                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAR 18 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MELVIN ANDERSON,

                Petitioner-Appellant,

    v.                                                   No. 96-1229
                                                     (D.C. No. 94-N-2333)
    FEDERAL BUREAU OF PRISONS,                             (D. Colo.)

                Respondent-Appellee.




                             ORDER AND JUDGMENT *



Before BRORBY and KELLY, Circuit Judges, and CAUTHRON, ** District Judge.



         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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
**
       Honorable Robin J. Cauthron, District Judge, United States District Court
for the Western District of Oklahoma, sitting by designation.
      Petitioner/Appellant Melvin Anderson appeals from the district court’s

order dismissing his petition, phrased in the form of a complaint, for writ of

mandamus or prohibition directed to Respondent/Appellee Federal Bureau of

Prisons. A magistrate judge recommended that summary judgment be granted for

appellee. The district court accepted this recommendation, and dismissed

appellant’s complaint.

      Appellant appealed and filed, in this court, an “emergency verified

summary motion to vacate order and judgment pending appeal and remand with

instruction to resolve summary judgment motion.” In this pleading, he sought to

have this case immediately remanded to the district court for determination of

what he claimed was his own pending motion for summary judgment. He

complained, in the motion, that the district court erred in two respects: first, by

not ruling on his motion for summary judgment, and second, by not granting the

motion in his favor.

      A motions panel of this court determined that the district court had in fact

denied appellant’s summary judgment motion. On this basis, the panel denied

appellant’s motion for remand, but instructed him that he could raise in his

appellate brief any issues regarding the motion for summary judgment. Appellant

thereafter moved this court to construe his motion to vacate as his opening brief.

The motion was granted.


                                          -2-
      Although the motions panel’s determination that the district court denied

appellant’s motion for summary judgment is not binding on this panel, see Stifel,

Nicolaus & Co. v. Woolsey & Co., 81 F.3d 1540, 1543-44 (10th Cir. 1996), our

own review of the record convinces us that the motions panel was entirely correct.

The magistrate judge carefully considered appellant’s motion, and advised, in a

well-reasoned recommendation, that it be denied. R., doc. 16 at 3-4. In its order

of dismissal, the district court stated that “[a]ny pending motion not specifically

addressed herein is DENIED.” Id., doc. 35 at 2.

      The motions panel did not consider the other issue appellant raises, whether

the district court properly denied the motion for summary judgment. We now

address this question. We agree with the magistrate judge that appellant’s motion

for summary judgment should be construed as a motion for default judgment. The

only ground he asserted for summary judgment was that appellee had failed to

defend the action.

      Appellee filed its response to appellant’s petition thirteen days after the

deadline set by the district court. This filing occurred on the day after appellant

filed his motion for “summary judgment.” The magistrate judge recommended

that the untimely filing be excused, and that appellant’s motion for default

judgment be denied.




                                          -3-
      A trial court is vested with broad discretion in deciding whether to enter

default judgment. See Grandbouche v. Clancy, 825 F.2d 1463, 1468 (10th Cir.

1987). Moreover, Fed. R. Civ. P. 55(e) restricts the availability of default

judgments against agencies of the United States Government. It states that “[n]o

judgment by default shall be entered against the United States or an officer or

agency thereof unless the claimant establishes his claim or right to relief by

evidence satisfactory to the court.” Courts have construed this section liberally,

refusing to enter default where the government has failed timely to plead or

otherwise defend, or setting aside such default on motion by the government. See

10 Charles Alan Wright et al., Federal Practice and Procedure, Civil § 2702 (2d

ed. 1983); see also Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977) (district

court’s refusal to enter default was not abuse of discretion where government

responded promptly to motion for default judgment and plaintiff’s claim

ultimately proved unable to withstand summary judgment).

      Here, appellee did file a response, indicating that it had not abandoned the

action. It also timely responded to appellant’s motion for summary judgment.

Moreover, appellant’s claim did not survive summary judgment on the merits.

Under these circumstances, the district court did not abuse its discretion in

refusing to enter default judgment for appellant.




                                         -4-
     The judgment of the United States District Court for the District of

Colorado is AFFIRMED. The mandate shall issue forthwith.



                                                  Entered for the Court



                                                  Robin J. Cauthron
                                                  District Judge




                                       -5-
