UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, : : Plaintiff, : Civil Action No.: 19-2488 (RC) : v. : Re Document No.: 10 : DURWIN LAIRY, : : Defendant. :

MEMORANDUM OPINION

GRANTING THE PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT JUDGMENT

I. INTRODUCTION

Plaintiff United States of America (“the Government”) seeks the inflation-adjusted

maximum civil penalty of $60,517 from Defendant Durwin Lairy for failure to submit a

termination public financial disclosure report required by the Ethics in Government Act (“EIGA”

or “the Act”), 5 U.S.C. app. 4 §§ 101, et seq.; see United States’ Mot. for Default and Final J.

(“Mot. for Default”), ECF No. 10-1, at 2. Before the Court is Plaintiff’s motion for entry of

default judgment pursuant to Fed. R. Civ. P. 55, ECF No. 10.

For the reasons that follow, the Court grants the Government’s motion and enters default

judgment against Mr. Lairy. The Court awards penalties accordingly.

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendant Durwin Lairy was a Consultant in the Department of Energy’s Office of

Economic Impact and Diversity (“DOE”), a position within the Executive Branch, until

September 20, 2017. United States’ Complaint (“Compl.”), ECF No. 1, ¶¶ 9, 13. According to

the Government, Mr. Lairy’s annual income was $135,655. See Mot. for Default ¶ 8. Consequently, as an employee whose rate of basic pay was greater than 120 percent of the

minimum rate of basic pay payable for GS-15 of the General Schedule, Mr. Lairy was subject to

the Act’s public financial disclosure requirements. See 5 U.S.C. app. 4 § 101(d)–(f)(3); see also

Compl. ¶ 10. This meant he was required to submit a new entrant financial disclosure report and

an annual financial disclosure report during his employment, and to submit a termination

financial disclosure report within 30 days of his termination. See 5 U.S.C. app. 4 § 101(d)–

(f)(3); see also Compl. ¶ 10. Mr. Lairy filed a new entrant financial disclosure report and an

annual financial disclosure report during his employment. Compl. ¶¶ 11–12. His last day of

employment was September 20, 2017, so his deadline to submit a termination report was October

20, 2017. Id. ¶ 15.

On October 20, 2017, an employee in the DOE’s Office of the Assistant General Counsel

for General Law (“DOE employee”) sent Mr. Lairy an email to his personal email address

notifying him of the deadline to submit the termination report. Id. Mr. Lairy responded to the

email that same day and requested an extension of the deadline. Id. ¶ 16. In response to the

request, the DOE employee granted Mr. Lairy an extension and permitted him to file the report

on or before November 20, 2017. Id. ¶ 17. On November 15, 2017, the DOE employee sent

another email to Mr. Lairy reminding him of the deadline and of the $200 late filing fee incurred

for late filing, Mr. Lairy did not respond. Id. ¶ 18. On November 20, 2017, Mr. Lairy failed to

file the required termination report. Id. ¶ 19. After the November deadline, the DOE employee

made several attempts to contact Mr. Lairy by email and by certified letter to his home address,

informing Mr. Lairy that he had failed to file his termination report, that he had incurred the

$200 late filing fee, and that he could be assessed a civil penalty of up to $50,000. Id. ¶ 20. The

2 communications also included instructions for filing the overdue termination report and for

mailing the $200 late filing fee. Id.

On December 11, 2018, Mr. Lairy responded by email, apologized for his lack of

communication, expressed that he had “made attempts to login and file the report,” and conveyed

that he had been unable to submit the required files due to technical difficulties. Id. ¶¶ 22–23.

Between December 11, 2018 and January 8, 2019, the DOE employee attempted to help Mr.

Lairy resolve his technical problems. Id. ¶ 23. However, Mr. Lairy’s technical difficulties

extended into January 2019 when the Government shutdown and subsequent lapse in

appropriations made technical support unavailable. Id. ¶ 24. On February 12, 2019, after the

restoration of appropriations, the DOE employee advised Mr. Lairy by email that Mr. Lairy’s

access to the electronic filing system had been restored and that he should “go in and access the

report and complete and submit as soon as possible.” Id. ¶ 25. Mr. Lairy did not respond to the

February email and did not file the report. Id.

On April 10, 2019, the DOE employee sent another email to Mr. Lairy giving him a

“final opportunity” “to complete and submit th[e] required report.” Id. ¶ 26. According to the

Government, Mr. Lairy has yet to file his required termination report or pay the $200 late filing

fee. Id. ¶ 27.

The Government filed this suit on August 16, 2019. Mr. Lairy completed and signed the

Waiver of the Service of Summons form, see ECF No. 3, at the request of the Government in

accordance with Fed. R. Civ. P. 4(d), extending the time to answer to the complaint to November

12, 2019. However, despite extending his time to answer to the complaint by signing a waiver of

service of process, Mr. Lairy failed to file an answer or a response by November 12, 2019. As a

result, the Clerk of Court entered default on December 6, 2019. ECF No. 7. The Government

3 now asks this Court to enter a default judgment against Mr. Lairy pursuant to Fed. R. Civ. P. 55.

Mot. for Default.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 55 establishes a two-step process for default judgment.

Fed. R. Civ. P. 55; see, e.g., Bricklayers & Trowel Trades Int’l Pension Fund v. KAFKA Constr.,

Inc.,

(D.D.C. 2017). First, the Clerk of the Court must enter default.

Fed. R. Civ. P. 55(b). After the clerk’s entry of default, the plaintiff may move for a default

judgment.

Furthermore, the determination of default judgment is up to the trial courts

discretion. See Jackson v. Beech,

(D.C. Cir. 1980). While courts prefer to

resolve disputes on their merits, a default judgment is appropriate when the adversarial process

has been effectively halted by a party’s failure to respond.

. Therefore, in a default

judgment, the defendant must be an “essentially unresponsive party” whose default is “plainly

willful, reflected by its failure to respond to the summons and complaint, the entry of default, or

the motion for default judgment.” Carazani v. Zegarra,

(D.D.C. 2013)

(internal citations omitted).

While default judgment establishes a defendant’s liability, the court is required to make

an independent determination of the sum to be awarded unless the amount is certain. Adkins v.

Teseo,

(D.D.C. 2001). “[I]n cases involving statutory penalties that leave

discretion to the court, courts ‘have generally tailored the penalty to the offense and attendant

circumstances.’” United States v. Chaney, No. 04-cv-2219,

, at *2 (D.D.C.

Feb. 28, 2005) (quoting United States v. Gant,

(D.D.C. 2003)). In

making this determination, the “court may rely on detailed affidavits or documentary evidence to

4 determine the appropriate sum for default judgment.” Flynn v. Mastro Masonry Contractors,

(D.D.C. 2002) (internal citations omitted).

IV. ANALYSIS

Section 101 of the EIGA requires all executive branch employees at a pay grade GS-15

or above to file a final public disclosure report unless they have accepted another covered

position. 5 U.S.C. app. 4 § 101(e); see also Gant,

(internal citations

omitted). Section 104(a) of the EIGA authorizes the Attorney General to bring a civil action in

federal court against any individual “who knowingly and willfully fails to file or report any

information that such individual is required to report” under the EIGA. 5 U.S.C. app. 4

§ 104(a)(1). An individual “knowingly and willfully” fails to comply with the EIGA

requirements when “that individual intentionally disregards the statute or is indifferent to its

requirements.” Gant,

(internal citations omitted). Section 104(a) also

provides that a court may assess a civil penalty of up to $50,000 against an individual who fails

to file under the EIGA requirements. 5 U.S.C. app. 4 § 104(a)(1). The civil penalty is then

adjusted in accordance with the adjustment procedures prescribed in the Federal Civil Penalties

Inflation Adjustment Act of 1990.

note. At the time of the Government’s

filing, the maximum civil penalty, adjusted for inflation was $60,517.

(b)

(2019).

The Government has submitted a declaration of the DOE employee, Yvonne Stewart,

who communicated through email with Mr. Lairy, and multiple exhibits of the email

communications between Mr. Lairy and Ms. Stewart. See Decl. of Yvonne Stewart, ECF No.

10-2 (“Stewart Decl.”); Ex. A, No. 10-3 (“Ex. A”); Ex. B, No. 10-4 (“Ex. B”); Ex. C, No.10-5

(“Ex. C”); Ex. D, No. 10-6 (“Ex. D”); Ex. E, No. 10-7 (“Ex. E”); Ex. F, No. 10-8 (“Ex. F”); Ex.

5 G, No. 10-9 (“Ex. G”). The Stewart declaration and the accompanying exhibits demonstrate that

Mr. Lairy intentionally disregarded the statute by failing to file the required report for over six

months, even after repeated attempts by Ms. Stewart to provide clear instructions to help Mr.

Lairy file the report. See Ex. A; Ex. B; Ex. C; Ex. E; Ex. F; Ex. G. The Government’s exhibits

also lend support of Mr. Lairy’s knowledge of the requirements because he had filed two other

required financial reports during his employment, Stewart Decl. ¶ 5, and responded to Ms.

Stewart’s emails acknowledging that he had failed to file the required termination report but was

“ready to resolve this manner”, Ex. E at 20. Mr. Lairy’s request to extend the deadline to file the

report in October 2017 further demonstrates Mr. Lairy’s knowledge that he was under a time-

sensitive deadline to submit the report. See Ex. A at 2.

In Gant, the court, also reviewing a plaintiff’s motion for default judgment after

defendant failed to comply with the requirements of the EIGA and failed to answer the

complaint, awarded the maximum civil penalty because the defendant’s violation of the EIGA

filing requirements was “flagrant and ongoing.”

. Mr. Gant, like Mr.

Lairy, had received multiple reminders and had been given many opportunities to comply with

the EIGA requirements.

Here, the Government’s evidence of Mr. Lairy’s flagrant and ongoing nonfulfillment of

the EIGA filing requirements demonstrate Mr. Lairy’s indifference to the requirements of the

statute. Because Mr. Lairy has also failed to refute or otherwise respond to the Government’s

complaint, the entry of default, or the motion for default judgment, default judgment is

appropriate in this case. But the Court believes that the maximum penalty should be reserved for

the most egregious of cases and applied only in situations where the non-filant has the greatest

incentive to avoid public reporting. The Court has reviewed Mr. Lairy’s prior financial

6 disclosures and concludes that Mr. Lairy is a man of modest means whose financial disclosures

are simple and do not reflect a sophisticated financial operator with a strong motive to hide

problematic transactions. See ECF Nos. 12, 13 (disclosures filed under seal). And, as the record

indicates, he may have experienced some struggles in life. See ECF No. 10-6 at 1 (email from

Mr. Lairy to an Ethics Program Specialist explaining that his failure to file was at least partially

the result of serious personal distress). Accordingly, the Court will not impose the maximum

penalty.

For the foregoing reasons, the Court GRANTS the Government’s Motion for Entry of

Default Judgment and assesses a civil penalty in the amount of $10,200 against the Defendant.

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

SO ORDERED.

Dated: July 17, 2020 RUDOLPH CONTRERAS, United States District Judge

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