- 49 - 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 thePage: Previous 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 Next
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