Howard v. Weinberger

Fifth Circuit

Howard v. Weinberger

489 F.2d 216, 1974 U.S. App. LEXIS 10082

Court of Appeals for the Fifth Circuit·Decided February 13, 1974·No. No. 73-3128·Published·Cited by 8 cases

Opinion

PER CURIAM:

The Secretary of Health, Education and Welfare appeals from a decision of the district court granting a so-called default judgment against the Secretary in favor of claimant for disability insurance benefits. We reverse for the following reasons:

1. Granting a default judgment by the district court under the circumstances here was arbitrary and constituted an improvident use of judicial discretion. The complaint was filed on February 12, 1973, and served on February 14, 1973. On April 16, 1973, the day on which answer was. due, the Government filed a motion for extension of time to answer until June 15, due to an alleged inability to prepare the transcript of the administrative record. This motion was denied by the court on April 17. On April 19, plaintiff filed a motion for a default judgment. On April 20, the court considered this motion and ordered the Government to show cause, within 15 days, as to why the default judgment should not be entered. On May 3, the Government filed a motion for leave to file answer out of time, stating that the United States Attorney was then in possession of the administrative transcript. This motion was amended on May 7 so as to add the defendant’s answer and the transcript. The motion, as amended, was denied by the court on May 10. The court then entered a default judgment against defendant on June 1. The Government’s amended motion dated May 7, to add the Government’s answer and transcript, should have been granted; it antedated the default judgment of June 1, and the ends of justice would have been better served by allowing the amended motion so as to put the merits of the case before the trial court.

2. The district judge used an erroneous standard in his written opinion when he held that there was substantial evidence in the record to sustain claimant’s claim. The function of a reviewing court is to determine whether the Secretary’s decision. If there is, the decision must be upheld. See, e. g., Brown v. Finch, 5 Cir., 1970, 429 F.2d 80, 82; Herridge v. Richardson, 5 Cir., 1972, 464 F.2d 198, 199.¹

Reversed and remanded.

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PER CURIAM:

The Secretary of Health, Education and Welfare appeals from a decision of the district court granting a so-called default judgment against the Secretary in favor of claimant for disability insurance benefits. We reverse for the following reasons:

1. Granting a default judgment by the district court under the circumstances here was arbitrary and constituted an improvident use of judicial discretion. The complaint was filed on February 12, 1973, and served on February 14, 1973. On April 16, 1973, the day on which answer was. due, the Government filed a motion for extension of time to answer until June 15, due to an alleged inability to prepare the transcript of the administrative record. This motion was denied by the court on April 17. On April 19, plaintiff filed a motion for a default judgment. On April 20, the court considered this motion and ordered the Government to show cause, within 15 days, as to why the default judgment should not be entered. On May 3, the Government filed a motion for leave to file answer out of time, stating that the United States Attorney was then in possession of the administrative transcript. This motion was amended on May 7 so as to add the defendant’s answer and the transcript. The motion, as amended, was denied by the court on May 10. The court then entered a default judgment against defendant on June 1. The Government’s amended motion dated May 7, to add the Government’s answer and transcript, should have been granted; it antedated the default judgment of June 1, and the ends of justice would have been better served by allowing the amended motion so as to put the merits of the case before the trial court.

2. The district judge used an erroneous standard in his written opinion when he held that there was substantial evidence in the record to sustain claimant’s claim. The function of a reviewing court is to determine whether the Secretary’s decision. If there is, the decision must be upheld. See, e. g., Brown v. Finch, 5 Cir., 1970, 429 F.2d 80, 82; Herridge v. Richardson, 5 Cir., 1972, 464 F.2d 198, 199.¹

Reversed and remanded.