UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: August 23, 1973.
ADA BLEW, APPELLEE.
ELLIOT L. RICHARDSON, SECRETARY OF HEALTH, EDUCATION AND WELFARE, APPELLANT
Swygert, Chief Judge, and Fairchild and Stevens, Circuit Judges.
STEVENS, Circuit Judge.
An unexplained absence of over seven years gives rise to a presumption of death for Social Security purposes.*fn1 The question presented by this appeal is whether an explanation which is found in events preceding the absence may defeat the presumption. The district court, 344 F. Supp. 183, held that the presumption must control unless there is evidence of continued life during the seven-year period. We reverse.
After an evidentiary hearing and an appeal, the Secretary denied a claim for child's insurance benefits under § 202(d) of the Social Security Act, 42 U.S.C. § 402(d). The child's mother then brought this action in the district court pursuant to § 205(g), 42 U.S.C. § 405(g). From a summary judgment in her favor, the Secretary has appealed.
At the time of his departure in November, 1958, the wage earner was known as Ernest Ballard. Prior to his marriage to the plaintiff in July, 1955, he had been known as Earl Bullard. The Hearing Examiner found that he was an unstable person with expensive habits. During the marriage, plaintiff's savings were dissipated and she found it necessary to file bankruptcy proceedings. The family moved several times. In January, 1958, the claimant was born. Ballard failed to provide adequate support for the child. In November, 1958 plaintiff and the child returned to her mother's home in Kankakee. Advised of Ballard's intent to visit them, plaintiff arranged to have him arrested upon his arrival at the railroad station and jailed for non-support. At the court hearing, he signed an agreement to support the child and was released. He then expressed an intent to visit his child that afternoon, but in fact left for parts unknown.
In 1966 plaintiff filed an application for widow's insurance benefits, which was denied and is not before us. In 1969 she applied, on behalf of her son, for a child's benefit. The claim was rejected on the basis of the Hearing Examiner's determination that Ballard's "absence was not unexplained within the meaning of § 404.705." Although the record contains some hearsay evidence of continued life,*fn2 the Examiner's decision rested squarely on the pre-departure facts.*fn3
The district court recognized that this is a "case of first impression" in this circuit and described an apparent conflict in other court of appeals decisions.*fn4 The court concluded that it would be paradoxical to permit the same pre-depature evidence both to create the presumption and to destroy it.*fn5
In our opinion the same evidence is not self-contradictory. The evidence which raises the presumption is proof that Ballard was absent and unheard of for a period of seven years after November 15, 1958. The evidence on which the Secretary relies to rebut that presumption concerns events on or before November 15, 1958. The Secretary's analysis is not paradoxical; it may nevertheless, of course, be erroneous.
To place the legal issue in proper focus, it is useful to differentiate between the character of an explanation and the time when it is made. One may easily posit cases in which a fugitive's pre-departure statements so plainly describe an intent to disappear completely from former associates -- such as an estranged spouse, muscular creditors, or a strict commanding officer -- that a continued life under a new identity is at least as probable as death even though seven years have elapsed.*fn6 Pushed to its logical conclusion the rule which the district court has followed would mean that after an absence of seven years death must be presumed no matter how strong the evidence of intent to disappear and to effect a complete change of identity, provided there were no post-departure explanation of his whereabouts. There are four reasons why we believe the Secretary's regulation did not promulgate such a rule.
First, history teaches us that deliberate desertions do in fact take place frequently. Whatever our personal predilections might be, the statute does not authorize the payment of benefits to deserted victims.*fn7 A wage earner's prolonged absence, which is more probably the consequence of deliberate desertion by a living spouse or parent than of death, should not, therefore, create a right to statutory benefits.
Second, the Secretary's regulation is quite obviously based on the common law presumption. As we read the common law authorities, the presumption of death resting on evidence of an absence for seven years, could be rebutted either by (a) evidence of continued life during that period, or (b) evidence of motivation that created a probability of continued life notwithstanding the lack of any communication from the absentee for a prolonged period.*fn8 In short, pre-departure evidence was admissible to rebut the presumption.
Third, the text of the regulation itself quite plainly authorizes alternative means of rebutting the presumption. The regulation requires that the individual be "unexplainedly absent" and also "unheard of" for a seven year period.*fn9 The presumption then applies "in the absence of any evidence to the contrary." A fair reading of this language indicates that the Secretary may adduce evidence to contradict either the unexplained character of the absence or the fact that the individual has not been heard of for seven years. If only the latter evidence were admissible, the requirement that the absence be unexplained would be meaningless. For by hypothesis every absence that meets the second requirement will be unexplained during the entire period subsequent to the last time anyone had heard of the absentee.
Finally, we are told that the Secretary's interpretation has been consistently followed in thousands of cases since the regulation was first promulgated in 1951.*fn10 There is no suggestion that this interpretation is not completely consistent with the governing statute. The Secretary's interpretation of his own regulation is therefore entitled to great respect. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 381, 89 S. Ct. 1794, 23 L. Ed. 2d 371; Universal Battery Co. v. United States, 281 U.S. 580, 50 S. Ct. 422, 74 L. Ed. 1051.
Having concluded that predeparture evidence may support a finding that the wage earner's absence is not unexplained, the only issue which remains is whether the evidence in this record is sufficient to support that finding. This is a question of fact controlled by the "substantial evidence" standard of review. Under that standard, we are satisfied that the evidence is sufficient to support the Secretary's determination.