Andersen v. United States

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…