author: GOLDBERG, Circuit Judge:

text:
    Paul G. CORNELIUS et al., (Mary M. Cornelius as Executrix of the Estate of Paul G. Cornelius, Deceased, substituted instead of and in place of Paul G. Cornelius), Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 73-1005.
    United States Court of Appeals, Fifth Circuit.
    May 16, 1974.
    Martin J. Nash, Miami, Fla., Vernon W. Turner, Homestead, Fla., for petitioners-appellants.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div. U. S. Dept, of Justice, Lee H. Henkel, Jr., Chief Counsel, Raymond W. Sifly, Atty., I. R. S., Washington, D. C., Henry C. Stocked, Jr., Regional Counsel, Marlene Gross, I. R. S., Miami, Fla., Murray S. Horwitz, Tax Div., Dept, of Justice, Washington, D. C., for respondent-appel-lee.
    Before TUTTLE, BELL and GOLDBERG, Circuit Judges.
   GOLDBERG, Circuit Judge:

Appellant taxpayers, Paul G. Cornelius, Sr. and his wife Mary M. Cornelius, and Jack H. Cornelius (a son of Paul G. Cornelius, Sr.) and his wife Betty J. Cornelius, appeal from a decision of the United-States Tax Court declaring that taxpayers were deficient in their income tax payments for taxable year 1967 in the amounts of $59,525.71 and $27,877.72, respectively. This Court has jurisdiction to hear the appeal under Int.Rev.Code of 1954, § 7482.

From 1960 through July of 1966, Paul Cornelius, Sr., and Jack Cornelius conducted a farming operation as partners under the name Cornelius and Sons. The elder Cornelius had a two-thirds interest in the partnership, and his son had the remaining one-third interest. On July 29, 1966, Paul, Mary, and Jack Cornelius formed a Florida corporation entitled Cornelius and Sons, Inc., which assumed the farming operations of the partnership. The stock records reflect that 9000 shares were issued, with 5999 shares going to Paul Cornelius, one share to Mary Cornelius, and 3000 shares to Jack Cornelius. On August 4, 1966, Cornelius and Sons, Inc. elected to be taxed as a small business corporation under the provisions of Subchapter S of the Internal Revenue Code.

Upon forming the corporation, taxpayers transferred to it partnership assets having a basis of $102,000. These assets, which included tractors and implements used in the process of farming, cash, and prepaid land rents, were credited to capital stock and paid-in surplus as follows:

The vegetable farming operation conducted by the corporation, as by the partnership which preceded it, consisted of growing and harvesting pole beans, yellow squash, and tomatoes, and was of a highly seasonal nature. Substantial funds were required in the fall of each year in order to meet planting expenditures. In the fall of 1966 taxpayers advanced $215,000 to the corporation in the following proportions: Paul Cornelius, $130,000; Mary Cornelius, $20,000; Jack Cornelius, $65,000. These advances, a continuation of the practice initiated by the partnership for financing the fall crop, were borrowed by the shareholders from a bank. Although the advances were reflected on the corporation records as “notes payable," no notes were actually given for such advances.

In its first short taxable year of operation, which ended December 31, 1966, the corporation incurred a net operating loss of $245,985.97. In accordance with the provisions of section 1374, Paul and Mary Cornelius claimed a deduction of $163,990.65 on their 1966 joint income tax returns, representing their al-locable share of the net operating loss of the corporation; correspondingly, Jack Cornelius claimed a deduction of $81,995.32 as his allocable share of the loss. As a consequence of the net operating loss and accompanying deductions, the basis for each of taxpayers’ stock accounts was reduced to zero and the basis for each of their debt accounts was partially reduced, pursuant to section 1376(b). The result, as reflected in the following table, was an aggregate reduction in basis for stock of $102,000.00 and an aggregate reduction in basis for indebtedness of $143,985.97:

In the spring of 1967, continuing a practice followed by the predecessor partnership, the coi'poration repaid the $215,000.00 advanced by taxpayers the previous fall. In the fall of 1967, Paul Cornelius and Jack Cornelius advanced $175,000.00 — $116,667.00 and $58,333.00, respectively — to the corporation to finance the fall crop.

Taxpayers treated the spring 1967 repayment apd the fall 1967 advance as investment transactions. The Commissioner, however, determined that the $215,000.00 repayment in the spring of 1967 constituted repayment of loans and thus represented gain to the extent that the repayments exceeded the loan bases which had been lowered as a result of the loss pass-through in 1966. According to the Commissioner’s ruling, taxpayers would have additional ordinary income of $143,985.97, yielding an additional tax of $89,014.58. The Tax Court sustained the Commissioner’s determination.

On this appeal taxpayers argue primarily that loans whose bases have been reduced by corporate losses should be treated together with stock as a composite “investment by a stockholder” for purposes of Subchapter S, so that the bases will be increased when undistributed profits are earned in subsequent years. Alternatively, taxpayers argue that the Tax Court erred in determining that the advances made to the corporation constituted debt rather than equity. Taxpayers make the further alternative argument that the 1967 repayments and readvances should have been netted before any tax incidence was determined. We find taxpayers’ contentions provocative and imaginative, but in the final analysis unpersuasive, and we affirm.

Subchapter S of the Internal Revenue Code was enacted in 1958 in response to recommendations over a number of years by a variety of individuals and groups — from entrepreneurs to tax lawyers to the President of the United States — that small businesses be enabled “to operate under whatever form of organization is desirable for their particular circumstances, without incurring unnecessary tax penalties.” Most of the reformers suggested that closely held corporations be given the option to be taxed as partnerships. Congress chose instead, however, to create an entirely new statutory superstructure, many of whose potential perquisites and pitfalls have yet to be fully explored. On this appeal our duty is not to map all of the remaining uncharted territory, but to shape the juridical sinuosities of Sub-chapter S to the narrow problem before us — the interrelated tax effect of a small business corporation’s net operating loss and its repayment of shareholder loans.

Although Congress chose not to permit small business corporations to opt for partnership taxation as such, it did through Subchapter S create a system for relieving closely held corporations of federal income tax burdens while passing corporate profits and losses through to shareholders in a manner similar to a partnership. The basis of a shareholder’s stock is increased for amounts treated as dividends; and the basis of his stock and of corporate indebtedness are reduced for his portion of the corporation’s net operating loss. In the case sub judice the corporation sustained substantial losses in the same taxable year (1966) that taxpayers had made sizeable loans to the corporation. Because of the basis of indebtedness created by the loans, taxpayers were able to offset all of the corporation’s net operating losses against ordinary income. Those losses, however, reduced taxpayers’ bases in their loans to the corporation ; repayment of the loans in the spring of 1967 thus substantially exceeded taxpayers’ adjusted bases. Under general tax principles a loan repayment to a taxpayer constitutes income to the extent the repayment exceeds the taxpayer’s basis in the loan. Unless the loan is evidenced by “bonds, debentures, notes, or certificates or other evidences of indebtedness,” such income is taxed at ordinary rates.

Taxpayers in the present case argue that the theory of the Subchapter S election is to permit small businesses to elect a form of doing business without regard to the tax consequences of the selection of that form. In accord with that theory taxpayers contend that

it is the legislative intent to treat indebtedness and stock as a composite “investment by a stockholder” and to impose the same tax consequences regardless of the classification of the subsequent distribution to shareholders. (Brief for Appellants at p. 7).

Application of that analysis to the facts of this case would result in very limited tax liability upon return to taxpayers of the $215,000.00 in advances. As under the Commissioner’s determination, undistributed profits and earnings of the ■ corporation in taxable year 1967 would be passed through to taxpayers and included in their gross income, and the basis of their stock in the corporation would be increased by that amount. According to the analysis proposed by taxpayers, however, the $215,000.00 repayment would be a return of capital and would be taxed only to the extent it exceeded the .increased basis in stock. Taxpayers argue that any other result would be illogical and inequitable.

Though we could discuss at great length the relative merits and equities of the competing approaches urged upon us by taxpayers and the Commissioner, we must be mindful that, in cases of statutory construction and legislative intent, “[i]t is our judicial function to apply statutes on the basis of what Congress has written, not what Congress might have written.” United States v. Great Northern Railway Co., 1952, 343 U.S. 562, 575, 72 S.Ct. 985, 993, 96 L.Ed. 1142. In section 1376 of the Code, which governs basis adjustments resulting. from Subehapter S distributions, Congress clearly differentiated between “stock” and “indebtedness.” Section 1376(a) provides for increases in the basis of “stock” alone, but section 1376(b) requires basis reductions in both “stock” and “indebtedness.” We find nothing in the regulations or in the legislative history to indicate that the plain words of this section yield a distorted view of statutory intent. To the contrary, we can approach 20-20 vision of the statutory meaning through historical hindsight. As early as 1959 the American Bar Association Taxation Committee recommended that section 1376(a) be amended so that undistributed income of a corporation would first increase the basis of the shareholder’s indebtedness which had been lowered as a result of net operating losses, and after the basis of indebtedness had been fully restored, would increase the shareholder’s basis of stock. 1959 ABA Section of Taxation, Program and Committee Reports 90. The Treasury Department made the same proposal in preparation for the Tax Reform Act of 1969. 2 U.S. Treasury Department, Tax Reform Studies and Proposals 287, 288 (Comm.Print 1969, 91st Cong., 1st Sess., House Committee on Ways and Means and Senate Committee on Finance). The proposal was never enacted. This Court will not grant to taxpayers by judicial interpretation what Congress refused to- authorize by legislation at the beseeching of such notable tax cognoscenti.

We note that although there has not been a plethora of litigation on this issue, we are not entirely without Circuit precedent to guide our way. In - Smith v. Commissioner of Internal Revenue, 9 Cir. 1970, 424 F.2d 219, the Ninth Circuit adopted the opinion of the Tax Court, 1967, 48 T.C. 872, 878-879, on the question of the tax consequences to shareholders in a Subchapter S corporation where, as here, payments were received by them from the corporation in reduction of a valid indebtedness. The Tax Court in Smith reconciled the principles of section 1376 with the general rule concerning repayment of indebtedness:

The general rule, as stated in Darby Investment Corporation, 37 T.C. 839 (1962), affirmed per curiam 315 F.2d 551 (C.A.6, 1963), for payments on a debt where the face amount of the debt is in excess of its basis, is that the payments thereon each include income in proportion to a fraction, the numerator of which is the difference between the face amount and the basis of the debt and the denominator of which is the face amount of the debt
Petitioners . . . contend that the general rule, stated above, is inapplicable to the case at bar. They point out that the authorities cited dealt with a debt which was evidenced by a note, bond, or contract and which had been acquired at a discount. In the case at bar there was no evidence of indebtedness, and the difference between the basis and the face value of the debt was the result not of a discount purchase but of basis adjustments pursuant to section 1376(b)(2). Though we agree with petitioners that these differences exist, as they affect the application of this rationale to the case at bar, we are of the opinion that they are differences without distinction.
48 T.C. 879.

In the case sub judice taxpayers concede that, unless this Court rejects the reasoning in Smith, their argument must fail. Our interpretation of the provisions of Subchapter S and of Congressional rejection of attempts to alter it does not conflict with the analysis of the Tax Court as approved by the Ninth Circuit, and we follow its jurisprudential path.

Alternatively, taxpayers argue that, even if indebtedness and stock are not entitled to the same tax treatment, the Tax Court erred in determining that the payments in question here constituted debt rather than equity. The thrust of taxpayers’ complaint is that the Tax Court relied on the single factor that taxpayers had reported their advances to the corporation as “loans from shareholders” on their corporate income tax return. They contend that numerous other factors, which should have been considered, support the conclusion that the advances constituted equity rather than debt. .We do not agree.

This Court has never hesitated to pierce the paper armor of a taxpayer’s characterization of a particular transaction in order to reach its true substance. As appellants note, we have done so in situations similar to this one to determine whether shareholder advances to a closely held corporation are to be considered as debts or as contributions to capital. Berkowitz v. United States, 5 Cir. 1969, 411 F.2d 818, 820; Montclair, Inc. v. Commissioner of Internal Revenue, 5 Cir. 1963, 318 F.2d 38, 40. In each such instance, however, we have done so at the request of the Commissioner to prevent a taxpayer from unjustifiably using his own forms and labels as a shield from the incidence of taxation. A taxpayer’s attempt to pierce his own armor does not merit the same consideration. In the present case the Tax Court properly held that “[a] taxpayer cannot elect a specific course of action and then when finding himself in an adverse situation extricate himself by applying the age-old theory of substance over form.” 58 T.C. 417, 422, quoting A. W. Legg, 1971, 57 T.C. 164, 169. The Tax Court’s holding is in complete accord with the teaching of this Court that “although a taxpayer’s own documents are not conclusive, they normally override any conflicting subjective considerations advanced by that taxpayer.” Redwing Carriers, Inc. v. Tomlinson, 5 Cir. 1968, 399 F.2d 652, 659 n. 9, interpreting Carlton v. United States, 5 Cir. 1967, 385 F.2d 238.

This is not to say that a taxpayer may be unfairly and unalterably bound to his own inadvertent error in making a bookkeeping entry. But that is not the situation here. The Tax Court noted that the practice of making temporary loans to the business in the fall with repayment in the spring had been followed for many years. The trial court further observed that the bank was, in fact, the real lender. We are satisfied that the Tax Court correctly determined the payments in question to be debt rather than equity.

Taxpayers argue finally that, even if the Commissioner should prevail on the first two issues, the Tax Court committed reversible error because it declined to treat each of the loan transactions as part of an “open account” by netting advances and readvances and determining the tax consequences as of the end of the taxable year 1967. In their view a tax of some $87,000 has been harshly and unreasonably imposed on a $32,000 net reduction in taxpayers’ notes payable account.

The real question to be decided is whether each advance to the corporation by the shareholders and its corresponding repayment constitute a separate and complete transaction or whether the indebtedness should be considered as an “open account” whose fluctuations are to be measured for tax purposes at the end of each taxable year. Taxpayers argue that the latter formulation poses the true economic situation because: 1) the notes payable account has shown substantial balances at the end of every year the business has been in operation and is likely to do so as long as the business continues; and 2) taxpayers have experienced relatively little actual economic change from year to year. These factors, however, are not and should not be determinative. The Tax Court properly determined that “the 1966 loans and the [1967] repayments thereof constituted a completed transaction, and the loans occurring later in 1967 were separate and apart from such transaction.” 58 T.C. at 423. The fact that these shareholders made loans to their corporation each fall and that the loans were repaid in full each spring, bringing the balance in the notes payable account to zero, strongly supports the Tax Court’s finding that the loans were not part of an “open account.” We concur in that finding.

We are not entirely unsympathetic to taxpayers’ lament that Subchapter S has been a stern tax master. Taxpayers may have suffered substantially less immediate tax liability had they continued to operate their farming business as a partnership rather than as a Subchapter S corporation. On the other hand, taxpayers fared at least as well under Sub-chapter S as they would have by conducting their operations in the form of a non-electing corporation. It should be noted that thousands of business enterprises choose corporate status over partnership status for a variety of reasons going beyond the subehapters and subsections of the Internal Revenue Code.

Tax sophisticates and commentators have praised the purposes of Subchapter S but have deplored its techniques. Its provisions are said to be

complex, imposing an additional stress on a tax system which is already overburdened with miniscule complexity, and disturbing the balanced operation of that system by setting-hidden pitfalls for the unwary taxpayer and unjustifiable rewards for the manipulating taxpayer. Instead of accomplishing its purpose of permitting the entrepreneur to select his business form in accordance with business considerations and without regard to the tax consequences of that form, just the opposite result is accentuated by Sub-chapter S, in providing a third set of tax consequences.

7 J. Mertens, Law of Federal Income Taxation § 41 B. 44 (1967). These criticisms, however, are properly addressed to the Congress and not to the courts. Ours has been the more mundane assignment of contouring the codified curlicues of Subchapter S to the Code’s synoptic minutiae. Being mere mortals unendowed with cosmic tax wisdom, we have performed our task as well as our fallible mentalities and compositions will permit. In so doing we have detected no fatal flaw in the Tax Court’s decision.

      . The Tax Court opinion is reported at 58 T.C. 417 (1972).

      . Int.Rev.Code of 1954, §§ 1371-1379.

      . Int.Rev.Code of 1954, § 1374. Corporation, net operating loss allowed to shareholders.
      (a) General rule. — -A net operating loss of an electing small business corporation for any taxable year shall be allowed as a deduction from gross income of the shareholders of such corporation in the manner and to the extent set forth in this section.
      (c) Determination of shareholder’s portion.—
      (2) Limitation. — A shareholder’s portion of the net operating loss of an electing small business corporation for any taxable year shall not exceed the sum of—

        (A) tlie adjusted basis (determined without regard to any adjustment under section 1376 for the taxable year) of the shareholder’s stock in the electing small business corporation, determined as of the close of the taxable years of the corporation . , and
      (B) the adjusted basis (determined without regard to any adjustment under section 1376 for the taxable year) or any indebtedness of the corporation to the shareholder, determined as of the close of the taxable year of the corporation ....

      . Int.Bev.Code of 1954, § 1376. Adjustment to basis of stock of, and indebtedness owing, shareholders.
      (b) Reduction in basis of stock and indebtedness for shareholder’s portion of corporation net operating loss.—
      (1) Reduction in basis of stock. — The basis of a shareholder’s stock in an electing small business corporation shall be reduced (but not below zero) by an amount equal to the amount of his portion of the corporation’s net operating loss for any taxable year attributable to such stock (as determined under section 1374(c)).
      (2) Reduction in basis of indebtedness. —The basis of any indebtedness of an electing small business corporation to a shareholder of such corporation shall be reduced (but not below zero) by an amount equal to the amount of the shareholder’s portion of the corporation’s net operating loss for any taxable year (as determined under section 1374(c)), but only to the extent that such amount exceeds the adjusted basis of the stock of such corporation held by the shareholder.

      . The share of the net operating loss alloca-ble to each taxpayer exceeded his beginning stock basis; therefore, each was required under § 1376(b)(1) to reduce his basis to zero, i. e., an aggregate of $102,000 (the total of the assets transferred to the corporation by the shareholders/taxpayers in 1966). The reduction of $143,995.97 in basis for indebtedness represents the amount by which the net operating loss in 1966 exceeded the adjusted basis of the stock held by the shareholders ($245,985.97-$102,000.-00 = $143,985.97).

      . This figure represents the proportion of the $215,000.00 1967 repayment of loans denoted by a fraction, the numerator of which is the amount by which the face amount of the debt ($215,000.00) exceeds the basis of the debt after the section 1376(b) adjustment for 1966 operating losses ($71,-014.03), and the denominator of which is the face amount of the debt ($215,000.00).

      $143,985.97]. See Joe M. Smith, 1967, 48 T.C. 872, 879, aff’d, 9 Cir. 1970, 424 F.2d 219; Darby Investment Corp., 1962, 37 T.C. 839, aff’d, 6 Cir. 1963, 315 F.2d 551.

      . President Eisenhower’s Budget Message to the Eighty-Third Congress, Tax Recommendation # 16, January 1953.

      . Int.Rev.Code of 1954, § 1373. Corporation undistributed taxable income taxed to shareholders.
      (a) General rule. — The undistributed taxable income of an electing small business corporation for any taxable year shall be included in the gross income of the shareholders of such corporation in the manner and to the extent set forth in this section.
      (b) Amount included in gross income.— Each person who is a shareholder of an electing small business corporation on the last day of a taxable year of such corporation shall include in his gross income, for Ms taxable year in which or with which the taxable year of the corporation ends, the amount he would have received as a dividend, if on such last day there had been distributed pro rata to its shareholders by such corporation an amount equal to the corporation’s undistributed taxable income for the corporation’s taxable year. For purposes of this chapter, the amount so included shall be treated as an amount distributed as a dividend on the last day of the taxable year of the corporation.
      For treatment of net operating losses see Int.Rev.Code of 1954, § 1374, supra note 3.

      . Int.Rev.Code of 1954, § 1376. See note 4, supra.

      . Int.Rev.Code of 1954, § 1232.


source: Caselaw Access Project

author: WISDOM, Circuit Judge:

license: Public Domain

text:
    In re Donald E. WILKES, an attorney, Petitioner-Appellant.
    No. 72-1399.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1974.

      William H. Maness, Jacksonville, Fla., for petitioner-appellant.
    Robert W. Rust, U. S. Atty., Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., Marshall R. Cassedy, Executive Director, The Florida Bar, Tallahassee, Fla., Robert Bryne, Asst. U. S. Atty., Miami, Fla., Patrick A. Podsaid, Asst. Staff Counsel, The Florida Bar, Miami, Fla., Harry G. Carratt, Fort Lauderdale, Fla., Paul B. DeWitt, Executive Director, Assn, of the Bar of the City of N. Y., New York City, for respondents-appel-lees.
    Before WISDOM and GOLDBERG, Circuit Judges, and LYNNE, Senior District Judge.
   WISDOM, Circuit Judge:

Donald E. Wilkes, the movant-appel-lant, brings this appeal from the judgment of the district court dismissing his “Motion to Confirm Credentials to Practice Before the Courts of the Southern District” of Florida. We reverse and remand for a hearing on the allegations contained in Wilkes’s motion.

I.

Wilkes was admitted to the Bar of Florida in 1950. He was also a member of the New York Bar. In 1960 the New York Supreme Court, Appellate Division, disbarred Wilkes upon the recommendation of a referee appointed by the Griev-anee Committee of the Bar Association of the City of New York. The referee found that Wilkes was guilty on three charges of violating the professional Canons. The Florida Supreme Court summarized the findings in New York:

In its order of disbarment the New York court found the respondent guilty of (1) violating the terms of an escrow agreement ‘by misappropriating funds which rightfully belonged to his client,’ (2) misadvising a ‘client as to the validity of a Mexican ex parte divorce,’ and (3) violating Canon 9, Canons of Professional Ethics, Judiciary Law, Appendix, ‘by directly communicating with a party represented by counsel in an attempt to influence a favorable settlement of a personal injury action.’ Although respondent was not charged therewith the New York court found that respondent failed to appear in that proceeding and had apparently abandoned his law practice.

The Florida Bar v. Wilkes, 199 So.2d 472, 473 (Fla.1967).

In 1963 the Florida Bar Association commenced proceedings to disbar Wilkes in Florida, based upon the New York adjudication that Wilkes had been guilty of misconduct. The Florida Supreme Court rejected the first judgment of the Florida Bar Association’s Board of Governors recommending Wilkes’s disbarment and remanded the case with directions that it be returned to the referee, appointed by the Association, for reconsideration and recommendation as to the discipline to be imposed on Wilkes for the misconduct of which he was found guilty in New York as charged. The Florida Bar v. Wilkes, 179 So.2d 193 (Fla.1965). The Court “concluded that neither comity nor the full faith and credit provision requires that the judgment in New York result in disbarment” in Florida. Id. at 196. The Court held, however, that under Rule 11.02(6) of the Florida Integration Rule, 32 F.S.A., the New York judgment operated as “conclusive proof of guilt of the acts of misconduct adjudicated in that judgment, but that the discipline to be awarded for such acts by this state shall be determined by this Court and its agencies in the same manner as in all other disciplinary proceedings”.

Although the referee had based his recommendation primarily on the conduct adjudicated in New York, he had also relied upon Wilkes’s belief in existentialism as a further ground for holding him unfit to practice. The Florida Supreme Court did not allow this aberration to pass unnoticed. The Court declared: “Neither respondent’s testimony, the ‘flyer’ or any other portion of the record supports the referee’s conclusion that the existentialist philosophy is repugnant to the reputable practice of law, or that respondent’s belief in or practice thereof renders him unfit to practice law. Mere belief in an unorthodox philosophy does not in itself make one unfit to practice law. . . . ” The referee had also noted the absence of any testimony by Wilkes as to church, civic, and social affiliations. The Court considered that this mention required it to say that “while evidence of such activities may be offered by an accused to demonstrate moral fitness, lack of evidence thereof may not be considered as negating fitness to practice or moral character”.

Upon remand, without any further hearings, the referee reconsidered the entire record, including that of the New York proceedings, and found that Wilkes should be disciplined in Florida for only two of the acts of misconduct (charges 1 and 3) adjudicated in New York. The Board of Governors approved the referee’s recommendation of disbarment for five years, retroactive to the date of the filing of the Florida complaint.

In 1967 the Florida Supreme Court affirmed the findings of guilt on the two charges, but on the facts of the case, concluded that disbarment for five years was not necessary to accomplish the purpose of the disciplinary action. The Florida Bar Association v. Wilkes, 199 So.2d 473 (Fla.1967). The Court noted that the acts complained of had taken place in 1958 or 1959; an adequate period of time had elapsed for the Florida Bar and the court to determine whether Wilkes had rehabilitated himself and could be reinstated as a member of the Bar “without endangering the public interest or the face of the legal profession”. Accordingly the Court suspended Wilkes until such time as he should demonstrate to the Florida Bar and the court that he should be reinstated to practice law. The United States Supreme Court denied certiorari from the judgment of the Florida Supreme Court. Wilkes v. Florida Bar, 1968, 390 U.S. 983, 88 S.Ct. 1104, 19 L.Ed.2d 1280.

Wilkes has never requested reinstatement to the Bar of Florida, evidently because he feels that such a request would be tantamount to admitting guilt as to the charges against him. Instead, on August 6, 1971, Wilkes filed a “Motion to Confirm Credentials to Practice Before the Courts of the Southern District”. The motion alleged, in substance, that the grounds given for the disbarment in New York for the derivative suspension in Florida were pretex-tual. It alleged that he was purged in New York as a suspected anti-Semite and that he was purged in Florida as a suspected intellectual and “active follower of the existentialism philosophy of radical individualism”. Wilkes contends that the district court (and this Court) must give “intrinsic consideration” to the New York record to ascertain whether in the New York proceeding there had been (1) want of due process; (2) infirmity of proof; and (3) “other grave error” that would justify federal courts’ not giving effect to the New York judgment directly or indirectly. He argues that the Florida proceeding cannot rise above the level of the New York proceeding.

Wilkes is on solid ground in asserting that disbarment by federal courts does not automatically flow from disbarment by state courts. Federal courts must “determine for ourselves the right to continue to be a member of . . . [the federal Bar]” after giving “intrinsic consideration” to the underlying record. Theard v. United States, 1957, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342. See also Selling v. Radford, 1917, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585 and In re Ruffalo, 1968, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, reh. den’d 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874.

On September 2, 1971, the district court entered an order taking jurisdiction of the matter “without prejudice to any party or other interested person or association’s rights to demonstrate lack of jurisdiction for reasons presently unknown” to the Court. In the same order, the district court denied Wilkes’s ex parte petition for confirmation of his credentials to practice before the Southern District “for the reason that he has failed to comply with the local rules of this Court regarding suspension of attorneys, and further that his delay in filing such a petition is not sufficiently explained in his petition”. In the same order, the Court appointed the United States Attorney to represent the Southern District Bar in the matter, and invited the Bar Association of the City of New York and the Florida Bar Association to appear as amici.

The United States Attorney filed a memorandum on Wilkes’s rights “to reinstatement” in which he urged the Court to rule against Wilkes. The Bar Association of the City of New York declined to appear in the proceeding. The Floi’ida Bar Association filed a motion to dismiss and a memorandum in support of the motion.

In its memorandum, the Bar argued that Wilkes’s petition should not be treated as a motion for confirmation, but x-ather should be treated as a motion for reinstatement. In making this argument, the Bar assumed that Wilkes had in fact been suspended from practice before the Southern District in 1967, immediately or shortly after his suspension in Florida. Nowhere in the memorandum, however, is the precise basis for this assumption made clear. The Bar did not cite any order of court suspending Wilkes; nor did it cite the register of attorneys qualified to practice before the Southern District as showing that Wilkes had been suspended. At any rate, based on its assumption that Wilkes had been suspended, and that his petition should therefore be treated as one for reinstatement, the Bar argued that the district court should abstain from deciding the merits of the petition because the petitioner then and at all times had a present right to petition the Florida Supreme Court for reinstatement.

The district court apparently accepted without further inquiry the Bar’s assumption that Wilkes had in fact been suspended in 1967 and treated the petition as one for reinstatement. In an order entered December 16, 1971, the court agreed that it was appropriate that it abstain until Wilkes filed a petition for reinstatement with the Florida Supreme Court. The district court accordingly dismissed the complaint.

II.

The trial court was mistaken in assuming that Wilkes ever was suspended from practice before the Southern District. We conclude, therefore, that the court erred in treating the petition as one for reinstatement, and in deciding on that basis that it should abstain pending an application by Wilkes for reinstatement in Florida.

As we indicated above, the Florida Bar Association in its memorandum in the district court did not state any basis for its assumption that Wilkes had been suspended from practice before the Southern District in 1967. Nor did the district court cite any particular order suspending Wilkes. Before this Court, however, the Bar Association has made it clear that the basis for its position— and that of the district court — is Local Rule 16, subd. E(2) of the Southern District of Florida, governing the discipline of attorneys. This rule provides:

Whenever it is made to appear to the Court that any member of its bar has been disbarred or suspended from practice by the Supreme Court of Florida, or convicted of a felony in any court, he shall stand suspended from practice before this Court on the eleventh day following entry of judgment, unless he shall file a petition in this Court, with copy thereof, served to the United States Attorney, before that day, to modify, or terminate such suspension. If such petition be timely filed, suspension will be thereby deferred until entry of an order thereon. Modification or termination of suspension by this Court shall be granted only upon showing of good cause.

The Bar Association notified the clerk of the district court of Wilkes’s Florida suspension by letter dated May 1, 1968. Had Local Rule 16, subd. E(2) been in effect, Wilkes automatically would have been suspended ten days after the receipt of the letter by the clerk, unless he had petitioned within that time for modification or deferment of the suspension.

Local Rule 16, subd. E(2), however, was not in effect in 1967 or 1968, and it is not proper to conclude on the basis of how it would have operated that Wilkes was actually suspended in 1967 or 1968. The difficulties in this case resulted from the failure by both the parties and the district court to conduct a sufficiently thorough search to determine when or how the assumed 1967 suspension by the Southern District was accomplished. We have made what we regard as such a search, and that search has revealed no basis for finding that Wilkes was ever derivatively suspended by the district court. On the contrary, our search has revealed the following:

1. The register of attorneys for the Southern District of Florida contains no order or other reference to that court’s having suspended Wilkes.

2. The Southern District’s Rule 16, subd. E did not go into effect until January 1, 1969, when it was adopted then as Rule 17, subd. E; it was renumbered Rule 16, subd. E after a revision of the rules effective in June 1971.

3. In 1967, when Wilkes was suspended by the Florida Supreme Court and when the Bar and district court assumed that he had been derivatively suspended by the Southern District, the local rules in effect were those adopted in 1964. The 1964 rules contained no provision for the discipline of attorneys admitted to practice before the Southern District. They were amended in 1966 to add Rule 14, subd. B. Rule 14, subd. B covered discipline of attorneys, but it applied only when an attorney had been convicted of a felony. Thus, the local rules in effect in 1967, when Wilkes was suspended by Florida, and in 1968, when the Florida Bar notified the Southern District of the suspension, did not cover the situation where an attorney had been suspended by the Supreme Court of Florida.

It is clear, then, that the district court erred in treating Wilkes’s petition as one for reinstatement rather than one for confirmation of his credentials. The court, on the allegations in the petition, should have given “intrinsic consideration”, under the Selling, Theard, and Ruff alo decisions to the grounds relied on by the New York and Florida courts. A remand will be required in this case so that the district court may hold a hearing (in effect, a de novo hearing) to conduct such an inquiry. Federal courts must “determine for ourselves the right to continue to be a member of . [the federal] Bar” after giving “intrinsic consideration” to the underlying record to verify whether “one or all of the following conditions . . . appear: (1) that, the state procedure, from want of notice or opportunity to be heard, was wanting in due process; (2) that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty, accept as final the conclusion on that subject; or, (3) that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do.” Selling v. Radford, 243 U.S. 46, 51.

Wilkes contends that this Court is in as good a position as the district court to decide the merits of his petition, and asks us to hold that the state court proceedings should not be credited by the federal district court. We find no merit in his suggestion that we are in a position to decide the case in full, and instead order a remand to the district court for decision on the merits. We hold that Wilkes is entitled to practice before the Southern District of Florida ;pendente lite.

Reversed and remanded for further proceedings consistent with this opinion.


author: RONEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joaquin GLORIA, Jr., Defendant-Appellant.
    No. 73-2044.
    United States Court of Appeals, Fifth Circuit.
    May 6, 1974.
    Rehearing and Rehearing Eh Banc Denied June 12, 1974.

      Vernon F. Knickerbocker, Jerald L. Abrams, Eagle Pass, Tex., for defendant-appellant,
    William Sessions, U. S. Atty., James W. Kerr, Jr., Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before DYER, MORGAN and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

Joaquin Gloria, Jr. was convicted of conspiring to possess with the intent to distribute and of possessing with the intent to distribute 41 pounds of marijuana in violation of 21 U.S.C.A. § 846 and § 841(a)(1). On appeal, he seeks reversal because of several District Court actions: (1) refusal to grant a continuance of Gloria’s trial so it could be held after a co-conspirator had pled guilty, (2) proscribing defense counsel from cross-examining a witness on prior misdemeanors, (3) admission of alleged prejudicial rebuttal testimony concerning defendant’s reputation for truth and honesty, (4) refusal to direct a verdict on the ground of insufficient evidence, (5) refusal to allow testimony concerning the favorable results of a polygraph test taken by defendant, and (6) refusal to give a requested charge that proximity to marijuana is not possession. By supplemental briefs, Gloria argues that a motion for new trial and a supplemental motion for new trial should have been granted on the ground of newly discovered evidence and suppression by the Government of favorable evidence. Finding no ground for reversal, we affirm the conviction.

Crispin Santos Mercado, the primary-witness for the Government, testified that Gloria approached him on the streets of Eagle Pass, Texas and offered him $200 to make a trip to Batesville, Texas. Lured by the prospect of easy money, Mercado agreed, whereupon he was instructed to leave the keys in his car and “take a walk.” After absenting himself for a period of time, Mercado returned to his automobile and began his trip to Batesville. Following Gloria’s instructions to utilize a roundabout route, Mercado was stopped by the Border Patrol at Carrizo Springs, Texas. Marijuana was discovered in a suitcase in the car’s trunk. Finding himself in a compromising situation, Mercado agreed to help the authorities, whereupon he was allowed to continue his journey but under the close surveillance of customs agents.

At Ted’s Place, the Batesville rendezvous, Mercado again met Gloria who instructed him to park the car at the rear of the establishment. Milton George Frey, Jr., a co-defendant, removed the marijuana to another vehicle, conversed with Gloria, and then left in the direction of San Antonio, only to be arrested shortly after his departure. At Ted’s Place, Gloria completed the $200 payoff to Mercado. Customs agents arrested both of them.

Each of the three participants was indicted on two counts: conspiracy and possession. Mercado and Frey pled guilty to the conspiracy count and the possession count was dropped as to them. Gloria proceeded to trial and was convicted on both counts.

1. Continuance

Gloria alleges that the District Court’s denial of his motion for continuance constituted an abuse of discretion and a violation of his Sixth Amendment right to compulsory process for obtaining witnesses. On the day of trial co-defendant Frey was to plead guilty to the conspiracy count. Gloria planned to use Frey as a defense witness. The scheduled plea was postponed for two days, however, due to a death in Frey’s family. Gloria moved for a continuance arguing that: Frey was a material witness who, after pleading guilty, could take the stand and exculpate Gloria by denying Gloria’s involvement in the criminal activity; the delay was not sought as a dilatory tactic; and the postponement of Frey’s plea came as a complete surprise to Gloria.

Gloria’s contentions are unpersuasive. He was not denied his right to compulsory process of witnesses because he subpoenaed Frey who appeared at the trial. Frey, however, exercised his Fifth Amendment right against self-incrimination, as he was entitled to do. Even if Frey had entered his plea prior to Gloria’s trial, he could still maintain his right against self-incrimination and refuse to testify in Gloria’s behalf. His guilty plea would dissolve that right only as to the offense to which he pled guilty. See McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L. Ed.2d 418 (1969). Since he ultimately pled guilty only to the conspiracy count, prosecution on the possession count remained a possibility. Postponing Gloria’s trial until that plea was entered would not have produced exonerating testimony for Gloria. Frey’s continued invocation of the Fifth Amendment at the subsequent motion for a new trial, after his plea to the conspiracy charge, further highlighted the futility of postponing Gloria’s trial. We find no abuse of discretion nor manifest injustice in the denial of a continuance.

2. Prior Misdemeanor Impeachment Evidence

The Government’s chief witness was Mercado, the co-defendant who delivered the marijuana and whose identification and testimony directly implicated Gloria in the conspiracy. Mercado had been previously convicted on two misdemean- or counts of assisting aliens to illegally enter the United States in violation of 8 U.S.C.A. § 1325. Gloria wanted to use those prior convictions to impeach Mercado’s testimony, but was prevented from doing so when the District Court granted the Government’s motion in lim-ine to prohibit all references to Mercado’s prior non-felony convictions or to convictions of crimes which did not involve moral turpitude.

This Court follows the usual rule that felony convictions and misdemeanors involving moral turpitude may be used to impeach the credibility of a witness. Roberson v. United States, 249 F. 2d 737 (5th Cir. 1957), cert, denied, 356 U.S. 919, 78 S.Ct. 704, 2 L.Ed.2d 715 (1958). See United States v. Sanchez, 482 F.2d 5 (5th Cir. 1973); United States v. Smith, 420 F.2d 428 (5th Cir. 1970); Pinkney v. United States, 380 F.2d 882 (5th Cir. 1967), cert, denied, 390 U.S. 908, 88 S.Ct. 831, 19 L.Ed.2d 876 (1968); 2 Wharton’s Criminal Evidence § 475 (13th ed. 1972); 3A Wigmore, Evidence 980, 986, 987 (Chadbourne rev. 1970); McCormick, Evidence § 43 (1954).

The penalty for a conviction under 8 U.S.C.A. § 1325 is limited to six months confinement and a $500 fine making the violation a misdemeanor under the laws of the United States. 18 U.S.C.A. § 1. To be used as impeachment evidence, therefore, the crime must involve moral turpitude. “Moral turpitude” has been defined by this Court as

“An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.”

United States v. Smith, 420 F.2d 428, 431 (5th Cir. 1970), citing Black’s Law Dictionary 1160 (Rev. 4th ed. 1957). Generally, a crime involving dishonesty or false statement is considered to be one involving moral turpitude. See Rules of Evidence for United States Courts and Magistrates, Rule 609. Convictions of 8 U.S.C.A. § 1325 do not fall within these classifications, however. We hold the mere assistance of aliens in their attempt to illegally enter the United States is not such a crime of moral turpitude or fraudulent and dishonest conduct to allow its introduction as impeachment evidence against Mercado because proof of its commission is not relevant to show a lack of truthfulness on the part of the witness. See 3A Wig-more, Evidence § 926 (Chadbourne rev. 1970).

Gloria’s reliance on United States v. Morgan, 155 U.S.App.D.C. 172, 476 F.2d 928 (1973), is misplaced. The witness in Morgan had been convicted of making a false report to the police. It was this witness’s uncorroborated report which led to Morgan’s arrest and conviction. Clearly the prior conviction for false reporting related directly to the witness’s credibility in his report against Morgan. Mercado’s prior conviction, however, had no such application.

Finally, the scope of cross-examination is a matter subject to the discretion of the trial judge. Roberson v. United States, 249 F.2d 737 (5th Cir. 1957), cert, denied, 356 U.S. 919, 78 S. Ct. 704, 2 L.Ed.2d 715 (1958). In light of Mercado’s credibility impeachment flowing from his conspiracy plea in the case at bar, there was no abuse of discretion in not allowing further cross-examination by admitting into evidence his prior misdemeanor convictions, which did not involve moral turpitude.

3. Government Rebuttal Testimony

After Gloria took the stand to testify on his own behalf, the Government introduced rebuttal testimony concerning his reputation for truth and veracity. Three customs agents testified that they knew of Gloria’s reputation in the community and that it was bad.

Gloria complains of the manner in which the Government attempted to qualify one witness, Agent Riggs, and challenges his qualifications ultimately established. Agent Riggs delineated the investigative jurisdiction of the Bureau of Customs to include marijuana and narcotic import violations. The District Court intervened, upheld Gloria’s objection, and instructed the jury to disregard the testimony. The curative instruction was sufficient to preclude any prejudicial error in that testimony.

Agent Riggs’ rebuttal testimony, based on his two years residence in Eagle Pass, Texas, Gloria’s home town, is not rendered inadmissible because Riggs spent the nine months preceding trial in Del Rio, Texas, a community some 40 miles from Eagle Pass. During the two years he was in Eagle Pass, Riggs was familiar with Gloria’s reputation for truth and veracity in that community and so testified.

Gloria also complains of overwhelming prejudice flowing from the insinuation and innuendo of having customs agents testify as to his reputation. The prejudice is obvious. But all rebuttal testimony establishing a defendant’s bad reputation prejudices his innocence in the eyes of the jury. That is the function of such testimony. We are only concerned, however, when that testimony prejudices the defendant in some unfair way. Considering that the Government may freely select as a rebuttal witness any person who knows of the defendant’s reputation and is willing to so testify, the fact that customs agents were selected and testified against Gloria’s reputation does not prejudice him in an unfair way. The insinuation and innuendo flowing from their selection and testimony was insufficient to warrant a reversal.

4. Sufficiency of the Evidence

In reviewing a contention that the evidence is insufficient to support a conviction, the Court must view the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). All reasonable inferences and credibility choices must be drawn from that evidence which will support the jury’s verdict of guilty. United States v. Squella-Avendano, 478 F.2d 433 (5th Cir. 1973).

a. The Possession Count

Gloria contends there was insufficient evidence to establish that he had either actual or constructive possession of the marijuana. He asserts that the Government’s evidence is equally consistent with the hypothesis of innocence because anyone could have left the suitcase of marijuana in Mercado’s automobile. The evidence is not quite that equivocal.

Gloria approached Mercado in Eagle Pass, offered him $200 to drive to Batesville via Carrizo Springs, instructed Mercado to “take a walk” and leave his keys in his car. Subsequently, Mercado arrived in Batesville and was again instructed by Gloria to park his car in the rear of Ted’s Place next to Frey’s vehicle. The transfer completed, Gloria paid Mercado the $200.

Mercado’s story was corroborated by the arresting agents’ testimony that Gloria matched the description given to them by Mercado at Carrizo Springs of the one who arranged the transportation. The agents testified they observed Mercado moving his vehicle to the rear of Ted’s Place after a short discussion with Gloria. A search of Mercado after his arrest revealed that he had received $200 after the time he was stopped and searched at Carrizo Springs. This evidence sufficiently establishes that Gloria had at least constructive possession of the marijuana during the period in question because he had “dominion and control” over Mercado who had actual possession. United States v. Martinez, 481 F.2d 214, 221 (5th Cir. 1973).

b. The Conspiracy Count

Gloria challenges the conspiracy count conviction on the ground that the Government failed to prove he conspired with anyone. Arguing that Mercado could not be a co-conspirator because Mercado had no knowledge of the marijuana’s existence, he contends that the Government failed to establish the common purpose essential to proving a conspiracy between him and the remaining participant, Frey.

This argument misses the factual thrust. Assuming Arguendo that Gloria’s contention as to Mercado is correct, the evidence establishes that a conspiracy existed between Gloria and Frey. Gloria met Frey at Ted’s Place. Upon Mercado’s arrival, he instructed Mercado to park his car next to the Chrysler in the rear of the establishment and leave his keys in the car. Shortly thereafter, Frey retrieved Mercado’s keys, opened the trunk and removed the marijuana to the Chrysler. After a brief conversation with Gloria, Frey left for San Antonio and Gloria made the $200 payment to Mercado.

The permissible inference that Gloria arranged the transportation of the marijuana from Eagle Pass to Batesville and that he was involved with Frey for its further transportation and disposition is sufficient to support Gloria’s conspiracy conviction beyond a reasonable doubt.

5. The Polygraph Examination

The trial court excluded from evidence the results of a polygraph test taken by Gloria, which were favorable to his credibility. Gloria recognizes that American Courts have traditionally held such evidence inadmissible in criminal proceedings on behalf of either the prosecution or defense because the polygraph has not yet been accepted by the courts as a scientifically reliable method of ascertaining truth or deception. Nothing in Gloria’s argument persuades us to reverse the exclusion of such evidence under such traditional view, recently reiterated by this Court in United States v. Frogge, 476 F.2d 969 (5th Cir. 1973), cert, denied, 414 U.S. 849, 94 S.Ct. 138, 38 L.Ed.2d 97 (1974).

6. The Charge

Gloria alleges the District Court erred in refusing his requested charge that proximity to marijuana is not possession of marijuana. The law is settled in this Circuit and others that the mere presence of a defendant in the area where contraband is discovered is insufficient to support a finding of possession. United States v. Stephenson, 474 F.2d 1353 (5th Cir. 1973); United States v. Davis, 461 F.2d 1026 (3d Cir. 1972); United States v. Holland, 144 U. S.App.D.C. 225, 445 F.2d 701 (1971). The charge given by the trial judge in this case, however, was sufficient to instruct the jury as to constructive possession, which, if followed, would preclude a conviction on Gloria’s mere proximity to the marijuana:

The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual or physical possession of it. As I have said to you, actual posession means the defendant must actually be shown beyond a reasonable doubt to have physical or actual possession or possession constructively or have constructive possession. A person, who, although not in actual possession knowingly has both the power and the intention at a given time, to exercise conscious dominion or control over a thing, in this case marijuana, either directly or through another person or persons, is then in constructive possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession may be said to be joint.
If you find from the evidence beyond a reasonable doubt that the accused, either alone or jointly with others, had actual or constructive possession of marihuana described in the Grand Jury indictment, then you may find that such was in the possession of the accused, within the meaning of the word possession as used in these instructions.

There was no error in refusing the requested charge or in the charge as given. See United States v. Virciglio, 441 F.2d 1295 (5th Cir. 1971); Williams v. United States, 361 F.2d 280 (5th Cir. 1966).

7. Motion For New Trial

a. Original Motion

Gloria based his original motion for new trial on the newly discovered evidence that the route utilized by Mercado when assisting aliens to illegally enter the country was similar to the roundabout route he employed in transporting the marijuana in the ease at bar. This evidence was found in a statement and prosecution report givén at the time of Mercado’s prior misdemeanor conviction. Gloria seeks reversal of the denial of a new trial on the ground that the Government suppressed material evidence which it had a duty to search its files for and reveal to the defense.

We have previously held that Mercado’s misdemeanor convictions were inadmissible for impeachment of his general credibility. The new evidence establishing that Mercado followed a circuitous route in assisting the illegal entry of aliens is not in material conflict with his testimony. The fact that he used this route merely shows that he knew of its existence. It does not substantially impeach his statement that Gloria instructed him to follow that route in this case. Defense counsel demonstrated to the Court at oral argument through the use of a map that only two roads exist to travel from Eagle Pass to Batesville. Mercado’s knowledge and prior use of those routes, even in transporting aliens, does not contradict his testimony that Gloria instructed him to go to Batesville through Carrizo Springs. There could be no reversible error in the alleged governmental suppression of such evidence, and the discovery of such evidence does not provide sufficient grounds for a new trial.

b. Supplemental Motion for New Trial

A supplemental motion for new trial was based on a letter from Frey to Gloria’s attorney with an affidavit exculpating Gloria. Alleging newly discovered evidence in that Frey showed in his letter that he knew without communicating with Gloria that Mercado was transporting the marijuana, Gloria sought a new trial. After an evidentiary hearing at which Frey relied on his Fifth Amendment privilege against self-incrimination and refused to testify, the District Court denied the motion. We find no merit in any of the various grounds asserted for a new trial.

(a) Gloria contends Frey’s reliance on his privilege against self-incrimination was improper since he had pled guilty to the conspiracy count. But as we discussed earlier, his guilty plea to the conspiracy count did not waive his constitutional right as to other violations. Frey could not be required to exonerate Gloria at the risk of incriminating or perjuring himself.

(b) Frey’s testimony as to some matters at the evidentiary hearing did not amount to a waiver of his right against self-incrimination in relation to other matters.

. (c) Gloria’s thorough examination of Frey at the hearing belies the allegation that the District Court failed to make an individual determination as to the merits of each claim of privilege. Frey answered some questions and refused to answer others. The Court ruled on his claim with respect to each specific question that he declined to answer.

(d) The warning to Frey by the District Court and the prosecutor that he was subject to a perjury charge should his testimony materially differ from his prior plea were not improper or misleading. Gloria’s reliance on Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), is misplaced. In Webb, prejudice was found in threatening the witness with certain prosecution if he testified. That prejudice is not present in this case because Frey was merely advised of the possibility of prosecution if his testimony materially differed from his prior plea, not that he would be prosecuted if he testified.

(e) Prior to the evidentiary hearing, Frey requested an out-of-court and off-of-the-record conference during which he related details of his prior marijuana dealings. All counsel were privy to this conference. At the hearing before the court Frey invoked his Fifth Amendment privilege concerning questions about those dealings. Gloria then called the Assistant United States Attorney to testify as to Frey’s out-of-court statements. There was no error in the District Court’s refusal to allow that testimony in light of its questionable relevance and hearsay nature.

(f) At the conclusion of the evidentiary hearing Frey’s testimony had not produced any new evidence upon which to base a new trial. There was no error in the denial of Gloria’s motion.

Affirmed.


author: SIMPSON, Circuit Judge:

text:
    Rosa POWELL, Plaintiff-Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant-Appellee.
    No. 73-1250.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1974.
    Rehearing and Rehearing En Banc Denied Aug. 6, 1974.

      Alvin A. Ohm, G. William Baab, Dallas, Tex., for plaintiff-appellant.
    Joe L. Randle, J. H. Hand, Dallas, Tex., for defendant-appellee.
    Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.
   SIMPSON, Circuit Judge:

Appellant Rosa Powell sued Southwestern Bell Telephone Company (the Company) alleging that it had denied her employment as a telephone operator on the basis of her age, and thus in violation of the Age Discrimination in Employment Act (ADEA), Title 29, U.S.C., Sec. 621 et seq. The district court dismissed the action based on a finding that appellant had failed to give notice to the Secretary of Labor of her intent to file a private suit within 180 days of the alleged unlawful practice as required by Title 29, U.S.C. Sec. 626(d), Section 7(d) of the act. Agreeing with the finding of the district court and its dismissal thereunder, we affirm.

Some facts are in dispute, but those necessary to our review are not. We briefly delineate them. On February 6, 1970, Ms. Powell made a written application for employment as an operator to the company at its Cleburne, Texas office. From an affidavit of Dorothy Ra-ney, the company employee responsible for hiring at that time it appears that ten operator job vacancies existed, nine for work as temporary operators and one as full time. Ms. Powell was informed that no operators were being hired.

Shortly thereafter appellant complained to the Department of Labor about what she believed to be unlawful discrimination by appellee against her because of her age. The Department acknowledged receipt of this information by letter dated February 17, 1970, and advised appellant to note the specific time limits governing the circumstances under which she could file her own suit. On June 12, 1970, the Department informed Ms. Powell that it could not substantiate her claim of discrimination by reason of age and thus could take no further action. The existence of specific time limits in connection with private lawsuits was reiterated, together with the fact that nothing done by appellant to that point was considered to be notice of her intent to file suit. Appellant responded by letter dated June 16, 1970, in which she indicated that it was her wish that the Department of Labor bring suit against Southwestern Bell.

The Compliance Officer handling her case, the Regional Solicitor for the Department, and finally the Department’s litigation section in Washington, D.C. in turn reviewed Ms. Powell’s request that the Department bring suit. On March 11, 1971, appellant was informed by the Area Director of the Wage and Hour Division of the Department that no action would be taken in her behalf. The reason was agreed by all involved to be a lack of evidence sufficient to sustain the required burden of proof. On March 23, 1971, appellant did give notice of her intent to file private suit, which the Regional Director, M. J. Parmenter, erroneously deemed to be timely, as evidenced by a letter written by him on April 27, 1971 to U.S. Congressman Olin E. Teague. During May of that year appellant provided the Department with additional information concerning the alleged discrimination. On June 28 the Department informed her by letter that the new information was not sufficient to alter its decision regarding litigation of her claim. This ended the Department’s involvement in the case.

On appeal from the district court’s dismissal of her case as filed out of time, appellant makes three separate claims of error alleging improper dismissal of her suit because (1) the 180 day time limit is not a jurisdictional requirement; (2) because material issues of fact had not been resolved; and (3) because the 180 day time limit, even if jurisdictional, had been tolled.

NOTICE OF INTENT TO SUE WITHIN 180 DAYS

Appellant launches a broad based attack upon the district court’s interpretation of Sec. 7(d) of the Act, Title 29, U.S.C. Sec. 626(d). Sec. 7(d) provides, in pertinent part, that:

No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days’ notice of an intent to file such action. Such notice shall be filed—
(1) within one hundred and eighty days after the alleged unlawful practice occurred, .

Appellant argues that dismissal for failure to comply with the 180 day requirement is inconsistent with the existence of a separate statute of limitations, with the legislative history of the ADEA and with judicial interpretation of similar provisions of the Equal Employment Opportunity Act, (EEOA), Title 42, U.S.C., Sec. 2000e et seq., and hence that action of the district court was error. We are unpersuaded.

Sec. 7(e) of the ADEA expressly incorporates the statute of limitations found in the Portal-To-Portal Act, Title 29, U.S.C., Sec. 255. That limitation is two years for nonwillful violations of the statute and three years if the violation is shown to have been willful. Appellant argues that to dismiss an action for failure to file a notice of intent to sue within 180 days of the unlawful practice imposes an additional and considerably shorter limitation upon all prospective plaintiffs. Our perception of the two time limits is quite different and we find appellant’s argument rather disingenuous. The 180 day limit is not upon the filing of suit, but upon notice to the Secretary that one intends to bring suit. Thus it is entirely possible to comply with the notice requirement, yet still be in violation of the limit on filing an action by exceeding the two or the three year provisions of the Portal-To-Portal Act. The notice requirement in no way supplants the statutory period of limitation engrafted from the Portal-To-Portal Act. Rather it is simply a prerequisite to the right to file any suit whatsoever under the ADEA.

Appellant goes on to cite the legislative history pertaining to the ADEA in support of the proposition that the 180 day limit is not jurisdictional in nature, but merely directory. While nothing in that history addresses the precise question, we find that there is some support for, if anything, a contrary view. House Report 805, in discussing the companion requirement of a 60 day waiting period between notice of intent and the actual filing of suit, characterizes the notice as a “condition precedent” to filing. A permissible inference is that the requirement of timeliness attending the notice is likewise a condition precedent to suit. H.R.Rep.No.805, 90th Cong., 1st Sess. (1967); 1967 U.S.Code Cong, and Admin.News pp. 2213, 2218. Later in the same report it is noted that “persons intending to file civil actions under this act must give the Secretary of Labor 60 days’ notice before doing so.” (emphasis supplied) 1967 U.S.Code Cong, and Admin.News p. 2223. More to the point, the Senate Report stated that “in the case of suits brought by individuals notice of intention to sue must be given the Secretary of Labor within 180 days after the alleged unlawful practice occurred, . . .” (emphasis supplied) S.Rep.No.723, 90th Cong., 1st Sess. (1967); 113 Cong.Ree. 31251.

Perhaps the most interesting feature of the origin of the 180 day notice limitation is that it appeared in the original bill as introduced in the Senate, was deleted from the House passed bill, and was restored by the amendment in the Senate when the House bill was returned for consideration by the upper chamber. The House concurred in the amendment. Its restoration, together with that of several other portions of the original Senate bill, was “intended to answer some of the disquiet in American business . . . keeping also in mind the practical problems of administration, . . .” 113 Cong.Ree. 35056 (Remarks of Senator Javits). It is logical that the 180 day notice was intended to insure that potential defendants would become aware of their status and the possibility of litigation reasonably soon after the alleged discrimination since the notice goes from the Secretary of Labor on to the employer involved. In turn this would promote the good faith negotiation of employers during the 60 day conciliation period and provide an opportunity for preservation of evidence and records for use at a trial necessitated by failure of negotiation. It does not, as appellant asserts on brief, “force a claimant to the courthouse while the Secretary, the employee and the employer are still in the process of mediating the dispute.” Rather, it gives notice to concerned parties that the plaintiff intends to sue and may do so within the applicable two or three year statute of limitations.

Plaintiff seeks to bolster the foregoing argument by analogizing the 180 day notice requirement in the ADEA with the 90 day charging requirement in the EEOA. The latter has been interpreted liberally, though it has not yet been held directory rather than jurisdictional. The attempted analogy must fail. The 180 day notice requirement of the ADEA is contained in the subsection expressly dealing with time limits on civil actions. On the other hand, the 90 day charging requirement of the EEOA is found in an entirely separate subsection which precedes the subsection limiting the filing of civil actions under the act to within 30 days of Commission notification to the party. Thus whereas the EEOA needed interpretation on the issue of jurisdictional import, the ADEA has no such corresponding need, as the language used is abundantly clear. Moreover, interpretation by this court of the 90 day EEOA charging requirement indicates only that alternative action may suffice, not that a lack of compliance may be excused. See Boudreaux v. Baton Rouge Marine Contracting Company, 5 Cir. 1971, 437 F.2d 1011 (acknowledging authority to the effect that the 90 day requirement is jurisdictional, but not ruling on the point); Sanchez v. Standard Brands, Inc., 5 Cir. 1970, 431 F.2d 455 (amendment to timely filed complaint may include grounds not articulated in original); Culpepper v. Reynolds Metals Co., 5 Cir. 1970, 421 F. 2d 888 (90 day requirement tolled while union member pursues grievance procedure). Even if we were to hold that an alternative was permissible, Ms. Powell’s action cannot benefit from the rationale of the above cases, since she took no action which can be construed to satisfy the notice requirement. We reject appellant’s argument that her June 16, 1970 letter asking the Secretary to sue in her behalf constituted notice. Notice of a desire that an agency of the federal government commence litigation on one’s behalf simply does not equate with notice of such an individual’s personal intent to commence a private lawsuit.

We note finally that while this is a case of first impression in the courts of appeal, a similar conclusion has been reached by district courts considering the question. See, e. g., Gebhard v. GAF Corp., D.D.C.1973, 59 F.R.D. 504; Price v. Maryland Casualty Co., S.D. Miss.1972, 155 F.R.D. 614; Cochran v. Orthe Pharmaceutical Co., E.D.La. Jan. 24, 1973, C.A.No.71 — 1022 (Minute Entry).

MATERIAL ISSUES OF FACT

Appellant correctly points out that a motion to dismiss a complaint should not be granted if material issues of fact are unresolved. But, we cannot agree with her assertion that such issues existed at the time this action was dismissed by the district court.

The complaint stated that “on or about February 6, 1970, and continuing to date (February 3, 1972), defendant refused to employ plaintiff Rosa Powell because of her age. . . .” Since all well pleaded allegations in a complaint are to be assumed true on a motion to dismiss, it is urged that the purportedly “continuing” nature of the discrimination means that the 180 day notice requirement would not have begun to run. We hold that the alleged discrimination was not of a “continuing” nature. The affidavit of Dorothy E. Raney showed that no one at all had been hired as an operator at the Cleburne office of the Company between August 10, 1970 and the time the affidavit was taken, October 30, 1972. It is thus manifest that even if appellant had been denied employment because of her age as late as the date when the last operator was hired, any denial subsequent to August 10, 1970 was not “because of her age”, but because of a lack of job openings. Since the actual notice of intent to file a private lawsuit came on March 23, 1971, the 180 day requirement was unsatisfied. 180 days from August 10, 1970, as we calculate it, expired February 7, 1971. The cases cited by appellant in connection with “continuing discrimination” are inapposite, since they deal with overt, documented company policies in full force and effect at the time suit was brought. See, e. g., Bartmess v. Drewrys U.S.A. Inc., 7 Cir. 1971, 444 F. 2d 1186, cert, denied, 1971, 404 U.S. 939, 92 S.Ct. 274, 30 L.Ed.2d 252; Mixon v. Southern Bell Telephone & Telegraph Co., N.D.Ga.1971, 334 F.Supp. 525.

Appellant strains to establish other unresolved material issues of fact, but the record fails to support her contentions. As indicated supra, appellant’s June 16, 1970 letter to the Department of Labor may not be construed as notice of her intent to bring a private lawsuit. It is equally plain, as noted, from the Raney affidavit that “no operator ha[d] been hired at Cleburne, Texas, since said date of August 10, 1970.” Thus there is present no issue as to the possible date of any discrimination.

Appellant bases her final assignment of error upon the tolling theory discussed above. It is urged that when the Secretary’s help was invoked in negotiating with the alleged discriminator the 180 day notice requirement was tolled in the same manner that the commencing of formal grievance procedures has been held to toll the 90 day charging requirement of the EEOA. Culpepper v. Reynolds Metals Co., supra. Although we are not insensitive to the policy considerations advanced by Ms. Powell in this regard, our sympathy is an insufficient basis upon which to justify an extension of the tolling theory to meet her predicament. She was expressly alerted to the time limitations for possible action, both private and agency assisted. To consider informal action by the Secretary in her behalf as tolling the 18Q day requirement would be to read the notice section out of the statute, an action we are not prepared to take.

Error in the proceedings below is not demonstrated, and we affirm the order dismissing appellant’s claim as filed out of time.

Affirmed.

      . While it is unimportant to our analysis of the problem, we note that the 90 day requirement in former Title 42, U.S.C., Sec. 2000e-5(d) has been changed to 180 days and is now in Sec. 2000e-5(e). Act of March 24, 1972, Pub.L.No.92-261.


text:
    Reverend William H. SIMPSON and Mrs. Crispina Simpson, Plaintiffs-Appellants, v. WELLS LAMONT CORPORATION et al., Defendants, North Mississippi Conference of the United Methodist Church etc., and Bishop Edward J. Pendergrass, et al., Defendants-Appellees.
    No. 73-1027.
    United States Court of Appeals, Fifth Circuit.
    May 24, 1974.

      Arthur G. Gearheard, III, Frank R. Parker, Jackson, Miss., for plaintiffs-appellants.
    Newell N. Fowler, Edward R. Young, Memphis, Tenn., for Wells.
    John E. McFall, New Orleans, La., for Hersehede Hall and Garan.
    Gary R. Parvin, Starkville, Miss., for Garan.
    William Q. McKee, Starkville, Miss., for Hersehede.
    Hunter M. Gholson, Columbus, Miss., for Mersman Bros.
    Thomas J. Tubb, West Point, Miss., for Pryor Co.
    Vardaman S. Dunn, Jackson, Miss., for Kellwood.
    John W. Dulaney, Jr., Tunica, Miss., for Irwin Co.
    W. C. Butler, Eupora, Miss., for Sal-ley & Lucius.
    Bramlett Roberts, Oxford, Miss., for Methodist Church.
    Walter Buchanan Meek, Eupora, Miss., for Public Official Defendant.
    W. T. Denman, III, Eupora, Miss., for the Lathams and Latham Oil Co.
    Charles H. Walker, Oxford, Miss., for defendants-appellees.
    Before BELL, AINSWORTH and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

This case involves the fundamental question of who will preach from the pulpit of a church, and who will occupy the church parsonage. The bare statement of the question should make obvious the lack of jurisdiction of a civil court. The answer to that question must come from the church. The District Court dismissed this civil rights suit brought by a pastor for damages for his ouster by church officials. As if the long history of separation of ecclesiastical courts and civil courts prior to and since the founding of this country were not sufficient to ground an affirmance, the first words of the Bill of Rights in the United States Constitution would clearly establish the unconstitutionality of any law asserted on behalf of the plaintiff: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Certainly a congregation’s determination as to who shall preach from the church pulpit is at the vei'y heart of the free exercise of religion, which plaintiffs would corrode with an overlay of civil rights legislation and other parts of the Constitution. The people of the United States conveyed no power to Congress to vest its courts with jurisdiction to settle purely ecclesiastical disputes.

Reverend William H. Simpson and his wife Crispina brought suit for damages against the North Mississippi Conference of the United Methodist Church, various church officials and parishioners, local public officials, and several community business enterprises. In a five count complaint, Simpson alleged that his removal as pastor from four churches in Webster County, Mississippi, and the subsequent eviction of his family from the church parsonage, violated certain federal civil rights and the First, Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution.

Simpson was employed in June 1970 as the lay pastor of the Eupora, Mississippi, Circuit of the United Methodist Church which included the Leganon, South Union, LaGrange and Mount Mor-iah churches. As part of the employment arrangement, he moved into the Eupora Circuit parsonage.

Choosing “Human Rights” as his initial sermon topic, Simpson began a crusade to rectify certain social behavior which he deemed to be in conflict with church teachings. Whether the subject matter chosen or the manner of its delivery was distasteful, his pulpit messages were displeasing to certain members of the congregation and other Methodist parishioners. Simpson was found inefficient by the Circuit and relieved of his charge. He was first asked and later ordered to vacate the parsonage. After many delays, the church officials obtained an eviction order from the local Justice of the Peace, which was executed by the defendant sheriff, his deputies and constables.

Simpson brought suit against 43 defendants asserting causes of action for violation of rights secured by the Constitution and by 42 U.S.C.A. § 1981 (equal rights to make and enforce contracts and for security of persons and property), § 1982 (equal rights to the enjoyment of property), § 1983 (the right to be free of deprivation of federally protected rights under color of law), § 1985 (the right to be free of unlawful conspiracies to interfere with federally protected rights), and § 1986 (the right to obtain aid from other persons to prevent the violation of federally protected rights).

The church defendants filed a motion for summary judgment based on discover y depositions and 98 pages of affidavits. Simpson filed an answer to the motion and a fourteen page affidavit of his own. In its opinion, the District Court treated the motion for summary judgment as a motion to dismiss for lack of subject matter jurisdiction:

[N]o matter how one may look at this dispute, it had to do with the substance and content of the very words uttered within the church itself, going right to the heart of the doctrine and beliefs and type of sermons that are delivered in churches. Now, the church is a sanctuary, if one exists anywhere, immune from the rule or subjection to the authority of the civil courts, either state or federal, by virtue of the First Amendment.

The Court granted the defendant public officials’ motion for summary judgment on the ground that they were merely instruments of the church instituted eviction, they were acting in good faith, and they were immune from suit for damages when executing a valid order issued by the Justice of the Peace. The District Court certified the final judgment as to the church and public official defendants to permit this appeal while the case against certain business establish-' ments remained pending.

The First Amendment language that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof .” historically has stood for the strict prohibition of governmental interference in ecclesiastical matters. Only on rare occasions where there existed a compelling governmental interest in the regulation of public health, safety, and general welfare have the courts ventured into this protected area. See, e. g., Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Braunfeld v. Brown, 366 U.S. 599, 81 S. Ct. 1144, 6 L.Ed.2d 563 (1961); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879). Such incursions have been cautiously made so as not to interfere with ' the doctrinal beliefs and internal decisions of the religious society. Thus, the law is clear: civil courts are barred by the First Amendment from determining ecclesiastical questions. Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969); Kreshik v. St. Nicholas Cathedral, 363 U.S. 190, 80 S.Ct. 1037, 4 L.Ed.2d 1140 (1960); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952); Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 50 S.Ct. 5, 74 L.Ed. 131 (1929); Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1872).

Simpson contends, however, that his claim can be resolved without determining questions of religious doctrine. He argues that he “was dismissed because of his views on race and merger of the segregated church organization, and because of the color of his wife’s skin, a racial dispute, not a religious dispute.” He claims that he was following the church doctrine as enunciated in the United Methodist Church’s Book of Discipline and was terminated for “inefficiency,” not infidelity to those doctrines, so that his discharge necessarily does not involve a church dispute. He contends “his complaint can be resolved on the basis of ‘neutral principles of law,’ which can be applied without establishing any particular view or interpretation of religious doctrine.”

Simpson would narrowly limit ecclesiastical disputes to differences in church doctrine. The cases negative such a strict view. A “spirit of freedom for religious organizations, an independence from secular control or minipulation in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine” is reflected in the Supreme Court’s decisions. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952).

The interaction between the church and its pastor is an integral part of church government. In McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert, denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.E.2d 153 (1972), this Court discussed the ecclesiastical nature of the pastor-church relationship.

The relationship between an organized church and its ministers is its life blood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship ihust necessarily be recognized as of prime ecclesiastical concern. Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection.

460 F.2d at 558-559. In McClure we held that the application of the equal employment opportunities provisions of the Civil Rights Act to the relationship between the Salvation Army and its officer who was minister would result in encroachment by the state into the area of religious freedom in violation of the First Amendment. The application of the Civil Rights Act provisions urged by Simpson would likewise result in such a prohibited encroachment.

Simpson’s characterization of his dismissal as racial in nature carries him no further. The Supreme Court has determined in another context that

The values underlying these two provisions [of the First Amendment] relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance.

Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S.Ct. 1526, 1532, 1533, 32 L.Ed.2d 15 (1972). “Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 323, 89 L.Ed. 430 (1945).

Central Presbyterian Church v. Black Liberation Front, 303 F.Supp. 894 (E.D.Mo.1969), relied on by Simpson, is distinguishable from the case at bar. There the church instituted a civil rights action to enjoin members of the defendant association from disrupting their religious services. The District Court granted the affirmative relief requested because the defendants were preventing the congregation’s free exercise of religion. Simpson is not prevented from worshipping by the church’s action. He is merely precluded from preaching to them. Although he may have a breach of contract action un-. der state law, Simpson has no right under the free speech clause of the First Amendment to be paid for preaching to a congregation that does not wish to hear him.

Simpson was dismissed according to the procedures outlined in the Church’s Book of Discipline. Appeals to the District Superintendent, to the Bishop, and finally to the Central Council of the denomination were available for him to correct any arbitrary or untoward action that may have been taken against him by the congregation. That appellate procedure within the church hierarchy was his avenue for review. In a line of cases from Watson v. Jones, supra, to Presbyterian Church v. Hull Memorial Presbyterian Church, supra, the Supreme Court has reaffirmed the principle that civil courts are not an appropriate forum for review of internal ecclesiastical decisions. The District Court was correct in dismissing the church defendants for lack of subject matter jurisdiction.

The District Court granted the defendant public officials’ motion for summary judgment. Simpson appeals this decision as it relates only to the sheriff, his deputies, and the constables.

The gist of the charge against the defendant public officials seems to be that they unlawfully evicted Simpson from his church-owned residence after the affidavit for eviction was made by the officials of the church. Simpson makes no allegation that the Mississippi eviction statute is unconstitutional, that the eviction order was improperly executed, or that the procedure was characterized by official oppression, abuse, or fraud. Simpson does not allege that the defendant public officials were connected in any way with the denial of Simpson’s right to employment as pastor of the Eupora Circuit.

The defendant public officials’ response to legal duties flowing from church instigated eviction proceedings was in accordance with the laws of Mississippi. Once the affidavit of eviction was filed, the public officials were duty-bound to execute the order which was valid on its face. Their good faith compliance with that duty relieves them of liability. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

The District Court properly decided the case for the defendant public officials on their motion for summary judgment.

Affirmed.