Drene Singer, Loren Singer, Rachael Singer and Adam Singer v. Richard S. Schweiker, Secretary of Health and Human Services

694 F.2d 616 Drene SINGER, Loren Singer, Rachael Singer and Adam Singer, Plaintiffs/Appellants, v. Richard S. SCHWEIKER, * Secretary of Health and Human Services, Defendant/Appellee. No. 81-5707. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 7, 1982. Decided Dec. 13, 1982. James A. Harris, San Diego, Cal., for plaintiffs/appellants. J.W. Wojciechowski, Dept. of Health & Human Services, Baltimore, Md., for defendant/appellee. Appeal from the United States District Court for the Southern District of California. Before FARRIS and CANBY, Circuit Judges, and WHELAN ** , District Judge. CANBY, Circuit Judge: 1 Billy O. Singer, Husband of Drene Singer and father of Loren, Rachael and Adam Singer, was last seen on July 4, 1964. On February 13, 1969, Drene Singer applied to the Social Security Administration for survivor's benefits for herself and each of her children. 42 U.S.C. Sec. 402 (d) & (g). The application was denied at various administrative levels but not pursued to an administrative hearing. 2 On October 7, 1971, Drene Singer filed a second application which also was denied at various administrative levels, resulting in an administrative…

Billy 0. Singer, Husband of Drene Singer and father of Loren, Rachael and Adam Singer, was last seen on July 4, 1964. On February 13, 1969, Drene Singer applied to the Social Security Administration for survivor’s benefits for herself and each of her children. 42 U.S.C. § 402 (d) & (g). The application was denied at various administrative levels but not pursued to an administrative hearing.

On October 7, 1971, Drene Singer filed a second application which also was denied at various administrative levels, resulting in an administrative hearing held on October 20, 1972. The Administrative Law Judge held that the original absence was not unexplained, and that therefore Billy Singer could not be presumed dead. An appeal to the Appeals Council of the Social Security Administration resulted in the approval and adoption of the decision of the Administrative Law Judge. Mrs. Singer did not seek review of that final decision.

Third and fourth applications for surviv- or’s benefits were filed in 1974 and 1977. These were denied at various administrative levels on the ground that they were identical to the original application and presented no new evidence. These applications did include…

concurring:

I concur in Judge Canby’s opinion solely because I consider that I am bound by the decision of the Ninth Circuit in Christen v. Secretary of Health, Education and Welfare, 439 F.2d 715 (1971).

concurring:

But for our decision in Christen v. Secretary of Health, Education and Welfare, 439 F.2d 715 (9th Cir.1971), I would agree with the district court.

I agree with the majority that the Secretary’s decision not to reopen Mrs. Singer’s second claim is not a “final decision” open to judicial review. See, e.g., Califano v. Sanders, 430 U.S. 99, 107-09 , 97 S.Ct. 980, 985-986 , 51 L.Ed.2d 192 (1977) (refusal to reopen claims held not reviewable); Davis v. Schweiker, 665 F.2d 934, 935 (9th Cir. 1982) (refusal to reopen claim and denial on ground of administrative res judicata held not reviewable).

Therefore, whether the district court had subject matter jurisdiction depends on whether Mrs. Singer raised a colorable con- *619 Due Process stitutional claim under the Clause of the Fifth Amendment. Mrs. Singer argues that the passage of an additional seven years since the denial of her second application entitled her to a new hearing. This argument, in my opinion, is foreclosed by Califano v. Sanders. Mrs. Singer overlooks the fact that the presumption of death requires that the person has been absent from his or her residence “for no apparent reason and has not been heard from…