Brewster on Behalf of Keller v. Sullivan, 91-3172

• Decision Date: 12 August 1992
• Docket Number: No. 91-3172,91-3172
• Citation: 972 F.2d 898
• Parties: , Unempl.Ins.Rep. (CCH) P 16833A Sherry M. BREWSTER, on Behalf of the Minor Children of Joseph P. KELLER, Appellant, v. Louis SULLIVAN, Secretary of Health and Human Services of the United States, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 898

972 F.2d 898

38 Soc.Sec.Rep.Ser. 376, Unempl.Ins.Rep. (CCH) P 16833A

Sherry M. BREWSTER, on Behalf of the Minor Children of Joseph P. KELLER, Appellant, v. Louis SULLIVAN, Secretary of Health and Human Services of the United States, Appellee.

No. 91-3172.

United States Court of Appeals Eighth Circuit.

Submitted May 15, 1992.

Decided Aug. 12, 1992.

Keith J. Halleland, Minneapolis, Minn., argued, for appellant.

Richard E. Vosepka, Minneapolis, Minn., argued (Donna L. Calvert, Chicago, Ill., on brief), for appellee.

Before FAGG, Circuit Judge, HENLEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

HENLEY, Senior Circuit Judge.

Sherry M. Brewster, on behalf of the minor children of Joseph P. Keller, appeals from a judgment of the district court upholding a decision of the Secretary of Health and Human Services (Secretary) denying a claim for children's insurance benefits under 42 U.S.C. § 402(d). We reverse and remand with directions to award benefits.

Brewster married Keller in 1974. They had two children, Jason and Melissa. Keller was a pilot and an airplane mechanic employed by Air Cortez, which was located in Ontario, California. Keller has been missing since May 1980.

In 1981 and 1984 Brewster filed applications for survivors' benefits. Evidence developed in connection with the applications reveal the following. On April 27, 1980, Keller supposedly piloted a company DC-3 airplane from Ontario, California to San Antonio, Texas for modifications. Keller telephoned William Schlick, president of Air Cortez, and informed Schlick that he had arrived in San Antonio and would return to Ontario on May 9 or 10 when the modifications were completed. When Keller failed to arrive, Schlick called the San Antonio airport and learned that Keller had never appeared. Schlick also discovered that a company credit card was missing. He then filed a police report.

The Ontario police contacted the San Antonio police and learned that Keller had been under investigation for drug smuggling. According to the police report, the airplane had not landed at the San Antonio airport, but had landed at an airport in Waco, Texas and Keller and John Flowers had been in Waco, Texas from April 27 until May 9. On that day the airplane had refueled with 800 gallons of gasoline, which had been charged with the company credit card, and drug agents saw the airplane depart in a southerly direction. A confidential informant told the police that the airplane might be located in Barranquilla, Colombia, South America. The police report also stated that Brewster and Keller's brother John had been informed that Keller had died in an airplane crash in Colombia, South America. The police terminated their investigation and advised Keller's family to contact the American Consulate in South America.

The family contacted the consulate in Barranquilla and were informed that a DC-3 airplane with two bodies had crashed on May 13, 1980 near Barranquilla, but neither the airplane nor the bodies could be positively identified. Keller's family was unable to supply adequate dental records to permit identification.

During the course of the investigation, officers searched Keller's locker at Air Cortez and his apartment. In the locker, officers found a grenade and a driver's license and birth certificate in the name of Emery Whitthram. Officers learned that Keller had stated on several occasions that he wanted "to chuck it all and move to Costa Rica."

The Secretary denied the applications on the ground that Brewster had failed to submit direct evidence that Keller was dead, and because Keller had not yet been missing for seven years he could not be presumed dead under the regulations. In May 1987 Brewster filed a third application, relying on the presumption of death created by 20 C.F.R. § 404.721(b). The regulation provides that if a claimant cannot prove that a person is dead, the Secretary will presume death if the claimant provides "[s]igned statements by those in a position to know or other records which show that the person has been absent from his or her residence for no apparent reason, and has not been heard from, for at least 7 years."

In addition to the information previously submitted, Brewster submitted a statement indicating that neither she nor her children had seen or heard from Keller since May 1980 and that she believed he had died in an airplane crash in Colombia, South America in May 1980. She also provided statements from friends and relatives stating that they had not heard from Keller since May 1980 and knew of no problems that would account for his disappearance and a report from John Flowers' father that he had not heard from Flowers since 1980.

Initially, the application was granted, but the case was reopened, and on reconsideration the decision awarding benefits was reversed. Brewster appealed, contending that under the regulation she raised the presumption of death and the Secretary had not rebutted it. After a hearing, an administrative law judge (ALJ) upheld the denial, finding that Brewster had not established that Keller had disappeared for "no apparent reason." The ALJ believed that while it was possible that Keller and Flowers had died in the plane crash, it was also possible that Keller had gone into hiding because he was under investigation for drug smuggling or because he had stolen the airplane and credit card, noting that a fictitious driver's license and birth certificate were found in Keller's locker. The ALJ also thought that it was possible that Keller had "arranged the crash of the aircraft by use of a grenade modified in a similar way to the one found among Keller's possessions." The Appeals Councils upheld the denial of benefits.

Brewster appealed the decision to the district court, arguing that she had established the presumption of death under the regulation and that the Secretary had produced no affirmative evidence to rebut it. Brewster relied on cases from five courts of appeals holding that under the regulation ¹ "when the facts show that a person has been absent from his residence and unheard for a period of seven years, a presumption arises that he is dead." Aubrey v. Richardson, 462 F.2d 782, 784 (3d Cir.1972) (quoting Secretary v. Meza, 368 F.2d 389, 392 (9th Cir.1966)). See also Autrey v. Harris, 639 F.2d 1233 (5th Cir.1983); Edwards v. Califano, 619 F.2d 865 (10th Cir.1980); and Johnson v. Califano, 607 F.2d 1178 (6th Cir.1979). These courts, however, hold that "[t]he presumption is not irrebuttable ... and once the presumption is established, 'the burden of persuasion shifts to the Secretary, and the presumption can be dissipated by proof of facts that rationally explain the anomaly of the disappearance in a manner consistent with continued life.' " Aubrey v. Richardson, 462 F.2d at 784 (quoting Gardner v. Wilcox, 370 F.2d 492, 494 (9th Cir.1966)).

In response, the Secretary acknowledged that he had acquiesced in the decisions cited by Brewster, but argued the cases were wrongly decided. The Secretary maintained that under the regulation a claimant not only had the burden of proving that a wage earner had disappeared for seven years, but also had the burden of proving there was no apparent reason for the disappearance. ² The Secretary argued that Brewster had not proved that Keller had been missing for "no apparent reason," and in the alternative argued he had rebutted the presumption of death.

The district court noted that the Eighth Circuit had not interpreted the regulation. Rejecting the appellate courts' interpretations of the regulation, the district court agreed with the Secretary that the regulation required a claimant to prove that a wage earner's disappearance was for no apparent reason and that Brewster had failed to raise the presumption. In the alternative, the court held that even if the presumption had arisen, the Secretary had rebutted it.

"The arguments on appeal [focus] on the proper standards for raising and rebutting the presumption of death under 20 C.F.R. § 704.721(b)." ³ Mando v. Secretary, 737 F.2d 278 (2d Cir.1984). We acknowledge that as a general rule an agency's interpretation of its own regulation is entitled to great deference. Lile v. University of Iowa Hosp. & Clinics, 886 F.2d 157, 160 (8th Cir.1989). However, courts are not obligated to give such deference to "an agency's interpretation ... which is not based on expertise in its particular field but is rather based on general common law principles," Edwards v. Califano, 619 F.2d at 869, or if the agency's interpretation is inconsistent with the regulation. Creighton Omaha Regional Health Care Corp. v. Bowen, 822 F.2d 785, 789 (8th Cir.1987). In addition, courts do not defer to an agency's litigating position. McKee v. Sullivan, 903 F.2d 1436, 1438-39 n. 3 (11th Cir.1990).

We agree with the courts of appeal that have addressed the issue and hold that under 20 C.F.R. § 404.721(b) a presumption of death arises when a claimant proves a wage earner has not been seen or heard from for seven years. First, "[w]e believe this rule is consistent with the common-law origin of the presumption of death. At common law, when a seven year absence occurred, the ordinary presumption of ongoing life ceased and the presumption of death arose." Johnson v. Califano, 607 F.2d at 1182 n. 10. "The policy behind this rule is that it is unfair to require that the affairs of other persons affected by those of the missing person be held in abeyance indeterminately, especially, when there is a good chance the missing person is in fact dead." Allen, Presumptions in Civil Actions Reconsidered, 66 Iowa Law Review, 843, 847 (1981). ⁴

Second, we believe that the Secretary's position that the claimant must prove that a wage earner's disappearance was for no apparent reason "virtually creates a presumption of life rather than death. There is nothing in the regulation which requires the claimant to refute every reasonable...