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In addition to the traditional elements of equitable
estoppel, the Court of Appeals for the Ninth Circuit requires the
party seeking to apply the doctrine against the Government to
prove affirmative misconduct. See Purcell v. United States, 1
F.3d 932, 939 (9th Cir. 1993), and cases cited. The aggrieved
party must prove “‘affirmative misconduct going beyond mere
negligence’” and, even then, “‘estoppel will only apply where the
government’s wrongful act will cause a serious injustice, and the
public’s interest will not suffer undue damage by imposition of
the liability.’” Purer v. United States, 872 F.2d 277, 278 (9th
Cir. 1989) (quoting Wagner v. Director, Fed. Emergency Mgmt.
Agency, 847 F.2d 515, 519 (9th Cir. 1988)). Affirmative
misconduct requires “ongoing active misrepresentations” or a
“pervasive pattern of false promises,” as opposed to an isolated
act of providing misinformation. Watkins v. United States Army,
875 F.2d 699, 708 (9th Cir. 1989). Affirmative misconduct is a
threshold issue to be decided before determining whether the
traditional elements of equitable estoppel are present. See
Purcell v. United States, supra at 939.
b. Collateral Estoppel
Collateral estoppel basically precludes parties and their
privies from relitigating issues actually and necessarily
litigated and decided in a final prior judgment by a court of
competent jurisdiction. Peck v. Commissioner, 90 T.C. 162, 166
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