CINDY A. COHN, ESQ. (State Bar No. 145997) McGLASHAN & SARRAIL Professional Corporation 177 Bovet Road, Sixth Floor San Mateo, CA 94402 Telephone: (415) 341-2585 M. EDWARD ROSS, ESQ. (State Bar No. 173048) STEEFEL, LEVITT & WEISS A Professional Corporation One Embarcadero Center, 30th Floor San Francisco, California 94111 Telephone: (415) 788-0900 LEE TIEN, ESQ. (State Bar No. 148216) 1452 Curtis Street Berkeley, California 94702 Telephone: (510) 525-0817 Attorneys for Plaintiff DANIEL J. BERNSTEIN UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DANIEL J. BERNSTEIN, an individual, ) NO. C 95-0582 MHP ) Plaintiff, ) ) PLAINTIFF'S OBJECTION TO EVIDENCE v. ) ) DATE: October 20, 1995 UNITED STATE DEPARTMENT OF ) TIME: 10:30 a.m. STATE, et al., ) DEPT.: Courtroom 11 ) Defendant ) ) ________________________________________) Plaintiff Daniel J. Bernstein hereby objects to the Declaration Of William J. Lowell Department Of State Office Of Defense Trade Controls and the Declaration Of Louis F. Giles National Security Agency (collectively, the "Declarations") submitted by the Defendants in support of Defendants' Motion to Dismiss ("Motion To Dismiss"). The basis for this objection is that the appropriate standards for determining the Motion To Dismiss are those under Federal Rule of Civil Procedure 12(b)(6) which do not permit extrinsic evidence. I. Facts Plaintiff's complaint asserts that his First and Fifth Amendment rights have been violated. In their Motion To Dismiss, the Defendants argue the merits of the case prior to discovery by asserting that jurisdiction is lacking because Plaintiff's claims are not "colorable. " In support thereof, the Defendants rely upon case authority and upon the Declarations. II. Issue May the Defendants, in an attack on subject matter jurisdiction, use the Declarations to establish as "frivolous" issues going to the merits of the case? III. Analysis A constitutional claim is not colorable if it "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or ... is wholly insubstantial or frivolous." Hoye v. Sullivan, 985 F.2d 990, 991 (9th Cir. 1992) (citing Boettcher v. Secretary of HSS, 759 F.2d 719, 722 (9th Cir. 1985) (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946))). The Motion To Dismiss does not contend that Plaintiff's constitutional claims are clearly immaterial and made for the purpose of obtaining jurisdiction. Rather, the Defendants contention must be characterized as an assertion that Plaintiff's constitutional claims are insubstantial or frivolous on their merits. The Ninth Circuit Court of Appeals has established the appropriate standards to resolve jurisdictional issues that intertwine with the merits of a case. In Roberts v. Corrothers, 812 F.2d 1173 (9th Cir. 1987), an inmate sued employees of the Parole Commission alleging violations under the due process clause of the Fifth Amendment. Under applicable statutory authority, the court determined that it had jurisdiction to hear the case if and where the Parole Commission had acted outside of its statutory authority. In this regard, the court determined that the jurisdiction analysis was intertwined with the merits of the case. The court stated: The relatively expansive standards of a 12(b)(1) motion are not appropriate for determining jurisdiction in a case like this, where issues of jurisdiction and substance are intertwined. A court may not resolve genuinely disputed facts where 'the question of jurisdiction is dependent on the resolution of factual issues going to the merits. In such a case, the district court assumes the truth of the allegations in a complaint, unless controverted by undisputed facts in the record .... Dismissal is then appropriate where 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief ... This standard, 'often cited in Rule 12(b)(6) motions,... is equally applicable in motions challenging subject matter jurisdiction when such jurisdiction may be contingent upon factual matters in dispute .... If a district court cannot determine jurisdiction on the basis of a threshold inquiry analogous to a 12(b)(6) motion, the court may assume jurisdiction and go on to determine the relevant jurisdictional facts 'on either a motion going to the merits or at trial.' Id, at 1177 (emphasis added) (citations omitted). The holding in Roberts applies in this case. As in Roberts, this is a case where the issues of jurisdiction and substance are intertwined. The colorability of Plaintiff's constitutional claims is a minimum threshold determination of the merits of the case; and the colorability determination is, at least as argued by the Defendants, dispositive of the jurisdictional issue. Therefore, under Roberts, the colorability analysis in this case should be determined under Rule 12(b)(6) standards, and not as a Rule 12(b)(1) "speaking" motion. With the exception of judicially noticed facts, Rule 12(b)(6) standards do not allow reference to any material outside of the complaint. Hal Roach Studios v. Richard Feiner and Co., 896 F. 2d 1542, 1555 n. 19 (9th Cir. 1990); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (proper to consider judicially noticed facts). The contents of the Declarations as well as the documents attached thereto are not subject to judicial notice under either Federal Rule of Evidence 201(b)(1) or (b)(2). Accordingly, the Declarations and their exhibits may not be considered in assessing the colorability of Plaintiff's complaint. Any reference thereto in the Motion To Dismiss should be stricken, and any assertion or proposition reliant upon such evidence must be discounted accordingly. A. The "Is It Speech?" Argument In an effort to portray all of Plaintiff's First Amendment claim as frivolous, the Defendants attempt to establish that Plaintiff's CJ requests were only for "software"; that software is functional rather than communicative; that the First Amendment only applies to communicative speech, and that Plaintiff's claims to First Amendment rights are therefore frivolous. Def's Memorandum, 10: et seq. In support of that argument, the Defendants assert: The National Security Agency ... confirmed that snuffle is in fact cryptographic software.... See Declaration of Louis Giles ... para. 16, 17. Cryptographic software ... is considered to be a functioning cryptographic product.... Id. para 17. Id. at 1 1: 4-1 1. This reference should be stricken and the argument for which it stands discounted. B. The O'Brien Test. The Defendants assert that the second prong of the O'Brian test is beyond dispute and that any claim to the contrary must be frivolous, i.e., that the government indisputably has a substantial interest in "control[ing] the availability of cryptography from the United States." That proposition is supported wholly by the Giles Declaration and without recourse to judicially noticeable facts. Def's Memorandum, 13:23-28 & 14:1-9. The reliance on the Giles Declaration must be stricken. When it is stricken, there is no evidence remaining to support the government's proposition, and it must be discounted accordingly. The Defendants assert that the third prong of the O'Brien test is beyond dispute and that any claim to the contrary must be frivolous, i.e., that the government's interest in "control[ing] the availability of cryptography from the United States" is "unrelated" to the suppression of expression. Def's Memorandum, 14:17 et seq. That proposition is supported by the subsidiary proposition that category XIII(b)(1) of the USML "focus[es] ... on the function of the commodity ... [and not to] a description of scientific ideas or information related to cryptography.... Rather, it is because of its function ... that [] software is covered by the USML." Def's Memorandum, 14:20-15:5. This latter proposition is taken directly from the Giles Declaration. Id. The references to the Giles Declaration must be stricken and the propositions for which they stand must be discounted accordingly. The Defendants assert that the fourth prong of the O'Brien test is beyond dispute and that any claim to the contrary must be frivolous, i.e., that the government's interest in "control[ing] the availability of cryptography from the United States" is only an incidental restriction on speech and that it is no greater than essential to the furtherance of that interest. Def's Memorandum, 15:7 et seq. In support of that proposition, the Defendants assert that the ITAR excludes cryptographic software that does not pose a risk to national security. And, in support of that proposition, the Defendants rely on the Declarations: Category XIII(b) excludes certain cryptographic software that does not maintain data confidentiality or secrecy ... as well as mass market software products with limited encryption capabilities. See Giles Decl. para. 7-9; Lowell Decl. para. 18 and Tab 20. Id at 16:5-10. These statements from the Declarations must be stricken, and the propositions for which they stand discounted accordingly. C. The Prior Restraint Argument. The Defendants argue that, "as explained above," software is not speech; therefore the First Amendment is not implicated in this case; therefore there can be no colorable claim to an invalid prior restraint; therefore Plaintiff's claim to the contrary is wholly insubstantial. Def's Memorandum, 18:12-17. However, as explained in section IIIA, supra, the Defendants' rely solely on the Declarations for the premise that the submitted material is not speech. Without recourse to the Declarations, the premise cannot be considered beyond dispute. Accordingly, without a valid premise, the Defendants' conclusion must fall. The Defendants' alternative argument is that the prior restraint claim is frivolous because: In its June 29, 1995 letter, the State Department advised plaintiff that its CJ determinations pertained solely to the [] software. Lowell Decl. para. 19 and Tab 21. Likewise, the National Security Agency used the explanatory information submitted by Mr. Bernstein to evaluate the snuffle software, but did not assess that information separately for export control purposes. Giles Decl. para. 14. Thus, the CJ determination did not constitute a restriction on these explanatory items, and there is no basis for plaintiff's prior restraint claim. Id. The June 29, 1995 letter was apparently drafted after Plaintiff had filed his complaint and sent to Plaintiff in anticipatory support of defeating the claim of an unlawful prior restraint; the credibility of the statements therein is entirely circumspect. Notwithstanding its dubious genesis, the June 29, 1995 letter is extrinsic evidence going to the merits of the case that cannot be considered at this stage of the proceedings, and the propositions for which it stands must fall. Finally, the Defendants baldly assert that the June 29, 1995 letter determined that certain information supplied in the CJ request "constitutes technical data," the prior restraint of which is constitutional. Def's Memorandum, 19:18-20:7. The only evidence that the information in question is technical data is the June 29, 1995 letter. The evidence goes to the merits of the case and should not be considered by the Court at this stage. D. The Vagueness and Overbreadth Argument The Defendants assert that the regulations in question are not overbroad because, as applied, they exclude certain types of software. Def's Memorandum, 24:4-10. In support of that proposition, the Defendants rely on statements of policy in the Declarations. Id. The issue of the implementation of the regulations go directly to the merits of the case. Extrinsic evidence on this issue should not be allowed at this stage where the Court is merely determining its jurisdiction to hear the case. IV. Conclusion Because the colorability analysis is intertwined with the merits of this case, Roberts v. Corrothers requires that Rule 12(b)(6) standards apply. Under those standards, the Court cannot consider the Declarations in support of Defendants' Motion To Dismiss. All reference thereto should be stricken and all propositions for which they stand discounted accordingly. Date: September 19, 1995 STEEFEL, LEVITT & WEISS A Professional Corporation (signed: M.E. Ross) By ___________________________ M. Edward Ross Attorneys for Plaintiff DANIEL J. BERNSTEIN [8880.PLEA]F37230 PLAINTIFF'S OBJECTION TO EVIDENCE; No. C-95-0582 MHP Page 6