289, 1297 (11th Cir. 2003); Burnes, 291 F.3d at
1288; Hamilton, 270 F.3d at 784;5 Oneida, 848 F.2d at 418.
That is, even if a plaintiff-debtor corrects the initial mistake
and no longer receives a benefit in bankruptcy court, judicial
estoppel still applies—wiping out a potentially meritorious
action against an unrelated third party. Courts have provided
three primary justifications for the rule.

First, as noted above, supra p. 11, full disclosure in
bankruptcy is essential to the functioning of the bankruptcy
system, a fact that “cannot be overemphasized.” Coastal

5
In Hamilton, it was palpable from the record that the plaintiff-debtor’s
bankruptcy omission was intentional in every sense of the term. See
270 F.3d at 781. Hamilton sought recovery from an insurance company
for water damage and loss of allegedly stolen property following a partial
flood of his house. Id. at 780. The insurance company, “apparently
suspicious” of Hamilton’s insurance claim, initiated an investigation into
its validity. Id. Hamilton enlisted lawyers to pressure the insurance
company to pay Hamilton quickly, claiming that the insurer was acting in
bad faith and threatening litigation. Id. at 781. Meanwhile, Hamilton
filed for bankruptcy. The insurer’s investigation revealed that Hamilton
was “probably responsible” for the damage and theft and that he had
violated the insurance policy’s concealment-of-fraud provision. Less than
two weeks after the denial, Hamilton filed his bankruptcy schedules,
listing a residential vandalism loss but not his bad faith claim against the
insurer. The bankruptcy trustee requested information from Hamilton
regarding insurance recovery, but Hamilton replied with a non-responsive
letter. The trustee successfully moved to reopen the bankruptcy case on
the grounds of “bad faith, lack of truthfulness under oath, and failure to
cooperate.” Id. Hamilton then filed a suit against his insurer, which was
dismissed based on judicial estoppel; we affirmed. Critically, Hamilton
did not argue that his failure to disclose was based on inadvertence or
mistake, and our opinion in Hamilton did not mention, define, or consider
the relevance of inadvertence or mistake.
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 13

Plains, 179 F.3d at 208. Second, the initial disclosures failed
to tell the creditors about the lawsuit. See, e.g., Hamilton,
270 F.3d at 784 (holding that an initial “discharge of debt by
a bankruptcy court, under these circumstances, is sufficient
acceptance to provide a basis for judicial estoppel, even if the
discharge is later vacated”); Oneida, 848 F.2d at 418 (“[The
original bankruptcy plan] was informationally deficient, and
not cured by the later modification. The original plan failed
to alert the creditors to the possible financial benefits enuring
to them upon the successful prosecution of the claim.”
(footnote omitted)). Finally, and perhaps most importantly,
courts have held that application of judicial estoppel is
necessary in order to incentivize future debtors (and their
lawyers) to provide full disclosure. In an oft-quoted passage,
one court wrote:

The success of our bankruptcy laws requires
a debtor’s full and honest disclosure.
Allowing [the debtor] to back-up, re-open the
bankruptcy case, and amend his bankruptcy
filings, only after his omission has been
challenged by an adversary, suggests that a
debtor should consider disclosing potential
assets only if he is caught concealing them.
This so-called remedy would only diminish
the necessary incentive to provide the
bankruptcy court with a truthful disclosure of
the debtors’ assets.

Burnes, 291 F.3d at 1288.

As the Seventh Circuit has recognized in unanimous
opinions, Biesek v. Soo Line R.R. Co., 440 F.3d 410 (7th Cir.
2006), and Cannon-Stokes v. Potter, 453 F.3d 446 (7th Cir.
14 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

2006), and as Judge Stapleton recognized in dissent in
Oneida, those justifications do not withstand scrutiny. First,
and perhaps most importantly, once a plaintiff-debtor has
amended his or her bankruptcy schedules and the bankruptcy
court has processed or re-processed the bankruptcy with full
information, two of the three primary New Hampshire factors
are no longer met. Although the plaintiff-debtor initially took
inconsistent positions, the bankruptcy court ultimately did not
accept the initial position. The Supreme Court put it well:
“Absent success in a prior proceeding, a party’s later
inconsistent position introduces no risk of inconsistent court
determinations and thus poses little threat to judicial
integrity.” New Hampshire, 532 U.S. at 750–51 (citation and
internal quotation marks omitted).

Moreover, the plaintiff-debtor did not obtain an unfair
advantage.6 Indeed, the plaintiff-debtor obtained no
advantage at all, because he or she did not obtain any benefit
whatsoever in the bankruptcy proceedings. See Dunmore v.

6
Labeling them “recycled arguments,” the dissent asserts that these
positions are “plainly foreclosed by Hamilton.” Dissent at 36. We
disagree. In determining whether to apply judicial estoppel, the district
court must consider all factors—including inadvertence or mistake.
Nothing in Hamilton forecloses the possibility that a court could conclude
that, whereas an intentional omission (as in Hamilton) would result in an
unfair advantage, an inadvertent or mistaken omission might not be unfair.
Similarly, nothing in Hamilton forecloses the possibility that a court could
reach a different conclusion about the effect of the bankruptcy court’s
initial acceptance of the plaintiff-debtor’s position. Indeed, we held in
Hamilton that the initial “discharge of debt by a bankruptcy court, under
these circumstances, is sufficient acceptance to provide a basis for judicial
estoppel.” 270 F.3d at 784 (emphasis added). If the circumstances are
materially different (i.e., where the plaintiff-debtor’s omission was
inadvertent or mistaken, instead of intentional), Hamilton does not
foreclose a different result.
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 15

United States, 358 F.3d 1107, 1113 n.3 (9th Cir. 2004)
(holding that the district court’s allowing the plaintiff-debtor
to reopen his bankruptcy case, thereby preventing the
plaintiff-debtor “from having his cake and eating it too,” “was
a permissible alternative to judicial estoppel that prevented
[him] from deriving an unfair advantage if not estopped”).
Cases such as Oneida, 848 F.2d at 418, which justify the
application of judicial estoppel because the creditors were not
told initially of the pending action are wrong for two reasons:
The creditors are told eventually, and the doctrine of judicial
estoppel is concerned with the integrity of the courts, not the
effect on parties. See, e.g., Ryan, 81 F.3d at 360 (“Judicial
estoppel is intended to protect the courts rather than the
litigants.” (internal quotation marks omitted)).

Next, there is some intuitive appeal to the deterrence
justification—punishing wrongdoers will incentivize future
debtors to list their assets exhaustively. But that justification
is a very awkward fit for the doctrine of judicial estoppel.
Judicial estoppel typically operates to protect the integrity of
the judicial system with respect to the particular litigant in
front of the court. In the context of judicial estoppel, it is odd
to punish a present litigant merely in order to discourage
inconsistent positions by future litigants. Moreover, the
courts that have mentioned this justification phrase it in terms
not of protecting the courts but of promoting the efficient
operation of the bankruptcy system. That aim—protecting
the bankruptcy system—differs from the goal of judicial
estoppel—protecting the integrity of the courts. To the extent
that the bankruptcy system lacks adequate protections, that is
a shortcoming not of the court system, but of the bankruptcy
laws.
16 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

In any event, the bankruptcy system already provides
plenty of protections. The bankruptcy court or trustee may
reopen a case if it uncovers deception, as occurred in
Hamilton, 270 F.3d at 781. (Here, Plaintiff voluntarily
initiated the reopening.) A case may be reopened even if it
has long been closed. 11 U.S.C. § 350(b); Fed. R. Bankr. P.
5010. A bankruptcy court or trustee can impose sanctions,
including denial of a discharge. Fed. R. Bankr. P. 9011.
And, of course, a case may be referred to the United States
Attorney’s office for criminal prosecution. See 18 U.S.C.
§ 152 (criminalizing the concealment of assets, false oaths,
and claims). “The availability of such a course of action
would in most cases adequately deter nondisclosure.”
Oneida, 848 F.2d at 423 (Stapleton, J., dissenting).

Finally, the application of judicial estoppel in these
circumstances operates to the detriment primarily of innocent
creditors and to the benefit of only an alleged bad actor.
When a plaintiff-debtor amends his or her bankruptcy
schedules to include the previously omitted lawsuit, the
creditors may now stake a claim in that lawsuit. By not
permitting the civil action to go forward, the creditors lose
out on a potential recovery. See Cannon-Stokes, 453 F.3d at
448 (“Judicial estoppel is an equitable doctrine, and it is not
equitable to employ it to injure creditors who are themselves
victims of the debtor’s deceit.”); Oneida, 848 F.2d at 422
(Stapleton, J., dissenting) (“The [Bankruptcy] Code’s
disclosure requirements are intended to protect those creditors
whom a debtor’s failure to disclose hidden assets would
prejudice. A fortiori, a court’s response to nondisclosure
should do likewise.”).

Perversely, the only “winner” in this scenario is the
alleged bad actor in the estopped lawsuit. See Oneida,
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 17

848 F.2d at 422–23 (Stapleton, J., dissenting) (“The only real
winner in the case as decided is the [defendant], whom the
court has relieved of the responsibility of justifying its
allegedly improper behavior.”). If Defendant here did, in
fact, discriminate against Plaintiff,7 it will not have to pay the
consequences of its actions, for the entirely unrelated reason
that Plaintiff happened to file for bankruptcy and, possibly
due to inadvertence, happened to omit the claim from her
initial schedules. Further, because the application of judicial
estoppel does not look to the nature of the underlying claim,
the alleged bad actor could be someone who clearly does not
warrant a windfall (e.g., someone who physically assaulted
the plaintiff and badly injured him or her). It seems hard to
justify a policy that takes money from innocent third-party
creditors and gives it, for example, to a violent criminal. See
Oneida, 848 F.2d at 420 (Stapleton, J., dissenting) (“[The
debtor’s] unsecured creditors . . . should not be required to
contribute towards a windfall for an alleged wrongdoer.”).

Writing for a unanimous panel of the Seventh Circuit,
Judge Easterbrook summarized:

Judges understandably favor rules that
encourage full disclosure in bankruptcy. Yet
pursuing that end by applying judicial
estoppel to debtors’ self-contradiction would
have adverse effects on third parties: the
creditors. [The debtor’s] nondisclosure in
bankruptcy harmed his creditors by hiding
assets from them. Using this same
nondisclosure to wipe out his [statutory] claim
would complete the job by denying creditors

7
We express no view on the merits of Plaintiffs’ claims.
18 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

even the right to seek some share of the
recovery. Yet the creditors have not
contradicted themselves in court. They were
not aware of what [the debtor] has been doing
behind their backs. Creditors gypped by [the
debtor’s] maneuver are hurt a second time by
the district judge’s decision. Judicial estoppel
is an equitable doctrine, and using it to land
another blow on the victims of bankruptcy
fraud is not an equitable application. Instead
of vaporizing assets that could be used for the
creditors’ benefit, district judges should
discourage bankruptcy fraud by revoking the
debtors’ discharges and referring them to the
United States Attorney for potential criminal
prosecution.

Biesek, 440 F.3d at 413.

The analysis by the Seventh Circuit and Judge Stapleton
supports our conclusion that, when the plaintiff-debtor has
reopened the bankruptcy proceedings and has corrected the
initial filing error, the narrow interpretations of “mistake” and
“inadvertence” do not apply. If Plaintiff’s bankruptcy
omission was mistaken, the application of judicial estoppel in
this case would do nothing to protect the integrity of the
courts, would enure to the benefit only of an alleged bad
actor, and would eliminate any prospect that Plaintiff’s
unsecured creditors might have of recovering.8

8
Here, the bankruptcy trustee decided not to pursue the claim and
abandoned it, so the right to bring this action reverted to Plaintiff.
Plaintiff’s unsecured creditors did not object to that action by the trustee.
Although the creditors may not receive any benefit from this action, that
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 19

In these circumstances, rather than applying a
presumption of deceit, judicial estoppel requires an inquiry
into whether the plaintiff’s bankruptcy filing was, in fact,
inadvertent or mistaken, as those terms are commonly
understood. Courts must determine whether the omission
occurred by accident or was made without intent to conceal.
The relevant inquiry is not limited to the plaintiff’s
knowledge of the pending claim and the universal motive to
conceal a potential asset—though those are certainly factors.
The relevant inquiry is, more broadly, the plaintiff’s
subjective intent when filling out and signing the bankruptcy
schedules.

We recognize that, by adopting the ordinary
understanding of “mistake” and “inadvertence” in this
context, we differ from the test articulated by most of our
sister circuits—whether the plaintiff knew of the claims and
had a motive to conceal them. Our review of our sister
circuits’ case law, however, suggests that their application of
the rule has not been as rigid as one would expect. We read
many of those cases as implicitly recognizing the harsh
results to which the narrow interpretation leads and avoiding
that harsh result.

In Browning, 283 F.3d at 776, for instance, the Chapter 11
bankruptcy plan, ultimately confirmed by the bankruptcy
court, conferred all benefits from the lawsuit to the creditors

was the choice of the creditors and the trustee. The important point is that
the trustee and the creditors had a full opportunity to pursue this avenue.
Moreover, we are not aware of anything that would prevent Plaintiff or her
creditors from moving to reopen the bankruptcy proceedings to allow the
creditors to benefit. Cf. Hay, 978 F.2d at 557 (“We make no ruling on the
rights of the creditors themselves to move to reopen the bankruptcy
proceedings.”).
20 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

only. The Sixth Circuit held that, because all benefits would
go to the creditors, the plaintiff-debtor had lacked a motive to
conceal the lawsuit. Id. But one would expect the inquiry
into motive to be focused on the time of omission, not viewed
from the perspective of the conclusion of the bankruptcy
proceedings. The plaintiff-debtor almost certainly had a
motive to conceal; it just turned out that the bankruptcy
court’s ultimate resolution of the case did not benefit the
plaintiff-debtor. See also Eubanks v. CBSK Fin. Grp., Inc.,
385 F.3d 894, 897 (6th Cir. 2004) (holding that judicial
estoppel did not apply because the debtor attempted to
disclose the claims to the bankruptcy court); Barger, 348 F.3d
at 1298 (Barkett, J., dissenting) (stating that judicial estoppel
is not warranted because the debtor disclosed the claims to
the bankruptcy court, albeit imperfectly); Ryan, 81 F.3d at
363–64 (concluding that the debtor did not act in bad faith for
several reasons, including that the confirmed bankruptcy plan
conferred 91% of the benefit to the creditors); cf. Stallings v.
Hussmann Corp., 447 F.3d 1041, 1049 (8th Cir. 2006)
(holding that judicial estoppel did not apply because the
bankruptcy court dismissed the case on the trustee’s motion
and therefore never discharged the debt).

The court in Ryan, 81 F.3d at 364, explained:

[P]olicy considerations militate against
adopting a rule that the requisite intent for
judicial estoppel can be inferred from the
mere fact of nondisclosure in a bankruptcy
proceeding. Such a rule would unduly expand
the reach of judicial estoppel in
post-bankruptcy proceedings and would
inevitably result in the preclusion of viable
claims on the basis of inadvertent or
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 21

good-faith inconsistencies. While we by no
means denigrate the importance of full
disclosure or condone nondisclosure in
bankruptcy proceedings, we are unwilling to
treat careless or inadvertent nondisclosures as
equivalent to deliberate manipulation when
administering the “strong medicine” of
judicial estoppel.

We agree. But, rather than adopting a narrow interpretation
of “mistake” and “inadvertence” and applying it broadly, we
believe that an ordinary interpretation of those terms in these
circumstances is more consistent with the Supreme Court’s
decision in New Hampshire, better reflects the equitable
considerations underlying the doctrine, and will be less
confusing for courts to apply.

Turning to the evidence here, we find factual support for
a conclusion either of mistake and inadvertence, or of deceit.
On the one hand, Plaintiff filed an affidavit in which she
swore that, when she reviewed the bankruptcy schedules, she
did not think that she had to disclose her pending lawsuit
because the bankruptcy schedules were “vague.” Also, in her
bankruptcy schedules, she listed her lawyer as a creditor for
$5,000; she claims that, if she “was truly seeking to hide [the]
lawsuit from the bankruptcy court,” she would not have listed
that lawyer. (Indeed, it was that listing that ultimately caused
the reopening of the bankruptcy case and Defendant’s raising
of judicial estoppel.) Contrary to Defendant’s repeated
assertion that Plaintiff was “caught,” it was Plaintiff’s counsel
who first raised the bankruptcy to Defendant’s attention at a
settlement conference. On the other hand, Plaintiff’s
testimony at the bankruptcy hearing suggests that she should
have been aware that a pending claim is relevant. Similarly,
22 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

the timing of the reopening of the bankruptcy case seems
inculpatory: She did not move to reopen the bankruptcy case
until after Defendant here raised the issue of judicial estoppel.
But viewing the evidence in the light most favorable to
Plaintiff, and thus crediting her affidavit, T.W. Elec. Serv.,
Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630–31
(9th Cir. 1987), her bankruptcy filing was inadvertent.

The dissent takes issue with our analysis of the record.
The dissent argues that, after the colloquy with the
bankruptcy court concerning her husband’s possible legal
claims, Plaintiff must have known that she was required to
disclose her own claim. Dissent at 42–43. Using that
premise, the dissent concludes that Plaintiff’s affidavit is a
sham. Id. at 45–46.

We firmly disagree. Because this case reaches us after
the entry of summary judgment for Defendant, we are
required to interpret the facts in the light most favorable to
Plaintiff. T.W. Elec., 809 F.2d at 630–31. The dissent has
done an excellent job of marshaling the evidence that
suggests that Plaintiff was lying, including the colloquy with
the bankruptcy court. But, in order to hold that Plaintiff’s
affidavit—which concerns the quintessentially personal fact
of state of mind—is a sham, the content of the affidavit must
be “‘blatantly contradicted by the record.’” Dissent at 45
(quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). A full
transcript of the colloquy, quoted by the dissent at 40–42, is
nothing if not confusing. We agree that one could interpret
the colloquy as having put Plaintiff “on notice that a lawsuit
was relevant,” id. at 42, but the colloquy is far from the
smoking gun that the dissent portrays it to be. We easily
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 23

conclude that the muddled colloquy is insufficient to hold, at
this procedural stage, that Plaintiff’s affidavit is a sham.9

On remand, after such further factual development as may
be appropriate, the district court might find that Plaintiff’s
affidavit is not trustworthy and that Plaintiff’s omission was
not mistaken or inadvertent. Alternatively, the court might
find that Plaintiff’s omission was mistaken or inadvertent.
We cannot make that determination on this record. Because
the district court applied the wrong legal standard, we vacate

9
Here are Plaintiff’s statements during the colloquy: “‘My husband lost
his job due to workplace violence’”; “‘Due to workplace violence. It
wasn’t his fault. We’re fighting it—or trying to.’”; “‘What?’”; “‘We
haven’t gone—‘”; ‘”—and done anything legally yet.’”; “‘It’s on my
husband.’”; “‘Yea, but—‘”; “‘No. No.’”; “‘No, yeah.’” See dissent at
40–42 (quoting colloquy). Nothing in those statements suggests that
Plaintiff necessarily gained knowledge about her legal requirements.

The dissent emphasizes many statements during the colloquy, but
only two concern legal requirements. Neither of those statements put
Plaintiff clearly on notice. First, the court said, “So you need to list that
claim in the schedules[.]” The phrase “that claim” refers, of course, to her
husband’s claim. Moreover, the immediately following lines of the
transcript show Plaintiff’s attorney interrupting and Plaintiff asking,
simply, “What?” The court never repeated its statement. In other words,
the dissent argues that we must infer blatant knowledge from a statement
that the court made about a different claim that Plaintiff apparently did not
even hear or understand.

Second, the court’s final statement was: “So you don’t need to list the
exclusions.” Again, “that exclusion” refers to her husband’s claim.
Moreover, the statement tells Plaintiff that she did not need to list the
claim. We decline to infer blatant knowledge of the opposite conclusion
about a claim never discussed by the bankruptcy court. The dissent offers
no additional explanation as to why the colloquy is so overwhelmingly
persuasive that no reasonable lay person could have failed to grasp the
legal requirement to list the unmentioned claim.
24 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

the district court’s grant of summary judgment and remand
for application of the correct legal standard. Farris, 677 F.3d
at 864.

VACATED and REMANDED. Costs on appeal
awarded to Plaintiff-Appellant.

BYBEE, Circuit Judge, dissenting:

Kathleen Ah Quin filed a discrimination lawsuit against
the County of Kauai Department of Transportation in which
she sought approximately $350,000. She later claimed that
her damages were $800,000, and in response to the County’s
interrogatories she told the County she was entitled to
$6,000,000. When Ah Quin filed for bankruptcy to get relief
from less than $80,000 in debt, she told the bankruptcy court
there were no “suits or administrative proceedings to which
[she] is or was a party” within the year preceding
commencement of her bankruptcy, even though her
discrimination suit was ongoing. That statement was
obviously false. Finding that “Ah Quin’s failure to disclose
this [discrimination] lawsuit during the bankruptcy
proceedings was not based on mere inadvertence or mistake,”
and relying on our decision in Hamilton v. State Farm Fire &
Casualty Co., 270 F.3d 778 (9th Cir. 2001), the magistrate
judge dismissed Ah Quin’s discrimination claim against the
County on the basis of judicial estoppel.

The magistrate judge’s reliance on Hamilton was
understandable. In Hamilton, we said all of the following:
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 25

• “We now hold that Hamilton is precluded
from pursuing claims about which he had
knowledge, but did not disclose, during
his bankruptcy proceedings.” Id. at 784.

• “Judicial estoppel will be imposed when
the debtor has knowledge of enough facts
to know that a potential cause of action
exists during the pendency of the
bankruptcy, but fails to amend his
schedules or disclosure statements to
identify the cause of action as a contingent
asset.” Id.

• “[W]e must invoke judicial estoppel to
protect the integrity of the bankruptcy
process.” Id. at 785.

• “[D]ischarge of debt by a bankruptcy
court, under these circumstances, is
sufficient acceptance to provide a basis
for judicial estoppel, even if the discharge
is later vacated.” Id. at 784.

In finding that the district court abused its discretion, the
majority contravenes each of these clear declarations,
inexplicably holding that the district court applied “the wrong
legal standard,” Maj. Op. at 23–24, and that the district court
should have “inquir[ed] into whether the plaintiff’s
bankruptcy filing was, in fact, inadvertent or mistaken,” Maj.
Op. at 19. With all due respect, that has never been the rule
with regard to false statements that conceal assets from a
bankruptcy court. The majority’s holding—that the relevant
inquiry when considering the “inadvertence or mistake”
26 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

factor in determining whether to apply judicial estoppel in the
bankruptcy context “is not limited to the plaintiff’s
knowledge of the pending claim and the universal motive to
conceal a potential asset” but rather examines “more broadly,
the plaintiff’s subjective intent,” Maj. Op. at 19—is not only
contrary to the law of our sister circuits, as the majority
admits, see Maj. Op. at 19,1 but is also plainly at odds with

1
See, e.g., Eastman v. Union Pac. R.R. Co., 493 F.3d 1151, 1157–58
(10th Cir. 2007) (“[C]ourts addressing a debtor’s failure to satisfy the legal
duty of full disclosure to the bankruptcy court have deemed such failure
inadvertent or mistaken only when, in general, the debtor either lacks
knowledge of the undisclosed claims or has no motive for their
concealment. Where a debtor has both knowledge of the claims and a
motive to conceal them, courts routinely, albeit at time sub silentio, infer
deliberate manipulation. . . . Given th[is] overwhelming weight of
authority, the district court’s decision to employ judicial estoppel against
[the debtor] . . . is undoubtedly sound.” (internal quotation marks and
citations omitted)); Barger v. City of Cartersville, 348 F.3d 1289, 1295
(11th Cir. 2003) (“The failure to comply with the Bankruptcy Code’s
disclosure duty is ‘inadvertent’ only when a party either lacks knowledge
of the undisclosed claim or has no motive for their concealment.”);
Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp.,
337 F.3d 314, 321 (3d Cir. 2003) (“[A] rebuttable inference of bad faith
arises when averments in the pleadings demonstrate both knowledge of a
claim and a motive to conceal that claim in the face of an affirmative duty
to disclose.”); Browning v. Levy, 283 F.3d 761, 776 (6th Cir. 2002) (“The
Fifth Circuit . . . defined two circumstances under which a debtor’s failure
to disclose a cause of action in a bankruptcy proceeding might be deemed
inadvertent. One is where the debtor lacks knowledge of the factual basis
of the undisclosed claims, and the other is where the debtor has no motive
for concealment. . . . We . . . adopt the[se requirements for inadvertence]
in our analysis of the present case.”); In re Coastal Plains, Inc., 179 F.3d
197, 210 (5th Cir. 1999) (“[I]n considering judicial estoppel for
bankruptcy cases, 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.”); see also Guay v. Burack, 677 F.3d 10, 20 & n.7 (1st Cir.
2012) (“Some circuits have held that parties who fail to identify a legal
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 27

our decision in Hamilton and our earlier decision in Hay v.
First Interstate Bank of Kalispell, N.A., 978 F.2d 555, 557
(9th Cir. 1992) (“Failure to give the required notice [in
bankruptcy] estops [the bankruptcy petitioner].”). As
evidenced by the quotations from Hamilton provided above,
the majority’s holding is not saved by the fact that it is
limited to cases where the debtor has moved to reopen
bankruptcy proceedings to vacate the inappropriate discharge,
see Maj. Op. at 11–19, and is made worse by the majority’s
disparagement of applying judicial estoppel to protect the
bankruptcy system, see Maj. Op. at 14–15. The discord that
the majority creates with Hamilton and Hay would be
sufficient alone to prevent me from joining today’s Opinion.

But even if I were to agree with the majority that we
should adopt a broader understanding of the “inadvertence or
mistake” factor in certain circumstances, the facts of this case
cannot support a finding of inadvertence or mistake even
under such a broader understanding. Taking the facts in the
light most favorable to Ah Quin, the evidence cannot support
a finding that Ah Quin’s “subjective intent” was innocent. To
the contrary, on this record, it is hard to see anything but a
debtor who was caught in a lie and now seeks to avoid the
consequences. Worse still, unlike a typical case where the

claim in bankruptcy schedules may escape the application of judicial
estoppel if they can show that they either lacked knowledge of the
undisclosed claims or had no motive for their concealment. . . . We have
never recognized such an exception and have noted that deliberate
dishonesty is not a prerequisite to application of judicial estoppel.”
(internal quotation marks and alterations omitted)); Cannon-Stokes v.
Potter, 453 F.3d 446, 448 (7th Cir. 2006) (holding, at least in situations
where a trustee has abandoned a legal claim so the debtor stands to benefit
personally, that “a debtor in bankruptcy who denies owning [the claim]
cannot realize on that concealed claim after the bankruptcy ends”).
28 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

creditors would stand to benefit from allowing the lawsuit to
proceed, here the trustee has abandoned the creditors’ interest
in Ah Quin’s suit, so Ah Quin stands to benefit personally
from her lie if her claim is not estopped. The facts of this
case would not justify the remand ordered by the majority
even under the broadened understanding of the “inadvertence
or mistake” factor adopted by the majority.

Finally, although there are reasons to believe that the
majority’s broader understanding of the “inadvertence or
mistake” factor might produce more equitable results in some
cases, even if we were permitted to change our rule in the
face of controlling precedent, the situation is not as one-sided
as the majority suggests. The majority emphasizes the plight
of creditors who lose recourse to claims that are dismissed on
the basis of judicial estoppel, but the majority fails to
sufficiently consider the other creditors and the debtors who
will benefit from the better up-front disclosure motivated by
a strict estoppel rule. The majority’s concern for the plight of
creditors also rings particularly hollow in this case, because
the creditors’ interest has been abandoned here; only Ah Quin
stands to benefit from the generosity of the majority’s new
rule. Even writing on a blank slate, I would have significant
concerns about the wisdom of the majority’s new rule,
especially when applied in a situation like this one.

I must respectfully dissent.

I

Hamilton involved a debtor, Hamilton, who failed to list
insurance-related claims on his bankruptcy schedules before
receiving a discharge. 270 F.3d at 781. The bankruptcy court
subsequently realized something untoward might be afoot,
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 29

and when Hamilton failed to cooperate with further inquiries,
the bankruptcy court dismissed the bankruptcy and vacated
the discharge. Id. Hamilton then pursued the insurance-
related claim, which the district court dismissed on the basis
of judicial estoppel, granting summary judgment to the
insurance company Hamilton had sued. Id. at 781–82.
Hamilton appealed to our court.

As we noted in our decision, the bankruptcy was
dismissed and the discharge was vacated based on a trustee’s
motion that cited Hamilton’s “bad faith, lack of truthfulness
under oath, and failure to cooperate.” Id. at 781. As the
majority notes, “it was palpable from the record that
[Hamilton]’s bankruptcy omission was intentional in every
sense of the term.” Maj. Op. at 12 n.5. But in upholding the
district court’s dismissal based on judicial estoppel, we did
not rely at all on Hamilton’s intent. Instead, we focused on
his knowledge of the potential insurance claim. We said:
“Hamilton is precluded from pursuing claims about which he
had knowledge, but did not disclose, during his bankruptcy
proceedings.” Hamilton, 270 F.3d at 784 (emphasis added).
In discussing the extent to which Hamilton had to have
knowledge of the claim at the time of the bankruptcy filings,
we added: “Judicial estoppel will be imposed when the debtor
has knowledge of enough facts to know that a potential cause
of action exists during the pendency of the bankruptcy, but
fails to amend his schedules or disclosure statements to
identify the cause of action as a contingent asset.” Id.
(emphasis added). Applying the rule to Hamilton’s case, we
noted that “Hamilton knew of all the material facts
surrounding [his insurance suit] at the time he filed his
bankruptcy schedules and for many months before pursuing
legal action.” Id. at 785. We applied judicial estoppel and
affirmed the district court. Id. at 786.
30 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

A

The majority declines to engage with the language quoted
above from Hamilton. Instead, the majority attempts to
distinguish away Hamilton by asserting that Hamilton “did
not argue that his failure to disclose was based on
inadvertence or mistake, and our opinion in Hamilton did not
mention, define, or consider the relevance of inadvertence or
mistake.” Maj. Op. at 12 n.5; see also Maj. Op. at 9 n.2.
Though Hamilton may not have argued that his failure to
disclose the potential insurance suit was inadvertent,2 the fact
is that our stated test for the application of judicial estoppel
in the bankruptcy context does not contemplate consideration
of the debtor’s intent: A debtor is “precluded from pursuing
claims about which he had knowledge, but did not disclose,
during his bankruptcy proceedings,” and “[j]udicial estoppel
will be imposed when the debtor has knowledge of enough
facts to know that a potential cause of action exists during the
pendency of the bankruptcy, but fails to amend his schedules
or disclosure statements to identify the cause of action as a
contingent asset.” Hamilton, 270 F.3d at 784.

To be sure, the Supreme Court in New Hampshire v.
Maine asserted that “it may be appropriate to resist
application of judicial estoppel when a party’s prior position
was based on inadvertence or mistake,” 532 U.S. at 753

2
In fact, Hamilton at least suggested inadvertence in a footnote in his
Opening Brief. See Appellant’s Opening Brief at 48 n.14, Hamilton v.
State Farm Fire & Cas. Co., No. 00-55530 (9th Cir. Sep. 7, 2000)
(“Hamilton is a welder by occupation, and nothing suggests that he has a
sophisticated understanding of legal documents or forms. If Hamilton had
in fact been trying to obtain an unfair or improper advantage in the
bankruptcy court, he simply would not have disclosed the vandalism loss
at all.”).
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 31

(internal quotation marks omitted), but that case involved a
boundary dispute between two states, see id. at 745, a
situation far removed from the bankruptcy context. The
Court’s discussion of judicial estoppel in New Hampshire was
offered at a very general level. See id. at 749–51. Since New
Hampshire, as the majority notes, our sister circuits have
interpreted this “inadvertence or mistake” factor narrowly in
the bankruptcy context. Maj. Op. at 8. In an opinion we
endorsed repeatedly in Hamilton, see 270 F.3d at 785, the
Fifth Circuit put the accepted rule plainly: “[I]n considering
judicial estoppel for bankruptcy cases, 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.”
In re Coastal Plains, 179 F.3d at 210 (emphases in original).

Thus, Hamilton is in no way inconsistent with New
Hampshire’s acknowledgment that judicial estoppel may be
inappropriate where a party’s prior position was based on
inadvertence or mistake. Hamilton simply agrees with our
sister circuits in reading this factor narrowly in the
bankruptcy context; in this context, accepting the normal
assumption that there is always motive to conceal a claim
from the bankruptcy court, Maj. Op. at 8, there is only
inadvertence or mistake where the debtor had no knowledge
of the claim during bankruptcy proceedings and thus failed to
disclose it. The majority concludes that “our cases have not
addressed the effect of an inadvertent or mistaken omission
from a bankruptcy filing.” Maj. Op. at 10. I do not agree
with this position. We have addressed the effect of an
inadvertent or mistaken omission by providing a rule with
limited exceptions, just as many of our sister circuits have.
Where we have stated a rule that does not allow for a specific
exception, we are not free to read that exception into the rule
32 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

just because we have not previously said that we would not
do so. Such judicial chiseling disrespects our precedent and
deprives lower courts and litigants of any predictability as to
the application of the rule.3

Hamilton also dictates that it is irrelevant to our analysis
whether a bankruptcy proceeding has been reopened to
correct an earlier error, or even whether a discharge has been
vacated. Under New Hampshire, one of the factors that
courts may consider in deciding whether to apply judicial
estoppel is “whether the party has succeeded in persuading a
court to accept that party’s earlier position, so that judicial
acceptance of an inconsistent position in a later proceeding
would create the perception that either the first or the second
court was misled.” 532 U.S. at 750 (internal quotation marks
omitted). In Hamilton, the bankruptcy court eventually
dismissed Hamilton’s bankruptcy, vacating the discharge of

3
The majority rightly places significant emphasis on the equitable nature
of judicial estoppel. See, e.g., Maj. Op. at 9. But, even though “often the
exercise of a court’s equity powers . . . must be made on a case-by-case
basis,” “courts of equity must be governed by rules and precedents no less
than the courts of law.” Holland v. Florida, 130 S. Ct. 2549, 2563 (2010)
(internal quotation marks omitted).

The majority attempts to underscore the equitable difficulties with a
narrow understanding of the “inadvertence or mistake” factor in the
bankruptcy context by hypothesizing “a litigant who is not represented by
counsel or who speaks English as a second language and fails to include
a claim on her bankruptcy schedule because she does not understand that
she was required to do so.” Maj. Op. at 9 n.3. But the Supreme Court has
not shied away from setting out rules that may be harsh on disadvantaged
litigants, including those who are unrepresented or poorly represented, in
contexts governed by equity. See, e.g., Lawrence v. Florida, 549 U.S.
327, 336 (2007) (“Attorney miscalculation [of the filing deadline for a
federal habeas petition] is simply not sufficient to warrant equitable tolling
. . . .”).
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 33

debt. 270 F.3d at 784. We were not persuaded that this
dismissal undermined the basis for applying estoppel:
“[D]ischarge of debt by a bankruptcy court, under these
circumstances, is sufficient acceptance to provide a basis for
judicial estoppel, even if the discharge is later vacated.” Id.

The majority, nonetheless, concludes that “[a] key factor
is that Plaintiff reopened her bankruptcy proceedings and
filed amended bankruptcy schedules that properly listed this
claim as an asset.” Maj. Op. at 11. The majority admits that
we held in Hamilton that “the reopening of a bankruptcy case
is generally irrelevant to the analysis of judicial estoppel,”
Maj. Op. at 11–12, but feels comfortable casting aside
Hamilton because Hamilton did not claim inadvertence or
mistake, Maj. Op. at 11–14 & n.5. Though Hamilton limited
its statement regarding the irrelevance of a reopening or
vacatur of discharge to “these circumstances,” 270 F.3d at
784; see Maj. Op. at 14 n.6, there is no indication that
Hamilton’s intent was in any way relevant to our conclusion
that reopening or vacatur did not impact the estoppel analysis,
see Maj. Op. at 12 n.5 (noting that we “did not mention,
define, or consider the relevance of inadvertence or mistake”
in Hamilton).

My reading of Hamilton is supported by our earlier
decision in Hay v. First Interstate Bank of Kalispell, 978 F.2d
555 (9th Cir. 1992). In Hay, during the pendency of a
debtor’s bankruptcy, the debtor became aware of information
that prompted the debtor to file suit against certain creditors
alleging bad faith, breach of contract, and civil conspiracy.
Id. at 556–57. Though the debtor “learned of the facts that
led to the discovery of [the debtor]’s claims sometime during
the month preceding the month in which [the debtor]’s
reorganization plan was confirmed . . . [and] four months
34 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

prior to the close of the bankruptcy case,” the debtor did not
notify the bankruptcy court of the existence of the lawsuit as
an asset prior to the closure of the bankruptcy. Id. at 557.
We said nothing of the debtor’s intent in failing to disclose
the lawsuit to the bankruptcy court, and the facts of the case
do not make it clear that the debtor had any ill intent. Instead,
we emphasized what the debtor knew: “We recognize that all
facts were not known to [the debtor] at th[e relevant] time, but
enough was known to require notification of the existence of
the asset to the bankruptcy court.” Id. (second and third
emphases added). We concluded that “[f]ailure to give the
required notice estops [the debtor] and justifies the grant of
summary judgment to the defendants.” Id.

Neither Hamilton nor Hay considered the defendant’s
intent in deciding that judicial estoppel should be applied
where, as here, the defendant failed to disclose a suit in the
bankruptcy context. The majority fails to adequately respect
these precedents by holding that the district court abused its
discretion by similarly failing to consider Ah Quin’s
subjective intent.

B

The majority attempts to buoy its argument for a broad
understanding of the “inadvertence or mistake” factor where
the debtor has reopened bankruptcy proceedings by arguing
that “once a plaintiff-debtor has amended his or her
bankruptcy schedules and the bankruptcy court has processed
or re-processed the bankruptcy with full information, two of
the three primary New Hampshire factors are no longer met.”
Maj. Op. at 14. Specifically, the majority argues that, on the
basis of the reopening and reprocessing of Ah Quin’s
bankruptcy, (1) Ah Quin has not “persuad[ed] a court to
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 35

accept [her] earlier position, so that judicial acceptance of an
inconsistent position in [this] proceeding would create the
perception that either the first or [this] court was misled,” and
(2) Ah Quin would not “derive an unfair advantage or impose
an unfair detriment on the opposing party if not estopped” in
this proceeding. New Hampshire, 532 U.S. at 750–51
(internal quotation marks omitted); see Maj. Op. at 14–15.
This is a curious argument in light of Hamilton.

In Hamilton, we rejected the argument that “the discharge
must [be] permanent to satisfy the judicial acceptance
requirement” from New Hampshire. Hamilton, 270 F.3d at
784. Referencing the “unfair advantage” factor, we stated
that “Hamilton did enjoy the benefit of both an automatic stay
and a discharge of debt in his Chapter 7 proceeding.” Id. at
785; see also id. (“The debtor, once he institutes the
bankruptcy process, disrupts the flow of commerce and
obtains a stay and the benefits derived by listing all his
assets.”). The only regard in which the majority has
attempted to distinguish Ah Quin’s case from Hamilton is by
arguing that Ah Quin’s incomplete disclosure may have been
inadvertent while Hamilton did not even argue inadvertence.
See Maj. Op. at 12 n.5. Yet the majority’s arguments about
the “judicial acceptance” and “unfair advantage” New
Hampshire factors are almost entirely unrelated to any
potential inadvertence. See Maj. Op. at 14–15. The majority
does suggest that an inadvertent failure to disclose a suit in
bankruptcy proceedings—unlike the bad-faith failure to
disclose in Hamilton— might result in an advantage to the
debtor that is not “unfair,” see Maj. Op. at 14 n.6, but I fail to
see how any discharge that is overly generous to the debtor
due to the debtor’s incomplete disclosure is not “unfair” to
the creditors. The majority is thus recycling arguments on
these two factors that we explicitly rejected in Hamilton, and
36 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

is doing so without offering any satisfactory way of
distinguishing this case from Hamilton that is relevant to
these arguments. Worse, in defending these recycled
arguments, the majority emphasizes a fact—the
impermanence of the initial discharge—that we specifically
dismissed as irrelevant in Hamilton. The majority’s position
with regard to these New Hampshire factors is plainly
foreclosed by Hamilton.4

4
Though I believe that our analysis of the “judicial acceptance” and
“unfair advantage” New Hampshire factors in this context is constrained
by Hamilton, I also note that I would question the majority’s position even
if we were not so constrained.

First, the majority argues that “[a]lthough the plaintiff-debtor initially
took inconsistent positions, the bankruptcy court ultimately did not accept
the initial position.” Maj. Op. at 14. But New Hampshire does not
suggest that there is only cause for concern where courts ultimately accept
inconsistent positions; rather, the question is “whether [a] party has
succeeded in persuading a court to accept that party’s earlier position, so
that judicial acceptance of an inconsistent position in a later proceeding
would create the perception that either the first or the second court was
misled.” New Hampshire, 532 U.S. at 750 (emphasis added) (internal
quotation marks omitted). Accepting Ah Quin’s position now
unquestionably “create[s] the perception that [the bankruptcy court] was
misled” when it granted Ah Quin her initial discharge. See Eastman,
493 F.3d 1151 at 1159–60 (asserting that “[t]he obvious ‘perception’ is
that [the debtor] misled the bankruptcy court,” even though the debtor’s
“bankruptcy was reopened and his creditors were made whole once his
omission became known”). The majority cites the following language
from New Hampshire to support its view: “Absent success in a prior
proceeding, a party’s later inconsistent position introduces no risk of
inconsistent court determinations and thus poses little threat to judicial
integrity.” Maj. Op. at 14 (quoting New Hampshire, 532 U.S. at 750–51)
(internal citation and quotation marks omitted). Nothing in this statement
suggests that ultimate success is required.
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 37

C

The majority also attempts to support its broadening of
the “inadvertence or mistake” factor by disputing one of the
primary arguments in favor of a more narrow understanding:
that a strict rule is appropriate because it will deter debtors
from failing to disclose claims in their bankruptcy filings.
See Maj. Op. at 15. The majority admits the “intuitive appeal
to th[is] deterrence justification,” but calls it a “very awkward
fit” for judicial estoppel, which “typically operates to protect
the integrity of the judicial system with respect to the
particular litigant in front of the court.” Maj. Op. at 15.
Noting that “the courts that have mentioned this justification
phrase it in terms not of protecting the courts but of
promoting the efficient operation of the bankruptcy system,”
the majority asserts that “[t]hat aim—protecting the
bankruptcy system—differs from the goal of judicial

Second, the majority argues that “the plaintiff-debtor did not obtain
an unfair advantage,” emphasizing that the “creditors [were] told
eventually.” Maj. Op. at 14–15. But again, the Court’s decision in New
Hampshire does not seem so fixated on ultimate results. Just because Ah
Quin eventually had to reveal her discrimination suit to the bankruptcy
judge does not mean that she did not obtain an unfair advantage from her
failure to disclose it initially if she is not now estopped. She arguably did
obtain an unfair advantage: the possibility of receiving a discharge that did
not impact her discrimination suit and then having the suit subsequently
go unchallenged on judicial estoppel grounds. As I discuss infra, in light
of the majority’s decision, Ah Quin has ultimately snookered the system.
She misrepresented her assets in bankruptcy, and after she was exposed,
she reopened her bankruptcy and the trustee abandoned any claim to her
suit as an asset. With the majority’s decision, Ah Quin ends up with her
debts discharged and her lawsuit intact—exactly the position she was in
when she withheld her discrimination lawsuit from her list of assets and,
as a result, received an unfairly cheap discharge.
38 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

estoppel—protecting the integrity of the courts.” Maj. Op. at
15.

Even if there might be some truth in the majority’s point,
it comes much too late. We have already approved of
applying judicial estoppel for the very reason the majority
condemns. In Hamilton, we said: “[W]e must invoke judicial
estoppel to protect the integrity of the bankruptcy process.”
270 F.3d at 785. Moreover, setting Hamilton aside, this
position is perfectly consistent with the premise that judicial
estoppel is generally intended to protect the integrity of the
courts. The majority specifies that “[j]udicial estoppel
typically operates to protect the integrity of the judicial
system with respect to the particular litigant in front of the
court,” Maj. Op. at 15 (emphasis added),5 but that is not how
the Supreme Court has described it. The Court said that
judicial estoppel’s “purpose is to protect the integrity of the
judicial process by prohibiting parties from deliberately
changing positions according to the exigencies of the
moment.” New Hampshire, 532 U.S. at 749–50 (internal
citation and quotation marks omitted). Judicial estoppel is
concerned not with respecting the integrity of the system
only insofar as it relates to the particular litigant; rather, the
concern is with protecting the system broadly by doing the
only thing a court can legitimately do—properly treating the
case of the litigants before the court. As the Court put it in
New Hampshire, judicial estoppel is “intended to prevent
‘improper use of judicial machinery.’” 532 U.S. at 750. The

5
The majority’s focus here on “the particular litigant in front of the
court,” Maj. Op. at 15, is difficult to reconcile with its assertion in the
immediately preceding paragraph that “the doctrine of judicial estoppel is
concerned with the integrity of the courts, not the effect on parties,” Maj.
Op. at 15.
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 39

bankruptcy system is quintessential judicial machinery, and
protecting it is well within the ambit of judicial estoppel’s
purposes. See United States v. Kras, 409 U.S. 434, 455
(1973) (“[U]nder our ‘legal system’ . . . debt is effective only
because the judicial machinery is there to collect it. The
bankrupt is bankrupt precisely for the reason that the State
stands ready to exact all of his debts . . . .” (emphasis added)).
To the extent that judicial estoppel deters faulty disclosure
and thus protects the bankruptcy system, addressed further
infra in Part III, applying judicial estoppel to achieve such
protection is consistent with both Hamilton and the general
purpose of judicial estoppel.

In sum, the majority’s refusal to apply judicial estoppel in
this context is impossible to reconcile with the precedent.
Applying judicial estoppel is consistent both with our prior
decisions and with the Supreme Court’s dictate in New
Hampshire. For that reason alone, I would be unable to join
today’s Opinion.

II

Even if I were to accept the majority’s novel “subjective
intent” test, I could not join the majority’s judgment. Giving
Ah Quin the benefit of the doubt, based on the record before
us, I can only conclude that Ah Quin knowingly and
intentionally avoided disclosing her discrimination suit in her
bankruptcy proceedings and then tried to capitalize on that
omission in her disclosure by subsequently pursuing the suit.
The record fully supports the magistrate judge’s finding that
this was not a case of inadvertence or mistake—rather, it was
a case of deceit.
40 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

A

The majority mentions that Ah Quin “responded to a
question about whether she had a claim by saying: ‘No.
No,’” and asserts that “the most plausible reading is that [Ah
Quin] was referring to a claim for her husband’s loss of work,
not to a claim in general.” Maj. Op. at 4 & n.1. In
summarizing the evidence relevant to Ah Quin’s subjective
intent, the majority admits that the colloquy regarding her
husband’s claim “suggests that [Ah Quin] should have been
aware that a pending claim is relevant.” Maj. Op. at 21. That
is a bit of an understatement. The majority does not provide
the full colloquy, so I do so here, emphasizing key phrases:

The Court: Did you review the statement of
financial affairs on file with the Court?

Ms. Ah Quin: Yes.

The Court: Are all of the answers in that true
and correct?

Ms. Ah Quin: Yes.

...

The Court: What caused you to have to file
this bankruptcy?

Ms. Ah Quin: My husband lost his job due to
workplace violence. It wasn’t his fault.

The Court: He lost his job and what?
QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 41

Ms. Ah Quin: Due to workplace violence. It
wasn’t his fault. We’re fighting it—or trying
to.

The Court: Okay. Are you—did you file suit
against the company for wrongful termination
or something like that?

Ms. Ah Quin: We’re still in the process.
Haven’t got there yet.

The Court: Okay. So you need to list that
claim in the schedules, so—

Attorney: (inaudible) claim?

Ms. Ah Quin: What?

Attorney: Your—your suit for your husband’s
claim.

The Court: How is—

Ms. Ah Quin: We haven’t gone—

Attorney: Oh, you—

Ms. Ah Quin: —and done anything legally
yet.

The Court: Do you have a claim, or does he
have a claim?

Attorney: It’s the husband’s.
42 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

Ms. Ah Quin: It’s on my husband.

Attorney: The husband’s claim, I think

Ms. Ah Quin: Yea, but—

The Court: You don’t have a claim?

Ms. Ah Quin: No. No.

Attorney: (inaudible)

Ms. Ah Quin: No, yeah.

The Court: So you don’t need to list the
exclusions.

I agree with the majority that, charitably, Ah Quin did not
generally deny having any claims in this colloquy. See Maj.
Op. at 4 n.1. More importantly, as the majority suggests but
minimizes, at least after this colloquy, Ah Quin was on notice
that a lawsuit was relevant. Maj. Op. at 21–23 & n.9. In the
colloquy, in which Ah Quin was an active participant, before
the court realized that the claim being discussed belonged to
Ah Quin’s husband and not to her, the court said that Ah
Quin “need[ed] to list that claim in the [bankruptcy]
schedules.” Ah Quin knew she had already filed her
discrimination claim, and the bankruptcy judge told her
immediately upon learning of a different potential
claim—without any specific information about that claim that
might require it, but not the discrimination claim, to be
disclosed—that the claim needed to be listed in Ah Quin’s
bankruptcy schedules. The bankruptcy judge ultimately told
Ah Quin that her husband’s claim need not be listed, but only
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 43

because it was her husband’s claim and not hers. It is not a
reasonable inference from the facts, even taken in the light
most favorable to Ah Quin, that Ah Quin was not aware of
her obligation to disclose the discrimination claim, at least
from this point forward.

This is especially so given how valuable Ah Quin
believed her discrimination claim to be as compared to the
amount of debt she sought to discharge. In her pretrial
statement, Ah Quin prayed for relief of approximately
$350,000. By the time she filed for bankruptcy, she
computed her damages in the discrimination case to be in
excess of $800,000. In answering the County’s
interrogatories, she later set the monetary value of the claim
at “6 million dollars for every discrimination act against me.”
She affirmed her belief that her claim was worth $6 million
dollars during her deposition. At the same time Ah Quin was
telling the district court that she valued her discrimination suit
at something between $350,000 and $6,000,000, she was
telling the bankruptcy court that she had debts of $75,687,
and assets of only $18,020. Had she received even a portion
of the amount at which she valued her claim against the
County, she could have covered her debts and had no need for
bankruptcy. Ah Quin was not playing straight-up with the
bankruptcy court.

It is simply not plausible that Ah Quin, at least once the
colloquy with the bankruptcy judge put her on notice that
lawsuits had to be disclosed, would inadvertently or
mistakenly overlook a claim she deemed so valuable. See
Cannon-Stokes, 453 F.3d at 448 (“It is impossible to believe
that such a sizeable claim—one central to [the debtor’s] daily
activities at work—could have been overlooked when [the
debtor] was filling in the bankruptcy schedules.”); cf. In re
44 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

Cregar, 2010 WL 6452905, at *6 (B.A.P. 9th Cir. Nov. 19,
2010) (per curiam) (unpublished) (“Sometimes, the written
record can fully resolve the issue of intent, and contrary
statements of the witness are wholly not credible on their
face. For instance, if a debtor neglected to list on her
schedules a two million dollar house in which she lived, and
later claimed she forgot she owned it, an evidentiary hearing
to determine her credibility would not be necessary, absent
some relevancy of mental defect.”). This is especially true
given that her valuation of the discrimination claim was far in
excess of her disclosed assets, and that receiving even a
portion of that valuation would have made her solvent,
alleviating the need to go through bankruptcy. See Cannon-
Stokes, 453 F.3d at 448 (emphasizing, in applying judicial
estoppel, that the suit the debtor failed to disclose was “by
[the debtor’s] reckoning . . . three times the value of the debts
[the debtor] had discharged”).

Even if Ah Quin did not know she had to disclose the
discrimination claim when she originally completed her
bankruptcy schedules, the fact that she was put on notice by
the bankruptcy judge about the need to disclose lawsuits yet
failed to amend her schedules justifies the application of
judicial estoppel. Hamilton, 270 F.3d at 784 (“Judicial
estoppel will be imposed when the debtor has knowledge of
enough facts to know that a potential cause of action exists
during the pendency of the bankruptcy, but fails to amend his
schedules or disclosure statements to identify the cause of
action as a contingent asset.” (emphasis added)). Under
Hamilton, judicial estoppel would apply even if no suit had
been filed yet, as long as the debtor knew of the facts
supporting the claim during the bankruptcy proceedings, id.;
here, where Ah Quin filed her suit months before she even
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 45

filed for bankruptcy, see Maj. Op. at 4, the case for applying
judicial estoppel is even stronger.

B

The majority concludes that there is “factual support for
a conclusion either of mistake and inadvertence, or of deceit,”
and concludes that, taking the evidence in the light most
favorable to Ah Quin, her failure to disclose the suit on her
schedules was inadvertent. Maj. Op. at 21–22. The majority
cites three pieces of evidence in favor of a conclusion of
inadvertence: (1) Ah Quin’s affidavit, in which she swore
that, when she reviewed the bankruptcy schedules and up to
the date of the affidavit itself, she did not think she had to
disclose her discrimination suit because the bankruptcy
schedule’s instructions were vague; (2) Ah Quin listing her
discrimination lawyer as a creditor for $5,000 in her initial
bankruptcy schedules, which Ah Quin claimed supported a
conclusion of inadvertence because she would not have listed
the lawyer if she were seeking to hide her suit from the
bankruptcy court; and (3) Ah Quin’s counsel bringing her
bankruptcy to the County’s attention during a settlement
conference. Maj. Op. at 21–22.

With regard to the affidavit, Ah Quin cannot create a
genuine issue of material fact and thus avoid summary
judgment simply by swearing to facts that are contradicted by
the record. See FTC v. Publishing Clearing House, Inc.,
104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory, self-
serving affidavit, lacking detailed facts and any supporting
evidence, is insufficient to create a genuine issue of material
fact.”); cf. Scott v. Harris, 550 U.S. 372, 380 (2007) (“When
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
46 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary
judgment.”). In light of Ah Quin’s assessment of the value of
her discrimination suit as compared to the amount of debts
she sought discharged, and in light of her colloquy with the
bankruptcy judge, Ah Quin’s sworn statement that her failure
to disclose the claim up until the time of her first discharge
was inadvertent is just not believable.

With regard to the listing of her discrimination lawyer as
a creditor in her bankruptcy schedules, this evidence at most
creates a genuine issue of material fact as to whether Ah
Quin’s failure to disclose her claim was inadvertent prior to
her colloquy with the bankruptcy judge. By the time of that
colloquy, Ah Quin had already disclosed the debt owed to her
discrimination lawyer. Even assuming that Ah Quin in fact
did not know about her obligation to disclose her
discrimination claim in her bankruptcy schedules prior to the
colloquy, her disclosure of the debt owed to her lawyer could
not be taken back once the colloquy put her on notice of her
obligation, so the disclosure offers no proof of inadvertence
after the colloquy. Moreover, Ah Quin’s disclosure was
hardly designed to alert the bankruptcy judge of her
discrimination suit. The disclosure in Ah Quin’s initial
bankruptcy schedules gave no indication that the individual
listed was a lawyer, and the description of the debt said only
“Consultation Fees 2008.”

Finally, with regard to the fact that Ah Quin’s counsel
raised the bankruptcy at a settlement conference, Ah Quin did
not move to reopen bankruptcy proceedings at that point.
Rather, as the majority recognizes, Ah Quin did not move to
reopen her bankruptcy proceedings until after the defendants
in this case raised the possibility of dismissal based on
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 47

judicial estoppel. See Maj. Op. at 5, 21–22. If Ah Quin had
just made an honest mistake, she would have moved to
reopen her bankruptcy proceedings without needing to be
prompted by the defendants raising dismissal. See Cannon-
Stokes, 453 F.3d at 448 (“If [the debtor] were really making
an honest attempt to pay her debts, then as soon as she
realized that [her claim] had been omitted, she would have
filed amended schedules and moved to reopen the
bankruptcy, so that the creditors could benefit from any
recovery.”); Barger, 348 F.3d at 1297 (“[The debtor]’s
attempt to reopen the bankruptcy estate to include her
discrimination claim hardly casts her in the good light she
would like. She only sought to reopen the bankruptcy estate
after the defendants moved the district court to enter
summary judgment against her on judicial estoppel
grounds. . . . As such, [the debtor]’s disclosure upon re-
opening the bankruptcy estate deserves no favor.”); Burnes v.
Pemco Aeroplex, Inc., 291 F.3d 1282, 1288 (11th Cir. 2002)
(“Allowing [the debtor] to back-up, re-open the bankruptcy
case, and amend his bankruptcy filings, only after his
omission has been challenged by an adversary, suggests that
a debtor should consider disclosing potential assets only if he
is caught concealing them. This so-called remedy would only
diminish the necessary incentive to provide the bankruptcy
court with a truthful disclosure of the debtors’ assets.”). Ah
Quin’s failure to move to reopen bankruptcy proceedings
immediately after the settlement conference at which her
attorney raised the bankruptcy suggests that Ah Quin did not
merely inadvertently fail to disclose the suit in her bankruptcy
filings.

The evidence cited by the majority as supporting
inadvertence is thus unconvincing.
48 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

C

Lastly, it is also worth emphasizing that it was only after
the district court had dismissed the discrimination claim on
judicial estoppel grounds that the trustee abandoned the
discrimination claim and the bankruptcy court closed the
reopened bankruptcy proceedings. To reverse that estoppel-
based dismissal now would be to give Ah Quin an
opportunity to pursue her discrimination claim for her own
benefit—not for the benefit of the creditors—after the trustee
and creditors, presumably relying on the dismissal of the
discrimination claim, allowed the reopened bankruptcy
proceedings to be closed without objection.6

The majority attempts to minimize the significance of this
point by asserting that, because “Plaintiff’s unsecured

6
Only when pressed by the panel during oral argument did Ah Quin’s
counsel indicate any inclination to return to bankruptcy court and reopen
the bankruptcy proceedings if we were to reverse the district court. Even
then, Ah Quin’s counsel asserted that Ah Quin has no obligation to return
to the bankruptcy court if Ah Quin prevails here, though her counsel did
concede that moving to reopen bankruptcy proceedings “would be a
perfectly reasonable thing to do,” and that Ah Quin “should” so move. Ah
Quin’s counsel eventually said that Ah Quin would be “happy” to return
to bankruptcy court if she prevailed here, but he never conceded an
obligation or actually promised to return to bankruptcy court. Whether
counsel is correct or not about Ah Quin’s obligation or about the
appropriateness of returning to bankruptcy court, in the absence of a clear
concession or promise, counsel’s statements do not alter my analysis. See
Crowe v. Coleman, 113 F.3d 1536, 1543 (11th Cir. 1997) (“[W]aivers and
concessions made in appellate oral arguments need to be unambiguous
before they are allowed to change the outcome of an appeal . . . .”).
Moreover, since the bankruptcy court already reopened the proceeding
once to allow Ah Quin to add her discrimination claim, it is not at all clear
why the bankruptcy court would be willing to do it again, even if Ah Quin
were in fact to attempt to reopen the proceeding for a second time.
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 49

creditors did not object to [the abandonment] by the trustee,”
“the creditors . . . not receiv[ing] any benefit from this
action” if we reverse the district court “was the choice of the
creditors and the trustee.” Maj. Op. at 18–19 n.8. “The
important point,” the majority says,” is that the trustee and
the creditors had a full opportunity to pursue [relief].” Maj.
Op. at 18–19 n.8. But this argument is entirely unsatisfying
given that the trustee abandoned the claim only after the
magistrate judge had dismissed Ah Quin’s discrimination
claim. The record is silent as to the trustee’s thought process,
but it seems likely that the trustee abandoned the claim
because the district court had already dismissed it. The same
rationale likely explains the creditors’ failure to object. The
majority is essentially saying that the trustee’s abandonment
of the claim and the creditors’ lack of objection are irrelevant
to the equities. Perhaps out of recognition that this cannot be
correct if the creditors have no recourse if we reverse, the
majority adds that they “are not aware of anything that would
prevent Plaintiff or her creditors from moving to reopen the
bankruptcy proceedings to allow the creditors to benefit.”
Maj. Op. at 18–19 n.8. Reopening the bankruptcy, of course,
has always been an alternative to applying judicial estoppel
in this context, so Hamilton reflects a tacit rejection of
treating this option as a reason for eschewing judicial
estoppel. Moreover, as discussed in Part III infra, the
existence of alternative solutions—sometimes even more
attractive solutions—in the bankruptcy system itself does not
mean there is no value to be gleaned from a strict estoppel
doctrine in the bankruptcy context.

Even the Seventh Circuit, cited extensively by the
majority for support of its position, has indicated that judicial
estoppel is particularly apt in the bankruptcy context when a
trustee has abandoned claims and the fruit of allowing the suit
50 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

to proceed will accrue to the party who has advocated
inconsistent positions. In Biesek v. Soo Line Railroad Co.,
cited prominently by the majority, see Maj. Op. at 13–18,
Judge Easterbrook explained that the panel’s reticence to
apply judicial estoppel in the bankruptcy context stemmed
from the fact that the debtor was not really the party in
interest in the suit in question; rather, the claim belonged to
the trustee, who was bound to act for the benefit of the
creditors. See 440 F.3d 410, 413 (7th Cir. 2006). Judge
Easterbook went on to explain that the situation might be
different if the trustee had abandoned the claim, leaving the
debtor to benefit from the suit if judicial estoppel were not
applied:

A Trustee in bankruptcy may abandon
worthless or low value assets, including legal
claims, and if the Trustee had abandoned this
claim then Biesek could have prosecuted the
suit in his own name. Then it would have
been necessary to consider judicial estoppel.
But this claim is not worthless, and the
Trustee . . . has not abandoned it—a step that
requires notice to the creditors, which has
never been given, and the opportunity for a
hearing.

Id. (internal citation omitted). Biesek provides no support for
the majority’s position given that the trustee here has
abandoned Ah Quin’s suit.

In Cannon-Stokes v. Potter—authored by Judge
Easterbook a few months after Biesek, and also highlighted
by the majority, see Maj. Op. at 13–18—the Seventh Circuit
followed through on its dicta in Biesek about abandonment.
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 51

453 F.3d at 448–49. The court was faced with a situation
where “the trustee abandoned any interest in th[e] litigation,
so the creditors [we]re out of the picture and [the court had
to] decide whether [the debtor] may pursue her claim for
personal benefit.” Id. at 448. Noting that “[a]ll six appellate
courts that have considered [the issue] hold that a debtor in
a bankruptcy who denies owning an asset, including a chose
in action or other legal claim, cannot realize on that concealed
asset after the bankruptcy ends, “ id., the court ruled that the
debtor could not pursue her claim, asserting, “as the other
circuits . . . ha[d] concluded,” that “[j]udicial estoppel blocks
any attempt to realize on th[e] claim for [the debtor’s]
personal benefit,” id. at 448–49. Even the Seventh Circuit,
then, would disagree with the majority’s view in light of the
fact that the trustee abandoned Ah Quin’s discrimination
claim.

Even accepting the majority’s broad reading of the
“inadvertence or mistake” factor, Ah Quin should be
estopped here. There are cases where there truly seems to be
an honest mistake in failing to disclose a potential lawsuit in
bankruptcy filings, see, e.g., Whitten v. Fred’s Inc., 601 F.3d
231, 241–42 (4th Cir. 2010),7 but this is not one of them. Ah
Quin concealed her claim and received a favorable discharge,
then sought to pursue the claim without reopening her
bankruptcy until the threat of judicial estoppel loomed. When
judicial estoppel was applied, and the trustee abandoned the
creditors’ interest in the claim, Ah Quin continued to pursue
the claim for her own benefit. This is not behavior we should

7
The majority’s hypothetical litigant whose failure to disclose a suit in
bankruptcy filings resulted from a lack of representation or the fact that
the litigant is not a native English speaker, see Maj. Op. at 9 n.3, might
present such a case. Ah Quin is not that hypothetical litigant.
52 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

tolerate. See Payless Wholesale Distrib. v. Albert Culver
(P.R.) Inc., 989 F.2d 570, 571 (1st Cir. 1993) (“Conceal your
claims[,] get rid of your creditors on the cheap, and start over
with a bundle of rights. This is a palpable fraud that the court
will not tolerate, even passively.”).

III

Given that “judicial estoppel . . . is an equitable doctrine
invoked by a court at its discretion,” Russell v. Rolfs,
893 F.2d 1033, 1037 (9th Cir. 1990) (quoting Religious Tech.
Ctr. v. Scott, 869 F.2d 1306, 1311 (9th Cir. 1989) (Hall, J.,
dissenting)), it is not surprising that the majority seems
swayed by the equities more than by our prior case law.
Specifically, the majority is swayed by two points: (1) that
the bankruptcy system offers sufficient protections against the
failure to disclose assets, rendering any argument in support
of judicial estoppel related to deterrence a nullity, see Maj.
Op. at 15; and (2) that the application of judicial estoppel in
this context hurts primarily innocent creditors while
providing alleged bad actors with windfalls, see Maj. Op. at
16–18.

With regard to the first argument, the majority makes a
valid point. As the majority explains, the bankruptcy system
promotes accurate disclosure in various ways, and also offers
various remedies where debtors fail to accurately disclose
their assets. See Maj. Op. at 16. The bankruptcy court may
in fact often provide the better solution because it facilitates
punishment of the dishonest debtor without also punishing
innocent creditors by erasing potentially valuable suits. It
does seem more effective for the bankruptcy system to exact
punishment for this violation of its rules. The problem with
the majority’s reasoning is that we have already decided that
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 53

we have an obligation to deploy the equitable doctrine of
judicial estoppel in the bankruptcy context, to protect the
bankruptcy system, in spite of that system’s ability to protect
itself. See Hamilton, 270 F.3d at 784–85. Moreover, there is
value in redundancy. The judge or judges charged with
administering the underlying suit may at times be in a better
position to understand the inconsistency of positions than a
bankruptcy judge not intimately familiar with an undisclosed
suit in another forum. The bankruptcy judge will of course
also be in the better position in some cases, but that only
highlights the benefit of redundancy. We should not ignore
a litigant’s inconsistent position just because a bankruptcy
court has done so. The redundancy created by applying
judicial estoppel can only serve to amplify the deterrence of
inaccurate disclosure already promoted by bankruptcy
remedies. In light of the crucial importance of full disclosure
to the bankruptcy system, see Hamilton, 270 F.3d at 785
(citing In re Coastal Plains, 179 F.3d at 208), this added
deterrence, even if somewhat marginal, should not be
dismissed so lightly.

The majority’s second concern is of course intimately
related to its first. As the Seventh Circuit has pointed out, see
Biesek, 440 F.3d at 413, where a claim has not been
abandoned, the creditors are the real party in interest and they
stand to be hurt by dismissing a lawsuit that may be an asset
of the bankruptcy petitioner. The defendants in the
suit—potentially bad actors—will in fact receive a windfall
when the case against them is dismissed. The picture is more
complicated, however, if one accepts that applying judicial
estoppel in this context has deterrent value. If applying
judicial estoppel incrementally deters debtors from making
inaccurate filings in the future, the inequitable result in the
case at hand must be balanced against the positive impact on
54 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP.

the system writ large. As Judge Easterbrook explained in
Cannon-Stokes:

By making litigants choose one position
irrevocably, the doctrine of judicial estoppel
raises the cost of lying. A doctrine that
induces debtors to be truthful in their
bankruptcy filings will assist creditors in the
long run (though it will do them no good in
the particular case)—and it will assist most
debtors too, for the few debtors who scam
their creditors drive up interest rates and
injure the more numerous honest borrowers.

453 F.3d at 448 (internal quotation marks, alteration, and
citation omitted).

The majority raises reasonable concerns, but once we
recognize that a strict judicial estoppel doctrine has
incremental deterrent force, the rule we adopted in Hamilton
is a perfectly reasonable response.

IV

Hamilton dictates that we apply judicial estoppel where
a debtor had knowledge of a claim during bankruptcy
proceedings but failed to disclose the claim. The majority’s
newly minted “subjective intent” test—even if limited to
situations where the debtor moved to reopen the bankruptcy
proceedings to disclose the claim—is flatly inconsistent with
Hamilton and every other circuit that has addressed judicial
estoppel in this context. The magistrate judge was clearly
correct to apply our well-established precedent when he
invoked judicial estoppel and dismissed Ah Quin’s
 QUIN V. COUNTY OF KAUAI DEP’T OF TRANSP. 55

discrimination claim without considering her subjective
intent.

Moreover, even under the majority’s new “subjective
intent” test, judicial estoppel should be applied here,
especially given that the claim was abandoned by the trustee
and any benefit of allowing the claim to proceed will accrue
to Ah Quin and not innocent creditors. The record cannot
support the majority’s position that Ah Quin’s failure to
disclose her discrimination claim in her bankruptcy
proceedings until the defendants raised the possibility of
moving to dismiss the discrimination claim was just an honest
mistake. The majority raises interesting points regarding the
equity of a broader understanding of the “inadvertence or
mistake” factor, but the equities are more complicated than
the majority suggests. Ultimately, when a lie is punished, and
future lies are deterred—especially in the context of a
bankruptcy system so dependent on full and accurate
disclosure—equity will usually have been done. “Come what
may, anything is better than lies and deception.” 2 Leo
Tolstoy, Anna Karenina 76 (Nathan Haskell Dole trans.,
1899) (1877).

I respectfully dissent.