786 F.2d 1164
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
EDWARD P. COMBS, Plaintiff-Appellee,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellant.
85-3770
United States Court of Appeals, Sixth Circuit.
2/26/86
S.D.Ohio
APPEAL DISMISSED
ORDER
BEFORE: JONES and WELLFORD, Circuit Judges, and GILMORE, District Judge.*
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.
Plaintiff instituted this action to review the Secretary's decision to deny plaintiff social security disability insurance benefits. The magistrate to whom the case was referred recommended granting summary judgment for plaintiff. No objections were filed to this recommendation even though defendant was informed at the time that failure to so file would mean waiver of further appellate review. The district court adopted this recommendation and defendant appeals. Plaintiff moves to dismiss this appeal and defendant has responded.
Upon consideration, we find the motion to be well made. The record before the Court clearly demonstrates that no objections had been filed to the magistrate's report by the Secretary after being notified of the possibility of this resulting in waiver of appellate review. Under these circumstances, the Secretary waived the right to appeal the decision of the district court. See 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). That the Secretary felt objecting to the magistrate's report would have been futile does not alter our decision.
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.
It is therefore ORDERED that the motion to dismiss be granted and that the appeal be dismissed pursuant to Rule 9(d)(2), Rules of the Sixth Circuit.
The Honorable Horace W. Gilmore, U.S. District Judge for the Eastern District of Michigan, sitting by designation