Back from a visit to the San Francisco Federal Courthouse. It was quiet and the people friendly. The federal building across the street has some interesting architecture -- not up to City of London standards, but nice and very modern-looking. But while I was there, I browsed a document which would have taken about 90 days to appear electronically, and I checked on the courthouse copies to see what parts of the September 2 courtroom transcript was used and to see if Luis Sancho's signature was any more visible than on the PDFs I have.
News from the Court. Wagner's reply has been rejected by the clerk. There is no mention of Luis Sancho. Clerk's notes: When you file a brief, you are writing for the ages and the court rules often reflect this in large and small ways. In the scientific publishing arena, have you seen similar form letters? In addition to the general rules of the Federal Appeals Court, each circuit has its own rules. Here are the local rules (referenced in the letter above): http://www.ca9.uscourts.gov/rules/FRAP/Rules_TOC.htm
On May 11, 2009, the Government filed a motion in the appeal case calling Wagner's response untimely and requesting that the court rule that Wagner has no right to reply in this or any further untimely filing. FRAP 26 and FRAP 27 only give Wagner 8 working days to respond. That would be today. But perhaps there is a response in the mails. Some insightful, earth-shattering reasoned argument, citing the laws of this land and the wise rulings of yore which will not only explain why FRAP does not apply to Wagner, but that we were foolish to expect them to. News when I have it.
What a load of outrageous crap. How is it's size so much bigger than all particle colliders built before it when it uses the same tunnel as the previous collider, LEP?
Another warm cloudless day at the San Francisco Federal courthouse. A day apparently unmarred by the docketed receipt of any reply to the motion to bar Wagner (and Sancho) from responding to the Government case for the District Court decision to toss out the anti-LHC lawsuit. Helicopters hovered for hours in the mid-morning, apparently in response to news at another SF-based courthouse.
Timeline: March 21, 2008 - Luis Sancho and Walter Wagner file suit in Federal Court Page with free link to original claims Sept 2, 2008 - Oral argument on a motion to dismiss Sept 26, 2008 - The Federal Court in Honolulu rules against Sancho and Wagner. Text of Ruling Feb 2, 2009 - Walter Wagner filed appeal argument Commentary As on LHC-concern.info Feb 26-March 3 - Government and Wagner file motion, opposition and reply in regards to an extension of time for the Government. April 1 - Court grants Government request for additional time. Gives Wagner 14 days to respond if he so chooses. (This actually overrides FRAP 31 (a) (1) which makes Wagner's affidavit of May 27 an admission of negligence.) April 6 - Government replies to appeal. Text here April 13 - Glashow, Wilczek and Wilson petition to file an amici brief (This is timely according to FRAP 29 (e) and FRAP 26 (a) (2).) Partial Text Here April 20 - Wagner's deadline to respond to the Government lapses without even the recommended letter from Wagner (Local rule 31-2.3 recommends letters for non-filers. FRAP 28 (c) states in part: "Unless the court permits, no further briefs may be filed." So this would have normally been the last chance for Wagner to prop up his case.) April 21 - Wagner's deadline to argue against the amici brief being considered expires. April 30 - Court rules against Wagner's vague wish for an order compelling the Government to halt any funding, accepts the Nobel Laureates and Professor as amici (No argument against amici was ever filed) May 5 - Wagner's brief finally shows up -- and is rejected by the court clerk -- // Update: We may now have a copy of how this was meant to appear: http://rjwagner49.com/Personal/Politics/LHC/WalterWagnerReplyBrief.pdf http://rjwagner49.com/Personal/Politics/LHC/LuisSanchoReplyBrief.pdf May 11 - Government argues that Sancho is basically a no-show and Wagner should not be allowed any more briefs Text here May 16 - Dr. Roessler types up a pre-print allegedly for Science May 19 - Deadline for Wagner to respond to above passes without notice. May 27 - Wagner files a motion to be allowed to reply to amici brief -- in it is clear grounds for LHCDefense contributors to be angry at Wagner. "l believed that it was timely filed even with respect to the government brief, which brought in counter-claim issues, though if not, I apologize to the Court for mis-reading the rule pertaining thereto." It is not about parsing rules, it's about showing respect to all parties (especially the court) and requesting to deviate from the rules. But Wagner is so clueless that he doesn't even cite the rules that give the court discretion to grant his request. And where are these "counter-claim issues" Wagner speaks of? He spends the bulk of his time composing a diatribe of an affidavit. He claims to be a scientist (once again, the question of Wagner's credentials goes unanswered) and tries to argue that no "vital" science can be done at LHC. (Not even to answer the question in Wagner's mind if particle accelerators could kill every one of us, which is his central drive.) On or prior to June 4, I expect to see the Government tear a hole in Wagner.
In the May 27 filing, Wager attaches a purported pre-print from O.E. Rossler. (no umlaut). Much of it is unintelligible due to photocopy and/or printing defects. There are no equations and no math. The conceit that this paper might be published in Science anywhere near it's current form is laughable. As always, Roessler fails at GR and so needs to shut up. Why would Wagner think this helps his case at all? The references (so far) are a simple textbook on GR which the author shows no effort at mastering, two pop-science books and a blog comment the author himself left somewhere on the Internet.
Still on the May 27 filing. The court clerk called his motion untimely (FRAP 28 (c) doesn't allow Wagner a reply to an amici brief, one would have to petition separately for the right). Therefore the clerk (who has received neither a motion for late filing or a motion to allow a reply to the amici brief) rightly calls it untimely, with the wrong cover, and notes that Wagner is marking it up like high school paper and not a court brief. So now we go on to the motion to allow Wagner to file the mystery brief. There are so many things wrong, I want the court on it's own motion to deny Wagner further access to the courts. We start with the title: This obviously crosses with the May 11 Government motion to disallow any such brief, and as the Government cites FRAP 27, FRAP 28.1(f)(3), 9th Circuit Rule 27-1 and case King v. Atiyeh, book law and precedent seem to be (unopposed) on the Government's side. But as the clerk rejected the brief for reasons other that mere untimeliness, the actual brief is yet to be seen on May 27 and Wagner is still arguing about May 5. If it is in response to the amicus brief, then Wagner has no expectation to be allowed to file the brief. If it is a response to the Government's case, then it was due on April 20, and Wagner wants to use every second of time to polish it. Let us assume it is in response to the amicus brief. Contrary to FRAP 27 (2)(a), Wagner does not offer grounds on why such a motion should be granted. Indeed, FRAP 28 (c) says the general rule is no one gets to file such a brief, even though it authorizes the court to decide to allow it. FRAP 2 gives the usual grounds to make exceptions to the rules "to expedite [the court's] decision or for other good cause." But "good cause" does not mean what is good for Wagner's ego. It is a term of art meaning in the cause of preventing injustice. One authority writes: "[FRAP 2] also contains a general authorization to the courts to relieve litigants of the consequences of default where manifest injustice would otherwise result." Wagner argues no such injustice. Instead he argues (as we will see below) that the amici are wrong which should have been argued on or prior to April 21. Let us then assume that Wagner means this brief to be the very late reply to the Government's case and just happens to mention the amici brief in passing. Once again, there is no mention of grounds, no showing of why an exception to the timing rules is in the pursuit of justice, and does not demonstrate that reasons other than willful negligence are the reason for the late filing. All this in spite of the Government lawyer kindly showing Wagner how a formal request for late filing is obtained prior to the deadline. And as it is specifically the very issue first raised by the Government in their motion, Wagner should be filing a cross-motion. Note: No such Reply Brief was attached. This is untrue. Technically it is not argued. That is a bald assertion. No authority is cited, no law or rule of the court is referenced. And FRAP 28(c) seems to be the final word on what the rights are to file briefs. And as the Government says in its motion (quoted circa May 12), the Court's order of April 30 specifically anticipated no additional briefs being filed. // Edit, added: Indeed, one authority writes of the amicus brief (with its specific schedule): "A 7-day period also is short enough that no adjustment need be made in the opposing party’s briefing schedule. The opposing party will have sufficient time to review arguments made by the amicus and address them in the party’s responsive pleading. The timetable for filing the parties’ briefs is unaffected by this change." So an amicus brief does not confer any change to rights to file briefs or their timings, and so it follows that a court order which grants the amici motion (which Wagner did not consent to but neither argued against), cannot change the schedule, especially after all deadlines expired. Translation: "Because we assert now, out of thin air, that a never-before-seen right to reply to an amicus brief, we say that the Government and Clerk both are bonkers when they claim the brief was untimely. They did not anticipate that by asserting these just-made-up rights we actually relieve the Court of any need to hear their argument. But even if this Court wants to be so backward as to try to enforce the "rules" in that FRAP nonsense, we are now going to claim we genuinely believed that we were engaged in the more complicated cross-appeal process despite not having even the slightest shred of evidence to support this belief. Because, whether we are talking about court rules or physical theory, what Wagner believes in his mind is much more important mere pathetic evidence like the rest of humanity relies upon. Trust me, I'm a genius." (The affidavit is a bit more than twice as long. Shall I reproduce it here?)
Well, at 8:03 am (11:03 Eastern Time) on June 2, our favorite Government attorney files this response to Wagner's motion. Another fine day in San Francisco it was. I had a fine lunch in the Macy's basement even after being assaulted by one of Paris Hilton's minions armed with a spray bottle of celebrity perfume. ( I think it smells of dead flowers and grapefruit. Now my laptop bag smells of it. ) The court clerks are still aching from the recent federal holiday/bank holiday disrupting their weekly routine, so there is no way to know yet when the next batch of scheduled cases appear.
I thought I understood what was going on, until now. On April 30, two judges accept the amicus brief, and say the case is ready for calendaring which would be the step where the hearing date is decided. On May 5, Wagner submits a wad of paper. On May 11, the Government moves to strike the Wagner brief for being untimely and no showing of good reason, and the Sancho brief for being improperly filed, untimely and no showing of good reason, and over-long. http://sciforums.com/showthread.php?p=2251130#post2251130 On May 12 a deputy clerk with the court orders that motion to be examined by a panel. On May 15, a different deputy clerk writes a letter to Wagner indicating his brief is untimely, and formatted wrong. http://sciforums.com/showthread.php?p=2254951#post2254951 On May 27, Wagner files a motion to allow the brief(s), but fails to attach them as promised. On May 29, the brief(s) go into the mail. On June 2, as predicted by your reporter, the Government points out that Wagner showed no good reason for anything. On June 11, the first deputy clerk override the same clerk's earlier decision on May 12, and orders the brief(s) filed. But since the May 12 motion did not dispose of the motion to strike, isn't the motion to strike still under consideration? In the same motion the deputy clerk ignores all of Wagner's talk about amici and orders the brief(s) filed as a reply to the Government's principle brief. But what is going on? Is the Sancho brief in or out? Is the motion to strike pending or decided? What part of Wagner's filing was persuasive? Is the clerk just waiting for the brief(s) to be filed before striking? The Government is entitled to file (within 14 days) for reconsideration or clarification of the order, but I'm not sure that's a great idea. So, once again, what is going on?
Sent June 10, received June 12. (Deadline: May 16) Untimely. Managing Sancho's case (i.e. acting as his lawyer). Not an argument, just a contradiction. Unspecific as to the issue at point (are pages of footnotes part of the word count or not). Cites no case law. Totally ignores the adjacent paragraph F.R.A.P. Rule 32(a)(7)(B)(iii). (emphasis added) http://www.ca9.uscourts.gov/rules/FRAP/rules.htm#frap32a7b
Minor updates: 6/18 - Court files 76 pages of reply briefs for Sancho/Wagner 6/29 - Calendar check performed. I will refer to another pro-se litigant's description of what this means: http://www.article5.org/Ninth Circuit Court of Appeals Page.htm Some friendly advice for all: http://www.riverbendlaw.com/persuasive.htm
Well, that's been over a month since there has been any movement in the "Hawaiian Man Sues LHC" case. The San Francico clerks are trying to make sense out of the appellate filings and will eventually decide how much oral argument is needed and find time on some judge's calendar.
I guess file this under no news is news. The October calendar for the court has recently been published, so unless the Sancho/Wagner case is added to existing schedules (like the Government appeal of the exclusion of some evidence in the perjury trial of local baseball star Barry Bonds was), the next oppurtunity to scheudule the case is November 2. "ὄψὲ θεῶν ἀλέουσιμύλοι, ἀλέουσι δὲ λεπτ" or roughly, "The gears of justice turn slowly but grind very finely."
Seeing the Daily Show poop on Mr. Wagner's head was good enough for me. For a while there I was afraid to step out my front door, I figured there was a 50/50 chance a dragon might fly by and bite my head off.
I wonder if there's an atheist out there preparing a similar court case against America's churches. The charge: christian rituals are endangering the world by threatening to open a portal to hell from which zombies and other undead terrors will emerge to feast on the flesh of the living, and if such a portal isn't closed within 24 hours, it will remain open for eternity until the entire Earth is filled with the walking dead.
On Monday, September 14th, the announcement of the November schedule for appeals was published. Still nothing.
Here's your monthly update: There is still no scheduled date for the 9th circuit appeal of the dismissal of the case brought by Wagner and Sancho. The last action taken, on June 29th, was notice of the case to be be discussed by the clerks and an appropriate schedule for oral arguments to be made. I think the next window of opportunity is December 7-11. In Hawaii, the unrelated criminal trial heats up. On October 16, Wagner's lawyer filed a motion to forestall the prosecutor from bringing up certain evidence without the permission of the judge, and what may very well be the last motion to dismiss. The trial, once scheduled for August 3, is now scheduled for November 17. Like the LHC startup itself, these proceedings just seem to drag on much longer than expected.
The motion to exclude 'certain evidence' is a motion to rely entirely upon the public record, and to exclude evidence which contradicts the public record, in particular oral evidence. The public record was initially generated in 2001 and showed Mrs. Wagner to be a founder, Director and Secretary for the company from the time of the filing of the articles of incorporation, through and until February, 2004 when she was removed (by myself) as a Director and Treasurer, but retained as the Secretary. Thereafter, the public record show one 'Emerson' becoming the Resident Agent (for service of process) in March, 2004, becoming the Treasurer in June, 2004, and replacing Mrs. Wagner as the Secretary in September, 2004. The motion is in essence a request that oral evidence that would be introduced years after the public record was generated and that would otherwise contradict the public record should be excluded, as required by law. The law requires persons to be cognizant of the public record, and allows them to rely on the public record. The oral evidence that the prosecutor would like to introduce would be the oral statements of a known Liar and felon who has asserted that 'Emerson' became the Secretary in August 2003, and that therefore a document signed by Mrs. Wagner in her capacity as a corporate Secretary on January 1, 2004 were not valid, and that my use of that document as an Exhibit attached to the complaint in support of my civil suit was an "attempted theft" on my part for using documents I supposedly knew were not valid. Since the facts are that Mrs. Wagner was the Secretary when she signed those corporate documents I used as Exhibits attached to my civil suit, and since the public record shows she was that Secretary at that time (January 1, 2004), and since the public record shows that 'Emerson' did not file to become the Secretary with her first public-record filing in March, 2004, nor with her second public-record filing in June, 2004, but not until her third public-record filing in September, 2004; therefore the public record fully shows Mrs. Wagner was that officer on January 1, 2004 when she signed that document, and the Liar's oral assertions to the contrary should be excludable. Once those fraudulent assertions from that Liar are excluded, then there is no case. Those facts, incidentally, have been known to the prosecutor for some 18 months, but he has chosen to maintain that prosecution for political purposes (likely to advance the agenda of his long-time friend, the Liar's personal attorney). I mention this because we have a similar fraud with the LHC management (CERN), which now asserts that there are no safety concerns. This is not true. The Mangano safety argument ("neutron star argument") relies A) upon an unproven assumption that the cross-section for interaction of near-relativistic micro-black-holes is not near-zero; whereas we 1) have no impirical evidence thereon, and 2) some theoreticians show the cross-section to be near-zero at relativisitic speeds (loosely analogous to diminishing cross-sections with speed for neutrons); and B) the safety argument equating proton-Lead collisions in nature as being the same as Lead-Lead collisions at the LHC for comparable COM energies is likewise unproven and appears contrary to established physics, and certainly also has no impirical evidence.
