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]
The doctrine of equitable estoppel is available if the following elements are present:
(1) The party to be estopped must know the facts;
(2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended;
(3) the latter must be ignorant of the true facts; and
(4) he must rely on the former's conduct to his injury.
United States v. Georgia-Pacific, 421 F.2d 92, 96 (9th Cir. 1970) (citations omitted).
In addition, to invoke estoppel against the Government, the party claiming estoppel must show "affirmative misconduct" as opposed to mere failure to inform or assist. Cf. Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973).[6]
1383*1383 The district court found that although Lavin was induced to join the Reserve by recruiters' representations, such conduct did "not rise to the level necessary to invoke estoppel against the Government."
As a starting point of our analysis we note that the Government is not an ordinary defendant. This court has cautioned restraint in the application of estoppel against the Government:
We recognize the force of the proposition that estoppel should be applied against the Government with utmost caution and restraint, for it is not a happy occasion when the Government's hands, performing duties in behalf of the public, are tied by the acts and conduct of particular officials in their relations with particular individuals.... Indeed the tendency against Government estoppel is particularly strong where the official's conduct involves questions of essentially legislative significance, as where he conveys a false impression of the laws of the country. Obviously, Congress's legislative authority should not be readily subordinated to the action of a wayward or unknowledgeable administrative official.
Schuster v. Commissioner, 312 F.2d 311, 317 (9th Cir. 1962).
Persons dealing with the government are charged with knowing government statutes and regulations, and they assume the risk that government agents may exceed their authority and provide misinformation. See Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 3-4, 92 L.Ed. 10 (1947). The pension rules applicable to Lavin may appear irrational, but they were congressionally mandated and they were clearly in effect at the time of Lavin's appointment. Unfortunately, Lavin chose trust over caution and he never attempted to confirm his eligibility.
[Lavan v. Marsh, 644 F.2d. 1378 (1981); SOURCE: https://scholar.google.com/scholar_case?case=2031119461250869039]
Moody v. United States, 783 F.2d 1244, 1246 (5th Cir. 1986)
“Traditionally, equitable estoppel did not lie against the government. See generally, Comment, Equitable Estoppel of the Government, 79 Colum.L. Rev. 551 (1979). In more recent times, the courts have applied the doctrine to the federal government in certain narrow circumstances. See Azar v. United States Postal Service, 777 F.2d 1265 (7th Cir. 1985); Portmann v. United States, 674 F.2d 1155 (7th Cir. 1982); TRW, Inc. v. F.T.C., 647 F.2d 942 (9th Cir. 1981). One who seeks to invoke equitable estoppel against the United States must, at a minimum, establish the four traditional private law elements of the doctrine: (1) that the party to be estopped was aware of the facts; (2) that the party to be estopped intended his act or omission to be acted upon; (3) that the party asserting estoppel did not have knowledge of the facts; and (4) that the party asserting estoppel reasonably relied on the conduct of the other to his substantial injury. See, e.g., Portmann; III Pomeroy, Equity Jurisdiction, § 805 (5th ed. 1941). ”
[Moody v. United States, 783 F.2d 1244, 1246 (5th Cir. 1986)]
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]]
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.
[. . .]
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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)]
|
"That the principles of right and justice upon which the doctrine of estoppel in pais rests are applicable to municipal corporations is recognized by text writers and in well considered cases. In 1 Dillon on Municipal Corporations (4th ed.), in a note to § 417, that learned author says:
'Any positive acts (infra vires) by municipal officers which may have induced the action of the adverse party and where it would be inequitable to permit the corporation to stultify itself by retracting what its officers had done will work an estoppel.'"
[Beadles v. Smyser, 209 U.S. 393 (1908)]
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)]
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]
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