Case No.

21-16019

IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ELIDIA DUARTE,
Plaintiff-Appellant,

v.

COMMISSIONER KILOKO KIJAKAZI

(FORMERLY ANDREW SAUL), et al.,

Defendants-Appellees.
_____________________________________________________________
On Appeal from the United States District Court
for the Northern District of California
Hon. Joseph C. Spero
USDC Case no. 3:20-cv-00151-JCS
_____________________________________________________________

APPELLANT’S MOTION FOR RECONSIDERATION AND

MODIFICATION OF THE 03/02/22 ORDER DENYING APPELLANT’S
UNOPPOSED MOTION TO EXCEED THE VOLUME LIMITATION FOR
THE OPENING BRIEF

Appellant respectfully moves for reconsideration or modification of the

03/02/22 Order issued by the Clerk’s Office pursuant to 9th Cir. Rule 27-7 denying

Appellant’s 12/10/21 unopposed motion to file an oversize brief and 03/02/22

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

resources, Appellant incorporates by reference the exhibits, declaration, and MPA

from Appellant’s 01/31/22 Motion for Reconsideration of the Order denying the

Request to File an Oversize Brief. (Dkt. #32).

“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

misunderstood. 9th Cir. Rule 27-10(a)(3). “Changes in legal or factual

circumstances which may entitle the movant to relief also shall be stated with

particularity.” Id.

On 01/31/22 Appellant attached as Exhibits A-D the following instances in

which the Court summarily granted the party leave to file an oversize brief.

On 02/06/03, In Cal. Pub. Util. Comm. v. Nuclear Regulatory Commiss, case

no. 02-72735, 9th Circuit Clerk Cathy Catterson, summarily granted an

intervenor’s telephonic request to file an oversize brief. (Dkt. #32-1, pp. 1). There

is no written, formal brief, as the docket is bereft of a motion by the unamed

intervenor. Id. pp. 2-6. We must assume that PGE merely telephoned the Clerk

and received the favorable order automatically with no showing of a need.

On 01/15/2016, in Flores v. Lynch, U.S. Attorney General, case 15-56434,

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

substantial portion of the Government’s brief is taken up laying out this

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

adjudicating those motions, made it exceedingly difficult to limit argument on this

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

02/17/2016, Clerk Molly Dwyer summarily granted the motion.

On 01/05/2018, in Kariye v. Jeffrey Sessions, Attorney General, case no. 17-

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

of litigation, 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) 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

procedural moves to document. (Dkt. #32-3, pp. 5-6). On 01/05/2018, Clerk

Molly Dwyer summarily granted Kariye’s motion.

On 06/15/2020 in San Francisco v. Azar, Case no. 20-15398, Appellant

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

rule based on a number of independent grounds, all of which must be addressed in

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

motion. Id. at pp. 14.

On 12/10/21, Mrs. Duarte, the Appellant filed a motion to file an oversize

brief, citing detailed facts showing the number of years of benefits in dispute,

multiple lawsuits, thousands of pages of excerpts and administrative record,

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

not be granted absent extraordinary and compelling circumstances.” (Dkt. #32)

ARGUMENT

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 The equal protection clause of the firth and fourteenth amendments require

that any classification resulting in different treatment between two similarly

situated groups [facially neutral] must be rationally related to a legitimate state

interest. LaMadrid v. Hegstrom, 599 F.Supp. 1450, 1458 (1984)(distinctions

between types of need based benefits and asset exemptions) citing U.S. Dept. of

Agriculture v. Moreno, 413 U.S. 528, 93 (1973); compare the Administrative

Procedure Act, 5 U.S.C. § 706(2)(A)(arbitrary acts). A facially neutral enactment

enforced in an arbitrary manner affecting a fundamental right is unconstitutional.

Yick Wo v. Hopkins, 118 U.S. 356, 363 (1886)(building code ordinance enforced

only against Chinese laundry owners).

“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.

The Fourteenth Amendment is not directed solely against discrimination due to a

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"two-class theory" — that is, based upon differences between "white" and Negro.”).

Id.

The Court explained, “The petitioner's initial burden in substantiating his

charge of group discrimination was to prove that persons of Mexican descent

constitute a separate class in Jackson County, distinct from ‘whites.’" Hernandez v.

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

distinguished between "white" and "Mexican." Id. The participation of persons of

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

displayed a sign announcing "No Mexicans Served." Id. Circumstances or chance

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

be granted absent extraordinary and compelling circumstances,” as she did with

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

complex procedural history . . .” (Dkt. #32-3))(emphasis added). In the case of the

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

issues, a lengthy factual and procedural history, including an explanation of the

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

proved in detail the exceptional nature of her case:

1) Appellant’s case involves six (6) years of administrative and

judicial litigation. The numerous complex legal errors, conflicting
orders, irregularities, 8 witnesses, a 2000-page administrative record
and coordination with the administrative appeal before the SSA in
Virginia. The judicial record before the Northern District of
California includes two (2) mandamus cases, 11 orders, numerous
motions, and objections, comprising 700 pages. The record includes
unpaid benefits spanning 15 years. Appellant has diligently edited the
reply brief to address only the issues presented on appeal for
efficiency.

2) As a result, there is a substantial need for an over-length reply

brief in light of the large number and scope of the independent legal
questions at issue, the consolidated nature of the appeal and the range
of briefs filed by or in support of appellee and the significance of the
decision at issue.

(Dkt. #19: 4, Dkt. #32-5)

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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

case is as worthy of comprehensive briefing as Kariye. The Clerk’s office

overlooked that Mrs. Duarte, a humble, 84 year old retiree, confronted the most

complex administrative machinery in the U.S. Government, the Social Security

Administration, for six (6) years, resulting in thousands of pages of administrative

records; whereas in Kariye the voluminous record is the result of a class action

involving numerous persons. In other words, Mrs. Duarte by herself is

accomplishing the same as the many.

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.

Therefore, the Clerk’s 01/18/22 and Commissioner’s 03/02/22 Orders

denying the motion to file an oversize brief is contrary to due process and equal

protection, because they are arbitrary.

That her case challenges the nationwide mis-treatment of elders by the SSA

Administration, through its practice of indefinite delay, is historic. Mrs. Duarte’s

brief is as short as it can be made without sacrificing the challenges stated therein.

If any case deserves an oversize brief, it is Mrs. Duarte’s case.

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 CONCLUSION

For these reasons, Appellant respectfully requests reconsideration and

modification of the 03/02/22 Order and leave to file the opening brief to exceed the

word limitations.

Dated: March 16 , 2022 ZOLA, WEGMAN & ASSOCIATES, APC

_________________
Emanuel Zola
Attorney for Appellant Elidia Duarte

ZOLA,WEGMAN, & ASSOCIATES

468 N. Camden Dr., Penthouse B, Beverly
Hills, CA 90210
Tele: (310) 285-1766
Fax: (310) 861-1627
Email: [email protected]