CITES BY TOPIC:  estoppel
Black's Law Dictionary, Sixth Edition, p. 540:

“Silence, estoppel by.  Such estoppel arises where a person is under duty to another to speak or failure to speak is inconsistent with honest dealings.

An agreement inferred from silence rests upon principle of “estoppel.”  Letres v. Washington Co-op. Chick Ass’n, 8 Wash.2d 64, 111 P.2d 594, 596.  Silence, to work “estoppel”, must amount to bad faith, Wise v. United States, D.C.Ky., 38 F.Supp. 130, 134; and, elements or essentials of such estoppel include: change of position to prejudice of person claiming estoppel, Sherlock v. Greaves, 106 Mont. 206, 76 P.2d 87, 91; damages if the estoppel is denied, James v. Nelson, C.C.A.Alaska, 90 F.2d 910, 917; duty and opportunity to speak, Merry. V. Garibaldi, 48 Cal.App.2d 397, 119 P{.2d 768; 771; ignorance of the facts by person claiming estoppel to alter his position; knowledge of facts and of rights by person estopped, Consolidated Freight Lines v. Groenen, 10 Wash2d 672, 117 P.2d 966, 968; misleading of party claiming estoppel, Lincoln v. Bennett, Tex.Civ.App., 135 S.W.2d 632, 636; reliance upon silence of party sought to be estopped, New York Life Ins. Co. v. Talley, C.C.A. Iowa, 72 F.2d 715, 718.”

[Black’s Law Dictionary, Sixth Edition, p. 1382 TA \l "Black’s Law Dictionary, Sixth Edition, p. 1382" \s "Black’s Law Dictionary, Sixth Edition, p. 1382" \c 3 ]


Black’s Law Dictionary, Sixth Edition, p. 24:

“Acquiescence, estoppel by.  Acquiescence is a species of estoppel.  An estoppel arises where party aware of his rights sees other party acting upon mistaken notion of his rights.  Injury accruing form one’s acquiescence in another’s action to his prejudice creates “estoppel”.  Lebold v. Inland Steel Co., C.C.A.Ill., 125 F.2d 369, 375.  Passive conduct on the part of one who has knowledge of the facts may be basis of estoppel  Winslow v. Burns, 47 N.M. 29, 132 P.2d 1048, 1050.  It must appear that party to be estopped was bound in equity and good conscience to speak and that party claiming estoppel relied upon acquiescence and was misled thereby to change his position to his prejudice.  Sherlock v. Greaves, 105 Mont. 206, 76 P.2d 87, 91.  See also Estoppel.”

[Black’s Law Dictionary, Sixth Edition, p. 24]


Estate of Brown J. Akin v.The United States, No. 93-393T (Court of Federal Claims, No. 93-393T)

Plaintiffs cannot ignore that courts have consistently applied the doctrine of equitable estoppel against the Government " 'with the utmost caution and restraint.' " Boulez v. Commissioner, 76 T.C. 209, 215 (1981), aff'd, 810 F.2d 209 (D.C. Cir.), cert. denied, 484 U.S. 896 (1987) (citing Estate of Emerson v. Commissioner, 67 T.C 612, 617 (1977)); see Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) (holding that "equitable estoppel will not lie against the Government as it lies against private litigants...."). Moreover, "in a civil tax case... the United States cannot be estopped by any statements made by an individual IRS employee, even where the taxpayer may have relied on those statements to his detriment." Coleman v. United States, 82-1 U.S. Tax Cas. (CCH) paragraph 9133, at 83,111 E.D. Ky. 1981), rev'd on other grounds, 704 F.2d 326 (6th Cir. 1983) (citation omitted); see Richmond, 496 U.S. at 426 (affirming "a... strict approach to estoppel claims involving public funds"); Garity v. United States, 81-2 U.S. Tax Cas. (CCH) paragraph 9599, at 88,005-006 (E.D. Mich 1980) (stating that "conclusions and reasoning of IRS agents are irrelevant to the validity of the assessment....").

Finally, those individuals who deal with the Government are charged with knowledge of the applicable regulations and statutes, including those which pertain to the scope of authority of a government agent. [FN16] Bornstein v. United States, 170 Ct. Cl. 576, 582, 345 F.2d 558, 562 (1965) (citing Federal Crops Ins. Corp. v. Merrill, 332 U.S. 380 (1947)); see United States v. Willis, 164 F.2d 453, 455 (4th Cir. 1947) (stating that anyone who deals with an agent of the Government "cannot rely upon the scope of dealing or apparent authority as in the case of a private agent").

Even assuming that the Akins relied to their detriment on Mr. Schaller's oral representations, the representations were made by an individual lacking authority to bind the Government. See Deleg. Order No. 66 (Rev. 10), 1980-1 C.B. 571 (stating that settlement authority rests only in the Regional Director of Appeals, the Chiefs and Associate Chiefs of Appeals Offices, and in certain cases, the Appeals Team Chiefs). In addition, the Akins ultimately were responsible for ascertaining whether the individual with whom they dealt, Mr. Schaller, remained within the bounds of his prescribed authority. The IRS properly published the Delegation Order, which identified the individuals possessing proper settlement authority, in the Cumulative Bulletin, a publication available to the public. This Order remains in effect today and plaintiffs do not dispute the existence of such Order. The weight of judicial authority and the undisputed limitations on Mr. Schaller's authority dictate that plaintiffs' claim of equitable estoppel must fail.

[Estate of Brown J. Akin v.The United States, No. 93-393T (Court of Federal Claims, No. 93-393T)]


American Jurisprudence 2d, Estoppel and Waiver, 27: Definitions and Nature:

“Equitable estoppel, or estoppel in pais, is a term applied usually to a situation where, because of something which he has done or omitted to do, a party is denied the right to plead or prove an otherwise important fact. 2   The term has also been variously defined, frequently by pointing out one or more of the elements of, or prerequisites to, 3   the application of the doctrine or the situations in which the doctrine is urged. 4  The most comprehensive definition of equitable estoppel or estoppel in pais is that it is the principle by which a party who knows or should know the truth is absolutely precluded, both at law and in equity, from denying, or asserting the contrary of, any material fact which, by his words or conduct, affirmative or negative, intentionally or through culpable negligence, he has induced another, who was excusably ignorant of the true facts and who had a right to rely upon such words or conduct, to believe and act upon them thereby, as a consequence reasonably to be anticipated, changing his position in such a way that he would suffer injury if such denial or contrary assertion was allowed. 5  In the final analysis, however, an equitable estoppel rests upon the facts and circumstances of the particular case in which it is urged, 6   considered in the framework of the elements, requisites, and grounds of equitable estoppel, 7   and consequently, any attempted definition usually amounts to no more than a declaration of an estoppel under those facts and circumstances. 8    The cases themselves must be looked to and applied by way of analogy rather than rule. 9“

[American Jurisprudence 2d, Estoppel and Waiver, 27: Definitions and Nature ]


American Jurisprudence 2d, Estoppel and Waiver, 28: Basis, function, and purpose

“The doctrine of estoppel is based upon the grounds of public policy, fair dealing, good faith, and justice, and its purpose is to forbid one to speak against his own act, representations, or commitments to the injury of one to whom they were directed and who reasonably relied thereon. 11 The doctrine of estoppel springs from equitable principles and the equities in the case. 12   It is designed to aid the law in the administration of justice where without its aid injustice might result. 13   Thus, the doctrine of equitable estoppel or estoppel in pais is founded upon principles of morality and fair dealing and is intended to subserve the ends of justice. 14                 It always presupposes error on one side and fault or fraud upon the other and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage. 15 It concludes the truth in order to prevent fraud and falsehood and imposes silence on a party only when in conscience and honesty he should not be allowed to speak. 16

The proper function of equitable estoppel is the prevention of fraud, actual or constructive, 17   and the doctrine should always be so applied as to promote the ends of justice and accomplish that which ought to be done between man and man. 18  Such an estoppel cannot arise against a party except when justice to the rights of others demands it 19    and when to refuse it would be inequitable. 20    The doctrine of estoppel should be applied cautiously and only when equity clearly requires it to be done. 1   Hence, in determining the application of the doctrine, the counterequities of the parties are entitled to due consideration. 2    It is available only in defense of a legal or equitable right or claim made in good faith and can never be asserted to uphold crime, fraud, injustice, or wrong of any character. 3  Estoppel is to be applied against wrongdoers, not against the victim of a wrong, 4  although estoppel is never employed as a means of inflicting punishment for an unlawful or wrongful act. 5”

[American Jurisprudence 2d, Estoppel and Waiver, 28: Basis, function, and purpose]


American Jurisprudence 2d, Estoppel and Waiver, 128 Municipal corporations [28 Am Jur 2d ESTOPPEL AND WAIVER] 20
NOTE:  "United States" is defined as a municipal corporation in the Internal Revenue Code, 26 USC 7701(a)(9) and (a)(10)

It is generally recognized that with respect to matters within the scope of its power and authority to act, 1 a municipal corporation is subject to the rules of estoppel 2 in those cases wherein equity and justice require their application 3 and where such application will not interfere with the proper exercise of governmental functions; 4 but where there is an entire absence of such power on its part, there can be no estoppel as against the municipality or its inhabitants. 5

Thus, municipal corporations may be, and frequently have been, held subject to the doctrine of estoppel under special circumstances 6 and accordingly estopped by their acts and conduct, 7 as where they are acting within their powers 8 and in a proprietary or private capacity, 9 or where right and justice and principles of common honesty require that the doctrine be applied to municipalities, in matters not wholly ultra vires, the same as it is to individuals, 10 as where the party invoking the doctrine has expended large sums of money, or has parted with value or incurred a new liability in reliance upon the acts or conduct of the municipality or its officers and agents; 11 or where the nonapplication of the doctrine will encourage or permit a fraud, 12 as where, the act or contract being intra vires and not prohibited by law, the municipality has accepted benefits thereunder. 13 While a municipality is not estopped to deny the validity of a contract wholly beyond its powers, it may be estopped by the exercise of contractual powers legally vested in it, 14 and, according to a number of cases, even in the exercise of governmental functions, it may be estopped where justice, right, and the equities of the situation demand it, 15 although the rule in some jurisdictions is that the municipal corporation must receive some benefit from the transaction in order to be estopped. 16

_______________

Footnotes

Footnote 20. As to estoppel of municipal corporation with regard to contracts, see Municipal Corporations, Counties, and Other Political Subdivisions (1st ed 522, 523); with regard to franchises, see Franchises.

Footnote 1. In this connection, a distinction is recognized between acts of the municipality or governing body which are not within the scope of their general powers and such as may be open to the objection that they are lacking in some technical and formal regularity in their adoption, or that there has been a nonobservance of some collateral act or formality prescribed, not jurisdictional in its character. The former are clearly and always void, while the latter, if they lead to a perpetration of a fraud upon contracting parties acting upon the faith of laws and ordinances apparently regular and valid, will be held to bind the municipality upon the principle of having received and appropriated benefits derived on account of them, and it will be estopped to deny their validity. Portland v Bituminous Paving & Improv. Co. 33 Or 307, 52 P 28. Annotation: 1 ALR2d 357, 8.

It has been said that while, in the latter case, the equitable rule of estoppel will not be applied as freely against the public as against private persons, yet the court may apply it to control the conduct of municipal corporations where, in the judgment of the court, the facts are such as to demand it in order to prevent manifest injustice and wrong. Los Angeles v Los Angeles County, 9 Cal 2d 624, 72 P2d 138, 113 ALR 370; Reuter v Lawe, 94 Wis 300, 68 NW 953. Annotation: 1 ALR2d 357, 8.

Footnote 2. Broadly speaking, the doctrine of estoppel applies against municipal corporations. Johnson v Hospital Service Plan, 25 NJ 134, 135 A2d 483.

The principles of right and justice, upon which the doctrine of estoppel in pais rests, are applicable to municipal corporations. Beadles v Smyser, 209 US 393, 52 L ed 849, 28 S Ct 522.

Estoppel can be invoked as a defense against municipal corporations if the necessary facts are established to warrant its application. Monadnock Regional School Dist. v Fitzwilliam, 105 NH 487, 203 A2d 46.

Footnote 3. Essex v New England Teleg. Co. 239 US 313, 60 L ed 301, 36 S Ct 102; City R. Co. v Citizens Street R. Co. 166 US 557, 41 L ed 1114, 17 S Ct 653; Lewis v Shreveport, 108 US 282, 27 L ed 728, 2 S Ct 634; Lorenson v Los Angeles, 41 Cal 2d 334, 260 P2d 49; Los Angeles v Los Angeles County, 9 Cal 2d 624, 72 P2d 138, 113 ALR 370; Gregory v Wheaton, 23 Ill 2d 402, 178 NE2d 358; Eddy Valve Co. v Crown Point, 166 Ind 613, 76 NE 536; Alexander v Randall (Iowa) 133 NW2d 124; Derby Oil Co. v Oxford, 134 Kan 59, 4 P2d 435; Hutchinson & S. R. Co. v Kingman County, 48 Kan 70, 28 P 1078; State ex rel. McKittrick v Missouri Utilities Co. 339 Mo 385, 96 SW2d 607, 106 ALR 1169; Talbott v Lyons, 171 Neb 186, 105 NW2d 918; Inslee v Bridgeport, 153 Neb 559, 45 NW2d 590; Oliver v Synhorst, 48 Or 292, 86 P 376; New Castle v Withers, 291 Pa 216, 139 A 860, 57 ALR 132; Milwaukee v County of Milwaukee, 27 Wis 2d 53, 133 NW2d 393; Eau Claire Dells Improv. Co. v Eau Claire, 172 Wis 240, 179 NW 2.

Annotation: 1 ALR2d 353 et seq., 8.

Footnote 4. 129, 130, infra.

Footnote 5. 129, infra.

Footnote 6. Essex v New England Teleg. Co. 239 US 313, 60 L ed 301, 36 S Ct 102; Boone County v Burlington & M. River R. Co. 139 US 684, 35 L ed 319, 11 S Ct 687; Clokey v Wabash R. Co. 353 Ill 349, 187 NE 475; State ex rel. McKittrick v Springfield City Water Co. 345 Mo 6, 131 SW2d 525; New Castle v Withers, 291 Pa 216, 139 A 860, 57 ALR 132.

Annotation: 1 ALR2d 353, 8.

It has been declared that estoppel as applied to municipalities is not limited to instances where the municipality has entered into an express contract which it would be unconscionable for it to repudiate. Indeed, it is said that it may arise where no contractual relations, express or implied, are involved. Quarles v Appleton (CA7 Wis) 299 F 508. Annotation: 1 ALR2d 358, 8.

Footnote 7. Essex v New England Teleg. Co. 239 US 313, 60 L ed 301, 36 S Ct 102; Tillman v Pompano Beach (Fla) 100 So 2d 53, 65 ALR2d 1273; Quincy v Sturhahn, 18 Ill 2d 604, 165 NE2d 271, 81 ALR2d 1425; State ex rel. McKittrick v Missouri Utilities Co. 339 Mo 385, 96 SW2d 607, 106 ALR 1169; Planet Constr. Corp. v Board of Education, 7 NY2d 381, 198 NYS2d 68, 165 NE2d 758, 81 ALR2d 1035; New Castle v Withers, 291 Pa 216, 139 A 860, 57 ALR 132; Eau Claire Dells Improv. Co. v Eau Claire, 172 Wis 240, 179 NW 2.

Annotation: 23 ALR2d 1430, 8; 81 ALR2d 1039 (estoppel to rely upon contractual limitation of time for bringing action against municipality).

There is some authority to the effect that where elements of estoppel are present a municipality will be estopped by its acts and conduct as would an individual. District of Columbia v Cahill, 60 App DC 342, 54 F2d 453. Annotation: 1 ALR2d 358, 8.

A municipal corporation, like an individual, is held to a careful adherence to truth in its dealings with other parties and cannot, by its representations or silence, involve others in onerous engagements and then defeat the claims which its own conduct has superinduced. Bissell v Jeffersonville, 24 How (US) 287, 16 L ed 664.

Footnote 8. Bank of Commerce v Huddleston, 172 Ark 999, 291 SW 422, 50 ALR 1202; Avery v Chicago, 345 Ill 640, 178 NE 351.

Annotation: 1 ALR2d 354, 8.

Footnote 9. Griffin v Oklahoma Natural Gas Corp. (CA10 Kan) 37 F2d 545; Denver v Denver Tramway Corp. (CA8 Colo) 23 F2d 287, cert den 278 US 616, 73 L ed 539, 49 S Ct 20 (holding that a city in granting an easement in a street for a street railway acted in its proprietary capacity); Bank of Commerce v Huddleston, 172 Ark 999, 291 SW 422, 50 ALR 1202; Dolloff v Gardiner, 148 Me 176, 91 A2d 320 (town); Philadelphia Mortg. & T. Co. v Omaha, 63 Neb 280, 88 NW 523; New Castle v Withers, 291 Pa 216, 139 A 860, 57 ALR 132; Seattle v Stirrat, 55 Wash 560, 104 P 834; Eau Claire Dells Improv. Co. v Eau Claire, 172 Wis 240, 179 NW 2; Chicago, St. P. M. & O. R. Co. v Douglas County, 134 Wis 197, 114 NW 511.

Annotation: 1 ALR2d 354, 8.

Footnote 10. Beadles v Smyser, 209 US 393, 52 L ed 849, 28 S Ct 522; Quarles v Appleton (CA7 Wis) 299 F 508; Los Angeles v Los Angeles County, 9 Cal 2d 624, 72 P2d 138, 113 ALR 370; Trustees of Schools v Cahokia, 357 Ill 538, 192 NE 565; State ex rel. McKittrick v Missouri Utilities Co. 339 Mo 385, 96 SW2d 607, 106 ALR 1169 (saying that a governmental unit as well as an individual may be estopped by failure to speak); New Castle v Withers, 291 Pa 216, 139 A 860, 57 ALR 132; Reuter v Lawe, 94 Wis 300, 68 NW 955.

Annotation: 1 ALR2d 354, 355, 8.

Footnote 11. City R. Co. v Citizens' St. R. Co. 166 US 557, 41 L ed 1114, 17 S Ct 653; Avery v Chicago, 345 Ill 640, 178 NE 351; Oliver v Synhorst, 48 Or 292, 86 P 376.

Annotation: 1 ALR2d 355, 8.

Liability may be imposed upon a governmental agency on the estoppel theory as where justice requires its application to a municipality, acting in a proprietary capacity and not wholly ultra vires, including the situation where a party invoking the doctrine has parted with something of value or incurred a burden in reliance upon the acts or conduct of the municipality or its officers and agents, or when nonapplication of the doctrine would encourage or permit fraud, as where, the contract being intra vires and not prohibited by law, the municipality has accepted benefits thereunder. Board of Education v Calvert (Ky) 321 SW2d 413.

A municipality which, for nearly 30 years, has allowed a water company to divert from a stream an amount of water greatly in excess of the quantity specified in a contract between them and to expend vast sums of money upon the faith of a continuance of the right to take such water, cannot, during the life of the contract, withdraw its consent to a continuance of such taking of the larger quantity. Los Angeles v Los Angeles City Water Co. 177 US 558, 44 L ed 886, 20 S Ct 736.

Footnote 12. Otis Elevator Co. v Chicago, 263 Ill 419, 105 NE 338, holding that the doctrine of equitable estoppel will be applied to a city in a case where the assertion of a public right will encourage or permit a fraud.

Footnote 13. Cuero v Tupper-Texas, Inc. (CA5 Tex) 226 F2d 121; American La France & Foamite Industries v Clifford, 267 Mich 326, 255 NW 596; Farrow v Charleston, 169 SC 373, 168 SE 852, 87 ALR 981; San Angelo v Deutsch, 126 Tex 532, 91 SW2d 308.

Annotation: 1 ALR2d 356, 8.

As a matter of equitable principle, a city may not, after having accepted benefit from an unauthorized act, repudiate it so far as it imposes an obligation upon it or is disadvantageous to it. San Angelo v Deutsch, supra.

A municipal corporation which has power to issue warrants for the construction of a water and light plant and receive the benefit is estopped, after the benefit has accrued, to assert that the warrants were not legally issued. Bank of Commerce v Huddleston, 172 Ark 999, 291 SW 422, 50 ALR 1202.

A bank which, by arrangement with the town treasurer, cashes his check given in payment of town orders and receives from him as collateral the assigned orders so paid, may enforce them against the town although the treasurer had no authority to make the agreement, since, having received the benefit of the agreement, the town will not be permitted to repudiate it so far as its obligations have been liquidated by money furnished by the bank. New Haven v Weston, 87 Vt 7, 86 A 996.

On the other hand, the acceptance of benefits by a municipality under a contract entered into in violation of statute or contrary to public policy cannot be made the basis of liability by estoppel. See Municipal Corporations, Counties, and Other Political Subdivisions (1st ed, Municipal Corporations 522).

Footnote 14. See Municipal Corporations, Counties, and Other Political Subdivisions (1st ed, Municipal Corporations 522, 523).

Footnote 15. Essex v New England Teleg. Co. 239 US 313, 60 L ed 301, 36 S Ct 102; State ex rel. McKittrick v Missouri Utilities Co. 339 Mo 385, 96 SW2d 607, 106 ALR 1169; State ex rel. Shartel v Missouri Utilities Co. 331 Mo 337, 53 SW2d 394, 89 ALR 607 (saying that the doctrine of equitable estoppel, while not generally applicable to municipal corporations in matters pertaining to governmental functions, may be applied in exceptional cases where, upon all the circumstances of the case, right and justice require it); Philadelphia Mortg. & T. Co. v Omaha, 63 Neb 280, 88 NW 523; Dabney v Portland, 124 Or 54, 263 P 386; Meigs's Appeal, 62 Pa 28; San Angelo v Deutsch, 126 Tex 532, 91 SW2d 308 (where the restraint placed upon a muicipality does not interfere with the exercise of governmental powers of the municipality).

Annotation: 1 ALR2d 357, 8.

Footnote 16. San Angelo v Deutsch, supra.

A levee improvement district and a flood control district, acting in their governmental capacities in maintaining and protecting a channel storage area, could not be estopped unless shown to have benefited by the transaction in question. City & County of Dallas Levee Improv. Dist. v Carroll (Tex Civ App) 263 SW2d 307.

[American Jurisprudence 2d, Estoppel and Waiver, 128 Municipal corporations [28 Am Jur 2d ESTOPPEL AND WAIVER] 20 ]


American Jurisprudence 2d, Equity, 154 Federal Government [27A Am Jur 2d EQUITY]

It has often been said that laches cannot be used against the Federal Government 27 or against its officers or agents 28 who assert a government claim. 29 This general principle originally was founded on concerns of public policy and sovereignty. It was deemed important that, while the sovereign was engrossed by the cares and duties of public office, the public should not suffer the negligence of public officers or employees. 30

Nevertheless, it has been said that some United States Supreme Court decisions support the availability of laches in at least some government suits, refusing to shut the door completely to the invoking laches as to such suits. 31 Thus, it is not entirely clear whether the laches defense may be asserted against the Federal Government. 32 While courts have not delineated clear rules as to the applicability of laches to actions by the government, it nevertheless is suggested that laches may be available to abate a government suit in the most egregious instances of laches or if the government seeks, in its suit, to enforce private rights of private parties. On the other hand, laches remains inapplicable to actions where the government asserts sovereign rights, 33 such as where it acts in its sovereign capacity to enforce a public right or protect the public interest, 34 and in actions and situations where the United States has a direct pecuniary interest. 35

It also has been suggested that laches may apply to a government suit if there is no statute of limitation applicable to that suit. 36 On the other hand, concern also is expressed about applying laches to bar a government action where Congress has expressed a limitations period–for laches may frustrate Congress' intentions, particularly if the government has relied upon the expressed limitation period, and thus may invoke separation-of-powers concerns. 37

_____________________

Footnotes

Footnote 27. Costello v United States, 365 US 265, 5 L Ed 2d 551, 81 S Ct 534, 4 FR Serv 2d 758 (not followed on other grounds by Pennconn Enters. v Huntington, 148 Vt 603, 538 A2d 673); Thompson v United States (CA10 Kan) 312 F2d 516, cert den 373 US 912, 10 L Ed 2d 414, 83 S Ct 1303.

Annotation: Laches as defense in suit by governmental entity to enjoin zoning violation, 73 ALR4th 870.

Footnote 28. Thompson v United States (CA10 Kan) 312 F2d 516, cert den 373 US 912, 10 L Ed 2d 414, 83 S Ct 1303.

Footnote 29. United States v Michigan, 190 US 379, 47 L Ed 1103, 23 S Ct 742.

Footnote 30. Martin v Consultants & Admrs. (CA7 Ill) 966 F2d 1078, 15 EBC 1601, reh, en banc, den (CA7 Ill) 1992 US App LEXIS 22070, vacated (CA7) 1992 US App LEXIS 22234, reh den (CA7) 1992 US App LEXIS 23890.

Footnote 31. United States v Administrative Enters. (CA7 Ill) 46 F3d 670, 95-1 USTC 50083, 75 AFTR 2d 95-843.

Footnote 32. JANA, Inc. v United States (CA FC) 936 F2d 1265, 37 CCF 76116, reh den (CA FC) 1991 US App LEXIS 15555 and cert den 502 US 1030, 116 L Ed 2d 775, 112 S Ct 869 and (among conflicting authorities noted in United States v Administrative Enters. (CA7 Ill) 46 F3d 670, 95-1 USTC 50083, 75 AFTR 2d 95-843).

Footnote 33. United States v Administrative Enters. (CA7 Ill) 46 F3d 670, 95-1 USTC 50083, 75 AFTR 2d 95-843 (there is no better illustration of the enforcement of a sovereign right than the government's use of compulsory process to determine a taxpayer's liability for unpaid taxes).

Annotation: Laches or other assertion of untimeliness as defense to action under Title VII of Civil Rights Act of 1964 (42 USCS 2000e et seq.) brought by Equal Employment Opportunity Commission, 67 ALR Fed 381.

Footnote 34. Fein v United States (In re Fein) (CA5 Tex) 22 F3d 631, CCH Bankr L Rptr 75960, 73 AFTR 2d 94-2287, 94 TNT 122-16, related proceeding TC Memo 1994-370, RIA TC Memo 94370, 68 CCH TCM 322, 94 TNT 153-20 (laches could not be asserted against the government's assertion of tax liability); Gropp v District of Columbia Bd. of Dentistry (Dist Col App) 606 A2d 1010 (since laches does not apply to a government agency acting to protect a public interest, it did not bar District of Columbia Board of Dentistry's administrative actions against a dentist to revoke and bar reinstatement of his license, based on his filing of false statements for services not provided).

Footnote 35. Thompson v United States (CA10 Kan) 312 F2d 516, cert den 373 US 912, 10 L Ed 2d 414, 83 S Ct 1303.

The United States is not subject to the defense of laches in enforcing its rights, and the majority of courts follow this rule when dealing with the Federal Deposit Insurance Corporation in its corporate capacity. FDIC v Hulsey (CA10 Okla) 22 F3d 1472, 23 UCCRS2d 596; FDIC v Baker (CD Cal) 739 F Supp 1401 (laches cannot be asserted against a suit brought by the Federal Deposit Insurance Corporation in its capacity as Managing Agent for the Resolution Trust Corporation).

Footnote 36. United States v Administrative Enters. (CA7 Ill) 46 F3d 670, 95-1 USTC 50083, 75 AFTR 2d 95-843 (declining to rule as to applicability of laches to government, although no statute of limitations governed petition to enforce summons, because no prejudice was shown to invoke laches).

Footnote 37. 196.

[American Jurisprudence 2d, Equity, 154 Federal Government [27A Am Jur 2d EQUITY]]


Heckler v. Community Health Services, 467 U.S. 51 (1984)

Estoppel is an equitable doctrine invoked to avoid injustice in particular cases. While a hallmark of the doctrine is its flexible application, certain principles are tolerably clear:

"If one person makes a definite misrepresentation of fact to another person having reason to believe that the other will rely upon it and the other in reasonable reliance upon it does an act . . . the first person is not entitled

. . . . .

"(b) to regain property or its value that the other acquired by the act, if the other in reliance upon the misrepresentation and before discovery of the truth has so changed his position that it would be unjust to deprive him of that which he thus acquired." Restatement (Second) of Torts 894(1) (1979). 8  

Thus, the party claiming the estoppel must have relied on its adversary's conduct "in such a manner as to change his position for the worse," 9 and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary's conduct was misleading. 10 See Wilber National Bank v. United States, 294 U.S. 120, 124 -125 (1935). [467 U.S. 51, 60]  

When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined. It is for this reason that it is well settled that the Government may not be estopped on the same terms as any other litigant. 11 Petitioner urges us to expand this principle into a flat rule that estoppel may not in any circumstances run against the Government. We have left the issue open in the past, 12 and do so again today. Though the arguments the Government advances for the rule are substantial, we are hesitant, when it is unnecessary to decide this case, to say that there are no cases in which the public interest in ensuring that the Government can enforce the law free from [467 U.S. 51, 61]   estoppel might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government. 13 But however heavy the burden might be when an estoppel is asserted against the Government, the private party surely cannot prevail without at least demonstrating that the traditional elements of an estoppel are present. We are unpersuaded that that has been done in this case with respect to either respondent's change in position or its reliance on Travelers' advice.

[. . .]

I entirely agree with the Court that there was no estoppel in favor of respondent by reason of the Government's conduct in this case, because even a private party under like circumstances would not have been estopped. I write separately because I think the Court's treatment of our decided cases in this area gives an inaccurate and misleading impression of what those cases have had to say as to the circumstances, if any, under which the Government may be estopped to enforce the laws.

Sixty-seven years ago, in Utah Power & Light Co. v. United States, 243 U.S. 389 (1917), private parties argued that they had acquired rights in federal lands, contrary to the law, because Government employees had acquiesced in their exercise of those rights. In that case the Court laid down the general principle governing claims of estoppel on behalf of private individuals against the Government: [467 U.S. 51, 67]  

"As a general rule, laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest. [Citations omitted.] And, if it be assumed that the rule is subject to exceptions, we find nothing in the cases in hand which fairly can be said to take them out of it as heretofore understood and applied in this court. A suit by the United States to enforce and maintain its policy respecting lands which it holds in trust for all the people stands upon a different plane in this and some other respects from the ordinary private suit to regain the title to real property or to remove a cloud from it. [Citation omitted.]" Id., at 409.

Since then we have applied that principle in a case where a private party relied on the misrepresentation of a Government agency as to the coverage of a crop insurance policy, a misrepresentation which the Court agreed would have estopped a private insurance carrier. Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 383 -386 (1947). We have applied it in a case where a private party relied on a misrepresentation by a Government employee as to Social Security eligibility, a misrepresentation which resulted in the applicant's losing 12 months of Social Security benefits. Schweiker v. Hansen, 450 U.S. 785 (1981) (per curiam). And we have applied it on at least three occasions to claims of estoppel in connection with the enforcement of the immigration laws and the denial of citizenship because of the conduct of immigration officials. INS v. Miranda, 459 U.S. 14 (1982) (per curiam); INS v. Hibi, 414 U.S. 5 (1973) (per curiam); Montana v. Kennedy, 366 U.S. 308, 314 -315 (1961). In none of these cases have we ever held the Government to be estopped by the representations or conduct of its agents. In INS v. Hibi, supra, at 8, we noted that it is still an open question whether, in some future case, "affirmative misconduct" on the part of the Government might be grounds for an estoppel. See Montana v. Kennedy, supra, at 314-315. [467 U.S. 51, 68]  

I agree with the Court that there is no need to decide in this case whether there are circumstances under which the Government may be estopped, but I think that the Court's treatment of that question, ante, at 60-61, gives an impression of hospitality towards claims of estoppel against the Government which our decided cases simply do not warrant. In footnote 12, ante, at 60, the Court intimates that two of our decisions have allowed the Government to be estopped: United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655 (1973), and Moser v. United States, 341 U.S. 41 (1951). But these cases are not traditional equitable estoppel cases. Pennsylvania Industrial Chemical Corp. was a criminal prosecution, and we held that "to the extent that [Government regulations] deprived [the defendant] of fair warning as to what conduct the Government intended to make criminal, we think there can be no doubt that traditional notions of fairness inherent in our system of criminal justice prevent the Government from proceeding with the prosecution." 411 U.S., at 674 . And the Court's rather cryptic opinion in Moser, holding that an alien who declined to serve in the Armed Forces was not barred from United States citizenship pursuant to a federal statute, expressly rejected any doctrine of estoppel, and rested on the absence of a knowing and intentional waiver of the right to citizenship. 341 U.S., at 47 .

We do not write on a clean slate in this field, and our cases have left open the possibility of estoppel against the Government only in a rather narrow possible range of circumstances. Because I think the Court's opinion, in its efforts to phrase new statements of the circumstances under which the Government may be estopped, casts doubt on these decided cases, I concur only in the judgment. [467 U.S. 51, 69]  

[Heckler v. Community Health Services, 467 U.S. 51 (1984)]


Utah Power and Light v. United States, 243 U.S. 389 (1917)

In their answers some of the defendants assert that when the forest reservations were created an understanding and agreement was had between the defendants, or their predecessors, and some unmentioned officers or agents of the United States, to the effect that the reservations would not be an obstacle to the construction or operation of the works in question; that all rights essential thereto would be allowed and granted under the act of 1905; that, consistently with this understanding and agreement, and relying thereon, the defendants, or their predecessors, completed the works and proceeded with the generation and distribution of electric energy, and that, in consequence, the United States is estopped to question the right of the defendants to maintain and operate the works. Of this [243 U.S. 389, 409]   it is enough to say that the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit. Lee v. Munroe, 7 Cranch, 366, 3 L. ed. 373; Filor v. United States, 9 Wall. 45, 49, 19 L. ed. 549, 551; Hart v. United States, 95 U.S. 316 , 24 L. ed. 479; Pine River Logging Co. v. United States, 186 U.S. 279, 291 , 46 S. L. ed. 1164, 1170, 22 Sup. Ct. Rep. 920.

As presenting another ground of estoppel it is said that the agents in the forestry service and other officers and employees of the government, with knowledge of what the defendants were doing, not only did not object thereto, but impliedly acquiesced therein until after the works were completed and put in operation. This ground also must fail. As a general rule, laches or neglect of duty on the part of officers of the government is no defense to a suit by it to enforce a public right or protect a public interest. United States v. Kirkpatrick, 9 Wheat. 720, 735, 6 L. ed. 199, 203; Steele v. United States, 113 U.S. 128, 134 , 28 S. L. ed. 952, 954, 5 Sup. Ct. Rep. 396; United States v. Beebe, 127 U.S. 338, 334 , 32 S. L. ed. 121, 124, 8 Sup. Ct. Rep. 1083; United States v. Insley, 130 U.S. 263, 265 , 266 S., 32 L. ed. 968, 969, 9 Sup. Ct. Rep. 485; United States v. Dalles Military Road Co. 140 U.S. 599, 632 , 35 S. L. ed. 560, 571, 11 Sup. Ct. Rep. 988; United States v. Michigan, 190 U.S. 379, 405 , 47 S. L. ed. 1103, 1112, 23 Sup. Ct. Rep. 742; State ex rel. Lott v. Brewer, 64 Ala. 287, 298; People v. Brown, 67 Ill. 435, 438; Den ex dem. Candler v. Lunsford, 20 N. C. 542 (4 Dev. & B. L. 407); Humphrey v. Reg. 2 Can. Exch. 386, 390; Reg. v. Black, 6 Can. Exch. 236, 253. And, if it be assumed that the rule is subject to exceptions, we find nothing in the cases in hand which fairly can be said to take them out of it, as heretofore understood and applied in this court. A suit by the United States to enforce and maintain its policy respecting lands which it holds in trust for all the people stands upon a different plane in this and some other respects from the ordinary private suit to regain the title to real property or to remove a cloud from it. Causey v. United States, 240 U.S. 399, 402 , 60 S. L. ed. 711, 713, 36 Sup. Ct. Rep. 365.

[Utah Power and Light v. United States, 243 U.S. 389 (1917)]


United States v. California, 332 U.S. 19 (1947)

Fourth. Nor can we agree with California that the federal Government's paramount rights have been lost by reason of the conduct of its agents. The state sets up such a defense, arguing that by this conduct the Government is barred from enforcing its rights by reason of principles similar to laches, estoppel or adverse possession. It would serve no useful purpose to recite the incidents in detail upon which the state relies for these defenses. Some of them are undoubtedly consistent with a a belief on the part of some Government agents at the time that California owned all, or at least a part of the three-mile belt. This belief was indicated in the substantial number of instances in which the Government acquired title from the states to lands located in the belt; some decisions of the Department of Interior have denied applications for federal oil and gas leases in the California coastal belt on the ground that California owned the lands. Outside of court decisions following the Pollard rule, the foregoing are the types of conduct most nearly indicative of waiver upon which the state relies to show that the Government has lost its paramount rights in the belt. Assuming that Government agents could by conduct, short of a congressional surrender of title or interest, preclude the Government from asserting its legal rights, we cannot say it has done so here. As a matter of fact, the record plainly demonstrates that until the California oil issue began to be pressed in the thirties, neither the states nor the Government had reason to focus attention on the question of which of them owned or had paramount rights in or power over the three-mile belt. And even assuming that Government agencies have been negligent in failing to recognize or assert the claims of the Government at an earlier date, the great interests of the Government in this ocean [332 U.S. 19 , 40]   area are not to be forfeited as a result. The Government, which holds its interests here as elsewhere in trust for all the people, is not to be deprived of those interests by the ordinary court rules designed particularly for private disputes over individually owned pieces of property; and officers who have no authority at all to dispose of Government property cannot by their conduct cause the Government to lose its valuable rights by their acquiescence, laches, or failure to act. 22  

[United States v. California, 332 U.S. 19 (1947)]


Carmine v. Bowen, 64 A. 932

"Silence is a species of conduct, and constitutes an implied representation of the existence of facts in question.  When silence is of such character and under such circumstances that it would become a fraud, it will operate as an Estoppel."

[Carmine v. Bowen, 64 A. 932]