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IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________
No. 07-15651
_________________
Monica Hoeft
Petitioner,
v.
Michael J. Astrue
Commissioner of the Social Security Commission
Respondent.
_________________
PETITION FOR A WRIT OF STAY PENDING A WRIT OF CERTIORARI
TO THE UNITDED STATES SUPREME COURT
_________________
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Pursuant to Federal Rules of Appellate Procedure Rule 41(d)(2) , appellant Monica
Hoeft (Hoeft) hereby requests an issuance of its stay of its mandate pending final
disposition of Hoefts petition for writ of certiorari in the Supreme Court, which
has yet to be filed.
Hoeft respectfully submits that the courts erred in not applying Heckler v.
Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983), in that the non-
exertional limitations that Hoeft suffers from should have been evaluated by a
Vocational Expert (VE). Hoeft Also argues that the denial of recall of mandate
due to the errors of the clerk in filing prematurely the mandate in contradiction to
Local Rule 27-11 in that a motion for counsel extends the briefing dates.
These egregious errors make the issues appropriate for the Supreme Courts
Attention. See Sup. Ct. R. 10(a) moreover, were the Supreme Court to determine
that a new trial is required, that would nullify the Federal Court and the District
Court proceedings and would require the decisions to be subject to review of the
Administrative Law Judge (ALJ) and bring the action back to the administrative
levels. Accordingly, the requirements for a stay under Rule 41(d)(2) of the Federal
Rules of Appellate Procedure are met.
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Under the Federal Rules of Appellate Procedure, [a] party may move to stay the
mandate pending the filing of a petition for a writ of certiorari in the Supreme
Court. Fed.R.App.P. 41(d)(2)(A). By operation of law, such a stay remains in
place until Supreme Courts final disposition of the petition. The party seeking a
stay must show that the certiorari position would present a substantial question
and there is good cause for stay.Id. Similarly, Circuit Rule 41 permits the stay of
issuance of mandate upon showing of good cause. Under both rules, a stay to
permit the filing of a petition for a writ of certiorari may ordinarily be up for 90
days,see also Fed.R.App.P. 41(d)(2)(B).
Whether there exists a substantial question and good cause for a stay turns on the
appellants reasonable succeeding on the merits and whether the applicant will
suffer irreparable injury. Books v. City of Elkhart, 239 F.3d 826, 827 (7th Cir)
cert. denied121 S.Ct. 2209 (2001). If either one of these elements is established,
the stay should be granted. See id. at 829 (granting stay "although the [applicant]
presents a weak case for a grant of certiorari");see also Deering Milliken, Inc. v.
FTC, 647 F.2d 1124, 1128 (D.C. Cir.) (existence of "substantial" issues constitutes
"good cause" that would make the court "obliged to grant" stay), cert. denied, 439
U.S. 958 (1978). Both elements are present here.
BRIEF HISTORY OF THE CASE
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Claimant was emotionally injured when the store she worked in overtly
discriminated against her husband, who is black, by not serving him. Claimant
quit that job due to conflicts and received unemployment after six (6) months of
hearings. Claimant tried to find work from October of 2000 to February of 2001
due to her agreement for benefits from the unemployment office. Claimant was
turned down by several prospective employers that felt that Claimant was too
slow. On November 3rd, 2000 to January 28th, 2002 (TR. at 112 to 119)
Claimant was treated at the HAWC Clinic and was diagnosed with depression and
given 20 mgs of Prozac to start out to see if it would work.
At various times throughout the treatment Claimant experienced severe
levels of decompensation. The Prozac was increased to 40 mgs to aid in this. The
frequent decompensation of the Claimant rendered the HAWC Clinic relatively
helpless because the physicians were not specialists in mental disorders. Health
Access Washoe County (HAWC) was unable to help the Claimant anymore and
referred the Claimant to Nevada Adult Mental Health.
A disability report (Adult) was filed on August 26th, 2002. Claimant
Claimed severe depression, anxiety, sleep problems, unable to work with
enthusiasm, tired, unable to work an 8-5 job, unable to stay awake for any
extended periods of time due to depression, the inability to think straight, anxiety
and blackout spells. (TR.6978). An Application for DIB was filed August 27th
2002, citing severe clinical depression as reason for inability to work. (TR. at 56-
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59) on September 7th 2002. Also on September 22nd, 2002, Claimant filed a Work
Activity Report, stating that Claimant was fired due to lack of enthusiasm, and that
prior to Depression, Claimant was gainfully employed. (TR.64 and at 79-86). On
September 25th, 2002 Claimant was examined by the Social Security Doctor, Dr.
Julius Rogina, and was rated at a GAF of 45 which rated the Claimants
condition as guarded. (TR. at 120-125). Claimants initial determination
was rejected October 3rd, 2002 (TR. at 40, 41) which was submitted to Dennis
Cameron, Claimants former attorney. It was determined that Claimant was not
restricted to any work based on Medical impairments 12.00 et seq. (TR. at 171-
184). On October 7th, 2002, a Social Security Notice was sent (TR at 45-48). A
reconsideration Disability Report was filed on October 17th, 2002. (TR. at 96-
101). On October 18th, 2002, a request for reconsideration was filed (TR at 49).
On June 20th, 2003 a Medical/vocational decision guide was submitted claiming
that the Claimant was not disabled. On July 23rd, 2003 a notice of reconsideration
was sent, denying DIB (TR at 50-54). On August 6th, 2003 a request for hearing
was filed (TR at 55). An undated Claimants statement was submitted when request
for hearing was filed and the issue was disability. (TR. at 106-107). Claimants list
of medications was Queitapine NIPD 400 mg up to 600mg for mood stabilization;
Seroquel 40 mg for psychosis; Prozac 60 mg for depression; Trazodone 200-300
mg for sleep; Carbamazepine 400mg for mood disorders; Wellbutrine 300mgs for
lessening of sexual side effects. (TR at 111). The final decision was rendered on
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March 25th, 2003 (TR. at 4). The appeals counsel denied Claimants request for
reconsideration on March 25th, 2003 (TR at 4) therefore, administrative action is
final in this case.
Claimant asked for and received an extension of time on May 9th 2005 to
file with the Federal Court. Claimant fired her attorney on April 20th , 2005 due
to incompetence. Claimant filed another extension of time up to and including
March 10th, 2006 due to medical conditions. Claimant filed a timely
Security Act, 42 U.S.C. SS 401 et seq., alleging that she had been unable to work
since on or about November of 2000 due to Mental Disease to present. Claimants
application was denied initially and upon reconsideration by the ALJ. The ALJ's
decision became the final decision of the Commissioner when the Appeals Council
declined review. Claimant filed a timely complaint for review by the federal
district court. Claimant asked for and received an extension of time up to and
including March 10th, 2006. Claimant was under the impression that no reply
brief was allowed, but was notified by the court that an extension was granted to
her to file an appeal brief until June 28th 2006. Claimant filed a timely reply on
June 28th, 2006. The District Court Magistrate filed a Report and
Recommendation of the U.S. Magistrate Judge on February 1, 2007. Claimant
filed another extension of time due to illness on February 28th, 2007 and motion
was granted. Claimant filed a timely objection to the Magistrates Report on March
12th 2007. On or about June, 2007, the District Court adopted the magistrates
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findings (Doc 33) making the decision of the Court final. Claimant filed a timely
appeal. On June 18th, 2007 Claimant motioned the Appeals court for Appointment
of counsel due to her mental disability but was denied. Claimant was denied her
appeal for disability benefits on July 7th, 2008. Claimant Hoeft was found not
disabled at Step 5 of the sequential evaluation and was found to be able to work
under all levels of exertion pursuant to the medical-vocational rule 204.00, with the
restriction that she was not able to interact with the public a non-exertional
limitation. Even though claimant is of slight build and testified to the atrophying
of her muscles during a protracted stay in bed due to illness and disability, claimant
was found to have the ability to work at all levels of physicality as proscribed by
vocational rule 204.00.
Claimant filed her notice of appeal on April 19th, 2007 and Cause was
docketed. On April 9th
, 2007 Claimant filed a motion to proceed in Forma
Pauperis and was granted to proceed IFP1 on April 19th, 2007, but claimant never
received notice by the district court that such a motion was granted. Claimant
phoned in for a request to extend time which was denied. And the brief was
scheduled due May 29th 2007. Claimant then filed a motion to extend time on
April 19th, 2007. Claimant then filed a motion in the appellate ct to proceed In
Forma Pauperis as she had not received a notice from the district court that the
previous motions was granted and was denied as unnecessary and the opening brief
1 IFP - in Forma Pauperis
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was extended to July 9th. 2007. Claimant filed a motion for counsel on June 18th,
2007. That motion was denied on or about November 16th 2007, but claimant does
not remember that it contained a fixed briefing schedule and only recalls that it was
a mere denial. Complainant has attempted to locate the order to see what she was
sent but due to a move from Nevada to California has lost many documents and
cannot afford to have the PACER service. After a first attempt at trying to file a
brief on December 17th, 2007, the second attempt was relatively proper and the
court waived all procedural defects on January 13 th, 2008. Respondent filed a
motion to extend time until Feb 15th, 2007. Respondents then filed another
extension of time that their responding brief shall not be due until March 17 th,
2008. Claimant made an extension of time by telephone and it was granted.
Claimant filed her timely response on April14th, 2008. Oral argument was
scheduled on June 12
th
, 2009, claimant waived her right to be at oral argument due
to illness and the court was of the unanimous opinion that facts and legal
arguments were sufficient without oral argument (April 28th, 2008). The decision
of the district court was affirmed on July 7th, 2009 (see exhibit 2). Claimant filed
a request for an extension of time until October 5th 2009 (see exhibit 3) to
formulate a petition for a rehearing en banc, which was granted. Claimant filed
and served a Motion for Counsel on October 4 th, 2009. Claimant then received a
mandate ordered October 14th, 2009 (see exhibit 4) and not received by Claimant
until October 20th, 2009. Claimant filed a timely Recall of Mandate and
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formulated an incomplete En Banc Brief along with a brief motion in order to file
documents out of time on November 24th, 2009 and received a denial of all motions
lodged December 18th, 2009 (see attached exhibit).
The US Supreme court is the court of last resort and claimant believes she
has been wronged by the District Court and by the Federal Court of Appeals by
allowing an erroneous ruling to stand by and ALJ who summarily adjudged
claimant Hoeft to be not disabled, despite non-exertional limitations and no VE
present to say what jobs she can do in the national economy pursuant to Heckler v,
Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). Claimant has also
been wronged by the premature dismissal of her case by mandate even though she
filed for a motion for counsel which under 9 th Circuit Local Rules 27-11 extends
the briefing date. The briefing date was October 5th, 2009 and the motion for
counsel was filed and lodged on October 4th
, 2009. Claimant was still dismissed
despite the violation of the courts rules by the clerk of the court.
Wherefore there exists a matter a lack of uniformity of the law in regards to
Heckler V. Campbell supra, that a VE must be consulted in non-exertional
limitations, as the 9th Circuit refused to abide by, and the fact that Hoeft was held
accountable for violations of the courts rules by the clerk of the court namely
Local Rule 27-11 in that a motion placed before the court such as a motion for
counsel extends the briefing date. Plaintiff-Appellant will be irreparably injured if
she does not pursue all of her remedies by having to live at the poverty level with
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little to eat and live off of. Plaintiff-Appellant believes she has a good chance at
succeeding on a Writ of Certiorari to the United States Supreme Court because the
Ninth Circuit deviated from established principles of law andstare decisis.
Respectfully Submitted
_______________________Monica Hoeft
DATED:
0CERTIFICATE OF SERVICE
I certify under penalty of perjury pursuant to 28 USC 1746 that I served acopy of the Motion for Stay of Mandate pending petition of Writ of Certiorari tothe United States Supreme Court from the Appellant upon the Appellee.
DATED:
Elizabeth FirerSpecial Assistant to United States AttorneySocial Security Administration333Market Street Suite 1500San Francisco, CA 94105
____________________Monica Hoeft
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