Leona Autrey v. Patricia Roberts Harris, Etc., 639 F.2d 1233 (5th Cir. 1981). · Go Syfert
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Leona Autrey v. Patricia Roberts Harris, Etc., 639 F.2d 1233 (5th Cir. 1981). Cases Citing This Book View Copy Cite
32 citation events across 8 distinct courts.
Strongest positive: Green v. Shalala (ca7, 1995-03-30)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Statutes interpreted (leading-cases list)
#7 20 C.F.R. § 404.721 cited 1× in this case · 56 total citations of statute #9 20 C.F.R. § 404.705 cited 1× in this case · 52 total citations of statute
Top citers, strongest first. 11 distinct citers.
discussed Cited as authority (rule) Green v. Shalala
7th Cir. · 1995 · confidence medium
Brewster, 972 F.2d at 902; Shelnutt v. Heckler, 723 F.2d 1131 , 1133 (3d Cir.1983); Autrey v. Harris, 639 F.2d 1233, 1234 (5th Cir. Unit A Mar. 1981) (per curiam); Johnson, 607 F.2d at 1182 ; Secretary of Health, Educ. & Welfare v. Meza, 368 F.2d 389, 392 (9th Cir.1966).
discussed Cited as authority (rule) Green v. Shalala
7th Cir. · 1995 · confidence medium
Brewster, 972 F.2d at 902; Shelnutt v. Heckler, 723 F.2d 1131 , 1133 (3d Cir.1983); Autrey v. Harris, 639 F.2d 1233, 1234 (5th Cir. Unit A Mar. 1981) (per curiam); Johnson, 607 F.2d at 1182 ; Secretary of Health, Educ. & Welfare v. Meza, 368 F.2d 389, 392 (9th Cir.1966).
discussed Cited as authority (rule) Brewster ex rel. Keller v. Sullivan (2×) also: Cited "see, e.g."
8th Cir. · 1992 · confidence medium
Although the court had some trouble with the fact that criminal charges had been filed, it stated because the charges were filed after Shel-nutt’s disappearance, the court did not “know whether the possibility of criminal charges was the cause or the result of Shelnutt’s disappearance.” Id. at 1134 . 5 We also believe little weight should be given to Keller’s statements that he wanted to “chuck it all and move to Costa Rica.” See Autrey v. Harris, 639 F.2d at 1235 (failure to file income tax returns coupled with random comments regarding marital difficulties insufficient to overc…
discussed Cited as authority (rule) Brewster v. Sullivan (2×) also: Cited "see, e.g."
8th Cir. · 1992 · confidence medium
Although the court had some trouble with the fact that criminal charges had been filed, it stated because the charges were filed after Shelnutt's disappearance, the court did not "know whether the possibility of criminal charges was the cause or the result of Shelnutt's disappearance." Id. at 1134 . 5 20 We also believe little weight should be given to Keller's statements that he wanted to "chuck it all and move to Costa Rica." See Autrey v. Harris, 639 F.2d at 1235 (failure to file income tax returns coupled with random comments regarding marital difficulties insufficient to overcome presumpt…
discussed Cited as authority (rule) Grossman v. Bowen (2×) also: Cited "see"
S.D.N.Y. · 1988 · confidence medium
E.g., Shelnutt v. Heckler, 723 F.2d at 1133 (rebuttal effort failed because Secretary introduced .no affirmative evidence of wage earner’s alleged financial and marital troubles, alcoholism, or illegal acts); Autrey v. Harris, 639 F.2d at 1235 (rebuttal burden “requires more than mere conjecture as to possible explanations”); Aubrey v. Richardson, 462 F.2d at 785 (rebuttal entails “ ‘proof of facts’ which do — not merely may — ‘rationally explain’ ” the disappearance); Secretary of Health, Educ. and Welfare v. Meza, 368 F.2d at 392 (Secretary must present “proof of fact…
cited Cited as authority (rule) Wages v. Schweiker
5th Cir. · 1981 · confidence medium
Id. at 1235 (footnote omitted).
discussed Cited as authority (rule) Wages v. Schweiker
5th Cir. · 1981 · confidence medium
In Autrey, the following facts were cited: 13 (1) Fisher's failure to file federal income tax returns in 1967, 1968 and 1969; (2) a suggestion that he was trying to avoid child support payments; and (3) several random comments by the appellant and her children that there may have been minor family difficulties. 14 Id. at 1235 (footnote omitted).
discussed Cited "see" Mando v. Secretary of Health & Human Services
2d Cir. · 1984 · signal: see · confidence high
See Autrey v. Harris, 639 F.2d 1233 (5th Cir. 1981); Edwards v. Califano, 619 F.2d 865 (10th Cir.1980); Johnson v. Califano, 607 F.2d 1178 (6th Cir.1979); Aubrey v. Richardson, 462 F.2d 782 (3d Cir.1972); and Secretary of Health, Education and Welfare v. Meza, 368 F.2d 389 (9th Cir.1966).
cited Cited "see, e.g." Shelnutt v. Heckler
3rd Cir. · 1983 · signal: see also · confidence medium
See Aubrey, 462 F.2d at 785 ; see also Autrey v. Harris, 639 F.2d 1233, 1235 (5th Cir.1981); Meza, 368 F.2d at 392 .
cited Cited "see, e.g." Shelnutt v. Heckler
3rd Cir. · 1983 · signal: see also · confidence medium
See Aubrey, 462 F.2d at 785 ; see also Autrey v. Harris, 639 F.2d 1233, 1235 (5th Cir.1981); Meza, 368 F.2d at 392 .
discussed Cited "see, e.g." Bukawyn v. Schweiker
E.D.N.Y · 1982 · signal: see also · confidence medium
See also Autrey v. Harris, 639 F.2d 1233, 1234 (5th Cir.1981); Wages v. Schweiker, 659 F.2d 59, 61 (5th Cir.1981); Edwards v. Califano, 619 F.2d 865, 869 (10th Cir.1980); Johnson v. Califano, 607 F.2d 1178, 1182 (6th Cir.1979).
Leona AUTREY, Plaintiff-Appellant,
v.
Patricia Roberts HARRIS, Etc., Defendant-Appellee
80-1575.
Court of Appeals for the Fifth Circuit.
Mar 16, 1981.
639 F.2d 1233
Walter D. Snider, Beaumont, Tex., for plaintiff-appellant., John H. Hannah, Jr., U.S. Atty., William Jo Cornelius, Jr., Tyler, Tex., Stanley Ericsson, Randolph W. Gaines, Chief of Litigation, Baltimore, Md., Alice Daniel, Asst. Atty. Gen., Dept, of Justice, Washington, D.C., for defendant-appellee.
Ainsworth, Garza, Johnson, Per Curiam, Sam.
Cited by 13 opinions  |  Published
PER CURIAM:

This is an appeal from the denial of surviving child insurance benefits sought under the Social Security Act, 42 U.S.C. § 402(d)(1). Appellant Leona Autrey was divorced from Herman George Fisher in 1967. Fisher was the natural father of appellant’s son Ross, and the adoptive father of her daughters, Catherine and Debra Sue. She has testified that no hostility resulted, and that both she and the children had frequent contact with Fisher after the divorce.

That contact came to an abrupt end in June of 1969. Fisher, evidently piloting a small plane, departed a Kansas airport and radioed an airport for weather information for a flight to Las Vegas. He has not been heard from since, and the plane has never been found.

Mrs. Autrey applied for surviving child social security benefits in 1970, based on Fisher’s employment records. The application was initially denied. In 1976, she requested that the prior application be reopened so that she could provide proof of death in accordance with applicable provisions of the Social Security Act and regulations pursuant. Specifically, she relied upon the presumption of death established by regulation. This application was denied initially and after reconsideration by the Bureau of Retirement and Survivors Insurance of the Social Security Administration.

Appellant then requested a hearing, which was held on December 15,1978. The issue relevant to this appeal was whether Fisher’s death could be presumed under 20 C.F.R. § 404.705, (currently 20 C.F.R. § 404.721), allowing such a presumption where a person is “unexplainedly absent from his residence and unheard of for a period of 7 years.” The administrative law judge ruled against Mrs. Autrey, finding that she had not proved her husband’s disappearance to be “unexplained.” The finding became a final decision of the Secretary of Health, Education and Welfare through approval of the department of appeal council. Mrs. Autrey appealed by filing a complaint in the district court. In a one-page order, without stating reasons, the court affirmed the Secretary’s decision.'

The issue before us, both appellant and appellee agree, is whether the Secretary's decision is supported by substantial evidence. We conclude that it is not, and reverse.

The presumption of death under this regulation attaches when the claimant presents facts sufficient to establish that the wage earner has been absent from his residence and unheard of for seven years. Nothing in the regulation requires the claimant to refute every reasonable theory or explanation offered by the Secretary. Aubrey v. Richardson, 462 F.2d 782, 784 (3 Cir. 1972). Once the applicant creates the presumption, the burden shifts to the Secretary to rebut it. On this record, we find it perfectly apparent that Mrs. Autrey raised the presumption. [1]

[*1235] In Mulder v. Weinberger, No. 74-3595 (5 Cir. April 29, 1975), an unpublished opinion, a panel of this court endorsed the standard for rebuttal proof articulated in Secretary of Health, Education and Welfare v. Meza, 368 F.2d 389 (9 Cir. 1966). We will adhere to that formulation. The Ninth Circuit stated in Meza that the presumption can be dissipated in two ways:

One would be by presenting evidence that the missing person is alive... The other showing would be by proof of facts that rationally explain the anomaly of the disappearance in a manner consistent with continued life. 368 F.2d 389 at 392.

The administrative law judge relied on the second manner of rebuttal, holding that due to “personal, legal and familial difficulties, the wage earner had sufficient justification for disappearing and changing his identity.” To support this conclusion, the following were cited: (1) Fisher’s failure to file federal income tax returns in 1967, 1968 and 1969; (2) a suggestion that he was trying to avoid child support payments; [2] and (3) several random comments by the appellant and her children that there may have been minor family difficulties.

Plainly, these are not sufficient to satisfy the Secretary’s rebuttal burden, and are not enough to justify a conclusion that Fisher engineered a phony disappearance in order to change his identity. The burden of the Secretary requires more than mere conjecture as to possible explanations, Aubrey, supra at 785; Meza at 393. Here, the Secretary did no more than present facts which hardly support a somewhat bizarre and certainly speculative conclusion. The judgment of the district court must be reversed, and remanded with directions to enter a contrary judgment in favor of the appellant.

REVERSED and REMANDED WITH INSTRUCTIONS.

1

. Mrs. Autrey testified that she made an exhaustive search for her former husband by checking with state and federal agencies, nursing homes and hospitals, the Wage Earner’s Union and other sources. The search was detailed in a letter to a Texas Congressman which has been incorporated in the record as an exhibit.

There was no testimony from any party as to contact with Fisher after his disappearce. Appellant stated that if the plane crashed in the Rocky Mountains, wreckage might never be found.

We also note that Kansas death decrees obtained for the purpose of settling title of assets owned in that state were introduced. Mrs. Autrey admits the validity of the government’s assertion that the decrees are not binding on the Secretary. See Cain v. Secretary of Health, Education and Welfare, 377 F.2d 55, 58[*1235] (4 Cir. 1967); Dowell v. Gardner, 386 F.2d 809, 810 (6 Cir. 1967).

2

. Mrs. Autrey, however, testified that she never pressed Fisher to make the payments. There was some confusing testimony about a court order that she obtained to force payment, but the order was never produced. Appellant also testified that the judgment was not entered until after Fisher’s disappearance.