Moses v. Howard Univ. Hosp.

• Citation: 606 F.3d 789
• Decision Date: 01 June 2010
• Docket Number: No. 08-7087.,08-7087.
• Parties: Vijayakumar MOSES and Janet M. Nesse, Appellantsv.HOWARD UNIVERSITY HOSPITAL, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

606 F.3d 789

Vijayakumar MOSES and Janet M. Nesse, Appellantsv.HOWARD UNIVERSITY HOSPITAL, Appellee.

No. 08-7087.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 7, 2010.

Decided June 1, 2010.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia (No. 1:01-cv-02528-PLF).

James C. Strouse argued the cause and filed the brief for appellants. Janet M. Nesse entered an appearance.

Stephen E. Baskin argued the cause and filed the brief for appellee.

Before: SENTELLE, Chief Judge, TATEL, Circuit Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge:

In 2001, Vijayakumar Moses (“Moses”) filed suit against Howard University Hospital (“Howard”) claiming retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) as amended, 42 U.S.C. § 2000e et seq., and the D.C. Human Rights Act of 1977 (“DCHRA”), D.C.Code § 2-1401.01 et seq. After filing this lawsuit, Moses twice filed for bankruptcy in the District of Maryland. However, in his bankruptcy filings, Moses failed to disclose the existence of this lawsuit as required by 11 U.S.C. § 541. Upon discovering these failures to disclose, Howard filed a renewed motion for summary judgment on the ground that Moses's claims should be barred by judicial estoppel. The District Court granted Howard's motion, and Moses now appeals. On appeal, Howard raises two additional grounds to support the dismissal of this suit. First, Howard argues that Moses lacks standing to maintain this appeal. Second, Howard contends that Moses's notice of appeal was untimely under Fed. R.App. P. 4(a).

We hold that Moses has standing to appeal. In June 2009, Janet M. Nesse (“Nesse”), the trustee appointed to oversee Moses's Chapter 7 bankruptcy estate, abandoned the estate's claims in this case. See 11 U.S.C. § 554(a). “[W]hen property of the bankrupt is abandoned, the title ‘reverts to the bankrupt nunc pro tunc, so that he is treated as having owned it continuously.’ ” Morlan v. Univ. Guaranty Life Ins. Co., 298 F.3d 609, 617 (7th Cir.2002) (quoting Wallace v. Lawrence Warehouse Co., 338 F.2d 392, 394 n. 1 (9th Cir.1964)) (emphasis added). Once the trustee abandoned the estate's claims, Moses was free to seek redress as if no bankruptcy petition had been filed. See 5 Collier on Bankruptcy ¶ 554.02[3], p. 554-5 (15th ed. rev.2008).

We also hold that Moses's notice of appeal was timely filed. On July 1, 2008, the District Court entered judgment for Howard against Moses. On July 9, 2008, Nesse, acting as trustee, filed a motion under Fed.R.Civ.P. 59(e) to amend the District Court's opinion and judgment to clarify that judicial estoppel applied only if Moses elected to pursue his retaliation claims in his own right. Nesse's Rule 59(e) motion tolled the 30-day notice of appeal requirement of Rule 4(a). See Fed. R.App. P. 4(a)(4)(A)(iv). On August 25, 2008, while the time for appeal was still tolled, Moses filed a notice of appeal in his own right. The retroactive effect of the trustee's abandonment ensured that Moses had standing to file a notice of appeal on August 25, 2008. On February 19, 2009, the District Court resolved Nesse's Rule 59(e) motion and Moses's previously filed notice of appeal took effect.

Finally, we uphold the District Court's application of judicial estoppel and affirm the summary judgment granted in favor of Howard. “Courts may invoke judicial estoppel ‘[w]here a party assumes a certain position in a legal proceeding, ... succeeds in maintaining that position, ... [and then,] simply because his interests have changed, assume[s] a contrary position.’ ” Comcast Corp. v. FCC, 600 F.3d 642, 647 (D.C.Cir.2010) (quoting New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). Even after he had filed for bankruptcy, Moses continued to hold himself out before the District Court as a valid plaintiff, a position which was “clearly inconsistent” with his pursuit of relief in bankruptcy. See Maine, 532 U.S. at 750, 121 S.Ct. 1808 (internal quotation marks omitted). “[J]udicial acceptance of an inconsistent position in a later proceeding ... create[s] the perception that either the first or the second court was misled,” thus posing a threat to judicial integrity. See id. (internal quotation marks omitted). Moses “derive[d] an unfair advantage” in maintaining and controlling this lawsuit by falsely holding himself out as a proper party. Id. at 751, 121 S.Ct. 1808. Therefore, the District Court did not err in applying judicial estoppel against Moses. Accordingly, we affirm.

I. Background

On February 22, 1999, appellant Moses filed the first of two lawsuits against Howard, his then-employer, alleging race discrimination, national origin discrimination, and retaliation in violation of Title VII; race discrimination and retaliation in violation of the DCHRA; and age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. On January 30, 2001, the District Court entered summary judgment for Howard on all counts except those related to Moses's ADEA claim. See Moses v. Howard Univ. Hosp., Civ. Action No. 99-0410 (D.D.C. Jan. 30, 2001) (“ Moses I ”). The parties subsequently settled the ADEA claim, and the case was dismissed with prejudice See Moses v. Howard Univ. Hosp., 567 F.Supp.2d 62, 63-64 (D.D.C.2008) (“ Moses III ”) (describing the proceedings in the initial lawsuit).

In October 2000, Moses was terminated by Howard. Moses then filed complaints with the Equal Employment Opportunity Commission (“EEOC”) and the District of Columbia Office of Human Rights, contending that he was dismissed in retaliation for filing the 1999 lawsuit against Howard. On September 14, 2001, Moses received a “right to sue” letter from the EEOC. He then filed the instant lawsuit with the District Court. In his complaint, Moses alleged that Howard had retaliated against him in violation of Title VII and the DCHRA. Howard denied the charges and moved for summary judgment.

While this lawsuit was pending in District Court, Moses initiated two separate bankruptcy proceedings. On September 20, 2003, Moses filed for bankruptcy under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 701 et seq. This action was brought in the District of Maryland, with Nesse assigned to serve as trustee of Moses's bankruptcy estate. A Chapter 7 proceeding “authorizes a discharge of prepetition debts following the liquidation of the debtor's assets by a bankruptcy trustee, who then distributes the proceeds to creditors.... Under Chapter 7 the debtor's nonexempt assets are controlled by the bankruptcy trustee.” Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007). On January 5, 2004, Moses secured a discharge of approximately $20,000 in debt pursuant to his Chapter 7 bankruptcy petition.

In early 2007, Moses again filed for bankruptcy in the District of Maryland, this time under Chapter 13 of the Bankruptcy Code, 11 U.S.C. § 1301 et seq. “Chapter 13 authorizes an individual with regular income to obtain a discharge after the successful completion of a payment plan approved by the bankruptcy court.... [U]nder Chapter 13 the debtor retains possession of his property” during the course of the bankruptcy proceeding. Marrama, 549 U.S. at 367, 127 S.Ct. 1105. The bankruptcy court rejected Moses's proposed payment plan and his Chapter 13 proceeding was closed on June 25, 2007.

In each of his bankruptcy proceedings, Moses was required to execute, under penalty of perjury, a “Statement of Financial Affairs” setting forth “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.” Moses III, 567 F.Supp.2d at 65 (citing Defendant's Statement of Undisputed Material Facts in Support of its Renewed Motion for Summary Judgement (“Def.'s Undisputed Facts”) ¶¶ 13-14 reprinted in Joint Appendix (“J.A.”) 3). A debtor is required to disclose all potential claims in a bankruptcy petition. See 11 U.S.C. §§ 521(1), 541(a)(1). This means that a debtor is under a duty both to disclose the existence of pending lawsuits when he files a petition in bankruptcy and to amend his petition if circumstances change during the course of the bankruptcy. See Jethroe v. Omnova Solutions, Inc., 412 F.3d 598, 600 (5th Cir.2005); In re Coastal Plains, Inc., 179 F.3d 197, 207-08 (5th Cir.1999). And when an estate is in bankruptcy under Chapter 7, the trustee is the representative of the estate and retains the sole authority to sue and be sued on its behalf. See Parker v. Wendy's Int'l, Inc., 365 F.3d 1268, 1272 (11th Cir.2004). Nesse retained this authority as trustee in the Chapter 7 bankruptcy proceeding.

Despite these disclosure requirements, Moses failed to reveal the existence of this lawsuit in either his Chapter 7 or Chapter 13 bankruptcy proceedings. He did, however, disclose his involvement in separate civil actions involving the garnishment of his wages. See Moses III, 567 F.Supp.2d at 66 n. 3 (citing Def.'s Undisputed Facts ¶¶ 13, 19, J.A. 3, 4).

Moses's action in this case remained live in the District Court during the course of both bankruptcy proceedings. On February 12, 2007, the District Court “conclude[d] that genuine issues of material fact remain[ed] with respect to Mr. Moses's termination claim[, and thus ruled that Howard was] not entitled to summary judgment on this claim.” Moses v. Howard Univ. Hosp., 474 F.Supp.2d 117, 127 (D.D.C. 2007) (“ Moses II ”). The court also ruled that, “[w]ith respect to all other adverse employment actions that Mr. Moses allege [d] were taken in retaliation for his filing a discrimination complaint and lawsuit, [it would] enter judgment for [Howard].” Id. The District Court subsequently set a trial date for Moses's claim that his termination from employment...