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:
MOTION FOR LEAVE TO FILE REPLY BRIEF SIX DAYS AFTER ORDER GRANTING FILING OF AMICUS CURIAE BRIEF
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.
Pursuant to a Letter from the Clerk of the Court dated May 15, 2009, but not received by appellant Wagner until May 20, 2009, requiring a motion for leave to file a Reply Brief six days after the filing of the Order granting the Amici request for the filing of their brief, appellant Wagner respectfully moves this Court for leave to file his Reply Brief filed in response to the Amici brief.
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.
This motion is supported by the accompanying Affidavit of Walter L. Wagner in Support of Motion for Leave to File, and the accompanying amended Reply Brief Of Appellant Walter L. Wagner with footnote font now at 14-point font as requested by the Clerk, and the cover sheet now grey rather than yellow, as requested by the Clerk.
Note: No such
Reply Brief was attached. This is untrue.
This motion is further based upon the Order of this Court filed April 30, 2009 in which it granted the motion of the Amici for leave to file an Amicus Curiae brief. It is argued that such order granting such leave thereby allowed appellants the right to file a brief in reply thereto, which they did six days after this Court's order, as detailed in the accompanying affidavit in support.
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.
This action of the Court rendered moot the issue as to whether or not the submitted reply brief was timely with respect to the filing of the appellee's response, which appellants nevertheless believed was also timely, as per the accompanying affidavit.
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?)
