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January 15, 1993

MARY CZAJKOWSKI, for herself and for next of kin RUBEN GARZA, JR., her son, Plaintiffs,
CITY OF CHICAGO, ILLINOIS, et al., Defendants.

The opinion of the court was delivered by: WILLIAM T. HART

 Defendants City of Chicago (the "City"), Leroy Martin, and David Fogel move for reconsideration of certain aspects of this court's December 3, 1992 ruling ("December Ruling") on cross motions for summary judgment. Familiarity with the December Ruling is assumed.

 The City seeks reconsideration of the holding that, as a result of the position it took in Ruben Garza's Police Board proceeding, it is judicially estopped from denying that Ruben Garza scratched plaintiff Mary Czajkowski's chest. See December Ruling § III(B). In moving for reconsideration, the City presses in greater detail its argument that policy reasons go against applying judicial estoppel to positions taken by the City when seeking to discipline police officers before the Police Board.

 The City again argues that permitting the application of judicial estoppel in this situation is a disincentive for the City to seek to discipline police officers. It adds little weight to that argument to point out that a policy against discouraging remedial actions (in this case disciplinary actions) also is contained in Fed. R. Evid. 407. The December Ruling did not ignore that the City has an interest in disciplining its officers and that it should not be unduly discouraged from pursuing that interest. It was held, however, that the City still has sufficient other incentives for seeking to discipline police officers such that application of judicial estoppel principles to Police Board proceedings should not result in the City being disinclined to pursue disciplinary actions. *fn1" December Ruling at 14-15. The City now makes additional arguments as well.

 The City contends that a necessary element of judicial estoppel is that the party against whom estoppel is applied have received a benefit from the position taken in the prior proceeding. Illinois law is cited for this proposition. See, e.g., Department of Transportation v. Grawe, 113 Ill. App. 3d 336, 447 N.E.2d 467, 471, 69 Ill. Dec. 250 (4th Dist. 1983) (one of five elements for applying judicial estoppel is that "the party taking the positions must have been successful in maintaining the first position and must have received some benefit thereby in the first proceeding"). As previously held, however, federal law of judicial estoppel applies to this case. December Ruling at 11.

 The Seventh Circuit has held that the doctrine of judicial estoppel is not "reducible to a pat formula," but does have "certain boundaries." Levinson v. United States, 969 F.2d 260, 265 (7th Cir.), cert. denied, 121 L. Ed. 2d 441, 113 S. Ct. 505 (1992). Those "boundaries" do not include a requirement that the party receive benefits from prevailing in the prior litigation; it is only necessary that the party prevail on the position in the litigation itself. *fn2" See id.; Allison v. Bayfield Electric Cooperative, 1993 U.S. App. LEXIS 1085, 1992 WL 329037 *4 (7th Cir. Nov. 12, 1992); Witham v. Whiting Corp., 975 F.2d 1342, 1344 (7th Cir. 1992); Astor Chauffeured Limousine Co. v. Runnfeldt Investment Corp., 910 F.2d 1540, 1547 (7th Cir. 1990); In re Cassidy, 892 F.2d 637, 641 (7th Cir.), cert. denied, 498 U.S. 812, 112 L. Ed. 2d 24, 111 S. Ct. 48 (1990). See also Wang Laboratories, Inc. v. Applied Computer Sciences, Inc., 958 F.2d 355, 358 (Fed. Cir. 1992) (litigation benefits). It is not even necessary that the party prevail in the litigation as a whole, only that it prevail on the issue for which preclusion is sought. Cassidy, 892 F.2d at 641. The City prevailed on the scratched chest issue in the Police Board proceeding so the requirement of prevailing on the issue in the prior proceeding is satisfied. Contrary to the City's contention, there is no requirement that it also benefit monetarily. *fn3"

 The City argues that the court should be reluctant to apply judicial estoppel against a government body. It is certainly true that courts should be especially reluctant to apply equitable estoppel based on statements or conduct of government employees. See Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 60, 81 L. Ed. 2d 42, 104 S. Ct. 2218 (1984). Government bodies, however, are not necessarily treated differently when applying collateral estoppel to preclude the government body from disputing fact determinations made against the government body in prior litigation. *fn4" See Adkins v. Commissioner, 875 F.2d 137, 141 (7th Cir. 1989). Cf. United States v. Bailin, 977 F.2d 270 (7th Cir. 1992) (applying direct estoppel based on partial verdict in criminal case). See, e.g., Levinson, 969 F.2d at 264 (applying standard collateral estoppel factors when collateral estoppel is invoked against the government). In two Seventh Circuit cases involving the invocation of judicial estoppel against the federal government, the Seventh Circuit gave no indication that a different standard applies when a government body is involved. See Levinson, 969 F.2d at 264-65; Eagle Foundation, Inc. v. Dole, 813 F.2d 798, 810 (7th Cir. 1987). In both of those cases, however, other grounds existed for denying the application of judicial estoppel. *fn5" Other jurisdictions, though, have applied judicial estoppel against government bodies. See, e.g., Northern Alaska Environmental Center v. Lujan, 961 F.2d 886, 891 (9th Cir. 1992); Russell v. Rolfs, 893 F.2d 1033, 1038 (9th Cir. 1990), cert. denied, 115 L. Ed. 2d 1078, 111 S. Ct. 2915 (1991); Reynolds v. Commissioner, 861 F.2d 469, 474 (6th Cir. 1988); People v. Wisbrock, 223 Ill. App. 3d 173, 584 N.E.2d 513, 515, 165 Ill. Dec. 334 (3d Dist. 1991), appeal denied, 144 Ill. 2d 642, 591 N.E.2d 30 (1992).

 Judicial estoppel is a flexible standard not reducible to a pat formula. See Levinson, 969 F.2d at 264; Cassidy, 892 F.2d at 642; C.A. Wright, A. Miller, & E. Cooper Federal Practice & Procedure § 4477 at 779 (1981). Judicial estoppel is closer to collateral estoppel than equitable estoppel, but is still different from both equitable estoppel and collateral estoppel. See Wright, Miller, & Cooper, § 4477 at 779-80, 787. The flexible standard for judicial estoppel permits the consideration of all the circumstances involved, which would include that a party is a governmental body and the particular circumstances of being such a party. See Cassidy, 892 F.2d at 642 (judicial estoppel not applied if it works an injustice); Maddox v. Bradley, 345 F. Supp. 1255, 1258 (N.D. Tex. 1972) (judicial estoppel can apply against government as long as not against public policy and not based on a government employee acting beyond his or her authority); Wright, Miller, & Cooper, § 4477 at 779 ("The concern is to avoid unfair results and unseemliness. This concern is informed by all the traditional common law views of fair dealing that might be expected."). The December Ruling took into consideration that the prior proceeding was a disciplinary proceeding of a governmental entity, but did not find sufficient policy grounds to forego applying judicial estoppel.

 The City argues that judicial estoppel against a municipality should be limited to situations involving affirmative misconduct. The City relies on City of Alma v. United States, 744 F. Supp. 1546, 1555-56 (S.D. Ga. 1990). *fn6" That case adopts for judicial estoppel the affirmative misconduct standard that applies to equitable estoppel claims (or defenses) against the federal government. *fn7" As previously indicated, however, judicial estoppel is closer to collateral estoppel than equitable estoppel and collateral estoppel does not require a showing of any misconduct. This court will not apply the equitable estoppel affirmative misconduct standard to judicial estoppel claims against a governmental body. See Reynolds, 861 F.2d at 474.

 The City contends that applying judicial estoppel will make it both the accuser and the defender of a police officer. "Garza was responsible for his own defense at his criminal trial. He was likewise responsible for his defense before the Police Board. The Police Department was not responsible for developing Garza's defenses to disciplinary charges. By applying judicial estoppel to the City for positions taken in a disciplinary action against police officers, this Court is requiring the Department act as both accuser and advocate on behalf of an officer it seeks to discipline." City's Brief in Support of Reconsideration at 4. This argument is specious for two reasons. First, it is true of most applications of judicial estoppel that the party is now taking the position of its opponent in the prior litigation; otherwise the requirement of having taken contradictory positions would not be satisfied. *fn8" If the argument presently made by the City is held to be valid, it would virtually never be appropriate to apply judicial estoppel. Second, the City's dual roles exist independent of any application of judicial estoppel. The City was an accuser of Garza in the disciplinary proceedings. As a result of plaintiffs' filing of the present lawsuit, not as the result of the invocation of judicial estoppel, the City is put in the position of defending the actions of Garza that plaintiffs allege the City is responsible for.

 Last, in a footnote the City points to the undisputed facts that the hearing before the Police Board was based on a paper record presented to the Board by a hearing officer following an investigation and that the Board did not exercise its discretion to order an evidentiary hearing. The City only contends that the "purported judicial proceeding" that occurred before the Police Board "is not analogous to other judicial estoppel cases." This argument is not developed and the City does not expressly contend that the Police Board proceeding does not qualify as a quasi-judicial administrative proceeding.

 The Seventh Circuit has held that an "an agency acts in a judicial capacity when it provides the following safeguards: (1) representation by counsel, (2) pretrial discovery, (3) the opportunity to present memoranda of law, (4) examination and cross-examinations at the hearing, (5) the opportunity to introduce exhibits, (6) the chance to object to evidence at the hearing, and (7) final findings of fact and conclusions of law." Reed v. Amax Coal Co., 971 F.2d 1295, 1300 (7th Cir. 1992). *fn9" The rules of the Chicago Police Board provide for all those procedures when an officer is suspended for more than 30 days in one year or discharged. Police Board Rules of Procedure, §§ I-III. When an officer is suspended for 6 to 30 days, a hearing officer initially considers the written submissions of the officer and the Superintendent. Id. § IV. That includes examination of the OPS investigative file. See id. §§ IV(B)(4)-(5). In Garza's case, the paper record included statements of Hrebenak, Garza Jr., and Garza's supervisor, and the criminal court record, as well as Garza's request for review and the Superintendent's response. See id. § IV(B)(3). The Police Board has the discretion to grant a full hearing if it determines that the written presentations warrant such a hearing. *fn10" Id. § IV(B)(6). Also, Police Board procedures on 30-day suspensions must comport with the requirements of due process. Golbeck v. City of Chicago, 782 F. Supp. 381, 384-86 (N.D. Ill. 1992); Kropel v. Conlisk, 60 Ill. 2d 17, 322 N.E.2d 793 (1975).

 The City does not dispute that due process protections were provided and that both Garza and the superintendent were permitted to present their views to the Board. The Police Board was provided with statements of Garza and Hrebenak supporting that Garza did not scratch Czajkowski and a statement from Garza Jr. that he did. Also, the transcripts of Garza's criminal trial were included in the Police Board record.

  There is no requirement that judicial estoppel be limited to proceedings where live evidentiary hearings are held. Cf. EZ Loader Boat Trailers, Inc. v. Cox Trailers, Inc., 746 F.2d 375, 378 (7th Cir. 1984) (collateral estoppel based on Trademark Board determination without the benefit of live testimony). Many court proceedings are resolved on the papers on motions to dismiss, motions for summary judgment, or other motions. Stipulations or settlements can also provide a basis for applying judicial estoppel. Cf. Reynolds, 861 F.2d at 473-74. Most administrative proceedings, while providing due process protections, do not follow the same procedures as do courts. Nevertheless, judicial estoppel can be based on administrative proceedings, see December Ruling at 12-13, including tariff proceedings resolved on a paper record, see Zapata Gulf Marine Corp. v. Puerto Rico Maritime Shipping Authority, 731 F. Supp. 747, 750 (E.D. La. 1990), and disability benefit proceedings that are nonadversarial administrative proceedings, see Brown v. National R.R. Passenger Corp., 1990 WL 119558 *5-6 (N.D. Ill. Aug. 14, 1990); Muellner v. Mars, Inc., 714 F. Supp. 351, 357-58 (N.D. Ill. 1989). Also, it is only necessary that the opportunity for full litigation be available; it is not required that a party exercise that opportunity. Cf. Reed, 971 F.2d at 1300 (collateral estoppel); Buckhalter v. Pepsi-Cola General Bottlers, Inc., 820 F.2d 892, 896-97 (7th Cir. 1987) (same). Garza had the opportunity to request an evidentiary hearing and to appeal to the Illinois Circuit Court. The procedures available before the Police Board and employed in this case did not prevent Garza or the Board from having a fair opportunity to ...

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