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JOHNSON v. SECRETARY

January 18, 1984

ARTHUR M. JOHNSON, Plaintiff,
v.
SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant



The opinion of the court was delivered by: RICHEY

 Before the Court is the Complaint, the defendant's Motion for an Enlargement of Time within which to answer, or otherwise move, with respect to the complaint, and the entire record herein. For the reasons stated below, the Court will deny defendant's Motion, makes findings of established facts, and schedules further proceedings.

 BACKGROUND

 The history of this litigation has a Kafka-like quality to it. The plaintiff filed a complaint, which was served on the defendant, on September 7, 1983. He seeks "to obtain judicial review of a final decision by the defendant, Secretary of the U.S. Department of Health and Human Services, denying plaintiff's claim for a period of disability and disability insurance benefits under Sections 216(i) and 223 of the Social Security Act, 42 U.S.C. Secs. 416(i) and 423, and for supplemental security income under Section 1614 of the Social Security Act, 42 U.S.C. Sec. 1382." Complaint para. 1.

 The defendant, unlike non-government defendants, had 60 days within which to answer the complaint. Fed. R. Civ. P. 12(a). On November 7, 1983, one day before her answer was due, the Secretary moved for a 60 day extension of time in which to answer, or otherwise move, with respect to the Complaint. That motion asserted that

 
The U.S. Attorney's Office has received information from the Office of the General Counsel, Department of Health and Human Services, that, as of the date of this motion, the administrative record in this case has not been fully compiled and transmitted to agency counsel. Agency counsel must, upon receipt, evaluate the record and recommend a specific response to the allegations in the complaint.
 
. . . .
 
In view of these circumstances, defendant is compelled to seek an enlargement of time in order to secure the administrative record which constitutes the factual basis for her response.
 
Wherefore, defendant respectfully requests that the Court grant an enlargement of time of 60 days, to and including January 6, 1984, within which to answer or otherwise move with respect to this complaint.

 Defendant's November 7, 1983, Motion For Enlargement Of Time Within Which to Answer Complaint at 1-2.

 On November 10, 1983, the Court entered an Order denying the defendant's motion. The November 10, 1983, Order further directed the defendant to answer, or otherwise move, with respect to the Complaint by November 24, 1983. The Court noted that it found a 60 day extention "to be unreasonable, particularly in a case involving a request for judicial review of the denial of disability benefits."

 The defendant failed to answer, or otherwise move, with respect to the Complaint by November 24, 1983. On December 13, 1983, upon the application of the plaintiff, the Clerk of this Court, pursuant to Fed. R. Civ. P. 55(a), *fn1" duly entered the default. Plaintiff then moved the Court to schedule further proceedings in this case pursuant to Fed. R. Civ. P. 55(e). *fn2" That motion was granted by the Court on December 20, 1984.

 Subsequently, the defendant moved to rescind the default. The Court, by Order of December 30, 1983, granted the defendant's motion noting that "because of an administrative error within the Court, defendant's counsel did not receive notice of the Court's November 10, 1983 Order requiring the defendant to answer, or otherwise move with respect to the complaint, by November 24, 1983." The Court, perhaps prematurely, further noted that it appeared "that defendant's failure to answer was not caused by a lack of diligence or good faith" and ordered the ...


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