MOTION TO VACATE DENIED:  June 5, 2008 
CBCA 105-R 
HEDLUND CONSTRUCTION, INC., 
Appellant, 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Jon E. Cushman of Cushman Law Offices, P.S., Olympia, WA, counsel for 
Appellant. 
Mary E. Sajna, Office of the General Counsel, Department of Agriculture, Portland, 
OR, counsel for Respondent. 
Before Board Judges GOODMAN , McCANN, and DRUMMOND. 
McCANN, Board Judge. 
The parties have jointly moved to vacate the Board’s decision pursuant to a settlement 
agreement.  We deny the motion. 
Background 
On February 19, 2008, the Board issued its decision in this case.  That decision held 
that Hedlund was entitled to $377,979.24 out of its claimed $466,825.58. On May 12, 2008, 
the parties filed a joint request for amended decision, withdrawal of Equal Access to Justice 
Act (EAJA) fee application, and stipulation for the entry of judgment. In that request the 
parties asked that the Board replace the decision in its entirety with the an amended decision. 
The amended decision indicated that appellant was to recover $399,999 from the 
Government as full and final payment.  Presumably, this payment included attorney fees. 

 
 
 
 
 
  
   
     
 
 
  
           
  
   
   
 
    
    
     
 
 
2 CBCA 105-R 
On May 19, 2008, respondent filed its supplemental memorandum in support of the 
joint request for amended decision.  In this memorandum respondent asserts that the decision 
is both problematic for respondent and incorrect in a number of ways.  In its response dated 
May 20, 2008, appellant indicated simply that it did not agree with respondent’s 
memorandum, and that its only interest in this matter was to bring the case to a rapid 
conclusion and to receive the settlement amount agreed upon by the parties. 
Discussion 
From a review of respondent’s supplemental memorandum, it would appear that 
respondent is arguing more for reconsideration or amendment of the decision than for a 
vacatur.  Pursuant to Board Rule 26, parties have only thirty days after the decision to file 
a motion for reconsideration or a motion to amend the decision.  That time is long since past. 
We do not consider the motion one for reconsideration or for amendment of the decision. 
We do, however, consider the motion as one for vacatur. Even so, neither party has 
briefed the reasons why vacatur would be appropriate under the circumstances of this case. 
Although no specific rule of the Board covers vacatur, it is clear that there is precedent for 
vacatur at the Board under the appropriate circumstances.  Federal Data Corp. v. SMS Data 
Products Group, Inc., 819 F.2d 277 (Fed. Cir. 1987). 
The issue then is whether the circumstances of this case support vacatur.  It seems 
clear that in this case respondent wants the decision vacated because it wishes to expunge 
the precedential effect the decision may have. On the other hand, appellant only wants 
vacatur to end the litigation by settlement without further appeal, thus expediting payment 
of the money to which it is entitled.  Presumably, both parties would like to forgo the cost 
and time involved in an appeal. We do not know whether the Department of Agriculture or 
the Department of Justice would agree to proceed with an appeal. 
 In U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994), 
the Supreme Court expressed its view on vacatur of decisions through settlement.  It stated: 
Where mootness results from settlement, however, the losing party has 
voluntarily forfeited his legal remedy by the ordinary processes of appeal or 
certiorari, thereby surrendering his claim to the equitable remedy of vacatur. 
The judgment is not unreviewable, but simply unreviewed by his own choice. 
The denial of vacatur is merely one application of the principle that “[a] 
suitor’s conduct in relation to the matter at hand may disentitle him to the 
relief he seeks.” [Citations omitted.] 

  
 
 
  
 
  
 
     
  
 
   
            
   
  
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3 CBCA 105-R 
The Supreme Court in Bancorp  further explained why vacatur is disfavored.  It 
opined that Congress set forth the primary route of appeal through which parties may seek 
relief, and that vacatur after decision would allow for a collateral attack upon the orderly 
operation of the judicial system.  513 U.S. at 27.  The Court indicated that it had granted 
relief in the form of vacatur when orderly procedure could not be honored.  Id.  (citing 
United States v. Munsingwear, 340 U.S. 36, 41 (1950)). Conversely, the Court felt that “the 
public interest requires those demands [of orderly procedure] to be honored when they can.” 
Id. 
In further discussing the appropriateness of vacatur, the Court indicated:   
[M]ootness by reason of settlement does not justify vacatur of a judgment 
under review.  This is not to say that vacatur can never be granted when 
mootness is produced in that fashion. As we have described, the 
determination is an equitable one, and exceptional circumstances may 
conceivably counsel in favor of such a course.  It should be clear from our 
discussion, however, that those exceptional circumstances do not include the 
mere fact that the settlement agreement provides for vacatur -- which neither 
diminishes the voluntariness of the abandonment of review nor alters any of 
the policy considerations we have discussed. 
513 U.S. at 29. 
In this case, respondent was the losing party and is voluntarily forfeiting its legal 
remedy of appeal.  Accordingly, its conduct disentitles it to the vacatur it seeks. Appellant, 
on the other hand, is not really seeking vacatur; it only wants to be paid its money as soon 
as possible. Vacatur in these circumstances is an unacceptable collateral attack on orderly 
procedure without good reason.  Further, the record in this case fails to reveal the existence 
of any “exceptional circumstances” sufficient to support vacatur.  
Decision 
The motion is DENIED. 
R. ANTHONY McCANN 
Board Judge 

4 CBCA 105-R 
We concur: 
_________________________________ ______________________________ 
ALLAN H. GOODMAN JEROME M. DRUMMOND 
Board Judge Board Judge