Not for publication in West's Federal Reporter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., 

, 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, 

, 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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