JOINT MOTION TO VACATE DENIED:  September 9, 2009 
CBCA 1305 
LIBBEY PHYSICAL MEDICINE CENTER AND HOT
 
SPRINGS HEALTH SPA,
 
Appellant, 
v. 
DEPARTMENT OF THE INTERIOR, 
Respondent. 
Charles A. Banks and Robert W. Francis of Banks Law Firm, PLLC, Little Rock, 
AR, counsel for Appellant. 
Charles B. Wallace, Office of the Solicitor, Department of the Interior, Washington, 
DC, counsel for Respondent. 
Before Board Judges VERGILIO, DRUMMOND, and WALTERS. 
WALTERS, Board Judge. 
Appellant, Libbey Physical Medicine Center and Hot Springs Health Spa (Libbey), 
and respondent, the Department of the Interior (DOI), jointly have moved to vacate an 
earlier Board ruling and to dismiss the appeal with prejudice.  The joint motion is 
accompanied by a stipulation for conditional compromise settlement and release, which 
expressly conditions settlement and the requested dismissal on this Board’s vacating its 
February 26, 2009, ruling, which denied DOI’s motion to dismiss the appeal for lack of 
subject matter jurisdiction under the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 
(2006) (CDA).   The Board denies the present joint motion to vacate. 

      
      
  
  
       
   
   
  
 
  
  
 
 
   
  
2 CBCA 1305 
Discussion 
The background relating to the instant appeal is fully set out in our earlier decision 
on DOI’s motion to dismiss. Libbey Physical Medicine Center and Hot Springs Health Spa 
v. Department of the Interior, CBCA 1305, 09-1 BCA ¶ 34,080. 
In their joint motion, the parties predicate their request for dismissal on the Board’s 
vacatur of its decision on jurisdiction.  Because the earlier ruling, an interlocutory decision, 
is not immediately appealable to the Federal Circuit, they argue, they will be forced first to 
litigate the instant appeal, unless the Board accedes to their request to vacate the decision. 
They rely heavily on a 1987 decision of the Court of Appeals for the Federal Circuit, 
Federal Data Corp. v. SMS Data Products Group, Inc., 819 F.2d 277 (Fed. Cir. 1987) – and 
on an even earlier decision of the Court of Appeals for the Second Circuit, Nestle Co. v. 
Chester’s Market, Inc. , 756 F.2d 280 (2d Cir. 1985).  These two decisions pre-date the 
Supreme Court’s decision in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 
U.S. 18 (1994), and were based on language in a 1950 Supreme Court decision, United 
States v. Munsingwear, Inc., 340 U.S. 36 (1950).   
The Supreme Court, in Bancorp, addressed how and when vacatur is to be used and 
underscored the fundamental value of judicial precedent to our system of law, even where 
a matter has been settled after the decision is issued: 
Judicial precedents are presumptively correct and valuable to the legal 
community as a whole. They are not merely the property of private litigants 
and should stand unless a court concludes that the public interest would be 
served by a vacatur.  
Bancorp, 513 U.S. at 26.  The Court explained that, barring “exceptional circumstances,” 
vacatur should only apply to cases involving mootness that has been brought about by 
“happenstance,” i.e., mootness resulting from “circumstances unattributable to any of the 
parties,” rather than mootness that is the result of the parties’ decision to settle and thereby 
forego their rights of appeal.  Id. at 25, 29.  
The parties have not demonstrated the existence of “exceptional circumstances” that 
would justify vacatur.  The parties have opted to include vacatur as a precondition of their 
settlement; equities do not here favor vacatur.  See Reidell v. United States, 47 Fed. Cl. 209, 
212 (2000). 

_______________________________ 
_______________________________ ______________________________ 
3 CBCA 1305 
Decision
 Accordingly, the joint motion to vacate is DENIED. 
RICHARD C. WALTERS 
Board Judge 
We concur: 
JOSEPH A. VERGILIO JEROME M. DRUMMOND 
Board Judge Board Judge