David Knisley v. Secretary of Health and Human Services , 786 F.2d 1165 ( 1986 )

786 F.2d 1165

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

85-3472

United States Court of Appeals, Sixth Circuit.

2/26/86

S.D.Ohio

APPEAL DISMISSED

ORDER

1

BEFORE: JONES and WELLFORD, Circuit Judges, and GILMORE, District Judge.*

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 record, plaintiff's motion to dismiss and the response thereto, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

3

Plaintiff instituted this action in district court seeking review of the Secretary's decision to deny plaintiff disability insurance benefits. The case was referred to a magistrate who recommended the decision of the Secretary be reversed and that judgment be entered for plaintiff. One month later, no objections having been made to this recommendation, the district court granted judgment for plaintiff. The Secretary has appealed. Plaintiff has moved to dimiss the appeal. On July 30, 1985, an order was entered staying further appellate proceedings pending disposition of the en banc decisions in Shepherd v. Secretary of Health and Human Services, 758 F.2d 196 (6th Cir. 1985) (reh'g argued December 13, 1985), and Mullen v. Secretary of Health and Human Services, 762 F.2d 509 (6th Cir. 1985) (reh'g argued December 16, 1985).

4

Upon consideration, we find the motion to be well made. The record clearly discloses the failure of defendant to file objections to the magistrate's report. This report was accompanied by the notation that failure to file objections to the magistrate's report within ten days could result in the forfeiture of the right of further appeal. Twenty-nine (29) days after the report was filed the district court noted the absence of objections and entered judgment for plaintiff. This being the case, the Secretary's right to appeal this decision has been waived. Thomas v. Arn, 54 U.S.L.W. 4032 (U.S. Dec. 4, 1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The outcome of Shepherd, supra, and Mullen, supra, is thus irrelevant to the instant cause.

5

It is therefore ORDERED that the stay order in this cause entered July 30, 1985 is hereby vacated as to this action only. It is further ORDERED that the plaintiff's motion to dismiss be granted and the appeal is hereby dismissed. Rule 9(d)(2), Rules of the Sixth Circuit.

6

Judge Wellford concurs in this disposition. It is regrettable that the Secretary did not file timely objections to the magistrate's report in this case to protect her position in light of this court's action in granting en banc hearing in Shepherd v. Secretary, No. 84-5352 (see order of July 1, 1985), and in Mullen v. Secretary, No. 84-1455 (see order of August 19, 1985), cases involving similar issues concerning the authority of the Appeals Council to review and to reverse the decision of the ALJ, and the standard of review on appeal from such decision of the Secretary.

*

The Honorable Horace W. Gilmore, U.S. District Judge for the Eastern District of Michigan, sitting by designation