AL-KIDD

Before: DAVID R. THOMPSON, CARLOS T. BEA and MILAN D. SMITH, JR., Circuit Judges.

Concurrence by Judge MILAN D. SMITH, JR.; Dissent by Judge O'SCANNLAIN; Dissent by Judge GOULD.

Judge M. Smith voted to deny the petition for rehearing en banc, and Judge Thompson so recommended. Judge Bea voted to grant the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. Judge Bybee was recused in this matter.

The petition for rehearing en banc is DENIED.

M. SMITH, Circuit Judge, concurring in the denial of rehearing en banc:

I concur in the court's decision not to rehear this case en banc, and write to respond to the dissents from that decision.

In March 2005, al-Kidd brought suit in the District of Idaho against former United States Attorney General John Ashcroft, the United States, two FBI agents, and a number of other government agencies and officers in their official capacities. The suit sought damages under Bivens v. Six Unknown…