concurring in the denials of rehearing en banc:
As should be apparent, some change in the court’s thinking concerning the desirability of en bancs has taken place. We have now vacated en banc orders in four cases — the three we deal with today and Mississippi Industries v. FERC, 808 F.2d 1525 (D.C.Cir.1987) in which the en banc order was vacated and the panel agreed to adopt the dissent. See Orders of June 24, 1987.1 I am one who, upon reflection, has reconsidered his views and am now inclined to favor en bancs only in cases of exceptional importance to this Circuit. For instance, a case that permitted us to resolve a substantial conflict within our own precedents or address an issue with an unusually significant impact on the work of the Circuit would be the type that warrants the institutional costs of a time consuming and unwieldy en banc resolution. When the Supreme Court is likely to grant certiorari to decide an issue of national import, en banc treatment may be superfluous unless the panel opinion[s] failed to discuss a major issue.
Given the increasing number of cases designated for en banc rehearing and the considerable strain those cases place, directly and indirectly, on the functioning of the court, I see nothing unusual or improper in the court’s reassessment of its en banc caseload. Accordingly, I concur in the court’s decisions today. I write separately, however, to explain why, in my view, each of the three cases we deal with today is inappropriate for rehearing en banc.
James T. Martin v. D.C. Metropolitan Police Department, et al., 812 F.2d 1425 (D.C.Cir.1987)
The dissent believes this case warrants rehearing because directly inconsistent with the portion of Hobson v. Wilson entitled “Pleading Unconstitutional Motive," 737 F.2d 1, 29-31 (D.C.Cir.1984). But as the majority opinion diplomatically implied, see Martin, 812 F.2d at 1436 n. 22, virtually that entire section of Hobson was dicta. Since in Hobson the panel did not doubt that the complaint met the Harlow standard of sufficient specificity, see Hobson, 737 F.2d at 31, the discussion of the outer boundaries of that requirement — particularly as it related to discovery — was unnecessary to the decision. It is not surprising therefore that two of the Hobson panel members, sitting again in Martin, so vigorously dispute the meaning of the prospective rule announced in Hobson. Be that as it may, I do not think the holding in Hob-son is even arguably inconsistent with Martin.
Moreover, I read the Martin panel opinion as its author does, as limited to the “special exigencies” in this case. I take the opinion to hold that plaintiff is entitled to limited discovery as to what occurred at the November 29th meeting, despite plaintiff’s failure to allege direct evidence of unconstitutional motive, because our previous opinions had not been totally clear on the pretrial development of limited immunity cases. See Martin, 812 F.2d at 1436. Presumably the next plaintiff will not receive such leeway.
U.S.A. v. Christine Meyer, et al., 810 F.2d 1242 (D.C.Cir.1987)
This case lacks, in my view, the broad significance the dissent attaches to it. The district court found actual vindictive prosecution and the Supreme Court in United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), has acknowledged that such a finding is possible even in a pre-trial setting. See id. at 380-81, 102 S.Ct. at 2492-93. The panel opinion, however, did not actually affirm the district court’s finding. After discussing the limited scope of review of that finding (clearly erroneous), see Meyer, 810 F.2d at 1244-45, *267it concluded that under the facts presented a presumption of vindictive prosecution should apply. The opinion could well be read as holding only that the district court legitimately drew inferences from the facts to make its finding that the government engaged in vindictive prosecution. That the government increased the charge and potential penalty for those who insisted on the right to trial still does not, by itself, permit a finding of vindictive prosecution— with or without a presumption. The key (and unusual) additional fact here is that after the government “upped the ante” and defendants asked for the jury trial to which they were entitled on the graver charge, the government reversed course and moved to dismiss the additional charge so as to avoid the jury. I doubt that kind of unseemly prosecutorial maneuvering is common and therefore believe the impact of the majority opinion is quite limited.
I think the dissent exaggerates by accusing the panel opinion of undercutting the Supreme Court’s statement in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), that “[I]n the give-and-take of plea bargaining there is no ... element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.” Id. at 363, 98 S.Ct. at 668. Here, unlike in Bordenkircher, the defendants (at least some of them) were not warned that if they refused to plead guilty they might face additional charges.
The remedy chosen by the district court is in this case, I admit, somewhat dubious. But I am unwilling to conclude, as apparently do the dissenters, that no matter how badly the government behaves in increasing the charge against a defendant, the district court may not dismiss the whole case, but is instead limited to excising only the additional charge. Cf. United States v. Omni Int’l Corp., 634 F.Supp. 1414, 1436-40 (D.Md.1986).
Mary Bartlett v. Bowen, Secretary of HHS, 816 F.2d 695 (D.C.Cir.1987)
It took the panel over a year to produce the majority and dissenting opinions. In the process both authors, like World War I armies scrambling sideways to the channel, covered a good deal of ground. The majority’s constitutional holding is, of course, dicta, but I do not deny the case’s importance because the majority’s perception of the constitutional issue governs its interpretation of the statute. Furthermore, were I forced to choose, I would be inclined to favor the dissent’s analysis. I think it likely, however, that the Supreme Court will grant certiorari (if the government seeks it) and I seriously doubt that en banc treatment will add much to the panel’s discussion of the issues and its review of what is, in truth, somewhat puzzling Supreme Court precedent. The question will surely eventually be resolved by the Supreme Court and, in the meantime, I doubt very much whether the work of this court will be seriously affected by our refusal to rehear the case.
. Judge Starr apparently does not object to our reconsideration of that case.