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cert. denied, 501 U.S. 1260, 111 S.Ct. 2915, 115
L.Ed.2d 1078 (1991) (internal quotation marks omitted).
“[F]ederal law governs the application of judicial
estoppel in federal court.” Rissetto, 94 F.3d at 603.
The Courts of Appeals are divided into what has been
described by the Court of Appeals for the Ninth Circuit as the
majority and minority positions.14 See Rissetto v. Plumbers &
Steamfitters Local 343, 94 F.3d 597 (9th Cir. 1996). In Yanez v.
United States, 989 F.2d 323, 326 (9th Cir. 1993) (quoting Morris
v. California, 966 F.2d 448, 452-453 (9th Cir. 1992)), the court
characterized the positions, stating:
“The majority of circuits recognizing the doctrine hold
that it is inapplicable unless the inconsistent
statement was actually adopted by the court in the
earlier litigation * * * The minority view, in
contrast, holds that the doctrine applies even if the
litigant was unsuccessful in asserting the inconsistent
position, if by his change of position he is playing
‘fast and loose’ with the court.... In either case,
the purpose of the doctrine is to protect the integrity
of the judicial process. * * *”
This case is appealable to the Court of Appeals for the
Ninth Circuit; as a consequence, we apply the doctrine as
enunciated by the Court of Appeals for the Ninth Circuit.
14The Court of Appeals for the Tenth Circuit has firmly
established that it will not be bound by the doctrine of judicial
estoppel. See Rascon v. U.S.W. Communications, Inc., 143 F.3d
1324 (10th Cir. 1998); see also the position of the Court of
Appeals for the District of Columbia Circuit expressed in United
Mine Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469,
477 (D.C. Cir. 1993) (noting that this circuit has “not
previously embraced” judicial estoppel).
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