MANIFEST INJUSTICE

"To hold the plaintiff in this case to such a showing would be manifestly unfair:

[I]t cannot be stated with certainty that all of this would have changed the result of the case. But, as said by the Supreme Court, a litigant who has engaged in misconduct is not entitled to "the benefit of calculation, which can be little better than speculation, as to the extent of the wrong inflicted upon his opponent". Minneapolis, St. Paul S.S. Marie Ry. Co. v. Moquin, 1931, 283 U.S. 520"

"Our application of collateral estoppel principles does not end the analysis, either. We must still decide whether a manifest injustice exception exists in the context of collateral estoppel, and if it does, whether manifest injustice would prohibit application of that doctrine."

...

Federal courts and other state courts, however, have held that the collateral estoppel doctrine does contain such a manifest injustice exception. See, e.g., Comm'r of Internal Revenue v. Sunnen, 333 U.S. 591, 599 (1948); Thompson v. Schweiker, 665 F.2d 936, 940 (9th Cir. 1982); Tipler v. E.I. duPont deNemours Co., 443 F.2d 125, 128 (6th Cir. 1971); Dowling v. Finley Assocs., Inc., 727 A.2d 1245, 1249 n. 5 (Conn. 1999); Kansas Pub. Employees Ret. Sys. v. Reimer Koger Assocs., Inc., 941 P.2d 1321, 1333 (Kan. 1997); State v. Harrison, 148 Wn.2d 550, 61 P.3d 1104, 1109 (Wash. 2003). We agree. We hold that collateral estoppel will not be invoked to bar relief where its application would result in a manifest injustice.

"In this case, neither Harrison I nor II decided the merits of the exceptional sentence. Accordingly, the concerns addressed by the doctrine simply are not present in Harrison's case. Additionally, to apply the "law of the case" doctrine here to require the second sentencing court to impose an exceptional sentence results in manifest injustice. Folsom v. County of Spokane, 111 Wn.2d 256, 264, 759 P.2d 1196 (1988) (citing Greene v. Rothschild, 68 Wn.2d 1, 10, 402 P.2d 356, 414 P.2d 1013 (1965)).

To deny Harrison his rightful remedy would not serve the ends of justice."

Our case law equates manifest injustice with the plain error standard of review. United States v. McClendon, 195 F.3d 598, 603 (11th Cir. 1999) (per curiam). To demonstrate manifest injustice, a petitioner must demonstrate

(1) that there was error;
(2) that was plain;
(3) that affected his substantial rights; and
(4) that affected the fundamental fairness of the proceedings.

Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

Neither collateral estoppel nor res judicata is rigidly applied. Both rules are qualified or rejected when their application would contravene an overriding public policy or result in manifest injustice. Title v. Immigration and Naturalization Service, 322 F.2d 21 (9th Cir. 1953); Matias Rivera v. Gardner, 286 F. Supp. 305 (D.P.R. 1968); Old Dutch Farms, Inc. v. Milk Drivers Dairy Employees Local Union No. 584, 281 F. Supp. 971 (E.D.N.Y. 1968); 1B Moore's Federal Practice ¶ 0.405[12], at 791; 2 K. Davis, Administrative Law Treatise § 18.02, at 548 (1958).