Head v. Apfel

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 6 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WALTER OTIS HEAD,
Plaintiff-Appellant,
v. No. 00-1174
(D.C. No. 99-Z-559)
KENNETH S. APFEL, Commissioner, (D. Colo.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA , EBEL , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The district court in this action entered judgment for defendant, affirming
the Commissioner’s decision concerning plaintiff’s social security benefits. The
Appeals Council held that plaintiff’s disability insurance benefits were not subject
to offset under 42 U.S.C. § 424a and that plaintiff was receiving the proper
amount of benefits as determined by the Social Security Administration in a
decision issued March 10, 1996. See R. Vol. I, Doc. 42, Ex. 4 (Decision of
Appeals Council) at 3. We have jurisdiction pursuant to 42 U.S.C. § 405(g) and
28 U.S.C. § 1291. We affirm.
The only issue raised by plaintiff in this appeal is whether the district court
properly denied plaintiff’s motion filed on July 6, 1999, seeking default judgment
against the defendant for failure to answer or otherwise plead by June 23, 1999,
as previously directed by the district court. R. Vol. I, Doc. 11. In the default
motion, plaintiff requested that the court reopen an earlier action against
defendant (Dist. Ct. No. 94-Z-1100) “to allow the Defendant to correct their error
and pay the Plaintiff all back benefits in which he was entitled.” Id. at 1.
Plaintiff also asked for 6.5 million dollars “in relief to cover all costs and
damages.” Id.
Plaintiff contends that the district court erred in not granting default
judgment and requests that we reverse that court and enter judgment for him. He
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does not challenge the final decision of the district court upholding the agency’s
determination.
A district court’s decision to enter a default judgment is committed to the
sound discretion of the district court, and our review is for an abuse of that
discretion. See Dennis Garberg & Assocs. v. Pack-Tech Int’l Corp. , 115 F.3d
767, 771 (10th Cir. 1997); see also Panis v. Mission Hills Bank, N.A. , 60 F.3d
1486, 1494 (10th Cir. 1995) (district court did not abuse discretion in permitting
out-of-time answers and denying plaintiff’s motion for default judgment where
defendant’s late filings were due to mistake, inadvertence, or carelessness, not
bad faith). We will not disturb the court’s determination without a distinct
showing that it was based on a clearly erroneous factual finding or an erroneous
legal conclusion or that it manifests a clear error of judgment. See United States
v. Mitchell , 113 F.3d 1528, 1531 (10th Cir. 1997).
Moreover, under Fed. R. Civ. P. 55(e), judgment by default should not be
entered against the United States or an agency thereof “unless the claimant
establishes a claim or right to relief by evidence satisfactory to the court.” Nor may
default judgment be entered against the Untied States as a sanction. See Graham v.
United States (In re Graham) , 981 F.2d 1135, 1142 (10th Cir. 1992) (citing Bankr.
R. 7055, applying Fed. R. Civ. P. 55(e)). When the government’s default is due to
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a failure to plead, typically the court will either refuse to enter a default or will set
aside the default. See Mason v. Lister , 562 F.2d 343, 345 (5th Cir. 1977).
Here, the government responded to plaintiff’s motion for default within two
weeks, see R. Vol. I, Doc. 14, and simultaneously requested an extension of time in
which to answer or otherwise plead. See id. , Doc. 15. The government further
explained that it had been unable to obtain the administrative record and had
inadvertently failed to note the answer due date. See id. at 1. The district court
granted the extension of time to July 26, 1999, see id. , Doc. 18, and the
government’s answer was filed on July 29. See id. , Doc. 19. In its September 2,
1999 order denying various pending motions, the district court adequately explained
the factors underlying its reasons for denying the motion for default judgment. See
id. , Doc. 31 at 1-2; see also Grandbouche v. Clancy , 825 F.2d 1463, 1468 (10th Cir.
1987). Finally, “[i]n light of the strong preference for the disposition of litigation
on the merits, . . .” and the lack of prejudice to plaintiff, we conclude that the district
court did not abuse its discretion in denying plaintiff’s motion for default judgment.
Gulley v. Orr , 905 F.2d 1383, 1386 (10th Cir. 1990); see also Jorden v. Nat’l Guard
Bureau , 877 F.2d 245, 251 & n.23 (3d Cir. 1989) (recognizing “heavy burden” of
plaintiff seeking default judgment against government agent and noting there was
nothing in record to indicate defendants’ conduct was beyond mere negligence,
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“rising to the level of flagrant bad faith or contumacious behavior.”) (further
quotation and citations omitted).
The judgment of the United States District Court for the District of Colorado
is AFFIRMED.
The mandate shall issue forthwith.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
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