[March 11, 1997]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
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PETER D. JUNGER, ) CASE NO. 96 CV 1723
)
Plaintiff )
) Judge Nugent
v. )
)
MADELEINE K. ALBRIGHT, Secretary of )
State of the United States, et al )
)
Defendants. )
)
____________________________________)
REPLY IN SUPPORT OF DEFENDANTS' CROSS-MOTION
TO STRIKE NEW AFFIDAVITS AND EXHIBITS
Plaintiff's opposition to defendants' motion to strike concedes that affidavits not timely filed with a motion in compliance with Fed.R.Civ.P. 6(d) may be submitted only through leave of the Court.1 He argues, however, that his recently filed ten new affidavits and exhibits are not untimely on the ground that the regulations governing encryption exports have changed, that plaintiff now wishes to challenge those new provisions, and the new affidavits concern that challenge. See id.
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1 Plaintiff's Opposition to Motion to Strike at 2 ("Pl.'s Opp").
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1. Plaintiff is free to seek leave to challenge the new regulations, as he has. However, until such leave is granted and the Court decides to take further evidence on the merits, plaintiff cannot simply place in the record ten new affidavits and video testimony never before provided to the defendants. This is not a mere procedural nicety. There are motions currently pending with the Court, including defendants' motion to dismiss for lack of jurisdiction. Defendants object to the new materials not only because they should not be considered in connection with the pending motions, since they are substantially out of time, but also as to future proceedings, since defendants oppose plaintiff's motion to supplement the complaint for lack of jurisdiction. The jurisdictional issues defendants have raised in this case apply both to the original complaint and the proposed supplemental complaint, which presents even greater problems of ripeness and standing.2
Defendants recognize that the Court may decide to reach the merits and re-open evidentiary proceedings on the supplemental complaint. If so, plaintiff's new exhibits would have been filed prematurely, instead of very late. But until the merits are re-opened -- and defendants believe they should not be -- plaintiff's new materials should not be considered.
2. Plaintiff's request that the Court exercise its discretion and permit the filing of these exhibits, even if the merits are not re-opened, see Pl.'s Opp. at 3, is circular and
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2 Plaintiff affirms that his proposed supplemental complaint withdraws his prior facial challenge that export controls on technical data encompass the mere teaching of information concerning cryptography to foreign students in his class, and focuses instead on the regulation of cryptographic software that he wishes to post without restriction to the Internet. See Plaintiff's Reply to Defendants' Opposition to Motion to Supplement at 3 n. 3. This narrows the issues in dispute, but also heightens the standing and ripeness concerns in this case, since the plaintiff has never advised the Commerce Department as to what cryptographic software he wishes to post to the Internet, nor received any determination as to whether export licensing controls would apply thereto.
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unfounded. Plaintiff claims these materials "concern the regulation of encryption under the EAR and could not have been filed before amendments to the EAR became effective on December 30, 1996." Id. at 2-3. This is a highly inaccurate post-hoc rationalization for plaintiff's untimely filing. Even a cursory review indicates that the vast portion of the new material he submitted, including his own declaration, concerns cryptography and the Internet in general, information that could have been obtained and submitted long ago. Moreover, to the extent these new materials relate solely to the new EAR provisions, they could not be considered unless the merits were re-opened on the supplemental complaint.3
3. Plaintiffs argument that the affidavits are timely to the extent they are in opposition to defendants' motion to dismiss for lack of standing and may be filed "prior to the hearing," see Pl.'s Opp. at 3, is confusing and unavailing, since that hearing was on November 20, 1996. Also, evidence to support plaintiff's standing, if any, should have been filed on the date of plaintiff's opposition to defendants' motion to dismiss. Smith v. Burns Clinic Medical Center, P.C., 779 F.2d 1173, 1175 n. 6 (6th Cir. 1985).
4. Plaintiff's argument that defendants would not be prejudiced if his new exhibits were considered now, because none of this material should "surprise" defendants, see Pl.'s Opp. at 3, mocks the rules of procedure. This approach would allow any party to submit evidence after briefing and argument have concluded on the theory that the other party knew or should have known it existed. The purpose of the rules of procedure, including Rule 6(d), is to enable parties to address the specific evidence on which each side relies at the time
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3 The small amount of new material which plaintiff notes may relate to the new regulations, such as the "key recovery" provisions of the new EAR, see Pl.'s Opp. at 3 and Second Declaration of Matt Blaze, have not been at issue in this case.
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the Court is considering a motion. New evidence cannot be presented after the Court takes a motion under submission on the theory that the other side "should have known about it" and could somehow have addressed it (even though it was not actually cited and produced at the time of the motion). A defendant, in particular, is in the position of responding to claims and the evidence on which they may be based, and is greatly disadvantaged if such evidence is withheld until after the Court is preparing to rule. That is why plaintiff's new materials must be set aside unless new evidence is requested by the Court in connection with plaintiff's supplemental complaint.
5. Next, the notion that the Court may take "judicial notice" of facts concerning the Internet, and the availability of encryption software at Internet sites overseas, Pl.'s Opp. at 4, is also without merit. The judicial notice rule pertains only to facts "not subject to reasonable dispute" and "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Ev. 201 (b). In short, judicial notice is reserved for matters that are simple, undisputed, and readily verified.
Information provided by plaintiff's own declarants should not be received merely through judicial notice. Defendants are entitled to counter any such testimony offered by plaintiff in order to demonstrate its flaws or place it in the proper context. See Fed.R.Ev. 201(e) (a party is entitled to "an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed"). Hence, the judicial notice provision does not excuse plaintiff's late filing. Moreover, facts pertaining to what kind of encryption software is located on computers overseas are not appropriately presented to the Court through a request for judicial notice. Such evidence goes to the issue of whether the foreign
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availability of certain software undercuts the government's export control policies, and that is not susceptible to resolution through the judicial notice process. This issue should have been aired in the normal course of motion proceedings.4
6. The Court should also reject plaintiff's broad-brush attempt to enter into this record by judicial notice some 69 findings made by the district court in preliminary injunction proceedings in ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) (Supreme Court appellate jurisdiction noted and appeal pending). See Pl.'s Opp. at 4. Defendants agree that some of the findings in that decision are relevant here. For example, defendants cited ACLU in support of the uncontested proposition that the Internet is an international telecommunications medium such that posting encryption software to the Internet would result in an unlimited international export. See 929 F. Supp. at 831, 834, 836 (findings ¶¶ 3, 4, 25, 33); see Def.'s Findings & Conclusions at 51 & n. 49.
What plaintiff seeks is to indiscriminately adopt 69 findings covering 12 pages of that reported decision. Many of those findings have absolutely nothing to do with the issues presented in this case. See ACLU, 929 F. Supp. at 838-842 (findings 49 to 69 concerning methods of rating content on the Internet and parental control software to screen access by children to sexually explicit and other objectionable material online). Other of these findings may now be dated or subject to revision. If plaintiff desired to present evidence to the Court as to how the Internet works, he should have developed and presented that evidence on his
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4 Indeed, the entire policy basis of export controls is not appropriate for judicial inquiry. See Def.'s Findings and Conclusions at 42-43 and n. 41.
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own, instead of again borrowing from the record of other proceedings. or consulted with defendants regarding a sensible way to present relevant aspects of such information.
7. Lastly, plaintiff's argument that the Secretary of State should remain a defendant, should plaintiff be granted leave to supplement his complaint, is baseless.5 Plaintiff argues that, someday in the future, the President or Congress might change the policy again on encryption exports and transfer regulatory authority back to the Secretary of State.6 This argument is purely conjectural. The Court can only apply the law as it exists today, and the current encryption export controls are now set forth under the EAR administered by the Secretary of Commerce. The Court should not base jurisdiction over a government official, such as the Secretary of State, on the theory that she might someday be the responsible licensing official again. Also, while the State Department, like other agencies, is involved in an inter-agency review process,7 the actual licensing authority under the EAR is the Secretary of Commerce, who is also the official responsible for any revisions to the EAR. Any relief to be afforded with respect to the EAR cannot be obtained through any other agency or official. Accordingly, if the Court allows plaintiff's supplemental complaint to proceed, the Secretary of State should be dismissed as a defendant, along with the claims against her, which are now moot.
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5 Plaintiff's Reply to Defendants' Opposition to Motion to Supplement at 4.6 Id. at 4.
7 Id. at 4.
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CONCLUSION
For the foregoing reasons, plaintiff's motion to file ten new affidavits and exhibits with his proposed memorandum opinion should be denied, and defendants' cross-motion to strike these new exhibits should be granted.
Respectfully Submitted,
FRANK W. HUNGER
Assistant Attorney General
EMILY M. SWEENEY
United States Attorney
VINCENT M. GARVEY
Deputy Branch Director
[Signature]
ANTHONY J. COPPOLINO
Department of Justice
Civil Division, Room 1084
901 E Street, N.W.
Washington, D.C. 20530
Tel. (Voice): (202) 514-4782
(FAX): (202) 616-8470 or 616-8460
Attorneys for the Defendants
Date: March 11, 1997
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CERTIFICATE OF SERVICE
I hereby certify that on the 10th day of March 1997, a copy of the foregoing Reply In Support of Defendants' Cross-Motion to Strike New Affidavits And Exhibits, was served, via overnight express mail, on:
Gino J. Scarselli
664 Allison Drive
Richmond Hts., Ohio 44143
Tel: (216) 291-8601
[Signature]
ANTHONY J. COPPOLINO