Cite as: 564 U. S. ____ (2011)              1

                      SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
       PETER H. BEER ET AL. v. UNITED STATES
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

   STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

               No. 09–1395. Decided June 28, 2011 


   The petition for writ of certiorari is granted. The judg
ment is vacated, and the case is remanded to the United
States Court of Appeals for the Federal Circuit for consid
eration of the question of preclusion raised by the Acting
Solicitor General in his brief for the United States filed
July 26, 2010. The Court considers it important that there
be a decision on the question, rather than that an answer
be deemed unnecessary in light of prior precedent on the
merits. Further proceedings after decision of the preclu
sion question are for the Court of Appeals to determine in
the first instance. JUSTICE BREYER would grant the peti
tion for writ of certiorari and set the case for argument.
   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. ___, ___ (2009) (SCALIA, J., dissenting) (slip op., at 3).
Today’s vacatur resembles that in Youngblood v. West
Virginia, 

(2006) (per curiam), from which I
dissented, 

I would grant the petition and set
the case for argument.