FILED
97 MAR 5 AM 11:34

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION 

PETER D. JUNGER,                  )      CASE NO. 96 CV 1723
                                  )
     Plaintiff                    )                     
                                  )      JUDGE DONALD C. NUGENT
     v.                           )               
                                  )
MADELEINE K. ALBRIGHT, et al.     )
                                  )
                                  )
     Defendants.                  )

PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO REFILE PROPOSED
MEMORANDUM OPINION WITH EXHIBITS AND PLAINTIFF'S OPPOSITION TO
DEFENDANTS' MOTION TO STRIKE AFFIDAVITS AND EXHIBITS OR,
IN THE ALTERNATIVE, MOTION FOR JUDICIAL NOTICE

The Defendants oppose Plaintiff s motion to refile the exhibits attached to the Proposed Memorandum Opinion and the exhibit attached to counsel's third declaration. The Defendants have moved to strike the exhibits as untimely under Rule 6(d) of the Federal Rules of Civil Procedure. For the following reasons, Defendants' motion to strike should be denied. In the alternative, should the Court grant Defendants' motion, the Plaintiff moves the Court to take judicial notice of certain facts represented in Plaintiff s exhibits.


I. Defendants' Motion to Strike Should Be Denied.

At oral argument, the Court invited the parties to submit findings of fact and conclusions

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of law. The Plaintiff submitted the findings and conclusions as a proposed memorandum opinion of the Court. There was no ruling by the Court on the submission of additional evidentiary material, and so the Plaintiff submitted additional declarations and a video as exhibits to the proposed opinion. Since there was no ruling by the Court on additional evidentiary material, the Defendants seek; to have the recent exhibits struck as untimely under Rule 6(d).

The Court has discretion to refuse affidavits that have been untimely filed in violation of Rule 6(d). Lujan v. National Wildlife Federation, 497 U.S. 874. 895-96 (1989). The Defendants argue that the recent exhibits are untimely because they should have been filed with the Plaintiff s motion for summary judgment. The recent exhibits. however. are not untimely.

At the time the Court heard oral argument, the parties had filed motions for summary judgment. The Plaintiff s motion for summary judgment concerned claims against the International Traffic in Arms Regulations (ITAR) and the Arms Export Control Act (AECA) that were raised in the original complaint. After the motions for summary judgment were filed and after the Court heard oral argument. the President transferred control from the ITAR to the Export Administration Regulations (EAR). In effect, the law has changed. If the Court grants Plaintiff s motion for leave to supplement the complaint, the parties will likely have to refile or renew their motions for summary judgment to include the EAR claims. See Whitford v. Boglino, 63 F.3d 527, 530 (7th Cir. 1995) (renewed or successive motions for summary judgment are appropriate if there has been an intervening change in the law).

The Defendants recognize that new motions for summary judgment may be necessary. See Defs.' Response to Pl.'s Mot. for Leave to Supplement the Complaint at 7. As the Defendants have also noted, the EAR claims are not before the Court and, therefore, cannot be considered unless the Court allows the Plaintiff to supplement the complaint. See id. at n.8.

Even if the parties do not have to refile new motions for summary judgment, the Court has the discretion to permit the exhibits. See Lujan, 497 U.S. at 894-98; see also Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1446 (6th Cir. 1993). The exhibits that concern the

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regulation of encryption under the EAR could not have been filed before the amendments to the EAR became effective on December 30. 1996. Specifically, the Second Declaration of Matt Blaze, which concerns the government's key recovery policy and the ineffectiveness of the precautions required by the EAR to restrict foreign access to encryption posted on the internet. [T]he sections of the Plaintiff's Second Declaration concerning those precautions and his recital of facts that have occurred after the Plaintiff filed his motion for summary judgment, and the letter attached to counsel's third declaration, which supports the Declaration of Patrick Ball, could not have been filed before Plaintiff s motion for summary judgment. Therefore, either these exhibits are not untimely or the Plaintiff should be excused from filing them after his motion for summary judgment.

Moreover, any evidence in the new exhibits that supports the Plaintiff's standing has not been submitted in support of any motion filed by the Plaintiff. Evidence that supports the Plaintiff's standing has been submitted in opposition to the Defendants' motion to dismiss (or motion for summary judgment) for lack of standing and. therefore, may be filed "prior to the day of hearing" under Rule 56(c). See Cia. Petrolera Caribe. Inc. V. Arco Caribbean. Inc., 754 F.2d 404, 410 (1st Cir. 1985); accord Smith v. Burns Clinic Medical Center, 779 F.2d 1173, 1175 n.6 (6th Cir. 1985).

The filing of additional exhibits was not intended to prejudice the Defendants. There is absolutely nothing in the recent exhibits that should surprise the Defendants since it is their policy and their regulations that are being challenged, and they are well aware of the effects of their regulations. See Pl.'s Exs. B I and B2 (National Research Council (NRC) press release and excerpts from the NRC report). The Defendants, for example, know that encryption software is widely available overseas and that the precautions required to restrict foreign access on the internet cannot be implemented easily. Nonetheless, Defendants should have an opportunity to respond to the exhibits, and Plaintiff does not object to a response.

If the Court grants Plaintiff s motion for leave to file the supplemental and amended

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complaint, there will probably be a need for additional briefing. As the Defendants have suggested, the Court may wish to confer with the parties over the need tor further briefing or other submissions. See Defs.' Response to Pl.'s Mot. for Leave to Supplement at 8.

II. In the Alternative. the Court Should Take Judicial Notice of
     Certain Facts in the Recent Exhibits.

If the Court does strike the exhibits, Plaintiff requests that the Court take judicial notice of certain facts. Specifically, the Plaintiff requests that the Court take judicial notice of the findings of fact in paragraphs I through 69 in ACLU v. Reno, 929 F. Supp. 824. 830-42 (E.D Pa. 1996) that provide background on the internet.1 The plaintiff also requests that the Court take judicial notice of the availability of encryption software at internet sites located outside the United States. Access to those sites was shown in Plaintiff s video exhibit and can be found at the International PGP Home Page in Norway (http://www.ifi.uio.no/pgp/).

CONCLUSION

This case should be decided on the merits. If the Court grants Plaintiff s motion for leave to supplement the complaint and chooses to decide the case on the merits, the Court should have a complete record before it. If the Court allows the Plaintiff to supplement the complaint. Plaintiff requests a status conference, or at least a telephone conference, to determine the best way to proceed. By far most of the briefing in this case has been completed. Although there are certain issues, such as the Plaintiff's IEEPA claim, that have not been argued, those issues should not require extensive briefing.

Respectfully submitted,

[Signature]

GINO J. SCARSELLI (0062327)

_______________________________

1 The facts stated in those paragraphs are based on the stipulation of the plaintiffs and the government. See ACLU, 929 F. Supp at 842 n. 15.

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing was served on March 4, 1997, upon Anthony J. Coppolino, Department of Justice, Civil Division Room 1084, 901 E Street, N.W., Washington, D.C. 20530 by Express Mail.

Respectfully submitted,

[Signature]

Gino J. Scarselli (0062327)
664 Allison Drive
Richmond Hts., OH 44143
Tel. 216-291-8601
Fax 216-291-8601