Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 1 of 16 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EMERGENCY COALITION TO DEFEND EDUCATIONAL TRAVEL “ECDET” 1717 Massachusetts Avenue N W Suite 801 Washington D C 20036 and WAYNE S SMITH PH D Adjunct Professor Department of Political Science Latin American Studies Johns Hopkins University 3400 N Charles Street Baltimore MD 21218 and JOHN W COTMAN PH D Associate Professor Department of Political Science Howard University 2400 Sixth Street N W Washington D C 20059 and JESSICA KAMEN Undergraduate Student Johns Hopkins University 2653 Maryland Avenue #6 Baltimore MD 21218 and ADNAN AHMAD Undergraduate Student Johns Hopkins University 220 East 31st Street Baltimore MD 21218 x Case No 1 06-CV-01215 Judge Ellen S Huvelle FIRST AMENDED COMPLAINT FOR JUDICIAL REVIEW OF FINAL AGENCY ACTION AND FOR INJUNCTIVE AND DECLATORY RELIEF Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 2 of 16 ABBY WAKEFIELD Undergraduate Student Johns Hopkins University 1081 Washington Avenue Portland ME 04103 Plaintiffs v UNITED STATES DEPARTMENT OF THE TREASURY and HENRY M PAULSON JR Secretary in his official capacity 1500 Pennsylvania Avenue N W Washington D C 20220 and THE UNITED STATES TREASURY OFFICE OF FOREIGN ASSETS CONTROL and ADAM J SZUBIN Director in his official capacity 1500 Pennsylvania Avenue N W Washington D C 20220 Defendants x and Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 3 of 16 NATURE OF THE CASE 1 This is a case concerning academic freedom – specifically the right of professors and students of higher education to free from government interference organize teach and attend their institutions’ courses conducted abroad It is brought under the First and Fifth Amendments to the United States Constitution and the Administrative Procedure Act “APA” 5 U S C §§ 701-706 In particular this case is about whether the government may dictate which professors of higher education in the United States may teach their institutions’ courses in Cuba how those courses must be structured and what students from the United States may attend those courses The relief sought is twofold 1 A declaration that a specific rulemaking by a sub-department of the Department of the Treasury – the Office of Foreign Assets Control – is invalid on constitutional and statutory grounds 2 an injunction to end the enforcement of restrictions the defendants have imposed by that rulemaking on teaching and attending academic programs organized and conducted in Cuba by accredited United States institutions of higher learning Those restrictions have abridged plaintiffs’ First Amendment right to academic freedom and their Fifth Amendment liberty interest in educational travel In addition to their constitutional infirmities the Treasury Department restrictions on academic programs in Cuba challenged herein are invalid under the APA because they are not rationally related to the exclusively economic purpose of the statute – the Trading With the Enemy Act 50 U S C App § 5 – under which they were promulgated Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 4 of 16 2 JURISDICTION AND VENUE 2 This action arises under the First and Fifth Amendments of the United States Constitution the Trading with the Enemy Act and the APA Federal questions are present in this action under Article III of the Constitution and 28 U S C § 1331 The Court has authority to grant declaratory relief pursuant to 28 U S C § 2201 a 3 Venue is proper in this judicial district under 28 U S C § 1391 e because the events giving rise to plaintiffs’ claims occurred in this district and the lead plaintiff and the defendants are located here PARTIES a Plaintiffs i Association Plaintiff 4 Plaintiff the Emergency Coalition to Defend Educational Travel “ECDET” is a coalition of higher education professionals who are affiliated in academic capacities with accredited colleges and universities across the United States It has over 400 members who are employed by institutions of higher learning in over 45 states A list of ECDET’s members is available at http www ecdet org members htm ECDET is dedicated to protecting the rights of academics within United States colleges and universities to design implement and teach academic programs in Cuba as their professional judgment dictates Its members are harmed by defendants’ restrictions on i who may teach the academic courses of United States academic institutions ii the structure of such courses and iii who may attend those courses as students This harm is ongoing and will continue until defendants are enjoined Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 5 of 16 3 ii Individual Plaintiffs 5 Plaintiff Wayne S Smith Ph D is the Chairman of ECDET as well as an Adjunct Professor of Latin American Studies at Johns Hopkins University He is also Director of Johns Hopkins’ Cuban Exchange Program Dr Smith was for many years a member of the Department of State’s Foreign Service His first posting was as Third Secretary to the United States Embassy in Havana from 1958 until the severance of diplomatic relations in 1961 From 1979-1982 he was Chief of the United States Interests Section in Cuba as a result of the quasi-diplomatic relations established by President Carter In addition to his direct service in Cuba Dr Smith was the Political Officer for the Office of Cuban Affairs at the Department of State from 1964-1966 and was Director of that Office from 1977-1979 When he left the State Department in 1982 he was recognized as that agency’s preeminent expert on Cuba Dr Smith’s many books include The Closest of Enemies A Personal and Diplomatic Account of the Castro Years 1987 In every year from 1997 to 2004 Dr Smith taught intersession courses in Cuban attended by United States students enrolled in the Johns Hopkins Cuban Exchange program The courses were typically of 2-3 weeks’ duration and upon successful completion students were awarded 2-3 credit hours As a direct consequence of the Treasury Department regulations challenged herein Dr Smith is prohibited from teaching Johns Hopkins’ courses in Cuba This harm is ongoing and will continue until defendants are enjoined 6 Plaintiff John Walton Cotman Ph D is an Associate Professor in the Department of Political Science at Howard University His specializations are comparative politics and international relations with a regional focus on the Caribbean Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 6 of 16 4 Dr Cotman has conducted extensive research on Cuba’s foreign relations as they involve regional integration efforts in the Caribbean He has specific expertise in Cuba’s policy toward the English speaking nations of the Caribbean Community and Common Market CARICOM Among his publications is the book Cuban Transitions at the Millennium co-edited with Dr Lois Linger 2000 “Caribbean Convergence Contemporary CubaCARICOM Relations ” will appear in May 2006 in H Michael Erisman and John M Kirk eds Redefining Cuban Foreign Policy The Impact of the “Special Period ” As a direct consequence of the Treasury Department regulations challenged herein Professor Cotman is prohibited from teaching another academic institution’s courses in Cuba This harm is ongoing and will continue until defendants are enjoined 7 Plaintiff Jessica Kamen is an undergraduate student at Johns Hopkins University She is pursuing a degree in Political Science with minors in Spanish Language and Hispanic Culture She expects to graduate in 2007 with a bachelor’s degree Ms Kamen has taken a class taught by plaintiff Professor Wayne Smith “Cuba and U S Decision-Making ” Ms Kamen wishes to develop further her knowledge of U S -Cuba relations through participation in a for-credit course in Cuba If she is to graduate on schedule such a course would have to be inter-sessional that is a course offered between semesters Ms Kamen inquired in the Spring of 2006 as to what courses in Cuba are offered by Johns Hopkins She was told that the university has cancelled all of its programs in Cuba as a result of the OFAC rulemaking of June 16 2004 that is the subject of this Complaint and she therefore has no opportunity to study in that country This harm is ongoing and will continue until defendants are enjoined Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 7 of 16 5 8 Plaintiff Adnan Ahmad is a third-year undergraduate student majoring in political science at Johns Hopkins University Mr Ahmad expects to graduate in 2007 with a degree in Political Science In pursuit of his academic interests in international relations urban policy and developmental economics Mr Ahmad spent a winter intersession in Cuba as a student in the Johns Hopkins University's Cuba Exchange Program The course was of two weeks’ duration and focused on Cuban culture and history While in Cuba studying in the Johns Hopkins' program he was able to conduct research on Cuban housing policy On completion of the program he was credited with three semester hours toward his undergraduate degree His interests in Cuba have developed through coursework at the Johns Hopkins Institute for Policy Studies research at the Housing Authority of Baltimore City and plaintiff Professor Wayne Smith's seminar on U S -Cuban relations As a result of the OFAC rulemaking challenged in this action Mr Ahmad cannot develop further his academic interests in Cuba through study there because Johns Hopkins no longer offers courses in that country This harm is ongoing and will continue until defendants are enjoined 9 Plaintiff Abby Wakefield is a sophomore at Johns Hopkins University Ms Wakefield has taken a class at her university taught by plaintiff Professor Wayne Smith on U S -Cuba relations To deepen and refine her understanding of this subject she wishes to take an inter-sessional Johns Hopkins’ course of two weeks duration in Cuba Ms Wakefield has been informed by Professor Smith in his capacity as Director of Johns Hopkins’ Cuban Exchange Program that Johns Hopkins’ inter-sessional courses will resume immediately upon the rescission of the OFAC rulemaking challenged in this case She has also been informed by plaintiff Smith that she has been accepted for Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 8 of 16 6 enrollment in the first such resumed course Ms Wakefield is at present unable to study in Johns Hopkins’ classes in Cuba because the University canceled its courses in that country as a direct result of defendants’ challenged actions This harm is ongoing and will continue until defendants are enjoined b Defendants 10 Defendant Henry M Paulson Jr is the Secretary of the United States Department of the Treasury and he is named as a defendant in his official capacity Defendant Paulson heads the agency that administers United States economic sanctions imposed on Cuba and has oversight and other responsibility for the sub-department of his agency that promulgated the regulations challenged in this action 11 Defendant Adam J Szubin is the acting Director of the Office of Foreign Assets Control “OFAC” a branch of the Department of the Treasury charged with enforcing the Cuban embargo regulations He is named in his official capacity Defendant Szubin heads the Office that promulgated and enforces the rulemaking that is challenged in this action FACTS GIVING RISE TO THIS ACTION a Current United States Economic Sanctions Imposed on the Republic of Cuba 12 The economic sanctions imposed on Cuba by the United States are authorized and governed by the Trading with the Enemy Act “TWEA” 50 U S C § 5 b That statute has the exclusively economic purpose of embargoing trade with Cuba for the purpose of denying hard currency to that country from United States’ sources 13 Under the authority of the Trading with the Enemy Act the Director of OFAC by delegation from the President of the United States and the Secretary of the Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 9 of 16 7 Treasury promulgates and enforces the regulations that constitute the United States economic sanctions on Cuba commonly referred to as the “Cuban embargo ” 14 The regulations promulgated and enforced by OFAC that are at issue in this action are the Cuban Asset Control Regulations “CACR” They are codified at 31 Code of Federal Regulations “C F R ” Part 515 2005 15 The CACR prohibit unless licensed financial transactions between individuals and entities subject to United States’ jurisdiction and the Cuban government and Cuban nationals 16 The rulemaking challenged herein is codified as an enforceable regulation at 31 C F R § 515 565 17 Under the Trading with the Enemy Act the criminal penalties for violations of OFAC’s Cuban regulations include prison terms of up to ten years and fines totaling up to $250 000 for individuals and $1 000 000 fines for organizations 31 C F R § 501 701 OFAC may also impose civil penalties of up to $65 000 under section 16 of the Trading With the Enemy Act Id 18 Should plaintiffs fail to conform to the regulations challenged in this action they would be subject to the penalties described in paragraph 16 above b OFAC’s June 2004 Restrictions on United States Academic Programs in Cuba 19 On June 16 2004 OFAC published new rules that restricted inter alia who may teach and who may attend academic programs in Cuba arranged and conducted by accredited United States institutions of higher learning OFAC also prescribed the length of such courses in Cuba OFAC’s June 16 2004 rulemaking was published at 69 Federal Register 115 pg 33768 et seq Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 10 of 16 8 20 The rules promulgated by OFAC were described as “interim final” with an effective date of June 30 2004 They have not been modified since that date 21 OFAC’s June 16 2004 rulemaking regarding United States academic programs in Cuba was said in the Federal Register notice of that date to implement certain recommendations contained in a May 1 2004 Report to the President from the Commission for Assistance to a Free Cuba The Commission was established in October 10 2003 pursuant to a directive of President Bush Its members were presidential appointees to various cabinet level agencies The Commission was charged with submitting to the President recommendations on among other things bringing about an end to the current government of Cuba 22 The Commission’s Report contained six chapters with titles ranging from “Establishing the Core Institutions of a Free Economy in Cuba ” to “Modernizing Infrastructure ” Each chapter concluded with a set of recommendations to the President 23 The first chapter of the report was titled “Hastening Cuba’s Transition ” In a subchapter titled “Deny Revenue to the Castro Regime ” the following recommendations were made by the Commission to the President “Eliminate abuses of educational travel by limiting educational travel to only undergraduate or graduate degree granting institutions and only for full-semester study programs or for shorter duration only when the program directly supports U S goals requiring that the travelers be enrolled in a full-time course of study at the licensed institution and requiring that educational institutional licenses be renewed annually rather than bi-annually to allow for improved enforcement of OFAC regulations ” 24 Upon information and belief no enforcement action resulting in an OFAC administered penalty was undertaken against any accredited United States academic Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 11 of 16 9 institution for abuses of the educational travel provisions of § 515 565 of the CACR prior to the modifications to those provisions that are the subject of this action 25 The June16 2004 OFAC rulemaking adopted several of the Commission’s recommendations regarding United States educational programs in Cuba In several instances it exceeded those recommendations Specifically OFAC’s June 16 2004 rulemaking amended § 515 565 of the CACR as follows i A requirement was added that any student who studies in Cuba under an academic institution’s OFAC license must be enrolled in an undergraduate or graduate program at that licensed institution even if his or her own institution would accept the licensed institution’s program in Cuba for credit toward the student’s degree The effect of this requirement is that plaintiff student cannot now enroll in another institution’s program in Cuba but instead can only attend a course in Cuba if his or her college or university has established an educational presence in Cuba and actually offers a course in that country ii A requirement was added that educational programs in Cuba offered as part of a course at an OFAC licensed academic institution must “ include a full term” and in “no instance include fewer than 10 weeks of study in Cuba ” The effect of this requirement is that students can no longer attend intersessional courses in Cuba i e courses scheduled between semesters The result is that a student must effectively delay graduation by a semester in order to take a single course in Cuba of 10 weeks’ duration or longer – but because such courses are unviable for that very reason and are therefore not offered by Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 12 of 16 10 United States colleges and universities plaintiff student is unable to attend an academic course in Cuba at all iii A further modification was that “participation in a structured educational program in Cuba” was limited to “full-time permanent employee s ” of OFAC licensed academic institutions The effect of this requirement is that adjunct professors are now barred from teaching in Cuba At the same time the new regulation bars a professor at one university from teaching a course in Cuba offered by a different university As a result plaintiff Dr Smith because he is an adjunct professor and hence not employed full-time by Johns Hopkins University cannot now teach a course in that University’s Exchange Program in Cuba – a program in which he has taught annually from 1997 until the promulgation of the June 16 2004 OFAC rules challenged in this action The further effect of this requirement is that specialists in certain fields of Cuban studies can no longer teach another institution’s course in Cuba Plaintiff Professor Cotman of Howard University is therefore prohibited from imparting his specialized knowledge of Cuba’s foreign relations to students from other United States colleges and universities who are attending courses in Cuba 26 The June 16 2004 notice in the Federal Register provided a date of August 16 2004 for the receipt of “written comments” on the changes to the rules Any comments received would “be posted without change” on OFAC’s website and “considered in the development of final regulations ” Upon information and belief a number of United States academic institutions submitted comments to OFAC that explained the consequences to their educational programs in Cuba of the rule change No comments ever appeared on the OFAC website Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 13 of 16 11 and no final regulations were published that indicate any consideration was given to any written comments that were submitted 27 According to several surveys almost every United States institution of higher education with an academic program in Cuba reported canceling that program after the OFAC rulemaking of June 16 2004 IRREPARABLE INJURY 28 OFAC’s restrictions on educational travel to Cuba are preventing the faculties and students of United States institutions of higher learning from organizing teaching and studying academic subjects in Cuba Each opportunity to teach and study in Cuba that is foreclosed by OFAC’s rules is a lost educational opportunity that cannot be recovered 29 Because each teaching and learning experience is unique and the benefits of such are incalculable in monetary terms compensatory damages cannot cure the injuries suffered by the plaintiffs and injunctive relief is therefore required FIRST CAUSE OF ACTION OFAC’s Rulemaking Exceeded its Statutory Authority and Constitutes Arbitrary and Capricious Agency Action 30 Plaintiffs repeat and allege the allegations contained in paragraphs 1 through 28 as though fully set forth herein 31 The amendments to 31 C F R § 595 565 issued by OFAC on June 16 2004 violate the Administrative Procedure Act because OFAC the agency that promulgated those amendments exceeded its statutory authority under the Trading with the Enemy Act by imposing restrictions on educational travel to Cuba Because noneconomic restrictions on the activities of United States academic institutions were Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 14 of 16 12 adopted under a statute that has a purely economic purpose those restrictions are not rationally related to the purpose of that statute and are arbitrary capricious and otherwise not in accordance with law and are subject to judicial review under the Administrative Procedure Act 5 U S C § 702 32 Defendants further exceeded the limited authority devolved on them by Congress by restricting educational programs in Cuba in direct contravention of the intention of Congress stated in the Free Trade in Ideas Act of 1994 that the Executive Branch “should not restrict travel or exchanges for informational educational…purposes… between the United States and any other country ” Pub L 103-236 § 525 In the accompanying conference report House Conf Rpt No 103-482 April 25 1994 reprinted in U S Code Cong Admin News 481 June 1994 Congress stated as follows “The provisions of the conference substitute seek to protect the constitutional rights of Americans to educate themselves about the world by communicating with peoples of other countries in a variety of ways such as by sharing information and ideas with persons around the world traveling abroad and engaging in educational cultural and other exchanges with persons from around the world ” SECOND CAUSE OF ACTION Violation of the First Amendment 33 Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 31 as though the same were fully set forth at length herein 34 The amendments to 31 C F R § 515 565 violate plaintiffs’ rights of academic freedom and association as guaranteed by the First Amendment because they dictate directly and indirectly to the faculties and students of United States colleges and Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 15 of 16 13 universities who may teach who may attend what may be taught and how it should be taught THIRD CAUSE OF ACTION Violation of the Fifth Amendment 35 Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 33 as though the same were fully set forth at length herein 36 The amendments to 31 C F R § 515 565 restrict and burden plaintiffs’ Fifth Amendment liberty interest in organizing teaching and participating in educational programs conducted abroad by United States institutions of higher learning PRAYER FOR RELIEF WHERFORE plaintiffs respectfully pray that the Court 1 Issue a judgment pursuant to 28 U S C § 2201 declaring that a Defendants’ actions in amending 31 C F R § 515 565 on June 16 2004 were unlawful as violative of the First and Fifth Amendments to the Constitution of the United States b Defendants’ actions in amending 31 C F R § 515 565 are invalid under the Administrative Procedure Act 2 Enter a preliminary and permanent injunction ordering defendants and their agents representatives successors and those acting in concert with them to cease and desist from enforcing the amendments to 31 C F R § 515 565 promulgated by OFAC on June 16 2004 Case 1 06-cv-01215-ESH Document 21 Filed 07 10 07 Page 16 of 16 14 3 Enter a mandatory injunction requiring defendants to rescind the amendments to 31 C F R § 515 565 described herein that were promulgated on June 16 2004 4 Award reasonable attorney’s fees and costs 5 Grant such other and further relief as may be just and proper Dated July 9 2007 Washington D C Respectfully submitted By s Robert L Muse ROBERT L MUSE D C Bar No 376369 Muse Associates 1320 19th St NW Suite M-2 Washington DC 20036 Telephone 202 887-4990 Facsimile 202 861-6912 E-mail MUSERL@YAHOO COM JOHN T RIELY D C Bar No 391840 4405 East West Highway #603 Bethesda Md 20814 Telephone 301 656-3382 Facsimile 301 656-0729 E-mail JTRIELY@MSN COM Counsel for Plaintiffs