Unpublished Dispositionnazik Celmo, Plaintiff-appellee, v. Secretary of Health and Human Services, Defendant-appellant, 786 F.2d 1164 (6th Cir. 1986)

E.D. Mich.

APPEAL DISMISSED

ORDER

BEFORE: KEITH and MARTIN, Circuit Judges and WEBER, District Judge^* .

Plaintiff filed this action challenging the Secretary's denial of social security supplemental security income 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 grounds that the Secretary waived her right to appeal. On September 3, 1985, an order was entered staying further appellate proceedings pending the en banc decision of this Court in Mullen v. Secretary of Health and Human Services, No. 84-1455 (argued Dec. 16, 1985). The appeal has been referred to a panel of this Court pursuant to Sixth Circuit Rule 9(a). Upon examination of the record, plaintiff's motion to dismiss and the Secretary's response thereto, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

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. Twenty-four (24) days after the magistrate's report was filed, the district court noted that no objections had been filed, 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. Further, because the Secretary waived her right to appeal, the outcome of our en banc decision in Mullen v. Secretary of Health and Human Services, supra, is not relevant to disposition of this case.

Accordingly, the stay order of September 3, 1985, is hereby vacated. The plaintiff's motion to dismiss is granted and the appeal is hereby dismissed. Rule 9(d) (2), Rules of the Sixth Circuit.