Secretary of Health, Education and Welfare of the United States of America v. Lucy Meza

The Secretary of Health, Education and Welfare appeals from an order of the District Court setting aside a decision of the Secretary. The proceeding was brought under 42 U.S.C. § 405 (g). In that proceeding the appellee, Lucy Meza, sought review of a denial by the Secretary of her application for mother’s and children’s benefits under 42 U.S.C. § 402 (d) and (g). We affirm.

The sole question presented to the Secretary was whether Lucy Meza’s husband Domingo was dead. There was no direct proof of his death. Lucy relied upon the fact that he had been absent and unheard from for more than seven years. This brought into play a regulation of the Secretary (20 C.F.R. 404.705) which provides in pertinent part:

The validity of this regulation is not attacked. The Secretary ruled that Domingo had not been unexplainedly absent for the requisite period. The Act, section 405(g), 42 U.S.C. provides:

The Secretary contends that the finding is so supported and that therefore the District Court erred in setting it aside.

On May 14, 1945, Domingo was divorced in Texas from his wife Amelia. There were three children of that marriage, aged 16, 14 and 12. Domingo was not ordered to pay alimony,…

Opinion on Petition for Rehearing

The Secretary of Health, Education and Welfare petitions for a rehearing and presents, in support of the petition, certain evidence indicating that Domingo Meza is alive. The evidence was obtained by the Secretary on the same date that our opinion was filed.

We do not think that we should grant a rehearing on this ground. This is because the order from which the appeal was taken, and which we affirmed in our opinion, reads in part as follows:

We think that the proper forum in which the Secretary should offer his newly discovered evidence is the administrative proceeding referred to in the judgment of the District Court. The petition for a rehearing is therefore denied.

368 F.2d 389 SECRETARY OF HEALTH, EDUCATION AND WELFARE of the United States of America, Appellant, v. Lucy MEZA, Appellee. No. 20037. United States Court of Appeals Ninth Circuit. August 31, 1966. Rehearing Denied November 16, 1966. John W. Douglas, Asst. Atty. Gen., Alan S. Rosenthal, J. F. Bishop, Attys., Dept. of Justice, Washington, D. C., Manuel L. Real, U. S. Atty., Los Angeles, Cal., for appellant. Nixon A. Lange, Huntington Park, Cal., for appellee. Before MERRILL and DUNIWAY, Circuit Judges and TAVARES, District Judge. DUNIWAY, Circuit Judge: 1 The Secretary of Health, Education and Welfare appeals from an order of the District Court setting aside a decision of the Secretary. The proceeding was brought under 42 U.S.C. § 405 (g). In that proceeding the appellee, Lucy Meza, sought review of a denial by the Secretary of her application for mother's and children's benefits under 42 U.S.C. § 402 (d) and (g). We affirm. 2 The sole question presented to the Secretary was whether Lucy Meza's husband Domingo was dead. There was no direct proof of his death. Lucy relied upon the fact that he had been absent and unheard from for more than seven years. This brought into…