Petition For Counsel On Rehearing To An En Banc Court

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Monica Hoeft P.O. Box 4843 Stockton, CA 95204-4843 (775)544-2721

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *****

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Monica Hoeft

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D.C. No. CV-N-05-0375-ECR (VPC)

vs

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Appellate Case No 07-15651

Plaintiff- Appellant (Claimant), Michael J. Astrue Commissioner of Social Security Administration, Defendant - Appellee. _______________________________/

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MOTION FOR APPOINTMENT OF COUNSEL

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COMES NOW Plaintiff / Claimant MONICA HOEFT and respectfully asks this court for appointment of counsel.

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Claimant is in pro se and has been searching for a lawyer that takes EAJA fees as compensation from California to Arkansas. Claimant was told that none of the attorneys or law firms will take on a case that has been worked on by a pro-se litigant. Claimant cannot afford a non EAJA fee-based attorney due to her not having an income. Claimant is in pro-se based on her indigence as properly lodged with this court Form 4. Claimant is a mentally ill individual that presents nonexertional limitations. Clamant argued in her appeal, that she needed a vocational expert to testify as to her ability to do jobs in the national economy, but did not cite the precedent case of Heckler v. Campbell, Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). The denial of Hoeft’s disability fell squarely Page 1 of 6

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on

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two isolated incidents of testimony, not the whole as claimant found out at a later

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date through her then attorney of record Dennis Cameron, that the ALJ needed to

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weigh all facts and testimony before making a decision of (non) credibility that is

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not based on a single quantum of evidence.

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The [district] Court’s authority to appoint counsel represent an indigent individual in a civil Case derives from 28 U.S.C. Sec. 1915(d) which provides:

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The court may request an attorney to represent any such person who is

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unable to employ counsel and may dismiss the case if the allegation of

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poverty is untrue, or if satisfied, that the action is frivolous or malicious;

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Section 1915(d) gives [district] courts broad discretion to request an attorney

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to represent an indigent civil litigant. Such litigants do not have a st

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statutory right to appointed counsel.

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The appointment of counsel for an indigent plaintiff in a civil case under 28 U.S.C.

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Sec. 1915(d) is discretionary and is usually only granted upon showing of special

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circumstances indicating the likelihood of substantial prejudice to him resulting,

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for example, from his probable inability without such assistance to present the facts

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and legal issues to the court in a complex and meritorious case. Additionally [the

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court] emphasizes that appointment of counsel can be made at any point in the

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litigation... [S]ec 1915(d) gives the court broad discretion to determine whether

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appointment of counsel warranted, and must be made on a case-by-case basis.

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Tabron v. Grace, 6 F3d 147 (1993 3rd Cir); Rowland v. California Men's Colony,

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(91-1188), 506 U.S. 194 (1993), 113 S. Ct. 716;121 L.Ed.2d 656.

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Claimant’s pro-se appeal consisted of incoherent rambling and unformatted

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claims that she has been made aware of by opposing counsel and understands that

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both the court and opposing counsel had trouble wading through it. Claimant is of

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the informed belief that she was denied her disability because of this. She does not Page 2 of 6

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want to make the same mistake with this important Petition for Rehearing.

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Claimant suffers from bi-polar disorder as well as a host of many other non-

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exertional mental incapacities and does not know when her aliments will strike and

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leave her bedridden and unable to prosecute her case. Claimant is operating at a

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GAF of 45 and has not gotten better (see exhibit “1"). As it stands, Claimant has

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already requested and received and extension up to October 5th, 2009 (see exhibit

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“2") in order to formulate her Petition, as she has moved to a different state and in

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order to seek better treatment and to be stabilized on medications. It is already

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October and Claimant has not been able to formulate a brief suitable to

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comprehension by this court and opposing counsel and also has not been able to

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understand the Federal Rules of Appellate Procedure sufficiently to supply an en

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banc brief that meets this court’s requirements. Claimant would be severely

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prejudiced if not appointed counsel. Claimant as well has no proper medications

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until her first Doctor’s appointment on December 4th, 2009.

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As a threshold matter, a [district] court must assess the whether the claimants

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case has some arguable merit in Fact and Law. Tabron , 6 F3d at 155; as quoted

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in Montgomery v. Pinchak et. al, 294 F3d 492 (2002). Given the complexity of the

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legal and factual issues in this case, the district Court should consider appointing

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counsel for the claimant. Clark v. Comm’r of Soc. Sec., 143 F.3d 115 (2nd Cir

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1998) . The court noted that in determining whether to appoint counsel for an

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indigent litigant is ‘whether the indigents position seems likely of substance’ and

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then assesses the litigant’s competence to proceed pro-se, the complexity of the

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issues and any special reason why the appointment of counsel would lead to a just

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determination. Wenger v. Canastota Cent. Sch. Dist. 146 F.3d 123 (2nd Cir 1998)

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(quoting Hedge v. Police Officers, 802 F.2d 58 (2nd Cir 1986).

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Claimant is informed and believes that she has a position that seems likely

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of substance, since a vocational expert was not used and the ALJ summarily

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dismissed her credibility base on a single quantum of evidence rather than the Page 3 of 6

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whole Sousa v.

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Callahan, 143 F.3d 1240, 1243 (9th Cir 1998). A court must “ Consider the

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record as a whole, weighing both evidence that supports and evidence that detract

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from the secretary’s conclusion.” Penny v.Sullivan, 2 F.3d 953, 956 (9th Cir 1993);

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Aukland v. Massanari, 257 F.3d 1033 (9th Cir. 2001). Claimant also believes that

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her then Attorney of Record, Dennis Cameron, denied her due process when he

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refused to let in her husband as a lay witness to the symptoms that gave rise to

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Claimant’s illness at the first hearing with the ALJ.

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Claimant is also illiterate in Social Security law and has to thumb her way through cases that may apply to her, but has no true grasp of the concepts that lay before her. Claimant is also of the informed belief that given her bi-polar and various related disabilities, she is at the mercy of her manic and depressive states to write a coherent brief, and that may not lie within the time line of this Honorable Court. Claimant also has a tendency to ramble on and not be able to prepare her brief in a fashion that is most likely to be understood by lawyers and Judges. Claimant is therefore of the belief that she presents a special circumstance to this court and with counsel is more likely to prevail on the merits of her claim. Claimant is informed and believes that the court totally disregarded the United States Supreme Court decision of Heckler v. Campbell, 461 U.S. 458, supra as well as prevailing 9th Cir case law and case law of the sister circuits, as did her former attorney. Claimant’s attorney did not apprise her of her rights to have a vocational expert present, nor did he insist on one. Claimant’s husband, Hiawatha Hoeft-Ross was present as a witness and the attorney refused to call him as a witness. In Nguyen v. Chater, 100 F.3d 1462, the 9th Circuit held that since lay witnesses testimony as to claimant’s symptoms is competent evidence as set forth in 20 CFR § 404.1513(e), it cannot be disregarded without comment.

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Judicial costs are dear to this court and Claimant does not seek to waste the

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court’s time with motions for extensions of time due to the frequent

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decompensation that the claimant is subject to. In the past claimant has had to rely

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on outside help for non-legal work such as copying, binding and mailing and could

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only write her brief during periods of lucidity. Claimant has no such help here,

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being new to this state. The timeliness factor here is one that is totally at the mercy

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of the claimant’s illness and does not know when or if she can stand the stress of

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the litigation process and meet the time lines (see attached declarations of

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Hiawatha Ross, Martin Hoeft, and Kirsten Hoeft). This motion is made strictly on the above informed

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beliefs and attached declarations and exhibits and requests therefore an

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appointment of counsel for preparing a Rehearing En Banc. This motion is not

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interposed for delay.

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WHEREFORE Plaintiff requests

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1)An appointment of counsel for the above-mentioned reasons, the attached exhibits and declarations and for reasons of judicial economy.

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DATED: Respectfully submitted _____________________

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Monica Hoeft

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CERTIFICATE OF SERVICE

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I certify under penalty of perjury pursuant to 28 USC 1746 that I served a

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copy of the Motion for Appointment of Counsel by the Appellant upon the

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Appellee.

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Executed this

Day of

, 2009

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Elizabeth Firer Special Assistant to United States Attorney 13 Social Security Administration 333Market Street Suite 1500 14 San Francisco, CA 94105 12

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____________________

Monica Hoeft

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