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 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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 1. 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-DFH-

TAB. 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 rubber-

stamped a denial because she attempted to overcome her disability and is now

being penalized for it.

3. Claimant has a constitutionally protected interest in receiving

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

Page 7 of 15
 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 non-
jurisdictional error
It has also long been held that the Court is not required to dismiss every

appeal which does not meet the time limitations. See Marcaida v. Rascoe, 569

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 non-
jurisdictional 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.
Page 10 of 15
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
1. Excusable neglect
2. 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.

Respectfully Submitted:

_____________________
Monica Hoeft

DATED:

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