________________________________________________ ) PHILIP R. KARN, Jr. ) ) Plaintiff, ) ) Civ. A. No. 95-1812-LFO v. ) ) UNITED STATES DEPARTMENT OF STATE; ) e.al. ) Defendants ) ________________________________________________)
On February 27, 1997, the court of appeals remanded this case. A court of appeals judgment filed January 21, 1997, stated:
In light of the recent Executive Order transferring regulatory authority of non-military cryptographic computer source code to the Commerce Department, and the Commerce Department's promulgation of a new regulation under the authority of the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq., we remand this case to the district court to consider the reviewability of and, if appropriate, the merits of appellant's claim under the Administrative Procedure Act. Because "basic tenets of judicial restraint and separation of powers call upon [the court] first to consider alternative grounds for resolution" when the court is asked to answer a question involving the Constitution of the United States, Lamprecht v. FCC, 958 F.2d 382, 389-90 (D.C. Cir. 1992), we do not reach the constitutional issues raised by this appeal.
In a petition for rehearing filed January 28, 1997, with the Court of Appeals, the plaintiff "suggest[ed] that the Court [of Appeals] should amend the judgment and direct the District Court, on remand, to hold an evidentiary hearing in order to develop an adequate record." According to the petition, "the constitutional issues are substantial and raise a number of factual issues, such as the international availability of the source code and the actual impact, if any, on national security of export of this source code. As all parties stated at oral argument, this case will undoubtedly return to [the Court of Appeals] for decision on the constitutional issue, regardless of the District Court decision on remand." The Court of Appeals did not direct the government to answer the petition. An order by the court of appeals filed February 13, 1997, amended the January 21, 1997 judgment to add that "[o]n remand the district court may conduct such evidentiary hearings as it deems appropriate with respect to any disputed issues of material fact as to the application and constitutionality of the new regulation under the International Economic Powers Act, 50 U.S.C. para 1701 et seq.
Pursuant to the instructions of the court of appeals, it is this 18th day of February 1999 hereby
ORDERED: that an evidentiary hearing will be held on the plaintiff's constitutional claims, at a time to be set in a subsequent order; and it is further
ORDERED: that such hearing shall be restricted to the question whether, for the purpose of producing an operating encryption program, there exist material differences between plaintiff's diskette and the corresponding source codes appearing in B. Schneier, Applied Cryptography; and it is further
ORDERED: that not later than 18 days following the entry of this Order on the docket, the parties shall meet and confer in person, or if all parties consent, by telephone. At this meeting the parties shall discuss the anticipated extent and duration of additional discovery, if any, that may be required in preparation for an evidentiary hearing, and a date for the completion of any additional discovery; and it is further
ORDERED: that not later than 11 days following the meeting required by this Order, the parties shall file jointly with the court a statement of all agreements reached, a statement of each parties' position on any disagreements, and a proposed scheduling order. The plaintiff shall have the duty to ensure timely filing of the report. Cf. Local Rule 206(d).