No _________________

In The

Supreme Court of the United States

__________________________________________

Monica Hoeft
Petitioner-Appellant
v.
Michael Astrue
Commissioner of Social Security
Defendant-Appellee
__________________________________________

Motion to Reconsider the Timeliness of her Writ of Certiorari and

Motion to File Writ out of Time

______________________________

Monica Hoeft
Comes now Petitioner in Pro Se and hereby moves this Honorable Court to reconsider

the timeliness of her Writ of Certiorari and Motion to File Writ out of Time

incorporated herein. Supreme Court Rule 13.3 clearly states that:

[T]he time to file a petition for a writ of certiorari runs from the
date of entry of the judgment or order sought to be reviewed, and
not from the issuance date of the mandate (or its equivalent
under local practice). But if a petition for rehearing is timely
filed in the lower court by any party, or if the lower court
appropriately entertains an untimely petition for rehearing or
sua sponte considers rehearing, the time to file the petition for a
writ of certiorari for all parties (whether or not they requested
rehearing or joined in the petition for rehearing) runs from the
date of the denial of rehearing or, if rehearing is granted, the
subsequent entry of judgment.

The final date of entry of judgement on Petitioner's case is December 18th 2090 (see

Petitioner Appendix "A" see court docket entries Pet. App. "B"). The court did not say

that the denial of judgement was "moot" instead it simply stated that the motion was

denied - therefore the court retained jurisdiction. According to Black's law, "[A] case

becomes "moot" when the issues presented are no longer "live" or the parties lack a

legally cognizable interest in the outcome. Murphy v. Hunt, U.S.Neb. 455 U.S.478,

102 S.Ct. 1181, 71 L. Ed.2d 353." The application was returned as untimely —which

requires that a civil certiorari petition be filed within 90 days after the entry of the

judgment below and that any application for an extension of time be filed within the

original 90-day period—since, while the filing of a "petition for rehearing" under

Federal Rule of Appellate Procedure 40 tolls the running of the 90-day period. Missouri

v. Jenkins, 495 US 33, 110 S.Ct. 1651, 109 L.Ed.2d 31

The Court rejects respondents' contention that the Director's certiorari petition was

jurisdictionally untimely and this Court's Rule 13.3. instructs that a petition must be

filed "within ninety days after the entry of . . . judgment," and this Court's Rule 13.3

elaborates on that statute's (28 USC 2101) instruction. More than 90 days elapsed

between the date the Ninth Circuit first entered judgment and the date the Director's

petition was filed. That time lapse, respondents assert, made the filing untimely under

Rule 13.3's first sentence: "[T]he time to file . . . runs from the date of entry of the

judgment or order sought to be reviewed." Moreover, respondents submit, because no

party petitioned for rehearing, the extended filing periods prescribed by the Rule's

second sentence never came into play. This case, however, did not follow the typical

course. The Ninth Circuit, on its own initiative, had recalled its mandate and ordered

the parties to brief the question whether the case should be reheard en banc. That

order, this Court holds, suspended the judgment's finality , just as a timely filed

rehearing petition would or a court's appropriate decision to consider a late-filed

rehearing petition, see Missouri v. Jenkins, 495 U. S. 33, 49. The Court of Appeals'

order raised the question whether that court would modify the judgment and alter the

parties' rights; thus, while the court-initiated briefing order was pending, there was

no "judgment" to be reviewed. See, e.g., id., at 46. The Director's certiorari petition was

timely under the statute because it was filed within 90 days of the date the Ninth

Circuit denied rehearing en banc. Hibbs Director Arizona Department of Revenue v.

Winn et al. 542 US 88. A timely petition for rehearing operates to suspend the finality

of the court's judgment, pending the court's further determination whether the

judgment should be modified so as to alter its adjudication of the rights of the parties.
As cited in United States v. Wall, 456 F3d 316; "While his petition for rehearing was

pending, there was no judgment to be challenged either in the Supreme Court by a

petition for a writ of Certiorari, or in an inferior court by habeas review."

As stated - the Petitioner's Motion for Recall and Motion to file an En Banc brief was

still pending before the Ninth Circuit and as the case law in Wall dictates, there was

no judgment to be challenged either in the Supreme Court by a petition for a writ of

Certiorari. Therefore based on the text of the Supreme Court Rules 13.3 and the case

law cited herein, the Petitioner has filed for a timely Writ of Certiorari as the final

decision did not come down until December 18th, 2090. Petitioner has until Thursday

March 18th, 2010 to file a Writ of Certiorari.

Procedural history of the Case as of July 7 th, 2009

July 7th, 2009 Docket entry 36 Judgement entered

July 14th, 2009 No Docket Entry Mandate issued

Aug. 17th. 2009 Docket entry 37 Filed - Motion to extend time to file petition for

rehearing until 10/05/09

Aug 17th, 2090 Docket Entry 38 Received - change of address of Monica Hoeft

Aug 18th, 2009 Docket Entry 39 Clarification of last names used.

Aug 20th, 2009 Docket Entry 40 Motion to extend time to file for petition for

rehearing until 10/05/09 GRANTED

Oct. 6th, 2009 Docket Entry 41 Motion for Counsel (petitioner)

Oct. 14th, 2009 Docket Entry 42 Mandate Issued

Oct. 26th, 2009 Docket Entry 43 Motion for appointment of Counsel is DENIED

Nov. 30th, 2009 Docket Entry 44 Filed Motion to recall mandate and to file late

petition for rehearing

Nov. 30th, 2009 Docket Entry 45 Received Appellant’s petition for En Banc only

Number of pages 15 Deficient: mandate

issued, motion to recall and file late PFR

pending. Served on 11/24/2009. (PANEL.)

(Panel should advise orders clerk: en banc

circulation) [7147346](TB)

Dec. 18th, 2009 Docket Entry 46 Appellant’s motion for recall and leave to file

documents out of time are DENIED

Jan. 4th, 2010 Docket Entry 47 Received copy of Appellant’s petition for

Certiorari to USSC [7184414](TB).

At no time from the mandate issued on July 7th, 2009 and October 14th. 2009 did the

court divest itself of jurisdiction until the phone call placed by Plaintiff on Monday

January 4th, 2010 when the Clerk of the Court of the Ninth Circuit Court of Appeals

stated to the Plaintiff Hoeft in plain terms that the court no longer has jurisdiction and

she must take the matter up with the Unites States Supreme Court. No order of

finality was issued, other than the order of December 18th, 2009 that states that the

Plaintiffs motion for recall and leave to file En banc petition out of time are DENIED.

This is consistent with Supreme Court Rule 13.3 that a timely Writ of Certiorari.. runs
from the date of the denial of rehearing... [Emphasis added]. That denial did not

occur until December 18th, 2009 and the Petitioner has therefore until March 18th, 2010

to file her petition for Writ of Certiorari.

Motion to File Writ out of Time

For good cause, a Justice may extend the time to file a petition
for a writ of certiorari for a period not exceeding 60 days. An
application to extend the time to file shall set out the basis for
jurisdiction in this Court, identify the judgment sought to be
reviewed, include a copy of the opinion and any order respecting
rehearing, and set out specific reasons why an extension of time
is justified. The application must be filed with the Clerk at least
10 days before the date the petition is due, except in
extraordinary circumstances.

Petitioner is in dire financial straights and is not able to send her petition for Writ of

Certiorari to the Supreme Court back and forth until the Court so requests. The

jurisdiction of this court is invoked under Supreme Court Rule 13.3, in that Petitioner

is seeking review of a judgement that is NOT out of time, in that the Federal Appeals

Court still had jurisdiction to entertain Hoeft’s petition for a Motion to Recall and

Leave to File an En Banc Petition out of time, which was denied on December 18th,

2009 making March 18th, 2010 the time when the petition for Writ of Certiorari is due.

Certiorari petition is timely under the statute because it was filed within 90 days of

the date the Ninth Circuit denied rehearing en banc. Hibbs Director Arizona

Department of Revenue v. Winn et al. 542 US 88. The judgement sought to be

reviewed is whether or not the Ninth Circuit Court of appeal applied the correct

standard under Heckler v. Campbell, 461 U.S. 458,103 S.Ct. 1952, 76 L.Ed.2d 66 in

addressing Petitioners non-exertional limitations. The Ninth Circuit circumvented

Heckler supra in that Petitioner presented with non-exertional limitations and the

Circuit Court did not require that the ALJ either have a Vocational Expert present or

read the Dictionary of Occupational Titles, he just stated that the Claimant (Petitioner

Hoeft) could not work around people and left the claimant to figure out what jobs the

ALJ had in mind. The Petitioner is not a mind-reader and does not know what jobs

in the national economy are available to her.

Petitioner does not know if this motion will be granted and does not have the finances

to resend the writ petition unless so called for by the Court. Therefore good cause

exists that Petitioner’s motion for an extension of time in which to send in her petition

for writ of certiorari should be granted. The petition is completed and only has to wait

on the green light for the court to accept her petition.