IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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No. 07-15651
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Monica Hoeft
Petitioner,
v.
Michael J. Astrue
Commissioner of the Social Security Commission
Respondent.
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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 Hoeft’s 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 Court’s

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 Court’s 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

appellant’s “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. denied 121 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.69–78). 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 Claimant’s

condition as “guarded.” (TR. at 120-125). Claimant’s 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 Claimant’s 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. Claimant’s

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 13th, 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 17th,

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 12th, 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 4th, 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 9th 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 court’s 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 court’s 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 and stare decisis.

Respectfully Submitted

_______________________
Monica Hoeft

DATED:

0CERTIFICATE OF SERVICE

I certify under penalty of perjury pursuant to 28 USC 1746 that I served a

copy of the Motion for Stay of Mandate pending petition of Writ of Certiorari to
the United States Supreme Court from the Appellant upon the Appellee.

DATED:

Elizabeth Firer
Special Assistant to United States Attorney
Social Security Administration
333Market Street Suite 1500
San Francisco, CA 94105

____________________
Monica Hoeft

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