IN THE

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.

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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 200-
300 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 non-
exertional 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 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

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. 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.

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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