Unpublished Dispositioncecil Hensley, Plaintiff-appellee, v. Secretary of Health and Human Services, Defendant-appellant, 819 F.2d 289 (6th Cir. 1987)

ORDER

The defendant appeals the summary judgment for plaintiff in this action for review of the Secretary's denial of social security disability benefits. The defendant now moves for remand of this case to the district court for consideration of a motion to vacate judgment pending therein.

Adopting a Magistrate's report and recommendation, the district court entered judgment for the plaintiff on January 16, 1987. The defendant filed a notice of appeal on March 13, 1987. On the same day, however, the defendant also filed a motion to vacate the judgment under Rule 60(b), Federal Rules of Civil Procedure. That motion apparently was based upon an assertion the district court had failed to consider the defendant's timely filed objections to the Magistrate's report prior to entry of judgment.

The district court entered an order on March 25, 1987, acknowledging the fact it had not received the objections in chambers prior to judgment. Although the court stated it was prepared to vacate its judgment under Rule 60(b), it could not do so because jurisdiction had passed to this Court. It therefore suggested the defendant file the present motion in this Court pursuant to the provisions of First National Bank of Salem v. Hirsch, 535 F.2d 343 (6th Cir. 1976).

Upon consideration and concluding the defendant has fulfilled the requirements of Hirsch, supra,

It is ORDERED that the motion to remand is granted.