Emma Powderly v. Richard S. Schweiker, Secretary of the Department of Health and Human Services, and Donald T. Regan, Secretary of the Treasury

Appellant appeals from an order of the district court granting the defendants’ motion for summary judgment and dismissing her complaint. She alleges that the government’s method of recovering the proceeds of benefit checks erroneously sent to deceased beneficiaries violates the Social Security Act (Act), 42 U.S.C.A. § 404 , the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., the Freedom of Information Act (FOIA), 5 U.S.C. § 552 , and the Fifth Amendment. We affirm.

FACTS

Appellant’s husband died on August 24, 1978. Prior to his death, each received a social security benefit in the form of separate checks drawn in each of their names. Shortly after his death, appellant began receiving the statutory widow’s benefits. On September 3, 1978, however, she also received her deceased husband’s August social security check in the amount of $243.30. 1 She contends that the local office of the Social Security Administration (SSA) informed her that the check could be negotiated. Thereafter, she deposited the check in her account at Seattle-First National Bank (Sea-First), with the following endorsement: “Hugh C. Powderly by Emma L. Powderly for deposit only.”

Sometime in…

concurring:

I concur in the result, but write separately to record my disagreement with the majority’s approach to appellant’s claim that the government deprived her of a property interest in violation of her Fifth Amendment right to procedural due process. I suggest that the majority misperceives the nature of Powderly’s due process claim. She asserts that in November, 1979, funds were taken from her own bank account by the government without due process.- The majority mistakenly characterizes her claimed property interest as “a property interest in the funds erroneously sent to her deceased husband.” These funds were embodied in a government check in her deceased husband’s name that was mailed to her address fourteen months earlier in September, 1978, and that she endorsed and deposited in her checking account. The majority further characterizes her claim as a “unilateral” and “abstract” claim to her husband’s social security benefits.

Neither characterization is accurate. Powderly objects to the debiting of her *1099 bank account in November of 1979. The proceeds from her husband’s check after fourteen months may or may not have been in that account when it was debited, but…

704 F.2d 1092 1 Soc.Sec.Rep.Ser. 373 Emma POWDERLY, et al., Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of the Department of Health and Human Services, and Donald T. Regan, Secretary of the Treasury, Defendants-Appellees. No. 82-3092. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 8, 1982. Decided April 26, 1983. Terrence Sawyer, Richard Smith, Spokane, Wash., for plaintiff-appellant. A. George Lowe, Ellen J. Sazzman, Dept. of Justice, Washington, D.C., for defendants-appellees. Appeal from the United States District Court Eastern District of Washington. Before KILKENNY, CHOY and FLETCHER, Circuit Judges. KILKENNY, Circuit Judge: 1 Appellant appeals from an order of the district court granting the defendants' motion for summary judgment and dismissing her complaint. She alleges that the government's method of recovering the proceeds of benefit checks erroneously sent to deceased beneficiaries violates the Social Security Act (Act), 42 U.S.C.A. Sec. 404 , the Administrative Procedure Act (APA), 5 U.S.C. Sec. 551 et seq., the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 , and the Fifth Amendment. We affirm. FACTS 2 Appellant's husband…