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HOWARD v. WEINBERGER

No. 73-3128. Summary Calendar.

489 F.2d 216 (1974)

J. W. HOWARD, Plaintiff-Appellee, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

Rehearing Denied March 18, 1974.

Attorney(s) appearing for the Case

Ira De Ment, U. S. Atty., Kenneth E. Vines, Asst. U. S. Atty., Montgomery, Ala., Walter H. Fleischer, David M. Cohen, Dept. of Justice, Washington, D. C., for defendant-appellant.

Clellon K. Baeder, Auburn, Ala., for plaintiff-appellee.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

PER CURIAM:

The Secretary of Health, Education and Welfare appeals from a decision of the district court granting a so-called default judgment against the Secretary in favor of claimant for disability insurance benefits. We reverse for the following reasons:

1. Granting a default judgment by the district court under the circumstances here was arbitrary and constituted an improvident use of judicial discretion. The complaint was filed on February 12, 1973,...

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