author: BOREMAN, Senior Circuit Judge:

text:
    ROBERTSHAW CONTROLS COMPANY, LUX TIME DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1518.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 6, 1972.
    Decided Aug. 30, 1973.

      Paul M. Thompson, Richmond, Va. (Francis V. Lowden, Jr., Hill B. Well-ford, Jr., and Hunton, Williams, Gay & Gibson, Richmond, Va., on brief), for petitioner.
    Bruce McLean, Atty., N. L. R. Bd. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi, N. L. R. Bd., on brief), for respondent.
    Before BOREMAN, Senior Circuit Judge, and RUSSELL and FIELD, Circuit Judges.
   BOREMAN, Senior Circuit Judge:

Robertshaw Controls Company, Lux Time Division, (Company) petitions this court pursuant to Section 10(f) of the National Labor Relations Act to review and set aside an order of the National Labor Relations Board (Board) based on a finding that the Company had violated Sections 8(a)(1) and (3) of the National Labor Relations Act in orally reprimanding certain employees, and noting their reprimand in the personnel files, for union related activities and in asking other employees for copies of statements given to Board agents who were investigating unfair labor practice charges filed against the Company. The Board cross-petitions for enforcement of its order.

The Company urges two points of error: (1) that the General Counsel failed to carry his burden to prove by substantial evidence that the oral reprimands given to certain employees were motivated by anti-union considerations; and (2) that the Board erred in holding that the mere request by an employer for statements given by his employees to a Board agent violates Section 8(a)(1) of the Act without proof of actual coercion.

The Company operates a plant in Lebanon, Tennessee, where it manufactures clocks and controls for timing devices. In the latter part of 1970, the International Association of Machinists and Aerospace Workers (Union) began an organizational campaign at the plant. At that time the Company retained legal counsel to advise it as to the proper course of conduct for its supervisory personnel during the course of the campaign. The Company rule on solicitation, posted on bulletin boards throughout the plant, was as follows:.

“No solicitation during working hours. During breaks and lunch hours, the rule does not apply.”

During February of 1971 the Company began to receive complaints from some of the employees that they were being harassed by pro-union employees with regard to the Union organizational efforts. The credited testimony disclosed the following events. During the lunch break on February 17, Pearl Carter, Betty Hasty and Bettie Pleasant approached Cornelia Starks at her usual work position to inquire whether she supported the Union. Pleasant, Starks’ sister, asked her if she were ready to sign a Union authorization card, to which Starks responded that she was not, citing the fact that her husband had recently been discharged from employment at his plant and his union had done nothing to help him. Carter interjected that it was her understanding that the discharge of Starks’ husband had not been the union’s fault. Starks remained unconvinced and insisted that she did not want to be bothered with the Union. Pleasant then said: “Well, let’s go, you all. We can’t talk no sense into this stupid idiot’s head.” The group then disbanded and returned to work.

Later, Starks reported the incident to her supervisor, asking that Carter, Hasty and Pleasant be stopped from “calling [her] names and humiliating [her] and aggravating [her] and disturbing [her] to the point where she couldn’t do half [her] work. . . .” She was subsequently referred to Weatherly, the personnel manager of the plant, who promised that he would look into the matter, cautioning her not to fulfill her prediction that she “would probably hit somebody” if the harassment continued, because such conduct would result in disciplinary action being taken against her.

The following day, February 18, Weatherly again received a complaint against Carter. This time it was registered by employee Sylvia Robinson who complained that Carter bothered her constantly and would not heed requests to stop. She demanded that Weatherly put a stop to the constant solicitation by Carter. Robinson did not testify so the testimony of Carter is uneontradicted to the effect that her solicitation of Robinson in behalf of the Union was not coercive and occurred at the plant during non-working hours and at Robinson’s home.

Weatherly had also received complaints from employees James Fox, Phillip Davis, Larry Craddock and William Breedlove that employee Terry Mofield was harassing them during working time to join the Union. All, save Fox, uttered threats against Mofield to Weatherly. These reports led to an oral reprimand of Mofield. The Board found that the reprimand was not an unfair labor practice since it was not prompted by anti-union animus and there is no challenge here to that determination.

As a result of the complaints, individual disciplinary sessions were held on February 19 with the employees against whom complaints had been lodged. Weatherly gave each an oral reprimand in the presence of her supervisor and entered a written notation of the reprimand in each employee’s personnel file. At no time prior to the sessions did Weatherly or any other member of the supervisory staff of the Company investigate the disciplined employees’ version of the incidents which were the subjects of the complaints.

Organizational activities are protected under Section 7 of the Act when carried out in an orderly manner which produces a minimum of interference with normal work patterns. Although some leeway must be given for impulsive behavior an employer may discipline his employees for “flagrant conduct” even though occurring in the course of organizational activities protected by the Act. N.L.R.B. v. Thor Power Tool Co., 351 F.2d 584, 587 (7 Cir. 1965). The Company argues that the harassments complained of by Starks and Robinson justify the reprimands as a normal incident of an employer’s right to maintain order in his operations. The trial examiner found that no harassment occurred with respect to either Starks or Robinson and his finding was accepted by the Board. We note that Carter’s testimony that her solicitation of Robinson was not coercive and was in response to Robinson’s expression of interest is not contradicted. The Board specifically found that Starks’ reaction was not the result of harassment but was an exaggeration brought on by personal difficulties and that conclusion is amply supported by the record. The Board was persuaded by these considerations to accept the conclusions of the trial examiner who observed as follows:

“I am unable to find that the record preponderates in favor of a finding that Carter had, in fact, engaged in harassment of Robinson .... [T]he record fails to preponderate in favor of a finding that not only Pleasant but also Carter and Hasty had harassed Starks . ... ”

We conclude that the Board’s findings that neither Starks nor Robinson was harassed are supported by substantial evidence. Hosiery Corporation of America v. N.L.R.B., 422 F.2d 784, 786 (4 Cir. 1970).

The Board further concluded that since no harassment had occurred the reprimands stemming from the incidents related above violated Section 8(a)(1) and (3) of the Act. The Board found that the Company’s failure to get both sides of the story before issuing reprimands, and the warnings to Pleasant, Carter and Hasty not to use force when, in fact, such threats had been voiced only by Starks, indicated an anti-union animus. The Board also found that the absence of any assurance that protected organizational activity would be respected combined with vague reprimands for “harassment” would deter the employees in the exercise of their rights under the Act. The trial examiner’s conclusion which was adopted by the Board states:

“In all these circumstances, I infer, and find, that the claimed fear of violence if there was a recurrence of the aforesaid episode was merely a pretext to mask Respondent’s opposition to any solicitation activity by these employees in the plant in behalf of the Union.”

We think there is substantial supporting evidence on the record as a whole and we therefore grant enforcement of that portion of the Board’s order dealing with the reprimands of Carter, Pleasant and Hasty. N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368 (1941).

Following the reprimands of February 19, the Board investigated the charges of violations of Section 8(a)(1) and (3) filed as a result of the reprimands. On March 17, the Board interviewed and took statements from those employees who were disciplined and, at the request of the employer, from those employees complaining of harassment by pro-union employees. Subsequently, a complaint was issued against the Company.

Prior to the hearing on the complaint and in preparation of its defense to the charges the Company sought to obtain copies of the statements given to the Board by Fox, Davis, Craddock, Robinson and Starks, those employees on whose complaints the Company had acted in giving the reprimands. Counsel for the Company prepared a talk that was to be given orally to the five employees last named above. He also drafted a form letter, addressed to the Board’s representative, to be presented to each of the five employees for consideration and signature, should the employee desire to assist the Company. The General Counsel stipulated that the representations in the form letters were true, i. e., that the cooperation of the employees was entirely voluntary and that it had been explained to them that they would not be punished for refusal nor rewarded for agreement to sign the letters. Still, the Board ruled that actual coercion need not be proved and that the mere request for a prehearing statement constituted a violation of the Act:

“For, it is the very manifestation by an employer to an employee of an interest in what the latter had to say about him in the statement which constitutes the vice of the situation.
“In view of all the foregoing, and on the entire record in this case, I conclude, and find, that Respondent, by requesting the five employees named above to obtain their pretrial statements from the Board, and by assisting them in doing so, violated Section 8(a) (1) of the Act.”

We cannot accept this ruling as applicable or as supported by the record here.

The Board cites a number of cases to sustain its argument that the mere request for pretrial statements violates the Act. An examination reveals particular features of those cases that render them of little or no value in support of the Board’s argument.

In N.L.R.B. v. Winn-Dixie Stores, Inc., 341 F.2d 750 (6 Cir. 1965), the court granted enforcement of the Board’s order finding the requests for copies of statements to be a violation of Section 8(a)(1). The court also recognized, however, that copies of pretrial statements may be requested lawfully when done in accordance with established Board procedures, citing W. T. Grant Co. v. N.L.R.B., 337 F.2d 447 (7 Cir. 1964). Thus the court recognized that situations may arise in which mere requests are made in such a fashion as to remove the presumption of coercion which might otherwise attach.

Texas Industries, Inc., v. N.L.R.B., 336 F.2d 128 (5 Cir. 1964), also involved the grant of enforcement of an order of the Board based upon a determination that requests for statements violated the Act. Of the 200 employees at the plant, 147 were interviewed and each was asked to supply the employer with a copy of any statement that might have been made to a Board agent. Only four employees agreed, and these four were again extensively interviewed as to the contents of their statements. While acknowledging that a delicate balance must be struck between the legitimate interests of the employer and the right of the employees to be free of undue pressures and coercion the court concluded that, on the facts of the case, the Company had exceeded the scope of investigation necessary to prepare its defense to unfair labor practice charges:

“The question seeking to elicit all information given the NLRB agent, and the blanket request for copies of the statements employees had given the Board were indiscriminate inquiries which exceeded the necessities of the situation. .
“It may be that under some circumstances a showing could be made that an employer would be justified in obtaining copies of employees’ statements. We are satisfied that such circumstances are not present here.” 336 F.2d 133-134 (emphasis added; footnote omitted).

Therefore, far from supporting the position that the mere request for statements made by employees constitutes a violation of the Act, the Fifth Circuit found a violation only on the facts as proved, and expressly noted that the mere request did not constitute a violation absent evidence of actual coercion or intimidation.

In N.L.R.B. v. Ambox, Inc., 357 F.2d 138 (5 Cir. 1966), both the attorney for the employer and the president of the Company were guilty of coercive measures in their attempts to obtain copies of statements made to Board investigators. Unlike the assurances given in the present case, the employer had made an express representation of reward for cooperation in supplying a copy of a statement given to a Board agent.

“Counsel’s request, however, of two ' Board witnesses for copies of their Board statements, and the employer’s solicitation from an employee of a copy of his statement with the promise it would put a feather in his cap violated the Act.” 357 F.2d at 141 (emphasis added).

It is significant that the court should refer to the employees as “Board witnesses” rather than merely as “employees.” Therefore, in light of the findings of coercive pressure on the employees, who were also Board witnesses, and the promise of reward for cooperation, the Ambox case cannot support the theory of the Board in finding a violation of the Act on the facts of the instant case.

Henry I. Siegel Co., Inc., v. N.L.R.B., 328 F.2d 25 (2 Cir. 1964), involved a broad investigation of unfair labor practices at the employer’s clothing factories. The employer “requested” copies of the statements made by its employees to investigators for the Board. In granting enforcement of the Board’s order finding that the requests violated the Act, the court observed:

“Several employees testified to their apprehension when requested to deliver copies of their statements, to the extent that some of them were induced to destroy their copies or to request the investigator to mail the copy to their home.” 328 F.2d at 27.

This is in sharp contrast to the facts of the case before us. Several employees whose statements were requested were called by the Company to testify. All testified that not only were they willing to aid the Company but were happy to do so.

In N.L.R.B. v. General Stencils, Inc., 438 F.2d 894 (2 Cir. 1971), the court granted enforcement of the Board’s order finding a violation of the Act on the basis that the employer had no valid interest in the inquiry into the contents of the pretrial statements given to the Board investigators. Unlike the previously discussed cases there was no evidence of any fear in the employee whose statement had been requested and he “had no qualms in indicating to [the supervisor] that he had told the Board ‘the truth.’ ” For that reason the Second Circuit’s holding differed from its earlier position in Henry I. Siegel, supra. The court noted:

“We thus might have hesitated in sustaining the Board’s finding on this issue were it not that we perceive no legitimate employer interest in the solicitation of such information under the circumstances here presented and an order condemning such questioning without proof of effect is thus justified.” 438 F.2d at 898 (footnote omitted).

However, in the case before us, the Company had a valid reason for wanting to discover the contents of the statements given to the Board. Those statements, given by employees whose charges initiated the reprimand procedure, were necessary and helpful to the Company in preparing its defense to the charged violations. See Midland Broadcasters, Inc., 176 NLRB 107, 113-114 (1969).

Retail Clerks International Association v. N.L.R.B., 125 U.S.App.D.C. 389, 373 F.2d 655 (1967), is the one case cited by the Board which might seem to provide some support for its position. The evidence there showed that the employer exerted extreme pressure on its employees to reveal the contents of their pretrial statements. The employer suspended those who balked at answering, and threatened discharge for continuing refusal. The court recognized that “[t] hough the record would have supported a finding of coercion that would distinguish such cases as W. T. Grant Co. v. N.L.R.B., 337 F.2d 447, 449 (7 Cir. 1964), the Board held that the mere request was a violation of the Act.” The court then proceeded to grant enforcement of the Board’s order. We think that the ultimate disposition of the case was proper since coercion in connection with the request for statements was clearly established. We conclude that the holding of that case is to be interpreted in light of the facts as set out therein and has no application here. Insofar as Retail Clerks Int’l Ass’n may be in conflict with the conclusion which we reach we decline to follow it and are persuaded instead by the reasoning of Atlantic & Pacific Tea Co., 138 NLRB 325 (1962):

“I can appreciate the General Counsel’s concern over the Respondent’s tactics in obtaining the affidavits of his witnesses in this manner. Board policy, as embodied in Section 102.118 of the Board’s Rules and Regulations, is not to produce any such statements until after the witness has testified. But the issue here is confined to whether or not Respondent’s conduct in obtaining copies of these affidavits was in violation of Section 8(a)(1) of the Act. I am constrained to find that it was not. The evidence shows that Smith but requested the employees to obtain copies of their affidavits for the purposes indicated. He did not, as General Counsel alleges, demand that they be produced. In the absence of any threats, harassment, or undue persuasion, I am compelled to find that Smith’s conduct in this regard was not in violation of Section 8(a)(1) of the Act.” 138 NLRB at 334-335.

The Board adopted the per se rule on the theory that a pretrial statement of an employee may well contain information not material to the proceedings brought against an employer, and to which, therefore, he is not entitled. It is argued that if these statements must be made available to the employer simply at his request the ability of the Board to investigate allegations of unfair labor practices would be seriously hampered due to the inhibitory effect on the employees’ willingness to talk. See, N.L.R.B. v. Winn-Dixie Stores, Inc., 341 F.2d 750, 752-753 (6 Cir. 1965). While this argument may have merit in many situations, such as when an employer goes on a “fishing expedition” for any statements given by his employees in the course of a general investigation we cannot agree that the mere request for copies constitutes a Section 8(a)(1) violation under the facts of this case.

There is no evidence that the five employees were coerced when the requests were made for copies of their statements. The General Counsel stipulated that the representations of voluntariness in the form letters were true. Those employees called to testify for the Company indicated they were willing and anxious to aid the Company. In addition, it was explicitly' revealed in the form letter that the request was made on the Company’s behalf. This afforded the Board an opportunity to determine the voluntariness of the employees’ participation, to excise portions considered irrelevant or immaterial or refuse to comply with the request. The frankness of the disclosure was a clear indication of the absence of any coercive purpose in requesting the statements.

The test to be applied with respect to determining coercion is whether the employer engaged in conduct which, it reasonably may be said, tends to interfere with the free exercise of employee rights. N.L.R.B. v. Illinois Tool Works, 153 F.2d 811 (7 Cir. 1946). In the instant case it is to be borne in mind that these proceedings originated as a result of complaints of harassment and interference lodged against certain pro-Union employees by those very employees who requested that they be furnished copies of their statements. It is incredible that these complaining employees would object to the revelation of any information of that nature which might be contained in the statements to the Board investigators. It is further to be noted with emphasis that the investigation in the instant case concerned specific charges, involving only a very small number of employees, and was not a wholesale investigation of alleged anti-Union activities on the part of the Company. Under these particular facts and circumstances we conclude that the employer’s request for copies of statements would not deter other employees from giving statements to the Board’s agents; it would not, in our opinion, tend to interfere with the free exercise of employee rights. Appropriate here is the language of the court in W. T. Grant Co. v. N.L.R.B., 337 F.2d 447 (7 Cir. 1964):

“The Board argues that statements obtained might contain irrelevant and immaterial information. This might be true in some cases, but here, the affidavits were obtained by Mr. Bennett, the Board’s trial attorney, in respect to a specific charge that Mrs. Gullo had been discharged for union activities. If Mr. Bennett's inquiry went beyond the scope of materiality and relevancy, Grant [the company] should not be penalized.” 337 F.2d at 449.

It must be noted that we reach the decision in this case upon its particular and somewhat unusual facts. Enforcement of that portion of the Board’s order dealing with the requests for copies of the pretrial statements of the employees is denied.

Enforcement granted in part and denied in part.

      . 29 U.S.C. § 100(f).

      . 29 U.S.C. § 158:
      “(a) It shall be unfair labor practice for an employer—
      (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
      (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization:....”

      . All dates hereinafter mentioned are in 1971.

      . However, in requesting copies of the statements given to Board agents by those who complained about Mofield’s conduct the Company was charged with violations of Section 8(a)(1), just as it was in connection with requests for the statements of Starks and Robinson as discussed infra.

      . 29 U.S.C. § 157:
      “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain . . . and to engage in other concerted activities for the. purpose of collective bargaining or other mutual aid or protection ... ”

      . “We have learned that you' gave a statement to the NLRB ooneerning certain unfair labor practice charges that have been filed against the Company. We feel that it would be helpful to us in preparing for a hearing on these charges if we could review a copy of your statement prior to the hearing. For this reason, we are asking you to send a letter to the Board requesting a copy of your statement for us to review.
      “This is a request. It is not a demand. You may refuse to do this without fear of any adverse action by the Company as a result of your refusal. You will not be discharged or disciplined. Nor will your employment be affected in any other way. Neither will you be rewarded if you agree to this request. You are perfectly free to agree to this or refuse to agree, whichever you may see fit to do.”
      The Board found that the talk was either not given in its entirety to the employee or not given at all in the case of some. We conclude, however, that the recital of .a proposed talk to the five employees is not crucial in determining whether the request for statements constituted a Section 8(a) (1) violation.

      . Dear Mr. Reynolds :
      My employer lias requested me to ask tlie Board for a copy of tbe statement I gave to a representative of the Board concerning the above case. I have voluntarily agreed to do as requested and I would like you to send me a copy of my statement which I plan to turn over to my employer. Please send my statement to me at (insert the correct address).
      My employer has explained to me that the statement may be helpful to the Company in preparing for the hearing in this case. My employer has also explained to me that I am under no obligation to make this request, that it is entirely voluntary on my part, and that my employment will not be adversely affected in any way if I refuse. I also understand that I will not be rewarded in any way because I have agreed to do this.
      Very truly, yours, (Employee’s Name).

      . In the case at bar, the Company employed approximately 560 people. Only five employees were asked to supply the Company with statements. These were the same five employees who initially complained of union harassment and who were interviewed by the Board at the request of the employer. Clearly on the facts, the Company did not engage in blanket requests and indiscriminate inquiries as was the case in Texas Industries, supra.

      . In the ease at bar, the witnesses involved were “Company witnesses.” They were not called to testify by the General Counsel but rather were called by the Company. They had initially complained of union harassment to the Company, had agreed to help the Company in any way, and testified to facts favorable to the Company’s position at the hearing.

      . Retail Clerks Int’l Ass’n v. N. L. R. B., 125 U.S.App.D.C. 389, 373 F.2d 655, 658 (1967).

      . The court concluded that the limitations on a request for statements did not severely handicap the employer’s preparation for a hearing since on demand he would be supplied with a copy of the statements of employees who testify at the hearing. Under the facts of the case at bar it is doubtful that the employer would ever be able to obtain the statements. 29 C.F.R. § 102.-118(b)(1) provides that after a witness called by General Counsel or the charging party has testified at a hearing the trial examiner must, upon motion of the respondent, order the production of any pretrial statement of that witness. Since the five witnesses whose statements were requested were witnesses for the employer and not for the General Counsel or the charging party, those statements were not required to be released. The Board’s interpretation of Retail Clerics Int’l Ass’n coupled with 29 C.F. R. 102.118(b)(1) would foreclose the respondent employer from obtaining the statements of a favorable witness who is an employee.


source: Caselaw Access Project

author: FIELD, Circuit Judge:

license: Public Domain

text:
    WAYNE-GOSSARD CORPORATION, Appellee, v. RUSSELL HOSIERY MILLS, INC., Appellant.
    No. 72-2344.
    United States Court of Appeals, Fourth Circuit.
    Argued April 3, 1973.
    Decided Aug. 30, 1973.

      David Rabin, and Welch Jordan, Greensboro, N. C. (Jordan, Wright, Nichols, Caffey & Hill, Greensboro, N. C., on brief), for appellant.
    Charles B. Park, III, Charlotte, N. C. (Joseph W. Grier, Jr., W. Thad Adams, III, Parrott, Bell, Seltzer, Park & Gibson, and Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston, Charlotte, N. C., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and BUTZNER and FIELD, Circuit Judges.
   FIELD, Circuit Judge:

Russell Hosiery Mills, Inc., appeals from an order of the district court which held that certain hosiery products of Russell infringe Claims 4 and 5 of the Sarbo United States Reissue Patent No. RE 26,667, which patent is owned by the plaintiff Wayne-Gossard Corporation. The order of the district court also enjoined Russell from further acts of infringement.

The plaintiff’s predecessors, Wayne Knitting Mills and The May Corporation, previously sued Russell for infringement of Claim 3 of the original Sarbo United States Patent No. 3,-059,458, and in that litigation the district court held the original patent to be valid and Claim 3 to have been infringed by Russell. Upon appeal we held Claim 3 of the original patent to be invalid for overclaiming and indefiniteness, 35 U. S.C. Section 112. Shortly after that decision the inventor, Sarbo, and Wayne applied to the Patent Office for a reissue of the original Sarbo Patent pursuant to the provisions of 35 U.S.C. Section 251. The Sarbo reissue application included new Claims 4 and 5 and can-celled the original Claim 3 of the Sarbo Patent. Claim 4 of the Reissue Patent is couched in substantially the language of the original Claim 3, but incorporates additional language responsive to the decision of this court in the former appeal.

At the time the Sarbo Reissue Patent was granted, Russell was making and selling foot covers which had a substantially straight seam across the bottom similar to those which were the subject matter of the prior litigation. Upon learning of the Sarbo Reissue Patent, however, counsel for Russell prepared sketches of foot covers with sinuous contour seams which, in their opinion, could be manufactured without infringement of Claims 4 and 5 of the Reissue Patent. In the present litigation Russell defended solely upon the grounds of non-infringement, and did not challenge the validity of the Sarbo Reissue Patent either in the court below or upon this appeal.

The Wayne foot cover as outlined in Claims 4 and 5 of the Reissue Patent is characterized by a seamless tubular elasticized rim adapted to form the foot entry opening with a seamless tubular body having a length greater than that of the rim and connected therewith. The foot cover has a seam formed at the end of the body opposite the rim to form a symmetrical pouch-like body which can be adapted to function as tip, sole and heel portions and can be worn in reversed positions. The novel function of the Wayne foot cover is that the elasticized rim is positioned below the ankle in a foot hugging stretched condition and is completely concealed from view when worn with low cut shoes. As stated, it has no definite toe and heel portions and can be conveniently worn in reversed positions upon the foot.

In comparing the products of Wayne and Russell, the district court found that Russell’s styles 1331, 1333 and 1339 were characterized by being extremely elastic and extensible and fitting in a highly stretched condition upon the foot with the cover being positioned below the ankle in a foot hugging and stretched condition completely concealed from view when worn with low cut shoes. The accused styles are comprised of a seamless stretchable tubular body having an axial length greater than the rim, the rim and body consisting of the same knitting structure throughout its axial length and its entire periphery, and a seam formed at the end of the body opposite the rim. The accused foot covers are closed by a contoured seam which when accurately sewn results in one side of the cover being in a relaxed condition and some one-fourth inch shorter than the other side. The district court found, however, that by reason of the high degree of stretchability, the so-called contour seam disappears and becomes straight under slight stretching, with the result that each foot cover is reversible from heel to toe. The district court further found that the seam in the accused Russell styles functions in the same manner and accomplishes the same result as the seam disclosed and claimed in the Sarbo Reissue Patent and produces no useful result or improvement thereon.

In the light of these findings of the district judge it would appear that the only purpose served by the contour seam in the Russell foot covers is to avoid being a Chinese copy of the foot covers described in Claims 4 and 5 of the Sarbo Reissue Patent. The law is well settled that “if the defendant in fact departs from the teaching of the patent, not making a simulated departure merely while copying the essence of the patent, it cannot be held liable for infringement. * * * It is equally axiomatic in the law of patents that the addition of a useless or unimportant item cannot avoid infringement, but is recognized as a frequent resort of in-fringers to mask their true purpose.” Johnson & Johnson v. Carolina Lee Knitting Co., 258 F.2d 593, 597 (4 Cir. 1958). We agree with the conclusion of the district court that every essential element of the foot cover described in the claims of the Reissue Patent is embodied in the Russell products and clearly infringes those claims. See Marston v. J. C. Penny Company, 353 F.2d 976 (4 Cir. 1965); Frick Co. v. Lindsay, 27 F.2d 59 (4 Cir. 1928).

Russell seems to argue that the term “seam” in the Sarbo claim means a “looped seam” and that this is in some manner indispensible to the formation of a “symmetrical pouch-like body” as embodied in the Reissue Patent. However, this contention finds no support in the record. In the original proceedings in the Patent Office, the attorney for Sar-bo candidly stated that the stretchable seam may be formed by a method known per se on any number of existing machines. Additionally, we note that in the former litigation involving Claim 3 of the original Patent, the district court found that “[t]he sock of the Sarbo invention can be made on practically any type of circular hosiery machine and can be closed along the bottom by a conventional looping operation or seamed with a straight machine seam by relatively unskilled personnel.” This finding went unchallenged by Russell and appears to have been accepted by this court upon the former appeal.

Finally, Russell contends that under the finding of the district court it is precluded from the legitimate use of the teaching of the expired Grey Patent, No. 2,333,373. As counsel for Wayne points out, Grey is no stranger to this controversy for it was thoroughly considered and analyzed by the Patent Office as well as Judge Gordon in the prior litigation and Judge Merhige in the present case. Both of these judges found that there is no suggestion in Grey for the placement of rubber in the upper welt portion nor is such a foot cover reversible. Judge Merhige concluded that the phrase “symmetrical pouch-like body” as used in the Reissue Patent was intended to distinguish the Sarbo product from foot covers of the type disclosed by Grey and others in which the cover has a definite toe and heel and can be worn only in a non-reversible position.

The findings and conclusions of the trial judge find solid support in the record and should not be disturbed upon appeal. See Graver Mfg. Co. v. Linde Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950); Porter-Cable Machine Co. v. Black and Decker Mfg. Co., 402 F.2d 517 (4 Cir. 1968), cert denied, 393 U.S. 1063, 89 S.Ct. 716, 21 L.Ed.2d 706 (1969); Carolina Lee Knitting Company v. Johnson & Johnson, 275 F.2d 91 (4 Cir. 1969).

The judgment of the district court is affirmed.

Affirmed.

      . Wayne Knitting Mills v. Russell Hosiery Mills, Inc., 274 F.Supp. 934 (M.D.N.C. 1967).

      . Wayne Knitting Mills v. Russell Hosiery Mills, Inc., 400 F.2d 964 (4 Cir. 1968), cert. denied, 393 U.S. 1064, 89 S.Ct. 717, 21 L.Ed.2d 707 (1969).

      . Claim 4 of the Reissue Patent reads as follows, the additional language which was added to Claim 3 being underlined :
      4. A knitted foot cover characterized by being extremely elastic and extensible for being fitted in a highly stretched condition upon the asymmetrical configuration of the lower part of the foot of a wearer with the foot cover being of such height as to be positioned below the ankle in foot hugging, stretched condition, completely concealed from view when worn within low cut shoes, said foot cover comprising

      a seamless stretchable tubular rim including at least some rubber threads,
      said rim being adapted to form an opening for a foot entry,
      a seamless stretchable tubular body having an axial length greater than that of said rim and connected with said rim,
      said rim and said body, each, respectively, consisting of the same knitting structure throughout its axial length and throughout its entire periphery, and
      a seam formed at the end of said body opposite said rim to form a symmetrical pouch-like body, and
      said body being adapted to function as tip, sole and heel portions of said foot cover,

        whereby upon placing the foot cover on the lower part of a foot, the attendant stretching of the foot cover reduces the combined axial length of said rim and said body and the foot cover fits over and hugs only the lower portion of the foot with said rim positioned on the asymmetrical portion of the foot below the ankle.

      Claim 5 of the Reissue Patent reads substantially the same as Claim 4.


text:
    Rachel R. BLALOCK, Appellee, v. Elliot L. RICHARDSON, Secretary of the Department of Health, Education and Welfare, Appellant.
    No. 72-1187.
    United States Court of Appeals, Fourth Circuit.
    Argued June 8, 1972.
    Decided Aug. 28, 1972.

      Judith S. Feigin, Atty., Dept, of Justice (L. Patrick Gray, III, Asst. Atty. Gen., Kathryn H. Baldwin, Atty., Dept, of Justice, Washington,. D. C., and John K. Grisso, U. S. Atty., Greenville, S. C., on brief), for appellant.
    James B. Stephen, Spartanburg, S. C. (George H. Thomason, Spartanburg, S. C., on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and CRAVEN and BUTZNER, Circuit Judges.
   BOREMAN, Senior Circuit Judge:

The Secretary of Health, Education and Welfare appeals from a decision of the district court reversing the Secretary’s administrative denial of disability benefits to claimant, Rachel R. Blalock.

Mrs. Blalock applied for a period of disability and disability benefits under Sections 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C.A. §§ 416(i), 423, alleging rheumatoid arthritis in her hands. Upon initial denial of her application, Mrs. Blalock requested and was granted a hearing at which she was represented by counsel. The decision of the hearing exarqiner was also adverse to claimant whereupon she filed additional evidence in the form of medical reports which were not before the examiner, in support of her request for reconsideration by the Appeals Council. The Council denied her request after consideration of the record and new evidence.

Pursuant to Section 205(g) of the Act, as amended, 42 U.S.C.A. § 405(g), claimant sought judicial review in the United States District Court. It is from the decision of that court awarding her disability benefits that the Secretary appeals. Bearing in mind the limited nature of the court’s power of review we conclude that the judgment below cannot be upheld.

Claimant had the burden of proving her disability to the satisfaction of the Secretary, under a two-fold test. First, there must be a medically determinable physical or mental impairment, and second, the impairment must be such as to render her unable to engage in substantial gainful employment. 42 U.S.C.A. § 423(d); 20 CFR §§ 404.-1501(b), 1532(b). Hayes v. Gardner, 376 F.2d 517, 520 (4 Cir. 1967); Laws v. Celebrezze, 368 F.2d 640, 643 (4 Cir. 1966). See, Brown v. Celebrezze, 367 F.2d 455, 456 (4 Cir. 1966); Cyrus v. Celebrezze, 341 F.2d 192, 194 (4 Cir. 1965); Thomas v. Celebrezze, 331 F.2d 541, 545 (4 Cir. 1964). She had the additional problem here of proving that her claimed disability existed prior to June 30, 1964, the date she last met the special earnings requirement. 42 U.S.C.A. § 423(c); 20 CFR Subpart B, §§ 404.101-120. Flack v. Cohen, 413 F.2d 278, 279 (4 Cir. 1969); Brown v. Celebrezze, 367 F.2d 455, 457 (4 Cir. 1966). See, Brandon v. Gardner, 377 F.2d 488, 491 (4 Cir. 1967).

The scope of judicial review by the federal courts is specific and narrow under Section 205(g) of the Act. That section provides that “. . . the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . .” The fact that the record as a whole might support an inconsistent conclusion is immaterial, for the language of § 205(g) precludes a de novo judicial proceeding and requires that the court uphold the Secretary’s decision even should the court disagree with such decision as long as it is supported by “substantial evidence.” Whiten v. Finch, 437 F.2d 73, 74 (4 Cir. 1971); Rome v. Finch, 409 F.2d 1329, 1330 (5 Cir. 1969); Hayes v. Gardner, 376 F.2d 517, 520 (4 Cir. 1967).

The phrase “substantial evidence” has been defined by this court to be:

“. . evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.’ ”

Laws v. Celebrezze, 368 F.2d 640, 642 (4 Cir. 1966). Accord, Richardson v. Per-ales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ; Kyle v. Cohen, 449 F.2d 489, 492 (4 Cir. 1971); Daniel v. Gardner, 404 F.2d 889, 890, n.1 (4 Cir. 1968); Hayes v. Gardner, 376 F.2d 517, 520 (4 Cir. 1967); Thomas v. Celebrezze, 331 F.2d 541, 543 (4 Cir. 1964).

There are four elements of proof to be weighed in determining whether there is substantial evidence to support the Secretary’s decision: (1) the objective medical facts; (2) the diagnoses and expert opinions of treating and examining physicians on subsidiary questions of fact; (3) subjective evidence of pain testified to by the claimant and corroborated by family and neighbors; (4) the claimant’s educational background, work history and present age. Underwood v. Ribicoff, 298 F.2d 850, 851 (4 Cir. 1962). Accord, Lackey v. Celebrezze, 349 F.2d 76, 77 (4 Cir. 1965); Dillon v. Celebrezze, 345 F.2d 753, 755 (4 Cir. 1965); Jenkins v. Celebrezze, 335 F.2d 6, 8 (4 Cir. 1964); Thomas v. Celebrezze, 331 F.2d 541, 545 (4 Cir. 1964).

Claimant originally alleged rheumatoid arthritis in her hands as the basis of her disabling impairment. However, all evidence introduced at the hearing upon which the district court based its decision was that she was permanently disabled due to a severe neurosis coupled with a grossly inadequate personality. The court stated:

“The Secretary’s decision is not supported by substantial evidence. A thorough review of the medical data in the record reveals that the plaintiff has suffered from a chronic severe mental impairment since 1954 and that the impairment has continued to the present. Medical reports from Spartanburg General Hospital disclose that in 1954 plaintiff suffered from emotional hysteria and a guilt or escape complex. The treating physician reported that the plaintiff seemed emotionally unsound and didn’t seem to know when to laugh or cry.”

Mrs. Blalock is thirty-nine years of age and attended junior college for slightly over one year. Prior to the onset of her alleged disability, she held a variety of jobs including work in an automobile club, a shirt manufacturing plant, a laundry, and from 1959 to 1961 at the John Dritz Company packaging sewing aids even though she claimed that the rheumatoid arthritis was disabling on March 31, 1960.

In August of 1954, Mrs. Blalock, then Rachel Rollins, was admitted to Spartan-burg General Hospital with a provisional diagnosis of endometriosis. The examining physician, Dr. Smart, in noting his observations, stated in the medical record that it was “probably emotional hysteria; guilt or escape complex.” Nonetheless, a dilation and curettage was performed. The existence of an actual physical source of her problem was supported by a postoperative report of the surgeon who performed an appendectomy on claimant in October of 1954. In that report he stated that she suffered from a par ovarian cyst and possible endometriosis of the right fallopian tube and ovary.

In December of 1954 claimant was again admitted to the hospital with a diagnosis of thrombophlebitis. Once again the examining intern, this time a Dr. Smith, felt that the cause of her trouble was “more likely hysteria.”

It was obviously on these reports not in evidence before the hearing examiner that the district court based its decision to overturn the Secretary’s denial of benefits. However, this evidence is merely of a cumulative nature indicating that Mrs. Blalock had the beginnings of an emotional impairment two years earlier than previously thought but it does not indicate a degree of severity necessary to sustain a finding of a period of disability under the Act prior to the expiration of her insured status.

Mrs. Blalock’s family physician from 1956 until 1961 stated in a letter that he had seen her infrequently and always in connection with a physical ailment, and while he had noted an element of hysterical conversion, it was not marked at the time. Emotional instability is not thereafter evidenced until 1964. Mrs. Bla-lock’s chiropractor, who was treating her for a spine problem not diagnosed by her physicians, stated in a letter that he found her to be very nervous and despondent at times and that she had at one time talked of taking her life. This falls far short of proof of a disability which would render her incapable of engaging in “substantial gainful employment.”

Claimant relied heavily on the testimony, given in 1970, of Dr. Moody, the physician who admitted her to the hospital in December of 1964, six months after her insured status had expired, that it “was quite evident that her intense and extreme anxiety was not of sudden onset but went back probably many years.” This testimony was in serious conflict with the medical records made by Dr. Moody in 1964, in which he reported that she suffered from acute anxiety (i. e., short-term) and that she responded favorably to treatment that indicated a moderate attack, and was released in “good” condition. In choosing to disregard Dr. Moody’s testimony as the product of a “somewhat faulty memory,” the hearing examiner was functioning as the trier of fact whose duty it is to resolve conflicts in the evidence.

Claimant contends that the evidence of an earlier onset, coupled with her eventual decline to permanent disability, supported a finding that she was disabled prior to 1964. Acceptance of such contention would require that the medical testimony be interpreted as proving that her mental deterioration was accomplished between eight and ten years after the first symptoms were recorded. Such an interpretation is not compelled, as shown by the Medical Advisor, Dr. Galloway, who testified:

“. . . she had this inadequate personality, as far as the record indicates, I think essentially life-long; but I don’t think from the record that we have a significant degree of evidence of a significant degree of psychoneurosis until well after 1961. We have some evidence of it then; we have evidence in 1964, but we don’t have those intervening years, the time during the so-called critical period.” (Emphasis added.)

It is evident, therefore, that Dr. Galloway acknowledged the probable existence of symptoms earlier than 1956 but concluded that the impairment had not • reached a disabling stage prior to expiration of Mrs. Blalock’s insured status. The new evidence offered by claimant only served to support Dr. Galloway’s diagnosis that her illness was “gradual and progressive.”

We are of the opinion that the decision of the Secretary was supported by “substantial evidence” and that the judgment of the district court must be set aside.

Reversed.

      . 20 CFR § 404.947:
      The Appeals Council may dismiss . . . or, in its discretion, deny or grant a party’s request for review of a hearing examiner’s decision ....

      . 20 CFR § 404.943 provides that evidence not before the examiner may not be received by the Appeals Council unless it appears to the Council that such additional information “may affect its decision.”

      . The burden is on claimant to prove her disability to the Secretary, though not beyond a reasonable doubt. Cyrus v. Cele-brezze, 341 F.2d 192, 195 (4 Cir. 1965) ; Thomas v. Celebrezze, 331 F.2d 541, 545 (4 Cir. 1964) ; Miller v. Richardson, 325 F. Supp. 91, 92 (S.D.W.Va.1971).

      . A review of the Secretary’s decision must be made on the record as a whole. Flack v. Cohen, 413 F.2d 278, 279 (4 Cir. 1969).

      . Thomas v. Celebrezze, 331 F.2d 541, 543 (4 Cir. 1964) ; Snyder v. Ribicoff, 307 F.2d 518, 520 (4 Cir. 1962).

      . Harris v. Richardson, 450 F.2d 1099, 1101 (4 Cir. 1971) ; Flack v. Cohen, 413 F.2d 278, 279 (4 Cir. 1969) ; Thomas v. Cele-brezze, 331 F.2d 541, 543 (4 Cir. 1964).

      . Dr. Galloway, the Medical Advisor, stated that the medicine prescribed for the attack indicated that it was of moderate severity.

      . Richardson v. Perales, 402 U.S. 389, 399-400, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ; Thomas v. Celebrezze, 331 F.2d 541, 543 (4 Cir. 1964) ; Snyder v. Ribicoff, 307 F.2d 518, 520 (4 Cir. 1962).

      . There is little doubt that Mrs. Blalock is now disabled within the meaning of the Act but there was no positive evidence of this until she was interviewed by a Psychiatrist, Dr' Doss’ ln 1970’ six years after her in' sured status expired’


author: TUTTLE, Circuit Judge:

text:
    Robert PUGH and Nathaniel Henderson, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Ap-pellees, Thomas Turner and Gary Faulk, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Interven-ors, v. James RAINWATER et al., Defendants-Appellants.
    No. 72-1585.
    United States Court of Appeals, Fifth Circuit.
    Aug. 15, 1973.
    Certiorari Granted Dec. 3, 1973.
    See 94 S.Ct. 567.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct. 595.

      Leonard R. Mellon, Asst. State Atty., Barry Richard, Asst. Atty. Gen., Miami, Fla., for defendants-appellants.
    Bruce Rogow, Miami, Fla., for Pugh & Henderson.
    Phillip A. Hubbart, Public Defender of Dade Co., Miami, Fla., for Pugh.
    Lewis Jepeway, Jr., Peter L. Nimkoff, Miami, Fla., amicus curiae for Dade County Bar Assn.
    Before JOHN R. BROWN, Chief Judge, and TUTTLE and INGRAHAM, Circuit Judges.
   TUTTLE, Circuit Judge:

We review here a District Court’s holding that each Dade County, Florida arrestee held for trial upon an information filed by the state attorney is entitled by the Fourth and Fourteenth Amendments to an expeditious hearing before a judicial officer on the question of probable cause for arrest. To implement this holding, the court later adopted a plan submitted by Sheriff E. Wilson Purdy (hereinafter the Purdy Plan), which required, inter alia, that persons arrested with or without warrants in Dade County, be accorded expeditious preliminary hearings before a magistrate and that those not accorded such hearings be released immediately. Implementation of the Purdy Plan was stayed by this court’s order of March 31, 1972, pending appeal, during which time Dade County’s judiciary moved voluntarily to establish its own plan for providing preliminary hearings. Following oral argument, on October 18, 1972, we vacated the stay order, directed the District Court to maké specific findings on the constitutional deficiencies, if any, of the then-current preliminary hearings practices, and authorized implementation of the Purdy Plan.

On December 6, 1972, the Florida Supreme Court issued its Amended Rules of Criminal Procedure. These rules, which took effect February 1, 1973, provide for a committing magistrate system. The differences between the Pur-dy Plan and these Amended Rules provided the focus for the District Court’s findings pursuant to our order, which were filed on March 12,1973.

In light of the aforementioned intervening developments, we must resolve the following questions: (1) Should the District Court have abstained from ruling on the constitutionality of Dade County’s lack of preliminary hearings in cases proceeded upon by information filed by the state attorney? (2) Do arrestees prosecuted upon informations certifying probable cause for arrest by the state attorney have a constitutional right to preliminary hearings before a magistrate? and (3) In what respects, if any, are the Amended Rules constitutionally deficient in their provisions for preliminary hearings?

I. Background

Persons arrested for felonies and most misdemeanors in Dade County, Florida are routinely brought to the Metropolitan Dade County Jail. Aside from capital cases, which must be tried on indictment by a grand jury, all other criminal cases in Florida may be commenced by “information filed by the prosecuting attorney under oath.” Florida Statutes § 904.01. Although preliminary hearings on probable cause for arrest with or without warrant are mandated by statute, the Florida judiciary has consistently held that such hearings are not required where the state prosecutes by filing an information certifying probable cause for arrest. Though the Florida Supreme Court has not been insensitive to the constitutional ramifications of incarceration without any preliminary probable cause hearing, it has declined to hold these practices unconstitutional or to fashion relief for arrestees held upon informations. Amended Rule 3.-131, 33 F.S.A., which provides for a right to a preliminary, hearing on any felony charge “unless charged in an information or indictment,” (Emphasis added), preserves the previous practice of permitting the state attorney’s certification to obviate the need for a preliminary hearing.

Criminal actions in Dade County, therefore, often proceed upon information sworn to by the state attorney either before or after arrest without any judicial scrutiny prior to arraignment. If.jmable_or_unwilling to post bail, arresteesjceanain.in jail at least until arraignment. This incarceration may last as long as 30 days, and at least three days must pass before an information is filed against an arrestee and the case is cdnendaYedr' Dimng' this period, the defendant sees no judicial officer other than the bad judge. Arraignment is the first opportunity for a magistrate to inspect^Thertsfate attorney’s information setting forth the cause upon which the defendant was arrested.

• The plaintiffs in this action, charged with various offenses under Florida law, filed a class action in the federal court on behalf of themselves and all other Dade County arrestees detained solely upon direct informations in which the state attorney certified probable cause for arrest and detention. They alleged that their pre-trial detention was in violation of the Constitution, and sought declaratory and injunctive relief entitling them to preliminary hearings.

II. Abstention

Fully cognizant that “A federal lawsuit to stop a prosecution in a state court is a serious matter.” Younger v. Harris, 401 U.S. 37 at 42, 91 S.Ct. 746 at 749, 27 L.Ed.2d 669 (1971), we nevertheless find that the plaintiffs’ claim is not barred by considerations of federal-state comity.

This suit, a class action by arrestees contesting the quality of their present detention pending trial, sought no relief which would impede pending or future prosecutions on various charges in the state courts of Florida. Rather, while accepting that the state courts were the proper forum for consummation of criminal proceedings against them, the plaintiffs argued that the State was nevertheless obligated to submit them to preliminary probable cause hearings.

This court has declined to issue declaratory or injunctive relief interfering with pending or future state court prosecutions, Becker v. Thompson, 459 F.2d 919 (5 Cir. 1972), cert. granted, sub nom Steffel v. Thompson, 410 U.S. 593, 93 S.Ct. 1424, 35 L.Ed.2d 686 (1973), unless the state statute under which the plaintiffs were being prosecuted was allegedly unconstitutional on its face, Jones v. Wade and Dyson, 479 F.2d 1176, 5 Cir., decided May 30, 1973. However, to Jiave not declined .to adjudicate federal questions properly presented merely because resolution of these questions would affect state procedures for handling criminal cases. Where, as here, the relief sought is not “agairist""añy pending or future court proceedings as such.” Fuentes v. Shevin, 407 U.S. 67, 71, n. 3, 92 S.Ct. 1983, 1989, n. 3, 32 L.Ed.2d 556, n. 3, (1971), (Emphasis added), Younger is inapplicable.

The relief sought by these plaintiffs was not against any state prosecution as such but only against the state’s practice of considering the state attorney a sufficient judge of probable cause to hold arrestees until arraignment or trial. Simply declaring that the plaintiffs were entitled to pre-trial procedural rights, the District Court said that the plaintiffs should “immediately be given a preliminary hearing to determine probable cause by a committing magistrate unless their cases have been otherwise concluded.” 332 F.Supp. at 1115, (Emphasis added). By recognizing that some plaintiffs’ cases might have been con-eluded, the Court demonstrated that its declaration of pre-trial rights was not to impede the plaintiffs’ prosecutions.

Not every unconstitutional pre-trial procedure, of course, will entitle a state court defendant to relief in federal court. For example, an uncomstitutional search and seizure does not entitle the state court defendant to any injunction, but only to have the evidence excluded when presented in state court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). On the other hand, when a plaintiff who happens also to be a defendant in a simultaneous state court proceeding seeks to challenge an aspect of the criminal justice system which adversely affects him but which cannot be vindicated in the state court trial, comity is no bar to his challenge.

If these plaintiffs were barred by Younger from this forum, what relief might they obtain in their state court trials? Since their pre-trial incarceration would have ended as of the time of trial, no remedy would exist. Their claims to pre-trial preliminary hearings would be mooted by conviction or exoneration.

Plaintiffs’ due process claim is closely analogous to that made in Morgan v. Wofford, 472 F.2d 822 (5th Cir.1972).

In Morgan, we held that Younger did not bar a claim by a probationer who had been afforded no hearing to ascertain the amount of restitution he owed the victim of his crime. We said:

“Abstention under the doctrine of Younger v. Hams, 401 U.S. 37, 91 S. Ct. 746, 27 L.Ed.2d 669 (1970) was never intended where there is no possible state proceeding through which appellant may raise his constitutional objections to a state proceeding which has already occurred .... we have never intimated that abstention is appropriate where there is no state court prosecution to be interfered with and where the plaintiff seeking relief in federal court has no alterna-' tive forum in which to raise his constitutional claim.” Id. at 826.

In Morgan, the plaintiff had already been subjected to the process which we held was unconstitutional. Had these plaintiffs waited until their state criminal trials to raise their due process objections, they would have already served their periods of pre-trial detention and would be barred from any relief. Infra, pp. 16-17.

While the plaintiffs might have filed suit in state court for a declaratory judgment and other equitable relief based upon the same grounds as this suit, this procedure would have required a second state court proceeding to adjudicate a federal claim not based upon the merits of the defenses to the state criminal actions. Younger has never been applied by our circuit to force a federal court to relinquish jurisdiction over a federal claim which could not be adjudicated in a single pending or future state proceeding, and we decline to so apply it now.

^Having held that reasons of comity do not bar this suit we need not decide whether this situation comprises an exception to Younger. While Younger abstention is inappropriate when “great and immediate irreparable injury is threatened”. Id. 401 U.S. at 46, 91 S.Ct. at 749, and even temporary unconstitutional deprivations of liberty may be such, injuries, Sweeton v. Sneddon, 324 F.Supp. 1094 (1971), Morgan v. Wof-ford, supra, 472 F.2d at 826, we need not decide whether incarceration without a preliminary hearing is an injury requiring federal intervention where Younger would otherwise bar our jurisdiction. Also, we need not decide whether Florida’s state court decisions, cited supra, so clearly show that under no circumstances will the state courts accord a constitutional right to a preliminary hearing that it would have been futile to require petitioners to seek redress in the state court system.

III. Probable Cause Hearings

The central issue in this case is whether the Fourth and Fourteenth Amendments require that arrestees held for trial upon informations filed by the state attorney must be afforded preliminary hearings before a judicial officer without unnecessary delay. More precisely, in the face of our numerous decisions holding that lack of such preliminary hearings will not vitiate a conviction, are the plaintiff arrestees, nonetheless, entitled to a judgment declaring that due process necessitates a probable cause preliminary hearing before a magistrate when the state attorney prosecutes presently-confined arrestees by filing an information?

In Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884), the Supreme Court rejected the proposition ' that due process under the Fourteenth Amendment requires state criminal prosecutions to be initiated via grand jury indictment. It said:

“We are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.” Id. at 538, 4 S.Ct. at 122. (Emphasis added.)

Since the lack of independent judicial determination of probable cause under the Dade County information system is precisely the infirmity alleged by the ap-pellees, Hurtado is of relevance only because it is the cornerstone on which later decisions were built.

Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913) extended Hurtado, allowing the state to proceed by information where

“The constitution and laws of Oregon . . , did not require any examination, or commitment by a magistrate, as a condition precedent to the institution of a prosecution by an information filed by the district attorney, nor require any verification other than his official oath.” Id. at 587, 33 S.Ct. at 783.

The Court refused to distinguish Hurta-do on the ground that Oregon had not required the information to be preceded by a magistrate’s preliminary examination and said that the opportunity for a judicial examination “prior to the formal accusation by the district attorney” Id. at 590, 33 S.Ct. at 784. (Emphasis added), is not obligatory upon the states. Whether or not it is reasonable to infer that there is also no necessity for a subsequent judicial finding of probable cause without unnecessary delay is the precise issue in this case.

In Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914), the defendants had moved to vacate an order of arrest upon the ground that it was made

“without any tribunal magistrate, or other competent authority having first determined that the alleged crime had been committed, and that there was probable cause to believe the defendants guilty of it.” Id. at 93, 34 S.Ct. at 713 (Emphasis added).

Though Ocampo decided the narrow issue of the necessity for investigation by a judicial officer before arrest, this dictum is broad enough to encompass the instant situation:

“It is insisted that the finding of probable cause is a judicial act/ and cannot properly be delegated to a prosecuting attorney. We think, however, that it is erroneous to regard this function, as performed by committing magistrates generally . . . as being judicial in the proper sense. There is no defínate adjudication. A finding that there is no probable cause is not equivalent to an acquittal, but only entitles the accused to his liberty for the present, leaving him subject to rearrest . . . since . . . the same act . . . does not prescribe how ‘probable cause’ shall be determined, it is, in our opinion, as permissible for the local legislature to confide this duty to a prosecuting officer as to entrust it to a justice of the peace.” Id. at 100-101, 34 S.Ct. at 715-716.

There is a significant difference between the Hurtado, Lem Woon, and Ocampo decisions and our case. Probable cause hearings prior to arrest place a heavy burden upon the State. After arrest, but before arraignment, an entirely different situation prevails. Where the State already has the defendant in custody it is not in jeopardy of losing him before a magistrate can rule on probable cause. It is only prejudiced if the magistrate finds there was no probable cause for believing the defendant committed the crime, in which case the prosecution ought not to proceed anyway. We therefore face squarely the plaintiffs’ contention that Florida’s denial of a probable cause hearing after arrest but before arraignment is constitutionally impermissible because the prosecuting attorney who certifies the existence or non-existence of probable cause, is not sufficiently detached to make this decision.

In McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1942), after pointing out that “legislation, requiring that arrested persons be promptly taken before a committing authority, appears on the statute books of nearly all the states,” Id. at 342, 63 S.Ct. at 614, the Court said that:

“The purpose of this impressively pervasive requirement of criminal procedure is plain. A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard — not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society.” Id. at 343-344, 63 S.Ct. at 614. (Emphasis added).

Recently, the Supreme Court has held on several occasions that judicial detachment was constitutionally mandated. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1970), held that the Fourth Amendment requires a neutral and detached magistrate to authorize the search and seizure of property by the police. Though New Hampshire argued that the Attorney General, who was authorized to issue warrants under state law, did in fact act as a neutral and detached magistrate, the Court responded:

“. . . there could hardly be a more appropriate setting than this for a per se rule of disqualification rather than a case-by-ease evaluation of all the circumstances. Without disrespect to the state law enforcement agent here involved, the whole point of the basic rule ... is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations — the ‘competitive enterprise’ that must rightly engage their single-minded attention.” Id. at 450, 91 S.Ct. at 2029.

In summary, the Court added:

“We find no escape from the conclusion that the seizure and search . . . cannot constitutionally rest upon the warrant issued by the state official who was the chief investigator and prosecutor in this case. Since he was not the neutral and detached magistrate required by the Constitution, the search stands on ho firmer ground than if there had been no warrant at all.” Id. at 453, 91 S.Ct. at 2031.

The Fourth Amendment’s prohibition against warrantless searches and seizures has been applied in two arrest situations closely analogous to the one at bar. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1971), required that a parolee, after arrest, could be returned to custody for violation of parole conditions only after a hearing on probable cause before someone not directly involved. The Court emphasized that

“ . . . due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available. Cf. Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963). Such an inquiry should be seen as in the nature of a ‘preliminary hearing’ to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions. Cf. Goldberg v. Kelly, 397 U.S. [254], at 267-271 [90 S.Ct. 1011, at 1020-1022, 25 L.Ed.2d 287],
“In our view, due proces requires that after the arrest, the determination that reasonable ground exists for revocation of parole should be made by someone not directly involved in the case” Id. at 485, 92 S.Ct. at 2602.

In Shadwick v. Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1971), the city authorized the issuance of arrest warrants by clerks of the Municipal Court. The petitioner challenged these warrants on the ground that the clerks were not neutral and detached magistrates for purposes of the Fourth Amendment as incorporated into the due process clause of the Fourteenth Amendment. The Court, accepting the proposition that the Constitution mandates that arrest warrants be issued only by “judicial officers” or “magistrates,” proceeded to hold that the clerks were judicial officers. In so holding, the Court explained :

“The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed and that the person or place named in the warrant is involved in the crime. Thus, an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search. This Court long has insisted that inferences of probable cause be drawn by ‘a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ Johnson v. United States, supra, [10] at [13-] 14 [of 333 U.S. 367 at 369 of 68 S.Ct., 92 L.Ed. 436]; Giordenello v. United States, supra, [480] at 486 [of 357 U.S. 1245 at 1250 of 78 S.Ct., 2 L.Ed.2d 1503]. In Coolidge v. New Hampshire, supra, the Court last Term voided a search warrant issued by the state attorney general ‘who was actively in charge of the investigation and later was to be chief prosecutor at the trial.’ Id., at 450 [of 403 U.S., at 2029 of 91 S.Ct.]. If, on the other hand, detachment and capacity do conjoin, the magistrate has satisfied the Fourth Amendment’s purpose.” Id. at 350, 92 S.Ct., at 2122 (Emphasis added).

Morrissey and Shadwick illustrate that probable cause for arrests may not always be determined by a prosecuting attorney, notwithstanding the dictum of Ocampo. Magistrates or other officials having the detachment of magistrates have been required to find probable cause for returning a parolee to custody and for issuing arrest warrants. Must such detachment be present in a hearing of probable cause where the state holds an arrestee upon an information sworn to by the state attorney? Because this Court has said that an arrestee proceeded against by information has no constitutional right to a preliminary hearing, Buchannon v. Wainwright, supra; Jackson v. Smith, supra; Scarbrough v. Dutton, supra, we turn now to these decisions.

The opinion of the trial court thoroughly explores the dispositive distinction between the instant case and prior decisions discounting the existence of a due process right to a preliminary hearing:

“Numerous opinions have been cited in which this circuit has held there is no due process right to a preliminary hearing. The issue in each of those cases however, was the validity of the trial as affected by the absence of a preliminary hearing and not the validity of the pre-trial detention itself. In Scarbrough v. Dutton, 393 F.2d 6 (5th Cir. 1968), the Court, upholding a conviction where the defendant had been incarcerated for seven months without a preliminary hearing, stated, ‘The failure to hold a preliminary hearing, without more, does not amount to a violation of constitutional rights which would vitiate the subsequent conviction.’ 393 F.2d at 7 (Emphasis added). See also: Murphy v. Beto, 416 F.2d 98 (5 Cir. 1969); McCoy v. Wainwright, 396 F.2d 818 (5 Cir. 1968); King v. Wainwright, 368 F.2d 57 (5 Cir. 1966); Worts v. Dutton, 395 F.2d 241 (5 Cir. 1968) ; Kerr v. Dutton, 393 F.2d 79 (5 Cir. 1968); cf. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961).
“In Anderson v. Nosser, 438 F.2d 183 (5 Cir. 1971), even though the Court did not consider the validity of a conviction, the facts were analogous to those in the foregoing post-conviction cases. In each case cited supra the pre-trial detention had ceased to exist, and the trial itself being valid, there was no continuing deprivation of rights. The confinement in Anderson occurred over a period of two to four days with the various federal complaints being filed from three months to fourteen months after plaintiffs’ release. Consequently, in Anderson, just as in the post conviction cases the Court was asked to grant relief from a deprivation of rights no longer in effect. That the Anderson Court itself considered the case to come within the post conviction situation is apparent from its reliance upon Kulyk v. United States, 414 F.2d 139 (5 Cir. 1969), and other cases, all of which turned upon the validity of a conviction, 438 F.2d at 196.
“The instant case differs from the foregoing in that this Court is asked to determine the validity of a present confinement. The complaint herein was filed during plaintiffs’ incarceration. Unlike Anderson, the confinement at bar is not an isolated event but is a recurring part of the State sanctioned prosecutorial system. Unless corrected the wrong complained of will continue to infringe upon the rights of the individual plaintiffs and the class they represent.” 322 F. Supp. at 1112-1113.

The distinction between a pre-trial declaration of a right to a hearing and a post-conviction appeal for reversal on the basis of the absence of such hearing is a pragmatic and sensible distinction. Moreover, it is simple in its application, as Richardson v. Gerstein, 336 F.Supp. 67 (1972), illustrates. In Richardson, the same district court which granted relief in this case refused to grant relief to plaintiffs who had been validly convicted and were seeking to shorten their sentences, rather than to question the quality of their pre-trial detention.

While a magistrate might well arrive at the same decision as to probable cause as the state attorney, we hold that due process abhors even the appearance of such entanglement between the prosecu-torial and judicial functions as exists under the Florida information prosecution system. Incarceration of an untried defendant for up to a month without any scrutiny by a judicial officer of the basis for this incarceration is far more odious to a sense of justice than the temporary deprivation of property without a hearing. Yet the Supreme Court has repeatedly held that such deprivations of property are impermissible. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1971); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L. Ed.2d 349 (1969).

This practice may substantially prejudice defendants in preparation of their cases and result in the incarceration of defendants against whom the State dismisses charges. No countervailing state interest is fulfilled by such deprivation for, as the District Court predicted in its opinion,

“[t]he expense of maintaining a jail, with many persons who would never be there in the first instance if their cases had been reviewed by a judge in an effective committing magistrate system, will be substantially less than its present cost and will certainly be a tangible benefit to all citizens of this community.” 332 F.Supp. at 1114.

In the intervening months between issuance of our order vacating the stay of the interim panel of this court and the District Court’s findings as to the interim practices followed, evidence has accumulated which fully supports this prediction. Judge Tanksley, Chief Judge of the Magistrate Division of Florida’s Eleventh Judicial Circuit, for example, estimated that, as a result of the magistrate system, felony caseloads have been reduced by 20 to 25 percent, with corresponding savings to the taxpayers of Dade County.

We therefore affirm the judgment of the district court requiring the State of Florida to immediately give the plaintiffs a preliminary hearing .to determine probable cause for their arrests unless their cases have been otherwise concluded.

IV. REMEDIES: The Amended Rules and The Purdy Plan

Subsequent to' oral argument in this case, many controversial provisions of the district court’s adoption of the Pur-dy Plan have become moot due to implementation of similar provisions for providing preliminary hearings under Florida’s Amended Rules of Criminal Procedure. The parties are agreed, however, that the Purdy Plan went beyond the Amended Rules in certain respects. To the import of these remaining divergen-cies we now direct our attention.

a) Time between arrest and preliminary hearing.

In the district court’s Purdy Plan order, it was held:

“If incarceration is ordered, the magistrate must immediately schedule a preliminary hearing to be held within four (4) days [of initial appearance].” 336 F.Supp. 490, at 492.

The initial appearance under the Purdy Plan had to be within 3 hours of arrest. The new rules provide for a preliminary hearing within 72 hours, or 3 days, of initial appearance, and such initial appearance is required within 24 hours of arrest. However, Rule 3.040 of the Amended Rules contains this proviso:

“When the period of time prescribed or allowed [under all rules other than 3.130] shall be less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.”

Thus appellants argue that a six day lapse is frequently allowed between arrest and preliminary hearing under the Amended Rules. This time lapse, they say, is beyond the constitutionally tolerable maximum and therefore denies them due process of law under the Fourteenth Amendment.

Whether a four-day lapse is constitutional while a six-day lapse is not would be a difficult factual question. We need not, however, face this nice question, because no appellant argues that he has been accorded a preliminary hearing more than four but less than six days after his arrest.

However, because the District Court’s Purdy Plan order established an across-the-board four-day maximum lapse period which conflicts with Rule 3.040, we cannot allow both the Plan and the Rule to coexist in their inconsistency. We therefore vacate that portion of the Purdy Plan order which set a four-day maximum period on the ground that it was unnecessary to the disposition of' this case.

b) Exclusion of misdemeanants.

The appellants argue that since Rule 3.131(a) authorizes hearings before a neutral and detached judicial officer only “on any felony charge” the rule violates the Equal Protection Clause by denying such hearings to misdemeanants. We agree that this proviso to the Rule is constitutionally impermissible,

Plaintiff Henderson, who was charged with the misdemeanor of assault and battery under Florida Law and who had been incarcerated prior to trial without the benefit of a probable cause hearing, has standing to raise this point on behalf of himself and other incarcerated misdemeanants. Moreover, the proviso of the statute is so clear that we need not certify the question whether Rule 3.131(a) was intended to provide for preliminary hearings for misdemeanants. Clearly, it was not so intended.

No sufficient justification exists for disallowing ' preliminary hearings for misdemeanants. The plight of an accused misdemeanant incarcerated without a hearing is just as serious as that of an accused felon, and there is no merit to either of the two “compelling governmental interests” which the State contends are served by not prescribing hearings for misdemeanants.

First, the State argues it is concerned lest the same magistrate determining probable cause in a misdemeanor case try that very ease, denying the defendant a fair trial. The answer to this is not the denial of preliminary hearings, but the development of a system whereby judges are rotated, to prevent such overlap. Indeed, the Chief Judge of the Magistrate Division of the Eleventh Judicial- Circuit has already testified that preliminary hearings and misdemeanor trials are currently conducted by separate panels of judges in Dade County.

Second, it is argued that the State cannot bear the expense of providing preliminary hearings for misdemeanants. The trial court found that

“while more magistrates as well as courtroom facilities may be needed as a result of our order, and that costs may increase in the short run, it will not be a significant increase.”

This finding was amply supported. The number of misdemeanor cases involving no pretrial incarceration and requiring no preliminary hearing comprised the bulk of all misdemeanors. Moreover, experience from the felony-hearing system showed a reduction in felony caseloads and a savings to the taxpayers of the county.

Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), which held that misdemeanants threatened with potential incarceration must be afforded counsel at State expense, provides guidance in this case.

In Argersinger, Mr. Justice Douglas, speaking for the majority of the Court', noted that many rights required under the due process clause of the Fourteenth Amendment apply irrespective of the classification of the charge pending against the defendant who faces potential incarceration. We believe the right to a preliminary probable cause hearing before a defendant is subjected to pretrial incarceration is as essential to due process as those rights listed in and extended by Argersinger. Therefore, except where misdemeanants are out on bond or are charged with violating ordinances carrying no possibility of pretrial incarceration, they must be accorded preliminary hearings. In short, the offense charged is irrelevant to the man incarcerated prior to trial; he must, therefore, be afforded a preliminary hearing regardless of his status as an accused misdemeanant or an accused felon.

c) Delayed hearings in'capital or life imprisonment cases.

Rule 3.131(b) of the Florida Rules of Criminal Procedure provides:

“In all cases where the defendant is in custody, except capital offenses or offenses punishable by life imprisonment, the preliminary hearing shall be held within 72 hours of the time of the defendant’s first appearance. In all capital offenses and offenses punishable by life imprisonment and in all cases where the defendant is not in custody, the preliminary hearing shall be held within seven days of the time of defendant’s first appearance.”

Though we know of no Florida decision interpreting whether “within seven days” is covered by the Rule 3.040 proviso, supra, we need not attempt to divine how these rules would dovetail since we are convinced that even if Rule 3.-131(b) is outside the time limit set in Rule 3.040, any preliminary hearing delay which discriminates against those accused of capital or life imprisonment offenses violates the Equal Protection Clause.

Under Rule 3.131(b), Florida has classified these types of offenses in a manner which disadvantages the party charged with the more serious offense even though the defendant has not yet had any opportunity to contest the basis for his arrest. In order to justify this discrimination, Florida must make some showing that there are factors requiring different treatment of these offenses from the treatment given to other felonies. While four days may be a reasonable time, as the district court found, to allow witnesses to be summoned and other mechanical tasks to be performed,Florida has made absolutely no showing that it requires more time to handle the mechanics of a preliminary hearing where life or capital offenses are involved than in other felony or misdemeanor cases. In the absence of such showing, we find that Rule 3.131(b) is inconsistent with the demands of the Equal Protection Clause insofar as it delays the preliminary hearings of persons in Robert Pugh’s position.

d) Sanctions against the State in the event of noneompliance.

To ensure prompt implementation of its requirement of probable cause preliminary hearings, the district court included the following paragraph in its Purdy Plan order:

“17. If the magistrate discharges the defendant, the defendant shall not be required to answer to a subsequent charge for the same offense(s) except upon an indictment by the Grand Jury which shall have been returned within thirty (30) days of the defendant’s discharge.” 336 F.Supp. at 492.
“19. . . . (2) If a defendant is not afforded a preliminary hearing within the applicable period set forth in paragraph (8) herein and the hearing is not properly postponed or waived, then all charges shall be withdrawn and the defendant, if incarcerated, shall immediately be released. The State shall be permitted to refile a charge so withdrawn, however, in the event a charge is twice withdrawn pursuant to this provision, the defendant shall not again be held to answer to that charge except upon an indictment of the Grand Jury returned within thirty (30) days of the date of the second withdrawal.” 336 F.Supp. at 493.

These paragraphs were at the time considered necessary by the court as a means for overcoming Florida’s longstanding practice of denying preliminary hearings to criminal defendants.

Since Florida’s practices have presumably been altered drastically with the adoption of the Amended Rules and preliminary hearings should now be an accepted procedure throughout the State, we vacate these two provisions in the Purdy Plan. The factors involved in the imposition of sanctions having changed significantly since the Purdy Plan was issued, the District Court’s exercise of equitable power should be modified to account for these changes. At least until such time as experience shows that Dade County’s judiciary and constabulary are not following the Rules of Criminal Procedure as modified to extend the right of preliminary -hearings in accordance with this opinion, we will not presume that such onerous sanctions áre necessary to insure compliance with the law of this circuit.

The judgment of the District Court is affirmed in part and vacated in part.

      . Pugh v. Rainwater, 332 F.Supp. 1107 (S.D.Fla.1971).

      . Pugh v. Rainwater, 336 F.Supp. 490 (S.D. Fla.1972).

      . F.S. § 901.06. “Duty of officer after arresting with warrant. — When the arrest by virtue of a warrant occurs in the county where the alleged offense was committed and where the warrant was issued, the officer making the arrest shall without unnecessary delay take the person arrested before a magistrate who issued the warrant or, if that magistrate is absent or unable to act, before the nearest or most accessible magistrate in the same county.”
      F.S. § 901.23. “Duty of officer after arrest without warrant. — An officer who has arrested a person without a warrant, shall without unnecessary delay take the person arrested before the nearest or most accessible magistrate in the county in which the arrest occurs, having jurisdiction and shall make before the magistrate a complaint, which shall set forth the facts showing the offense for which the person was arrested; or, if that magistrate is absent or unable to act, before the nearest or most accessible magistrate in the same county.” (Emphasis added).

      . Bradley v. State, 265 So.2d 532 (Fla.App. 1972), cert. denied, 411 U.S. 916, 93 S.Ct. 1543, 36 L.Ed.2d 307; Anderson v. State, 241 So.2d 390 (Fla.1970) ; Sangaree v. Hamlin, 235 So.2d 729 (Fla.1970) ; State v. Hernandez, 217 So.2d 109 (Fla.1968) ; Palmieri v. State, 198 So.2d 633 (Fla.1967) ; Montgomery v. State, 176 So.2d 331 (Fla. 1965) ; Baugus v. State, 141 So.2d 264 (Fla.1962).

      . State ex rel. Carty v. Purdy, 240 So.2d 480 (Fla.1970) ; Milton v. Cochran, 147 So. 2d 137 (Fla.1962).

      . F.S. § 908.01. “Arraignment of defendant; how made. — When an indictment has been found or an information filed against a person he shall before he is put on trial for the offense charged, be arraigned by having the charge stated to him by the prosecuting attorney in open court and by being called upon to plead thereto. If the defendant so demands before he pleads, the indictment or information shall be read to him by the prosecuting attorney. An entry of the arraignment shall be made of record.”

      . The district court found :
      “The state attorney, between January 1, 1970, and March 31, 1971, decided not to file direct informations in 1,165 cases in which a person had been charged or arrested as a result of police investigation. The majority of these ‘no actions’ resulted from arrests on charges lacking sufficient evidence to justify the filing of an information.” 332 F.Supp. at 1110.
      Moreover, nearly one-fifth of the total number of cases disposed of by the state attorney in 1970 (1,565 out of 7,856) were acquittals. The court noted that the average delay period of ten to fifteen days between arrest and arraignment caused incarceration of many defendants subsequently acquitted and unnecessary expenditure of tax dollars to maintain Dade County’s jails. The practical effect of prompt judicial probable cause hearings the court surmised, would be a lessening of both human misery and the tax burden because a judge’s finding of no probable cause would cause dismissal of spurious prosecutions forthwith.

      . For purposes of this appeal, we assume that because Florida Statutes § 906.06 requires the state attorney to state the offense on the information form and § 906.07 says that “the court, on motion, may order the prosecuting attorney to furnish a bill of particulars,” the defendant could challenge the information for failure to show sufficient probable cause upon which to continue the prosecution. Otherwise, the trial itself would present the first such opportunity for a probable cause challenge before a judicial officer. While bail hearings apparently are afforded even where the state prosecutes by information, there is no showing on this record that these hearings have ever been utilized to require the State Attorney to show probable cause for arresting as well as the reasons for setting bail at a particular level or for denying bail altogether.

      . Plaintif Robert Pugh was charged with robbery, a felony which was and is punishable by life imprisonment under Florida law. Plaintiff Nathaniel Henderson was charged with assault and battery, a misdemeanor under Florida law.

      . “The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated . . . ”

      . “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . . ”

      . Pre-arraignment incarceration may be subdivided into two classes: those who are eventually proceeded against by the state, either by information or indictment, and those who are released upon a finding by the state attorney that insufficient evidence for continuation of the prosecution exists. Though the class of plaintiffs here includes only those against whom the state attorney proceeds by information, we do not lightly dismiss the detention of a minimum of 1,165 defendants against whom charges are subsequently dropped. As a practical matter, the relief granted by the district court, by affording probable cause hearings after arrest to all arrestees, benefits also those against whom charges are not pressed.

      . See, e. g. Buchannon v. Wainwright, 474 F.2d 1006 (5th Cir. 1973) ; Jackson v. Smith, 435 F.2d 1284 (5th Cir. 1970) ; Scarbrough v. Dutton, 393 F.2d 6 (5th Cir. 1968).

      . Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962), which notes that since Hurtado prosecutions have often proceeded on informations filed by prosecutors without prior probable cause hearings, adds nothing to Ocampo.

      . Rule 3.131(b), Florida Rules of Criminal Procedure.

      . See text supra at p. 22.

      . Included in this listing were rights to a “public trial,” to be informed of the nature and cause of the accusation, to confront one’s accusors, and to have compulsory process for obtaining witnesses in one’s favor.

      . These offenses, which probably include those referred to by the district court as “prosecutions of the barking dog variety,” may reasonably be screened by the State Attorney alone at the request of complaining citizens because the defendant in such cases is not confined prior to trial.

      . If this were the case, a lapse of 10 calendar days between arrest ¡fnd preliminary hearing would be permitted.

      . Pugh was charged with robbery, a crime punishable by life imprisonment in Florida. See fn. 9.