concurring in part and dissenting in part:
I concur fully in Sections I and II of the majority opinion. I also agree with much of Section III, which ably treats the difficult issue of the defendants’ qualified immunity from Martin’s constitutional claims. Notwithstanding these important areas of agreement, I am obliged to part company from the majority with respect to its reading of our decision in Hobson v. Wilson, 737 F.2d 1 (D.C.Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985), and the majority’s assessment of Martin’s complaint which flows from this discussion. Because Hobson meant what it so plainly said and Martin’s complaint presents nothing more than conclusory allegations of improper motive, I respectfully dissent from that portion of the judgment elucidated in Section III.
I
As is evident from this circuit’s recent opinions on the subject, vexing and sensitive questions are posed by application of the “objective reasonableness” immunity test of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), to claims premised on a government official’s motive or purpose. See, e.g., Halperin v. Kissinger, 807 F.2d 180 (D.C.Cir.1986); Smith v. Nixon, 807 F.2d 197 (D.C.Cir. 1986). The issue basically calls upon us to balance Harlow’s focus on the need expeditiously to dispose of “insubstantial” lawsuits with the preservation of avenues for judicial vindication of constitutional rights.
This circuit’s most definitive attempt to date to strike the proper balance is Hobson v. Wilson. In my view, the majority opinion’s handling of Hobson is at best grudging and at worst a regrettable failure to adhere to binding precedent. Our opinion in Hobson contained a separate section entitled, “Pleading Unconstitutional Motive,” which dealt explicitly with the precise issue in this case. The majority here rightly draws from Hobson a requirement that “plaintiffs must ‘produce some factual support for their claim [of unconstitutional motive] to avert dismissal.’ ” Majority Opinion at 1434 (quoting Hobson, 737 F.2d at 30). But that is by no means all that Hobson required. Our opinion in that case also established pleading requirements that the majority, for reasons that are enshrouded in mystery, simply refuses to recognize.
In Hobson, the court carefully noted the potential circumvention of Harlow that could be worked through an allegation of unconstitutional motive:
We recognize that in some instances, plaintiffs might allege facts demonstrating that defendants have acted lawfully, append a claim that they did so with an unconstitutional motive, and as a consequence usher defendants into discovery, and perhaps trial, with no hope of success on the merits. The result would be precisely the burden Harlow sought to prevent.
737 F.2d at 29. Animated by this concern, the Hobson court went on to strike a careful balance between the competing interests in this difficult area. To prevent the *46easy evisceration of Harlow that “unconstitutional motive” cases make possible, Hob-son determined that the pleading requirements must be carefully drawn in such cases, and, in a passage of critical — I believe controlling — importance to the case at hand, the court undertook to set out a more exacting pleading requirement:
Accordingly, in cases involving a claim that defendants acted with an unconstitutional motive, we mil require that nonconclusory allegations of evidence of such intent must be present in a complaint for litigants to proceed to discovery on the claim.
Id. (emphasis added).
As if that statement were not enough, Hobson went on to quote with approval the Second Circuit’s standard: “ ‘[Cjomplaints containing only “conclusory,” “vague,” or “general allegations” of a conspiracy to deprive a person of constitutional rights will be dismissed.’ ” Id. at 30 (quoting Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977)). How this could be plainer I, for one, do not know. Perhaps we could have added, “And we really mean it,” to allay any concerns that ambiguity might nonetheless infect our admirably clear language. Cf. Young v. Community Nutrition Institute, 476 U.S. 974, 106 S.Ct. 2360, 90 L.Ed.2d 959 (1986). Yet, the majority’s analysis omits this pivotal teaching of Hobson: the complaint itself must include “nonconclusory allegations of evidence of [unconstitutional] intent.” 737 F.2d at 29 (emphasis added).
Hobson was, after all, a lengthy, careful, and well-reasoned opinion. And it cannot be gainsaid that this heightened pleading requirement was central to the delicate balance Hobson struck. Even if one has latter-day doubts as to Hobson’s wisdom, the pleading requirement which it so clearly articulates is the law of this circuit. We are bound to follow it. Indeed, just recently we did not hesitate to apply Hobson in other cases of no little moment. See, e.g., Smith v. Nixon, 807 F.2d 197, 200-01 (D.C. Cir.1986). Yet, this carefully-drawn standard, crafted with the strictures of Harlow in mind, is entirely ignored by the majority.
In my view, if Hobson were conscientiously applied to this case, Martin’s complaint would plainly fail. It contains nothing that could be construed, even under the most charitable view, as a “nonconclusory allegation of evidence of [unconstitutional] intent,” Hobson, 737 F.2d at 29. To the contrary, the complaint alleged in classically vague and conclusory fashion:
As a result of public and media attention to the unprovoked attack on plaintiff, defendants conspired to develop an unlawful scheme to deflect attention from their actions and to deter plaintiff from seeking to vindicate the violation of his rights.
First Amended Complaint, ¶ 18, J.A. at 26, 31. This broadside is scarcely the stuff of “nonconclusory allegations.”
The majority appears to divine a sufficiently nonconclusory allegation in Martin’s reference to a meeting of law enforcement officials on November 29,1982. See Majority Opinion at 1434-35, 1437-38. But there is a problem. Nothing of this November 29 conclave appears in Martin’s complaint. He apparently proceeded in utter ignorance of this now-crucial meeting, where the alleged “get-Martin” scheme was hatched, until the Government’s summary judgment motion, which was supported by an affidavit describing the meeting. Indeed, Martin’s only invocation of the November 29 meeting is in his opposition to summary judgment, where he merely asserts that he was the only person identified for prosecution as a result of that meeting. See Plaintiff's Opposition to Federal Defendants’ Motion for Summary Judgment, Docket Entry 113, at 10; see also Majority Opinion at 1434-35 (referencing this filing as Martin’s factual support for his claims). In my view, the majority properly concludes that this enumeration is “insufficient” to create a genuine issue, Majority Opinion at 1435, but then in the next breath the majority permits Martin’s claim to go forward to discovery. Fairly and dispassionately viewed, Martin’s “factual" enumeration is similarly an “insufficient” “nonconclusory allegation” to withstand Hobson’s threshold test, even overlooking for the moment *47that it comes too late in the litigation process. Cf. Hobson, 737 F.2d at 29 (allegations “must be present in a complaint”). Only if one evades — or discards — the language of Hobson to which I have referred can Martin’s complaint survive. Accordingly, I pause briefly to examine Hobson for possible qualifications of the “nonconclusory allegations” requirement that would justify jettisoning what was, until today, quite clear.
II
Two passages in Hobson could perhaps be employed to water down the opinion’s direct requirement. In my view, however, neither does service as a justification for the majority’s decision.
First, immediately after setting forth the “nonconclusory allegations” requirement, the opinion notes that
[t]he allegations on this [unconstitutional motive] issue need not be extensive, but they will have to be sufficiently precise to put defendants on notice of the nature of the claim and enable them to prepare a response and, where appropriate, a summary judgment motion on qualified immunity grounds.
737 F.2d at 29. While this language could be taken to suggest the appropriateness of a forgiving approach, it obviously cannot be read to reduce the “nonconclusory allegations” requirement to a nullity. This is what the majority does, however, by permitting Martin to go forward. Far from being extensive, Martin’s “nonconclusory allegations” are non-existent. He alleges no specific facts. Instead, he employs the tactic of which Hobson clearly warned, namely “pleading that [an] act was performed with an intent to violate clearly established constitutional rights and thereby surmounting the threshold test set out in Harlow.” Id.
Second, toward the end of the “Pleading Unconstitutional Motive” section, the Hob-son court wrote:
In so holding we do not forget that in some circumstances plaintiffs are able to paint only with a very broad and speculative brush at the pre-discovery stage, and that overly rigid application of the rule we articulate could lead to dismissal of meritorious claims.
Id. at 30-31. This passage, apart from suggesting that the Hobson court certainly thought it was espousing a “rule,” suggests that the shortcomings of Martin’s complaint should be overlooked if he was merely painting “with a very broad and speculative brush.” This does not, however, forgive him from even painting. Martin fails to allege even broad or speculative “facts” regarding the defendants’ conduct, offering instead only the bald assertion that the “defendants conspired to develop an unlawful scheme.” This brush is broad indeed, and not at all what Hobson had in mind. Otherwise, the Hobson “exception” would swallow the rule or be so broad and ill-defined so as to drain the “rule” of any meaning. Moreover, the sentence immediately following this picturesque “painting” language sets forth the following conclusion:
Thus, while we hasten to add that district court judges must act cautiously in this regard, and freely give leave to amend an inadequate complaint, we conclude that Harlow requires that merely conclusory allegations of unconstitutional motive, devoid of factual support, must be found lacking and be dismissed.
Id. at 31 (emphasis added). It therefore appears to me that even if we forgive the inadequacies of Martin’s complaint as due to his being forced to “paint” broadly and speculatively, the proper remedy would be to grant leave for Martin to amend his complaint, not to expose government officials at this stage to the intrusive processes of discovery.
Thus, I find nothing in Hobson to undercut the pleading requirements which I should have thought were established beyond peradventure. My view is straightforward. I take Hobson to mean what it twice says: “merely conclusory allegations of unconstitutional motive, devoid of factual support, must be found lacking and dismissed.” Id.; see also id. at 29 (“nonconclusory allegations ... must be present in a complaint”).
*48III
Hobson set forth a clear standard and outlined how it might typically be applied. The parties in this litigation had ample benefit of our teaching in that case; the opinion issued on June 8, 1984 and Martin’s complaint was filed on February 21, 1985.* But while the Government has followed Hobson's guidelines, Martin has not. Specifically, after noting that the Second Circuit’s test from Ostrer was “more than adequate to address the Harlow concerns,” see supra pp. 1426-27, the Hobson court continued:
We simply remind our trial courts that some factual allegations must support claims of unconstitutional motive. Plaintiffs who fail to allege any specific facts to support a claim of unconstitutional motive cannot expect to involve Government actors in protracted discovery and trial. On receipt of such a complaint, Government defendants might move for dismissal or, alternatively, for summary judgment. Then plaintiffs must produce some factual support for their claim to avert dismissal.
Id. at 30. This is precisely the course that the Government has followed. After receipt of Martin’s complaint, the Government moved for summary judgment. While the complaint should have been dismissed as an initial matter due to Martin’s failure to include “nonconclusory allegations” of “specific facts,” granting a remand to permit discovery is even more outlandish in the posture of this case.
Martin has had ample opportunity to bring to the court’s attention any information he possesses regarding the unconstitutional motive that allegedly infected the law enforcement officials’ decision to arrest and prosecute him. He has displayed that he has no such “specific facts.” Yet, the majority allows Martin to latch onto a fact set forth in the Government’s summary judgment motion to carry him into discovery. This is court-sanctioned sandbagging in the extreme.
In sum, the majority’s failure to adhere to applicable precedents, both from the Supreme Court and this circuit, adds confusion where clarity is needed, subjects government officials to needless and time-consuming discovery, and permits future plaintiffs to avoid Harlow’s application with a mere conclusory allegation of unconstitutional motive. Claims such as Martin’s should not be allowed to proceed to discovery. Rather, as the precedents direct, they should be dismissed. I would take Hobson to mean what it says and move on to the next case.
This case does not involve a pro se litigant, a situation where a pleading requirement such as this might be less stringently applied consistent with other rules governing the interpretation of pro se complaints. See, e.g., Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Mr. Martin has been represented throughout by highly competent counsel.