Unpublished Disposition, 859 F.2d 154 (9th Cir. 1985)

MEMORANDUM^** 

The conclusion is manifest that the Secretary's decision is supported by substantial evidence. Claimant did not present sufficient evidence to invoke the presumption of death, notwithstanding her husband's absence for seven year. His absence is not unexplained: he is a fugitive from justice. We are not persuaded that her husband was incapable of forming the requisite intent to desire to elude detection after he escaped in 1974. It is not altogether uncommon for convicts to escape from mental hospitals in the hope of remaining free and eluding their obligations to society. And it is no surprise that claimant's husband has not contacted her after escaping since he deserted her in 1968 or 1969 and made no contact with her during the five or six year period between the desertion and the escape.

Claimant's remaining two assignments of error are equally devoid of merit. First, the district court acted properly when it considered the Secretary's cross-motion for summary judgment: it was timely filed.¹  There is no federal or local rule requiring the defending party to wait twenty days before filing a cross-motion for summary judgment. Federal Rules of Civil Procedure 56(a) to which Collins may be referring applies only to the claimant. See Fed. R. Civ. P. 56(a). Rule 56(b), which applies to the defending party, allows the defending party to move for summary judgment "at any time ... with or without supporting affidavits for a summary judgment in the [defendant's] favor as to all or part thereof." Fed. R. Civ. P. 56(b). Local Rule 220-3 requires the defending party to file any opposition to the claimant's motion within fourteen days preceding the noticed hearing and Local Rule 220-6 allows the filing of a cross-motion at the same time as the opposition and provides for the cross-motion to be noticed on the same date as the original motion. To the extent that claimant seeks relief due to her apparent failure to respond to the Secretary's cross-motion because, so she claims, she did not receive the motion because in substance "God did not advise her to check her mailbox" or because "the Hindu prevented her from getting her mail", we deny any such request--construed as a Rule 60(b) motion--on the ground that she suffered no prejudice. See Fed. R. Civ. P. 60(b). The result in this case is crystal clear.

Second, we reject claimant's suggestion that she suffered from lack of representation. Claimant was represented by competent counsel at the hearing. In fact, the record shows that it was through the ALJ's help and insistence that claimant received the assistance of legal counsel.²  Though true that claimant is no longer represented, the record also shows that counsel represented claimant until March 14, 1985. The hearing was held in December, 1984. Although the decision was not rendered until April, 1985, claimant suffered no prejudice by the lack of representation during the short period after claimant fired her counsel and before the ALJ rendered its decision.

AFFIRMED.