John W. Gardner, Secretary of Health, Education and Welfare v. Wanda U. Wilcox

This action was brought by appellee to review a final decision of appellant Secretary of Health, Education and Welfare, denying appellee’s claim for social security benefits based upon the alleged death of appellee’s husband. The Secretary’s denial was based upon a decision by a Department hearing examiner ad *493 verse to appellee, and the Department’s affirmance of that decision on administrative appeal. The hearing examiner found that there was no evidence of death and ruled that the presumption of death provided by Social Security Administration Regulation 1 did not apply, since the absence of appellee’s husband for more than seven years was not unexplained. The District Court reversed the Secretary’s decision, in effect holding as a matter of law that on the record the disappearance was unexplained, and accordingly under the Department’s regulation death must be presumed. Summary judgment was rendered for appellee and this appeal by the Secretary followed.

The facts relating to the disappearance are not disputed. Appellee and her husband were married July 2, 1937, in Yakima, Washington. The husband was last seen by appellee on March 30, 1953. At the time of his disappearance…

(dissenting) :

Had I been a member of the panel that sat in Secretary of Health, Education and Welfare v. Meza, supra, I would have concurred in that opinion. On the authority of that case, I would affirm the district court here. I can’t explain to Mrs. Wilcox the difference in the two cases.

I take some small consolation from the fact the majority tells the Secretary that on the facts here, the hearing examiner and he can find that the disappearance is unexplained for the required period of time.

370 F.2d 492 John W. GARDNER, Secretary of Health, Education and Welfare, Appellant, v. Wanda U. WILCOX, Appellee. No. 20369. United States Court of Appeals Ninth Circuit. Sept. 19, 1966. John W. Douglas, Asst. Atty. Gen., Alan S. Rosenthal, J. F. Bishop, Attys., Dept. of Justice, Washington, D.C.; Frank R. Freeman, U.S. Atty., Yakima, Wash., for appellant. Perry J. Robinson, Yakima, Wash., for appellee. Before CHAMBERS, MERRILL and KOELSCH, Circuit Judges. MERRILL, Circuit Judge: 1 This action was brought by appellee to review a final decision of appellant Secretary of Health, Education and Welfare, denying appellee's claim for social security benefits based upon the alleged death of appellee's husband. The Secretary's denial was based upon a decision by a Department hearing examiner adverse to appellee, and the Department's affirmance of that decision on administrative appeal. The hearing examiner found that there was no evidence of death and ruled that the presumption of death provided by Social Security Administration Regulation 1 did not apply, since the absence of appellee's husband for more than seven years was not unexplained. The District Court reversed the Secretary's…