Stacy Antonopoulos v. Secretary of Health and Human Services , 811 F.2d 603 ( 1986 )

811 F.2d 603

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Stacy ANTONOPOULOS, Plaintiff-Appellee,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellant.

No. 85-3970.

United States Court of Appeals, Sixth Circuit.

Dec. 2, 1986.

1

Before ENGEL, KRUPANSKY and NELSON, Circuit Judges

ORDER

2

This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the pleadings and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

3

In this action, plaintiff sought review of the Secretary's decision to deny her application for disability benefits. The magistrate to whom the matter was referred recommended granting plaintiff's request for summary judgment. No objections to this report were filed. The district court ultimately adopted this report and entered judgment for plaintiff. The Secretary appealed. The plaintiff moves to dismiss the Secretary's appeal for failure to object to the magistrate's report, citing Thomas v. Arn, 106 S.Ct. 466 (1985), and United States v. Walters, 638 F.2d 947 (6th Cir.1981). The Secretary has responded and advised that he does not oppose the motion.

4

Upon consideration, we find the motion to be well taken. Examination of the Secretary's response convinces us that the consequences of a failure to file objections were known to the Secretary; the failure to so file was indicative of the Secretary's belief that further appeal would have been futile in light of existing case law. We therefore find Thomas and Walters applicable to the instant cause even though the magistrate's report does not contain the warning that failure to object could lead to waiver of further appeal.

5

It appearing therefore that the appeal is frivolous and entirely without merit, Rule 9(d)(2), Rules of the Sixth Circuit,

6

It is ORDERED that the motion to dismiss is granted and the final order of the district court is affirmed.