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reconsideration of the earlier rulings. Id. at 1385. The court
found that the stakes were much higher with respect to
retroactive relief and that in the prior cases, HUD did not have
much incentive to appeal the District Court determinations. Id.
The significance of the earlier determinations was not
sufficiently foreseeable to justify the application of collateral
estoppel. Id. The court concluded that it would have been
inequitable to bar HUD from litigating the issue. Id.
Considering the practical realities of the case at hand,
application of collateral estoppel would produce an unjust result
because it would enable petitioner to employ its change of
position to prevent respondent from ever litigating the Court’s
jurisdiction. In paragraph 9 of the stipulation of settled
issues, petitioner expressly conceded the jurisdictional issue it
now raises; until this proceeding petitioner never indicated that
it was changing its mind. Respondent clearly did not have the
opportunity or the inclination to litigate this Court’s
jurisdiction in the bankruptcy court. Based on the stipulation,
respondent reasonably believed any challenge to the Court’s
jurisdiction was settled and had no reason to foresee
petitioner’s change of position and raise the issue in the
bankruptcy court. Yet petitioner now contends respondent is
collaterally estopped from litigating the nonrebate issue, the
centerpiece of petitioner’s jurisdictional argument. Since the
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