United States v. Robert E. Roberts

804 F.2d 678, 1986 U.S. App. LEXIS 32994, 1986 WL 17944

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 31, 1986
• Docket: 85-2251
• Status: Unpublished

Opinion

804 F.2d 678
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Appellee,
v.
Robert E. ROBERTS, Appellant.

No. 85-2251.

United States Court of Appeals, Fourth Circuit.

Submitted Sept. 19, 1986.
Decided Oct. 31, 1986.

Robert E. Roberts, appellant pro se.

Peter A. Niceler, Veterans Administration, for appellee.

S.D.W.Va.

VACATED AND REMANDED.

Before SPROUSE, ERVIN and WILKINS, Circuit Judges.

PER CURIAM:

The United States filed suit against Robert Roberts to recover an overpayment of veteran's benefits. When he signed the acknowledgement of receipt of complaint, Roberts requested a jury trial. He also delivered to the clerk a letter refusing to repay the money. However, Roberts made no separate answer and the clerk entered a default judgment after an appropriate time. Roberts appeals.

A default judgment may not be entered by the clerk when one party is incompetent. Fed.R.Civ.P. 55(b)(1), (2). If the issue of competence is raised, the district court must satisfy itself that the party is competent or is properly represented before entering a default judgment. United States v. Hopkins, 193 F.Supp. 207 (S.D.N.Y.1960); 21 Fed.Proc.L.Ed. Sec. 51:14 (1984). The Veteran's Administration averred that Roberts was competent without explaining or even referring to his diagnosis, made while he was still in the Army, as schizophrenic. In addition, Roberts' communication with the clerk's office at least raises the issue of his competence. The district court should be allowed to review the information to insure the fairness of the default judgment.

We therefore remand the case to the district court, directing its attention to our discussion in Hudnall v. Sellner, --- F.2d ---, No. 81-2109 (4th Cir., Sept. 8, 1986) of the issues to be considered in determining competence to defend a suit. Because the dispositive issues have recently been authoritatively decided, we dispense with oral argument.