The opinion of the court was delivered by: BARTELS
The Secretary of Health, Education, and Welfare (Secretary), defendant, has decided that the services of plaintiff, an ordained clergyman and a teacher of philosophy and religion at St. John's University, were rendered in the exercise of his ministry and therefore his remuneration was not wages within the meaning of and not covered by the Social Security Act (Act), except as self-employment income. Accordingly, plaintiff brings this action under Section 205(g) of the Act, 42 U.S.C.A. § 405(g), to review the final decision of the Secretary, and the defendant in turn moves for summary judgment pursuant to Rule 56, Fed.Rules Civ.Proc., 28 U.S.C.A.
Plaintiff was ordained in the Roman Catholic Church in Warsaw, Poland in 1942, arrived in the United States in 1954, and was hired in September, 1957 by St. John's University to assume the position of associate professor of theology and philosophy. His qualifications for the position include, inter alia, masters degrees in theology, world history and philosophy and doctorate degrees in theology and philosophy, all earned in Europe prior to his arrival in this country. From 1957-1964 St. John's University treated plaintiff as an employee for Social Security purposes and paid the employer's share of the tax on his earnings. According to a letter written by Blaise J. Opulente, Executive Vice President of the University, St. John's is an educational institution, chartered under the Education Law of the State of New York. It also is a Catholic University and has been entrusted to the Congregation of the Mission, a Catholic religious community of priests, more popularly known as the Vincentian Fathers, and is governed by a Board of Trustees composed of Vincentian priests and laymen. Although most of its students are Catholic, the University has enrolled many non-Catholics and there are many non-Catholics on its faculty and staff. Reverend Matczak is not a member of the Congregation of the Mission, although he is a Catholic priest and at times functions elsewhere in that capacity. Even in the Department of Theology of the University, ordination to the priesthood is not a prerequisite to appointment and, in fact, there are members of that Department who are laymen. In his letter Mr. Opulente stated that St. John's University is not an integral part of the Brooklyn Diocese of the Roman Catholic Church and that plaintiff's employment by St. John's University as a member of its faculty should be distinguished from his functions and duties as a Catholic priest.
On March 8, 1966, plaintiff was advised by the Administration that the wages reported for him by St. John's University from January 1, 1961 through June 30, 1964, could not remain credited to his account because the work he performed was in the exercise of his ministry and therefore excepted from employment under the Act, § 210(a)(8)(A), 42 U.S.C.A. § 410(a)(8)(A). On the basis of the waiver certificate, filed on March 31, 1965, plaintiff was credited with self-employment income for 1962 and subsequent years under the Internal Revenue Code, but not for 1961 since he failed to file timely self-employment returns for that year.
The pertinent provisions of the Act relevant to the issues here involved are as follows:
Section 209, defining the term "wages" as meaning remuneration for employment.
Section 210(a), defining the term "employment" as any service, of whatever nature, performed by an employee for the person employing him.
Section 210(a)(8)(A), excluding from the term "employment" service "performed by a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order".
Section 211(c)(4), excluding from the term "trade or business", when used with reference to self-employment income or net earnings from self-employment, the "performance of service by a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order".
Section 1402(e) of Title 26, Internal Revenue Code of 1954, providing that the earnings of a minister excluded from the term "trade or business" in the above sections may be included as self-employment income if the minister files a waiver certificate to include such earnings.
In the administration of the above sections of the Act, the Secretary promulgated Section 404.1015 of Regulation No. 4, as appears from Section 404.1015 of the Code of Federal Regulations, which describes services deemed performed by a minister or priest "in the exercise of his ministry, or by a member of a religious order in the exercise of duties required by such order". Subsection (a)
states in general that services performed by a minister or a member of a religious order are excepted from employment, and subsection (b)
specifically includes in that exception services performed in "the conduct of religious worship, and the control, conduct, and maintenance of religious organizations (including the religious boards, societies, and other integral agencies of such organizations), under the authority of a religious body constituting a church or church denomination." In determining whether services performed by a minister are performed in the exercise of his ministry, paragraph (2) of subsection (b) includes: "Service performed by a minister in the control, conduct, and maintenance of a religious organization relates to directing, managing, or promoting the activities of such organization." Paragraph (4) of subsection (b) includes ministerial services performed in the control, conduct, and maintenance of such organization "which is operated as an integral agency of a religious organization". Paragraph (5) of subsection (b) includes as ministerial services, services of a minister pursuant to an assignment "for an organization which is neither a religious organization nor operated as an integral agency of a religious organization * * * even though such service may not involve the conduct of religious worship or the ministration of sacerdotal functions."
After a hearing at the request of the plaintiff, the hearing examiner reached the following conclusions:
"4. St. John's University is an educational institution chartered under the educational laws of the State of New York and is not an integral part of the Brooklyn Diocese of the Roman Catholic Church and the claimant is not a member of the Congregation of the Mission; and as a member of the faculty of St. John's University ...