IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30982

United States of America, ex rel, RONALD BIAS, 

 Plaintiff - Appellant

v.

TANGIPAHOA PARISH SCHOOL BOARD, 

 Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:12-CV-2202

Before STEWART, Chief Judge, KING and OWEN, Circuit Judges.

PER CURIAM:*

Ronald Bias filed a petition for Chapter 13 bankruptcy in May 2008. 

After the bankruptcy court confirmed his plan, but before he received a 

discharge, Bias filed this suit under the False Claims Act. He did not disclose 

this litigation to the bankruptcy court. The Tangipahoa Parish School Board 

moved for judgment on the pleadings, arguing that Bias’s claim was barred by 

judicial estoppel. The district court granted the motion and Bias appealed. We 

AFFIRM. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 5, 2018

Lyle W. Cayce

Clerk

 Case: 17-30982 Document: 00514748804 Page: 1 Date Filed: 12/05/2018
No. 17-30982

2

I.

In June 2009, the United States Marine Corps informed Ronald Bias

that it had mistakenly allowed him to retire two years early. At the time, Bias 

was employed by the Tangipahoa Parish School Board (the “Board”) as a senior 

instructor for Amite High School’s Junior Reserve Officers’ Training Corps 

(“JROTC”). The Marine Corps gave Bias the option of paying back the 

retirement funds he had erroneously earned or reenlisting for fifteen months 

to become eligible for retirement. Bias chose the latter. Bias was allowed to 

fulfill his reenlistment through his employment as a JROTC instructor. Bias 

alleged that he was told he would remain at Amite High School for the entirety 

of his fifteen-month reenlistment. 

Bias contends that during this time Carl Foster, another JROTC 

instructor at Amite, submitted fraudulent requests for reimbursement to the 

Marine Corps. Bias alleges that he reported this behavior to Michael Stant, 

Amite’s principal, and to the Marine Corps, but he was not taken seriously. 

Shortly thereafter, the Marine Corps informed Bias that he could retire 

or be transferred to a New Orleans school district. Bias considered this action 

to be retaliatory and filed this lawsuit against the Board, Stant, and Foster on 

September 5, 2012. Bias asserted claims under the False Claims Act (“FCA”), 

including a qui tam action and a retaliation claim. He later amended his 

complaint to add claims under 42 U.S.C. § 1983 and state law. 

The district court granted defendants’ motion to dismiss Bias’s FCA 

retaliation claim and § 1983 and state law claims, and the parties settled Bias’s 

remaining FCA claim. Bias appealed the dismissal. We affirmed on all grounds 

but one: we reversed the dismissal of Bias’s FCA retaliation claim as against 

the Board and remanded the suit to the district court for further proceedings. 

See United States ex rel. Bias v. Tangipahoa Par. Sch. Bd., 816 F.3d 315, 328

(5th Cir. 2016). 

 Case: 17-30982 Document: 00514748804 Page: 2 Date Filed: 12/05/2018
No. 17-30982

3

On remand, the Board filed a motion for judgment on the pleadings 

under Federal Rule of Civil Procedure 12(c), arguing that judicial estoppel 

barred Bias’s suit because he had not disclosed the cause of action in his 

Chapter 13 bankruptcy case. Bias had filed for Chapter 13 bankruptcy in the 

Eastern District of Virginia in May 2008. The bankruptcy court confirmed his 

plan on June 5, 2008—several years before Bias initiated this suit in 

September 2012. For the next five years, Bias made payments in accordance 

with the plan until he received a discharge on July 18, 2013. Bias did not 

amend his bankruptcy schedules to disclose this cause of action or otherwise 

inform the bankruptcy court of this litigation. Finding that judicial estoppel 

barred Bias’s claim, the district court granted the Board’s motion and 

dismissed the case. Bias timely appealed. 

II.

We typically review de novo a motion for judgment on the pleadings 

under Federal Rule of Civil Procedure 12(c). Edionwe v. Bailey, 860 F.3d 287, 

291 (5th Cir. 2017). “But, because ‘judicial estoppel is an equitable doctrine, 

and the decision whether to invoke it [is] within the court’s discretion, we 

review for abuse of discretion’ the lower court’s decision to invoke [this 

doctrine.]” Allen v. C & H Distribs., L.L.C., 813 F.3d 566, 572 (5th Cir. 2015) 

(alterations in original) (quoting Kane v. Nat’l Union Fire Ins. Co., 535 F.3d 

380, 384 (5th Cir. 2008)). “A district court abuses its discretion if it: (1) relies 

on clearly erroneous factual findings; (2) relies on erroneous conclusions of law; 

or (3) misapplies the law to the facts.” Id. (quoting McClure v. Ashcroft, 335 

F.3d 404, 408 (5th Cir. 2003)). 

 Case: 17-30982 Document: 00514748804 Page: 3 Date Filed: 12/05/2018
No. 17-30982

4

III.

The district court did not abuse its discretion in finding that judicial 

estoppel prevented Bias from pursuing his FCA retaliation claim.1 A court may 

apply judicial estoppel if “(1) the party against whom judicial estoppel is sought 

has asserted a legal position which is plainly inconsistent with a prior position; 

(2) the court accepted the prior position; and (3) the party did not act 

inadvertently.” Reed v. City of Arlington, 650 F.3d 571, 574 (5th Cir. 2011). We 

discuss each element of the judicial estoppel analysis in turn.

A.

We find that the first element of judicial estoppel is met in this case. 

Because he had an affirmative duty to disclose post-petition causes of action, 

Bias impliedly represented that he did not have such a claim when he failed to 

disclose this litigation to the bankruptcy court. Thus, Bias’s position that he 

now has an FCA retaliation claim is “plainly inconsistent” with his earlier

omission.

Bias and amici protest that he did not take an inconsistent position, 

reasoning that a Chapter 13 debtor has no obligation under the Bankruptcy 

Code or Rules to disclose post-confirmation causes of action. They contend that 

post-petition causes of action are not property of the bankruptcy estate because

only the debtor’s assets at the time of filing a petition for bankruptcy are the 

property of the estate—any assets acquired after the petition are the debtor’s 

to keep. The only exceptions, they argue, are made under 11 U.S.C. § 541(a)(5) 

and Federal Rule of Bankruptcy Procedure 1007(h), which require debtors to 

 

1 Bias argues that the Board waived its judicial estoppel defense because it failed to 

plead it in its answer. “[T]he district court ‘may invoke the [judicial estoppel] doctrine sua 

sponte’ and therefore ‘the court is not bound to accept a party’s apparent waiver of the 

doctrine.’” Allen, 813 F.3d at 571 n.4 (quoting 18 Moore’s Federal Practice § 134.34 (3d ed. 

2015)). Therefore, the district court did not err in applying the doctrine here, regardless of 

whether the Board timely asserted the defense.

 Case: 17-30982 Document: 00514748804 Page: 4 Date Filed: 12/05/2018
No. 17-30982

5

report inheritances, divorce settlements, and insurance proceeds to which the 

debtor becomes entitled within 180 days of the petition’s filing date.

Bias and amici also urge us to distinguish this case from Flugence v. Axis 

Surplus Insurance Co. (In re Flugence), 738 F.3d 126 (5th Cir. 2013). Flugence 

concerned a similar set of facts: the debtor brought suit after filing for Chapter 

13 bankruptcy and receiving a plan confirmation. In finding that the debtor 

had a duty to disclose her cause of action, this court relied on the language in 

her confirmation plan, which “explicitly stated that the estate’s assets would 

not revest in the debtor until discharge.” Id. at 130 (emphasis added). In 

contrast, Bias points out, his plan stated that “[p]roperty of the estate shall 

revest in the debtor(s) upon confirmation of the plan (emphasis added).” 

Therefore, Bias reasons that he had no obligation to disclose this cause of 

action to the bankruptcy court because the litigation was not property of the 

estate.

Whether this litigation belongs to the estate misses the point. We have 

recognized that “Chapter 13 debtors have a continuing obligation to disclose 

post-petition causes of action.” Allen, 813 F.3d at 572 (quoting Flugence, 738 

F.3d at 129). Debtors must disclose post-confirmation assets to the bankruptcy 

court regardless of whether the assets are “treated as property of the estate or 

vested in the debtor.” Id.; see also Flugence, 738 F.3d at 130 (“[O]ur decisions 

have settled that debtors have a duty to disclose to the bankruptcy court 

notwithstanding uncertainty.”). This continuing obligation exists because the 

inclusion of assets in the bankruptcy estate “is often a contested issue, and the 

debtor’s duty to disclose assets—even where he has a colorable theory for why 

those assets should be shielded from creditors—allows that issue to be decided 

as part of the orderly bankruptcy process.” Allen, 813 F.3d at 572 (quoting 

Flugence, 738 F.3d at 130). Therefore, because Bias had an affirmative duty to 

disclose his FCA retaliation claim in the bankruptcy court but failed to do so, 

 Case: 17-30982 Document: 00514748804 Page: 5 Date Filed: 12/05/2018
No. 17-30982

6

he impliedly represented that he did not have such a claim. Accordingly, the

first prong of the judicial estoppel inquiry is satisfied.2

Bias and amici make various equitable and policy arguments that this 

standard is overly rigid. But our precedent is clear: Chapter 13 debtors must 

disclose post-petition causes of action. See, e.g., Allen, 813 F.3d at 572; 

Flugence, 738 F.3d at 129 n.1 (“The continuing duty of disclosure is a 

longstanding gloss required by our caselaw.”); Jethroe v. Omnova Sols., Inc., 

412 F.3d 598, 600 (5th Cir. 2005) (“The obligation to disclose pending and 

unliquidated claims in bankruptcy proceedings is an ongoing one.”); Superior 

Crewboats, Inc. v. Primary P & I Underwriters (In re Superior Crewboats Inc.), 

374 F.3d 330, 335 (5th Cir. 2004) (“The duty to disclose is continuous.”). Bias 

and amici also argue that this “heightened disclosure” requirement is unduly 

burdensome, as it would require debtors to modify their bankruptcy plans each 

time they receive a paycheck or their property appreciates. These examples are 

inapt, however, because those paychecks and properties would already have 

been included in the debtor’s original schedules. Thus, they would not need to 

be disclosed again. In contrast, Bias never disclosed this cause of action to the 

bankruptcy court. As the Eleventh Circuit has recognized, “The bankruptcy 

court is entitled to learn about a substantial asset that the court had not 

considered when it confirmed the debtors’ plan.” Waldron v. Brown (In re 

 

2 Bias also urges us to refrain from applying Flugence “retroactively,” noting that 

Flugence was issued three months after his bankruptcy was discharged. But this argument 

is without merit because Flugence did not announce new law. See Coastal Plains, Inc. v. Mims

(In re Coastal Plains, Inc.), 179 F.3d 197, 208 (5th Cir. 1999) (“The duty of disclosure in a 

bankruptcy proceeding is a continuing one, and a debtor is required to disclose all potential 

causes of action.” (quoting Youngblood Grp. v. Lufkin Fed. Sav. & Loan Ass’n, 932 F. Supp. 

859, 867 (E.D. Tex. 1996))). Relatedly, because the duty to disclose post-confirmation causes 

of action is well established in this circuit, Bias and amici’s argument that the court cannot 

infer an inconsistent statement from a debtor’s silence “absent a clear and certain disclosure 

requirement” and that such an inference violates “due process of law” is also without merit. 

 Case: 17-30982 Document: 00514748804 Page: 6 Date Filed: 12/05/2018
No. 17-30982

7

Waldron), 536 F.3d 1239, 1245 (11th Cir. 2008). Thus, Bias’s and amici’s 

arguments are without merit.

B.

We find that the second element of judicial estoppel is also met in this 

case because the bankruptcy court accepted Bias’s prior position by granting 

him a discharge. See Flugence, 738 F.3d at 130 (finding that “the bankruptcy 

court accepted the prior position by omitting any reference to the [cause of 

action] in the modified plan” because “[h]ad the court been aware of the claim, 

it may well have altered the plan”). Although Bias argues that the bankruptcy 

court could not have accepted his position because he never disclosed his FCA 

claim to the bankruptcy court, he did not present this argument to the district 

court. Therefore, we decline to address it for the first time on appeal. In re 

Deepwater Horizon, 857 F.3d 246, 251 & n.8 (5th Cir. 2017) (“[A]rguments not 

raised before the district court are waived and cannot be raised for the first 

time on appeal.” (quoting LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 

387 (5th Cir. 2007)).

C.

Finally, we find that the third element of judicial estoppel is satisfied.

Judicial estoppel will not apply if the non-moving party’s failure to disclose was 

inadvertent, meaning that he did not know of his inconsistent position or had 

no motive to conceal it from the court. Jethroe, 412 F.3d at 600-01. Bias has 

not met either prong here.

To show a lack of knowledge, it is not enough for the non-moving party 

to show that he did not know he had a duty to disclose his claim; he must 

demonstrate that he was “unaware of the facts giving rise to [the claim].” Allen, 

813 F.3d at 573 (quoting Flugence, 738 F.3d at 130). Thus, Bias’s argument 

that he was confused about the law and did not know that bankruptcy law 

required disclosure “is, according to our precedents, irrelevant.” Id. (quoting 

 Case: 17-30982 Document: 00514748804 Page: 7 Date Filed: 12/05/2018
No. 17-30982

8

Flugence, 738 F.3d at 131). And Bias knew of the facts underlying his FCA 

retaliation claim during the bankruptcy proceedings—he filed this suit in 

September 2012, but he did not receive his discharge until July 2013.

Therefore, Bias cannot establish inadvertence by showing that he did not know 

of his inconsistent position.

Nor has Bias demonstrated that he did not have a motive to conceal his 

claim from the court. When evaluating whether such a motive existed, we must 

consider whether Bias “had a ‘motive to conceal [his] claim[]’ during the 

pendency of the bankruptcy proceedings.” Id. at 573-74 (quoting Love v. Tyson 

Foods, Inc., 677 F.3d 258, 263 (5th Cir. 2012)). Had the bankruptcy court 

known of his FCA claim, it may have modified his plan to require Bias to 

increase his payments, shorten the payoff period, or pay interest. See U.S. ex 

rel Long v. GSDMIdea City, L.L.C., 798 F.3d 265, 273 (5th Cir. 2015). Bias also 

admits that under the terms of his confirmation plan, any settlement or 

judgment in his favor would have to be disclosed to the bankruptcy court. Bias 

was therefore further incentivized to conceal his claim and prolong this 

litigation to avoid having to include it in his bankruptcy estate. Thus, Bias had 

a financial motive to conceal his claim. 

Finally, Bias and amici make various equitable and policy arguments 

throughout their briefs, arguing that “the Fifth Circuit has begun using the 

doctrine [of judicial estoppel] as a per se rule as a perfunctory bludgeon with 

which to punish dishonest and honest debtors alike.” But for the purposes of 

our review, our inquiry is limited to whether the district court abused its 

discretion in applying this equitable doctrine. Coastal Plains, 179 F.3d at 205. 

Because we find that the district court’s decision comports with our precedent

and therefore did not rely on “erroneous conclusions of law,” and we do not find 

that it relied on “clearly erroneous factual findings” or “misapplie[d] the law to 

the facts,” Allen, 813 F.3d at 572, we decline to reverse for abuse of discretion. 

 Case: 17-30982 Document: 00514748804 Page: 8 Date Filed: 12/05/2018
No. 17-30982

9

Therefore, because all three elements of judicial estoppel are met, we 

find that the district court did not abuse its discretion in granting the Board’s 

motion for judgment on the pleadings and dismissing Bias’s FCA retaliation 

claim.

IV.

For the foregoing reasons, we AFFIRM the judgment of the district court.

 Case: 17-30982 Document: 00514748804 Page: 9 Date Filed: 12/05/2018