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to violations of the clerk of the court of the court’s local rules 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 banc and Motion for Recall request for hearing is filed timely as the United States or its officer or agency is a party, the time within which any party may seek rehearing is 45 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 19th, 2007 and Cause was docketed (see attached docketing of the Court of Appeals exhibit “1”). 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 ct that the previous motions was granted and was denied as unnecessary and the opening brief 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
1 IFP - in Forma Pauperis
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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 now moves this Honorable Court to Recall the Mandate for the reasons set forth below.
I. MERITOUS ISSUES BEING PRESENT
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Miscarriage of Justice will result According to Calderon v. Thompson 523 U.S. 538 (1998), a miscarriage of
justice must result from the decision not to recall a mandate or where good cause is shown, to protect the integrity of the process, or to avoid an injustice, American Iron & Steel Inst. V. E.P.A., 560 F.3d 589 (3rd Cir 1977), Alphin v. Henderson, 552 F.2d 1033 (4th Cir 1977) (noting that “in exceptional cases we may even recall our mandate to avoid injustice”); see generally Charles Alan Wright et. al., Federal Practice and Procedure § 3938 (discussing recall of mandate). Complainant has a meritous case before this court in that it has misapplied the law in regards to the predicent setting case of Heckler .v Campbell, 461 U.S. 458 (1983) as well as Ninth Circuit court opinions and those opinions of its sister courts. The court has also stated that Complainant is not credible based on a single quantum of evidence. This is contrary to Sousa v. Callahan, 143 F. 3d 1240, 1243 (9th Cir. 1998) wherein the court held; [b]ut the commissioner’s decision “cannot be affirmed by simply isolating a specific quantum of supporting evidence.” Rather, a court must ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Secretary’s conclusion.” See Penny v. Sullivan, 2 F.3d at 956 (9th Cir. 1993). Plaintiff has a meritous claim in that the court refused to look at and is not filed for delay; namely the precedent case of Heckler v. Campbell and 9th circuit court rulings as well as the majority of the sister-court rulings that hold that
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a Vocational Expert MUST be used in assessing nonexertional limitations. No such VE2 was ever used or consulted or insisted upon by Claimant’s then counsel of record Dennis Cameron. Claimant was found to be unable to interact with the public, a nonexertional limitation found to be subject to VE testimony. Jenkins v. Astrue 1:06-cv-DFHTAB. To deny Claimant review under the prevailing U.S. Supreme Court ruling of Heckler supra would result in manifest injustice and be prejudice to Claimant. The clerk of the court violated local rules of the 9th Circuit Court of Appeals, by not extending the briefing period due to a timely motion for Appointment of Counsel pursuant to local rule 27-11(6). For the court to deny the claimant relief for a violation of the rules by the clerk of the court is prejudicial towards the Plaintiff, who by no fault of hers was unjustly dismissed. According to the
docketing sheet, the Motion for Counsel was timely received by this Court on October 4th, 2009 one day before the expiration of the time to file a brief. Claimant has read the docketing sheet and did not remember that the order she was sent contained all of the directions and reasons for denial of counsel as set forth in the docketing sheet. Claimant had to rely on an outside source to pull the docketing sheet from PACER as she has no access to the service due to financial constraints. Claimant has lost the original order that she was sent and cannot locate it. Claimant
2 Vocational Expert
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is informed and believes that the court should not summarily dismiss her because of medical reasons for attempting to procure counsel – instead claimant is of the informed belief that the court should have given her time to cure the defect and direct her to do so upon the dispensing of the second motion for counsel on October 27th, 2009, and extended the briefing date as required by LR 27-11. 2. No prejudice to opposing party Claimant has been fighting her uphill battle with the federal court for going on 10 years now and to delay the case until the motion for counsel can be heard or if necessary, another extension of time needs to be gotten, no prejudice will result to the government, as a matter of fact they will benefit from it by reaping the interest off of the monies Claimant has paid into the system. The prejudice has been on the side of the Claimant, to where she has been gainfully employed for over 25 years and paid into the Social Security Disability system during that time for an event such as one she suffered in the year 2000, and has been rubberstamped a denial because she attempted to overcome her disability and is now being penalized for it.
3. Claimant has Disability Benefits
According to this circuit’s own ruling;
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0“Appellants have a constitutionally protected property interest in receiving disability benefits. Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990) (holding that for purposes of procedural due process, an applicant for social security benefits who cannot work because of a disability has a “significant property interest in receiving disability benefits”).”As cited in Claimants opening brief pg 29 Lines 19-23. The Claimant will lose her constitutionally protected property interest in receiving SSD3 benefits by and through a miscarriage of justice if this mandate were not recalled. II. EXCEPTIONAL CIRCUMSTANCES WARRANT RECALL 1.What is an exceptional circumstance Under Black’s Law and exceptional circumstance is “conditions which are out of the ordinary course of events; unusual or extraordinary circumstances.” Claimant, unlike the majority of civil litigants is mentally disabled and cannot at any time foresee when she is bedridden and unable to prosecute her case. Claimant herself states in the most recent motion for extension of time that she is unstable on her medications and does not know how and when she’ll be able to prosecute her case (Motion for Extension of Time pg 1 lines 24-27). This presents itself as an exceptional circumstance. 2.Unforeseen Contingencies
3 Social Security Disability
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The unforeseen contingency (Calderon v. Thompson 523 U.S. 538) as explained above is that the Claimant, due to decompensation of her bi-polar state, has levels of highs and lows, cannot predict them. As testified by her in front of the ALJ during initial determination as testified to on the bottom of page 18 to the top of page 19 (attached as exhibit “5” hereto; only excerpts of the transcript were submitted due to financial constraints of the complainant). During Complainant’s highs she is barely capable of doing legal work, as the requirements of pleading and practice of an en banc hearing are foreign to her, and at her low stage she is bedridden and cannot perform any work whatsoever. She had no way of knowing that her levels of decompensation would be so low as to prevent her from meeting the October 5th 2009 deadline. As stated in her motion for counsel, she is and will not be properly medicated until she sees a physician on December 4th 2009. Until then, she had no way of regulating her mood swings. Claimant therefore timely moved for an Appointment of Counsel.
3. Violation of the Court’s Local Rules in Dismissing Claimants Appeal Claimant is of the informed belief that the court should have extended the briefing period pursuant to LR 27-11. The text of the first denial of counsel is as follows:
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Appellant's motion for appointment of counsel is denied because this appeal does not present "exceptional circumstances" warranting the appointment of counsel. See 28 U.S.C. 1915(e)(1); Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir. 1986). No motions for reconsideration, clarification, or modification of this denial shall be filed or entertained. The briefing schedule shall proceed as follows: the opening brief is due December 17, 2007; the answering brief is due January 16, 2008; and the optional reply brief is due within 14 days after service of the answering brief. Because appellant is proceeding without counsel, the excerpts of record requirement is waived. See 9th Cir. R. 30-1.2. Appellee's supplemental excerpts of record are limited to the district court docket sheet, the notice of appeal, the judgment or order appealed from, and any specific portions of the record cited in appellee's brief. See 9th Cir. R. 30-1.7. [07-15651] (BJB) 12/20/2007 Claimant complied with this order despite severe mental illness. Claimant was of the understanding that the order denying counsel was only for the opening briefing and responsive briefing stage of litigation, that it did not preclude her from asking for counsel at the then unlikely stage of requesting an en banc hearing. According to the case law, counsel can be requested at any stage of the litigation. Tabron v. Grace, 6 F3d 147 (1993 3rd Cir); Rowland v. California Men's Colony, (91–1188), 506 U.S. 194 (1993), 113 S. Ct. 716; 121 L.Ed.2d 656. Claimant relied on this. The second denial of counsel came two weeks after the dismissal of claimant’s appeal by mandate with no reference to the previous denial. The denial did not say it was moot due to the dismissal of the appeal by mandate, just that it was denied (see exhibit “7”). Therefore claimant is of the informed belief that the second motion for counsel extended the briefing period.
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4.In the Alternative, Plaintiff should not be dismissed for a technical nonjurisdictional error It has also long been held that the Court is not required to dismiss every appeal which does not meet the time limitations. F.2d 828 (5th Cir. 03/02/1978): “This court is not required to dismiss every appeal which does not meet the time limitations of Rule 31. In Phillips v. Employers Mut. Liability Ins. Co., 239 F.2d 79, 80 n.2 (5 Cir. 1956), the court said that the late filing of briefs is "at most [a] non-jurisdictional [defect] in the prosecution of this appeal, which we consider insufficient to warrant dismissal." See also King v. Laborers Internat'l Union, 443 F.2d 273 (6 Cir. 1971); United States v. Edwards, 366 F.2d 853 (2 Cir. 1966), cert. denied, 386 U.S. 908, 87 S. Ct. 852, 17 L. Ed. 2d 782 (1967); cf. Walker v. Mathews, 546 F.2d 814 (9 Cir. 1976) (late filing of record).” In Phillips v. Employers Mutual Liability Insurance Company of Wisconsin, 239 F.2d 79 the Court held: “…appellee's motion to dismiss for appellant's late filing of the record and brief on appeal… we simply hold that appellant's failure in these respects to show strict compliance … are at most nonjurisdictional defects …, which we consider insufficient to warrant dismissal. See Martin v. Handy-Andy Community Stores of Texas, 5 Cir., 214 F.2d 10, 11; Columbia Lumber Co. v. Agostino, 9 Cir., 184 F.2d 731, 733; cf. Fong v. James W. Glover, Ltd., 9 Cir., 197 F.2d 710, 712” “In Childs v. Kaplan, 467 F2.d 628(8th Cir, 1971) The court held that the appeal of an appellant who did not file a brief would not be dismissed for want of prosecution…” Complainant, despite her severe mental Illness has not missed a deadline in almost nine(9) years of litigation. Complainant does not see how this one missed deadline should divest her completely of prosecuting her meritous case.
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See Marcaida v. Rascoe, 569
4. New evidence Complainant has new evidence from San Joaquin County Mental Health Services that states she is mentally ill. Complainant petitioned the mental health clinic for her records as soon as she got word of the mandate on October 20th, 2009 and supplements the record herewith as being new evidence of her mental illness. (see exhibit “6”). III. GOOD FAITH ATTEMPT TO COMPLY WITH THE LAW AND ORDERS OF THIS COURT
Excusable neglect Misinterpretation of the Law [This court] has analogized dismissals with default judgments and held the
general rule to be the same. Cooley v. Burge, 797 So.2d 294 (Miss Ct. App. 2001) (quoting Walker v. Parnell 566 So.2d 1213 (Miss 1990)). The general rule is that the dismissed case cannot be reinstated after the expiration of the term of court within which the dismissal was entered unless [emphasis added] the dismissal was defective, or fraud, mistake or accident was involved. A pro se appeal should not be dismissed for failure to comply with the formal requirements of appellate briefs under Fed.R.App.P. 28. Abdul-Alim Amin v. Universal Life Ins., 706 F2d 638, (5th Cir 1983); see also McCottrel v. EEOC ,726 F.2d 350 (7th Cir 1984). Complainant was afraid that the procedural defects in her en banc brief would
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cause her dismissal and/or denial of benefits as previously dismissed, and therefore moved for counsel in that the brief she now presents this Honorable Court may not be complete in its form and not bring up important issues for the Court to consider en banc. Complainant claims excusable neglect, and mistake. The excusable neglect is that it was outside of her power and control to meet the deadlines of this Honorable Court due to her ailment. Pioneer Investment Services Co. v. Brunswick
Associates Limited Partnership Et Al. 507 U.S. 380 (1993) The ailment was of such
magnitude that claimant was not mentally capable of writing a coherent brief and was bedridden for the majority of the time she was given to write a brief. This court also recognizes that it has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits due to technical procedural requirements. Borezka v. Heckler, 739 F.2d 444 (9th Cir 1984); Garaux v. Pulley, 739F.2d 437 (9th Cir 1984), as cited in Balistreri v. Pacifica Police Dept, 90 F.2d 696 (9th Cir 1990). Fed.R.App.P. Rule 47 states that no sanction of other disadvantage shall be imposed for non-compliance with any requirement. Claimant was of the apparently misinformed position (mistake) that a motion before the court such as a motion to proceed In Forma Pauperis, a motion for counsel and/or a motion for enlargement (extension) of time was to be ruled on before the briefing time due to the mistake of the court clerk in dismissing her appeal against the local court rules, that a motion for counsel (LR 27-11(6))
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extends the briefing period until the motion is resolved. This position is reinforced by the denial of her second motion for counsel, which was issued on October 26, 2009, almost two weeks after involuntary dismissal of her appeal. (See exhibit “7”) It was not denied as being moot, which Complainant is of the informed belief, it should have been, considering that the court dismissed her case. The denial of counsel, not being moot, supports her contention that this pre-briefing motion does
extend the briefing period. Claimant, in pro se should not be penalized for the
procedural defect of believing that such motions before the court extends briefing periods, again, due to the mistake of the court clerk, as she has experienced in the past, that her second denial of counsel implies, that the court must rule on these motions before a briefing period is established. As soon as it became apparent that the Claimant was unable to meet the briefing schedule, she filed for appointed counsel in order to be able to place a cognizable brief before this court. Claimant has worked on her brief in the event counsel was denied during her lucid periods. Claimant has submitted a somewhat formatted and possibly
incomplete brief, due to the time constraints this Court has put on her and therefore reserves the right to object in the event of a possible denial of a recall based on due process. Claimant has attempted in good faith to comply with the rules of this court. Due to excusable neglect and mistake, complainant’s appeal should not be summarily dismissed. 3.Medical Problems in complying with strict deadlines
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As stated above, Complainant cannot maintain the strict deadlines of the court due to her frequent decompensation. Plaintiff never knows when she will be functional, and when she will be bedridden. She does not know if her functioning period will be long enough to perform enough work to get the required briefs and/or motions out in time and does not want to bog this court down with frequent motions for extensions of time, which I am sure this Honorable Court will grow wary of. Appointment of Counsel would have and will avoid any dismissal of
Appellants appeal or unforeseeable extensions of time.
IV. CONCLUSION Having shown that the failure to prosecute, dismissal of Appellant’s Appeal could have been avoided had she been appointed counsel; Appellant’s honest belief that when Motion to Appoint Counsel would be ruled upon, there would be a new date given for his Brief to be filed; Appellant’s honest belief that should Motion for Appointment of Counsel and new evidence, be reviewed and possibly granted should not be reason to dismiss Appellant’s appeal. 1.Motion for Leave to File Documents out of Time
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Appellant Prays this Court will be lenient and understanding to her Pro Se status and Grant this Motion for Leave to File Documents out of Time and/or Motion for Appointment of Counsel. Appellant has made a good-faith effort to remedy the default. She complied with the filing of her Brief and Motion to Recall Mandate (in its incomplete form) in between her periods of decompensation and lucidity, and Prays that she be allowed to proceed with his Appeal. Should this Honorable Court Grant this motion, Appellant will give good faith effort to prevent future mistakes. Wherefore Claimant asks that this Honorable Court recall its mandate and reinstate Claimant’s en banc brief.
_____________________ Monica Hoeft
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