In The
Monica Hoeft
Petitioner-Appellant
v.
Michael Astrue
Commissioner of Social Security
Defendant-Appellee
__________________________________________
______________________________
Monica Hoeft
Comes now Petitioner in Pro Se and hereby moves this Honorable Court to reconsider
the timeliness of her Writ of Certiorari and Motion to File Writ out of Time
[T]he time to file a petition for a writ of certiorari runs from the
date of entry of the judgment or order sought to be reviewed, and
not from the issuance date of the mandate (or its equivalent
under local practice). But if a petition for rehearing is timely
filed in the lower court by any party, or if the lower court
appropriately entertains an untimely petition for rehearing or
sua sponte considers rehearing, the time to file the petition for a
writ of certiorari for all parties (whether or not they requested
rehearing or joined in the petition for rehearing) runs from the
date of the denial of rehearing or, if rehearing is granted, the
subsequent entry of judgment.
The final date of entry of judgement on Petitioner's case is December 18th 2090 (see
Petitioner Appendix "A" see court docket entries Pet. App. "B"). The court did not say
that the denial of judgement was "moot" instead it simply stated that the motion was
denied - therefore the court retained jurisdiction. According to Black's law, "[A] case
becomes "moot" when the issues presented are no longer "live" or the parties lack a
legally cognizable interest in the outcome. Murphy v. Hunt, U.S.Neb. 455 U.S.478,
102 S.Ct. 1181, 71 L. Ed.2d 353." The application was returned as untimely —which
requires that a civil certiorari petition be filed within 90 days after the entry of the
judgment below and that any application for an extension of time be filed within the
original 90-day period—since, while the filing of a "petition for rehearing" under
Federal Rule of Appellate Procedure 40 tolls the running of the 90-day period. Missouri
jurisdictionally untimely and this Court's Rule 13.3. instructs that a petition must be
filed "within ninety days after the entry of . . . judgment," and this Court's Rule 13.3
elaborates on that statute's (28 USC 2101) instruction. More than 90 days elapsed
between the date the Ninth Circuit first entered judgment and the date the Director's
petition was filed. That time lapse, respondents assert, made the filing untimely under
Rule 13.3's first sentence: "[T]he time to file . . . runs from the date of entry of the
party petitioned for rehearing, the extended filing periods prescribed by the Rule's
second sentence never came into play. This case, however, did not follow the typical
course. The Ninth Circuit, on its own initiative, had recalled its mandate and ordered
the parties to brief the question whether the case should be reheard en banc. That
order, this Court holds, suspended the judgment's finality , just as a timely filed
rehearing petition, see Missouri v. Jenkins, 495 U. S. 33, 49. The Court of Appeals'
order raised the question whether that court would modify the judgment and alter the
parties' rights; thus, while the court-initiated briefing order was pending, there was
no "judgment" to be reviewed. See, e.g., id., at 46. The Director's certiorari petition was
timely under the statute because it was filed within 90 days of the date the Ninth
Winn et al. 542 US 88. A timely petition for rehearing operates to suspend the finality
of the court's judgment, pending the court's further determination whether the
judgment should be modified so as to alter its adjudication of the rights of the parties.
As cited in United States v. Wall, 456 F3d 316; "While his petition for rehearing was
As stated - the Petitioner's Motion for Recall and Motion to file an En Banc brief was
still pending before the Ninth Circuit and as the case law in Wall dictates, there was
Certiorari. Therefore based on the text of the Supreme Court Rules 13.3 and the case
law cited herein, the Petitioner has filed for a timely Writ of Certiorari as the final
decision did not come down until December 18th, 2090. Petitioner has until Thursday
Aug. 17th. 2009 Docket entry 37 Filed - Motion to extend time to file petition for
Aug 17th, 2090 Docket Entry 38 Received - change of address of Monica Hoeft
Aug 20th, 2009 Docket Entry 40 Motion to extend time to file for petition for
Oct. 26th, 2009 Docket Entry 43 Motion for appointment of Counsel is DENIED
Nov. 30th, 2009 Docket Entry 44 Filed Motion to recall mandate and to file late
Nov. 30th, 2009 Docket Entry 45 Received Appellant’s petition for En Banc only
circulation) [7147346](TB)
Dec. 18th, 2009 Docket Entry 46 Appellant’s motion for recall and leave to file
Jan. 4th, 2010 Docket Entry 47 Received copy of Appellant’s petition for
At no time from the mandate issued on July 7th, 2009 and October 14th. 2009 did the
court divest itself of jurisdiction until the phone call placed by Plaintiff on Monday
January 4th, 2010 when the Clerk of the Court of the Ninth Circuit Court of Appeals
stated to the Plaintiff Hoeft in plain terms that the court no longer has jurisdiction and
she must take the matter up with the Unites States Supreme Court. No order of
finality was issued, other than the order of December 18th, 2009 that states that the
Plaintiffs motion for recall and leave to file En banc petition out of time are DENIED.
This is consistent with Supreme Court Rule 13.3 that a timely Writ of Certiorari.. runs
from the date of the denial of rehearing... [Emphasis added]. That denial did not
occur until December 18th, 2009 and the Petitioner has therefore until March 18th, 2010
For good cause, a Justice may extend the time to file a petition
for a writ of certiorari for a period not exceeding 60 days. An
application to extend the time to file shall set out the basis for
jurisdiction in this Court, identify the judgment sought to be
reviewed, include a copy of the opinion and any order respecting
rehearing, and set out specific reasons why an extension of time
is justified. The application must be filed with the Clerk at least
10 days before the date the petition is due, except in
extraordinary circumstances.
Petitioner is in dire financial straights and is not able to send her petition for Writ of
Certiorari to the Supreme Court back and forth until the Court so requests. The
jurisdiction of this court is invoked under Supreme Court Rule 13.3, in that Petitioner
is seeking review of a judgement that is NOT out of time, in that the Federal Appeals
Court still had jurisdiction to entertain Hoeft’s petition for a Motion to Recall and
Leave to File an En Banc Petition out of time, which was denied on December 18th,
2009 making March 18th, 2010 the time when the petition for Writ of Certiorari is due.
Certiorari petition is timely under the statute because it was filed within 90 days of
the date the Ninth Circuit denied rehearing en banc. Hibbs Director Arizona
reviewed is whether or not the Ninth Circuit Court of appeal applied the correct
standard under Heckler v. Campbell, 461 U.S. 458,103 S.Ct. 1952, 76 L.Ed.2d 66 in
Circuit Court did not require that the ALJ either have a Vocational Expert present or
read the Dictionary of Occupational Titles, he just stated that the Claimant (Petitioner
Hoeft) could not work around people and left the claimant to figure out what jobs the
ALJ had in mind. The Petitioner is not a mind-reader and does not know what jobs
Petitioner does not know if this motion will be granted and does not have the finances
to resend the writ petition unless so called for by the Court. Therefore good cause
exists that Petitioner’s motion for an extension of time in which to send in her petition
for writ of certiorari should be granted. The petition is completed and only has to wait