787 F. 2d 592 - Virginia Muldoon v. Secretary of Health and Human Services

Plaintiff filed this action challenging the Secretary's denial of social security disability benefits. The case was referred to a magistrate, who recommended granting the plaintiff's motion for summary judgment. The district court adopted the magistrate's report and granted summary judgment for the plaintiff. The plaintiff has moved to dismiss the appeal on the ground that the Secretary waived her right to appeal. The Secretary has responded to the motion, arguing that objections would have been futile in light of this Court's decision in Newsome v. Secretary of Health and Human Services, 753 F.2d 44 (6th Cir. 1985).

The record reveals that the Secretary failed to file objections to the magistrate's report and recommendation. The magistrate's report clearly stated that the parties were required to file objections or else waive the right to appeal. Nineteen (19) days after the magistrate's report was filed, the district court adopted the magistrate's report and recommendation and granted summary judgment for the plaintiff. Under these circumstances, the Secretary waived her right to appeal. See Thomas v. Arn, ---- U.S. ----, 54 U.S.L.W. 4032 (U.S. Dec. 4, 1985); Patterson v. Mintzes, 717 F.2d 284 (6th Cir. 1983); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The fact that the Secretary failed to file objections because she considered objections to be futile does not alter our decision.

Therefore, plaintiff's motion to dismiss is granted and the appeal is hereby dismissed. Rule 9(d)(2), Rules of the Sixth Circuit.