439 F2d 715 Christen v. Secretary of Health Education and Welfare

439 F.2d 715

Grace M. CHRISTEN, Plaintiff and Appellant,
v.
SECRETARY OF HEALTH, EDUCATION AND WELFARE, Appellee.

No. 23839.

United States Court of Appeals, Ninth Circuit.

March 11, 1971.

Gil Medeiros (argued), of Rockwell, Fulkerson & Clarke, San Rafael, Cal., for appellant.

Peter Shackter, Asst. U. S. Atty. (argued) James L. Browning, U. S. Atty., Sheldon Deutsch, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, BROWNING and CARTER, Circuit Judges.

PER CURIAM:

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1

The summary judgment of the district court affirming the Department's denial of social security payments to the claimant is reversed.

2

This, like Secretary of Health, Education and Welfare v. Meza, 9 Cir., 368 F. 2d 389, and Gardner v. Wilcox, 9 Cir., 370 F.2d 492, is a case of the mysterious disappearance of a husband.

3

In our view the hearing examiner followed our decisions in Meza and Wilcox when he ruled in favor of claimant. The Secretary's review board reversed and ruled against the claimant.

4

While perhaps evidence of flight by a deserting husband would entitle the Secretary to adopt a rule of thumb for a while to delay the start of the running of the seven year period for the presumption of 20 C.F.R. 404.705, we cannot go along with the Department's apparent view that one achieves immortality by known flight.

5

Here by the time the decision cleared the Secretary's office for the second time, Christen had disappeared for a period of eleven and a half years. By that time he should have been presumed dead on the facts here.

6

The district court should direct the Department to rule in favor of the claimant except, of course, there is always the possibility that turned up in Meza (Meza was actually found). If any further evidence has turned up in the intervening years indicating that Christen is still alive, the case not being closed, the Department could consider it.

7

Remanded for proceedings consistent herewith.