Jackson v. Norman

Not for publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2425
BRUCE JACKSON,
Plaintiff, Appellant,
v.
LINDSAY NORMAN,
individually and in his capacity as President
of Massachusetts Bay Community College,
Defendant, Appellee.
APPEAL FORM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Lynch, Circuit Judge,
Lipez, Circuit Judge,
and Oberdorfer,* Senior District Judge.
Sam Silverman for appellant.
Maite A. Parsi, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief, for appellee.
October 24, 2003
*
Of the United States District Court for the District of
Columbia, sitting by designation.
Per Curiam. Plaintiff Bruce Jackson brought suit under
42 U.S.C. §§ 1983 and 1988, challenging the procedures associated
with the termination of his employment. That termination was,
however, still subject to challenge in various administrative
proceedings and in arbitration under the collective bargaining
agreement. The district court dismissed his complaint with
prejudice. Jackson appealed.
At oral argument, this court was informed that the
arbitration regarding Jackson's termination is underway and that
the reinstatement of Jackson is a remedy available to the
arbitrator. The court inquired of the parties whether, in a
practical sense, the case might be mooted by the arbitrator's
decision, and urged the parties to consider a stipulated resolution
that would preserve the rights of both sides.
On October 20, 2003, the parties filed with the court a
stipulation that the matter be remanded to the district court for
dismissal without prejudice and that Jackson will no longer pursue
the appeal in this action.
The equitable decision on vacatur of a district court
order rests in the discretion of this court. Kerkof v. MCI
WorldCom, Inc., 282 F.3d 44, 53-54 (1st Cir. 2002). Under the
circumstances of this case, we think it appropriate to vacate the
order of dismissal with prejudice and remand with instructions to
the district court to enter a dismissal without prejudice. Wal-
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Mart Stores, Inc. v. Rodriguez, 322 F.3d 747, 750 (1st Cir. 2003).
The request to vacate is not sought for strategic reasons or to
unfairly advantage either side. To the contrary, it is meant to
avoid unnecessary litigation and to preserve the rights of the
parties should the matter not be resolved.
So ordered. No costs are awarded.
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