* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Robin J. Cauthron, District Judge, UnitedStates District Court for the Western District of Oklahoma, sitting by de signation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 18 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MELVIN ANDERSON,

Petitioner-Appellant,

v. FEDERAL BUREAU OF PRISONS,

Respondent-Appellee. No. 96-1229 (D.C. No. 94-N-2333) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY and KELLY, Circuit Judges, and CAUTHR ON, ** District Judge.

After examining the briefs and appellate record, th is 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 c ase is therefore ordered submitted without oral argument.-2-

Petitioner/Appellant Melvin Anderson appeals from t he district court’s order dismissing his petition, phrased in the form of a complaint, for writ of mandamus or prohibition directed to Respondent/Appe llee Federal Bureau of Prisons. A magistrate judge recommended that summa ry judgment be granted for appellee. The district court accepted this recomme ndation, and dismissed appellant’s complaint. Appellant appealed and filed, in this court, an “em ergency verified summary motion to vacate order and judgment pending appeal and remand with instruction to resolve summary judgment motion.” I n this pleading, he sought to have this case immediately remanded to the districtcourt for determination of what he claimed was his own pending motion for summ ary 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 d istrict court had in fact denied appellant’s summary judgment motion. On thi s basis, the panel denied appellant’s motion for remand, but instructed him t hat he could raise in his appellate brief any issues regarding the motion forsummary judgment. Appellant thereafter moved this court to construe his motion to vacate as his opening brief. The motion was granted.-3-

Although the motions panel’s determination that the district court denied appellant’s motion for summary judgment is not bind ing 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 moti ons panel was entirely correct. The magistrate judge carefully considered appellan t’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 properlydenied the motion for summary judgment. We now address this question. We agree with the magistrat e judge that appellant’s motion for summary judgment should be construed as a motio n for default judgment. The only ground he asserted for summary judgment was th at 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 oc curred on the day after appellant filed his motion for “summary judgment.” The magis trate judge recommended that the untimely filing be excused, and that appel lant’s motion for default judgment be denied.-4-

A trial court is vested with broad discretion in de ciding 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 t he availability of default judgments against agencies of the United States Gov ernment. It states that “[n]o judgment by default shall be entered against the Un ited 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 c onstrued 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 d iscretion where government responded promptly to motion for default judgment a nd plaintiff’s claim ultimately proved unable to withstand summary judgm ent). Here, appellee did file a response, indicating thatit had not abandoned the action. It also timely responded to appellant’s mo tion for summary judgment. Moreover, appellant’s claim did not survive summaryjudgment on the merits. Under these circumstances, the district court did n ot abuse its discretion in refusing to enter default judgment for appellant.-5-

The judgment of the United States District Court fo r the District of Colorado is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Robin J. Cauthron District Judge