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May 16, 1974

Noel Tancred Escofil
Commissioner of Internal Revenue

Luongo, District Judge.

The opinion of the court was delivered by: LUONGO

Plaintiff Noel Tancred Escofil instituted this action to challenge the constitutionality of certain taxing provisions of the Social Security Act. *fn1" Before the court is a motion by defendant Commissioner of Internal Revenue to dismiss pursuant to Rule 12(b), F.R.C.P., for lack of jurisdiction and failure to state a claim on which relief can be granted.

 Escofil's pro se initial pleading in this case consisted of the following:

"The Social Security Act is unconstitutional in that it prohibits me to freely exercise my religion in regards to Matt. 6:34.
"And those tax laws whereby the Commissioner of Internal Revenue et al seek to deny my talents (copyrights) under the guise of disallowable loss in order to discriminate against me by making me pay my taxes a second time: are unconstitutional. In that said laws, rules and regulations as in Ernest L. Rink, 51 T.C. 746, 753 (1969); Ellis M. Brydia, T.C. Memo. 1970-147, etc. prohibit me to freely exercise my religion in regards to Matt. 25:16, 20 and 21; also James 1:16 & 17.
"Wherefore it is hereby petitioned that the Presiding Judge convene a three Judge Panel to try these Constitutional matters, please."

 By order dated June 7, 1973, I granted defendant's motion for a more definite statement. F.R.C.P. 12(e). Escofil's amended complaint, filed on July 24, 1973, also strains F.R.C.P. 8(a), which provides for a "short and plain statement of the claim . . . [and] the grounds upon which the court's jurisdiction depends" but, in light of what has been thus far filed, it would be futile to require that the pleadings be further amended. The general policy of the Federal Rules is that pleadings are to be liberally construed so as to reach the merits wherever possible. Conley v. Gibson, 355 U.S. 41, 48, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Pro se complaints are generally held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). Applying those principles, a very liberal reading of the amended complaint reveals the substance of Escofil's grievance.

 Escofil's complaint is two-tiered. His basic grievance is that the Congress, by compelling him to participate in the Social Security System by requiring that social security taxes be withheld from his wages, infringes his First Amendment right to freely exercise religion. The religious tenet with which the Social Security Act allegedly collides, according to the amended complaint, is embodied in Matthew 6:34:

"Take therefore no thought for the morrow; for the morrow shall take thought for the things of itself. Sufficient unto the day is the evil thereof."

 Congress has recognized the possible conflict of the Social Security Act with certain religious beliefs. 26 U.S.C. § 1402(h), *fn2" enacted in 1965, grants self-employed persons who are members of "recognized religious sects" the opportunity to apply for an exemption from Social Security if the program offends their religious beliefs. Because of the existence of § 1402(h), Escofil, who is not self-employed, makes what is really an equal protection challenge, arguing that Congress has unlawfully discriminated between those who are self-employed and those who are employed by others, by extending to one class the right to apply for a religious exemption while denying it to the other.

 Escofil has requested that a three-judge court be convened to adjudicate his constitutional claim. 28 U.S.C. § 2282. A three-judge court is not required each time the constitutionality of a statute is "drawn in question." Garment Workers v. Donnelly Co., 304 U.S. 243, 250, 82 L. Ed. 1316, 58 S. Ct. 875 (1938). Historically, the three-judge court statutes were enacted to prevent a statutory scheme from being immobilized as a result of the decision by one judge to enjoin its enforcement. In this case, as a practical matter, even a decision in Escofil's favor would not "interdict the operation of a statutory scheme." Flemming v. Nestor, 363 U.S. 603, 607, 4 L. Ed. 2d 1435, 80 S. Ct. 1367 (1960). The ruling in this case would affect Escofil only. Social Security taxes would continue to be deducted from the wages of other employees, at least pending ultimate review. Under these circumstances, Escofil is really seeking declaratory, rather than injunctive relief, and it is unnecessary to convene a three judge panel. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963); Flemming v. Nestor, supra ; Garment Workers v. Donnelly Co., supra.

 Turning to the merits of Escofil's claim, there is no doubt that Congress has wide latitude to enact Social Security laws which subject employees and self-employed persons to different treatment. In the trilogy of cases upholding the constitutionality of various facets of the Social Security Act [ Helvering v. Davis, 301 U.S. 619, 81 L. Ed. 1307, 57 S. Ct. 904 (1937); Steward Machine Co. v. Davis, 301 U.S. 548, 81 L. Ed. 1279, 57 S. Ct. 883 (1937); Carmichael v. Southern Coal Co., 301 U.S. 495, 81 L. Ed. 1245, 57 S. Ct. 868 (1937)] the Supreme Court dealt with plaintiffs' attacks that the Social Security Act and state statutory schemes created in conjunction with it were arbitrary and unconstitutional because of the legislative determination to tax one group of employers/employees while exempting others. In rejecting these claims, the Court wrote in Carmichael : *fn3"

"It is inherent in the exercise of power to tax that a state be free to select the subjects of taxation and to grant exemptions . . . . This court has repeatedly held that inequalities which result from a singling out of one particular class for taxation or exemption, infringe no constitutional limitation . . . . Administrative convenience and expense in the collection or measurement of the tax are alone a sufficient justification for the difference between the treatment of small incomes . . . and that meted out to others . . . . It would hardly be contended that the state, in order to tax payrolls, is bound to assume the administrative cost and burden of taxing all employers having a single employee. But if for that or any other reason it may exempt some, whether it should draw the line at one, three, or seven, is peculiarly a question for legislative decision." 301 U.S. at 509, 511 (Emphasis added)

 The logic of these cases quite obviously permits Congress to treat employees and self-employed persons differently, and the legislative history of the Social Security Act reveals that Congress has done so since the inception of Social Security. The original Social Security scheme enacted by Congress in 1935 made no provision for the self-employed. Not until the Social Security Amendments of 1950 did ...

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