DISMISSED FOR LACK OF STANDING: January 11, 2012 
CBCA 2058 
USCS CHEMICAL CHARTERING LLC, 
Appellant, 
v. 
AGENCY FOR INTERNATIONAL DEVELOPMENT, 
Respondent. 
Alfredo R. Pérez of Weil, Gotshal & Manges LLP, New York, NY, and Houston, TX, 
counsel for Appellant. 
Natalie Thingelstad, Office of General Counsel, Agency for International 
Development, Washington, DC, counsel for Respondent. 
Before Board Judges DANIELS (Chairman), HYATT , and McCANN . 
DANIELS , Board Judge. 
Statute mandates that an entity seeking protection under the bankruptcy laws “shall 
. . . file . . . unless the court orders otherwise . . . a schedule of assets and liabilities [and] a 
statement of the debtor’s financial affairs.” 11 U.S.C. § 521(a)(1)(B) (2006). With narrow 
exceptions, the debtor’s estate includes “all legal or equitable interests of the debtor in 
property,” “wherever located and by whomever held.” Id. § 541(a)(1). All causes of action 
that can be brought by the debtor are encompassed by the term “legal or equitable interest in 
property.” Chartschlaa v. Nationwide Mutual Insurance Co. , 538 F.3d 116, 122 (2d Cir. 
2008); In re Coastal Plains, Inc. , 179 F.3d 197, 207-08 (5th Cir. 1999); Rosenshein v. 

 
         
             
                
      
                   
   
            
              
             
              
             
              
              
              
        
        
             
       
           
          
  
         
        
     
         
         
        
        
          
        
   
2 CBCA 2058 
Kleban , 918 F. Supp. 98, 102 (S.D.N.Y. 1996); Pako Corp. v. Citytrust , 109 B.R. 368, 372 
(D. Minn. 1989). Here, a government contractor, upon entering into chapter 11 bankruptcy, 
failed to list a claim against an agency among its assets. Its successor, having emerged from 
that bankruptcy, seeks to prosecute the claim.  Should we permit the case to proceed? That 
is the question posed to us by a motion to dismiss filed by the agency in this case, the Agency 
for International Development (USAID). 
Background 
In September 2008, USAID (through its broker, Pacific Cargoes, Inc.) issued a request 
for proposals for the shipment of bulk grain to Mekele and Dessie, Ethiopia, via discharge 
at the port of Djibouti, Djibouti. USCS Chemical Chartering LLC (through its broker, 
Phoenix Chartering, Inc.) responded, offering to carry the grain to Djibouti on a vessel called 
the ITB (integrated tug/barge) Philadelphia and to deliver the grain to the specified locations 
in Ethiopia. USAID accepted the offer, and on September 29, USAID and USCS Chemical 
Chartering LLC entered into a contract (called a “charter party”) for the shipment of the 
grain. In this decision, we call the contractor in its pre-bankruptcy status “Chemical I.” 
Among other relevant terms and conditions, the contract stated: 
CARGOES ARE TO BE DELIVERED TO FINAL DESTINATION POINTS 
. . . AT OWNER’S [Chemical I’s] TIME, RISK AND EXPENSE. . . . 
CARGOES ARE TO BE DELIVERED TO RECEIVERS’ WAREHOUSES 
AT FINAL DESTINATION POINT(S) . . . AT OWNER’S TIME, RISK AND 
EXPENSE. 
The contract also contained a provision entitled “Delivery Delay Assessment(s).” 
This provision stated: 
IN ORDER TO MAINTAIN A DELIVERY SCHEDULE TO MEET THE 
NEEDS OF THE PROGRAM FOR THESE CARGOES , The following 
Delivery Delay Assessment(s) will be applicable: 
DELIVERY DELAY ASSESSMENT OF USD 1.00 PER TON PER DAY 
(OR PRO-RATA) WILL BE IMPOSED IF ALL CARGO HAS NOT 
ARRIVED AT THE FINAL DELIVERY DESTINATION POINT(S) ON OR 
BEFORE DECEMBER 21, 2008. CHARTERERS [USAID] WILL ASSESS 
DAMAGES OF USD 1.00 PER METRIC TON ON ENTIRE BILL(S) OF 
LADING QUANTITY UNTIL ALL CARGO HAS BEEN DELIVERED TO 
FINAL DELIVERY DESTINATION POINT(S). 

 
            
               
                
             
             
               
           
               
                
       
            
               
               
               
              
 
           
           
               
               
           
   
              
           
            
              
             
         
      
           
             
           
              
3 CBCA 2058 
On November 25, Chemical I’s broker told USAID’s broker that Chemical I was 
concerned that congestion at the port of Djibouti could delay berthing by as much as twenty-
one days. The broker asked that Chemical I be permitted to avoid the potential delay by 
discharging the cargo at another port. The ITB Philadelphia arrived at Djibouti on 
November 29. On December 10, Chemical I’s broker reiterated its request for permission 
to discharge the cargo at another port. The record does not contain any response from 
USAID. 
The ITB Philadelphia finally berthed at Djibouti and began to discharge its cargo on 
December 25, 2008. Due to various delays at the port, discharge was not completed until 
January 17, 2009. The cargo was not delivered to its final destinations, Mekele and Dessie, 
Ethiopia, until January 26 and January 30, respectively. 
On March 9, 2009, Chemical I’s broker submitted to USAID’s contracting officer, on 
behalf of the contractor, a certified claim in the amount of $1,505,833.33. The claim asserted 
that the contractor had suffered damages in the amount of $40,000 per day for 37.6458 days 
while “on detention” at Djibouti. The broker stated, “Owners contend it was the lack of 
proper planning by the US Government that caused, in part, the congestion leading to the 
extraordinary delays.” 
On April 29, 2009, U.S. Shipping Partners, L.P. and its affiliates, including 
Chemical I, petitioned for chapter 11 bankruptcy reorganization with the United States 
Bankruptcy Court for the Southern District of New York. Thus, at that time, the petitioners 
became “debtors in possession.” See 11 U.S.C. §§ 1101(1), 1107(a), 1108. In this decision, 
we refer to USCS Chemical Chartering LLC while under the supervision of the bankruptcy 
court as “Chemical II.” 
On June 5 and July 9, 2009, the debtors submitted to the bankruptcy court certified 
schedules and amended schedules, allegedly listing all assets belonging to the bankruptcy 
estate. Each filing included a declaration under penalty of perjury, signed by Chemical II’s 
chief executive officer, that the schedules were “true and correct to the best of [his] 
knowledge, information, and belief.” The claim against USAID is not listed on those 
schedules or any other filing made with the bankruptcy court. 
The schedules do include the following paragraph: 
Causes of Action . Despite reasonable efforts, the Debtors might not have 
identified and/or set forth all of their causes of action against third parties as 
assets in their Schedules and SOFAs [statements of financial affairs]. The 
Debtors reserve any and all of their rights with respect to any causes of action 

 
            
          
           
         
                
             
              
                
             
              
            
          
                
              
          
            
          
           
                  
  
            
             
       
               
               
           
           
               
          
           
      
           
4 CBCA 2058 
they may have, and neither these General Notes nor the Schedules and SOFAs 
shall be deemed a waiver of any such causes of action. 
According to declarations by individuals who assisted in the preparation of the 
schedules, the preparation was performed diligently though under difficult circumstances; 
the lack of inclusion of the claim in question was inadvertent and probably due to the fact 
that the claim was submitted by a broker, rather than by Chemical I itself. 
On July 13, 2009, the bankruptcy court established dates for the filing by others of 
proofs of claims against the debtors that arose prior to the date on which the debtors initiated 
their bankruptcy proceedings. The deadlines were August 13, 2009, for each entity other 
than a “governmental unit” (a term defined at 11 U.S.C. § 101(27), which includes United 
States Government agencies) and October 26, 2009, for governmental units. The order 
establishing these dates (called a “bar date order”) provided that – 
any holder of a claim against the Debtors that is required to file a proof of such 
claim in accordance with this Order, but fails to do so on or before the 
applicable Bar Date shall be forever barred, estopped, and enjoined from 
asserting such claim against the Debtors (or filing a Proof of Claim with 
respect thereto), [and] the Debtors and their property shall be forever 
discharged from any and all indebtedness or liability with respect to such 
claim. 
Chemical II served notice of the bar date on the agent for USAID. USAID did not file a 
proof of claim. 
On October 9, 2009, the bankruptcy court issued an order confirming the debtors’ 
Third Amended Joint Plan of Reorganization under Chapter 11. This order contained a 
paragraph entitled “Injunction,” which provided that – 
except with respect to enforcement of parties’ rights under the Plan . . . , all 
Persons or entities who have held, hold or may hold Claims against . . . the 
Debtors are permanently enjoined, from and after the Effective Date, from (a) 
commencing or continuing in any manner any action or other proceeding of 
any kind on any such Claim . . . against any of the Reorganized Debtors, (b) 
the enforcement, attachment, collection or recovery by any manner or means 
of any judgment, award, decree or order against any Reorganized Debtor with 
respect to such Claim . . . , [and] (d) asserting any right of setoff, subrogation 
or recoupment of any kind against any obligation due to any Reorganized 

 
           
     
             
               
              
               
           
             
               
     
           
              
             
                
            
             
              
                
   
          
              
            
              
                
              
            
      
            
            
              
                
              
         
5 CBCA 2058 
Debtor or against the property or interests in property of any Reorganized 
Debtor with respect to such Claim. 
On March 31, 2010, the bankruptcy court issued its Final Decree Closing the Debtors’ 
Chapter 11 Cases. At that time, U.S. Shipping Partners, L.P. and its affiliates emerged from 
bankruptcy. In this decision, we refer to one of those affiliates, USCS Chemical Chartering 
LLC, as “Chemical III,” as it has been constituted from this date forward. The contractor 
characterizes the result of the plan as the creditors becoming equity holders. 
The bankruptcy court’s March 31, 2010, order states that “the Court shall retain such 
jurisdiction as is provided in Article XII (Retention of Jurisdiction) of the Plan, and the entry 
of this Final Decree is without prejudice to the rights of the Debtors or any party in interest 
to seek to reopen these chapter 11 cases for good cause shown.” 
On April 15, 2010, the USAID contracting officer issued her decision on the March 9, 
2009, claim to USCS Chemical Chartering LLC’s broker, which had submitted the claim. 
She held the “claim to be unfounded as the very nature of this emergency cargo going into 
a region with known infrastructure challenges is an understood risk accepted by experienced 
transportation providers servicing the region.” She said that USAID has “limited or no 
control over port operations at a foreign port and cannot be held responsible for events 
outside [its] control.” On June 24, 2010, an appeal of her decision denying the claim was 
filed with the Board. 
According to a declaration submitted by USAID’s contracting officer, the following 
events have occurred since the filing of the appeal: USAID issued an invoice dated 
August 20, 2010, to USCS Chemical Chartering LLC for $1,218,800 in delay damage 
assessment. On August 25, 2010, the company repudiated the claim. On September 14, 
2010, the contracting officer issued a final decision that the amount is due to USAID. On 
April 1, 2011, USAID received a notice from the company’s attorney asserting that the delay 
damage assessment was discharged in the bankruptcy proceeding and that USAID is enjoined 
from pursuing collection of the alleged debt. 
Discussion 
USAID maintains in its motion that because the claim was made before USCS 
Chemical Chartering LLC entered into bankruptcy and was not listed on the debtor’s 
schedules of assets or otherwise revealed to the bankruptcy court, the case must be dismissed. 
The agency offers two theories in support of its position. First, it contends that the doctrine 
of judicial estoppel bars the contractor from pursuing the matter before us. Second, USAID 
says that the appellant lacks standing to pursue the case. 

 
              
              
             
          
              
       
               
  
              
             
                
            
               
                 
                 
     
                
              
                
               
               
              
     
        
            
           
            
          
                 
          
            
                
    
6 CBCA 2058 
The appellant urges us to deny the motion. According to the company, granting the 
motion would result in an inequitable windfall for USAID to the detriment of the company’s 
former creditors (who are now its equity holders). The appellant notes the distinctions 
among Chemical I, Chemical II, and Chemical III, and says that Chemical III should not be 
penalized for whatever mistakes Chemical I or Chemical II may have made. Application of 
judicial estoppel would be inappropriate, the appellant asserts, because the debtor reserved 
its rights with respect to causes of action not listed on the schedules and because any 
misstatement was inadvertent. 
In replying to the appellant, USAID maintains that if the claim had been asserted in 
bankruptcy, USAID and other creditors would have preserved rights related to it. Among 
those rights, according to USAID, was the right of the agency to pursue damages under the 
Delivery Delay Assessment(s) clause of the contract. The appellant responds by asserting 
that USAID’s right to pursue damages was independent of any filing by the debtors. The 
contractor contends that the agency had an opportunity to file a proof of claim by the bar date 
specified in the bankruptcy court’s July 13, 2009, order, and because it did not do so, it is 
precluded by both that order and the court’s October 9, 2009, order from pursuing its claim 
1now.
The parties have devoted most of their briefs to the matter of judicial estoppel. This 
doctrine was discussed fully by the Supreme Court in New Hampshire v. Maine , 532 U.S. 
742 (2001). As the Court explained, the doctrine prevents a party from asserting in a legal 
proceeding a claim that is inconsistent with a position taken by that party in a previous 
proceeding. Its purpose is to protect the integrity of the judicial process. Judicial estoppel 
is an equitable doctrine invoked by a court at its discretion. Id. at 749-50. 
The Court noted that – 
several factors typically inform the decision whether to apply the doctrine in a 
particular case: First, a party’s later position must be clearly inconsistent with 
its earlier position. Second, 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 proceeding would 
create the perception that either the first or the second court was misled. . . . A 
third consideration is whether the party seeking to assert an inconsistent 
The appellant also, in its surreply, requests that the Board permit oral argument 
on the motion. Because the briefing has been extensive, the Board sees no need for oral 
argument and denies the request. 
1 

 
            
       
     
              
             
              
              
                
         
                
              
             
   
               
               
              
               
           
            
  
               
            
               
           
                 
                
    
        
                
              
                
     
               
               
      
7 CBCA 2058 
position would derive an unfair advantage or impose an unfair detriment on the 
opposing party if not estopped. . . . Additional considerations may inform the 
doctrine’s application in specific factual contexts. 
532 U.S. at 750-51 (citations and quotations omitted). “[I]t may be appropriate to resist 
application of judicial estoppel when a party’s prior position was based on inadvertence or 
mistake.” Id. at 753 (citations and quotation omitted); see also Trustees in Bankruptcy of 
North American Rubber Thread Co. v. United States , 593 F.3d 1346, 1353-54 (Fed. Cir. 2010) 
(noting, at 1354, that “[j]udicial estoppel applies just as much when one of the tribunals is an 
administrative agency as it does when both tribunals are courts”). 
The parties attempt to fit the facts of this case into, or out of, the requirements for 
judicial estoppel, depending on their respective positions. Because we are able to grant the 
motion on the alternate ground advanced by USAID, standing, we need not address the 
arguments regarding judicial estoppel. 
To have standing to bring a case in federal court, a plaintiff “must have suffered an 
‘injury in fact’ – an invasion of a legally protected interest.” Arizona Christian School Tuition 
Organization v. Winn , 131 S. Ct. 1436, 1442 (2011) (quoting Lujan v. Defenders of Wildlife , 
504 U.S. 555, 560 (1992)). Similarly, the Contract Disputes Act restricts access to boards of 
contract appeals, for dispute resolution, to contractors with federal agencies who have 
received decisions from agency contracting officers. 41 U.S.C.A. § 7104(a) (West Supp. 
2011). 
The contractor to USAID – the only party which may have suffered an injury to a 
legally protected interest, as a consequence of the contracting officer’s decision – was 
Chemical I. Chemical I no longer exists; whatever assets and liabilities it had, and informed 
the bankruptcy court about, have now been assumed, through reorganization sanctioned by 
that court, by Chemical III. Chemical III may proceed with this case only if one of the 
Chemical I assets it holds is the right to proceed with the Chemical I claim which was 
presented to the contracting officer. 
It is clear that Chemical III does not own that right.  Under 11 U.S.C. § 554, property 
of a bankruptcy estate may be abandoned by the trustee in bankruptcy or by order of the 
bankruptcy court. Unless the court orders otherwise, property which is listed on a debtor’s 
schedule of assets, and the disposition of which is not provided for by the order ending the 
proceedings, is considered to have been abandoned to the debtor.  However, property which 
is not listed on a schedule remains property of the bankruptcy estate. Because Chemical I’s 
claim against USAID was not listed on the schedule of assets the debtor presented to the 
bankruptcy court, it did not pass to Chemical III when that court approved reorganization of 

 
             
        
              
              
              
              
               
              
            
             
                      
            
            
  
            
           
              
      
             
              
                  
                
            
             
           
            
           
                
              
             
               
                
             
          
            
           
8 CBCA 2058 
USCS Chemical Chartering LLC. Instead, ownership of the claim remained with Chemical II. 
Chemical III consequently has no right to pursue it. 
Cases cited to us by the parties amply support this conclusion. See, e.g., Chartschlaa , 
538 F.3d at 122 (“undisclosed assets automatically remain property of the estate after the case 
is closed”); Cannon-Stokes v. Potter , 453 F.3d 446, 448 (7th Cir. 2006) (“All six appellate 
courts that have considered this question hold that a debtor in 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.” (citing decisions from the first, third, fifth, eighth, ninth, and 
eleventh circuits; seventh circuit joined them)); Rosenshein , 918 F. Supp. at 102-03 (S.D.N.Y. 
1996) (“[P]roperty that is not formally scheduled is not abandoned and therefore remains part 
of the estate. . . . Courts have held that . . . the debtor lacks standing to pursue the claims after 
emerging from bankruptcy, and the claims must be dismissed.” (citations omitted)); In re 
Drexel Burnham Lambert Group, Inc. , 160 B.R. 508, 514 (S.D.N.Y. 1993) (“Appellant lacks 
ownership and standing to assert any of the Additional Claims that he seeks to advance. . . . 
[H]e is precluded from asserting them now, . . . after his discharge from bankruptcy.”).  The 
one decision which USCS Chemical Chartering LLC says is to the contrary, Reciprocal 
Merchandising Services, Inc. v. All Advertising Associates, Inc. , 163 B.R. 689 (S.D.N.Y. 
1994), merely denied a motion for summary judgment on the ground of judicial estoppel; it 
did not consider the issue of standing. 
The appellant attempts to salvage ownership of the claim for Chemical III by pointing 
to the Causes of Action paragraph in the debtors’ schedules. This paragraph purports to 
reserve to the debtors “any and all of their rights with respect to any causes of action they may 
have” which are not identified in the schedules. As USAID comments, if this tactic were 
successful, the requirement for listing assets in schedules would be rendered useless; creditors 
and bankruptcy courts would lose the basis, which the schedules provide, for making an 
informed judgment about an appropriate resolution of the bankruptcy. Consequently, courts 
have rejected attempts to give vitality to boilerplate language like this paragraph which 
attempt to reserve unspecified claims. See, e.g., Krystal Cadillac-Oldsmobile GMC Truck, 
Inc. v. General Motors Corp. , 337 F.3d 314, 321 (3d Cir. 2003) (The language “is simply not 
adequate to provide the level of notice required. The bankruptcy rules were clearly not 
intended to encourage this kind of inadequate and misleading disclosure by creating an escape 
hatch debtors can duck into to avoid sanctions for omitting claims once their lack of candor 
is discovered.”); In re Bilstat, Inc. , 314 B.R. 603, 609 (S.D. Tex. 2004) (“The Court finds this 
disclaimer [that the debtor does not waive undisclosed causes of action] ineffective.”). We 
follow the courts’ lead by ascribing no validity to the paragraph. 
Many court decisions indicate that the trustee in bankruptcy (or, in chapter 11 
proceedings, the debtor-in-possession, such as Chemical II) may petition the bankruptcy court 

 
               
                 
               
              
            
                
                
              
                 
               
           
               
               
                 
              
                
                  
                
    
             
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9 CBCA 2058 
to reopen proceedings so that the trustee may pursue an unscheduled claim of the debtor. 
Reed v. City of Arlington , 650 F.3d 571 (5th Cir. 2011) (en banc); Biesek v. Soo Line Railroad 
Co., 440 F.3d 410, 413 (7th Cir. 2006); Parker v. Wendy’s International, Inc. , 365 F.3d 1268 
(11th Cir. 2004); Hutchins v. Internal Revenue Service , 67 F.3d 40, 43 (3d Cir. 1995); 
Rosenshein , 918 F. Supp. at 103; Greenheart Durawoods, Inc. v. PHF International Corp. , 
1994 WL 652434 at *5 (S.D.N.Y. Nov. 18, 1994). We note that the bankruptcy court’s March 
31, 2010, final decree in the chapter 11 cases in question permits reopening the cases. If 
Chemical III asks the bankruptcy court to reopen proceedings so that Chemical II may pursue 
this claim (or so that the right to pursue the claim may be transferred to Chemical III), that 
court will decide how to respond. The court may wish to take into consideration the 
appellant’s contention that because Chemical II’s former secured creditors are now Chemical 
III’s equity owners, there is an identity of interests between the two groups. Similarly, if 
USAID asks the bankruptcy court to reopen proceedings so that it may pursue its own claim, 
that court will decide how to respond. In the latter event, the court may wish to consider 
whether the fact that it enjoined action against the reorganized debtors (on October 9, 2009), 
prior to the bar date for governmental units like USAID to file proofs of claim (October 26, 
2009), is important. All of these matters, however, are not for us to decide. Our charge here 
is to determine whether this case may proceed before us in its current posture, and we have 
found that it may not. 
Decision 
USAID’s motion to dismiss is granted. The appeal is DISMISSED FOR LACK OF 
STANDING . 
STEPHEN M. DANIELS 
Board Judge 
We concur: 
CATHERINE B. HYATT R. ANTHONY McCANN 
Board Judge Board Judge