Doe

Opinion by Judge BERZON. Dissent by Judge TALLMAN.

OPINION

Jane and John Doe — fictitious names, adopted for this litigation for reasons that will appear — assert that they performed espionage activities on behalf of the United States against a former Eastern bloc country. The Central Intelligence Agency (the “CIA”), they say, assured them that it would provide assistance in resettling in the United States as well as lifetime financial and other support. According to the Does, the CIA has now reneged on its obligation of support. The United States will neither confirm nor deny the Does’ allegations, for reasons of national security.

We must decide whether the Does can sue the CIA for the alleged wrongs committed by the Agency, or whether, instead, their action is either appropriate only in the Court of Federal Claims or precluded by the venerable doctrine enunciated in Totten v. United States, 92 U.S. 105 , 23 L.Ed. 605 (1875).

I

We assume, without deciding, that the facts as alleged by the Does are true and construe the complaint in the light most favorable to their case. See Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir.2000). The facts that…

dissenting:

It is the prerogative of the Supreme Court, not ours, to decide whether Totten v. United States, 92 U.S. 105 , 23 L.Ed. 605 (1875), continues to bar judicial review of actions arising from espionage services performed for the United States by secret agents, or whether the Totten doctrine has somehow been supplanted by the modern *1156 state secrets evidentiary privilege articulated in United States v. Reynolds, 345 U.S. 1 , 73 S.Ct. 528 , 97 L.Ed. 727 (1953). My colleagues proclaim that Totten is “applicable to the case before us only as applied through the prism of current state secrets doctrine.” Maj. Op. at 1151. But Totten holds that claims brought by secret agents against the government are non-justiciable. Reynolds , on the other hand, protects against the unveiling of state secrets during the prosecution of an otherwise recognized cause of action. Far from modifying Totten , the Court’s opinion in Reynolds reaffirms Totten’s jurisdictional bar.

Furthermore, the majority fails to recognize the jurisdictional limitation imposed on the Does’ lawsuit by the Tucker Act, which requires that this suit be brought in the Court of Federal Claims. Because the court’s…