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June 20, 1972


The opinion of the court was delivered by: Robert D. Morgan, District Judge.


The Complaint herein seeks review of a decision of the Secretary of Health, Education, and Welfare, which denied Social Security insurance benefits to Rodney Ballard, as the child of wage earner Ernest Ballard. The Secretary declined to apply the presumption that said Ernest Ballard is deceased, by operation of Section 404.705 of Social Security Administration Regulation No. 4(20 C.F.R. § 404.705),*fn1 on the ground that the absence is not unexplained. The record before the Secretary has been filed and both sides have appropriately moved for summary judgment here. This court must review the record and affirm the Secretary's decision if it is supported by substantial evidence. Kutchman v. Cohen, 425 F.2d 20 (C.A. 7 1970).

There is no important dispute in the facts recited by the Hearing Examiner, as follows:

  "The testimony presented at the oral hearing and
  the documentary evidence serves to establish that
  the claimant married Ernest Ballard July 6, 1955.
  Prior to this marriage and to August 1952, it
  appears that the same Ernest E. Ballard had
  previously been known as Ernest Bullard but
  notified the Social Security Administration of
  the change of his family name in August 1952. The
  claimant at the hearing stated that this change
  in name had surprised members of his family when
  they found out about it. At the time of the
  claimant's marriage to the wage earner, the
  claimant stated that she had been working and had
  saved money from her work. At the time of the
  wage earner's disappearance, the claimant stated
  that she was $6000 in debt and to relieve
  herself, filed a bankruptcy proceeding. Some six
  or seven months after her marriage to Ernest
  Ballard, she found out that the wage earner had
  also gone by the names of "Earl" and "Bullard".
  During the time they lived together as man and
  wife, that is July 6, 1955 and November 15, 1958,
  the family moved several times and preceding the
  wage earner's disappearance on November 15, 1958,
  the claimant had returned to her mother's home in
  Illinois. The wage earner apparently then
  communicated with the claimant at her mother's
  home requesting that he be permitted to see their
  child, Rodney, who had been born January 9, 1958.
  He came to the mother's home but at the railroad
  station was picked up by the police and jailed
  four days for nonsupport. The police had been
  notified by the claimant of the wage earner's

  expected arrival in town. At a court hearing the
  wage earner signed an agreement to support the
  child, was released from jail and at the same
  time the claimant told the wage earner that as
  long as he supported his child, he could see the
  child. The wage earner reportedly said that he
  would be out that afternoon to see the child but
  he did not show up and has not been seen since by
  the claimant or child. The claimant has inquired
  of friends and relatives of the whereabouts of
  the wage earner after November 15, 1958 and she
  has also addressed some letters to counties in
  Michigan where they had lived asking for his
  whereabouts. No information as to his whereabouts
  was ever received from any of these sources."

Based upon this set of facts, the Hearing Examiner concluded:

  "Regardless of this fact, the wage earner's
  absence for more than seven years does not appear
  to be an unexplained absence. The family's many
  moves, the wage earner's expensive habits, his
  instability, a separation in the marriage that
  occurred before his disappearance, and an arrest
  brought about by the information that the
  claimant furnished the police would suggest much
  domestic discord existing since the marriage of
  the claimant and the wage earner on July 6, 1955.
  The wage earner was apparently in good health and
  may well have found reason to disappear and
  escape the discord he found in his home."

That "explanation" of the wage earner's absence was accepted by the Secretary as rebuttal of the presumption of death established by the regulation. The complaint seeks reversal of that decision.

This is a case of first impression in this judicial circuit. Reported cases from other circuits appear to be inconsistent and conflicting in legal interpretation of the regulation. Also, the reported cases sometimes fail to adequately distinguish between, or, seemingly, to recognize a distinction between, the concepts of burden of proof imposed by the regulation and the quality of evidence which will support a determination that the continued absence of a wage earner from his family is not unexplained.

The court is of the opinion that the allocation of burden of proof was correctly defined and delineated by the Court of Appeals of the Ninth Circuit in Secretary of Health, Education and Welfare v. Meza, 368 F.2d 389 (C.A. 9 1966). When it is contended that a wage earner must be presumed to be dead by operation of the regulation, it is not necessary for the applicant to negate every possibility except that of death. The applicant has the burden of proving that the wage earner has been absent from his residence for a period of seven years and that the applicant has no explanation for such absence. Such proof makes a prima facie case, raising the presumption that the wage earner is dead. The burden of proof then shifts to the Secretary to adduce evidence that the wage earner is alive, or evidence of facts "that rationally explain the anomaly of the disappearance in a manner consistent with continued life" of the wage earner. Absent such evidence in explanation of the disappearance, the presumption of death is not overcome. Ibid, at 392-393; to same effect, Newman v. Gardner, 263 F. Supp. 58, 60 (E.D.N.Y. 1967).

This applicant did sustain her burden of proof to raise a presumption of Ballard's death. The question remains whether there is substantial evidence which tends to rebut that presumption and support the Secretary's determination that his absence is "not unexplained."

The plaintiff contends that there is no evidence to overcome the presumption of death. The Secretary takes the position that there is evidence of events and circumstances preceding Ballard's disappearance which tend to explain his continued absence.

Five reported cases which have considered the issue of presumption of death are cited by the respective parties.*fn2 Among them are cases tending to support each side of the coin. The conflict among such cases relates to what this court deems to be a necessary distinction between the probative weight to be accorded to evidence of circumstances antedating the wage earner's disappearance as contrasted to evidence of facts and circumstances following such disappearance. Strangely, no case articulates such distinction.

Without so specifically stating, the court in the Meza case refused to credit evidence which antedated the disappearance. In that case the wage earner had been divorced in Texas in 1945, the decree requiring him to pay child support. Such payments had not been made by him. In the same year he had married the claimant. Two children were born of that marriage. In June, 1948, he left his home in Los Angeles, California, without any explanation. The claimant's attempts to locate him were fruitless. Her inquiry at a local social security office in 1955 regarding her entitlement to benefits led to the discovery that the wage earner had been employed at Houston, Texas, as recently as the third quarter of 1954. There was evidence that he had left his employment in Houston in July, 1954, without notice to his employer. The Secretary concluded that the evidence indicated that the wage earner was possibly trying to avoid supporting his family and that there was "ample reason for him to keep his whereabouts unknown." 368 F.2d at 392. The court held that the presumption of death arose from the evidence that the wage earner had disappeared in July, 1954, and proof that the claimant knew of no explanation therefor. The court further held that there was no evidence to rationally explain the continued absence of the wage earner after July, 1954, and, thus, no evidence to rebut the presumption of death. Significantly, the court did not credit evidence of motives existing at the time of the initial disappearance as relevant to rebut that presumption.

Yet, in the same year, the Circuit Court for the Ninth Circuit rendered an apparently inconsistent decision in Gardner v. Wilcox, 370 F.2d 492 (C.A. 9 1966). In Wilcox the wage earner had left his home in Yakima, Washington, and had travelled to another city in the State, ostensibly to seek a change of employment. On the day following his departure, his wife was advised by National Guard officials that the wage earner had embezzled money entrusted to his care. On that same date, the wife advised the wage earner in a telephone conversation of the fact that he was accused of embezzlement. She last heard from the wage earner two days thereafter when she received a letter from him advising her where she would find the automobile which the wage earner had driven. The court characterized that letter as indicative of suicide. The automobile was located at the place indicated by the letter. All efforts by the wife, State officials, and the Federal Bureau of Investigation failed to reveal any trace, or information indicative of the continued life, of the wage earner subsequent to his writing the letter. The court, with one judge dissenting, reversed a judgment of the trial court which had set aside the Secretary's determination that the claimant was not entitled to the child's benefits. The ...

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