Andersen

Opinion by Judge Graber; Dissent by Judge Reinhardt.

OPINION

Plaintiffs Andersen and LaMantia, on behalf of themselves and the members of *806 the Institute for Global Prosperity (IGP), sued the United States and its agents. Plaintiffs alleged that the government .conspired to violate their constitutional rights and those of IGP’s members when the government executed eight search warrants and seized, among other things, IGP’s membership lists and literature. Plaintiffs moved for an injunction (1) to prevent the government from conducting further searches or seeking further information, (2) to prevent the government from using the information obtained from search warrants already executed, and (3) to require the government to return the seized property. The district court denied the motion. We dismiss Plaintiffs’ appeal for lack of jurisdiction.

FACTS AND PROCEDURAL HISTORY

Plaintiffs are leaders of IGP, an organization that distributes “educational, political, religious and philosophical materials in the form of books and CDs, much of which is critical of the United States’ financial and taxing policies.” Plaintiffs and other IGP leaders are currently under investigation 1 for…

dissenting:

The majority asserts that it merely applies the clear rule of DiBella and DeMas-sa to the case at hand. The rule is hardly clear and in my view is not applicable to claims of serious, imminent, and irreparable violations of First Amendment rights. Accordingly, I dissent.

The majority treats the appellants’ motion as simply a “functional” 41(e) motion that, under the law of our circuit, is tied to an ongoing criminal proceeding and thus is unappealable. In so doing, the majority fails to consider adequately the nature and importance of the subject matter of the appellants’ motion. The appellants seek to enjoin the government from seizing and making use of their membership lists— lists of the names and other identifying information regarding all current and prospective members of the Institute for Global Prosperity (IGP).

Membership lists have a long and unique history in our constitutional jurisprudence, and the seizure of such items implicates the rights of freedom of association and freedom of speech under the First Amendment. In NAACP v. Alabama, 357 U.S. 449 , 78 S.Ct. 1163 , 2 L.Ed.2d 1488 (1958), the government action at issue, as in this ease, was the…