- 19 - 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).Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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