EFTA00191587

1304 
819 FEDERAL REPORTER, 2d SERIES 
FDA, and misled audience by asserting 
charges still subject to investigation. 
18. Injunction 4=223 
FDA advised physician of its position 
with respect to manufacturing practices of 
research institute and, thus, was in compli-
ance with terms of permanent injunction; 
accordingly, Government and employees 
could not be in civil contempt 
Christian P. Di Ferrante, John T. John-
son, Calvin, Dylewski, Gibbs, Maddox, Rus-
sell & Verner, Houston, Tex., for Burzynski 
Cancer Research Institute. 
Margaret A. Harris, Stuart M. Nelkin, 
Nelkin & Nelkin, Houston, Tex., for Juan-
ice Kuharzyk, etc., et al. 
Gerald C. Kell, Atty., U.S. Dept of Jus-
tice, Office of Consumer Lit, Washington, 
D.C., Linda M. Cipriani, Asst. U.S. Atty., 
Henry K. Oncken, U.S. Atty., Frank A. 
Conforti, James R. Gough, Met U.S. Ate 
tys., Houston, Tex., for the U.S. 
Appeals from the United States District 
Court for the Southern District of Texas. 
Before RUBIN, FtANDALL, and 
JOHNSON, Circuit Judges. 
ALVIN B. RUBIN, Circuit Judge: 
Armed with a search warrant, the 
government seized a doctor's patient-treat-
ment records during an investigation to 
determine whether the doctor had violated 
criminal fraud statutes and a criminal stet-
ute forbidding the interstate shipment of 
drugs that had not been approved by the 
Food and Drug Administration. The doc-
tor and some of the patients, as inter-
venors, sought to have the records re-
turned and to obtain damages and other 
relief by filing a counterclaim in a previous-
ly pending civil action filed by the govern-
ment to enjoin interstate distribution of the 
drug. The district court properly held that 
the doctor and his patients have failed to 
establish any basis entitling them to a hear-
t. 21 US.C. § 301, et seq. (1982). 
2. 21 US.C. § 321(p). 
ing on the validity of the search warrant or 
any grounds for finding that the seizure of 
the records was unconstitutional. 
We 
therefore affirm its dismissal of all coun-
terclaims regarding the seizure or contin-
ued government retention of documents 
from the doctor's offices. Because, how-
ever, in the absence of an opportunity to 
conduct discovery regarding their conten-
tion that the government had provided in-
surance companies with false and mislead-
ing information, the doctor and his patients 
have not had a chance to develop facts that 
may entitle them to injunctive relief on that 
score, we remand that counterclaim for 
further proceedings. 
I. 
In 1983, the United States sued Dr. Stan-
islaw R. Burzynski and the Burzynski Can-
cer Research Institute (together referred to 
as Dr. Burzynski) in this civil action seek-
ing to enjoin them from violating the Fed-
eral Food, Drug, and Cosmetic Act' by 
interstate distribution of a product used in 
cancer chemotherapy, antineoplastons, on 
the ground that the antineoplastons were 
"new drugs" within the meaning of the 
Act,' and were being distributed without 
prior approval by the Food and Drug Ad-
ministration. Dr. Burzynski manufactures 
the natural type of antineoplastons from 
urine, and synthetic forms, called antineo-
plastons 10, from various chemicals. The 
government also sought to enjoin the man-
ufacture and distribution of antineopla-
stons on the ground that the drugs were 
adulterated within the meaning of the Act' 
because Dr. Burzynski's manufacturing 
methods, facilities, and controls did not 
comply with the FDA's current good manu-
facturing practice regulations. A number 
of Dr. Burzynski's patients were allowed to 
intervene. After a two-day hearing, the 
district court issued an injunction granting 
most of the relief sought by the govern-
ment It also directed Dr. Burzynski to 
bring his research and manufacturing facil-
ity into compliance with FDA's current 
3. 21 US.C. § 351(a)(2)03). 
EFTA00191827

U.S. I. BURZYNSKI CANCER RESEARCH INSTITUTE 
1305 
Chew 019 Fad 1301 (kb Clr. 1987) 
good-manufacturing procedures, ordering 
ter to make copies. On the advice of his 
the FDA in turn to act promptly on their 
submission for approval. The order, how-
ever, expressly allowed Dr. Burzynski to 
continue manufacturing and prescribing 
the drug in Texas. The court expressly 
retained continuing jurisdiction to enforce 
or modify its order. 
Two years later, in July 1985, as part of 
a criminal investigation based on a referral 
from the FDA to the Department of Jus-
tice, the government applied for and ob-
tained a warrant to search an office com-
plex that, as the warrant stated, housed the 
administrative offices of Dr. Burzynski and 
the Burzynski Research Institute, Ince 
rated, a separate legal entity from Bum 
ski Cancer Research Institute, which h 
been a defendant in the civil action. The 
application for the warrant was supported 
by the affidavit of FDA Compliance Offi-
cer, Kenneth P. Ewing. Ewing stated that 
the application was based on FDA inspec-
tions and investigations of Dr. Burzynski 
and the Institute, information supplied by 
insurance companies that had received 
claims from Dr. Burzynski, information 
supplied by the surviving spouse of one of 
Dr. Burzynslci's patients, and information 
supplied by confidential informants. 
In terms set forth in full in the footnote,' 
the warrant authorized a search for and 
seizure of records and other property that 
reflected distribution of antineoplastons 
outside the State of Texas and other 
records that would show the antineopla-
stens had been and were being distributed 
in interstate commerce in violation of Title 
21, United States Code S31(d), the court 
injunction, and Title 18, United States 
Code, Sections 286, 287, 871, 401, 1001, 
1841, and 1505. During the search Dr. 
Burzynaki's employees were allowed to 
take records to a commercial copying cen-
4. Records and other property. including anti. 
ncoplastons, of Stanislaw FL Burrinski. M.D., 
Burzynski Research Institute, Incorporated. 
Cameron Frye. and North American Consul. 
tains, Limited, that reflect: 
(a) distribution of antineoplastons outside the 
State of To= 
(b) the true addresses of persons to whom anti. 
neoplastons have been and arc being distribut-
ed: 
employees, Dr. Burzynski himself "decided 
to give away filing cabinets along with the 
records" in order to protect the records. 
Since the execution of the search warrant, 
Dr. Burzynski has been allowed to install a 
copying machine in the FDA offices in 
Houston where the seized patient treat. 
ment records arc being held and has made 
copies of those treatment records that he 
desires. 
After the warrant bad been executed, 
Dr. Burzynski and the Burzynski Research 
Institute, Inc. filed a counterclaim in this 
civil action seeking damages, injunctive re-
lief, and contempt orders against the 
government and certain FDA employees, 
including the FDA Compliance Officer Ew-
ing, Sharyn Miller, an investigator who had 
assisted Ewing in executing the warrant, 
and other unknown agents of the FDA and 
the United States. Certain named patients 
of Dr. Burzynski were given leave to file 
their own counterclaim as intervenors and 
sought a temporary restraining order com-
manding return of the records and other 
emergency relief. 
During a twelve-day hearing on the mo-
tion for a temporary restraining order and 
contempt ruling, Dr. Burzynski testified 
that he had continued to treat patients in 
Texas. Based on what some of them told 
him, he suspected that antineoplastons 
were supplied from the Institute to patients 
in other states, but he testified that he did 
not believe it would be possible to detect 
such shipments with certainty unless every 
one of the Institute's employees had "a spy 
on his back." After the hearing was com-
pleted, the district court denied all of the 
motions. 
The government then responded to the 
counterclaims by moving for their dismis-
(c) patient treatment, patient accounts, and pa-
tient billings; and 
(d) insurance claims and receipt of insurance 
payments that show that anilneoplastons have 
been and are being distributed in interstate 
commerce in violation of Titk 21 United States 
Code, Section 331(d) and the injunction of this 
Court and that evidence violations of Title IS, 
United States Code, Sections 286, 287, 371, 601, 
1001. 1311. and 1505. 
EFTA00191828

1806 
819 FEDERAL REPORTER, 2d SERIES 
sal for failure to state a claim for which 
relief could be granted or, in the titans-
tive, for summary judgment In a brief 
order, which referred to the evidence ad-
duced in the earlier hearing on the motion 
for a temporary restraining order, the 
court dismissed the counterclaims. 
II. 
[11 Dr. Burzynski and the patients con-
tend that the district court impermissibly 
consolidated the hearing on the motions for 
TRO, return of property, and contempt (the 
preliminary motions) with trial on the mer-
its of their counterclaims. The simple fact 
is that no such consolidation occurred. At 
the close of the hearing on the preliminary 
motions, the district court orally denied 
those motions. Thereafter, the court en-
tered a nine-page order setting forth its 
findings with respect to the preliminary 
motions and its legal basis for denying 
those motions. Subsequent to the hearing 
on the preliminary motions, the govern-
ment filed its motion to dismiss for failure 
to state a claim or, alternatively, for sum-
mary judgment on all of the counterclaims. 
In an order separate from the order deny-
ing the preliminary motions, the district 
court dismissed the counterclaims. 
The district court did state in the later 
order that, because the issues raised in the 
counterclaims "raise legal questions which 
were decided against the Defendants and 
Intervenors (Dr. Burzynski and the pa-
tients] in the hearing of October 23, 1985" 
(the hearing on the preliminary motions), it 
would not repeat its discussion of those 
issues. in other words, the district court 
simply elected not to restate in its dismissal 
order legal analysis it had already set forth 
in its denial of the preliminary motions. In 
deciding, based on that legal analysis, to 
dismiss the counterclaims, the district court 
did not conduct a trial on the merits, much 
less impermissibly consolidate trial with 
the hearing on the preliminary motions. 
5. 731 Fid 281, 283 (5th Cir.1984). 
6. United States Y. Shenvood 312 US 584, 586, 
61 S.Ct. 767, 769, 85 LEd. 1058 (1941k Zapata 
v. Smith, 437 Fld 1024, 1025 (5th Cir.1971); 
Caner v. UMW, 411 F.2d 767, 770 (5th Ctr. 
I2I The patients also attack the dismis-
sal order as being "pithy to the point of 
being incomplete" and ask this court to 
vacate it and remand the case for further 
consideration. In support of that request, 
they rely on Myers v. Gulf Oil Corpora-
tion,' in which we held that a district 
court's explanation that the defendant 
should be granted summary judgment "be-
cause the Plaintiff has failed to state a 
claim on which relief can be granted" was 
insufficient to explain that court's reason-
ing. The patients' argument focuses on 
the length of the district court's dismissal 
order rather than on its content Taken 
together, the two orders adequately 
present for our review both the actions 
taken by the district court and its reasons. 
Claims for Monetary Relief 
Dr. Burzynski and the patients seek mon-
etary damages from the United States 
FDA, FDA employees Ewing and 
(both individually and in their officira-
pacities), and unknown agents of the Unit-
ed States and the FDA. We discuss these 
claims separately. 
A. Claims Against the Government 
131 Neither the United States, its agen-
cies, nor its officials acting in their official 
capacities, may be sued without the United 
States' specific consent's The Federal Tort 
Claims Act 7 permits certain claims to be 
asserted against the United States, as sov-
ereign, and its agents but exacts the filing 
of an administrative claim for relief as a 
jurisdictional prerequisite to suit. No such 
claim has been filed. Therefore, the dis-
trict court properly dismissed the damage 
claims against the United States, the FDA, 
and federal officials acting in their official 
capacities. Because the requirement of ad-
ministrative review is a jurisdictional requi-
site, it would not have been appropriate 
merely to stay the suit until a claim could 
1969). an. denied 397 US. 941.90 SQ. 953. 25 
LEdid 121 (1970). 
7. 28 liS.C. § 2671, et seq. (1982). 
EFTA00191829

B. Claims Against Individual 
Government Employees 
In seeking monetary damages against 
the government employees as individuals, 
Dr. Burzynski and the patients asserted 
both common law tort claims and claims 
under the Constitution. All of the dam-
ages claims asserted against individual 
government employees related to and arose 
out of the application for and execution of 
the criminal search warrant for Dr. Bur-
zynski's business premises, and all are 
barred by immunity doctrines. 
1. Waiver of immunity Defenses 
(41 Dr. Burzynski and the patients con-
tend that the government cannot rely on 
immunity defenses for the individuals 
named as defendants because such affirma-
tive defenses may not be raised by means 
of a motion to dismiss or for summary 
judgment 
The circuit courts disagree 
whether the affirmative defenses listed in 
Fed.R.Civ.P. 8(c) must be asserted in the 
defendant's answer or may be raised for 
the first time in a motion to dismiss or 
other diapositive motion.* In Funding 
Systems Leasing Corp. v. Pugh, a panel of 
this court stated that a defendant may 
raise an affirmative defense by a motion 
for summary judgment only when that mo-
tion "is the initial pleading tendered by 
[the] defendant." 11 
Although the rule 
quoted above suggests that any prior 
pleading will defeat the defendant's right 
to raise an affirmative defense in a summa-
ry judgment motion, in the context of the 
decision as a whole it becomes apparent 
that the Funding Systems opinion was re-
ferring only to pleadings responsive to the 
substantive issues charged. The Funding 
Systems decision itself specifically noted 
that the defendant in that case had failed 
& Gregory v. Mitchel( 634 F.2d 199. 203-04 (5th 
Cir.1981). 
9. See C. Wright 
and Pnxedure 11277, 
pare Williams 
and A. 
Federal Practice 
a 
29 (1969). Com-
Murdoch, 330 F.2dt  741 (3d 
M 530 F.2d 91, 96 (5th Cir.1976). 
Cir.1964); Continental Collieries, Inc. 
11. Id 
rr, 
130 F.2d 631 (3d Cir.1942) with 15ber 
Sin. 
U.S. I BURZYNSKI CANCER RESEARCH INSTITUTE 
1307 
Cho sell, Pad III, (Mbar. tell7) 
be filed, as Burzynski sought, once the 
to allege his affirmative defense in any 
issue was raised' 
"responsive pleading." 
The decision, 
therefore, did not address the issue wheth-
er prior pleadings that are unresponsive to 
the substance of the allegations should pre-
clude the possibility of raising affirmative 
defenses in a subsequent responsive plead-
ing. Because no other panel of this court 
has had occasion to apply the rule that 
Funding Systems sets forth, the proper 
interpretation of the rule remains undecid-
ed, and we adopt what we believe to be the 
most principled interpretation of the stan-
dard: An affirmative defense may be 
raised on a motion for summary judgment 
only if that motion is the first pleading 
responsive to the substance of the allega-
tions. 
(51 Although in this case the govern-
ment filed a brief memorandum in opposi-
tion to Dr. Burzynski's original counter-
claim and several preliminary motions be-
fore filing its motion to dismiss or for 
summary judgment, none of those filings is 
a responsive "initial pleading" within the 
meaning of Funding Systems. 
The 
government's initial memorandum is not a 
"pleading" and did not purport to respond 
to the substantive charges of the counter. 
claim. It presented only a legal analysis of 
the procedural posture of the case, raising 
issues about whether the counterclaim was 
filed in accordance with the Federal Rules 
of Civil Procedure and about the propriety 
of using civil counterclaims as a means of 
hampering criminal investigations. Sim-
ilarly, the government's ensuing motions—
which are "pleadings" within the meaning 
of the Rules—were not responsive to the 
substance of the counterclaims, but sought 
only to preserve counter-defendants' rights 
pending preparation of an answer or dia-
positive motion. Because the government, 
therefore, set forth its affirmative argu-
ment in its first responsive pleading, it has 
preserved its immunity defenses. 
Chill Prairie Oil Ca. 35 FSupp. 296 (E.D.Olda. 
1940). We/ 120 F.2d 746 (10th Cir.1941). 
EFTA00191830

1308 
819 FEDERAL REPORTER, 2d SERIES 
2. Common Law Tort Claims 
(6) Federal employees are absolutely 
immune from common law tort suits for 
damages arising out of the performance of 
either mandatory or discretionary acts that 
are, as the Supreme Court stated in Barr 
Matteo, "within the outer perimeter of the 
(employees.) line of duty." 12 This immuni-
ty extends even to allegedly malicious 
acts." 
171 It is difficult to sort out the com-
mon law claims of Dr. Burzynski and the 
patients from their constitutional claims. 
Reading the counterclaims as broadly as 
possible, however, it. appears that, with re-
spect to the application for and execution 
of the search warrant, Dr. Burzynski as-
serted common law claims for abuse of 
process and for some type of tortious inter-
ference with his relationship with his pa-
tients, while the patients asserted a com-
mon law claim for abuse of process. 
Ewing's duties as a compliance officer 
with FDA included reviewing investigative 
records of FDA and other evidence gath-
ered by FDA to determine whether there 
were apparent violations of the FDC Act or 
other laws, making recommendations for 
appropriate civil or criminal legal action, 
conducting investigations, and collecting of 
information and samples. FDA compliance 
officers and investigators also are re-
quired, in conjunction with a United States 
Marshal, to execute criminal search war-
rants. Moreover, Ewing was the person 
within FDA chiefly responsible for the in-
vestigation of Dr. Burzynski. 
Acting upon information gathered in the 
course of previous FDA investigations of 
Dr. Burzynski and others, and upon infor-
mation supplied to him by named individu-
lif
d confidential informants, Ewing, 
and other federal employees pur-
l?, Ban v. Maned, 360 US. 564, 575, 79 S.Ct. 
1335. 1341, 3 L.Edld 1434 (1959). Accord Ev-
an v. Wright 582 F.2.<1 20, 21 (sth Or.19711). 
13. Barr, 360 U.S. at 575.79 SQ. 1341; Nortaenj 
McShane, 332 F.2d 855.858 (5th ar.I964), 
. 
denied 380 U.S. NI, 85 S.Ct. 1345, 14 L.E.elid 
274 (1965). 
14. 403 US. 388, 91 S.Q. 1999, 29 L.Ed.26 619 
(1971). 
sued a new investigation of Dr. Burzynski 
to determine if Dr. Burzynski had violated 
the Act and other federal criminal statutes 
by failing to adhere to the requirements of 
the permanent injunction entered by the 
district court in May 1983. That investiga-
tion included the application for and execu-
tion of the criminal search warrant. 
The activities of Ewing, 
and the 
other federal employees wi Meet to the 
search warrant were clearly within the 
scope of their duties. Therefore, they are 
absolutely immune from suit for the com-
mon law torts allegedly committed in con-
nection with the search warrant, and dis-
missal of the damage claims based on those 
alleged torts was proper. 
3. Constitutional Tort Claims 
(81 In Sirens v. Six Unknown Named 
Agents of Federal Bureau of Narcotics," 
the Supreme Court held that federal offi-
cers who, acting under color of their feder-
al authority, but without a warrant, en-
tered and searched the plaintiffs apart-
ment and arrested him, could be personally 
sued for monetary damages for deprivation 
of the plaintiff's rights under the fourth 
amendment. The holding of Bivens was 
extended to deprivations of fifth amend-
ment due process rights in But: v. Econo-
mou,15 to violations of the right to equal 
protection as embodied in the fifth amend-
ment In Davis v. Postman," and to the 
eighth amendment's prohibition against 
cruel and unusual punishment in Carlson 
v. Green." 
Shortly after its recognition of a right of 
action for constitutional torts under Bi-
vent, the Supreme Court began to develop 
the defense of qualified immunity to pro-
tect federal employees against liability for, 
15. 438 U.S. 478, 98 S.Ct. 2694, 57 LEd.2d 895 
(1978). 
16. 442 US. 228. 99 S.Ct. 2264. 60 LEd.2d 846 
(1979). 
17. 446 US. 14, 100 ta. 1468, 64 LEd.2d IS 
(1980). 
EFTA00191831

U.S. I BURZYNSKI CANCER RESEARCH INSTITUTE 
1309 
On 819 12.241 2301 (560. 1W) 
and the burden of defending themselves 
against, alleged violations of constitutional 
rights. As first formulated in Butz v. Zoo-
nomou, qualified immunity had both an 
objective and subjective element the feder-
al official was entitled to immunity if then 
were reasonable grounds to believe that 
the challenged conduct did not violate a 
constitutional right (the objective element) 
and the official undertook the challenged 
conduct in a good-faith belief that the con-
duct was valid (the subjective element)." 
On further consideration, however, the 
Court in Harlow v. Fitzgerald stated, 
"[t]he subjective element of the good-faith 
defense frequently has proved incompatible 
with our admonition in Butz that insub-
stantial claims should not proceed to tri-
al."" Therefore, the Court eliminated the 
subjective element of the qualified immuni-
ty defense. Government officials perform-
ing discretionary functions, it held, are 
shielded from liability for civil damages 
whenever their conduct does not violate 
dearly established statutory or constitu-
tional rights of which a reasonable person 
would have known? 
Reading Dr. Burzynski's counterclaim 
most broadly, it appears to allege that Ew-
ing violated the fourth amendment by ob-
taining the criminal search warrant for Dr. 
Burzynski's business premises "to accom-
plish purposes outside the proper scope of 
a search warrant," i.e., "for the apparent 
ulterior purpose of forcing [Dr. Burzynski] 
out of business." The government con-
tends, however, that the warrant was is-
sued by an independent judicial officer, the 
United States Magistrate, and that under 
this court's decision in Jureczki v. City of 
It 438 U.S. at 495-98, 507. 98 S.Ct. at 2905-07, 
2911. 
19. Maslow v. Flegerald. 457 US. 800, 815-16, 
102 5.O. 2727, 2737. 73 LEdid 396 (1982). 
20. 457 US. at 817-18, 102 S.Ct. at 2737-38. See 
oho David v. &hew, 468 US. 181 104 5.Ct. 
3012, 3018, 82 LEd.2d 139 (1984); Mitchell v. 
Forsyth, 472 U.S. 511, 535 a. 12, 105 S.Ct. 2106, 
2820 a. 12. 86 LEd.2d 411 (198.5): Saldana v. 
Can, 684 F.2d 1159, 1163 (5111 CIr.1982), an. 
derde4 460 US. 1012, 103 S.Ct. 1253, 75 LEd.2d 
481 (1983). 
Seabrook, Texas," "[a] judge's determina-
tion of probable cause breaks the chain of 
causation and insulates the initiating party 
from liability."" Dr. Burzynski counters 
by correctly pointing out that the Supreme 
Court rejected the rationale underlying 
that broadly-stated rule in Malley v. 
Briggs." 
In Malley, the Court held that an officer 
may not rely on the judgment of a judicial 
officer in finding that probable cause exists 
if "a reasonably well-trained officer would 
have known that his affidavit failed to es-
tablish probable cause and that he should 
not have applied for the warrant" 24 This 
holding, however, does not signal a retreat 
from the principle that, to give rise to 
liability, the actions of a public official 
must be objectively unreasonable in the 
light of clearly established law. Malice, 
therefore, remains "irrelevant in obtaining 
a warrant where probable cause exists."" 
Dr. Burzynski's counterclaim alleges no 
misstatements or omissions in Ewing's affi-
davit that would have obviated probable 
cause if corrected. Indeed, Dr. Buraynski 
in effect supported its correctness by testi-
fying that, based on the affidavit as well as 
his own independent suspicions, he suspect-
ed that antineoplastons were being trans-
ported out of Texas, that the Institute has 
been obliged to refund hundreds of insur-
ance overpayments resulting from insur-
ance companies being billed for services 
already paid for by patients, and that on at 
least one occasion an insurance claim was 
submitted for an office visit when the pa-
tient did not actually come to the Institute. 
Dr. Burzynski's counterclaim does con-
tain an allegation that the search warrant 
21. 760 F.2d 666.668 (5th Cir.19115), apt den/id 
— US, 
106 5.O. 1261, 89 LPAL2t1 571 
O984 
22. id (citing Smith x Coma; 670 9.241 522. 
526 (3111 
opt. &Rued 459 U.S. 1137. 103 
S.Ct 772. 74 L.Ed.2d 984 (1982)). 
23. 475 US. 335, —.106 S.Ct. 1092, 1098-99, 89 
LEd.2d 271 (1986). 
24. /d (footnote omitted). 
25. /antler 760 F.2d se 668. 
EFTA00191832

1810 
819 FEDERAL REPORTER. 2d SERIES 
"was not supported by affidavits and evi-
dence sufficient to establish probable 
cause." Based on no more than this unsup-
ported charge, and despite the admonition 
of the Supreme Court in Franks v. Dela-
ware" that to mandate an evidentiary 
hearing such a charge must also assert 
deliberate falsehood or reckless disregard 
for truth and must be accompanied by an 
offer of proof, the district court allowed a 
lengthy cross-examination of Ewing re-
garding his affidavit Nonetheless, the dis-
trict court found no basis even to proceed 
with a hearing on the validity of the search 
warrant, much less to justify a finding that 
the warrant was not validly supported. In 
this circuit, once a government employee 
has asserted qualified immunity and estab-
lished that the allegedly tortious acts were 
undertaken within the scope of his discre-
tionary authority, the burden shifts to the 
party seeking damages to show that quali-
fied immunity does not bar recovery? Dr. 
Burzynski has failed to suggest any factual 
basis upon which a trier of fact could find 
that probable cause was lacking or that 
agent Ewing's action in seeking the search 
warrant was objectively unreasonable. 
Therefore, the individual defendants were 
entitled to have those charges against them 
dismissed. 
In addition, both Dr. Burzynski and the 
patients asserted constitutional claims with 
respect to the government employees' exe-
cution of the warrant Both Dr. Burzynski 
and the patients challenged the warrant as 
overly broad (not properly limited in scope), 
Dr. Burzynski alleging a fourth amend-
ment violation and the patients a fifth 
amendment violation. Additionally, the pa-
tients alleged that seizure of their medical 
records was unreasonable, in violation of 
the fourth amendment, and infringed their 
constitutional rights to privacy, to life, and 
26. 438 US. 154, 171-72, 98 S.Ct. 2674. 2684, 57 
LEd.2d 667 (1978). 
27. See SaWane v. Cana. 684 F.2d at 1163 n. 14 
(chins Garth v. Rowlan4 678 Fld 1264, 1271 
(5th Cir.1982); Rheatune v. Tex. Dept of Public 
Safety. 666 F2d
 930 (5th ar.1982); United 
Carolina Bank 
Board of Tutu, 665 F.2d 553. 
562 (5th Cir.I 
k Baker 
Norman, 651 F.2d 
1107. 1121 (5th Cir.1981))• 
to obtain medical treatment Again, these 
claims could survive the government de-
fenses of qualified immunity only if Dr. 
Burzynski and the patients demonstrated a 
reasonable basis to believe that the execu-
tion of the search warrant violated "clearly 
established law."" They simply failed to 
do so. According to the counter-claimants' 
own witnesses, the documents seized were 
only those described in the warrant Since 
the seizure of these specific documents was 
thus authorized, the seizure was in accord 
with, rather than in contravention of, clear-
ly established law. 
The patients also assert that seizure of 
their treatment records, which belonged to 
Dr. Burzynski or the Institute and were in 
the possession of the Institute, invaded 
their right to privacy. That they have a 
privacy interest in such documents" does 
not establish the immunity of the doc-
uments from seizure. The patients do not 
cite a single case in which seizure of doc-
uments authorized by a warrant has been 
found to be an unconstitutional invasion of 
privacy. The absence of such citations is 
not surprising since a warrant issued upon 
"[p]rior review by a neutral and detached 
magistrate is the time-tested means of ef-
fectuating Fourth Amendment rights." i 0
In any event, seizure of the patients' treat-
ment records pursuant to a warrant did not 
violate clearly established law so as to sub-
ject the government agents to individual 
liability. 
The patients also assert that seizure of 
their treatment records deprived them of 
their right to life and to medical treatment 
This claim was unsupported by factual alle-
gations creating any basis to believe that 
the treatment of patients would be sub 
stantially hindered. 
All of the parties 
agree that the records are available for 
28. Marlow j 
Fitzgerald, 457 U.S. at 818, 102 
S.Ct. at 27 . 
29. See In re Search Warrant, 810 F.2d 67, 71 (3d 
Cir.1987). 
30. United Stares v. United States District Court, 
EA Mich., 407 US. 297, 318, 92 S.Ct. 2125, 
2137, 32 1—Ed.2d 752 (1972). 
EFTA00191833

US. I. BURZYNSKI CANCER RESEARCH INSTITUTE 
Canaan Fad 1301 (StaCtr. 1987) 
copying. As the district court determined 
Both the patients and Dr. Burzynski ac-
below, the patients have shown no basis to 
believe that "an opportunity would not be 
made available to [Dr. Burzynski] to secure 
a copy of those documents in sufficient 
time to treat his patients effectively...." 
In sum, the federal employees involved 
in obtaining the warrant for the search of 
the business premises occupied by Dr. Bur-
zyriski and in executing that warrant fol-
lowed established constitutional proce-
dures. They violated no norms of clearly 
established law. As federal agents per-
forming discretionary functions within the 
scope of their duties, they were entitled to 
qualified immunity shielding them from lia-
bility for their acts. The district court's 
dismissal of the constitutional claims 
against the federal employees was there-
fore proper. 
IV. Injunctive Relief 
The counterclaims requested injunctions 
requiring return of the records seized pur-
suant to the search warrant, prohibiting 
use of the seized records by the govern-
ment, prohibiting government contact with 
patients and their insurance carriers, pro-
hibiting the government from interfering 
with Dr. Burzynski's treatment of the pa-
tients with antineoplastons, and prohibiting 
the government from disseminating alleg-
edly false or misleading information re-
garding antineoplastons. 
A. Return of the Seized Records 
Fed.R.Crim.Proc. 41(e) provides the ave-
nue by which a person may obtain return 
of property seized by the government. Be-
cause neither Dr. Burzynski nor the pa-
tients stated any basis for a finding that 
the records were illegally seized and the 
patients did not even allege a basis for 
finding that were entitled to lawful posses-
sion of the records, the district court was 
required to dismiss the injunctive claims 
for return of the records, whether under 
Rule 41(e) or its general equity jurisdiction. 
31. Dickens v. Lewis, 750 F.2d 1251, 1254 (5th 
Cir.1984). 
32. Id (citing Rakes v. Illinois, 439 U.S. 128, 99 
S.Ct. 421. 426-27, 58 LEd.2d 387 (1978)). 
1311 
knowledged that the medical records were 
seized from Dr. Burzynski's business prem-
ises. On appeal, the patients state that 
their "property interest [is] in the informa-
tion contained in their medical treatment 
records." Thus, the patients' own allega-
tions demonstrate that they were not "enti-
tled to lawful possession of the property" 
which was seized and, therefore, that they 
did not have standing to seek return of the 
seized records. 
Since the medical records were seized 
from Dr. Burzynski's business premises, 
the patients would have had standing to 
I
ch enge the search and seizure only if 
th 
had a "legitimate expectation of priva-
cy 
[those] premises," a business belong-
ing to others.31 Even if the seized medial 
records had been the property of the pa-
tients, "[t]he fact that [their) property be-
came the 'target' of the search is irrele-
vant."ts 
(91 The patients attempt to ground 
their asserted privacy interest in their 
medical records on a physician-patient privi-
lege as codified in Texas state law, Tex. 
Rev.Civ.StatAnn. art. 44956 § 5.08(b) (Ver-
non Supp.1985). 
The seizure of the 
records, however, took place pursuant to 
search warrant as part of a criminal inves-
tigation, and was therefore exempt from 
the Texas shield. In the context of federal 
criminal proceedings, no physician-patient 
privilege exists.'3 Therefore, the patients 
had no legitimate expectation of privacy in 
the records maintained by Dr. Burzynski 
that could be asserted against the search 
warrant and no standing to seek the return 
of the records. 
flO) Even if the patients had alleged 
circumstances sufficient to afford them 
standing to seek return of the medical 
records, they alleged no basis on which the 
district court could have found the seizure 
of the records unlawful. The patients ar-
33. United States v. Meagher, 531 Fid 752, 753 
(5th Cir.), ten. denied, 429 US. 853, 97 S.Ct. 
146, SO LEd.2d 128 (1976): United States v. 
Mancuso, 444 F.2d 691. 694-95 (5th Cir.1971). 
EFTA00191834

1312 
819 FEDERAL REPORTER, 2d SERIES 
gue that their sole challenge to the warrant 
authorizing the seizure was to the face of 
the warrant, not the supporting affidavit 
Yet the only specific deficiency alleged by 
the patients was that the warrant autho-
rized the seizure of virtually all medical 
records at the Institute while the support-
ing affidavit stated that patients' true 
home addresses were recorded only on pa-
tient billing and insurance records. The 
patients' argument rests on the premise 
that the only purpose of the warrant was 
to "ascertain evidence of interstate ship-
ment of antineoplastons." The warrant 
was sought, however, to authorize the sei-
zure of evidence of numerous criminal of-
fenses in addition to interstate distribution 
of antineoplastons. Since the seized medi-
cal records were relevant to all of those 
possible violations the warrant was facially 
valid, and the patients stated no basis for 
the district court to find seizure of the 
medical records unlawful, a prerequisite to 
mandating their return." 
Unlike the patients, Dr. Burzynski did 
attack the affidavit supporting the war-
rant. However, he neither alleged nor 
proved a single fact on which the district 
court could have found the affidavit defi-
cient and the resulting warrant and seizure 
unlawful. 
B. Use of the Seized Records 
[11) Both the patients and Dr. Burzyn-
ski seek to enjoin the government from 
providing the records seized pursuant to 
the search warrant to any other agents or 
agencies of the United States Government 
or to any commercial entity or to any other 
entity or person. While not alleging any 
basis to believe that the government had 
made improper use of the seized records or 
was likely to do so, Dr. Burzynski and the 
patients sought an injunction that, if grant, 
ed, would have totally prevented the 
government from pursuing its criminal in-
vestigation of Dr. Burzynski insofar as the 
34. Fed.R.O1m.P. 41(e). 
35. United States v. Co.t, 342 Fid 167, 171 (5th 
Cir.) (en basic). cert. denied, 381 US. 935, 85 
S.O. 1767 (1965). 
seized records constituted evidence of 
crimes or suggested avenues of investiga-
tion. 
Aa an incident to the separation of pow-
ers founded in the Constitution, "the courts 
are not to interfere with the free exercise 
of the discretionary powers of the attor-
neys of the United States in their control 
over criminal prosecutions!" x Further-
more, to the extent that an injunction 
against providing the seized documents to 
"any other person or entity" would prohibit 
presenting the documents to a grand jury, 
such an injunction would improperly inter-
fere with the mission of the grand jury 
which "must be free to pursue its investi-
gations unhindered by external influence or 
supervision ...." " 
"The Fifth Amend-
ment guarantees that no civilian may be 
brought to trial for an infamous crime 'un-
less on a presentment or indictment of a 
Grand Jury.' This constitutional guarantee 
presupposes an investigative body 'acting 
independently of either prosecuting attor-
ney or judge....' " 
Since neither Dr. Burzynski nor the pa-
tients alleged even one arguably improper 
use of the seized records, the district court 
had no proper choice but to dismiss the 
requests to enjoin use of the seized records 
by the government 
C. Communications with Patients or 
Insurance Companies 
(12) Similarly, the requests of Dr. Bur-
zynski and the patients that the govern-
ment be enjoined from communicating with 
Dr. Burzyriski's present and former pa-
tients and their insurance carriers, would, 
if granted, have impeded or totally frus-
trated the government's ability to pursue 
its investigation of, among other things, 
interstate distribution of antineoplastons, 
fraudulent over-billing and double-baling of 
insurance companies, and false statements 
to the government 
Such an injunction 
36. United Stater v. Dionino, 410 US. 1, 17, 93 
S.Ct. 764, 773, 35 L-Edid 67 (1973). 
37. /I at 16, 93 S.Q. at 772 (quoting Stirone v. 
United Stater, 361 US. 212, 218, 80 S.Ct. 270, 
273. 4 L.Ed.2d 252 (1960)). 
EFTA00191835

U.S. I BURZYNSKI CANCER RESEARCH INSTITUTE 
1313 
ateas5M F.2d 1301 (Mbar. 1987) 
would obviously have interfered with "the 
free exercise of the discretionary powers of 
the attorneys of the United States in their 
control over criminal prosecutions."" 
D. Alleged Interference with Treatment 
of Patients and Dissemination of 
False Information 
Dr. Burzynski and the patients also 
asked the district court to enjoin the 
government from interfering with Dr. Bur-
zynsid's treatment of the patients with an-
tineoplastons, both intrastate and inter 
state. 
[IS) The interference alleged included 
the seizure of patient records pursuant to 
the search warrant, the refusal of the FDA 
to grant investigational new drug status 
(IND) to the form of antineoplastons Dr. 
Burzynski is currently using, and the dis-
semination of false or misleading informa-
tion about Dr. Burzynski and his treatment 
to insurance companies and current or pro-
spective patients. Many of these claims 
are patently groundless. Just as the alle-
gations of unlawful seizure of patient 
records cannot support injunctive relief re-
quiring return of the seized records, they 
cannot form a cognizable basis for claiming 
that the government has or would interfere 
impermissibly with Dr. Burzynski's treat-
ment of patients solely within the State of 
Texas. There simply has been no genuine 
issue of such a threat raised. 
[141 Similarly, neither Dr. Burzynski 
nor his patients have alleged facts suggest-
ing that the FDA has acted improperly by 
denying antineoplaston AIO IND status. 
Although, in his brief before this court, Dr. 
Burzynski contends that he has never ar-
gued that he is entitled to IND status for 
his new drug but only that the FDA has 
treated his application differently than oth-
er IND applications, the language of his 
counterclaims belles that assertion. In his 
countercomplaint, Dr. Burzynski asserted 
38. United Stara, Cox, 342 Fld at 171. 
39. See Rutherford 
American Medical Associa-
tion. 379 F.2d 641 
th ar.1967), art. denied 
389 US. 1043. 89 S.Ct. 787, 19 LF_d1d 835 
(1968). 
$10F.20-30 
that "Dr. Burzynski's patients will be irrep-
arably harmed if this Court [the district 
court) fails to require the FDA to grant 
IND status to the Antineoplaston Al0 com-
pound ... in that many patients who could 
be helped by the use of antineoplastons will 
be denied their Constitutional right of ac-
cess to Dr. Burzynski's treatment...." 
The district court, therefore, construed his 
counterclaim correctly. 
Dr. Burzynski's own testimony demon-
strates that the FDA notified him in Febru• 
ary 1984 that it found deficiencies in his 
IND application and required additional 
data. He candidly admits that he has nei-
ther provided the data requested nor ex-
plained to the FDA his reasons for consid-
ering that data unnecessary. Thus, he has 
failed to make a good faith effort to obtain 
an IND or to exhaust his administrative 
remedies. His claim for injunctive relief 
with respect to his IND was, therefore, 
properly dismissed.* 
[15) The patients indirectly challenge 
FDA's action with respect to the IND, 
alleging that their "constitutional right to 
travel freely between the states ... is be-
ing infringed by the Government and its 
agents through their continued refusal to 
allow the interstate distribution and ship-
ment of antineoplastons." 
Because Dr. 
Burzynski and his patients have failed to 
allege facts suggesting that IND status 
was improperly withheld, this claim was 
also dismissed properly. Moreover, to the 
extent that the patients' counterclaim can 
be construed as a challenge to the authori-
ty of the FDA to bar interstate distribution 
of unapproved drugs, the claim is friv-
olous.* 
1161 The patients' separate claim for in-
junctive relief against interference with in-
terstate distribution of antineoplastons 
based on the asserted "constitutional right 
to obtain medical treatment that is encom-
passed by their right to privacy," was also 
so. Set United Stair v. Lehman, 464 F2d 61. 
73-74 (Stb Cir.), cat. dm ied 409 US. 950, 93 
S.Ct. 271, 34 LEd.2d 220 (1972). 
EFTA00191836

1314 
819 FEDERAL REPORTER, 2c1 SERIES 
unsupportable. The patients asserted that 
they should be free to obtain antineopla-
stens interstate because of "the unavaila-
bility of any other treatment that would be 
effective in treating their cancer." Similar 
claims were raised and rejected in United 
States v. Ruthinfordu 
As in the present case, the plaintiffs in 
Rutherford wore cancer patients, alleged 
to be terminally ill, desiring treatment with 
an unapproved drug, and arguing that the 
restrictions on interstate distribution of 
new drugs imposed by the Act should not 
be allowed to interfere with their access to 
the drug. The Supreme Court rejected the 
patients' claims. The Court agreed with 
FDA that the new drug approval provisions 
of the Food, Drug, and Cosmetic Act spe-
cifically applied to the situation presented. 
(171 In one respect, however, the fact 
that Dr. Burzynski and his patients were 
denied any opportunity for discovery has 
unfairly prejudiced their opportunity to al-
lege facts in support of counterclaims that 
may entitle them to relief. The district 
court found that at least two statements 
made by Ewing in response to inquiries 
about Dr. Burzynski and his treatment 
were "near to inappropriate," exceeded 
"his duties and responsibilities as an officer 
of the FDA," and misled his audience by 
asserting, as established fact, charges still 
subject to investigation. The district court 
also noted that, by showing that such state-
ments were made to at least one insurance 
company, Dr. Burzynski and his patients 
demonstrated that "the above conduct has 
had an impact on their ability to treat pa-
tients because over fifty percent of [the 
Institute's] income is derived from insur-
ance payments." Whether additional ex-
amples of such questionable conduct exist 
and, if so, in numbers justifying injunctive 
relief can only be discerned through dis-
covery. The claim seeking an injunction to 
stop the government from disseminating 
false or misleading information to outside 
41. 442 US. 544, 99 S.O. 2470, 61 LEd.2d 68 
(1479). 
42. United States v. Haney Cancer Clinic. 198 
Fld 273, 280 (5th Cir.1952), cerr. dented, 346 
US. 897, 74 SCI. 220. 98 LEd. 398 (1953). 
parties, therefore, should not have been 
dismissed until Dr. Burzynski and his pa-
tients had an opportunity to discover the 
scope of the problem and to provide evi-
dence that an injunction is necessary. 
Of course, nothing in this opinion should 
be construed as suggesting that the FDA 
acted improperly by expressing its position 
with regard to the status of antineopla-
stons, i.e., that they are drugs that may not 
lawfully be introduced into interstate com-
merce because they are not approved by 
the FDA or the subject of an acceptable 
1ND. Such information is not false, mis-
leading, or inaccurate. 
The FDA also cannot be required to com-
municate what the patients view as "favor-
able" information. According to Dr. Bur-
zynski and some of his patients, relevant 
"favorable information" is that antineopla-
ston therapy has proved beneficial to some 
cancer patients. The views of Dr. Burzyn-
ski and his patients, however, do not consti-
tute "favorable" information on which 
FDA may properly rely. "[W]hen the sub-
ject of investigation is the existence of 
cancer, the personal testimony of the lay 
sufferer is entitled to no weight...... 4I 
Furthermore, as the Supreme Court found 
in Weinberger v. Hynson, Westeott and 
Dunning, Ine.,43: 
(FDA's] strict and demanding standards, 
barring anecdotal evidence indicating that 
doctors "believe" in the efficacy of a 
drug, are amply justified by the legisla-
tive history (of the Food, Drug, and Cos-
metic Act). The hearings underlying the 
1962 Act show a marked concern that 
impressions or beliefs of physicians, no 
matter how fervently held, are treacher-
ous. 
I
The Civil Contempt Claim Against 
the Government and its Employees 
[181 The same conduct by the govern-
ment and its employees alleged as the basis 
43. 412 US. 609, 619. 93 &Ct. 2469. 2478, 37 
LEd.2d 207 (1973) (footnote omitted). 
EFTA00191837

OWENSBY & KM 
Clue ims119 Pad 
for the damages and injunctive claims of 
Dr. Burzynski and the patients formed the 
basis of their requests to bold the govern-
ment and its employees in civil contempt 
Dr. Burzynski and the patients apparently 
do not appeal from the dismissal of their 
civil contempt claims. Their briefs to this 
court assign no error to the dismissal of 
those claims. But, even if they do appeal 
this ruling, the requests for a finding of 
civil contempt were also without founda-
tion, and the district court's dismissal of 
those claims was proper. 
The permanent injunction, of which the 
government and its employees were alleged 
to be in contempt, imposed no restrictions 
or obligations on the government or its 
employees, except that FDA was directed 
to review, evaluate, and appraise the manu-
facturing practices of the Burzynski Re-
search Institute and promptly advise Dr. 
Burzynski of any violations of current good 
manufacturing practices. 
Although nei-
ther Dr. Burzynski nor the patients raised 
that issue in their counterclaims as a basis 
for a contempt citation or any other relief, 
the issue was raised at the hearing on Dr. 
Burzynski's motion for a temporary re-
straining order. However, as the record 
shows, FDA has advised Dr. Burzynski of 
its position with respect to his manufactur-
ing practices, and so is in compliance with 
its obligations under the permanent injunc-
tion. 
VI. 
The patients who appear in this suit are 
in a critical plight They seek any treat-
ment that offers them the slightest hope, 
for they think it better to exhaust any 
possibility than to resign themselves to a 
fate that seems otherwise certain. The 
FDA has been assigned the duty of protect-
ing such desperate persons from deception, 
abuse, and exploitation and of assuring 
that the treatment they are given is safe 
and effective. It cannot perform these 
tasks if those professing to offer new cures 
refuse to work with the system and obey 
the law, whether their motives be noble or 
ill. This court, therefore, must not allow 
sympathy for the plight of persons suffer-
ing from cancer to cause us to interfere 
TIKOS, INC .011 C.I.R. 
1315 
1315 (551aOr. I 
hastily with the mission of FDA or to dis-
tract us from our duty to uphold the law. 
For the reasons given, the judgment of 
the district court is AFFIRMED in part, 
REVERSED in part, and REMANDED for 
further proceedings consistent with this 
opinion. 
OWENSBY & KRITIKOS, INC., Petro-
Marine Engineering. Inc. & Subsidiar-
ies, John W. Owensby & Dolores G. 
Owensby, Theodore A. ICritikos & Be Jo 
Kritikoe, Petitioners, 
I 
COMMISSIONER OF INTERNAL 
REVENUE, Respondent 
No. 86-4078. 
United States Court of Appeals, 
Fifth Circuit 
June 26, 1987. 
Two shareholder employees of three 
closely held corporations disputed determi-
nation of Commissioner of Internal Reve-
nue that amounts paid to the individuals 
exceeded reasonable compensation for ser-
vices. The United States Tax Court found 
that amounts paid as compensation for two 
taxable years were in part unreasonable. 
Taxpayers appealed. The Court of Ap-
peals, Wisdom, Circuit Judge, held that 
finding that compensation paid to individu-
als in part constituted a dividend, rather 
than compensation for services rendered, 
was not clearly erroneous. 
Affirmed. 
1. Internal Revenue 4=3321, 8323 
A corporation may deduct compensa-
tion paid to employees only to the extent it 
EFTA00191838

OLAGUES v. RUSSONIELLO 
791 
ate u770 F24 791 (INS) 
either a clear probability or well-founded 
fear of persecution. The applications for 
withholding of deportation and political 
asylum were properly denied. 
DENIED. 
Jose J. OLAGUES, on Behalf of himself 
and all others similarly situated, 
Plaintiffs-Appellants, 
U 
Joseph P. RUSSONIELLO, individually 
and In his capacity as United States 
Attorney for the Northern District of 
California, et al., Defendants-Appellees. 
Jose J. OLAGUES, on Behalf of himself 
and all others similarly situated; His-
panic Coalition for Human Rights, Chi-
nese for Affirmative Action, and San 
Francisco Lation Voter Registration 
Education Project, Plaintiffs-Appel-
lants. 
Joseph P. RUSSONIELLO, individually 
and in his capacity es Untied States 
Attorney for the Northern Ca; O'Mal-
ley, William A., individually and in his 
capacity as District Attorney for Con-
tra Costa County; Underwood, Lon, in-
dividually and in his capacity as regis-
trar of voters for Contra Costa County; 
Smith, Arlo, individually and in his ca-
pacity as District Attorney for San 
Francisco County, et aL, Defendants-
Appellees. 
Nos. 82-4427, 83-2581. 
United States Court of Appeals, 
Ninth Circuit. 
Argued and Submitted Sept. 12, 1984. 
Decided Sept. 3, 1986. 
Citizen and organizations promoting 
voting rights of Americans with ethnic 
backgrounds sued for damages and declar-
atory injunction relief arising from a pre-
liminary investigation into possible viola-
tions of the Voting Rights Act. The Unit-
ed States District Court for the Northern 
District of California, Spencer Williams and 
Stanley A. Weigel, M., dismissed injunction 
claims and granted summary judgment in 
favor of the United States Attorney and 
county officials. Appeal was taken. The 
Court of Appeals, Wallace, Circuit Judge, 
held that (1) the citizen did not have stand-
ing to challenge the investigation, but the 
organizations did; (2) there were no ex-
traordinary circumstances to warrant in-
junctive relief; (3) the organizations were 
not entitled to a declaratory judgment; (4) 
there was not basis for an injunction 
against county officials which would, in 
effect, enjoin the United States Attorney 
from pursuing his investigation; and (5) 
there was no implied private action under 
the Voting Rights Act for damages. 
Affirmed. 
Nelson, Circuit Judge, concurred in 
part and dissented in part with opinion. 
1. Federal Courts 4=12 
Claims for equitable relief become 
moot when challenged activity ceases if 
subsequent events show that activities 
could not reasonably be expected to recur, 
unless there is possibility of continuing, 
present adverse effects. 
2. Federal Courts 4=,12 
Voluntary cessation of challenged ac-
tivity by government official is insufficient 
to render case moot if legality of chal-
lenged practices is still in dispute because 
official is free to return to his old ways. 
3. Federal Courts 4=12 
Case or controversy for purposes of 
Article Ill may remain live following cessa-
tion of challenged activity if actions are 
capable of repetition and of evading re-
view. U.S.C.A. Cont. Art. 3, § 1 et seq. 
EFTA00191839

792 
770 FEDERAL REPORTER. 2d SERIES 
4. Federal Courts iag 3.20 
Action challenging investigation by 
United States Attorney as to whether reg-
istered voters were American citizens was 
not rendered moot by Attorney's termi-
nation of investigation where Attorney ter-
minated investigation solely because it 
failed to produce evidence supported any 
further investigative activities, Attorney 
argued vigorously that his actions were 
lawful and there was no showing that in-
vestigation conducted in same manner 
against same groups would not recur. 
U.S.C.A. Const Art. 3, § I et seq. 
5. Injunction es.114(2) 
Citizen did not have standing to seek 
to enjoin prosecutorial activities concerning 
whether noncitizens were registered to 
vote where possibility that voter registra-
tion records would again be scrutinized was 
entirely speculative and no official action 
was taken other than verifying citizenship 
status of voters. 
6. Injunction 4=114(2) 
Organizations which conducted voter 
registration drive among ethnic groups had 
standing to challenge investigation into 
whether registered voters were citizens 
where they alleged that their voter regis-
tration and education efforts had been hin-
dered as direct result of challenged investi-
gation, organizations asserted that both 
they and their members were threatened 
with possible prosecution, interests orga-
nization sought to protect were "germane" 
to their purposes and relief sought did not 
require participation of individual members 
in suit U.S.C.A. Const. Art. 3, § 1 et seq. 
7. Injunction '126 
Although case may not be moot, plain-
tiff still has burden of showing that eq-
uitable relief is necessary and mere possi-
bility of future injury is insufficient to en-
join official conduct. 
8. Federal Courts 42414 
There must be strong showing of 
abuse of discretion to overturn denial of 
injunctive relief against official conduct. 
9. Injunction *0,110 
District court had jurisdiction over 
complaint seeking to enjoin preliminary in-
vestigation of United States Attorney into 
whether registered voters were citizens. 
10. Administrative Law and Procedure 
aw701 
District court has no power to monitor 
executive investigations before case or con-
troversy arises. 
IL Injunction 4=105(1) 
There were no extraordinary circum-
stances to justify injunctive relief against 
investigation by United States Attorney 
into citizenship status of recently reg-
istered, foreign-born voters. 
12. Constitutional Law e=213.1(1) 
Language-based classification is not 
equivalent of national origin classification 
and does oot denote suspect class requiring 
heightened 
scrutiny. 
U.S.C.A. 
Conn. 
Amend. 14. 
13. Constitutional Law 4=42(8) 
Although voting is considered funda-
mental right, no "burden" was placed on 
anyone's right to vote by United States 
Attorney's preliminary investigation into 
citizenship status of recently registered 
foreign-born voters so as to require height-
ened scrutiny. U.S.C.A. Const.Amend. 14. 
14. Constitutional Law 4=42(8) 
United States Attorney's investigation 
into citizenship status of recently reg-
istered foreign-born voters and circum-
stances surrounding their registration did 
not violate First Amendment rights of or-
ganizations which conducted registration 
drives among ethnic groups. 
U.S.C.A. 
ConstAmend. 1. 
15. Constitutional Law eana.1(2) 
When no "suspect class" is involved 
and no fundamental right is burdened, ra-
tional-basis test is used to determine legiti-
macy of classification. 
U.S.C.A. Const 
Amend. 14. 
16. Elections 4=324 
Voter fraud investigation limited to re-
cently registered foreign-born voters seek-
EFTA00191840

OLAGUES v. RUSSONIELLO 
793 
Ole as 770 F2d 791 (1985) 
ing bilingual ballots was reasonably limited 
ligation into citizenship status of those vote 
in both its scope and its use of classifies- 
era where there was no intent to intimidate 
lions. U.S.CA. ConstAmend. 14. 
voters. 
17. Injunction *' 18t78 
Organizations which conducted voter 
registration drives among ethnic groups 
were not entitled to preliminary injunction 
against United States Attorney's investiga-
tion into possible voter fraud resulting 
from registration of noncitizens. 
18. Declaratory Judgment 4=s5 
Decision whether to grant declaratory 
relief is within sound discretion of district 
court. 28 U.S.C.A. §§ 2201, 2202. 
19. Declaratory Judgment u=s4 
Declaratory relief may be appropriate 
even when injunctive relief is not. 28 U.S. 
CA. §§ 2201, 2202. 
20. Declaratory Judgment s=r84 
Organizations which conducted voter 
registration drives among ethnic groups 
were not entitled to declaratory judgment 
against investigation of citizenship status 
of recently registered foreign-born voters 
seeking bilingual ballots where organiza-
tions were not generally hindered from 
pursuing their lawful voter registration ac-
tivities at time of imminent criminal prose-
cution. 28 U.S.C.A. §§ 2201, 2202. 
21. Injunction 4..105(1) 
Where county officials forwarded 
names of recently registered foreign-born 
voters who requested bilingual ballots at 
specific request of United States Attorney, 
who was investigating possible voter fraud, 
there was no basis for injunction against 
county officials which would, in effect, en-
join United States Attorney from pursuing 
his investigation. 
22. Elections 0012(4) 
There was no violation of Voting 
Rights Act (42 U.S.C.A. § 1971(b); Voting 
Rights Act of 1965, §§ 11(b), 208, as 
amended, 42 U.S.C.A. §§ 19731(b). 1973aa-
la) in county officials' conduct of forward-
ing names of recently registered foreign-
born voters who requested bilingual ballots 
to United States Attorney as part of invert-
23. Elections no12(9) 
There is no implied private right of 
action for violations of Voting Rights Act. 
42 U.S.C.A. § 1971(b); Voting Rights Act 
of 1965, §4 11(b), 203, as amended, 42 U.S. 
C.A. 4419131(6), 1973aa-la. 
24. Civil Rights C•13.8(3. 6) 
United States Attorney and county of-
ficials who participated in investigation of 
recently registered foreign-born voters 
who requested bilingual ballots, for pur-
poses of determining whether voter fraud 
occurred, were entitled to at least qualified, 
good-faith immunity from liability under 
civil rights statute. 42 U.S.C.A. § 1983. 
Joaquin G. Avila, Ronald T. Vera, Alan 
L. Schlosser, American Civil li berties Un-
ion, San Francisco, Cal., and Kathleen A. 
Pool, California Rural Legal Assistance, 
Marysville, Cal., for plaintiffs-appellants. 
William T. hfcGivens, and John D. O'Con-
nor, Tarkington, Carey, O'Connor & 
O'Neill, San Francisco, Cal., for defend-
ants-appellees. 
Appeal from the United States District 
Court for the Northern District of Califor-
nia. 
Before WALLACE, ALARCON, and 
NELSON, Circuit Judges. 
WALLACE, Circuit Judge: 
Olagues, a citizen, and certain organiza-
tions promoting the voting rights of Ameri-
cans with Hispanic or Chinese ethnic back-
grounds in the San Francisco Bay area (the 
organizations) sued for damages and de-
claratory and injunctive relief arising from 
a preliminary investigation by the United 
States Attorney and various state officials 
into possible violations of the Voting 
Rights Act of 1965, 42 US.C. § 1973i(c), (d) 
(the Act), which prohibits the illegal regis-
tration of voters or conspiracies to illegally 
register voters. Olagues and the organize-
EFTA00191841

794 
770 FEDERAL REPORTER, 2d SERIES 
lions claim violations of their rights under 
the Act and the first, fifth, fourteenth, and 
fifteenth amendments to the Constitution. 
The district court dismissed the injunctive 
claims on the ground that it lacked jurisdic-
tion to enjoin an investigation by the Unit-
ed States Attorney. The district court also 
granted summary judgment in favor of the 
United States Attorney and the state offi-
cials on the remaining claims. We have 
jurisdiction pursuant to 28 U.S.C. 
1291. 
and we affirm. 
In March and April of 1982, United 
States Attorney Russoniello received infor-
mation from the Santa Clara County district 
attorney indicating that a substantial num-
ber of foreign-born individuals who had 
recently registered to vote were not United 
States citizens. The information was con-
tained in a study of recent voter regis-
trants whose primary language was not 
English. Many of the noncitizen regis-
trants apparently believed or were told that 
they were entitled to vote on the basis of 
marriages to United States citizens or a 
long period of residence in the United 
States. Russoniello also was informed that 
the Spanish translation of the voter regis 
t-ation form erroneously stated that regis-
trants "should be" a United States citizen, 
rather than stating one "must be" a citizen. 
Russoniello then sent a letter on April 
19, 1982, to law enforcement officers and 
voter registrars in nine local counties with-
in his jurisdiction requesting their coopera-
tion in obtaining a sampling of names from 
voter registration lists in order to deter-
mine whether the improper registration 
problem noticed in Santa Clara County was 
more widespread. The letter requested the 
forwarding of 25 names, randomly select-
ed, of recently registered, foreign-born vot-
ers who requested bilingual ballots. The 
letter indicated that upon receipt of the 
sampling, the names would be forwarded 
to the Immigration and Naturalization Ser-
vice (INS) to determine each individual's 
citizenship status. He recommended that 
those individuals who the INS indicated 
were not citizens be interviewed thereafter. 
Russoniello stated that he did not intend to 
prosecute any improperly registered you 
en, but that he would consider prosecuting 
individuals who deliberately conspired to 
register unqualified voters if evidence of 
such impropriety surfaced. 
The local officials responded by forward-
ing the names of 168 persons, one of whom 
was Olagues, from the public voting lists 
which were subsequently checked by the 
INS. At Russoniello's request, local offi-
cials then conducted voluntary interviews 
with some of the 113 individuals whom the 
INS could not positively identify as citizens 
to determine their citizenship and, if the 
individuals proved not to be United States 
citizens, the circumstances surrounding 
their registration. No further investiga-
tion occurred. 
II 
Because the investigation has terminat-
ed, we first must determine whether there 
remains a live controversy for purposes of 
granting equitable relief. 
There is no 
question that a controversy remains with 
respect to damages. 
(1) We begin this analysis with the rec-
ognition that "[p]ast exposure to illegal 
conduct does not in itself show a present 
case or controversy" for equitable relief. 
OShea v. Littleton, 414 U.S. 488, 495, 94 
&Ct. 669, 675, 38 L.Ed.2d 674 (1974) 
(0Shea). Claims for equitable relief there-
fore become moot when the challenged ac-
tivity ceases if subsequent events show 
that the activities "could not reasonably be 
expected to recur," Chinese for Affirma-
tive Action v. Leguennec, 580 F2d 1006, 
1009 (9th Cir.1978), art denied, 439 U.S. 
1129, 99 S.Ct. 1047, 59 LEd.2d 90 (1979), 
unless there is a possibility of "continuing, 
present adverse effects." 0Shea, 414 U.S. 
at 496, 94 S.Ct 676. 
(2, 3) There is a heavy burden, how-
ever, on the defendant to show that there is 
no reasonable expectation of repetition. 
United States v. W.T. Grant Co., 345 U.S. 
629, 633, 73 S.Ct 894, 897, 97 LEd. 1308 
EFTA00191842

OLAGUESI 
cite es 
(1953) (W.T. Grant). Voluntary cessation 
of the challenged activity by the official is 
insufficient to render a case moot if "the 
legality of the challenged practices" is still 
in dispute because "(t)he defendant is free 
to return to his old ways." Id. at 682, 78 
S.Ct. at 897. See Allee v. Medrono, 416 
U.S. 802, 810-11, 94 S.M. 2191, 2197-98, 40 
L.Ed.2d 566 (1974); Waning a HeImerich 
& Pare, Ina, 823 U.S. 87, 43, 65 S.Ct. 11, 
14, 89 LEd. 29 (1944); Pomerantz v. 
County of Los Angeles, 674 F.2d 1288, 
1291 (9th Cir.1932) (claim is moot if subse-
quent "events have completely and irrevo-
cably eradicated the effects of the alleged 
violation"). Moreover, a case or controver-
sy for purposes of article III may also 
remain live following cessation of the chal-
lenged activity if the actions are capable (1) 
of repetition and (2) of evading review. 
See, e.g., Super Tire Engineering Co. v. 
McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 
1698, 40 L.Ed.2d 1 (1974). 
Finally, the 
existence of "a public interest in having the 
legality of the practices settled ... mili-
tates against a mootness conclusion." 
W.T. Grant, 345 U.S. at 632, 73 S.Ct. at 897 
(emphasis added). 
lel Applying this framework to the 
case before us, we fmd several factors 
pointing toward the continuing existence of 
a case or controversy for purposes of eval-
uating plaintiffs' equitable claims. First, 
the United States Attorney did not volun. 
tarily cease the challenged activity because 
he felt that the investigation was improper. 
Rather, Russoniello terminated the investi-
gation solely because it failed to produce 
evidence supporting any further investiga-
tive activities. Russoniello has at all times 
continued to argue vigorously that his ac-
tions were lawful. 
Second, there has been no showing that 
an investigation conducted in the same 
manner against the same groups would not 
recur. Although Russoniello and the state 
officials point out that the Director of the 
Census now has determined that these 
counties no longer must provide bilingual 
ballot materials, see 49 Fed.Reg. 25,887-88 
(June 25, 1984), Olagues and the organize-
RUSSONIELLO 
795 
F2d 791 (1910) 
lions correctly observe that election offi-
cials in San Francisco, Santa Clara, Alame-
da and Monterey counties will continue to 
provide the same bilingual ballot materials 
as previously required by section 203(b) of 
the Voting Rights Act, 42 U.S.C. 0 1978aa-
le()). Thus, Russoniello will continue to 
have the means available to conduct an 
investigation similar to the one challenged 
here. It. is immaterial that the tools useful 
for discriminatory purposes are furnished 
by the state rather than by the federal 
government what matters is whether fed-
eral officials may utilize them. 
ello is certainly empowered to in-
election fraud; it would not be 
unreasonable to believe that a similar in-
vestigation might arise at some point in the 
future. Thus, the same issues are capable 
of repetition. At the same time, these in-
vestigations, such as the one in the present 
case, may be of very short duration, mak-
ing Im effectively capable of evading 
re vie 
by an appellate court £g., Ne-
braska Press Association v. Stuart, 427 
U.S. 539, 546-47, 96 S.Ct 2791, 2796-97, 49 
L.Ed.2d 688 (1976). 
Other factors also suggest a live contro-
versy. The organizations argue that their 
organizational efforts have been handi-
capped as a result of the fear engendered 
by this investigation. They contend that 
unless the legality of the investigation is 
determined, they may continue to suffer 
these chilling effects despite the termi-
nation of the initial investigation. Further-
more, there is a significant public interest 
in addressing both the appropriateness of 
permitting a challenge to a federal investi-
gation, which raises separation-of-powers 
concerns, and the appropriateness of the 
investigatory methods employed, which 
raises voting rights and first amendment 
concerns. 
This case is distinguishable from O'Shea 
and City of Los Angeles v. Lyons, 461 U.S. 
95, 103 S.Ct. 1660, 76 L.Ed.2d 675 (1983) 
(Lyons). In O'Shea, the plaintiffs chal-
lenged certain arrest and bail procedures 
employed by state law enforcement and 
judicial officials. In order to be subject to 
EFTA00191843

796 
770 FEDERAL REPORTER, 2d SERIES 
these alleged unlawful procedures, how-
ever, one would first have had to violate 
some law and then have been arrested. 
414 US. at 4%, 94 S.Ct. at 676. The 
Supreme Court found that plaintiffs failed 
to show any case or controversy because it 
presumed that plaintiffs would obey the 
law, and therefore they never would be-
come subject to any unlawful procedures in 
the future. Id. at 497, 94 S.Ct- at 676. 
Unlike the situation before us, the O'Shea 
plaintiffs did not claim any constitutional 
right to act as they had prior to their 
arrest See id at 498, 94 S.Ct. at 677. In 
Lyons, the plaintiff challenged the use of 
chokeholds by Los Angeles police on arres-
tees. The Court again held that there was 
no case or controversy for equitable relief 
because whether Lyons would again be ar-
rested and subjected to a chokehold a sec-
ond time was purely speculative. See 461 
U.S. at 105-06. 103 S.Ct at 1667. 
Here, Olagues and the organizations 
claim that the actions of the officials have 
interfered with their constitutionally pro-
tected first amendment activities in reg-
istering voters. Unlike °Shea and Lyons, 
neither Olagues nor the organizations had 
to break any law in order to be subjected to 
alleged unlawful conduct by the officials. 
Certainly the legality of the investigation 
at issue remains in dispute; both sides 
continue forcefully to advocate their posi-
tions. Rusaoniello has never seriously at-
tempted to make any showing that the 
challenged investigative techniques will 
never be employed again; rather, he vigor-
ously defends his investigative tactics. 
Thus, he fails to meet his "heavy burden" 
of showing mootness. 
W.T. Grant, 345 
U.S. at 633, 73 S.Ct at 897. 
III 
We next examine the standing of Ola-
gues, a foreign-born citizen who requested 
bilingual election materials, and the orga-
nizations, which claim that the challenged 
investigatory activities will "effectively 
deny their right to participate in the elec-
toral process." 
We recently summarized the law relating 
to standing required by article III of the 
Constitution: 
Standing is a threshold question in ev-
ery case before a federal court. Before 
the judicial process may be invoked, a 
plaintiff must "show that the facts al-
leged present the court with a 'case or 
controversy' in the constitutional sense 
and that the) is a proper plaintiff to raise 
the issues sought to be litigated." A 
party seeking to invoke the court's au-
thority must demonstrate "such a per-
sonal stake in the outcome of the contro-
versy as to assure that concrete adverse-
ness which sharpens the presentation of 
the issues upon which the court so large-
ly depends...." 
The question of whether the plaintiff 
has standing involves both constitutional 
and prudential limitations. The constitu-
tional limitations of article III involve 
three separate but interrelated compo-
nents: first, a "distinct and palpable" 
injury to the plaintiff, be it "threatened 
or actual"; second, a "fairly traceable 
causal connection" between that injury 
and the challenged conduct of the de-
fondant; and third, a "substantial likeli-
hood" that the relief requested will re-
dress or prevent the injury. 
McMichael 
County of Napa, 709 F.2d 
1268, 1269-7 (9th Cir.1983) (citations omit-
ted). 
[51 Olagues 
would 
generally 
have 
standing under the Act if he is an "aggriev-
ed person," broadly defined as one who has 
suffered an injury. See Allen v. State 
Board of Elections, 393 U.S. 544, 554-57, 
89 S.Ct 81'7, 825-27, 22 LEt1.24i 1 (1969) 
(Allen). He has alleged an injury: his 
request for s bilingual ballot triggered an 
investigation of his records by the FBI and 
the INS and an interview by the local Dis-
trict Attorney. Juxtaposed against the 
holding in Allen, however, is the general 
bar against the invocation of federal equity 
jurisdiction in criminal prosecutions when 
the plaintiff is not being prosecuted or 
threatened with prosecution. See Linda 
R.S. v. Richard D., 410 U.S. 614, 617-19, 
EFTA00191844

(1978); Younger v. Harris, 401 U.S. 37, 
50-64, 91 S.Ct. 746, 763-55, 27 L.Ed.2d 669 
(1971) (Younger). In order to harmonize 
these conflicting strains of precedent aris-
ing in this particular factual circumstance, 
we find it necessary to focus on the nature 
of the relief sought by Olagues. 
Here, Olagues is not seeking any affirm-
ative injunctive relief in order to permit 
him to vote, such as demanding that he be 
listed as an eligible voter. Rather, he 
seeks to enjoin prosecutorial activities 
which are focused on persons other than 
himself. Moreover, it does not appear that 
Olagues has demonstrated that he would 
suffer irreparable harm without equitable 
relief. Unlike the organizations, who al-
lege that their current voter registration 
efforts are being hindered by the fear that 
they may possibly be subject to a similar 
investigation in the future, the possibility 
that Olagues's voter registration records 
will be scrutinized again is entirely specula-
tive. Olagues thus faces the brinier of 
Lyons, which emphasizes that the irrepara-
ble harm showing is "a requirement that 
cannot be met where there is no showing of 
any real or immediate threat that the plain-
tiff will be wronged again." 461 U.S. at 
111, 103 S.Ct. at 1670. 
Under these circumstances, we conclude 
that Olagues has failed to overcome the 
prudential limitations on standing that are 
particularly important when evaluating 
claims for equitable relief regarding a crim-
inal investigation. The injuries he alleges 
are insufficient to warrant such an intru-
sive remedy. Since he is a citizen, it cannot 
be seriously contended that Olagues has 
been or will be denied his right to vote as a 
result of an examination of public records. 
No official action has been taken against 
him, other than verifying his citizenship 
status along with those individuals who 
were initially identified as improperly reg-
istered. The principal claim of present in-
jury is that the investigation has had a 
"chilling effect" on and "stigmatized" him. 
However, mere "allegations of a subjective 
'chill'" do not suffice to present a justicia-
ble claim. Laird v. Tatum, 408 U.S. 1, 
OLAGUESI RUSSONIELLO 
797 
Ow es 
Rid 791 MSS) 
93 S.Ct. 1146, 1148-49, 86 LEd.2d 636 
13-14, 92 S.Ct. 2318, 2325-26, 33 LEd.2d 
154 (1972). We need not pass on the "stig-
ma" claim as a basis for standing. The 
only time it could have arisen was after 
public disclosure that the investigation was 
taking place, which apparently was self-in-
duced by the filing of this lawsuit. In the 
absence of standing to pursue equitable 
relief, Olagues' individual claim for relief is 
therefore relegated to one for damages 
only for any direct injuries which might 
have occurred as a result of the investiga-
tion directed at others. See Lyons, 461 
U.S. at 111, 108 S.Ct. at 1670 (damage 
remedy is adequate when there is no show-
ing of future injury). 
(SI The organizations' standing re-
quires more extensive analysis. Chinese 
for Affirmative Action is a voluntary mem-
bership group that seeks to protect the 
rights of Chinese-Americans. It monitors 
compliance with bilingual election require-
ments and encourages Asian-Americans to 
register and to vote. The Hispanic Coali-
tion for Human Rights is an association of 
Hispanic organizations and persons of Mex-
ican descent, with a goal of securing the 
civil rights of Hispanics. It encourages 
them to register and to vote, and advises 
them on the availability of bilingual elec-
tion materials. The San Francisco Latino 
Voter Registration Education Project is a 
coalition of Hispanic groups that was con-
ducting a voter education and registration 
drive at the time of the investigation. The 
organizations allege that the investigation 
has hindered their efforts to encourage citi-
zens of Hispanic and Chinese ethnic back-
grounds to participate in the electoral pro-
cess and that it was aimed at investigating 
how they registered voters, thus intimidat-
ing them in such activities. They also fear 
disclosure of their organizational member-
ship. They claim direct injury both to 
themselves and to their members. 
An associational plaintiff has standing to 
seek redress of direct injury to the orga-
nization itself. See Simon v. Eastern 
Kentucky Wetictre Rights Organization, 
426 U.S. 26, 27, 40, 96 S.Ct. 1917, 1919, 
EFTA00191845

798 
770 FEDERAL REPORTER, 2d SERIES 
1926, 48 LEd.2d 450 (1976) (Simon); 
Worth o. Seldin, 422 U.S. 490, 511, 95 S.Ct. 
2197, 2211, 45 LEd.2d 843 (1976) (Worth ); 
NAACP v. Sutton, 371 U.S. 416, 428, 83 
S.Ct. 828, 335, 9 L.Ed.2d 405 (1963). Under 
certain circumstances, an association may 
also be entitled to seek redress of injury to 
its members. See, e.g., Runt a Wash-
ington State Apple Advertising Commis-
sion, 432 U.S. 333, 342, 97 S.Ct 2434, 2440, 
58 L.Ed.2d 383 (1977) (Hunt k Simon, 426 
U.S. at 40, 96 S.Ct. at 1925; Worth, 422 
U.S. at 611, 96 S.Ct at 2211; Sierra Club 
v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 
1868, 81 L.Ed.2d 636 (1972) (Sierra Club). 
In Hunt, the Supreme Court established a 
three-part test to determine whether an 
association has standing: (1) either the 
group or its members must have suffered 
some direct, cognizable injury; (2) the In-
terests the group seeks to protect must be 
"germane to the organization's purpose"; 
and (3) the claim or relief sought must not 
require the participation of the individual 
members in the suit. 432 U.S. at 348, 97 
S.Q. at 2441. A mere "abstract concern," 
Simon, 426 U.S. at 40, 96 S.Ct. at 1925, or 
"special interest" in a public issue, Sierra 
Club, 405 U.S. at 739, 92 S.Ct. at 136$, 
however, is legally insufficient to confer 
standing. 
The organizations claim standing on two 
grounds. First, they assert a direct injury: 
their voter registration and educational ef-
forts have been hindered as the direct re. 
suit of the challenged investigation, in vio-
lation of their first amendment and associa-
tional rights. They claim that the investi-
gation has discouraged members from par-
ticipating in their asaociational activities 
and that it will lead to disclosure of orga-
nizational membership, thus undermining 
their voter education and registration ef-
forts. Because the investigation involved 
questioning of voter registrants as to who 
had assisted them in registering, they con-
tend, it inherently delved into their associa-
tional activities and membership in viola-
tion of their constitutional rights. 
Second, the organizations assert that 
both they and their members are threat-
ened with possible prosecution for viola-
tions of the Voting Rights Act. They cite 
Russoniello's letter as evidence that such 
prosecution was possible. They further as-
sert that they are undoubtedly the targets 
of Russoniello's investigation and may be 
charged with improperly influencing ineli-
gible persons to register. 
A preliminary issue is whether the inves-
tigation may be fairly characterized as hav-
ing been "targeted" at these organizations 
or their members. 
The investigation 
sought to determine whether there existed 
any unlawful conspiracies to register ineli-
gible foreign-born voters. 
The random 
sample of voters employed focused solely 
on foreign-born registrants who sought bi-
lingual ballots. Russoniello's letter indi-
cates that groups targeting citizens of Chi-
nese and Hispanic ethnic backgrounds were 
the source of his concern. Although he 
stated that he did not challenge their right 
to conduct registration drives, he did not 
disavow future prosecutions against per-
sons conspiring to register noncitizens. 
When any voter whose name was chosen at 
random initially appeared to be unqualified, 
he sought follow-up questioning to deter-
mine who registered the voter and what 
representations had been made as to the 
qualifications necessary to vote. It is not 
difficult to conclude from this fact that the 
investigation was sufficiently "targeted" at 
the organizations and their members for 
purposes of our analysis. Their principal 
activities were directed specifically at reg-
istering and counseling voters who would 
fall within the classification on which the 
investigation was based. That they were 
not specifically named as targets does not 
change this conclusion. 
We now analyze these organizations' 
standing under Hunt's three-part test. 
The first hurdle is whether the groups or 
their members may have suffered any di-
rect, cognizable injury. We conclude that 
the organizations' allegations raise suffi-
cient claims of potential direct injury to 
both themselves and their members. The 
Supreme Court has recognized previously 
that a group may have standing even if it 
is only derivatively injured as the result of 
EFTA00191846