Doe

dissenting from denial of rehearing en banc:

I respectfully dissent from the order denying rehearing en banc.

“Doe” is a pseudonym, because Mr. and Mrs. Doe were apparently spies for the United States in the Soviet empire. Of course, all we know is what the Does now allege. The facts are unconfirmed. The case comes up on an interlocutory appeal of a district court order denying the CIA’s motion to dismiss.

Mr. Doe was a diplomat for one of the “republics.” He sought to defect to the United States. He and Mrs. Doe allegedly made a deal with the CIA. Mr. Doe would stay in his position for a while and spy for us, and the CIA would then arrange the Does’ defection and resettlement, and ensure their personal and financial security for the rest of their lives. All went fine for some time, with false identities and backgrounds. But then the American bank Mr. Doe worked for in Seattle merged with another, and Mr. Doe was laid off. The CIA left him without assistance, despite an earlier promise to resume financial aid if he became unemployed. The Does sued for an order directing the CIA to provide them with due process and to pay them the money they were promised.

The issue is whether…

ORDER

The majority of the panel has voted to deny appellee’s petition for rehearing and petition for rehearing en bane. Judge Canby votes to deny the petition for re *1142 hearing and recommends denial of the petition for rehearing en banc. Judge Berzon votes to deny the petition for rehearing and the petition for rehearing en banc. Judge Tallman votes to grant the petition for rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc. An active judge requested a vote on whether this matter should be reheard before an en banc panel. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc reconsideration. Fed. R.App. P. 35(b).

The petition for rehearing and the petition for rehearing en banc are DENIED.