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
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)
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.
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.
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.
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.
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
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
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.
The Appellate Court should remand to the lower court
because:
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
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.
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.
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.
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.
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.
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.
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.
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."
<</P>
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.
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.
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.
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
This brief contains 12,095 words, including footnotes and
endnotes.
_________________________________________________
Paul Mason, Appellant in pro per date
STATEMENT OF RELATED CASES
There are no
known related cases pending in this court.
_________________________________________________
Paul Mason, Appellant in pro per date
This page was first uploaded to The Magnesium Web Site on
August 20, 1999
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Healthy Water
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