Lopez v. United States

Case: 22-2096 Document: 10 Page: 1 Filed: 10/18/2022
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ARTHUR LOPEZ,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-2096
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-00259-MCW, Senior Judge Mary Ellen Cos-
ter Williams.
______________________
PER CURIAM.
ORDER
In their responses to this court’s August 18, 2022, show
cause order, the United States supports dismissal and Ar-
thur Lopez opposes dismissal. We conclude that we lack
jurisdiction and therefore dismiss the appeal.
After the government failed to timely respond to Mr.
Lopez’s complaint, the United States Court of Federal
Claims entered default under Rule 55(a) of the Rules of the
Court of Federal Claims (“RCFC”). The United States re-
sponded the next day, seeking vacatur of the entry of
Case: 22-2096 Document: 10 Page: 2 Filed: 10/18/2022
2 LOPEZ v. US
default. The Court of Federal Claims granted the govern-
ment’s request in an order issued on July 1, 2022. Mr.
Lopez appeals from that order.
This court only has jurisdiction over a “final decision”
by the Court of Federal Claims, 28 U.S.C. § 1295(a)(3), and
an order vacating entry of default does not “end the litiga-
tion on the merits and leave nothing for the court to do but
execute the judgment,” Haggart v. United States, 943 F.3d
943, 951 (Fed. Cir. 2019) (cleaned up); see Haw. Carpenters’
Tr. Funds v. Stone, 794 F.2d 508, 512 (9th Cir. 1986); cf.
Parks By & Through Parks v. Collins, 761 F.2d 1101, 1103–
04 (5th Cir. 1985) (holding that even an order setting aside
a default judgment “was interlocutory . . . and thus nonap-
pealable” at the time it was entered).
Mr. Lopez argues that we have jurisdiction under 28
U.S.C. § 1292(d)(2), * but that provision requires that the
appealed-from order include “a statement that a control-
ling question of law is involved with respect to which there
is a substantial ground for difference of opinion and that
an immediate appeal from that order may materially ad-
vance the ultimate termination of the litigation.” There is
no such statement in the order vacating entry of default,
Dkt. No. 17, and thus, this provision does not apply. Mr.
Lopez’s reliance on TCI Group Life Insurance Plan v.
Knoebber, 244 F.3d 691, 695 n.1 (9th Cir. 2001), is mis-
placed because that case addressed certification under Fed-
eral Rule of Civil Procedure 54(b), not § 1292, which was
found to be unnecessary because the district court “re-
solve[d] all claims with regard to all parties” such that the
* Mr. Lopez, proceeding pro se, makes this argument
based on § 1292(c), but that subsection relates to our juris-
diction of certain non-final orders from district courts. Sec-
tion 1292(d)(2) applies to certain non-final orders from the
Court of Federal Claims.
Case: 22-2096 Document: 10 Page: 3 Filed: 10/18/2022
LOPEZ v. US 3
“appeal [wa]s not premature.” Here, no such final judg-
ment has been entered.
Mr. Lopez also attempts to invoke the collateral order
doctrine, but we do not agree that the Court of Federal
Claims’ order vacating entry of default “conclusively deter-
mine[d a] disputed question,” “resolve[d] an important is-
sue completely separate from the merits of the action,” or
is “effectively unreviewable on appeal from a final judg-
ment,” Apple Inc. v. Samsung Elecs. Co., 727 F.3d 1214,
1220 (Fed. Cir. 2013) (internal quotation marks and cita-
tion omitted). Cf. Wiggins v. Universal Prot. Servs., LLC,
No. 21-2652, 2021 WL 7287368, at *1 (3d Cir. Nov. 3, 2021)
(holding that an order vacating entry of default is not an
appealable collateral order at least because “the order will
be reviewable on appeal from a final judgment” (citing
Adult Film Ass’n of Am. v. Thetford, 776 F.2d 113, 115 (5th
Cir. 1985))).
We have considered each of Mr. Lopez’s arguments and
find them to be without merit.
Accordingly,
IT IS ORDERED THAT:
(1) The appeal is dismissed.
(2) Any pending motions are denied as moot.
(3) Each party shall bear its own costs.
FOR THE COURT
October 18, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court