Joint Statement dissenting from the vacatur of orders and from the denials of rehearing en banc in Nos. 85-5233, 85-6071, et al., and 85-6169, et al., filed by
BORK, STARR, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges:After full deliberation, the court voted to vacate the panel opinions in these cases and to rehear the cases en banc. Now the court vacates the prior orders in each of the three cases, denies the petitions for en banc rehearing, and reinstates all three panel opinions.
It is apparent that each of the cases today removed from our rehearing docket deserves en banc reconsideration. Each involves an issue of exceptional importance and, as we demonstrate below, each received a panel resolution that we think is clearly wrong, and is, at the very least, highly dubious. The discussions of the first two cases are brief because in each there was a full dissent at the panel stage. The reader may find further information about what we think wrong with the panel majorities’s decisions in those dissents. Rather fuller treatment is accorded the third case because there was no dissent on the panel. *268Bartlett v. Bowen, 816 F.2d 695 (D.C.Cir.1987)
•The Medicare Act denies reimbursement for nursing care costs if the applicant, during the same spell of illness, had been reimbursed for the costs of prior nursing care in a Christian Science facility. Appellant Bartlett sued to recover costs denied by the Secretary of the Department of Health and Human Services under this provision. Bartlett maintained that the provision violated the first amendment’s guarantee of the free exercise of religion and the equal protection component of the fifth amendment’s guarantee of due process. The district court dismissed the complaint for want of subject matter jurisdiction. Only the jurisdictional ruling was before the panel on appeal.
The Medicare Act provides that any individual dissatisfied with the Secretary’s determination of benefits is entitled to judicial review. Section 1395ff(b)(2), however, states that judicial review shall not be available “if the amount in controversy is less than $1000.” Bartlett’s claim was for $286. The statutory language is flat and contains no hint of any exception for suits asserting a constitutional claim. There is also no hint of any intention to allow an exception of any sort in the legislative history. It is clear, moreover, that the statute's preclusion of judicial review was Congress’ assertion of sovereign immunity, a doctrine of American law that is as old as the nation and which is routinely invoked by the Supreme Court to deny jurisdiction over suits against the government for benefits. Sovereign immunity denies jurisdiction over such claims whether their legal basis is constitutional or nonconstitutional.
The panel majority reversed the judgment of the district court, holding that the court had jurisdiction to decide Bartlett’s claim on the merits. The opinion said the statute had to be read to contain an exception for claims that depended upon a challenge to a statute’s constitutionality. Though, given that statutory interpretation, there was no need to go further, the panel majority went on to give its opinion that Congress could never withhold jurisdiction over a constitutional challenge in both state and federal courts. In doing this, the majority purported to decide the highly controversial question of Congress’ power to remove Supreme Court jurisdiction over constitutional challenges under the exceptions clause of article III of the Constitution: “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” The majority said that Congress could never take a constitutional issue from all courts.
The upshot of the decision, then, is this.
Despite the clearest statutory language and legislative history to the contrary, any statute precluding judicial review of a benefit claim will be read to contain an exception for a claim that advances a constitutional argument. This means that the solidly entrenched doctrine of sovereign immunity no longer applies in such cases. The ruling necessarily applies not only to federal sovereign immunity, which is derived from article III, section 2, of the Constitution, but to the sovereign immunities of the several states under the eleventh amendment. Bartlett is thus a sweeping and revolutionary decision, quite aside from its gratuitous dicta concerning congressional power over the Supreme Court’s jurisdiction. In this circuit, at least, it will have great impact on benefits legislation. Indeed, it will probably draw claimants to litigate here. We find it inconceivable that the case is not worthy of the full court’s attention.
Martin v. D.C. Metropolitan Police Department, 812 F.2d 1425 (D.C.Cir.1987)
The court once deemed this case worthy of rehearing en banc out of concern for its precedential import regarding the issue of what allegations must be pleaded in a complaint in order to prevent dismissal of a tort claim against federal law enforcement officials premised on a claim of unconstitutional motive. Plaintiff-appellee charged officers of the United States Capitol Police with violation of his rights under the fifth amendment to the Constitution. Martin’s basic allegation was the defendant officers *269had conspired to pursue his arrest and indictment in order to divert attention from a police assault upon him in connection with a public demonstration and to deter him from exercising his legal rights.
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), the court addressed this precise issue and set down clear and exacting pleading requirements:
[I]n eases involving a claim that defendants acted with an unconstitutional motive, we will require that nonconclusory allegations of evidence of such intent must be present in a complaint for litigants to proceed to discovery on the claim.
737 F.2d at 29. The court then went on to state that “plaintiffs must produce some factual support for their claim to avert dismissal.” Id. at 30 (emphasis added).
Despite the clarity of Hobson, the panel majority, by failing to dismiss the action, implicitly found the following allegation in the complaint sufficient to preclude dismissal:
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, 1118, J.A. at 26, 31. This cannot possibly be considered to be a “nonconclusory allegation[] of evidence” of unconstitutional intent. Nor is there anything in this allegation which could be called “factual support.”
It is plain, therefore, that if Hobson had been followed, Martin’s complaint would have been dismissed on the pleadings. The panel majority nevertheless rewrote Hob-son and held that Martin was entitled to “limited discovery.” Fairness was said to require this result because “the approach to pretrial development of cases such as this one was far from clear and certain when the district court made its rulings in Martin’s favor.” 812 F.2d at 1436. The only thing that was not “clear” under Hob-son, however, was the principle that limited discovery is, as the majority appears to hold, available upon the basis of a complaint that contains absolutely no “nonconclusory allegations of evidence of [unconstitutional] intent” (emphasis added). This option existed only after the majority misread the clear language of Hobson to prohibit only “protracted discovery.” Id. at 1439 (Edwards, J., concurring).
Nor do we understand how the fact that the district court erred in allowing “uncircumscribed discovery,” see id. at 1436 n. 22, changes the analysis. The complaint in this case was insufficient under Hobson and should have been dismissed. Alternatively, the court should have remanded with an instruction to grant leave to amend. There is simply no rational support for the option chosen by the majority — permitting appellant on remand to engage in limited discovery on the basis of a clearly insufficient complaint.
Rehearing en banc of the Martin decision is thus required because of a square conflict between that decision and Hobson. It is also required because the decision, if read by the district court and by litigants as we read it, could render the motion to dismiss useless. If the vague, nonfactual allegations in Martin’s complaint are enough to withstand dismissal and to entitle him to discovery, one can hardly imagine any complaint that would not be able to achieve that result. The panel opinion thus has the potential to deprive the government of a needed defense against baseless lawsuits.
Even if our interpretation of Martin is not the one that the majority intended, as its author says today it is not, five members of this court so read it. Other courts could reasonably interpret the opinion, as we have, to allow limited discovery on the basis of any allegation of unconstitutional motive. Perhaps our reading is wrong; we hope that it is. But if so, then there is an even stronger case for rehearing, viz., so the court could clarify the opinion for the benefit of those who must follow it. United States v. Meyer, 810 F.2d 1242 (D.C.Cir.1987)
The Supreme Court has made it clear that prosecutors’ charging decisions are *270not generally subject to close judicial scrutiny. Notwithstanding this direct Supreme Court authority, a panel of this court has held, to the contrary, that where a defendant decides to contest an ordinary police citation, and a United States Attorney files an information containing a misdemeanor charge not originally included in the citation, a presumption of prosecutorial vindictiveness arises warranting dismissal of all charges. The panel's decision is clearly inconsistent with United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), and may seriously hamper the effective conduct of prosecutions in this circuit.
On April 22, 1985, United States Park Service police issued citations to approximately two hundred political demonstrators outside the White House. Each citation charged a violation of 36 C.F.R. § 50.19 (1985), which makes it a misdemeanor to demonstrate on park grounds without a permit. Most agreed to pay a $50 fine in full satisfaction of the charge, but appellees decided to contest their charge in court. The decision as to the violation to be charged in the citations was made by the Park policemen, who are not lawyers. When the United States Attorney drafted the requisite informations for appellees’ separate arraignments, he charged them under section 50.19, and also under a more specific regulation, 36 C.F.R. § 50.30 (1985), which makes it a misdemeanor to obstruct sidewalks. The second charge was added as part of a “plea offer” to some of the defendants; a number of the defendants accepted this “plea arrangement,” but appellees chose to go to trial. See Meyer, 810 F.2d at 1244.
Appellees moved to dismiss the informations because of prosecutorial vindictiveness. At the hearing on the vindictiveness issue, the government moved to dismiss the second charge. The district court granted the government’s motion to dismiss the second charge in the informations, but also dismissed the informations themselves. The district court found “actual vindictiveness” in the government’s addition of the section 50.30 charges, which the court concluded was motivated by a desire to punish appellees for electing to contest their section 50.19 charges in court.
The panel declined to reach the district court’s finding of actual vindictiveness, but decided instead that a presumption of prosecutorial vindictiveness was warranted. The panel’s purported authority for applying such a presumption is Blackledge v. Perry, 417 U.S. 21, 27-29 & n. 7, 94 S.Ct. 2098, 2102-03 & n. 7, 40 L.Ed.2d 628 (1974).
Blackledge is inapplicable on its face. In that case a prisoner, Perry, had been convicted of misdemeanor assault for an attack on a fellow inmate. He received a six-month sentence from a lower court. Under North Carolina law that court had exclusive jurisdiction for the trial of misdemeanors. State law also provided that anyone convicted of a misdemeanor in that court had a right to trial de novo in a higher court. Perry filed a notice of appeal pursuant to that right. After he did so, however, the prosecutor obtained a grand jury indictment charging him with assault with a deadly weapon in connection with the same conduct for which Perry had already been given a six-month sentence. Perry pleaded guilty and received a sentence of five to seven years in prison. On petition for a writ of habeas corpus, the Court found a likelihood that the prosecutor had sought Perry’s felony conviction to punish him for seeking retrial. The Court concluded that such a likelihood warranted a presumption of prosecutorial vindictiveness.
The panel maintains- that Blackledge applies in this case. Perry was charged with a felony, however, after he exercised his right to automatic appeal of a conviction for a misdemeanor. The presumption of vindictiveness was thus applied in a post-trial setting, not to pretrial charging decisions.
In Goodwin, however, the Supreme Court refused to adopt a presumption of prosecutorial vindictiveness in the pretrial setting. The Court explicitly distinguished Blackledge on ' this basis, and explained why it did not apply in the pretrial setting. Goodwin, 457 U.S. at 369-70, 383-84, 102 *271S.Ct. at 2486-87, 2493-94. There the prosecutor added a felony charge against the defendant after the defendant had refused to plead guilty to a misdemeanor charge. Holding that the “prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution,” id. at 382, 102 S.Ct. at 2493, the Court refused to hold that this conduct warranted a presumption of vindictiveness. “The possibility that a prosecutor would respond to a defendant’s pretrial demand for a jury trial by bringing charges not in the public interest that could be explained only as a penalty imposed on the defendant is so unlikely that a presumption of vindictiveness is certainly not warranted.” Id. at 384, 102 S.Ct. at 2494 (emphasis in original).
In this case, the panel refused to follow Goodwin and instead applied a presumption of vindictiveness in circumstances indistinguishable from Goodwin. The issues raised by that decision are of great importance. Unless the Supreme Court decides to correct our error by writ of certiorari, prosecutors in this circuit will know that if they add just one charge to those made at the time of arrest, they risk dismissal of their entire case. Cf. Meyer, 810 F.2d at 1249 (“The deterrent effect of the rule will remain even if judges resort to this remedy only in a minority of cases.”). This result severely limits the prosecutor’s discretion about how best to bring charges and to conduct plea negotiations. It ignores the Supreme Court’s recognition of “the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his constitutional right to stand trial.” Goodwin, 457 U.S. at 378, 102 S.Ct. at 2491. And it undercuts the Court’s explicit statement that “in 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.” Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). Perhaps most disturbingly, when quelling public disturbances the police will be under pressure to charge those arrested for all possible violations lest it become impossible to prosecute them later for any one of them. Cf. Meyer, 810 F.2d at 1248 (“Even if our holding were to bind prosecutors to all charging decisions of arresting officers, we think the government would suffer no great loss.”). With respect, for us at least the panel’s decision speaks against itself.
The panel’s attempt to distinguish Goodwin, see Meyer, 810 F.2d at 1246-47, is unsuccessful. The fact that some defendants pleaded guilty and thus did not receive added charges does not show that the prosecutor “discriminated” among defendants on any other grounds than whether they had pleaded guilty during the plea negotiations; yet the Court in Goodwin explicitly held that “changes in the charging decision that occur in the context of plea negotiation are an inaccurate measure of improper prosecutorial ‘vindictiveness.’ ” Goodwin, 457 U.S. at 379-80, 102 S.Ct. at 2492. Nor is it at all clear why the panel should have been willing to presume vindictiveness because of either the simplicity of the facts that underlie the charges or the complexity of the legal arguments that defendants may raise in their defense. Meyer, 810 F.2d at 1246-47. Those facts seem utterly irrelevant.
Finally, the other factor that the panel relied on to justify its holding of presumed vindictiveness — the government’s conduct after increasing the charges against the defendant — is also unavailing. The panel noted that at the trial court hearing on vindictiveness the government moved to drop the very charges it had recently added against the defendants. The panel’s misguided attempt to infer probable vindictiveness from this fact is demonstrated by the weakness of the inferential chain that it constructs. The withdrawal of charges, like the addition of charges, may occur for a multitude of reasons that all fall within the realm of acceptable prosecutorial discretion — a point that the panel perhaps concedes when it admits that the withdrawal of charges here may have been in good faith, and the prosecutor may have simply changed his mind. The panel speculates, however, that the additional charge may have been withdrawn to avoid the necessity *272of a jury trial, which the trial judge had granted to the defendants after this charge had been added against them. Yet this flatly ignores the Supreme Court’s recognition that this would be a perfectly acceptable motivation for adding or dropping charges: “the prosecutor’s interest at the bargaining table,” which the Court has found to be a legitimate interest, “is to persuade the defendant to forgo his constitutional right to stand trial.” Goodwin, 457 U.S. at 378, 102 S.Ct. at 2491. This is nothing more than the ordinary “give-and-take” of plea bargaining, and here the defendants were entirely “free to accept or reject the prosecution’s offer.” Hayes, 434 U.S. at 363, 98 S.Ct. at 668; see also Goodwin, 457 U.S. at 380, 102 S.Ct. at 2492 (“just as a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded”). Once again, this conduct by the prosecutor does not support any presumption of vindictiveness, though the defendant is of course free to try to prove actual vindictiveness based on such conduct.*
In the end, therefore, the Court held in Goodwin that judicial interference in prosecutors’ charging decisions is to be avoided, even at the risk that a prosecutor’s decision to sanction defendants for invoking their right to a jury would go unpunished for want of proof. If the Court reached that judgment in regard to the right to a jury, it is out of the question for us to reach a contrary judgment to protect appellees’ right to contest a $50 citation.
An independent problem with the panel's decision in this case, which compounds the unfortunate effects of its holding, is the remedy that it approved. The trial court, which had made a finding of actual vindictiveness, dismissed all the charges against the defendants, even those brought originally and thus not tainted by any allegations of vindictiveness. The panel concedes that this is an “extreme” remedy, and is unable to point to any prior cases in which it had been imposed. Meyer, 810 F.2d at 1249. There is good reason for this want of authority. We do not lightly presume that prosecutors act in bad faith when they exercise the considerable powers that society has vested in them to enforce the laws. “A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution.” Goodwin, 457 U.S. at 382. Thus, the proper remedy for prosecutorial vindictiveness is removal of the illegality. The question is not whether “the prosecutor will have nothing to lose by acting vindictively,” Meyer, 810 F.2d at 1249, but merely ensuring that the prosecutor will have nothing to gain by acting vindictively. The strong political checks on prosecutorial conduct will ensure that he has something to lose by acting unjustifiably. An extreme remedy such as the one in this case, however, would mean that society has lost its ability to prosecute an individual on what are understood by all to be legitimate charges. If there was any actual vindictiveness in this case, it was cured when the additional charges against the defendants were dropped.
In sum, the panel’s holding in this case is an unjustified departure from controlling Supreme Court precedent. It represents a view of the plea-bargaining process that is sharply different from the more realistic view taken by the Supreme Court. If allowed to stand, it will significantly hamper *273prosecutors in this circuit from exercising their discretion in ways the Court has recognized as legitimate.
For the reasons set forth, we dissent from the' vacatur of orders and from the denials of rehearing en banc.
No other circuit has repudiated Goodwin’s holding that no presumption of vindictiveness will apply in the pretrial context. The two cases cited in the panel opinion do not support its result. In United States v. Krezdom, 718 F.2d 1360 (5th Cir.1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1416, 79 L.Ed.2d 742 (1984), the Fifth Circuit stated that a presumption of vindictiveness would lie when the prosecutor decided "to increase the number or severity of charges following a successful appeal.” Id. at 1365. That is not a pretrial decision; it penalizes a defendant for appealing from a conviction, which is what the Supreme Court held unacceptable in Blackledge. And in United States v. Gallegos-Curiel, 681 F.2d. 1164 (9th Cir.1982), the court’s suggestion that a presumption of vindictiveness might lie in certain extreme circumstances, see id. at 1168-69, was pure dictum since no such presumption was found to be appropriate in that case.