Unpublished Dispositionirving J. Adley, Iii, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 833 F.2d 1011 (6th Cir. 1987)

ORDER

The plaintiff appeals from an order entering judgment for the Secretary in this action for Social Security disability insurance benefits. The Secretary now moves to dismiss this appeal on grounds that (1) the plaintiff filed a premature notice of appeal, or (2) the plaintiff failed to file a timely objection to a Magistrate's report and recommendation. The plaintiff has responded in opposition to the motion.

The Magistrate filed a report and recommendation (R & R) affirming the Secretary's denial of benefits on April 13, 1987, and mailed a copy to the plaintiff's local counsel on that same day. By order dated April 30, 1987, the district court adopted the Magistrate's R & R and entered judgment for the Secretary. On May 4, 1987, the plaintiff's primary counsel filed objections to the report and recommendation. The plaintiff moved to vacate the entry of judgment for the Secretary on May 26, 1987, and filed a notice of appeal (87-3516) on May 29, 1987. The district court denied the motion to vacate on August 31, 1987, and the plaintiff filed a second notice of appeal (87-3901) on September 24, 1987.

Under 28 U.S.C. § 636(b) (1), both parties must serve and file written objections to the Magistrate's report and recommendation within ten (10) days after being served with a copy of that report. Failure to file a timely objection constitutes waiver of that party's right to appeal from the district court's entry of judgment in accord with the R & R. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). This Court may excuse the waiver in the interest of justice. Thomas v. Arn, 474 U.S. at 155; Kent v. Johnson, 821 F.2d 1220, 1223 (6th Cir. 1987). Although delayed receipt of the R & R should be considered in weighing the "interests of justice," mere allegation of delayed receipt alone will not excuse the waiver. Kent, 821 F.2d at 1223. No additional factors justifying excuse are present in the instant appeal. Therefore,

It is ORDERED that the motion to dismiss case number 87-3516 for failure to file a timely objection to the Magistrate's report and recommendation is granted. This order shall have no effect upon appeal number 87-3901.