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849 F2d 609 Meyer v. Secretary of Health and Human Services

849 F.2d 609

Richard A. MEYER, Plaintiff-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 86-1741.

United States Court of Appeals, Sixth Circuit.

June 21, 1988.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before MILBURN, RALPH B. GUY, Jr. and ALAN E. NORRIS, Circuit Judges.

ORDER

1

Defendant-appellee Secretary of Health and Human Services ("Secretary") moves to dismiss the appeal on the grounds that plaintiff waived his right to appellate review by not objecting to the magistrate's report and recommendation to grant defendant's motion for summary judgment. Plaintiff admits that his failure to file objections has waived his right to appeal, but urges this court, in the interest of saving judicial resources, to remand this case to the Secretary for consideration of "new material evidence."

2

In United States v. Walters, 629 F.2d 947 (6th Cir.1981), this circuit established "that a party must file timely objections with the district court to avoid waiving appellate review." Smith v. Detroit Federation of Teachers, Local 231, 829 F.2d 1370 (6th Cir.1987) (emphasis in original). See Thomas v. Arn, 474 U.S. 140 (1985). As plaintiff has made no attempt to justify his failure to comply with this requirement, we will not review the proceedings below. Whether the district court relied on the magistrate's report and recommendation in dismissing the action is irrelevant.

3

Moreover, plaintiff's request for a remand because of new evidence has already been considered and denied by this court in an order dated August 3, 1987. Accordingly, it is ORDERED that the Secretary's motion to dismiss be and it hereby is GRANTED.