LHC Safety and the Law

[Walter L. Wagner]

(Just how did Judge Nakamura schedule the arrest? How can you distinguish your story from Sheriff's officers working independently and noticing the ongoing trial with public records matched the name on a still-active warrant and waiting perhaps hours for an opportunity where entering the courtroom would not be grounds for contempt?)

As stated before, Mr. Nakamura went on the public record, after the fact, and stated that the sheriffs approached him before the arrest event, and obtained his approval to enter the courtroom during the civil trial and effect the arrest [and the warrant that he had issued]. The moment they entered the courtroom [at the back of the courtroom], he stood up and announced he was taking a break, cutting off the witness who was testifying mid-sentence, and he rapidly exited the courtroom [through his chambers door]. The sheriffs then proceeded forward and effected the arrest of Linda Wagner, who was sitting at the front at the defense table.

Mr. Nakamura had many other avenues available to him. It was his courtroom. He could have modified the warrant to preclude it being executed in his courtroom. He could have recalled it. He could have recessed the trial for a few hours while bail was being posted. He could have requested the sheriffs wait until 4:00 PM when the trial ends for the day. None of those events were done.

Now tell us, rpenner, how that case relates to the LHC and the Law thread you initiated? Isn't this just an effort on your part for an ad hominem attack?

 

[Stryder]

Forgive me, I know my physics is not up to par (in fact it's beyond rusty or mature), however I'm pretty sure that *if* CERN and it's LHC was to generate a blackhole that swallowed the world, we would already know about it far before the actual activation.

The reason I pose, would be down to a blackhole distorting spacetime enough and having an "Event Horizon". What I mean is that during the passage of time up to the event of a blackhole, our space would be distorted as it would actually be a proportion of that Event Horizon.

(I'm pretty sure some might be able to reason further if they are willing to theorize in regards to the EPR Paradox and the Copenhagen Interpretation of Events.)

I guess I'm saying I see it pretty foolish to be chasing lawsuits on something that should be pretty fundamental.

 

[rpenner]

Now tell us, rpenner, how that case relates to the LHC and the Law thread you initiated? Isn't this just an effort on your part for an ad hominem attack?

It goes to credibility and estimation of competence. You are consistently attacking my estimations of courtroom outcome, so I investigate to see what basis, if any, you have for claims of superior estimation. But if you would prefer to speak to the physics of the case, I would feel obliged to reciprocate. (Taking in mind, of course, that at this instant, your interests may be better served in reading, researching and responding to the Reply Brief.)

read everything - in MANY other threads here - where it's been proven beyond all doubt that actually [Wagner] IS a jerk , liar, crook and misrepsents himself as having credentials that he clearly does not posess.

I have long considered the fund-raising on LHC Defense to be a claim of competence. I have seen one posted claim that they donated $2000, which is an extraordinary demonstration of confidence in the competence of the Sancho/Wagner legal team.

Circa October 20, [Wagner] was busy on a cluster of apparently closely networked blogs where the subject was Wagner's representation of his own credentials as given to this court and elsewhere. The response has not been very positive.

Now, I'm interested in researching WLW's W-L record in court.

Because the question of "are LHC Defense contributers and Luis Sancho well-served by Wagner's expertise?" is raised. For that matter, has Linda Wagner been well-served?

It was a complete mystery to me why judges in Hawaiian criminal court and Federal district court felt willing to grant leave for this Utah expedition. Some details might exist in document 72, TRANSCRIPT of Proceedings Motion to Dismiss or Motion for Summary Judgment held on 9/2/2008, before Judge Helen Gillmor. Court Reporter Debra Chun. But I don't want to fly to Hawaii for the opportunity to view it for free.

No such details exist in the transcript or are forthcoming from other sources...

March 8, Wagner sends and cc's email. http://www.bigislandvideonews.com/hamakua/2009/20090308wagner.htm -- points to Wagner's October 2008 plans to leave Hawaii -- raises question of wisdom of leaving in the middle of a courtroom appearance -- and that of following up on a civil lawsuit loss by making criminal accusations against the winners.

Judges Hara and Nakamura are both unacceptable? What happens when Wagner runs out of Judges in Hawaii? While being arrested is always traumatic, in a practical matter it is a process which can take hours and is not easily interrupted. It is totally unclear to me why leaving the courtroom was a good idea. With benefit of hindsight, filing a motion to quash is not the same as quashing, and better advice might have been to surrender to the warrant and deal with it in a timely manner instead of letting outside circumstances dictate when the arrest would happen. Yet better advice would be to engage the services of at least one lawyer to deal either with the civil or criminal aspects. Even practicing attorneys have been known to hire the services of a lawyer.

 

[rpenner]

Forgive me, I know my physics is not up to par (in fact it's beyond rusty or mature), however I'm pretty sure that *if* CERN and it's LHC was to generate a blackhole that swallowed the world, we would already know about it far before the actual activation.

The reason I pose, would be down to a blackhole distorting spacetime enough and having an "Event Horizon". What I mean is that during the passage of time up to the event of a blackhole, our space would be distorted as it would actually be a proportion of that Event Horizon.

This seems completely untrue from the GR definitions of black hole and event horizon.

It is sufficient to demonstrate that if dangerous black holes could be formed at LHC that the universe would look different than observed, to eliminate the possibility of dangerous black holes at LHC.

 

[rpenner]

My heroes! The amici are back (April 13) to again pop the bubble of claims of expertise by Wagner.

Amici have special knowledge which they believe will assist the Court in this case. Moreover, amici are concerned that Appellants have misunderstood, misconstrued and misstated the import of amici’s submission to the district court, and have misrepresented that submission as supporting Appellants’ claims.
...
Amici are aware that the LHC has undergone thorough scientific safety and risk analyses, and are familiar with the numerous scientific papers examining the risks associated with the LHC. These scientific papers have examined, inter alia, the very claims asserted by Appellants here. Appellants’ claims have not been accepted by the scientific community and are not based on rigorous scientific analysis.
...
Amici are concerned about the use of litigation based on misinformation about and misunderstanding of science under the guise of concern for the environment that inhibits vital and important scientific inquiry. Amici are prompted to submit this brief in part because the Appellants have misconstrued and misrepresented the nature of science and scientific knowledge, and have misused and misconstrued our amicus brief in the district court to support their fallacious arguments in this Court.

II. APPELLANTS’ ARGUMENT THAT AMICI’S CONCLUSION THAT A CATASTROPHIC EVENT AT THE LHC IS “UNLIKELY” SUPPORTS PLAINTIFFS’ CLAIMS IS BASED ON A FUNDAMENTAL MISUNDERSTANDING OF THE NATURE OF SCIENCE

Appellants argue that: “Merely being ‘unlikely’ or ‘very unlikely’ that the LHC will create conditions that destroy Earth is every reason not to proceed with the experiment unless and until it can be proven to be impossible to destroy the Earth.” (Appellants’ Brief at 11 (emphasis supplied)). Appellants’ proposed standard, that for something to be safe experts must conclude that an accident is “impossible”, betrays Appellants’ fundamental misunderstanding of the nature of science.

As Nobel laureate in Physics Richard Feynman put it, “Scientists, therefore, are used to dealing with doubt and uncertainty. All scientific knowledge is uncertain. This experience with doubt and uncertainty is important. I believe that it is of very great value, and one that extends beyond the sciences. I believe that to solve any problem that has never been solved before, you have to leave the door to the unknown ajar. You have to permit the possibility that you do not have it exactly right. Otherwise, if you have made up your mind already, you might not solve it.” Feynman, R. P. The Meaning of It All: Thoughts of a Citizen-Scientist 26-27 (1999).

The Supreme Court has recognized that “it would be unreasonable to conclude that the subject of scientific testimony must be ‘known’ to a certainty; arguably, there are no certainties in science. See, e.g., Brief for Nicolaas Bloembergen et al. as Amici Curiae at 9 (‘Indeed, scientists do not assert that they know what is immutably ‘true’-- they are committed to searching for new, temporary theories to explain, as best they can, phenomena’).” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993) (footnote omitted). As the Bloembergen amici went on to explain: “in science accepted ‘truth’ is not a constant . . . it evolves, either gradually or discontinuously. . . . An hypothesis can be falsified or disproved, but cannot, ultimately, be proven true because knowledge is always incomplete. An hypothesis that is tested and not falsified is corroborated, but not proved. Thus, scientific statements or theories are never final and are always subject to revision or rejection. See L. Loevinger, “Standards of Proof in Science and Law”, 32 Jurimetrics J. 327 (1992). . . .” Brief of Amici Curiae Nicolaas Bloembergen, et al. at 12-13, filed in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), 1993 WL 13006286 (January 19, 1993); see also L. Loevinger, “The Distinctive Functions of Science and Law,” 24 Interdisciplinary Science Reviews 87 (1999). “Even the most robust and reliable theory, however, is tentative. A scientific theory is forever subject to reexamination and -- as in the case of Ptolemaic astronomy --may ultimately be rejected after centuries of viability.” Brief of 72 Nobel Laureates and Others, filed in Edwards v. Aguillard, 482 U.S. 578 (1987), 1986 WL 727658 (August 18, 1986). [[Indeed, the ancient motto of the Royal Society of London for the Improvement of Natural Knowledge (commonly known as the “Royal Society”), founded in 1663 and probably the earliest society for the advancement of scientific knowledge, is “Nullius in Verba,” which has been translated by the renowned physicist Freeman Dyson (in 55 New York Review of Books, Number 10 (June 12, 2008)) as "Nobody's word is final," signifying a commitment to knowledge through experiment rather than through dogma or doctrine.]]

Appellants note that amici are not “absolutely certain” that there is no risk and they imply that our views should therefore be disregarded. As scientists, we would be abusing the meaning of “absolute” or “certainty” if we had written that there was no chance of any event occurring in the future, because there is nothing absolutely certain about our understanding of the future. To claim that something is “absolutely safe” is incorrect usage and we studiously declined to play this word game in our brief to the district court or in this brief to this Court.

However, we are content to tell this Court, as we did the district court, that the issue of the safety of the LHC has been properly raised by its proponents. It has been extensively examined and discussed by many of the brightest minds that have addressed the issue. The particular concerns raised by the Appellants are not correct.

Amici believe that the procedure for addressing the safety issue was proper and followed and follows the highest standards scientists have yet developed. Whereas we do not say that it is “absolutely safe,” we have no qualms about endorsing the operation of the LHC to our colleagues, our friends, to this Court, and to the world.

Whether such measured thoughts have any impact on the appellant who advanced the argument that "Dollarz iz teh only moniez" is yet to be seen.

 

[rpenner]

The Wagner-associated LHCDefense site is down. No word if this is a mere technical glitch or a case of not enough "Dollarz".

http://www.lhcdefense.org/

 

[rpenner]

I hate the slowness of paper and mail. Wagner's response to the Government reply is nowhere to be found. I was hoping to have it as early at this Monday.

 

[James R]

rpenner:

What's your association with this case (if any)? Or are you just interested? Are you just posting public documents here, or do you have inside information?

 

[rpenner]

No association, just interested. Wagner is one of the uncredentialed people who posted on physforum (Sept 3, 2007 - Jan. 3, 2008). Here, where he invited the discussion to follow, he stays but does not answer questions related to physics. He has in the past felt quite free to post his legal plans and strategies both here and on physforum.com and I have felt welcome to criticize them from my layman's perspective.

US Government documents are public. (An alternative policy is that of the UK's "Crown Copyright" where reproducing government documents has to be justified in some manner.) Any US person with a credit card can sign up for a PACER account and read along with the documents of the Federal Justice system at no more than $0.08 per page (which is cheaper than if you walk up to the courthouse to do the same thing). I learned about this while following along in the SCO anti-Linux lawsuits on groklaw.com.

In addition, both the Hawai'i state case and the Federal lawsuit have received local and national news coverage, respectively, as have some of Wagner's earlier lawsuits.

Wagner jokes about asking if I have influence over the court system, but I'm just Joe Citizen. Typically, I don't cut-and-paste large parts of Wagner's documents. While groklaw's PJ is happy to do it, the SCO filed an annoyance motion to add her to the case without basis. Also, I would feel compelled to render their orginal use of italics, bold and underlining (sometimes in the same sentence). And since they are PDFs of paper documents, they are too large to simply attach.

Wagner, too, used to post documents on his now defunct website, but that ended when the court dismissed the case on September 26, 2008.

Please feel free to PM me or post again if you need more info.

I'm pro-LHC, but not affiliated (even indirectly) with any plaintiff, defendant, affidavit submitter, funding source, press agency, law school, etc, and know of no basis where I might be a potential witness, jurist or added party to the covered case. Nor do I have academic or equivalent credentials which would relate to any facet of this case as a first-rank expert witness. (Some physics and math Ph.D. students think I'm well-versed for a layman, but a layman I am.) Nor am I a member of the Union of Collaborating Founders (UCF), a group which some anti-LHC websites describe as a pro-LHC think tank, a depiction which I feel is unfair.

I've been replying to scare stories about the LHC since about March 29, 2006 and got my interest peaked in legal proceedings by being a regular reader on groklaw.net -- which focused largely on one Unix/Linux vendor's suits against the Linux-using world and eventual Chapter 11 bankruptcy. I think I first became aware of Walter L. Wagner with his posts of September 3, 2007, and attempted to engage him in plain physics discussion. Until 2008 television coverage, I have never seen his face or heard his voice. And if there is any organized opposition to him, I have never met with them either.

 

[James R]

I find your continued commentary on Walter's case interesting, rpenner. I'm not trying to put you off posting updates as you have been. I was just interested in your interest in the litigation.

It certainly looks like the case will be sunk on procedural issues.

 

[rpenner]

The Motions Panel for the 9th Circuit appellate court has met this morning. Wagner loses on the proposition that the US Government should stop paying scientific grants. My heroes the amici are allowed to file their brief.

The next phase, the appeal being "fully briefed" is now ready to appear on the court calendar. Presumably, June-July is the earliest this will happen, but as always IANAL. As of this time, it looks like Wagner's reply to the US government does not appear on the docket.

I'll be watching this link: http://www.ca9.uscourts.gov/calendar/view_hearing_notices.php
For 08-17389 Luis Sancho, et al v. US Department of Energy, et al

After a case on the calendar is heard, the ruling may appear as soon as the same week.

 

[rpenner]

No doubt the government attorneys will act as directed by their professionalism, ethics and standards of practice. My foray into LOLcat language is unlikely to appear even in news coverage. But if you would like me to send it to The Daily Show, we will see if they accept unsolicited submissions.

Dammit, Walter! I thought we were being neighborly and professional. But then you had to go steal my idea.

Here it is, Walter L. Wagner on the May 30, 2009 episode of The Daily Show.

http://www.thedailyshow.com/video/index.jhtml?videoId=225921&title=large-hadron-collider&byDate=true

At least he didn't use the "Dollarz iz teh onleez moniez" argument. Instead, he argued that the destruction of the Earth for a never-before done physics experiment is always 50%.

 

[prometheus]

Dammit, Walter! I thought we were being neighborly and professional. But then you had to go steal my idea.

Here it is, Walter L. Wagner on the May 30, 2009 episode of The Daily Show.

http://www.thedailyshow.com/video/index.jhtml?videoId=225921&title=large-hadron-collider&byDate=true

At least he didn't use the "Dollarz iz teh onleez moniez" argument. Instead, he argued that the destruction of the Earth for a never-before done physics experiment is always 50%.

Hilarious!

 

[AlphaNumeric]

John Oliver really trumps him with the chances of having a child from two men joke!

 

[udarnik]

Nor am I a member of the Union of Collaborating Founders (UCF), a group which some anti-LHC websites describe as a pro-LHC think tank, a depiction which I feel is unfair.

Well, I am a member of the UCF, and I find that characterization hilarious. For the real story of the origins of the UCF, you have to go to John Scalzi's Whateveresque forum where we all met. Specifically, this entry

whateveresque.com/phpBB3/viewtopic.php?f=35&t=99&st=0&sk=t&sd=a&hilit=jim+wright+emperor+of+the+universe

where Jim introduced himself. The name UCF grew out of off-line joking about that post, and we formed an off-line friendship, linking our various blogs in the process. We're a pretty eclectic bunch, bound together mostly by our interest in Science Fiction. We have a wide range of political and scientific affiliations. We have a Physics Ph.D. and myself (a P-Chem Ph.D.) in the group, which also includes IT professionals, a public defender and several former military personnel. It was one of the former Navy NCOs who first stumbled upon Walter Wager, and Walter stumbled upon our less than favorable opinions of him and his science by vanity Googling. The story of that encounter can be found here:

chicagoboyz.net/archives/6347.html

As for myself, I'm a Chemist working as a project manager in industry, and the only thinking (as in think-tank) I do about the LHC has been because I was irritated by something Walter said on the Internet. If he had had the sense to leave our one-off posts well enough alone, the members of our group would have pretty much ignored him, but as you can see from his behavior here, he has the habit of continually engaging any and all critics in debate.

 

[rpenner]

We [an undefined group of unassociated people which I assume is in the majority despite the lack of collaboration] asked Wagner to discuss the physics behind his belief in the possible destruction of Earth. But he refused.
We questioned the wisdom of some of the legal actions taken by Wagner in his quest to shutdown LHC, particularly since he also attempted to shut down the RHIC. But he persisted.
We ridiculed the logic of approaching an appeal with arguments predicated on guesswork and nonsensical assertions. But he got angry.
We suggested that the media would agree with us. And so Wagner went on The Daily Show. Below are some reviews.

May 1, Steinn Sigurðsson in Science Blogs: Dynamics of Cats "Daily Show does LHC and other action items"
May 1, Seth Zenz in US/LHC Blogs "Evil Genius Says What?"
May 1, Janiece Murphy in Hot Chicks Dig Smart Men "Walter L. Wagner PWND By The Daily Show"
May 1, Matt Tobey in Comedy Central Insider "John Oliver Visits the Large Hadron Collider"
May 1, Sean Carroll in Discover Magazine Blogs: Cosmic Variance "Daily Show Explains the LHC"
May 1, Tona Kunz in Symmetry Breaking "The Daily Show on CERN, particle physics and black holes"
May 1, Jim Wright in Stonekettle Station "Walter L. Wagner Explains Probability"
May 1, Luboš Motl in The Reference Frame "Jon Stewart & John Ellis & LHC"
May 1, Rack Jite in KicK! Making Politics Fun "Daily Show, John Oliver the Hadron Collider will Destroy the World"
May 1, Ethan Siegel in Science Blogs: Starts with a Bang! "The LHC, Black Holes and You"
May 1, Adam Yurkewicz in US/LHC Blogs "Daily Show at CERN"
May 1, Jennifer Ouellette in Discovery Space: Twisted Physics ""I'm Not Sure That's How Probability Works...""
May 3, Phil Plait in Discover Blogs: Bad Astronomy "Intelligence falls into a black hole"

Canadians rejoice -- here is the clip for Canada: http://watch.thecomedynetwork.ca/the-daily-show-with-jon-stewart/full-episodes/#clip165880

And here is the Digg page: http://digg.com/general_sciences/Daily_Show_Visits_the_Large_Hadron_Collider

 

[James R]

Nice Daily Show segment.

Maybe Walter thinks that any publicity is good publicity.

 

[AlphaNumeric]

My supervisor's other half turns out to be a Daily Show follower but for years thought the news segments with the "Best ****ing news team in the world!" were made up. Until he saw John Ellis, a personal friend, on the show. It got emailed around the theory group here and even the people who I wouldn't say are people who watch The Daily Show of their own accord found it hilarious.

My supervisor and her husband worked at CERN many years ago along side John and can testify to his office being that full of paper but like all organised chaos John knows exactly where everything is.

 

[rpenner]

Anyone wanna buy some of rpenner's snakeoil?

To save rpenner the trouble, I'll likely post the response to the federal brief when it is filed.

Now tell us, rpenner, how that case relates to the LHC and the Law thread you initiated? Isn't this just an effort on your part for an ad hominem attack?

It goes to credibility and estimation of competence. You are consistently attacking my estimations of courtroom outcome, so I investigate to see what basis, if any, you have for claims of superior estimation. But if you would prefer to speak to the physics of the case, I would feel obliged to reciprocate. (Taking in mind, of course, that at this instant, your interests may be better served in reading, researching and responding to the Reply Brief.)

OK. The promised response to the federal appellate brief never appeared. LHCdefense.com went dark. The Daily Show piece aired. The appeal was ruled "fully briefed" and ready to be scheduled for hearing.

Where is Wagner?
State court filings in Hawai'i may provide insight. But since Wagner thinks I'm not qualified to comment on criminal trial practice, here are the actual minutes of criminal case 3PC08-1-000097 on April 24, 2009:

Party Name: WAGNER, WALTER
Div.: 3C01 CR Date: 04-24-2009 Time: 1000A Priority: 0 Judge I.D.: JGNAKAMURA
Video No.: Audio No.:

CONVENED@ 10:31 A.M. *REPORTER: JENNIFER WHETSTONE
APPEARANCES: JASON SKIER, DEPUTY PROS ATTY
VAUGHAN WINBORNE, CA
.
V. WINBORNE: REQUEST DEFT'S PRESENCE BE
WAIVED.
.
J. SKIER: OBJ TO MOTION; ARGUMENT.
.
COURT: CONCERNED ABOUT DEFT'S PRIOR MAINLAND
TRAVEL WHILE BEING SUBJECT TO CHARGE IN THIS CASE;
DO NOT SEE NECESSITY BASED UPON WHAT HAS BEEN
PRESENTED TO TRAVEL TO SWITZERLAND; MOTION DENIED.

This is in response to a motion filed by Walter's lawyer on April 13, the same day the amici filed to be added to the case.

 

[rpenner]

In my previous post I asked, "Where is Wagner?" We now have a partial answer.

On May 5, it appears the Wagner has produced the response to the Government's reply to Wagner's appeal. I have not seen it yet, but it may have an original work (if also untimely and impermissibly long) by Luis Sancho stapled to the back of it. And just before noon on May 11, the Government filed a motion to strike it from the record. The government thinks it's in violation of two scheduling orders and the Federal Rules which govern the timing of appeals paperwork (all of which anticipated this would be filed on April 20).

The government indicates that Wagner seems to have been working under the misapprehension that the government's response constitutes a "cross-appeal" which would result in some additional time for Wagner, but insists even if this is the case that the correct procedure is to request for the additional time before the deadline passes and points out this is not the first time that Wagner needed to be hit with the clue stick.

Specifically, the government (which raised many arguments on topics not addressed by Wagner's original appeal brief) points out their reply was not a "cross-appeal" brief. It's clear that the docket does not call it a cross-appeal brief and the title page of the brief does not mention a cross-appeal, no notice of appeal was filed by the government as required by FRAP 28.1 (b), and it does not ask the court to overturn any ruling of District Court so it is not a stealth cross-appeal even if such was proper. Indeed, what separates an original brief or cross-appeal brief from a reply brief is FRAP 28 (a) (10) "stating relief sought" and the government seeks no relief from the District Court's decision to toss Wagner out of court.

http://topics.law.cornell.edu/wex/Cross-appeal

Note that no cross-appeal exists when an appellee simply wishes to have a lower court's decision upheld by a higher court[.]

So now that you have that background, the anti-LHC forces have a somewhat better idea of just how good a friend Wagner is to the goals of their cause.

http://www.law.cornell.edu/rules/frap/

Pursuant to Fed. R. App. P. 27 and 9th Cir. R. 27-1, Federal Defendants-Appellees United States Department of Energy, the National Science Foundation, and Fermilab (collectively, “DOE”) hereby move to strike the reply briefs filed by pro se litigants Walter L. Wagner and Luis Sancho. [[The cover of the tendered brief states that it is the reply brief of Wagner. However, a reply brief of Sancho is stapled to the back of Wagner’s reply.]] The reasons for this motion are set forth below.

The reply briefs are more than 2 weeks out of time. DOE filed and served its answering brief on April 6, 2009. Under the Court’s order filed April 1, 2009, “[t]he optional reply brief is due within 14 days after service of the answering brief.” April 1 order at 1. Consequently, any reply brief in this case should have been filed and served no later than April 20, 2009. However, the tendered reply briefs were not filed and served until May 5, 2009, according to a certificate of service executed by Wagner (but not by Sancho, whom Wagner does not represent). The tendered replies are therefore 15 days late and should be stricken as untimely.

Wagner and Sancho offer no explanation for their untimely filing, other than a cryptic statement by Wagner, in the certificate of service, that “the Reply Brief to this Court” was mailed “within 29 days of the April 6, 2009 filing of the appellee’s [sic] Answering Brief which was also a cross-appeal brief.” [[Presumably on that basis, the untimely reply has a yellow, rather than the customary gray, cover.]] That assertion provides no justification for the untimely filing because, as the Court is surely aware – and as a glance at the Court’s docket sheet confirms – DOE did not file, nor did the Court docket, a cross-appeal in this case. Given that this case does not involve a cross-appeal or “cross-appeal brief,” the time period for filing a reply in a cross-appeal plainly does not apply here. See Fed. R. App. P. 28.1(f)(3).

Although neither has sought to do so, Wagner and Sancho should not be permitted at this late date to submit a motion for leave to file reply briefs out of time. Such a motion would be plainly futile because, on April 30, 2009, the Court issued an order (per Judges Leavy and Bea) stating, inter alia, that “[t]his case is ready for calendaring.” April 30 order at 1. The Court’s determination that this case is ready for calendaring is a clear indication that the time for filing briefs is already over. [[For the same reason, the untimely reply briefs should not be allowed on the notion that they seek, in part, to respond to an amicus brief that the Court did not accept for filing until April 30, 2009. This notion is obliquely hinted at in Wagner’s certificate of service, which states that “such mailing was within 5 days of the Order granting Movants’ leave to file an amicus brief.” However, in its April 30 order, the Court was well aware of this circumstance, yet it deemed the period for filing briefs closed: the Court’s order both directed that “[t]he Clerk shall file the amicus brief” and that “[t]his case is ready for calendaring.” The obvious implication of the April 30 order is that the Court does not want a reply to the amicus brief.]]

The reply brief tendered by Sancho should also be stricken for the additional reason that it is evidently over length. The “certificate of compliance” to that brief (at 37) states that it contains 6,994 words excluding, inter alia, “Notes.” But it is plain that the footnotes in that brief far exceed six words; i.e., the reply tendered by Sancho is substantially in excess of the 7,000 words permitted for reply briefs. See Fed. R. App. P. 32(a)(7)(B)(ii).

As DOE has noted before, pro se litigants such as Wagner and Sancho must follow “the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). They have once again failed to do so. For the foregoing reasons, DOE respectfully requests that the reply briefs of Wagner and Sancho be stricken and that the Court proceed to calendar this matter forthwith.

Kirk to Khan, revised: "You've managed to [assert you are better at physics and law than] just about everyone else, but like a bad marksman you keep missing the target!"