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41 3 - 16 - 22 Request Reconsider Oversize Brief
41 3 - 16 - 22 Request Reconsider Oversize Brief
21-16019
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIDIA DUARTE,
Plaintiff-Appellant,
v.
03/02/22 Order issued by the Clerk’s Office pursuant to 9th Cir. Rule 27-7 denying
Order denying Appellant’s motion for reconsideration (Dkt. #19, 33, 40).
Appellant requests review by an Article III judge and oral argument. Also,
Appellant requests a new briefing schedule pursuant to 9th Cir. Rule 27-11 (b) in
order to avoid prejudice to Appellant’s case. In order to save natural and judicial
from Appellant’s 01/31/22 Motion for Reconsideration of the Order denying the
“A party seeking relief under this rule shall state with particularity the points
of law or fact which, in the opinion of the movant, the Court has overlooked or
circumstances which may entitle the movant to relief also shall be stated with
particularity.” Id.
which the Court summarily granted the party leave to file an oversize brief.
intervenor’s telephonic request to file an oversize brief. (Dkt. #32-1, pp. 1). There
intervenor. Id. pp. 2-6. We must assume that PGE merely telephoned the Clerk
the Appellant moved the Ninth Circuit for leave to file an oversized brief, with
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minor recitation of a lengthy factual statement and two judicial orders, “In fact, a
background for the Court’s consideration . . . this appeal stems from two lengthy
and substantive orders of the district court, which adjudicated two motions. Both of
the underlying motions had a substantial briefing history. The large number of
issues raised by the underlying motions, and the length of the district court’s orders
appeal to the word limitation set forth in Federal Rule of Appellate Procedure
32(a)(7).” (Dkt. #32-2, Pp. 1-2). The facts taken much space in the brief. On
35634, Appellant moved to file an oversize brief, alleging with some specificity,
“2. This case, originally filed in June 2010, has involved an extraordinary amount
documents in the district court. A departure from the ordinary length limitation is
warranted for three reasons: (1) the number and complexity of legal issues,
including issues of first impression before this Court; (2) the complicated
procedural history; and (3) the importance of the issues at stake . . . First, this
appeal challenges the district court’s conclusions in three distinct orders (ECF Nos.
321, 337, 356) addressing separate dispositive motions . . .4. Second, this appeal
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has a complex procedural history, including multiple phases of briefing on
successive dispositive motions . . .” In short, there are many issues and many
U.S. Government moved to file an oversize brief, offering the following assertion,
“opinions, one of which adopts in large part the analysis of a 147-page order and
opinion of another district court in the Southern District of New York, vacate the
the government’s briefing.” (Dkt. #32-4, pp. 3). In short, there are many legal
issues in one (1) order. On 07/07/2020, Clerk Molly Dwyer summarily granted the
brief, citing detailed facts showing the number of years of benefits in dispute,
multiple filings, multiple witnesses, and complex multiple legal issues. (Dkt. #19).
On 01/18/22, the Clerk’s office summarily denied the motion to file an oversize
brief, with an admonition of displeasure, “[m]options to exceed the word limit will
ARGUMENT
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The equal protection clause of the firth and fourteenth amendments require
between types of need based benefits and asset exemptions) citing U.S. Dept. of
Yick Wo v. Hopkins, 118 U.S. 356, 363 (1886)(building code ordinance enforced
“Throughout our history differences in race and color have defined easily
identifiable groups which have at times required the aid of the courts in securing
equal treatment under the laws.” Hernandez v. Texas, 347 U.S. 475, 478 (1954). But
community prejudices are not static, and from time to time other differences from
the community norm may define other groups which need the same protection. Id.
Whether such a group exists within a community is a question of fact. When the
existence of a distinct class is demonstrated, and it is further shown that the laws, as
written or as applied, single out that class for different treatment not based on some
reasonable classification, the guarantees of the Constitution have been violated. Id.
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"two-class theory" — that is, based upon differences between "white" and Negro.”).
Id.
Texas, 347 U.S. 475, 479 (1954). One method by which this may be demonstrated is
by showing the attitude of the community. Id. Here the testimony of responsible
officials and citizens contained the admission that residents of the community
Mexican descent in business and community groups was shown to be slight. Until
very recent times, children of Mexican descent were required to attend a segregated
school for the first four grades. Id. At least one restaurant in town prominently
may well dictate that no persons in a certain class will serve on a particular jury or
during some particular period. Id. at 482. But it taxes our credulity to say that mere
chance resulted in there being no members of this class among the over six thousand
jurors called in the past 25 years. Id. The result bespeaks discrimination, whether or
not it was a conscious decision on the part of any individual jury commissioner. Id.
The Supreme Court ordered, “the judgment of conviction must be reversed.” Id.
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In none of the cases, where the clerk granted the motion to file an oversize
brief did the Clerk admonish anyone, “[m]options to exceed the word limit will not
Mrs. Duarte’s motion. (Dkt. 32-1, 32-2, 32-3, 32-4). To the contrary, the above
cases as show in Exhibits A, B, C, and D (Dkt. 32-1 to 32-4) (and numerous other
instances) indicate that for nearly twenty (20) years the Clerk’s office routinely
grants motions to file oversize briefs, with little showing of any extraordinary
matters greater than it’s complicated or the facts are long. In only one (1) instance,
Kariye, 2018, did a party offer some factual narrative, albeit with no numbers of
how many issues, “ . . . This case, originally filed in June 2010 . . . including
multiple dispositive motions and the filing of hundreds of documents in the district
court. A departure from the ordinary length limitation is warranted for three
reasons: (1) the number and complexity of legal issues, including issues of first
impression before this Court; (2) the complicated procedural history; and (3) . . .
court’s conclusions in three distinct orders . . . . . .4. Second, this appeal has a
PG&E, the assumed intervenor, PG&E did not even file a motion or any
declaration, but the Clerk summarily granted the request. (Dkt. #32-1).
Moreover, in Mrs. Duarte’s case, on 01/18/22 the Clerk and on 03/02/22 the
Commissioner did not apply any law to any fact cited in Mrs. Duarte’s motion to
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show a principled reason why Mrs. Duarte should not file an oversize brief.
Mrs. Duarte’s 12/10/21 motion and declaration exceed the Flores and Azar
cases’ limited generalities to justify an oversize brief, and eclipses Cal. Pub. Util.
Comm. v. Nuclear Regulatory Commiss, where the parties did not file a motion.
Like Kariye by the sheer number of years of unpaid benefits (15 years) is
astounding. Mrs. Duarte’s case, her 12/10/21 opening brief involves XVI legal
history and purpose for Chapter XVI governing Supplemental Security. (Dkt. #32-
5)). Mrs. Duarte’s 12/10/21 Motion to file an oversize brief and its declaration
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That Mrs. Duarte’s administrative litigation has exceeded six (6) years without
resolution is shocking. The number of issue and their complexity in Mrs. Duarte’s
overlooked that Mrs. Duarte, a humble, 84 year old retiree, confronted the most
records; whereas in Kariye the voluminous record is the result of a class action
The sole difference between Cal. Pub. Util. Comm. v. Nuclear Regulatory
Commiss, Flores v. Lynch, Kariye v. Jeffrey Sessions, San Francisco v. Azar, and
Mrs. Duarte’s case is that Mrs. Duarte is an elderly Native American woman of
Mexican descent. The 01/18/22 and 03/02/22 Orders violate equal protection.
denying the motion to file an oversize brief is contrary to due process and equal
That her case challenges the nationwide mis-treatment of elders by the SSA
brief is as short as it can be made without sacrificing the challenges stated therein.
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CONCLUSION
modification of the 03/02/22 Order and leave to file the opening brief to exceed the
word limitations.
_________________
Emanuel Zola
Attorney for Appellant Elidia Duarte