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Recall Mandate5

Recall Mandate5

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Published by jackie Ross

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Published by: jackie Ross on Dec 22, 2009
Copyright:Attribution Non-commercial

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01/21/2010

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COMES NOW Claimant-Appellant Monica Hoeft, who files this Motion for Recall of the appeal due to violations of the clerk of the court of the court’s localrules and requests filing of the en banc brief, submitted herewith. The motion is based upon this application, the memorandum of points and authorities,incorporated, exhibits, as well as the declaration of Monica Hoeft. This en bancand Motion for Recall request for hearing is filed timely as the United States or itsofficer or agency is a party, the time within which any party may seek rehearing is45 days after entry of judgment (Fed.R.App.Proc. 40)DATED:Respectfully Submitted ______________________ Monica Hoeft
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BRIEF BACKGROUND
Claimant filed her notice of appeal on April 19
th
, 2007 and Cause wasdocketed (see attached docketing of the Court of Appeals exhibit “1”). On April9
th
, 2007 Claimant filed a motion to proceed
in Forma Pauperis
and was granted to proceed IFP
1
on April 19
th
, 2007, but claimant never received notice by the districtcourt that such a motion was granted. Claimant phoned in for a request to extendtime which was denied. And the brief was scheduled due May 29
th
2007. Claimantthen filed a motion to extend time on April 19
th
, 2007. Claimant then filed amotion in the appellate ct to proceed
 In Forma Pauperis
as she had not received anotice from the district ct that the previous motions was granted and was denied asunnecessary and the opening brief was extended to July 9
th
. 2007. Claimant filed amotion for counsel on June 18
th
, 2007. That motion was denied on or about November 16
th
2007, but claimant does not remember that it contained a fixed briefing schedule and only recalls that it was a mere denial. Complainant hasattempted 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 thePACER service. After a first attempt at trying to file a brief on December 17
th
,2007, the second attempt was relatively proper and the court waived all proceduraldefects on January 13
th
, 2008. Respondent filed a motion to extend time until Feb15
th
, 2007. Respondents then filed another extension of time that their responding
1 IFP -
in Forma Pauperis
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 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 rightto be at oral argument due to illness and the court was of the unanimous opinionthat facts and legal arguments were sufficient without oral argument (April 28
th
,2008). The decision of the district court was affirmed on July 7
th
, 2009 (see exhibit“2”). Claimant filed a request for an extension of time until October 5
th
2009 (seeexhibit “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. Claimantthen received a mandate ordered October 14
th
, 2009 (see exhibit “4”) and notreceived by Claimant until October 20
th
, 2009.Claimant now moves this Honorable Court to Recall the Mandate for thereasons set forth below.
I.MERITOUS ISSUES BEING PRESENT
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