[Scanned version of government answer.] FRANK W. HUNGER Assistant Attorney General MICHAEL J. YAMAGUCHI United States Attorney MARY BETH UITTI Assistant United States Attorney 450 Golden Gate Avenue San Francisco, California 94102 Telephone: (415) 556-6181 VINCENT M. GARVEY ANTHONY J. COPPOLINO Civil Division, Room 1020 901 E Street, N.W. Washington, D.C. 20530 Tel: (202) 514-4782 Fax: (202) 616-8470 or 616-8460 Attorneys for the Defendants IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DANIEL J. BERNSTEIN ) ) Plaintiff, ) C 95-0582 MHP ) v. ) ) ANSWER UNITED STATES DEPARTMENT OP STATE et al., ) ) Defendants. ) ___________________________________________) Defendants, in their official and individual capacities, through their undersigned counsel, hereby answer the Complaint as follows: First Affirmative Defense All claims against the defendants sued in their individual capacities are barred by the doctrine of qualified immunity, and the defendants are immune from suit in their individual capacities. Second Affirmative Defense The Complaint fails to state a claim upon which relief can be granted against the defendants sued in their individual capacities. Third Affirmative Defense This Court lacks personal jurisdiction over the defendants sued in their individual capacities. Fourth Affirmative Defense Venue does not lie in this judicial district as to the claims against the defendants sued in their individual capacities. Fifth Affirmative Defense The claims against the defendants sued in their individual capacities are barred by the statute of limitations. Sixth Affirmative Defense The Court lacks subject matter jurisdiction to review the designation of items as defense articles or defense services under the Arms Export Control Act ("AECA") of 1976, 22 U.S.C. S 2778(h), and with respect to claims arising under the Administrative Procedure Act, 5 U.S.C. S 551 et sea. Seventh Affirmative Defense The Complaint fails to state a claim upon which relief can be granted against the defendants in their official capacities. Eighth Affirmative Defense The plaintiff has failed to exhaust administrative remedies. Ninth Affirmative Defense The plaintiff lacks standing to seek redress of any alleged injuries to third parties. Tenth Affirmative Defense The defendants respond to the numbered paragraphs of the Complaint as follows: (l) 1. This paragraph sets forth plaintiff's characterization of this action, which requires no response, but insofar as a response may be required, deny. 2. This paragraph sets forth plaintiff's characterization of this action, which requires no response, but insofar as a response may be required, deny, except to admit that the Arms Export Control Act of 1976, 22 U.S.C. S 2778 et seq., and the International Traffic in Arms Regulations ("ITAR"), 22 C.F.R. Part 120 et seq., are at issue in this action. 3. Deny the first sentence. The remainder of this paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 4. This paragraph sets forth plaintiff's further characterization of this action, which requires no response, but insofar as a response may be required, deny. 5. This paragraph sets forth plaintiff's further characterization of this action, which requires no response, but insofar as a response may be required, deny. 6. Deny. The Court lacks personal jurisdiction over the ------- Footnote: (1) The Complaint, which is 53 pages and 197 paragraphs, does not comport with Fed. R. Civ. P. 8(a) and (e), which require a "short and plain statement of the claim" and that each averment be "simple, concise, and direct." Several allegations are substantially similar, some repeated nearly verbatim. See, eq.., 107, 112, 130, and 191 (allegations re: seeking prior judicial action); 104, 108, 113, 117, 122, 126, 132, 192(c) (allegations re: judicial review); 109, 118, 127 (allegations re: procedural safeguards); 110, 119, 128 (allegations re: the scope of regulatory standards); 106, 120, 129, 188 (allegations re: acting within specified time and appeal time). Also, several paragraphs, noted infra, contain legal argument in narrative form or inter-mixed with claims for relief. ------ defendants sued in their individual capacities. The Court lacks subject matter jurisdiction to review the designation of items as defense articles or defense services, 22 U.S.C. S 2778(h), and with respect to claims arising under the Administrative Procedure Act, 5 U.S.C. 5 551 et seq. 7. Deny. 8. Deny. Venue does not lie in this judicial district as to the claims against the defendants sued in their individual capacities. 9. Defendants lack sufficient knowledge to admit or deny the averments of this paragraph. 10. Admit the first sentence. Deny the second sentence, except to admit that the statutory authority of the President under the AECA to promulgate regulation* with respect to the export of defense articles and defense services was delegated to the Secretary of State by Executive Order 11958, 42 Fed. Re*. 4311 (Jan. 18, 1977) as amended. See 22 U.S.C. S 2751 note. 11. Deny, except to admit that the Arms Control and Disarmament Agency ("ACDA") is an agency of the Government of the United States. 12. Deny, except to admit that the Department of Defense is an agency of the Government of the United States and that the designation of items on the United States Munitions List "are made by the Department of State with the concurrence of the Department of Defense." 22 C.F.R. S 120.2; E.O. 11958, 5 1(1)(1). 13. Deny, except to admit the Department of Commerce is an agency of the Government of the United States, and that commodity jurisdiction ("CJ") determinations entail "consultation among the Departments of State, Defense, Commerce and other U.S. Government agencies and industry in appropriate cases." 22 c.F.R. S 120.41(a). 14. Deny, except to admit that the National Security Agency, a component of the Department of Defense, is an agency of the Government of the United States, and that the designation of items on the United States Munitions List "are made by the Department of State with the concurrence of the Department of Defense. n a 2 C . F . R . S 120.2; E.O. 11958, S 1(1)(1). 15. Deny the first sentence, except to admit that defendant Warren Christopher is and has been the United States Secretary of State since January 20, 1993. Deny the second sentence, except to admit that the statutory authority of the President under the AECA to promulgate regulations with respect to the export of defense articles and defense services was delegated to the Secretary of State by Executive Order 11958, 42 Fed. Req. 4311 (Jan. 18, 1977) as amended, see 22 U.S.C. 5 2751 note, and that by virtue of delegations of authority by the Secretary of State, the ITAR are primarily administered by the Director of the Office of Defense Trade Controls, Bureau of Political Military Affairs, Department of State. See 22 C.F.R. S 120.1(a). 16. Deny the first sentence, except to admit that defendant William Perry is and has been the United States Secretary of Defense since February 3, 1994. Deny the second sentence. 17. Deny the first sentence, except to admit that defendant Ronald Brown is and has been the united States Secretary of Commerce since January 22, 1993. Deny the second sentence. 18. Deny the first sentence, except to admit that defendant Admiral J.M. McConnell is and has been the Director of the National Security Agency since May 22, 1992. Deny the second sentence. 19. Deny the first sentence, except to admit that defendant John Holum is and has been the Director of the Arms Control and Disarmament Agency since November 22, 1993. Deny the second sentence. 20. Deny, except to admit that at a time relevant to this action, defendant William G. Robinson served *g the Director of the Office of Defense Trade Controls of the Bureau of Political Military Affairs within the State Department and, pursuant to 22 C.F.R. 5 120.1 (a), by virtue of delegations of authority by the Secretary of State, the ITAR are primarily administered by the director of ODTC. 21. Deny, except to admit that ,a-t a time relevant to this action, defendant Charles Ray served in the Office of Defense Trade Controls of the Bureau of Political Military Affairs within the State Department and provides staff assistance in the administration of the ITAR by ODTC. 22. Deny, except to admit that at a time relevant to this action, defendant Gary M. Oncale served in the Office of Defense Trade Controls of the Bureau of Political Military Affairs within the State Department and provided staff assistance in the administration of the ITAR by ODTC. 23. Deny, except to admit that at a time relevant to this action, defendant Michael Newlin served as Acting Deputy Assistant Secretary in the Bureau of Political Military Affairs. 24. Deny, except to admit that, at a time relevant to this action, Greg Stark served as an official of the National Security Agency involved in evaluating technical aspects of cryptographic software commodities in the commodity jurisdiction process. 25. Deny, except to admit that, at a time relevant to this action, Mark Koro served as an official of the National Security Agency involved in evaluating technical aspects of cryptographic software commodities in the commodity jurisdiction process. 26. This paragraph sets forth plaintiff's further characterization of this action, which requires no response, but insofar as a response may be required, deny. 27. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny, except to admit that the ITAR are primarily administered by the Office of Defense Trade Controls, bureau of Political Military Affairs, Department of State. 28. Deny. 29. This paragraph does not contain averments of fact to which a response is required, but insofar as a response may be required, deny. 30. Deny the first sentence. The second sentence does not contain an averment of fact to which a response is required, but insofar as a response may be required, deny. 31. Deny. 32. This paragraph characterizes 22 U.S.C. S 2778(a)(1), which speaks for itself, and requires no response, but insofar as a response may be required, admit. 33. Deny the first sentence, except to admit that the Department of State promulgated the International Traffic in Arms Regulations, 22 C.F.R. §§ 120-130. The second sentence characterizes 22 C.F.R. § 121.1, which speaks for itself, and requires no response, but insofar as a response may be required, admit. 34. This paragraph characterizes 22 C.F.R. S 120.9, which speaks for itself, and requires no response, but insofar as a response may be required, deny, except to admit that 22 C.F.R. S 120-9 sets forth the definition of a defense service. 35. Admit. 36. The averment in this paragraph is not complete, but references paragraphs 37-40 and, for this reason, a response is no* required, but insofar as a response may be required, deny. 37. Deny. 38. This paragraph characterizes 22 C.F.R. § 122.1 and 22 U.S.C. 5 2778(b)(1)(A), which speak for themselves, and requires no response, but insofar as a response may be required, deny, except to admit that "if it is determined that the commodity is a defense article or service covered by the U.S. Munitions List, registration is required for exporters, manufacturers, and of defense articles and defense services" pursuant to 22 C.F.R. Part 122. 22 C.F.R. S 120.4(b). 39. Deny, except to admit that, pursuant to 22 C.F.R. S 123.1(a), any person who intends to export a defense article must obtain the approval of the State Department prior to the export, unless the export qualifies for an exemption under the ITAR. 40. Deny the first sentence. The second sentence sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 41. The first sentence characterizes 22 C.F.R. S 127.3 and 22 U.S.C. S 2778(c), which speak for themselves, and requires no response, but insofar as a response may be required, deny, except to admit the referenced penalties for willful violations of the AECA set forth at 22 U.S.C. S 2778(c). Admit the second sentence. 42. This paragraph characterizes Z2 C.F.R. S 120.4 (g), which speaks for itself, and requires no response, but _ response may be required, deny, except to admit, that pursuant to 22 C.F.R. S 120.4(g), the Deputy Assistant Secretary of State for Political Military Affairs will provide a written response within 30 days of receipt oŁ an appeal. 43. This paragraph characterizes 22 121.1 XIII(b)(l), which speaks for itself, and requires no response, but insofar as a response may be required, deny, except to admit that, to 22 C.F.R. S 121.1 XIII(b)(l), the United States Munitions List includes cryptographic (including key management) systems, equipment, assemblies, modules, integrated circuits, components or software with the capability of maintaining secrecy or confidentiality of information on information systems, except cryptographic equipment and software" listed therein, and that, under 2a C.F.R. S 121.8(f), "software includes but is not limited to "the system functional design, logic flow, algorithms, application programs, operating systems and support software for design, implementation, test operation, diagnosis and repair." 44. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 45. Deny, except to admit that 22 C.F.R. S 120.17 sets forth the definition of an export. The second sentence sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 46. This paragraph characterizes 22 C.F.R. S 120.16, which speaks for itself, and requires no response, but insofar as a response may be required, deny, except to admit that 22 C.F.R. S 120-16 sets forth the definition of a foreign person. 47. Admit. 48. Deny the first sentence, except to admit that 22 C.F.R. S 120.11 sets forth the meaning of information in the public domain. Deny the second sentence. 49. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 50. Admit. 51. This paragraph appears to characterize 22 C.F.R. 5 127.10, which speaks for itself, and requires no response, but insofar as a response may be required, admit. 52. Admit. 53. Deny, except to admit the quoted portion of the paragraph which is part of the provision set forth at 22 C.F.R. S 128.1. 54. Deny, except to admit the quoted portion of the paragraph which is part of the provision set forth at 22 C.F.R. s 120.3 55. Defendants lack sufficient knowledge or information to admit or deny the first and second sentences. The third sentence is a statement of plaintiff's wishes, and defendants lack sufficient knowledge or information to admit or deny. The fourth sentence is a citation to Exhibit A to the complaint, which requires no response. 56. Defendants lack sufficient knowledge to admit or deny the averments in this paragraph. 57. Deny the first sentence, except to admit that the function of plaintiff's cryptographic software is to encrypt information by using as one of its components a data authentication hash function program. Deny the second sentence. The third sentence characterizes 22 C.F.R. S 121.1 XIII(b)(l)(v1), which *peaks for itself, and requires no response, but insofar as a response may be required, deny, except to admit that category XIII(b)(l)(vi) of the USML excludes from the definition Or cryptographic equipment and software certain data authentication software described therein. 58. Deny, except to admit that plaintiff's cryptographic software was determined to be a defense article covered by the United States Munitions List, 22 C.F.R. S 121.1 XIII(b)(l). 59. This paragraph sets forth a statement of plaintiff's intentions and wishes, and defendants lack sufficient knowledge or information to admit or deny. 60. The first sentence is a statement oŁ plaintiff's wishes, and defendants lack sufficient knowledge of information to admit or deny. Defendants lack sufficient knowledge or information to admit or deny the second sentence. 61. Deny, except to admit that plaintiff submitted the letter and documents set forth at Exhibit A to the Complaint, subsequently designated CJ 191-92, seeking a com- modity jurisdiction determination. 62. Deny, except to admit that defendants Stark and Koro of the National Security Agency, acting within their official capacities, evaluated the technical aspects of the cryptographic software commodity in the commodity jurisdiction process. 63. Deny, except to admit that, by letter dated August 20, 1992, the Director of the office of Defense Trade Controls advised the plaintiff of the State Department's commodity jurisdiction determination, which is set forth at Exhibit B to the Complaint. 64. Deny the first sentence, except to admit that plaintiff attempted to communicate with persons at ODTC and NSA regarding the CJ determination. Deny the second sentence. 65. Defendants lack sufficient knowledge to admit or deny the averments in this paragraph. Defendants have been unable to locate a copy of the September 22, 1993 letter at Exhibit Complaint or confirm that an appeal was submitted. 66. Defendants lack sufficient knowledge to admit or deny the averments in this paragraph. Defendants have been unable to locate a copy of the September 22, 1993 letter at Exhibit C to the Complaint or confirm that an appeal was submitted. 67. Deny, except to admit that plaintiff submitted the letters and documents set forth at Exhibit D to the Complaint. 68. This paragraph sets forth a statement of plaintiff's purpose, and defendants lack sufficient knowledge to admit or deny. 69. Deny, except to admit that by letter dated October 5, 1993, the Director of the Office of Defense Trade Controls advised the plaintiff of the State Department's commodity jurisdiction determination, which is set forth at Exhibit E to the Complaint. 70. Deny, except to admit that plaintiff did not appeal CJ 214-93. 71. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny, except to admit that by letter* dated August 20, 1992, and October 5, 1993, the Director of the Office of Defense Trade Controls advised the plaintiff of the State Department's commodity jurisdiction determinations, which are set forth at Exhibits B and E to the Complaint. 72. Deny, except to admit that, pursuant to 22 C.F.R. § 123.1(a), any person who intends to export a defense article must obtain the approval of the State Department prior to the export, unless the export qualifies for an exemption under the ITAR. 73. Deny, except to admit that defendants have been unable to locate a copy of the September 22, 1993 letter at Exhibit C to the Complaint or confirm that an appeal was submitted, and that plaintiff has not applied for or received an export license. Defendants lack sufficient knowledge or information as to the remaining allegations of this paragraph. 74. Defendants lack sufficient knowledge to admit or deny the averments in this paragraph. 75. Defendants lack sufficient knowledge to admit or deny the averments in this paragraph. 76. Defendants lack sufficient knowledge to admit or deny the averments in this paragraph. 77. Defendants lack sufficient knowledge to admit or deny the averments in this paragraph. 78. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny 79. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 80. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 81. Deny the first sentence, except to admit that some aspects of government policy with respect to cryptography has been subject to public policy debate. Defendants lack sufficient knowledge to admit or deny the averments of second sentence since the sentence does not specify the referenced government initiatives. Defendants lack sufficient knowledge to admit or deny the third sentence, except to admit that there is scientific interest in cryptology. 82. Defendants lack sufficient knowledge to admit or deny the averments of first sentence since the sentence does not specify the referenced government initiatives that are "currently being debated in Congress." Deny the second sentence, except to admit that the Clipper Chip and Key Escrow Encryption issues concern some issues of cryptography. Deny the third sentence, except to admit that the preceding Congress considered but did not enact legislation that would have altered the existing statutory and regulatory provisions at issue in this case. 83. Deny the first sentence, except to admit that plaintiff's cryptographic software allows for data confidentiality and uses as one of its components data authentication technology. The second sentence sets forth plaintiff's purpose in designing the software at issue, and defendant lacks sufficient knowledge or information to admit or deny. The third sentence sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 84. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 85. This paragraph sets forth plaintiff's allegation of the relief sought, which requires no response, but insofar as a response may be required, deny. 86. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny, except to admit that plaintiff alleges that the AECA and ITAR are unconstitutional. 87. Deny. 88. Deny. 89. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 90. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 91. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 92. Deny. 93. This paragraph realleges and incorporates by reference prior allegations, and defendants' prior responses thereto are also incorporated by reference. 94. The averment in this paragraph is not complete, but references paragraphs 95-98 and, for this reason, a response is not required, but insofar as a response may be required, deny. 95. Deny. 96. Deny. 97. Deny, except to admit that, pursuant to S 123.1(a), any person who intends to export a defense article must obtain the approval of the State Department prior to the export, unless the export qualifies for an exemption under the ITAR. 98. Deny. 99. Deny. 100. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 101. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 102. Deny (including the prayer for relief). 103. This paragraph realleges and incorporates by reference prior allegations, and defendants' prior responses thereto are also incorporated by reference. 104. Deny, except to admit that the Court lacks subject matter jurisdiction to review the designation of items as defense articles or defense services, 22 U.S.C. S 2778(h), and with respect to claims arising under the Administrative Procedure Act, 5 U.S.C. 105. Deny the first sentence, except to admit that plaintiff submitted to the Office of Defense Trade Controls the commodity jurisdiction requests set forth at Exhibits A and D to the Complaint. Deny the second sentence, except to admit that the "commodity jurisdiction procedure is used with the U.S. Government if doubt exists as to whether an article or service is covered by the U.S. Munitions List." 22 C.F.R. S 120.4(a). Deny the third sentence, except to admit that plaintiff submitted his commodity jurisdiction request on June 30, 1992, and received a determination on August 20, 1992. Deny the remainder of the paragraph. 106. Deny the first two sentences, except to admit the quoted portion of the paragraph which is part of the provision set forth at 22 C.F.R. § 120.4(e). Deny the third sentence. 107. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 108. Deny the first sentence, except to admit that the Court lacks subject matter jurisdiction to review the designation of items as defense articles or defense services, 22 U.S.C. S 2778(h), and with respect to claims arising under the Administrative Procedure Act, 5 U.S.C. S 551 et seq. Deny the second sentence. 109. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 110. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 111. The first sentence characterizes 22 C.F.R. S 120.4(g), which speaks for itself, and no response is required, but insofar as a response may be required, deny, except to admit that, pursuant to 22 C.F.R. S 120.4(g), the deputy assistant Secretary of State for Political Military Affairs will provide a written response within 30 days of receipt of an appeal. Deny the second sentence. Defendants lack sufficient knowledge to admit or deny the averments of the third sentence since defendants have been unable to locate a copy of the September 22, 1993 letter at Exhibit C to the Complaint or confirm that an appeal was submitted. 112. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 113. Admit the first sentence. The remainder of this paragraph sets forth legal argument, which requires no responses, but insofar as a response may be required, deny except to admit that the Court lacks subject matter jurisdiction to review the designation of items as defense articles or defense services. 22 U.S.C. S 2778(h). 114. Deny (including the prayer for relief). 115. This paragraph realleges and incorporates by reference prior allegations, and defendants' prior responses thereto are also incorporated by reference. 116. Deny, except to admit that "if it is determined that the commodity is a defense article or service covered by the U.S. Munitions list, registration is required for exporters, manufacturers, and furnishers of defense articles and defense services" pursuant to 22 C.F.R. Part 122. 22 C.F.R. S 120.4(b). 117. The first sentence characterizes 2Z C.F.R. 5 128.1, which speaks for itself, and no response is required, but insofar as a response may be required, deny, except to admit that the Court lacks subject matter jurisdiction to review the designation of items as defense articles or defense services, 22 U.S.C. S 2778(h), and with respect to claims arising under the Administrative Procedure Act, 5 U.S.C. S 551 et seq. Deny the second sentence. 118. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 119. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 120. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 121. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 122. Deny, except to admit that the Court lacks subject matter jurisdiction to review the designation of items as defense articles or defense services, 22 U.S.C. 5 2778(h), and with respect to claims arising under the Administrative Procedure Act, 5 U.S.C. S 551 et seq. 123. Deny (including the prayer for relief). 124. This paragraph realleges and incorporates by reference prior allegations, and defendants'prior responses thereto are also incorporated by reference. 125. This paragraph appears to characterize 22 C.F.R. Part 123, which speaks for itself, and no response is required, but insofar as a response may be required, deny. 126. The first sentence characterizes 2Z CFR. S 128.1, which speaks for itself, and no response is required, but insofar as a response may be required, deny, except to admit that the Court lacks subject matter jurisdiction to review the designation of items as defense articles or defense services, 22 U.S.C. S 2778(h), and with respect to claims arising under the Administrative Procedure Act, 5 U.S.C. S 551 et seq. Deny the second sentence. 127. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 128. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 129. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 130. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 131. Deny, except to admit that the office of Defense Trade Controls advised the plaintiff of the State Department's commodity jurisdiction determinations, which are set forth at Exhibits B and E to the Complaint. 132. Deny, except to admit that the Court lacks subject matter jurisdiction to review the designation of items as defense articles of defense services, 22 U.S.C. S 2778(h), and with respect to claims arising under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. 133. Deny (including the prayer for relief). 134. This paragraph realleges and incorporates by reference prior allegations, and defendants' prior responses thereto are also incorporated by reference. 135. Deny the first sentence. The second sentence sets forth legal argument, which requires no response, but insofar as a response may be required, deny. The remainder of this paragraph is not complete but references several succeeding paragraph, and for this reason a response is not required, but insofar as a response may be required, deny. 136. Deny the first sentence, except to admit that 121.1 -- Category XIII, Auxiliary Military Equipment -- includes on the United States Munitions List cryptographic systems, devices, equipment and software "with the capability of maintaining secrecy or confidentiality of information or information systems," except as noted therein. See 22 C.F.R. S 121.1 XIII(b). The remainder of this paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 137. Deny the first sentence, except to admit that the definition of technical data "does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges, and universities or information in the public domain as defined in S 1201.11" and also doe* not include "basic marketing information on function or purpose or general system descriptions of defense articles." 22 C.F.R. S 120.10(a)(5). The remainder of this paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 138. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 139. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 140. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 141. The first two sentences set forth legal argument, which requires no response, but insofar as a response may be required, deny. Deny the third sentence. 142. Deny the first sentence, except to admit the definition of software set forth at 22 C.F.R. S 121.8(f). The second sentence does not state a fact or claim, but sets forth speculation as to how defendants have "possibly interpreted" the ITAR, which requires no response, but insofar as a response may be required, deny. The third sentence sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 143. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 144. That paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 145. Deny. 146. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 147. Deny (including the prayer for relief). 148. This paragraph realleges and incorporates by reference prior allegations, and defendants' prior responses thereto are also incorporated by reference. 149. The averment in this paragraph is not complete, but reference several succeeding paragraphs. It also sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 150. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny, except to admit the policy on designating and determining a defense article and defense service in the future is set forth at 22 C.F.R. S 120.3. 151. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny, except to admit the policy on designating and determining article and defense service in the future is set forth at 22 C.F.R. S 120.3. 152. Deny the first sentence, except to admit that 22 C.F.R. S 120.17 sets forth the definition of an export. The remainder of this paragraph sets forth legal argument, which requires no responses, but insofar as a response may be required, deny. 153. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 154. Deny. 155. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 156. Deny the first sentence. The second sentence purports to characterize the "essence" of a conversation with defendant Charles Ray and, as such, does not sufficiently state a factual allegation. It also constitutes legal argument, which requires no response, but insofar as a response may be required, deny. 157. Deny. 158. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny, except to admit that 22 C.F.R. S 121.1 -- Category XIII, Auxiliary Military Equipment - includes on the United States Munitions List cryptographic systems, devices, equipment and software *with the capability of maintaining secrecy or confidentiality of information or information systems," except as noted therein. See 22 C.F.R. S 121.1 XIII(b). 159. Deny the first sentence, except to admit the definition of software set forth at 22 C.F.R. S 121.8(f). The remainder of this paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 160. Deny the first sentence, except to admit that the Director of the Office of Defense Trade Controls advised the plaintiff of the State Department's commodity jurisdiction determination*, which are set forth at Exhibits B and E to the Complaint. Deny the second sentence, except to admit that, pursuant to 22 C.F.R. S 123.1(a), any person who intends to export a defense article must obtain the approval of the State Department prior to the export, unless the export qualifies for an exemption under the ITAR. 161. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 162. Deny. 163. This paragraph sets forth legal argument, which does not require a response, but insofar as a response may be required, deny. 164. Deny (including the prayer for relief). 165. This paragraph realleges and incorporates by reference prior allegations, and defendants' prior responses thereto are also incorporated by reference. 166. Deny the first sentence, except to admit that plaintiff sought the commodity jurisdiction determinations set forth at Exhibits A and D to the Complaint. Defendants lack sufficient knowledge to admit or deny the averments in the second and third sentences. 167. Deny the first sentence, except to admit that, by letters dated August 20, 1992 and October 5, 1993, the Director of the Office of Defense Trade Controls advised the plaintiff of the State Department's commodity jurisdiction determinations, which are set forth at Exhibits B and E to the Complaint. Deny the second sentence. The remainder of this paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 168. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 169. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 170. Deny (including the prayer for relief). 171. This paragraph realleges and incorporates by reference prior allegations, and defendants' prior-responses thereto are also incorporated by reference. 172. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 173. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 174. Defendants lack sufficient knowledge to admit or deny the averments of this paragraph. 175. Defendants lack sufficient knowledge to admit or deny the averments of the first sentence. Deny the second sentence. 176. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 177. Deny (including the prayer for relief). 178. This paragraph realleges and incorporates by reference prior allegations, and defendants' prior responses thereto are also incorporated by reference. 179. The first sentence characterizes 22 C.F.R. S 121.8(f), which speaks for itself, and requires no response, but insofar as a response may be required, admit the quoted portion of the paragraph set forth at 22 C.F.R. S 121.8(f). Deny the second sentence, except to admit that, pursuant to *2 C.F.R. S 121.1 XIII(b)(l), the United State* Munitions List includes "Cryptographic (including key management) system*, equipment, assembler, modules, integrated circuits, components or software with the capability of maintaining secrecy or confidentiality of information on information systems, except cryptographic equipment and software listed therein. Admit the third sentence. 180. This paragraph sets forth legal argument, which requires no response but insofar as a response may be required, deny. 181. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 182. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 183. Deny (including the prayer for relief). 184. This paragraph realleges and incorporates by reference prior allegations, and defendants' prior responses thereto are also incorporated by reference. 185. Deny the first sentence, except to admit that plaintiff sought the commodity jurisdiction determinations set forth at Exhibits A and D to the Complaint. Deny the second sentence. 186. Deny, except to admit that defendants have been unable to locate a copy of the September 22, 1993 letter at Exhibit C to the Complaint or confirm that an appeal was submitted. 187. This paragraph sets forth legal argument, which requires no response, but insofar as a response may be required, deny. 188. Deny the first two sentences, except to admit the quoted portion of the paragraph which is part of the provision set forth at 22 C.F.R. S 120.4(e). Deny the third sentence. 189. Deny. 190. Deny. 191. This paragraph sets forth legal argument, which requires no response, but insofar as a responses may be require*, deny. 192. Deny. a) Deny. b) Deny. c) Deny. d) Deny. e) Deny. f) Deny. 193. Deny, except to admit that coordination with ACDA concerns those matters within ACDA's area of responsibility. 194. Deny. 195. Deny. 196. Deny the first sentence. The second sentence sets forth legal argument, which requires no response, but insofar as A response may be required, deny. Deny the third sentence, except to admit that the ITAR permitted the plaintiff to appeal the CJ determinations at issue, and defendants have been unable to locate a copy of the September 22, 1993 letter at Exhibit C to the Complaint or confirm that an appeal was submitted as to CJ 191-92, and that plaintiff did not appeal CJ 214-93. 197. Deny. Defendants deny that plaintiff is entitled to the relief for which he prays or to any relief whatsoever. WHEREFORE, defendants, having fully answered, respectfully pray that this action be dismissed with prejudice and that this Court award the defendants such other and further relief as the court may deem just and proper. Respectfully Submitted, FRANK W. HUNGER Assistant Attorney General MICHAEL J. YAMAGUCHI United States Attorney MARY BETH UITTI Assistant United States Attorney 450 Golden Gate Avenue San Francisco, California 94102 Telephone: (415) 556-6181 VINCENT M GARVEY ANTHONY J. COPPOLINO Department of Justice Civil Division, Room 1020 901 E Street, N.W. Washington, D.C. 20530 Tel: (202) 514-4782 Fax: (202) 616-8470 Or 616-8460 Attorneys for the United States CERTIFICATE OF SERVICE I hereby certify that on this the 1st day of May 1995, a copy of the foregoing Answer was served by first class mail, postage prepaid, on: Cindy A. Cohn McGLASHAN & SARRAIL 177 Bovet Road, Sixth Floor San Mateo, California 94402 ANTHONY COPPOLINO