Small v. Secretary of Health and Human Services, Docket No. 89-6031

• Decision Date: 14 December 1989
• Docket Number: Docket No. 89-6031
• Citation: 892 F.2d 15
• Parties: , Unempl.Ins.Rep. (CCH) P 15162A Shirley SMALL, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 15

892 F.2d 15

15 Fed.R.Serv.3d 458, Unempl.Ins.Rep. (CCH) P 15162A

Shirley SMALL, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

Docket No. 89-6031.

United States Court of Appeals Second Circuit.

Argued Oct. 17, 1989.

Decided Oct. 17, 1989.

Opinion Dec. 14, 1989.

Nancy Morawetz, Joyce Tom, Legal Intern, Laurie Norris, Legal Intern, Washington Square Legal Services, New York City, for plaintiff-appellant.

Benito Romano, U.S. Atty., S.D.N.Y., Sapna V. Raj, Sp. Asst. U.S. Atty., S.D.N.Y., New York City, for defendant-appellee.

Before LUMBARD, MESKILL and WINTER, Circuit Judges.

PER CURIAM:

This is a motion to dismiss an appeal from an order of the United States District Court for the Southern District of New York, Edelstein, J., granting defendant-appellee's motion to dismiss the complaint for lack of subject matter jurisdiction. Defendant-appellee Secretary of Health and Human Services (the Secretary) moves to dismiss plaintiff's appeal for failure to object to the magistrate's report and recommendation, which the district court adopted. The motion was argued before this Court on October 17, 1989, at which time we denied the Secretary's motion. We write to clarify the basis for that ruling.

BACKGROUND

Plaintiff-appellant Shirley Small (Small) sought a hearing before an Administrative Law Judge (ALJ) on the Secretary's decision to terminate her social security income benefits. After Small failed to attend several scheduled hearings, the ALJ dismissed her request for a hearing. The Secretary's Appeals Council refused to review the ALJ's decision, and Small commenced this action pro se to obtain review of the ALJ's dismissal pursuant to 42 U.S.C. § 405(g). The Secretary moved pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction on the basis that no final decision of the Secretary existed for the district court to review. See 42 U.S.C. § 405(g) (district courts may review any "final decision" of the Secretary).

Pursuant to 28 U.S.C. § 636(b)(1)(B), the district court referred the motion to Magistrate Leonard Bernikow. On August 25, 1987, the magistrate issued a report recommending that plaintiff's complaint be dismissed without prejudice. The report stated that the parties "are hereby advised of their right to file objections to this report with Judge Edelstein on or before September 14, 1987. See Fed.R.Civ.P. 72(b), 6(a), 6(e)." Small never objected to the magistrate's report, and by order dated November 28, 1988 the district court adopted the magistrate's recommendation and dismissed the complaint. Small appeals from that order and the Secretary moves to dismiss the appeal for Small's failure to object to the magistrate's report.

DISCUSSION

We have adopted the rule that failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision. Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir.1988); see McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir.1983); John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 588 F.2d 24, 29-30 (2d Cir.1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979). The Supreme Court upheld this practice, at least when the parties receive clear notice of the consequences of their failure to object. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). In the present case, the magistrate's report notified the parties of the ten day time limit on...