                                                                          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      This order and judgment is not binding precedent, except under the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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