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THE MAGNESIUM
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Paul Mason, Editor
P.O. Box 1417
Patterson, CA 95363

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No. 99-16746

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

_________________________________________________________

PAUL W. MASON

Plaintiff and Appellant

v.

Donna Shalala, Secretary of Health
and
Michael Friedman, Acting Director of FDA

Defendants and Appellees
_________________________________________________________

ON APPEAL FROM
THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DIST. OF CALIFORNIA, SAN JOSE DIV.
HON. JEREMY FOGEL PRESIDING
U.S.D.C. No. C-97-20686 JF
_________________________________________________________

BRIEF OF APPELLANT
_________________________________________________________


Paul W. Mason, In Pro Per
P O BOX 1417
Patterson, CA 95363
Tel: (408) 897-3023
Fax: (408) 897-3028

paulmason@mgwater.com




 

TABLE OF CONTENTS

STATEMENT OF JURISDICTION

MIXED STANDARDS MAY APPLY

ISSUES PRESENTED FOR REVIEW

STATEMENT OF THE CASE

COURSE OF PROCEEDINGS

DISPOSITION

STATEMENT OF FACTS

MAGNESIUM LEVELS IN WATER

SUMMARY OF THE ARGUMENT

ARGUMENT

A. SUMMARY JUDGEMENT INAPPROPRIATE

B. UNCONSTITUTIONAL ADVISORY OPINION

C. INVENTED DEFINITION

D. VIOLATION FRCP 11(b)(1),(3)

E. HECKLER v. CHANEY INAPPLICABLE

F. CHECKS AND BALANCES VIOLATED

G. UNCONSTITUTIONAL PARDON OR AMNESTY

H. COURT CONTRADICTED ITSELF

I. "GOOD SOURCE" LABELING

J. POLITICAL IMPARTIALITY DOUBTFUL

ACTION NOT MOOT

ISSUE OVER-RIPE

CONCLUSION

CERTIFICATION OF COMPLIANCE

(CIRCUIT RULE 32(a)(7)(B)(i),(iii)

STATEMENT OF RELATED CASES

(CIRCUIT RULE 28-2.6)

ENDNOTES




 

STATEMENT OF JURISDICTION

(a) The basis of the district court's subject matter jurisdiction is the Federal Constitution: Article I; Article II, Section 2; Article III, Section 2, Clause 1; Amendments V and VII of the Federal Constitution; and 21 USC § 332(a), 21 USC § 331, 28 USC § 1331 and 28 USC § 2201(a), in that this is an action for declaratory relief arising from Federal defendants FDA/DHHS's unreasonable invasion and interference with plaintiff Mason's mineral water business, and FDA's malfeasance of office and breach of the public trust creating unfair competition through the promotion or permitting of unhealthy, deadly, and adulterated food products resulting in millions of deaths. FRAP 28 (a)(4)(A)

(b) The basis for the court of appeals' jurisdiction is 28 USC § 1291. The relevant fact establishing this jurisdiction is the Final Decision of the district court. FRAP 28 (a)(4)(B).

(c) The filing dates establishing the timeliness of the appeal are: (1) the Final Decision of the District Court was filed on June 8, 1999. (2) the Notice of Appeal and the Motion for Certificate of Appealability were filed June 15, 1999. FRAP 28 (a)(4)(C).

(d) Mason asserts that the appeal is from a final order that disposes of all parties' claims. FRAP 28 (a)(4)(D)

 

MIXED STANDARDS MAY APPLY

CIRCUIT RULE 28-2.5 requires identification of the standard of review. Mixed standards may apply to the same ruling. Beasley v. Wells Fargo Bank (1991) 235 Cal. App.3d 1407. The standard(s) of review are given after the statement of each issue.

 

ISSUES PRESENTED FOR REVIEW

1. Whether the lower court deprived Mason of his Constitutional right to a jury trial by unreasonably granting summary judgement - which should be reserved for resolving questions of law - after FDA denied and disputed causing 3,000,000 deaths - a question of fact. Standards for review: Error of law (De Novo), and outside the bounds of reason (Abuse of Discretion). Where raised:1,2 Where ruled on:3,4

2. Whether the lower court unreasonably and un-Constitutionally issued an advisory opinion that no genocide had occurred, without any analysis of the elements of genocide, and without trying the case. Standards for review: Error of law (De Novo), and outside the bounds of reason (Abuse of Discretion). Where raised:5,6 Where ruled on:7

3. Whether the lower court unreasonably invented and applied its own unique, limited definition of "genocide" that is not supported by (a) the history of genocides in the 20th Century. (b) U.S. genocide law 18 USC § 1091. (c) U.N. 1951 Convention on the Prevention and Punishment of the Crime of Genocide. (d) Rome Statute of the International Criminal Court adopted 17 July 1998 concerning the elements of genocide. Standards for review: Error of law (De Novo), and outside the bounds of reason (Abuse of Discretion). Where raised:8,9 Where ruled on:10,11

4.Whether the lower court unreasonably applied Heckler v. Chaney, 470 U.S. 821, 831-32 (1985) to a case in which the FDA's motives are challenged, as opposed to how well the FDA is equipped. Heckler v. Chaney: "The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities." (emphasis added). Standard for review: Error of law (De Novo). Where raised:12,13 Where ruled on:14

5.Whether the lower court violated the Constitution by unreasonably abdicating its mandate and duty to be a "check and balance" on another branch of government in a case involving willful acquiescence in millions of deaths to coverup a previous FDA blunder. Standards for review: Error of law (De Novo), and outside the bounds of reason (Abuse of Discretion). Where raised:15,16 Where ruled on:17,18

6. Whether the lower court did violate the Constitution by effectively pardoning or granting amnesty to the FDA for willfully acquiescing in millions of deaths, and thus failing to reach Mason's motion to strike DOJ's motion for summary judgement. Standards for review: Error of law (De Novo), and outside the bounds of reason (Abuse of Discretion). Where raised:19,20 Where ruled on:21,22

7. Whether the lower court contradicted itself by stating: (a) "There is nothing in the allegations, even when liberally construed, which suggests that anyone, much less defendants, has engaged in a deliberate attempt to injure and kill." (b) "There is nothing in the complaint, or in plaintiff's briefing...that defendants....had any knowledge until recent years (1977)23,24 that reduced magnesium levels in water might correlate to a greater incidence of cardiovascular disease." The court's second statement describes the willful and negligent manslaughter of 3.3 million Americans, and contradicts the first statement. Standard for review: Outside the bounds of reason. Where raised:25Where ruled on:26

8. Whether the lower court unreasonably failed to reach Mason's argument to strike DOJ's motion for summary judgement and to dismiss due to defense counsel's violation of FRCP 11(b)(1),(3). Standards for review: Error of law (De Novo), and outside the bounds of reason (Abuse of Discretion). Where raised:27Where ruled on:28

9. Whether the lower court unreasonably and un-Constitutionally denied justice to Mason and the American people by dismissal of this case. Standards for review: Error of law (De Novo), and outside the bounds of reason (Abuse of Discretion). Where raised: "AMENDED COMPLAINT FOR DECLARATORY RELIEF PURSUANT AMENDMENT I TO THE CONSTITUTION, AMENDMENT V TO THE CONSTITUTION, pg 5 line 13 to pg 8 line 14"; and 29 Where ruled on:30,31

10. Whether the lower court unreasonably allowed FDA to prohibit Mason from describing his water as a "good source of magnesium", even though it can provide 52% of the RDA for magnesium. Standard for review: Outside the bounds of reason. (Abuse of Discretion). Where raised: "AMENDED COMPLAINT FOR DECLARATORY RELIEF PURSUANT AMENDMENT I TO THE CONSTITUTION, AMENDMENT V TO THE CONSTITUTION, pg. 6 lines 22-23." Where ruled on: 32

11. Whether the lower court displayed political partiality to the defendant agency, which was proposed, endorsed, and enacted by members of the same party whose members proposed, endorsed, and appointed the judge.

 

STATEMENT OF THE CASE

Mason complained for declaratory relief where FDA has under color of law: (a) maliciously and without any scientific justification destroyed the American mineral water industry since 1930, so that American bottled waters now average less than 10% as much magnesium as bottled waters in the rest of the world. (b) negligently acquiesced since 1930 in removal of magnesium from the American diet both in food and water, thereby causing as many as 10 million American deaths from heart disease. (c) allowed the sale and interstate transportation of deadly, adulterated, magnesium-deficient bottled water competing unfairly with Mason's healthful magnesium-rich water. (d) since 1977, willfully disregarded over 100 constructive notices of the catastrophe of magnesium deficiency and magnesium-deficient water, received from many of the highest scientific authorities in the United States and the world, including the US National Academy of Sciences (which has contractual responsibility for determining the Recommended Daily Allowances); and over 100 medical journal articles from distinguished researchers; and petitions. (e) willfully covered up and willfully perpetuated the magnesium-deficiency catastrophe at the cost of over 3 million American lives. The coverup continues to this day [The FDA reduced Mg intakes further by unleashing a huge "magnesium overdose scare" in the media on Aug. 19, 1995, after Mason's petitions.] ,33 and is harming Mason's mineral water business. (f) unreasonably forbidden Mason from describing his water as a "good source" of magnesium, even though it can provide 52% of the R.D.A.

 

COURSE OF PROCEEDINGS

 

Mason filed a Complaint Aug. 4, 1997.

Mason filed Motion to Compel Joinder with the US Dept. of Justice, and for the Appointment of a Special Counsel, on Aug. 13, 1997.

DOJ opposed Joinder Aug. 27, 1997.

Mason responded to DOJ's opposition to joinder, Sep. 8, 1997.

Mason filed Amended Complaint Nov. 6, 1997.

Judge Whyte's Order denying joinder with DOJ, Nov. 18, 1997.

DOJ's answer Dec. 12, 1997.

Mason filed Mot. to Strike Defendants' Motion for Dismissal or Summary

Judgement due to violation of FRCP 11(b)(1),(3). Oct. 13, 1998

DOJ motioned for summary judgement/dismissal Nov. 3, 1998.

Mason opposed summary judgement/dismissal, and motioned to enter Mason's exhibits into evidence. Sep. 21, 1998.

Lower court granted motion to dismiss and partial summary judgement, May 11, 1999

Lower court entered final judgment June 8, 1999.

 

DISPOSITION

The court granted a motion to dismiss and partial summary judgment May 11, 1999. Later the court filed a final judgement dismissing the case without leave to amend, with prejudice, June 8, 1999.

 

STATEMENT OF FACTS

1. The US National Academy of Sciences (NAS), funded by contracts/grants from the US Government, has determined that: (a) a significant portion of the American population does not consume adequate amounts of magnesium on a daily basis.34 (A study of 37,000 consumers by the US Department of Agriculture reached the same conclusion.35) (b) magnesium deficiencies contribute substantially to cardiovascular disease and mortality.36 (c) in 1977, over 50 scientific studies from nine countries indicated that soft water (lacking magnesium) is correlated with increased cardiovascular disease and mortality,37 and that an optimal mineral profile in drinking water might prevent 150,000 US deaths per annum.38Numerous other peer-reviewed, published research studies have confirmed the correlation of magnesium and magnesium-in-water in preventing heart disease and reducing mortality.[The Excerpts of Record provide medical journal abstracts in the record. The full text of most of these medical journal articles, and others, are available in the Administrative Record, Vol. I, pages 15-342. Vol. II, pages 343-669, Vol. III, pages 754-817. Vol. IV, pages 818-1126. Vol. VI, pages 1171-1182. Additional full-text medical journal articles were filed Nov. 3, 1998, as Exhibits M through Y, pages 3000-3151. Exhibits Z through ZZ, pages 3152-3386. Exhibits AAA, BBB, CCC, pages 3387-3410.], 39,40 Over a hundred medical studies confirm the effectiveness of magnesium or magnesium-in-water in treating or preventing heart disease.41,42,43,44,

2. Historically, typical water sources contained much higher quantities of magnesium.,#compared to modern tap water and bottled water supplies.#Magnesium in water is more bio-available than magnesium in food.,, Many sources of water now, including most bottled water, have been "purified", and as a result, contain significantly less magnesium than did historical sources such as streams, wells, and bodies of water.51,52,53,54,55,56

 

MAGNESIUM LEVELS IN WATER
U.S. Bottled Water Average 2.7 mg/Liter51,58

U.S. tap water average 6.5 mg/Liter59

U.S. stream water average 19.4 mg/Liter60

Global bottled water average (non U.S.) 28.0 mg/Liter61,62

Mason's spring water 110.0 mg/Liter63

 

In the 1930's, FDA destroyed the American mineral water industry. 64,65,66 Now the U. S. has a much lower average level of magnesium in bottled water than does the rest of the world - only one-tenth as much magnesium.67,68,69

3. FDA and DHHS were notified in 1977 by the US National Academy of Sciences (NAS), in a 939 page study funded by the EPA, that "over 50 studies" indicated vast deaths correlated with soft, mineral-deficient water.70This warning was repeated in subsequent official NAS reprintings in 1980, 1982, 1983, 1984, 1985, 1987, and 1988, "funded by and at the request of the U.S. Environmental Protection Agency." Subsequently, 1977-1994, dozens of studies confirmed the large-scale deaths caused by magnesium-deficiency and Mg-deficient water.71,72In 1994, FDA was further notified of the magnesium-deficient water problem by petitions from Mason supported by over 100 research studies published by recognized medical journals. 73

4. U.S. per capita consumption of magnesium has fallen drastically since 1909:

1909 intake 408 mg/day74

1949 intake 368 mg/day75

1980 intake 349 mg/day76

1985 intake 329 mg/day (men)77 current RDA: 420 mg/day

1985 intake 207 mg/day (women)78 current RDA: 320 mg/day

Magnesium deficiency causes serotonin deficiency, which autopsies have linked to violent deaths.79 The NHANES III study showed that blacks and Hispanics have lower magnesium intakes than whites. 80

5. The FDA stated in its petition-denial letter dated July 18, 1996 that "any further analysis of the issue would be premature until NAS issued a report based on the review of the available data." 81 In 1997 the NAS report was issued which supported plaintiff's assertions.82

Despite its previous promise, the FDA still failed to take any action to stop the deaths, which equal the Viet Nam War every 110 days.83,84, The NAS increased the RDA for magnesium in 1997, and confirmed that much of the population is receiving much less than the recommended amount of magnesium, 85 resulting in much cardiovascular disease.86The FDA funded the NAS's 1997 study of Dietary Reference Intakes of magnesium, along with NIH and the US Department of Agriculture.87 FDA continues to ignore the NAS study it funded.

6. A footnote in the ruling filed by the lower court May 11, 1999, stated, "It appears defendants intend to continue studying the matter; they have not refused to consider the issue at all nor have they reached a final determination that nothing need be done." 88 The judge's surmise was immediately contradicted by FDA defense counsel Kevin Fain, who informed plaintiff by telephone on May 26, 1999 that he had consulted his clients at FDA, and that

"NO health claims will be permitted for magnesium. There will be NO changes in policy. The FDA will issue NO public statements about magnesium to the media. NO studies are planned of magnesium by the FDA." Defense Counsel Fain refused to identify his clients at FDA.

7. A few months before the lower court's dismissal, the District of Columbia Circuit determined in Pearson v Shalala 89, [A copy is in the Addendum.] that the FDA's standard for "significant scientific agreement" concerning health claims for dietary supplements (such as magnesium) was unConstitutionally vague, and remanded that case to the lower court. Mason has only become aware of that case in the last few days.

8. In 1978, a research scientist brought an action against the FDA in circuit court, 572F2d377 (1978)90, concerning magnesium deficiency. In testimony, the FDA Commissioner concluded that "he was not aware" of any substantial evidence to indicate that a balanced diet of ordinary foods cannot supply adequate amounts of magnesium. That was one year after the NAS had notified the FDA that more than 50 studies showed a possible 150,000 deaths per annum from magnesium deficient water.91The FDA Commissioner's simple assertion of "non-awareness" satisfied the circuit court, which dismissed the research scientist's case.92Since then, about 3.3 million Americans have died from Mg-deficiency.93,94, In 1997, the US National Academy of Sciences re-affirmed that magnesium-deficiency is widespread and related to heart disease, and raised the Recommended Daily Allowance.95In 1998, The Atherosclerosis Risk in Communities Study (ARIC), after studying 13,922 middle-aged adults, again confirmed that magnesium-deficiency causes heart disease. 96 The FDA has now promised not to take action!97

Multiply 150,000 possible Mg-deficiency deaths per annum,98 by 69 years (1930-1999), equals

10,350,000 deaths, which is nearly 4% of current US population.99

 

SUMMARY OF THE ARGUMENT

The Appellate Court should remand to the lower court because:

1. The lower court deprived Mason and the American people of their Constitutional right to a jury trial by unreasonably granting summary judgement -- which should be reserved for resolving questions of law -- after FDA denied and disputed causing 3,000,000 deaths -- a question of fact.

2. The lower court issued an un-Constitutional advisory opinion, without trial and without any analysis of the elements of genocide, that the vast deaths caused by the FDA did not constitute a genocide. Further, the lower court failed to suggest any wrongdoing whatever is occurring.

3. The lower court unreasonably invented and applied its own unique definition of "genocide" that is not supported by (a) the history of genocides in the 20th Century. (b) U.S. genocide law 18 USC § 1091. (c) U.N. 1951 Convention on the Prevention and Punishment of the Crime of Genocide. (d) Rome Statute of the International Criminal Court adopted 17 July 1998 concerning the elements of genocide.

4. The lower court unreasonably failed to reach Mason's argument to strike defense counsels' motion for "summary judgement and to dismiss", due to defense counsels' violation of FRCP 11(b)(1),(3). The lower court's failure was in error, because defense counsels' motion was for the improper purpose of covering up and perpetuating wrongdoing, regardless of whether the FDA wrongdoing is labeled a "genocide", or, as the lower court deferentially termed it, the FDA merely "acquiesced" in millions of deaths since being notified by the US National Academy of Sciences of the mineral-deficient water problem in 1977. Willful acquiescence was, at the very least, manslaughter of millions.

5. The lower court made an error of law by applying Heckler v. Chaney, 470 U.S. 821, 831-32 (1985) to a case in which the FDA's motives are challenged, as opposed to how well the FDA is equipped.

6. The lower court unConstitutionally abdicated its mandate and duty to be a "check and balance" of the executive branch to stop the FDA from perpetuating millions of deaths.

7. The lower court effectively granted FDA pardon or amnesty for millions of deaths by issuing an advisory opinion that no genocide had occurred, and by granting summary judgement and dismissal without a trial. The Constitution grants the power of pardon exclusively to the president. Congress may grant amnesty. The judicial branch has no such power under the Constitution to grant pardon or amnesty. Thus the lower court violated the Constitution.

8. The lower court contradicted itself by stating first that no genocide had occurred, and then admitting FDA actions which meet the legal test of genocide. The court cannot have it both ways. The issue of genocide was cited by the court as the reason for not reaching Mason's motion to strike DOJ's motion for summary judgement as a violation of FRCP 11(b)(1),(3). Therefore, the issue of genocide should be remanded to the lower court for trial.

9. The lower court unreasonably allowed FDA to prohibit Mason from describing his water as a "good source of magnesium", even though it can provide 52% of the RDA for magnesium.

10. The impartiality of the lower court appears to be lacking because (a) the lower court judge was proposed, endorsed, and appointed by members of the same party whose members proposed, endorsed, and enacted the defendant FDA. (b) the apparent premise of the lower court's dismissal was that defense counsel's willful coverup and perpetuation of millions of deaths, after receiving numerous constructive notices from the highest scientific authorities, was only an innocent oversight, a faux pas, a peccadillo, and not an "improper purpose" under FRCP 11(b)(1),(3). (c) the lower court abdicated its Constitutional duty to be a "check and balance" on another branch of government to end willful acquiescence in millions of deaths, and instead advised Mason to seek a "political" recourse. (As an adherent of pure science, Mason is ill-suited to partisan politics, and thus was denied any practical, legal recourse by which to stop the FDA's perpetuation of vast deaths of the American people and the FDA's harm to his business.)

For these 10 reasons, the case should be remanded to the lower court for trial on the merits.

 

ARGUMENT

The Appellate Court should remand to the lower court because:

A. SUMMARY JUDGEMENT INAPPROPRIATE

The lower court deprived Mason of his Constitutional right (Amendment VII)100 to a jury trial by unreasonably granting summary judgement -- which should be reserved for resolving questions of law -- after FDA disputed causing "harm" (3,000,000 deaths) -- a question of fact.101 FDA also filed, "Defendants deny... that a magnesium-deficiency catastrophe exists caused by the acts or omissions of the defendants"102 -- another question of fact. Relevant Citations: 103,104,105,106

B. UNCONSTITUTIONAL ADVISORY OPINION

The lower court issued an advisory opinion without trial, that the vast deaths caused by the FDA did not constitute a genocide. Mason's Amended Complaint filed Nov. 6, 1997 does not contain the word "genocide". The Federal Constitution forbids the court to issue advisory opinions: United States National Bank v. Independent Ins. Agents of America, Inc., 113 S. Ct. 2173, 2178 (1993); Illinois ex rel. Barra v. Archer Daniels Midland Co., 704 F.2d 935, 941 (7th Cir. 1983).

The court's advisory opinion about genocide is not harmless error, as it bears on: (a) the extreme unreasonableness of the FDA's permissiveness of adulterated, Mg-deficient water. (b) the extreme unreasonableness of the labeling limitations imposed on Mason by the FDA. (c) was cited by the lower court as the reason for not reaching Mason's motion to strike DOJ's motion for summary judgement due to violation of FRCP 11(b)(1),(3). Therefore, the case should be remanded for trial on the merits.

 

C. INVENTED DEFINITION

The lower court did err by unreasonably inventing and using its own unique definition of "genocide" that is not supported by (a) the history of genocides in the 20th Century. (b) U.S. genocide law 18 USC § 1093. 107 (c) U.N. 1951 Convention on the Prevention and Punishment of the Crime of Genocide.108(d) Rome Statute of the International Criminal Court adopted 17 July 1998, concerning the elements of genocide.109

The lower court assumed, and implied without articulation, that all genocides are necessarily like the Holocaust -- motivated by ethnic hate or eugenics. The lower court then reasoned that the millions of deaths caused by FDA's willful acquiescence in imposed magnesium-deficiency ever since 1977 to coverup a 1930's FDA blunder was not a genocide because it was not motivated by ethnic hate or eugenics. However, the majority of 20th Century genocidal deaths have been motivated by politics and self-interest, not ethnic hate or eugenics. For example, the largest 20th Century genocide, Stalin's, claimed 32 million lives, and was motivated by politics and self-interest, not ethnic hate. Likewise Pol Pot's annihilation of a million fellow Cambodians. Therefore, the lower court's unarticulated definition of genocide was incorrect, and led to an unreasonable ruling, which no reasonable trier of fact could have made.

The lower court's unique, invented definition of genocide also conflicts with 18 USC § 1091110 , the US statute against genocide, which requires only a "specific intent to destroy", but does not require (or even imply) hate or eugenics as a motive, nor does it exclude "coverup", expediency, or self-interest as a motive. Therefore, since defendants had received numerous constructive notices of the deaths they were causing, and did deliberately refuse to cease killing large numbers of Americans, particularly Blacks and Hispanics,111,112,113,114 therefore defendants were in violation of 18 USC § 1091 (a) (1,2,3,4), and the lower court erred in exonerating them of genocide without a trial.

The lower court's unique, invented definition of genocide also conflicts with the U.N. 1951 Convention on the Prevention and Punishment of the Crime of Genocide.115Article II (a) defines genocide as "acts committed with intent to destroy, in whole or in part, (a group)." There is no statutory requirement that the motive be hate or eugenics instead of coverup. The "group" that was and is being killed by the FDA are those people who are most susceptible to the impacts of magnesium deficiency due to genetic inheritance or lifestyle --- particularly Blacks and Hispanics.116,117,118,119 Article II (b) forbids "causing serious bodily or mental harm to members of the group", and Article II (c) forbids "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." Article III (b) prohibits "conspiracy to commit genocide", and Article III (e) prohibits "complicity in genocide." Nowhere in the Genocide Convention is there any statutory requirement that the motive be hate or eugenics instead of coverup or self-interest.

The lower court's unique, invented definition of genocide also conflicts with the Rome Statute of the International Criminal Court adopted 17 July 1998 concerning the elements of genocide, which states, in part:120

1. There is no requirement that the accused had to have committed an act in conscious furtherance of a plan or a widespread or systematic policy or practice aimed at destroying, "in whole or in part", a protected group.

2. The definition of genocide applies to subordinates who carry out the order as well as those who plan or order the genocide, even though the subordinate may not have the same level of knowledge as the planner or superior.

4. There is no requirement in prosecutions under (U.N. 1951 Convention on the Prevention and Punishment of the Crime of Genocide) Article 6 (c) or (d) for the act to lead to a particular result.

Moreover, there is no requirement that the measures have been imposed forcibly. (emphasis added).

 

T he lower court further erred by not analyzing the elements of genocide, and spuriously exonerating the FDA of genocide. Thus the lower court deprived Mason and the American people of a trial on the merits.

 

D. VIOLATION FRCP 11(b)(1),(3)

The lower court unreasonably failed to reach121 Mason's argument to strike defense counsels' motion for "summary judgement and to dismiss", due to defense counsels' violation of FRCP 11(b)(1),(3). 122 The lower court's failure was in error, because defense counsels' motion was for the improper purpose of benefiting a client agency even though defense counsel knew it would perpetuate vast deaths.

Defense counsel's "improper purpose" is a question of fact which a jury should decide. To wit, had defense counsel received constructive notice of: (a) the vast deaths caused by magnesium-deficient water through 1000+ pages of medical journal reprints and NAS reports concerning magnesium and magnesium-deficient water (as per their own Administrative Record), Volumes I-X123. (b) recent corroborating research supplied by plaintiff to the court and defense counsel. 124

Further, did defense counsel acknowledge the ongoing vast deaths in the Joint Case Management Statement of January 27, 1998, page 8, line 21, by stating "There are no material factual issues in dispute"...125 The lower court could not reasonably have accepted defense counsel's Opposition that the Administrative Procedures Act provides a shield126 for defendants' crime, as that would place the APA above the Fifth Amendment prohibition of life-taking without due process of law.

These are reasonable questions of fact that a jury should decide.

 

E. HECKLER v. CHANEY INAPPLICABLE

The lower court made an error of law by applying Heckler v. Chaney, 470 U.S. 821, 831-32 (1985) to a case in which the FDA's motives are challenged, as opposed to how well the FDA is equipped. The lower court quoted from Heckler v. Chaney, "The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities." However, if the FDA's motive is coverup of an FDA blunder with perpetuation of millions of deaths, being "better equipped" is not a reasonable justification for immunity from judicial review of Constitutional complaints. 127 Therefore, the Appellate Court should remand this case to the lower court for trial on the merits.

 

F. CHECKS AND BALANCES VIOLATED

The lower court unreasonably and un-Constitutionally abdicated its mandate and duty to be a "check and balance"128of the executive branch to stop the FDA from willfully perpetuating millions of deaths. Checks and Balances are the very structure of our government, and form a significant safeguard of the people's rights, as vigorously expounded by the Founders.129 The lower court was plain wrong to destroy Checks and Balances. Therefore, the Appellate Court should remand this case to the lower court for trial on the merits.

G. UNCONSTITUTIONAL PARDON OR AMNESTY

The lower court erred by effectively pardoning or extending amnesty to the FDA and DHHS, in violation of the Constitution, by issuing an un-Constitutional advisory opinion that "no genocide had occurred." It is the Constitutional prerogative solely of the President to pardon (Article II, Section 2 of the Federal Constitution)130, or by precedent, Congress may extend amnesty (e.g., Reconstruction Act of 1867, and the 1986 Immigration and Reform Act131). The court has no such prerogative or right to pardon or grant amnesty under the Federal Constitution.

 

H. COURT CONTRADICTED ITSELF

The court did unreasonably contradict itself132, stating, "There is nothing in the allegations, even when liberally construed, which suggests that anyone, much less defendants, has engaged in a deliberate attempt to injure and kill", which the court itself contradicted by stating, "There is nothing in the complaint, or in plaintiff's briefing...that defendants....had any knowledge until recent years (1977)133that reduced magnesium levels in water might correlate to a greater incidence of cardiovascular disease." The court's second statement describes the willful and negligent manslaughter of 3.3 million Americans, in-as-much-as FDA had received constructive notices from the US National Academy of Sciences and many others, and chose not to admit its blunder to end the deaths. The lower court's self-contradictory statements were the basis of the lower court's summary judgement and dismissal; therefore, the Appellate Court should remand this case to the lower court for trial on the merits.

 

I. "GOOD SOURCE" LABELING

The lower court's ruling let stand FDA's prohibition to Mason from describing his water as a "good source of magnesium", even though it can provide

over 50% of the RDI for magnesium. That defies logic and reason, and thus is clearly judicial error.The "reference amount customarily consumed" is used to determine the daily nutritional contribution of water (RDI). FDA regulations 21 C.F.R. § 101.12(b) specify that the "reference amount customarily consumed" of water is 8 ounces134, thereby creating a misleadingly low impression of the percentage of the recommended daily allowance of magnesium which plaintiff's water can supply. FDA regulations preclude bottlers of Mason's water from labeling it as a "good source" of magnesium.13521 C.F.R. § 101.54. (CFR's are in Addendum).

The lower court posited:136

"Suppose, for instance, a bottler sold plaintiff's water in an eight ounce bottle. If the label reflected the percentage of the daily recommended allowance of magnesium provided by 64 ounces of the water, how would the consumer know that he or she needed to drink seven more bottles of plaintiff's water that day (rather than switching to another brand) to achieve that percentage?"

The answer is to list, separately, the percentage contribution to the RDI of all of the following: (a) the quantity of water in the container. (b) eight oz. of water. (c) the daily magnesium contribution if consumed as a sole source of liquid. In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Supreme Court ruled, "The preferred remedy is more disclosure, rather than less."

In a recent 1999 case, the D.C. Circuit Court has reaffirmed this principle, repeatedly pointing to disclaimers as Constitutionally preferable to outright suppression. Pearson v. Shalala.137 (D.C. Circuit). (Pearson ruling is copied in Addendum).

The lower court further posited, "Were plaintiff's approach adopted, the potential confusion to the consumer could be much greater." However, the Supreme Court has ruled, "We cannot allow rote invocation of the words 'potentially misleading' to supplant the [government's] burden to demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." As cited in the similar case of Pearson v. Shalala.138(See addendum.) Thus the "good source" issue should be remanded to the lower court for trial on the merits.

 

J. POLITICAL IMPARTIALITY DOUBTFUL

Mason does not doubt the good intentions of the lower court judge. Indeed, much of his ruling reads like an endorsement of magnesium:

"Taking Mason's allegations as true....there is an annual avoidable loss of human life in numbers which, over time, would exceed the loss of life incurred in the Holocaust."
"Plaintiff's allegations...call out for a public awareness campaign, and possibly legislative action, designed to increase the intake in the average American diet."
"The court does not doubt the seriousness of the issues raised by plaintiff. Nor does the court question plaintiff's motives in pursuing this cause. Plaintiff acts from a genuine concern that many people are dying before their time, from a preventable cause. Plaintiff's recourse, though, is political, not judicial. Plaintiff must determine how best to persuade the political leaders, or the public directly, that magnesium deficiencies represent a serious problem with a relatively simple solution."
"The court notes that plaintiff's most effective argument is that solid scientific evidence presently exists supporting his claims regarding the health effects of magnesium deficiencies. The court respectfully suggests that in his efforts to educate the politicians and the public, plaintiff might consider emphasizing the strength of that evidence without the rhetoric of "genocide."
The numbers of deaths plaintiff alleges are caused by magnesium deficiency are horrifying enough, if supported by the evidence."

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Even so, the lower court failed to express any censure whatever of the FDA or take any steps to end the deaths. The impartiality of the lower court is lacking because (a) the lower court judge was proposed, endorsed, and appointed by members of the same party that proposed, endorsed, and enacted the defendant FDA.139(b) an apparent premise of the lower court's dismissal was that defense counsel's willful coverup and perpetuation of millions of deaths was only an innocent oversight, a faux pas, a peccadillo, and not an "improper purpose" under FRCP 11(b)(1),(3). (c) the lower court abdicated its Constitutional duty to be a "check and balance"#on another branch of government to end willful acquiescence in millions of deaths. (d) the lower court deprived Mason of his rightful, legal venue for ending vast deaths and FDA's harm to Mason's business, and instead advised Mason to seek a "political" recourse.[As an adherent of pure science, Mason is ill-suited for partisan politics, and politicians have not been swayed by pure science.]

Perhaps no judge can be expected to be 100% free of political baggage, or the suspicion of political bias in a case having great political significance. For that very reason, the checks and balances doctrine140 was devised. The principle of checks and balances suggests that a judicial review of wrongdoing by an agency originated by, and identified with, one political party141 should be conducted by judge(s) originating from the other political party(s).

For these 10 reasons, the Appellate Court should remand to the lower court for trial on the merits.

 

ACTION NOT MOOT

 

The lower court suggested this case is moot:142"It appears defendants intend to continue studying the matter; they have not refused to consider the issue at all nor have they reached a final determination that nothing need be done." Not so! After the lower court's ruling May 10, 1999, FDA counsel Kevin Fain consulted with his clients at FDA, and informed plaintiff by telephone on 5/26/99 that:

"NO health claims will be permitted for magnesium; there will be NO changes in policy; the FDA will issue NO public statements about magnesium to the media; and NO studies are planned of magnesium by the FDA." This FDA policy statement was issued in defiance of the D.C. Appellate Court's remand of a labeling case on Jan 15, 1999 which determined that more information is better on labels of dietary supplements, and that the FDA's standard for "significant scientific agreement" was unConstitutionally vague.143 FDA's suggestion for an en banc rehearing was denied. The imposed deaths from magnesium-deficiency continue at a rate of about 590 per day, equaling the Viet Nam war-deaths every 110 days.144,145,146,147,148,149,150

Instead of moving to end magnesium deficiency, the FDA has created a "magnesium scare" to reduce intake further, by widely distributing "sound bites" that since 1968 there have been 13 fatal magnesium overdoses.151The FDA has not mentioned a single word to the media about how magnesium deficiency has killed millions since 1968. This FDA malfeasance was documented by a web site regarding the Linus Pauling Institute:152

"It is bad enough that a story like "the magnesium scare" could make ABC, CBS, NBC, CNN, and the papers in the United States based on a single questionable study, one among hundreds that are published each month; but why pick up a story that even the authors admit contain numbers of incidents affecting less than 2 people per year? A more balanced report would have mentioned the great therapeutic value that is now attributed to magnesium."

This case is not moot.

 

ISSUE OVER-RIPE

 

In

1978, a research scientist brought a similar action in circuit court against the FDA about magnesium deficiency.153The Commissioner of the FDA testified in circuit court that he "didn't have any knowledge" that balanced diets wouldn't supply adequate magnesium, and that simple confession of ignorance satisfied the circuit court, which dismissed the research scientist's case. Since then, about 3.3 million Americans have died from Mg-deficiency.154,155,156,157,158,159,160 This issue is over-ripe.
CONCLUSION

 

1. The Court should rule that the lower court:

(a) erred by granting summary judgement -- which should be reserved for resolving questions of law --after FDA denied and disputed causing 3,000,000 deaths -- a question of fact.

(b) erred by inventing and applying its own unique definition of genocide

not supported by US law, international law, or the history of most 20th century genocidal deaths.

(c) erred by mis-applying Heckler v. Cheney to a case in which the FDA's

motives are challenged, as opposed to how well the FDA is
equipped.

(d) erred by unConstitutionally abdicating the court's mandate and duty to be a "check and balance" of the executive branch to stop the FDA from willfully perpetuating millions of deaths of Americans to coverup a previous FDA blunder.

(e) erred by unConstitutionally, effectively granting amnesty or pardon to the FDA for perpetuating millions of American deaths to coverup a previous FDA blunder.

(f) erred by contradicting itself, first that no genocide had occurred, and then admitting FDA actions which meet the legal test of genocide. The lower court can't have it both ways.

(g) erred by unreasonably allowing FDA to prohibit Mason from describing his water as a "good source of magnesium", even though it can provide 52% of the RDA for magnesium.

(h) erred by issuing an unConstitutional Advisory Opinion that no genocide had occurred.

(i) erred by not considering whether defense counsels knew via their own Administrative Record, Vol. I-X, and all of Mason's exhibits, A-ZZZ, of the peril to the public and vast deaths that would ensue from their motion for summary judgement and dismissal, and thus violated FRCP 11(b)(1),(3), as Mason had motioned. Thus the lower court erred in not striking defense counsel's motion for summary judgement and dismissal.

(j) judge erred by not recusing himself in an admittedly "political" case in which the judge was proposed, endorsed, and appointed by members of the same party whose members proposed, endorsed, and enacted the defendant agency.

For all the above reasons, the Court should remand the entire case to the lower court for trial on the merits, with a judge not from the same party whose members proposed, endorsed, and enacted the defendant agency.

If remand is granted, the Court should order that defendants compensate Mason for his legal work and expenses to date, in the spirit of 42 USC § 1988, 28 USC § 1920, 28 USC § 1988, 28 USC § 2414, and 28 USC § 2517.

Respectfully submitted,

______________________________ ___________________

Paul Mason, Appellant in pro per date

 

 




CERTIFICATION OF COMPLIANCE
(CIRCUIT RULE 32(a)(7)(B)(i),(iii)

 

This brief contains 12,095 words, including footnotes and endnotes.

_________________________________________________

Paul Mason, Appellant in pro per date




STATEMENT OF RELATED CASES
(CIRCUIT RULE 28-2.6)

 

There are no known related cases pending in this court.

_________________________________________________

Paul Mason, Appellant in pro per date


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