Wallace v. Commissioner, Social Security Administration, No. 3:2010cv00100 - Document 32 (D. Or. 2012)
Court Description: Opinion and Order - Adopting Findings and Recommendation 30 . Signed on 1/10/12 by Judge Michael H. Simon. (mja)
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Wallace v. Commissioner, Social Security Administration Doc. 32 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION KENNETH A. WALLACE, Case No. 3:10-cv-00100-AC Plaintiff, v. OPINION AND ORDER MICHAEL J. ASTRUE, Commissioner of Social Security Defendant. SIMON, District Judge: On October 24, 2011, Magistrate Judge John V. Acosta issued findings and recommendations (#30) in the above-captioned case. Judge Acosta recommended that the Commissioner’s decision be reversed and the case be remanded for further proceedings consistent with his findings and recommendations. Neither party has filed objections. Under the Federal Magistrates Act, the court may “accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate.” Federal Magistrates Act, 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate’s findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3). Dockets.Justia.com If, however, no objections are filed, the Magistrates Act does not prescribe any standard of review. In such cases, “[t]here is no indication that Congress, in enacting [the Magistrates Act], intended to require a district judge to review a magistrate’s report[.]” Thomas v. Arn, 474 U.S. 140, 152 (1985); see also United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 540 U.S. 900 (2003) (the court must review de novo the magistrate’s findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Magistrates Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Federal Rule of Civil Procedure 72(b) recommend that “[w]hen no timely objection is filed,” the court review the magistrate’s findings and recommendations for “clear error on the face of the record.” No party having made objections, this court follows the recommendation of the Advisory Committee and reviews Magistrate Judge Acosta’s findings and recommendations (#30) for clear error on the face of the record. No such error is apparent. Therefore the court orders that Judge Acosta’s findings and recommendations (#30) is ADOPTED. Dated this 10th day of January, 2011 /s/ Michael H. Simon Michael H. Simon United States District Judge OPINION AND ORDER – Page 2
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