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United States Supreme Court
Federal Appeals Case No. 07-15651
_________________ Monica Hoeft In Pro se, 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 UNITED STATES SUPREME COURT _________________ Monica Hoeft
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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. 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
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Rule 41(d)(2) of the Federal Rules of Appellate Procedure are met. 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
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"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 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 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.
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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. An Application for DIB1 was filed August 27th 2002, citing severe clinical depression as reason for inability to work. 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. On September 25th, 2002 Claimant
1 Disability Insurance Benefits
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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.” Claimant’s initial determination was rejected October 3rd, 2002 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. On October 7th, 2002, a Social Security Notice was sent. A reconsideration Disability Report was filed on October 17th, 2002. On October 18th, 2002, a request for reconsideration was filed 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. On August 6th, 2003 a request for hearing was filed. An undated Claimants statement was submitted when request for hearing was filed and the issue was disability. 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 200300 mg for sleep; Carbamazepine 400mg for mood disorders; Wellbutrine 300mgs for lessening of sexual side effects. The final decision was rendered on March 25th, 2003.
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The appeals counsel denied Claimant’s request for reconsideration on March 25th, 2003 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
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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 Magistrate’s findings 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.
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Claimant filed her notice of appeal on April 19th, 2007 and Cause was docketed. On April 9 th, 2007 Claimant filed a motion to proceed in Forma Pauperis and was granted to proceed IFP2 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 29 th 2007. Claimant then filed a motion to extend time on April 19th, 2007. Claimant then filed a motion in the appellate court to proceed In Forma Pauperis as she had not received a notice from the district court that the previous motion 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
2 IFP - in Forma Pauperis
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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. The decision of the district court was affirmed on July 7th, 2009 against claimant’s interest. Claimant filed a request for an extension of time until October 5th 2009 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 and not received by Claimant until October 20th, 2009. Claimant filed a timely Recall of Mandate and 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.
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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 nonexertional limitations and no VE3 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) throughout all administrative and legal proceedings. 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 2711 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
3 Vocational Expert
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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 little to eat and live off of. PlaintiffAppellant 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.
DATED: Respectfully Submitted
_______________________ Monica Hoeft
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In Pro Se
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 and to the Solicitor General of the United States.
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DATED: Solicitor General of the United States Room 5614 Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001 Office of the General Counsel of the Social Security Administration Room 611 6401 Security Blvd Baltimore MD., 21235
____________________ Monica Hoeft In Pro Se
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