
    No. 09-1395.
    Peter H. Beer et al., Petitioners v. United States.
    564 U.S. 1050, 131 S. Ct. 2865,
    180 L. Ed. 2d 909,
    2011 U.S. LEXIS 4993.
    June 28, 2011.
   On petition for writ of certiorari to the United States Court of Appeals for the Federal Circuit. Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Federal Circuit for consideration of the question of preclusion raised by the Acting Solicitor General in his brief for the United States filed July 26, 2010.

Justice Breyer would grant the petition for writ of certiorari and set the case for oral argument.

Same case below, 361 Fed. Appx. 150.

Justice Scalia,

dissenting.

It has been my consistent view, not always shared by the Court, that “we have no power to set aside the duly recorded judgments of lower courts unless we find them to be in error, or unless they are cast in doubt by a factor arising after they were rendered.” Webster v. Cooper, 558 U.S. 1039, 1041-1042, 130 S. Ct. 456, 175 L. Ed. 2d 506 (2009) (Scalia, J., dissenting). Today’s vacatur resembles that in Youngblood v. West Virginia, 547 U.S. 867, 126 S. Ct. 2188, 165 L. Ed. 2d 269 (2006) (per curiam), from which I dissented, id., at 870, 126 S. Ct. 2188, 165 L. Ed. 2d 269. I would grant the petition and set the case for argument.  