FILED
97 FEB 13 PM 4:29
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
PETER D. JUNGER, ) CASE NO. 96 CV 1723
) Plaintiff ) ) JUDGE DONALD C. NUGENT v. ) ) ) MOTION FOR LEAVE TO
MADELEINE K. ALBRIGHT, et al. ) FILE FIRST SUPPLEMENTAL
) AND AMENDED COMPLAINT ) INSTANTER Defendants. )
Plaintiff respectfully moves this court to for permission
to file a First Supplemental and Amended Complaint instanter. The
grounds for this motion are as follows:
On August 7, 1996. Plaintiff filed a complaint together with a motion for preliminary injunction challenging the constitutionality of provisions of the International Traffic in Arms Regulations (ITAR), 22 C.F.R. §§ 120 et seq. On November 15, 1996, after the plaintiff and the defendants filed motions for summary judgment, the President issued an executive order transferring jurisdiction over non-military encryption from the Department of State under the ITAR to the Department of Commerce under amendments to the Export Administration Regulations (EAR), 15 C.F.R. Part 730 et seq. President's Executive Order No. 13026. November 15, 1996, reprinted at 61 Fed. Reg. 58767. The amendments to the EAR became effective on December 30, 1996.
On January 2, 1996, Plaintiff s attorney sent a letter to attorney for the defendants seeking clarification of a number of points under the amended EAR.1 The amended regulations. on their face, appeared to resolve a couple of the plaintiff s claims under the ITAR, namely the
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1 Plaintiff s letter of January 2, 1997, and the letter from the Commerce Department of January 29, 1997, have been attached to Plaintiff s First Supplemental and Amended Complaint.
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classroom teaching of encryption to foreign students and the transmission of encryption software in print form to foreign colleagues outside the United States. On January 29, 1997, the Commerce Department responded confirming that teaching encryption to foreign students did not constitute an export under the amended EAR and that encryption source code was not subject to the EAR in printed form.2
In the letter of January 2, 1997, Plaintiff s attorney also sought clarification of a number of other issues, including publishing encryption source code and object code on the Internet and the transmission of books or articles that contain encryption software in electronic form outside the United States. The Commerce Department's response confirms that other claims raised in the original complaint and argued in Plaintiff s briefs, principally claims concerning the Internet (see, e.g., Pl.'s Compl. ¶¶ 13, 17, 36) remain. Because the controversy between the plaintiff and the defendants continues to exist under the EAR, Plaintiff seeks permission to file a supplemental and amended complaint.
The First Amendment issues raised by the encryption controls under the EAR mirror those under the ITAR. Although the regulatory scheme under the EAR has clarified some of the ambiguity inherent in the language of the ITAR, the EAR is still constitutionally suspect. The plaintiff claims that both regulatory schemes are overbroad and constitute impermissible content-based prior restraints on First Amendment rights. Thus, the legal issues are nearly identical.
Plaintiff's supplemental and amended complaint dismisses William J. Lowell and the ODTC as defendants, and supplements and amends the original complaint by (1) adding William Daley, Secretary of Commerce, and the Commerce Department as defendants. (2) adding claims for relief under the EAR, and (4) adding facts relevant to this dispute that arose since the initial pleading.
If the new complaint were simply an amended complaint. the plaintiff would be allowed to amend by right since the defendants have not yet filed a responsive pleading. See F.R.C.P.
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2 The Commerce Department noted that the administration was reviewing the extent to which scannable code in printed form should be subject to the EAR. See Letter from Commerce Department to Plaintiff's counsel, January 29, 1997, at n.6.
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15(a). Since the new complaint raises facts and issues that arose since the original complaint was filed, the new complaint may have to be treated as a supplemental pleading under Rule 15 (d).
Federal Rule of Civil Procedure 15(d) provides that the court may "permit [a] party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Fed. R. Civ. P. 15(d) . Permission to supplement a complaint should be freely granted when it "will promote the economic and speedy disposition of the controversy between the parties. will not cause undue delay or trial inconvenience, and will not prejudice the rights of any other party." Bornholdt v. Brady, 869 F.2d 57. 68 (2d Cir. 1989); see also Foman v. Davis, 371 U.S. 178 ( 1962) (leave to supplement should be freely granted absent "undue delay, bad faith or dilatory motive on the part of the movant").
Plaintiff's lead attorney had a number of informal conversations with the attorney for the defendants notifying him that the plaintiff would be filing an amended or supplemental complaint. It was the intention of Plaintiff's attorneys to file the instant complaint before filing Plaintiff s Proposed Memorandum Opinion (Findings of Fact and Conclusions of Law). Notwithstanding the best efforts of Plaintiff's attorneys, the instant complaint is filed after the proposed memorandum opinion. Although Plaintiff s attorneys sincerely regret the delay. it has not been so great as to prejudice the defendants.
For the foregoing reasons, the plaintiff's motion for leave to file should be granted.
Respectfully submitted,
[Signature]
GINO J. SCARSELLI (0062327)
664 Allison Dr.
Richmond Hts., OH 44143-2904
(216) 291-8601
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on February 13, 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
Attorney for the Plaintiff