Held: A district court's failure to advise a defendant of his right to appeal does not entitle him to habeas relief if he knew of his right and hence suffered no prejudice from the omission. Because Rule 32(a)(2) requires a district court to advise a defendant of any right to appeal his sentence, it is undisputed that the court's failure to give the required advice was error in this case. However, as a general rule, a court's failure to give a defendant advice required by the Federal Rules is a sufficient basis for collateral relief only when the defendant is prejudiced by the error. See, e.g., United States v. Timmreck, 441 U. S. 780 . Because petitioner had full knowledge of his right to appeal, the fact that the court violated the Rule, standing alone, does not entitle him to collateral relief. The narrow holding in Rodriquez v. United States, 395 U. S. 327 --that when counsel fails to file a requested appeal, a defendant is entitled to resentencing and an appeal without showing that his appeal would likely have merit--is not implicated here because the District Court found that petitioner did not request an appeal. Pp. 3-7.
Kennedy, J., delivered the opinion for a unanimous Court. O'Connor, J., filed a concurring opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.
MANUEL D e JESUS PEGUERO, PETITIONER v .
We granted certiorari to resolve a Circuit conflict over whether a district court's failure to advise a defendant of his right to appeal as required by the Federal Rules of Criminal Procedure provides a basis for collateral relief even when the defendant was aware of his right to appeal when the trial court omitted to give the advice. Compare, e.g. , Thompson v. United States , 111 F. 3d 109 (CA11 1997) (defendant entitled to relief even if he knew of his right to appeal through other sources); United States v. Sanchez , 88 F. 3d 1243 (CADC 1996) (same); Reid v. United States, 69 F. 3d 688 (CA2 1995) (per curiam) (same), with Tress v. United States, 87 F. 3d 188 (CA7 1996) (defendant not entitled to relief if he knew of his right to appeal); United States v. Drummond , 903 F. 2d 1171 (CA8 1990) (same). We hold that a district court's failure to advise the defendant of his right to appeal does not entitle him to habeas relief if he knew of his right and hence suffered no prejudice from the omission.
Petitioner Manuel Peguero pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U. S. C. §846. At a sentencing hearing held on April 22, 1992, the District Court sentenced petitioner to 274 months' imprisonment. The court did not inform petitioner of his right to appeal his sentence.
In December of 1996, more than four years after he was sentenced, petitioner filed a pro se motion to set aside his conviction and sentence. See 28 U. S. C. §2255 (1994 ed., Supp. II). He alleged his counsel was ineffective for various reasons, including the failure to file a notice of appeal pursuant to petitioner's request. App. 63, 65. The District Court appointed new counsel, who filed an amended motion adding a claim that at the sentencing proceeding the trial court violated Federal Rule of Criminal Procedure 32(a)(2) by failing to advise petitioner of his right to appeal his sentence. This last claim gives rise to the question before us.
The District Court held an evidentiary hearing. Petitioner testified that, upon being sentenced, he at once asked his lawyer to file an appeal. App. 139. Consistent with petitioner's testimony, the District Court found that, although the sentencing court had failed to advise petitioner of his right to appeal the sentence, petitioner knew of his right to appeal when the sentencing hearing occurred. No. 1:CR-90-97-01 (MD Pa., July 1, 1997), App. 168, 184. The court also credited the testimony of petitioner's trial counsel that petitioner told counsel he did not want to take an appeal because he hoped to cooperate with the Government and earn a sentence reduction. Id ., at 180-181; cf. Fed. Rule Crim. Proc. 35(b) ("The court, on motion of the Government made within one year after the imposition of the sentence, may reduce a sentence to reflect a defendant's subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense").
Relying on our holding in United States v. Timmreck , 441 U. S. 780 (1979), the District Court rejected petitioner's claim that any violation of Rule 32, without regard to prejudice, is enough to vacate a sentence under §2255. The court held that petitioner was not entitled to relief because he was actually aware of his right to appeal at the time of sentencing. No. 1:CR-90-97-01, App. 184. The court also rejected petitioner's ineffective assistance of counsel claim based on its finding that petitioner did not request an appeal. Id ., at 180.
The Court of Appeals for the Third Circuit affirmed the ruling. It held that the Rule 32(a)(2) violation was subject to harmless-error review and that, because petitioner was aware of his right to appeal, the purpose of the Rule had been served and petitioner was not entitled to relief. Judgt. order reported at 142 F. 3d 430 (1998), App. 192, 194-195.
"Notification of Right To Appeal .--After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's right to appeal, including any right to appeal the sentence, and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. There shall be no duty on the court to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty or nolo contendere, except that the court shall advise the defendant of any right to appeal the sentence. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant."
Current Rule 32(c)(5) likewise imposes on the district court the duty to advise the defendant at sentencing of any right to appeal.
The requirement that the district court inform a defendant of his right to appeal serves important functions. It will often be the case that, as soon as sentence is imposed, the defendant will be taken into custody and transported elsewhere, making it difficult for the defendant to maintain contact with his attorney. The relationship between the defendant and the attorney may also be strained after sentencing, in any event, because of the defendant's disappointment over the outcome of the case or the terms of the sentence. The attorney, moreover, concentrating on other matters, may fail to tell the defendant of the right to appeal, though months later the attorney may think that he in fact gave the advice because it was standard practice to do so. In addition, if the defendant is advised of the right by the judge who imposes sentence, the defendant will realize that the appeal may be taken as of right and without affront to the trial judge, who may later rule upon a motion to modify or reduce the sentence. See Fed. Rule Crim. Proc. 35. Advising the defendant of his right at sentencing also gives him a clear opportunity to announce his intention to appeal and request the court clerk to file the notice of appeal, well before the 10-day filing period runs. See Rule 32(c)(5) ("If the defendant so requests, the clerk of the court must immediately prepare and file a notice of appeal on behalf of the defendant"); Fed. Rule App. Proc. 4(b) (establishing 10-day period for filing appeal, which may be extended for 30 days by district court for "excusable neglect").
These considerations underscore the importance of the advice which comes from the court itself. Trial judges must be meticulous and precise in following each of the requirements of Rule 32 in every case. It is undisputed, then, that the court's failure to give the required advice was error.
A violation of Rule 32(a)(2), however, does not entitle a defendant to collateral relief in all circumstances. Our precedents establish, as a general rule, that a court's failure to give a defendant advice required by the Federal Rules is a sufficient basis for collateral relief only when the defendant is prejudiced by the court's error. In Hill v. United States , 368 U. S. 424 (1962), for example, the District Court violated the then-applicable version of Rule 32(a) by failing to make explicit that the defendant had an opportunity to speak in his own behalf. The defendant did not allege that he had been "affirmatively denied an opportunity to speak," that the District Judge had been deprived of any relevant information, or that the defendant "would have had anything at all to say if he had been formally invited to speak." Id ., at 429. The defendant established only "a failure to comply with the formal requirements of the Rule," ibid., and alleged no prejudice; on these premises, the Court held the defendant was not entitled to collateral relief, id., at 428-429.
So, also, in United States v. Timmreck , collateral relief was unavailable to a defendant who alleged only that the District Court " `fail[ed] to comply with the formal requirements' " of Rule 11 of the Federal Rules of Criminal Procedure by not advising him of a mandatory special parole term to which he was subject. 441 U. S., at 785 . The defendant did not argue "that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty." Id., at 784. Having alleged no prejudice, defendant's "only claim [was] of a technical violation of the Rule" insufficient to justify habeas relief. Ibid .
In this case, petitioner had full knowledge of his right to appeal, hence the District Court's violation of Rule 32(a)(2) by failing to inform him of that right did not prejudice him. The fact of the violation, standing alone, Hill and Timmreck instruct, does not entitle petitioner to collateral relief.
Our decision in Rodriquez v. United States , 395 U. S. 327 (1969), does not hold otherwise. In Rodriquez , the Court held that when counsel fails to file a requested appeal, a defendant is entitled to resentencing and to an appeal without showing that his appeal would likely have had merit. Id., at 329-330. Without questioning the rule in Rodriquez , we conclude its holding is not implicated here because of the District Court's factual finding that petitioner did not request an appeal. While Rodriquez did note the sentencing court's failure to advise the defendant of his right to appeal, it did so only in the course of rejecting the Government's belated argument that the case should be remanded for factfinding to determine the reason counsel had not filed the appeal. The court's failure to advise the defendant of his right was simply one factor--in combination with the untimeliness of the Government's request and the lengthy proceedings and delay the defendant had already endured--that led the Court to conclude that it was "just under the circumstances" to accord the petitioner final relief at that time without further proceedings. Id., at 331-332. This limited and fact-specific conclusion does not support a general rule that a court's failure to advise a defendant of the right to appeal automatically requires resentencing to allow an appeal.
Petitioner and his amicus would distinguish Timmreck (and, presumably, Hill ) on the ground that the defendant in Timmreck had the opportunity to raise his claim on direct appeal but failed to do so, whereas the absence of the "judicial warning [required by Rule 32(a)(2)] may effectively undermine the defendant's ability to take a direct appeal." Brief for Petitioner 20. This argument, however, provides no basis for holding that a Rule 32(a)(2) oversight, though nonprejudicial, automatically entitles the defendant to habeas relief. Even errors raised on direct appeal are subject to harmless-error review. Rule 52(a) of the Federal Rules of Criminal Procedure prohibits federal courts from granting relief based on errors that "d[o] not affect substantial rights." See Rule 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded"); see also Bank of Nova Scotia v. United States , 487 U. S. 250, 254-255 (1988) ("[A] federal court may not invoke supervisory power to circumvent the harmless-error inquiry prescribed by Federal Rule of Criminal Procedure 52(a)... . Rule 52 is, in every pertinent respect, as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard the Rule's mandate than they do to disregard constitutional or statutory provisions").
Justice O'Connor , with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, concurring.
I join the opinion of the Court, and I write separately to express my views about the meaning of prejudice in this context. When, as here, a district court fails to advise a defendant of his right to appeal, there are two ways in which this error could be said not to have prejudiced the defendant. First, a defendant might not be prejudiced by the error because he already knew about his right to appeal. That is the case here, and the Court properly concludes that under these circumstances, the defendant has not shown that he is entitled to collateral relief.
Second, a defendant might not be prejudiced by the district court's failure to advise him of his right to appeal because he had no meritorious grounds for appeal in any event. In my opinion, there is no reason why a defendant should have to demonstrate that he had meritorious grounds for an appeal when he is attempting to show that he was harmed by the district court's error. To require defendants to specify the grounds for their appeal and show that they have some merit would impose a heavy burden on defendants who are often proceeding pro se in an initial 28 U. S. C. §2255 motion. If the district judge had fulfilled his obligation to advise the defendant of his right to appeal, and the defendant had wanted to appeal, he would have had a lawyer to identify and develop his arguments on appeal. The defendant should not be penalized for failing to appeal in the first instance when his failure to appeal is attributable to the errors of a district court judge. This result is consistent with our resolution of Rodriquez v. United States, 395 U. S. 327 (1969). In Rodriquez , we held that when a defendant's failure to appeal a conviction is attributable to an error by his lawyer, the defendant is entitled to collateral relief without requiring him to show that his appeal would have had merit. In my view, there is no reason to adopt a different rule when the failure to appeal results from a district judge's error.


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Culture is a concern in this conversation from two standpoints. Following my post on 1 Cor 11, one reader asked whether I was just saying, after all, “It’s cultural.” This needs some clarification hermeneutically, especially for a missional reading. Additionally, many traditionalists believe that the discussion of women’s roles, among other topics, is the result of “the culture” influencing the church today. A theologically legitimate view of culture, alongside a less fear-driven process of reasoning, will demonstrate the extent to which this is a poorly formed idea.
First, why is the claim, “It’s cultural,” interpretively suspect? The leading reason is that (A) it has been used, at times, to justify the dismissal of portions of Scripture that do not conform to the interpreter’s preconceived conclusions. This is a real problem, exhibited extravagantly in Bultmann’s demythologization but far more commonly in all sorts of interpretive agendas across the spectrum. And in this sense, the answer to my friend’s question is no, I am not merely saying Paul’s understanding of women’s roles is cultural and therefore ignorable. At the same time, even conservatives admit that (B) there are some aspects of the NT that are “cultural” and, therefore, not “universally” binding. In fact, head coverings in 1 Cor 11 is the go-to example, along with the “holy kiss.” Paul clearly, unequivocally commands women to use head coverings. Moreover, the injunction seems to be universalized by the statement, “we have no such custom, nor do the churches of God” (1 Cor 11:16), referring to women praying unveiled and men wearing long hair in vv. 13–15. The only reason such conservatives do not consider this biblical command “applicable” today is that it is “cultural.” The reason we shake hands or hug instead of obeying the command to greet one another with a holy kiss is that the kiss is “cultural.” There are plenty more examples, but it’s rather tedious to repeat what has been said so many times. I bother to rehearse this little bit because claiming (A) in no way addresses the fact that (B) is operative for everyone, yet this seems to disappear from the minds of those who want to defend certain Pauline commands, such as the silence of women.
Every word of the Bible is “cultural.” In one sense, therefore, the claim, “It’s cultural,” means nothing. In another sense, however, the claim means that a given text, like all others, invites a reading that takes into account everything foreign about the writer and audience. In the latter sense, the answer to my friend’s question is yes, I am absolutely claiming that the meaning of 1 Cor 11 is fully culturally determined and may mean something very different to us—a claim I would make about all of Scripture. In regard to 1 Cor 11:1–16 specifically, the semiotics of Corinthian gender relationships mean—to them, not to us, it shouldn’t need saying—honor or dishonor, glory or shame. If what Paul determines theologically and commands is bound up with that cultural construct, then we have found the substance of what it means to say that head coverings are “cultural,” and we have found, more fundamentally, what motivates Paul to order gender relationships in a particular way in Corinth, namely, the glory of God and mutual love in terms all Corinthians could understand. Are head coverings “applicable” in our culture? Yes! “Cultural” does not mean “irrelevant,” lest the whole Bible be irrelevant. But understanding what head coverings mean prevents us from jumping to the flawed conclusion that their universal application is, “Women are subject to men.” Head coverings mean, lay down your rights and freedoms in the Lord if doing so glorifies God and serves his mission. They mean, love your brothers instead of shaming them.
And, the reason I start the discussion of women’s roles with 1 Cor 11 is that head coverings also mean something hermeneutically. This section of 1 Corinthians (8–11) is as close as we get in Paul’s writings to an explicit statement about culturally relative applications of Christian theology. Through this particular issue, Paul explains that it is the Corinthians’ cultural perceptions of honor and shame that must shape the embodiment of the congregation’s life in the Lord. The truth that women are equal in the Lord, confirmed by the equal gifting of women in the Spirit, requires an application relative to Corinthian culture. The glory and mission of God are weightier than the women’s right to express their equality. So Paul gives us a foundational piece of a missional hermeneutic, and—it’s cultural.
1. The church has always been and cannot be other than a culturally embodied entity.
2. Any given culture is neither good nor bad but contains good, bad, and neutral elements.
3. The church is fallible.
4. Cultures can change for better or worse.
5. Cultural change may require recontextualization.
6. The church’s traditional subordination of women is just as likely a product of cultural influence as the present movement toward women’s equality. To assume the latter and ignore the former is nonsensical.
7. The church’s traditional subordination of women is just as likely bad as it is good or neutral. To assume without theological argumentation that subordination is good and equality is bad or vice versa is nonsensical.
8. The church’s traditional subordination of women may be bad while the culture’s influence toward equality may be good. The appeal to the way things used to be or to the previous impossibility of conceiving a different practice compose the very traditionalism that the Restoration Movement rejects. Churches of Christ left behind hierarchical Christianity in lock step with emergent American culture’s democratization and in the face of traditionalist claims that such a move was not long ago inconceivable. In large part, Churches of Christ resisted the cultural shift away from racial prejudice, during both the abolition of slavery and the civil rights movement. The appeal to the way things used to be and the rejection of “the culture’s” influence did not put the church on the right side of the issue. The culture was moving in the right direction; the church was not. To assume that unprecedented change in the church is bad because it reflects broader cultural change is nonsensical.
9. The church’s traditional subordination of women may have been appropriate contextualization in places where cultural change now requires a different practice. Contextualization is not just for moving from one culture to another synchronically but for ongoing theological reflection diachronically in a single culture. Remaining in a single culture does not legitimate the search for a static, universal practice regarding women’s roles. To assume that cultural change is bad because it requires theological recontextualization is nonsensical.
I want to be clear that theological relativity goes even deeper than just culture. It comes all the way down to specific situations. As I’ve already discussed at length in the previous post, meat sacrificed to idols is handled situationally. Practices vary within the same cultural matrix, broadly speaking, depending upon the situation. What did the Jerusalem council command Greco-Roman Gentiles to do? Don’t eat it. What would Paul say to a Greco-Roman congregation without weak consciences? Go for it. The difference is not culture but situation.
To Churches of Christ, this may sound something like the congregational autonomy we cherish. It is not. Situational does not mean autonomous, for we are not a law unto ourselves. Ever. Our situation is always one of relationship to other congregations and, therefore, love and consideration of them. This is what pulls us into Jerusalem council (multi-congregational) sorts of deliberations, as well as ongoing conversation. This is what brings Paul to deliberate in reference to “the churches of God”—not because the conclusion is universal but because it is relational. There exists fellowship between congregations that precludes autonomous theological reflection.
Instead, situational signals the need for discernment pertaining to contingent factors that are more granular than shared culture tends to be. Such discernment, as 1 Cor 8–10 well demonstrates, results in a nuanced and conditional set of conclusions that presume the ongoing spiritual formation of the whole church in order to make (increasingly) appropriate ad hoc applications. This is not a theological process that produces blanket, binary (do/don’t) determinations. It does not absolutize, and it does not trade in certainty. It invites the church to make provisional decisions and plan to change later, to grow continually in wisdom and adapt to God’s ongoing, innovative work in the world.
On a still deeper hermeneutical level, the discussion of texts relevant to female church leadership often proceeds with a very problematic assumption about Scripture’s function. As I’ve already mentioned, this assumption is what makes the distinction between “universal” and “cultural” seem reasonable. Note the implication of the preceding sentence: our assumptions are what delineate reasonableness. Assumptions are the channels through which the conversation flows, and it can flow nowhere else. Therefore, if we address these texts with a bad assumption, then the very possibility of moving in the right direction is at stake.
So what is the assumption? It is that Scripture functions to tell us what to do. According to this assumption, in the case of female church leadership, texts such as 1 Cor 14:33–36 function to tell us what women can or can’t do in a church assembly. Hence, organizing texts into cultural (or situational) and universal commands makes sense in the first place because we are looking for commands. In this scheme, some commands must be obeyed directly, because they “apply” now exactly as they did then; and others do not have to be obeyed directly, because they do not “apply” now. Making the distinction therefore serves the theological agenda of determining which texts give the universal church commands to obey, or of converting “cultural” commands into principles than can be “applied” now.
I will deal with this topic more in the next post, on 1 Tim 2, in regard to the doctrine of inspiration. For now, I want to introduce an alternative to the assumption that Scripture functions as an instruction manual. What if Scripture functions, instead, to shape us into the kind of theologians that the biblical writers were, in order that the church might make faithful new determinations in new contexts? What if Scripture functions to transform our worldview so that we can, by the power of the Spirit, discern how to live resurrection life in situations for which Scripture, forced into an instruction-manual mode, simply offers no instructions? What, in other words, if we come to 1 Cor 14:33–36 without assuming that its function is to tell women everywhere what to do? For one thing, we no longer have to worry about figuring out whether the command is “cultural”—a good thing, because if everything is cultural, finding non-cultural texts is a futile endeavor. For another, it allows us to focus on what Paul means rather than what he commands in one situation. But above all, it lets us learn from Paul not merely what to do but how to think about what to do.
I make another couple of assumptions as I approach 1 Cor 14. One is that Paul is absolutely brilliant in his own right (not to mention thoroughly apostolic). I combine this with the assumption that the text as we have it is trustworthy, which is an important point to note when it comes to vv. 33–36. While some distinguished scholars have concluded from the text-critical evidence that Paul did not author those verses—a conclusion that I am not qualified to dispute with much force—I find the verses’ authorship to be a moot point. All of the source documents we possess contain these verses in one place or another in ch. 14, and they are at the end of the day indisputably part of the Christian Canon. Granting that their insertion might affect the flow of Paul’s argument, which creates an exegetical dilemma, I nonetheless see every reason to treat vv. 33–36 as though they belong to the extended argument of ch. 14 and the broader section.
If Paul is brilliant and the text is trustworthy, then my first step is to reject the notion that chs. 11 and 14 are in tension with one another. It is a bad interpretive move to begin examining either of these passages as if there is a dilemma to resolve. Paul has given us a continuous argument that coheres wonderfully. If we perceive a blatant contradiction in only a few short chapters’ space, then we know we have misunderstood what Paul is saying. The tension doesn’t actually exist. I hasten to add that I appreciate tension and do not rule it out in principle. I just think it’s unnecessary to build an interpretation around the perception of a problem that doesn’t exist if Paul has half a brain.
Once we assume coherence between chs. 11 and 14, something that astoundingly few commentators note becomes obvious: we’re still talking about Corinthian women in the context of prophecy, and shame is still the key word. And more to the point, we’re still talking about the church’s embodiment of resurrection life before the watching eyes of Corinth.
As I noted in the previous post, 8:1 is Paul’s lead-in to ch. 13. Chapters 8–14 follow a continuous theological thread: love of God and others (both the church body and unbelievers). Chapter 13 should not be abstracted from the book as a bit of off-topic theological reverie. It is the explicit statement of the implicit theological underpinning upon which the letter stands.
So Paul proceeds through his discussion of how some who “know” that idols are nothing treat those who do not, how women are praying and prophesying, how the church practices table fellowship amidst social disparity, and how the church experiences the gifts of the Spirit, to a climactic statement about what love has to do with all of this. As ever, Paul mixes his metaphors to good effect. The gifts of the many-membered body converge with the construction metaphor from 8:1—”but love builds” (hē de agapē oikodomei)1—making “edification” (building, construction) the key idea of ch. 14. Church practices that serve to build the temple (connecting us right back to 3:16 and 6:19) are Paul’s practical application of his agape theology.
In church jargon, which is reflected in most translations, “edification” and “building up” are self-referential. As the phrase “for my own edification” indicates, that which edifies benefits me or, collectively, us. To American ears, “Love builds up,” seems to say that love does what is good for other church members. I propose, however, that in Paul’s imagination (and much of the early church’s, if 1 Peter 2 is any indication), the idea of oikodomē (construction) was connected to the image of constructing—putting together—God’s temple. In this image, building might be in reference to existing pieces of the edifice (other church members); the work is a long process before the temple is a complete masterpiece. But the image is also certainly one of the temple’s continuing expansion. And either way—this is the vital point—both finishing out and adding on are inseparable from God’s mission. In the latter case, obviously, there is a sense of making building blocks out of unbelievers. Yet, in the former too, the building of the church is not merely “what benefits us” but what makes us into the people who benefit God’s mission. The temple of God must be the place where God is glorified.
Lest our self-referential reflex get the best of us, I highlight 14:20–25. Hopefully this passage at the heart of the chapter can help us reimagine “upbuilding the church” in Paul’s missional terms.
Paul sees the unbelievers of Corinth not as the house of lies that will be swept away but as the remnant (Isa 28:5), as those who will be built upon the new foundation laid in Zion. Uninterpreted tongues are a sign of judgement, not a message of grace. They destroy rather than build up. Specifically, they leave Corinthian unbelievers with the impression that Christians are just another mystery cult that works itself into a maniacal frenzy (mainesthe; 1 Cor 14:23) rather than bearing witness to the church’s Shema-shaped faith. Following this line of reasoning, we can make a little more sense of Paul’s telescoped phrasing in v. 22: “[Uninterpreted] tongues, then, are a sign not for [building] believers [into the temple] but for [destroying stubborn] unbelievers, while prophecy is not for [destroying stubborn] unbelievers but for [building] believers [into the temple].” What, in other words, builds the uninitiated (idiōtai) into the temple? The message that initiates them! How does the church love the unbeliever? By communicating clearly and including them in the conversation! Treat visitors as part of the remnant! Speak to them as though they will be believers, as though the message of grace is for them, as though God is building them into the temple, because that is God’s mission!
The immediate context of the passage on women’s silence is 1 Cor 14:26–40. Paul turns to the so what in v. 26, preparing to deal now with the specific issues affecting the Corinthian assembly. He begins with a final thematic exhortation: Let all things be done for oikodomē. (1) Let tongues be spoken for building up. This means (a) don’t interrupt each other and try to cram too much in, and (b) there must be an interpretation. If there isn’t an interpretation, then shut up (sigatō, v. 28). (2) Let prophecy in Greek be spoken for building up. This means (a) don’t interrupt each other and try to cram too much in, and (b) there must be an evaluation. If someone can explain what the prophecy means (by a “revelation”), then the prophet should shut up (sigatō, v. 30). (3) Let the evaluative response to prophecy be for building up. This means (a) the wife of a prophet who wants to question her husband should keep her comments private, because (b) she should remember what Paul has already said about the “law” in 11:8–9. If it is “shameful” (aischron, v. 35) for women to speak, then they should shut up (sigatōsan, v. 34).
We have to pay close attention to what Paul is implying. His language is circumspect—perhaps intentionally so as not shame certain men of the congregation any further (who have clearly already been dishonored by the conduct addressed) or exacerbate the tension that must have existed. The obvious objection to my reading is that Paul does not say these women (specifically, wives or other women in a patriarchal relationship with a male in the congregation) are responding to their significant other’s prophecy. He says they should “ask their men at home if they desire to learn” (v. 35), not that they should save their evaluation of their husband’s prophecy for the privacy of the home.
Yet, the connection of vv. 33–36 with the overall scenario of the preceding verses is real; this is not an aside.2 The assumption is that the women, equally gifted with knowledge, wisdom, and discernment, have participated in the evaluation of prophecy (the diakrinetōsan of v. 29; cf. the gift of diakriseis pneumatōn, discernment of spirits, in 12:10), likely speaking up in much the same way that v. 30 posits. The problem was that responding critically to one’s husband (and “evaluation” does presume the possibility of a negative conclusion), even if by a revelation, would have worsened the shameful situation already described in ch. 11.
Chapter 11 has already painted a picture of Corinthian women participating in the prophetic speech acts of their assembly in a way that was shaming the men. Now, when Paul comes to the fuller description of what happens following prophecy, we find that the women’s involvement in the rest of the congregation’s discussion of the prophetic word was also shaming the men. It’s the same basic problem—shame—and Paul doesn’t bother to recite the whole argument again but, instead, uses “the law” as shorthand for his earlier argument. And, as before (11:16), he has “all the churches of the saints” (v. 33) in view; some of the Corinthians may think they have moved beyond traditional gender mores, but the word of God did not originate with them, and they are not the only ones it has reached (v. 36). Shame is an inter-congregational consideration.
In Paul’s newly imagined upbuilding, loving assembly, we have a vision of women prophesying with the cultural symbols that ensure their husbands’ honor and being sure not to shame their husbands in the way they respond to their husbands’ prophecy. While this interpretation requires us to make an inference (and, I note, we Restoration churches have no problem with necessary inference), I think it is a fairly straightforward reading of Paul’s argument. It is not, of course, a reading that gives us a universal conclusion about female church leadership. What, then, does 1 Cor 14:33–36 contribute to the twenty-first century discussion?
I’m convinced Paul’s question for all the churches of the saints in twenty-first century America would be, “How do you love the women of the church and the unbelievers who are watching the way you treat them? How do you build up the temple of God?” This is a rhetorical question; the answer is not to silence our Spirit-gifted women. To do so tears down the church that would be built up by their contributions. To do so communicates disrespect, prejudice, hatefulness, ignorance, and oppression to the unbeliever. To do so dishonors the God who took on flesh and died in order to destroy the walls that once divided us. When will we let God’s mission guide our congregational decisions about such matters? When will we finally begin to think like Paul about what to do now, what to do next? We have the guidance, and it is not a set of codified instructions. It is the law of love: love of God and love of others. It is love as a relentless endeavor to build up, build up, build up! Mission—love as oikodomē—is how we determine the significance of 1 Cor 14 today. We must reorder, recontextualize our community practices carefully so that they glorify God before our watching neighbors, who cannot see in the silence of women that God has loved them equally in the Lord. We must love one another in mutual respect, mutual submission, as humble learners, because that is how God makes us into his missional people. We must listen to the Spirit, through the voices of men and women, for the benefit of the whole church, for our equipping and transformation. Will there be situations in which women should shut up? Sure. This is the point—contexts vary! Will there be situations in which men should shut up? I’m certain there already are, because sometimes shutting up so someone else can talk is the best way to love.

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SACRAMENTO – On February 26-27 the Contractors State License Board (CSLB) conducted a sting operation in Ventura County, which resulted in the citation of 22 unlicensed individuals. One of those cited had an expired license, which is why investigators are reminding the public about the importance of always hiring a licensed contractor.
CSLB's Statewide Investigative Fraud Team (SWIFT), with help from the Ventura County District Attorney's office and Simi Valley Police Department, posed as homeowners and contacted alleged unlicensed contractors based on their advertisements. The workers were invited to a 5-bedroom, single-family home in Simi Valley to bid on home improvement projects.
One individual cited for illegal contracting was using a CSLB license number that had expired in 2010. That person faces a penalty for fraudulent use of an incorrect license number (Business and Professions Code (BPC § 7027.3). Those interested in getting a contractor license are encouraged to attend one of our licensing workshops.
"Consumers should look up a contractor's license number on CSLB's website to make sure it's current and in good standing," said CSLB Registrar David Fogt. CSLB's website offers a "Find My Licensed Contractor" feature that provides a list of licensed contractors in any area by searching by city or ZIP code.
The highest bid received during the Simi Valley sting was from one individual who offered $25,000 for installing artificial grass in the backyard of the home. Other bids included $7,000 for painting, $6,500 for landscaping, and $5,500 for concrete work. In California, it's illegal for an unlicensed person to perform any contracting work on a project valued at $500 or more in combined labor and material costs. As a result, the suspects could now face a misdemeanor charge of contracting without a license (BPC §7028(b)). First-conviction penalties include up to six months in jail and/or up to $5,000 in fines. Penalties are more severe with each successive violation. A second conviction carries a mandatory sentence of 90 days in jail.
The advertisements, which initially tipped-off SWIFT investigators to the suspects, could lead to an additional misdemeanor charge for all 22 suspects who neglected to state in their ads that they were not licensed (BPC § 7027.1). Advertisements for unlicensed contractors must note that they are not a state-licensed contractor.
The Simi Valley sting also resulted in four citations for failure to carry workers' compensation insurance (Labor Code (LAB) § 3700.5) after individuals came to the job site with employees. Contractors with employees must carry workers' compensation insurance. All C-39 Roofing contractors must have a workers' compensation policy even if they do not have employees. Contractors can submit a Certificate of Workers' Compensation Insurance on the CSLB website.
In addition, five of the bidders required an excessive down payment before starting work and were also written-up for that alleged violation. It is illegal for contractors to ask for more than 10 percent down or $1,000, whichever is less (BPC §7159.5 (a)(3)(b)).
All suspects were ordered to appear in court at the Ventura County Superior Court, 800 South Victoria Avenue, Ventura, CA 93003 on May 15-16, 2019, at 8:30 am.


If a teamster was sent with a team by his employer, a master teamster, to transport for a contractor, who was a subscriber under the workmen's compensation act, concrete window sills, wheelbarrows, picks and shovels to a place in a neighboring town wherethe contractor was constructing a garage, and if the carrying of building material and appliances from the subscriber's yard to the place where the building was to be erected was a part of the trade or business carried on by the subscriber as a building contractor and was not merely ancillary and incidental to the work of constructing the building, an injury to such teamster from having one of the concrete window sills slip and fall upon him as he was assisting in loading it on his team at the contractor's yard is within the provision of St. 1911, c. 751, Part III, § 17, entitling an employee of a subcontractor to compensation under the act.
APPEAL to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board awarding compensation to Patrick Comerford, an employee of one Connors, a master teamster, who was injured on May 6, 1915, when assisting in loading a concrete window sill upon his team for transportation to Mattapan to be used by the McDonald and Joslin Company in the construction of a small brick garage there.
The case first was heard in the Superior Court by Wait, J., who made a decree in accordance with the decision of the Industrial Accident Board, and on appeal to this court, in a decision reported in 224 Mass. 571, it was ordered that the case should be recommitted to the Industrial Accident Board, where the employee might move for a hearing and for the introduction of further evidence upon the question whether the work performed by him was a part of the business of the McDonald and Joslin Company or was merely ancillary and incidental thereto.
c. 751, Part III, § 17, and the insurer appealed to the Superior Court, where the case was heard by Wait, J. The findings of the board at the new hearing and the evidence on which they were based are described in the opinion. The judge made a decree in accordance with the decision of the Industrial Accident Board; and the insurer appealed.
N. F. Hesseltine & J. F. Scannell, for the insurer.
E. M. Shanley, for the employee.
CARROLL, J. The previous decision in this case, reported in 224 Mass. 571, recommitted the case to the Industrial Accident Board for the introduction of further evidence upon the question, whether the work performed by Comerford was a part of the business of McDonald and Joslin Company or was merely ancillary and incidental thereto.
The board found that the employee, Patrick Comerford, was employed as a teamster by Connors, an independent contractor; and that the subscriber, the McDonald and Joslin Company, engaged Connors to furnish a teamster to cart material, tools and supplies from its yard to the site of a building it was erecting at Mattapan.
On the morning of May 6, 1915, Comerford drove to the subscriber's yard, and while engaged there in moving a window sill which was to be used in the construction of the building, he was injured. The subscriber, a firm of building contractors, was accustomed to employ an independent contractor to carry its material, tools and supplies from its yard to the place where they were to be used. The board found that the "conveyance of picks, shovels, wheelbarrows and of constructed and fabricated parts of a building from the storehouse of the subscribers to the premises where they are to be used, or are to be combined into a proposed structure which the subscribers have undertaken to erect, is a part of the business of such subscribers," and awarded the plaintiff compensation.
part of "or process in" the trade or business carried on by the subscriber, and not merely incidental or ancillary thereto, and if the injury occurs "on, in, or about the premises on which the contractor has undertaken to execute the work for the subscriber or which are under the control or management of the subscriber." St. 1911, c. 751, Part III, § 17. Under this section the employee of a contractor can receive compensation, if the employee shows he was at work on premises under the control and management of the subscriber or where the contractor has agreed to perform the particular work, and, in addition, that his injury arose out of and in the course of employment which was a part of the subscriber's trade or business, and not merely incidental or ancillary to it. There was evidence to warrant the finding that the carrying of building material and appliances from the subscriber's yard to the place where the building was to be erected was a part of the trade or business carried on by the subscriber as a building contractor. Their removal was not merely ancillary or incidental to the work of constructing the building, and this work could not be contracted for so as to relieve the subscriber of the obligations imposed by the workmen's compensation act, even though it was customary for the subscriber to contract for the transfer of its materials. See Knight v. Cubitt & Co. L. R.  1 K. B. 31; White v. George A. Fuller Co. 226 Mass. 1.
It was undisputed that the injury occurred while the employee was upon the subscriber's premises which were under its control and management, and where the contractor had undertaken to carry on the work. And as this work was a part of the subscriber's trade or business, the decree awarding compensation to the employee is affirmed.


Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.
Arturo Lopez ("Lopez") appeals from an order by the district court denying his 28 U.S.C. § 2255 (2000) ("Section or § 2255") motion to vacate, set aside, or correct his sentence of 300 months' imprisonment and five years' supervised release stemming from convictions for engaging in a continuing criminal enterprise and seventeen counts of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a) (1) & (b) (1) and § 848. Because we find that the district court did not err in denying Lopez's § 2255 motion, we affirm the ruling.
Lopez was convicted by a jury for engaging in a continuing criminal enterprise ("CCE") on May 4, 1994. Lopez's conviction became final after this Court affirmed his conviction and sentence on direct appeal on November 21, 1995. On August 26, 1999, Lopez filed a motion to vacate, set aside, or correct his sentence pursuant to § 2255,1 arguing that his sentence for engaging in a CCE was void because of Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999). Richardson was decided by the United States Supreme Court on June 1, 1999, and held that a jury must be instructed to reach a unanimous verdict on each of the specific violations that comprise the alleged "continuing series of violations" charged in the indictment.2 21 U.S.C. § 848(a).
The district court denied Lopez's § 2255 motion because it determined that the motion was untimely. It found that Lopez failed to demonstrate that Richardson had been made retroactively applicable to cases on collateral review by the Supreme Court.3 The district court, however, granted him a certificate of appealability to appeal the denial of the § 2255 motion because it determined that Lopez made a substantial showing that the issue of the retroactivity of Richardson constituted the denial of a constitutional right. Lopez now appeals the denial of the motion.
Section 2255(3) plainly states that defendants have a one-year limitation period to apply for a § 2255 motion that runs from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review . . ." 28 U.S.C. § 2255(3).4 We agree with the district court's determination that there is no Supreme Court precedent that makes Richardson retroactively applicable to cases on collateral review. Similarly, there is no Fifth Circuit precedent that states this proposition. Therefore, the district court did not err in determining that Lopez's § 2255 motion was untimely.
Because we find that the jury unanimity requirement decreed in Richardson is not retroactive, we AFFIRM the district court's order denying Lopez's § 2255 motion to vacate, set aside, or correct his sentence.
Lopez's § 2255 motion is therefore barred on its face because he filed it more than one year after April 24, 1996, the effective date of AEDPA. See United States v. Flores, 135 F.3d 1000, 1004-05 (5th Cir. 1998), cert. denied, 525 U.S. 1091, 119 S. Ct. 846, 142 L. Ed. 2d 700 (1999) (stating that one year, commencing on April 24, 1996, presumptively constitutes a reasonable time within which to file for relief under § 2255).
A "series of violations" generally constitutes three or more violations of the federal narcotics laws. United States v. Brown, 202 F.3d 691, 699 (4th Cir. 2000). Moreover, the defendant must have committed these violations "in concert with five or more other persons whom he organized, supervised, or managed and from which [sic] he obtained substantial income or resources." Benevento v. United States, 81 F. Supp. 2d 490 (S.D.N.Y. 2000).
The district court also determined that Lopez's claim was procedurally barred because he had failed to show prejudice and that the improper jury instructions did not constitute plain error.
We, therefore, decline to reach the other bases of the district court's holding. See supra note 3.


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The stringent response is a global bacterial response to stress that is mediated by accumulation of the alarmone (p)ppGpp. In this study, treatment with mupirocin was shown to induce high levels of (p)ppGpp production in Enterococcus faecalis, indicating that this nosocomial pathogen can mount a classic stringent response. In addition, (p)ppGpp was found to accumulate in cells subjected to heat shock, alkaline shock, and inhibitory concentrations of vancomycin. Sequence analysis of the E. faecalis genome indicated that (p)ppGpp synthesis is catalyzed by the bifunctional synthetase/hydrolase RelA and the RelQ small synthase. The (p)ppGpp profiles of ΔrelA, ΔrelQ, and ΔrelAQ strains revealed that RelA is the major enzyme responsible for the accumulation of (p)ppGpp during antibiotic or physical stresses, while RelQ appears to be responsible for maintaining basal levels of alarmone during homeostatic growth. Compared to its parent, the ΔrelA strain was more susceptible to several stress conditions, whereas complete elimination of (p)ppGpp in a ΔrelAQ double mutant restored many of the stress-sensitive phenotypes of ΔrelA. Interestingly, growth curves and time-kill studies indicated that tolerance to vancomycin is enhanced in the ΔrelA strain but diminished in the ΔrelQ and ΔrelAQ strains. Finally, virulence of the ΔrelAQ strain but not of the ΔrelA or ΔrelQ strain was significantly attenuated in the Caenorhabditis elegans model. Taken together, these results indicate that (p)ppGpp pools modulate environmental stress responses, vancomycin tolerance, and virulence in this important nosocomial pathogen.
Enterococcus faecalis is a natural inhabitant of the human and animal intestinal flora. Although normally harmless to healthy individuals, enterococcal infections rank among the top three most common causes of nosocomial infections (43), with E. faecalis representing nearly 90% of the total cases of enterococcal infections (44). The strong association of this organism with infections in hospital settings has been attributed to its inherent capacity to withstand environmental stresses and to its innate and acquired resistance to many antibiotics (15, 17, 33). In particular, the appearance of vancomycin-resistant enterococcus (VRE) strains in the late 1980s gave these organisms a tremendous selective advantage, increasing the likelihood of their propagation and persistence in hospitals (33). From a clinical standpoint, E. faecalis is an opportunistic pathogen that causes a myriad of diseases in humans, infecting the bloodstream, abdomen, endocardium, urinary tract, biliary tract, burn wounds, and indwelling foreign devices (17, 32, 43, 44). Moreover, E. faecalis has also been involved in the dissemination of antibiotic resistance to other medically relevant bacterial species (51).
In Escherichia coli and its close relatives, two homologous proteins are involved in (p)ppGpp metabolism, the ribosome-associated (p)ppGpp-synthetase RelA and the bifunctional synthetase/hydrolase SpoT (8, 41). In gram-positive bacteria, a bifunctional Rel/Spo ortholog, herein designated RelA, harbors both degradation and synthesis activities (30, 52). Recently two small proteins, designated RelP and RelQ, with weak (p)ppGpp-synthase activities were found in the oral pathogen Streptococcus mutans (26). It was demonstrated that while relA encoded a strong bifunctional synthetase/hydrolase enzyme responsible for the rapid accumulation of (p)ppGpp upon amino acid starvation, the RelP and RelQ proteins were responsible for constitutive expression of (p)ppGpp in nonstressed cells (26, 35). Subsequent work with Bacillus subtilis and Streptococcus pneumoniae further confirmed the functionality of these enzymes as (p)ppGpp synthases (3, 34). Homologues of at least one of the two small (p)ppGpp synthases are found in the genomes of gram-positive bacteria but absent in the genomes of proteobacteria (26, 34).
In the past few years, the role of (p)ppGpp in bacterial virulence has become an area of extensive research. Studies have correlated changes in (p)ppGpp levels to the expression of virulence traits, including stress survival (12, 20, 25, 54), biofilm formation (2, 25, 46), antibiotic resistance (14, 19, 20, 40), and persistence (5, 14, 20, 21, 35, 42). In some cases, animal models have been used to provide unequivocal evidence of the role of (p)ppGpp in virulence (6, 9, 10, 16, 39, 46). Despite its strong association with bacterial virulence, the stringent response has not been studied for E. faecalis. In this article, we characterize the stringent response of E. faecalis and demonstrate that (p)ppGpp pools play a fundamental role in growth under adverse conditions and may be a key factor regulating tolerance and growth in the presence of antibiotics, in particular vancomycin. Finally, we show that virulence of a (p)ppGpp0 strain was highly attenuated in a Caenorhabditis elegans killing assay.
Bacterial strains and culture conditions.Bacterial strains and plasmids used in this study are listed in Table 1. E. faecalis strains were routinely grown in brain heart infusion (BHI) medium at 37°C. E. coli strains were grown in Luria broth and used for plasmid construction and propagation. When required for selective growth of strains, erythromycin (10 μg ml−1 for E. faecalis, 300 μg ml−1 for E. coli), spectinomycin (1,000 μg ml−1), fusidic acid (25 μg ml−1), or rifampin (rifampicin) (200 μg ml−1) was added to the growth medium. To evaluate the capacity of E. faecalis strains to grow under different stress conditions, mid-exponential-phase cultures were diluted 1:100 into fresh medium and growth was monitored using a Bioscreen C growth monitor (Oy Growth Curves AB Ltd., Helsinki, Finland). Disc inhibition assays were used to assess the sensitivity of the strains to H2O2, HCl, or sodium hypochlorite. Briefly, a uniform layer of exponentially grown cells was spread onto BHI agar plates using a sterile swab, and paper filter discs (1 mm in diameter) saturated with 5% H2O2, 3 N HCl, or 10% sodium hypochlorite were placed onto the agar. All plates were incubated at 37°C for 48 h before the inhibition halo was recorded.
Construction of mutant strains.A markerless genetic exchange system (22) was used to construct relA, relQ, and relAQ mutants in E. faecalis OG1RF. Briefly, two PCR products flanking the relA or relQ gene were obtained with the primers listed in Table 2. The PCR amplicons were approximately 1 kb in size and included the first 10 to 15 residues and the last 10 to 15 residues of the relA or relQ gene, which were retained in the mutants to avoid unanticipated effects on the expression of adjacent genes. After digestion with the appropriate restriction enzymes, the two PCR products flanking the gene of interest were simultaneously cloned onto pGEM5 (Promega, Madison, WI) to give the plasmids pGrelA and pGrelQ. The 2-kb fragments containing the relA (pGrelA) and relQ (pGrelQ) up-down fragments were subcloned into pCJK47 (22) using E. coli EC1000 (24) as the host strain. The resulting plasmids, pCJK-relA and pCJK-relQ, were electroporated into competent E. faecalis CK111 (donor strain) (23). E. faecalis CK111 containing the pCJK-relA or pCJK-relQ plasmids was conjugated with wild-type E. faecalis OG1RF, and single-crossover insertions were selected on BHI agar medium containing rifampin and erythromycin. Single colonies were subjected to the PheS* negative counterselection system to isolate double-crossover deletions as described elsewhere (22). The relA and relQ gene deletions were confirmed by PCR sequencing of the insertion site and flanking sequences. Subsequently, a double ΔrelA ΔrelQ strain was constructed by conjugation of the donor strain harboring pCJK-relQ with the ΔrelA mutant.
Detection of (p)ppGpp accumulation patterns.For (p)ppGpp measurements in E. faecalis, cells were grown in the chemically defined FMC medium (47) containing a lower phosphate concentration (8.6 mM) in order to improve 32P labeling (26). Overnight cultures grown in FMC were diluted 1:100 in fresh low-phosphate FMC, grown to an optical density at 600 nm of ≈0.2, and prelabeled with 50 μCi of carrier-free [32P]orthophosphate (Amersham Biosciences, Piscataway, NJ) for one generation. At this point, experimental cells were treated with mupirocin (50 μg ml−1), vancomycin (10 μg ml−1), or ampicillin (32 μg ml−1) or subjected to acid shock (pH 5, using 3 N HCl), alkaline shock (pH 10, using 2 N NaOH), and heat shock (60°C). Control cells consisted of aliquots that were labeled for the duration of the experimental cultures. Nucleotide pools were extracted by adding an equal volume of 13 M formic acid, followed by two freeze-thaw cycles. Acid extracts were centrifuged briefly, and the supernatant fluids were spotted onto polyethyleneimine (PEI)-cellulose plates (Selecto Scientific, Inc., Suwanee, GA) for separation by thin-layer chromatography (TLC) in 1.5 M KH2PO4 (pH 3.4).
Biofilm assay.Biofilm formation on polystyrene microtiter plates was quantified essentially as described previously (1). Biofilms were grown in a semidefined biofilm medium (28) containing glucose as the carbohydrate source for 24 h at 37°C before adherent bacteria were stained with 0.1% crystal violet. The bound dye was extracted from the stained cells with 33% acetic acid solution in water, and the biofilms were quantified by measuring the optical density of the solution at 575 nm.
Determination of MIC.The MIC for ampicillin, mupirocin, or vancomycin was determined in BHI using twofold serial dilutions prepared in the wells of microtiter plates. Bacteria from mid-log-phase cultures were inoculated into each well at ≈105 CFU ml−1. Microtiter plates were incubated at 37°C for 24 h before the optical density at 600 nm of each well was measured using the Benchmark Plus microplate spectrophotometer (Bio-Rad, Hercules, CA). The lowest concentration of antibiotic that prevented cell growth was assigned as the MIC.
Time-kill kinetics.Cultures were grown in BHI to exponential phase and then diluted 1:10 in fresh BHI to obtain a starting inoculum of 5 × 106 to 1 × 107 CFU ml−1. Time-kill studies were initiated by adding five times the MIC of vancomycin for the wild-type strain. Viable counts were determined at time zero and then every 24 h for up to 6 days.
C. elegans killing assay.The ability of E. faecalis OG1RF and its derivatives to kill C. elegans was investigated as described previously (11). Briefly, a single colony of OG1RF was inoculated in BHI broth and grown at 37°C overnight, and 10 μl of culture was spread on a 35-mm BHI plate containing 50 μg ml−1 gentamicin. The plates were allowed to incubate overnight at 37°C and were brought to room temperature before 60 to 90 L4-stage, wild-type (N2) worms (obtained from the Caenorhabditis Genetics Center) were set on the bacterial lawns. The Kaplan-Meier method was used to determine survival over time, and curves were compared using the log-rank test to generate P values testing the null hypothesis that a given pair of survival curves was identical. P values of 0.05 or less were considered statistically significant. All data were analyzed with the GraphPadPrism 5.0 software program.
E. faecalis strains can mount a classic stringent response.To determine whether E. faecalis can mount a stringent response, the accumulation of (p)ppGpp during mupirocin treatment was examined. Mupirocin is an inhibitor of isoleucyl-tRNA synthetase that has been shown to elicit a potent stringent response in streptococci (26, 31, 53). In S. mutans, we have previously determined that (p)ppGpp accumulation is best observed when cells are treated with 5 to 10 times the MIC for mupirocin (26). Thus, we determined the MIC for mupirocin in E. faecalis OG1RF and V583 and found that E. faecalis was intrinsically more resistant to mupirocin than S. mutans (MIC of 10 μg ml−1 for the E. faecalis strains versus MIC of 50 ng ml−1 for S. mutans). Time-course experiments using 50 μg ml−1 mupirocin showed dramatic increases in (p)ppGpp pools in E. faecalis OG1RF (Fig. 1A), with (p)ppGpp levels remaining elevated for up to 90 min (data not shown). Consistent with increases in (p)ppGpp pools was a fast drop in GTP levels, the acceptor nucleotide necessary for pppGpp synthesis (8). Similar results, e.g., rapid accumulation of (p)ppGpp at the expense of GTP upon mupirocin treatment, were obtained when using clinical isolates of E. faecalis (Fig. 1B), suggesting that this response is conserved among E. faecalis strains. Notably, the amounts of (p)ppGpp accumulated by the different isolates showed significant differences. Since all strains displayed the same MIC for mupirocin (data not shown), it appears that the differences in (p)ppGpp levels are due to inherent heterogeneity among different isolates. Based on the fact that all isolates can mount a classic stringent response, the experiments described below were conducted using strain OG1RF and its isogenic mutants. The advantages of using strain OG1RF is that it is readily transformable, does not carry plasmids, and is not resistant to antibiotics commonly used for genetic studies (4).
Accumulation of (p)ppGpp in E. faecalis after mupirocin treatment. (A) E. faecalis OG1RF treated with mupirocin for 15 or 30 min. (B) E. faecalis clinical isolates treated with mupirocin for 30 min. Exponentially grown cells were labeled with [32P]orthophosphate in FMC and treated with 50 μg ml−1 mupirocin for the times (minutes) indicated. Nucleotide acid extracts were spotted onto PEI-cellulose plates for TLC in 1.5 M KH2PO4. The identities of the radioactive spots were confirmed by comigration with GTP, GP5, and GP4 standards.
(p)ppGpp accumulates under selected environmental stress conditions.Enterococci are well known for their capacity to survive in harsh environments. Here we assessed (p)ppGpp levels in OG1RF cells subjected to acid, alkaline, or heat shock. Under the conditions tested, (p)ppGpp was found to accumulate in cells subjected to heat (60°C) or alkaline (pH 10) shock but not in cells subjected to acid shock (pH 5) ( Fig. 2). Time course experiments confirmed the transient accumulation of (p)ppGpp pools in cells subjected to heat or alkaline shock (data not shown).
(p)ppGpp profile of E. faecalis OG1RF under selected stress conditions. Exponentially grown cells were labeled with [32P]orthophosphate in FMC and subjected to the stress condition indicated for 60 min. Acid extracts were spotted onto PEI-cellulose plates for TLC in 1.5 M KH2PO4.
Vancomycin treatment triggers (p)ppGpp accumulation.The spread of VRE strains constitutes a major clinical problem in hospital settings. Vancomycin is a glycopeptide that acts on gram-positive organisms by inhibiting cell wall biosynthesis. This molecule attaches to the lipid II precursor at its d-Ala-d-Ala peptide side chain, thereby inhibiting transglycosylation of cell wall subunits. Cell envelope stress responses have been linked to general stress responses (7) and to the overall homeostasis of gram-positive bacteria (18). Moreover, it has been reported that the intracellular concentration of (p)ppGpp is linked to the intrinsic resistance to antimicrobial agents in bacteria (14, 19, 20, 40). TLC analysis of nucleotide extracts clearly indicated that (p)ppGpp accumulates to significantly high levels in OG1RF cells treated with inhibitory concentrations of vancomycin (Fig. 3). Interestingly, treatment with inhibitory concentrations of ampicillin, a β-lactam antibiotic that also inhibits cell wall biosynthesis, did not result in (p)ppGpp accumulation (Fig. 3). The kinetics of (p)ppGpp accumulation, peaking after 60 min, were considerably slower than the kinetics observed in mupirocin-treated cells.
Accumulation of (p)ppGpp in E. faecalis OG1RF after vancomycin treatment. Exponentially grown cells were labeled with [32P]orthophosphate in FMC and treated with 32 μg ml−1 ampicillin (A) or 10 μg ml−1 vancomycin (V) for 60 min. Control cells (C) were kept untreated and labeled for the duration of the experiment. Acid extracts were spotted onto PEI-cellulose plates for TLC in 1.5 M KH2PO4.
Identification of genes encoding (p)ppGpp synthetases in E. faecalis.Previously we have shown that production of (p)ppGpp by S. mutans is catalyzed by three enzymes: RelA, RelP, and RelQ (26). While RelA and RelQ appear to be ubiquitously distributed in the genome of low-GC gram-positive bacteria, BLAST searches indicated that RelP homologues are not ubiquitously distributed in gram-positive cocci, including E. faecalis V583 (37). The E. faecalis RelA (EF1974) and RelQ (EF2671) putative proteins share high levels of identity with their counterparts in S. mutans (78% and 80% similarities, respectively). Recently the complete genome of E. faecalis OG1RF became available (4). BLAST searches of the OG1RF genome and searches in the preliminary sequences of strains TX0104 and H22 available at the Baylor College of Medicine Human Genome Sequencing Center (http://www.hgsc.bcm.tmc.edu) identified putative RelA and RelQ homologues but not RelP. Thus, it appears that (p)ppGpp synthesis is catalyzed by only two enzymes in E. faecalis: RelA and RelQ.
RelA is the major synthetase responsible for (p)ppGpp accumulation.A markerless genetic exchange system was used to construct in-frame deletions in the relA and relQ genes of E. faecalis OG1RF. In order to rule out the possibility that polar effects on genes downstream of relA and relQ (ef1974 and ef2671, respectively) may have contributed to phenotypes of the ΔrelA and ΔrelQ strains, real-time PCR was used to confirm that expression of the genes apparently cotranscribed with relA and relQ, ef1973 and ef2670, respectively, was not affected in the mutant strains (data not shown). The (p)ppGpp profile of ΔrelA, ΔrelQ, and ΔrelAQ indicates that RelA is the major enzyme responsible for the transient accumulation of (p)ppGpp during mupirocin or vancomycin treatment (Fig. 4). Although it does not appear to be involved in the transient accumulation of (p)ppGpp, RelQ appears to be responsible for maintaining basal levels of alarmone during homeostatic growth, since only the relAQ double mutant displayed an apparent (p)ppGpp0 phenotype (Fig. 4).
Accumulation of (p)ppGpp in E. faecalis OG1RF, ΔrelA, ΔrelQ, and ΔrelAPQ strains after mupirocin or vancomycin treatment. Exponentially grown cells were labeled with [32P]orthophosphate in FMC and treated with 50 μg ml−1 mupirocin for 15 min or 10 μg ml−1 vancomycin for 60 min. C, untreated control cells; M, mupirocin-treated cells; V, Vancomycin-treated cells. Acid extracts were spotted onto PEI-cellulose plates for TLC in 1.5 M KH2PO4.
Growth characteristics, stress tolerance, and biofilm formation by the ΔrelA, ΔrelQ, and ΔrelAQ strains.The results described above prompted us to investigate the role of RelA and RelQ in the physiology of E. faecalis. Analysis of growth rates of the mutants in BHI indicated that the ΔrelQ and ΔrelAQ strains grew as well as the parent strain whereas the ΔrelA strain grew slightly slower (Fig. 5). The ability of the ΔrelA, ΔrelQ, and ΔrelAQ strains to grow under a variety of stress conditions was examined (Fig. 6). No differences in growth between the mutants and parent strain were observed when cells were grown at pH 9 or in the presence of detergents (0.003% sodium dodecyl sulfate or 0.02% deoxycholate) (data not shown). In comparison to its parent, the ΔrelA strain grew poorly or considerably slower at 48°C, at pH 5, or in the presence of 5% NaCl or 2 mM H2O2 (Fig. 6). Inactivation of relQ alone did not affect cell growth under any of the conditions tested (Fig. 6). Complete elimination of (p)ppGpp in the ΔrelAQ strain restored many of the growth defects of the ΔrelA strain, with the exception of growth at 48°C or in the presence of H2O2. Compared to the parent strain, the ΔrelAQ strain grew slowly and had low growth yields at 48°C. Surprisingly, the ΔrelAQ strain grew faster and to a higher growth yield than its parent in the presence of H2O2 (Fig. 6).
Growth curves of E. faecalis OG1RF, ΔrelA, ΔrelQ, and ΔrelAQ strains in BHI, determined using the Bioscreen growth reader monitor. The results represent the means ± standard deviations of three independent experiments.
Growth of E. faecalis OG1RF, ΔrelA, ΔrelQ, and ΔrelAQ strains under stress conditions, determined using the Bioscreen growth reader monitor. The results represent the means ± standard deviations of three independent experiments.
We also tested the susceptibilities of the mutant strains to HCl, H2O2, and sodium hypochlorite using disk diffusion assays. Based on the diameters of the zone of inhibition for each compound tested, the ΔrelA strain was more sensitive to HCl and H2O2, but no differences were observed in the inhibition zone caused by sodium hypochlorite (Table 3). No significant differences in sensitivity to any of the tested conditions were observed among wild-type, ΔrelQ, and ΔrelAQ strains. To test the abilities of the strains to grow on BHI plates at high temperatures, exponentially growing cells were serially diluted and aliquots were spotted onto BHI plates that were incubated at 45° and 50°C. No differences were observed when strains were grown at 45°C. However, consistent with the slow-growth phenotype at 48°C in broth, the ΔrelAQ strain was more sensitive to growth at 50°C by 1 log (Table 3).
The capacity of the mutants to form biofilms on polystyrene microtiter plates was also assessed. Quantitative analysis of biofilms formed by the ΔrelA, ΔrelQ, and ΔrelAQ mutants did not differ from that of biofilms formed by the parent OG1RF strain (data not shown). However, it is important to acknowledge the limitations of the microtiter plate assay. This method is based on batch cultures grown under static conditions that fail to reproduce the physicochemical environment that is encountered in vivo. Therefore, these data must be interpreted with caution, and it is possible that under certain conditions, changes in (p)ppGpp pools may affect biofilm formation by E. faecalis.
Tolerance to vancomycin is enhanced in the ΔrelA strain but diminished in the ΔrelQ and ΔrelAQ strains.The accumulation of (p)ppGpp in cells treated with vancomycin suggests that these nucleotides could be involved in the intrinsic tolerance of the organism to this antimicrobial drug. Compared to the wild-type strain (MIC = 8 μg ml−1), the ΔrelQ and ΔrelAQ strains exhibited lower MICs for vancomycin (4 μg ml−1). No differences in the MICs were observed between the parent and ΔrelA strains. Next, we tested the ability of E. faecalis OG1RF and its Δrel derivatives to grow in the presence of subinhibitory concentrations of vancomycin. Compared to the growth of the wild-type strain in the presence of 2.5 μg ml−1 vancomycin, the ΔrelQ strain grew slower whereas growth of the ΔrelAQ strain was severely impaired (Fig. 7A). Surprisingly, the ΔrelA strain grew considerably faster than the wild-type strain (Fig. 7A). Time-kill kinetic studies were conducted using a concentration equal to five times the MIC of vancomycin for OG1RF (40 μg ml−1). In comparison to the parent strain, OG1RF, the ΔrelQ and ΔrelAQ strains were more rapidly killed whereas the ΔrelA strain was more resistant to vancomycin killing (Fig. 7B).
Growth and time-kill curves of E. faecalis OG1RF, ΔrelA, ΔrelQ, and ΔrelAQ strains in the presence of vancomycin. (A) Growth curves in BHI containing 2.5 μg ml−1 vancomycin. (B) Time-kill curves of logarithmic-phase cultures treated with 40 μg ml−1 vancomycin. Viable counts were determined by plating known dilutions of the samples on BHI plates every 24 h.
Virulence of the ΔrelAQ mutant was attenuated in the C. elegans model.To determine whether disruption of one or both (p)ppGpp synthetases affected E. faecalis virulence, the ΔrelA, ΔrelQ, and ΔrelAQ mutants were tested for their ability to kill C. elegans (Fig. 8). Compared with the wild-type strain, OG1RF, virulence of the ΔrelAQ strain was highly attenuated (P < 0.0001). There were no significant differences in killing among the ΔrelA and ΔrelQ strains.
Killing of C. elegans by E. faecalis OG1RF and its derivatives. Exposure of C. elegans to the relA and relQ mutants did not cause a significant difference in killing from that with the wild-type strain, OG1RF (P = 0.8089 and 0.8895, respectively). However, the ΔrelAQ mutant was significantly attenuated (P < 0.0001). This experiment was repeated three times with similar results.
In this report, (p)ppGpp profiles of cells subjected to stress and mutational analysis of genes involved in alarmone metabolism provided unequivocal evidence that production of (p)ppGpp is an integral part of the core stress responses of E. faecalis. More specifically, it was demonstrated that E. faecalis accumulates the alarmone (p)ppGpp in response to amino acid starvation, and more importantly, it reveals that (p)ppGpp modulates environmental stress responses, vancomycin tolerance, and virulence in this important nosocomial pathogen.
Until recently, bifunctional RelA was considered the sole enzyme responsible for controlling (p)ppGpp metabolism in gram-positive bacteria. However, two related small enzymes, designated RelP and RelQ, were recently identified and shown to function as true alarmone synthetases in S. mutans, S. pneumoniae, and B. subtilis (3, 26, 34). While RelA and RelQ appear to be ubiquitous in the genome of many gram-positive organisms, RelP was found to be absent in several organisms, including E. faecalis (4, 37). The contributions of each enzyme to (p)ppGpp metabolism have been partially assigned in S. mutans and B. subtilis. It was demonstrated that RelP and RelQ play an important role in cell homeostasis by producing low levels of alarmone during nonstressful conditions, whereas RelA appears to have retained the function of Rel/Spo-like proteins and is the major enzyme responsible for the stringent response, i.e., the rapid accumulation of (p)ppGpp in response to amino acid starvation (26, 35). Notably, RelA is the only enzyme also acting as a (p)ppGpp phosphohydrolase, suggesting that in addition to being responsible for the rapid and transient accumulation of (p)ppGpp during starvation, RelA plays a key role by controlling the intracellular (p)ppGpp/GTP/GDP ratios during homeostatic growth.
The (p)ppGpp measurements using the E. faecalis ΔrelA, ΔrelQ, and ΔrelAQ mutants reveal a pattern similar to that described for S. mutans and B. subtilis (26, 34), with the caveat that RelP is not found in E. faecalis (4, 37). Moreover, the growth characteristics of the E. faecalis ΔrelA, ΔrelQ, and ΔrelAQ mutant strains mirrored the growth behavior of the ΔrelA, ΔrelQ, and ΔrelAPQ strains of S. mutans and B. subtilis (26, 34). In both S. mutans and B. subtilis, the slow-growth phenotype of ΔrelA strains could be restored when the RelP and RelQ synthases were simultaneously inactivated, resulting in a (p)ppGpp0 phenotype (26, 34). Similarly, the E. faecalis ΔrelAQ strain grew as well as the parental strain; thus, the slow growth of the E. faecalis ΔrelA mutant is most likely a result of the inability of the strain to hydrolyze (p)ppGpp synthesized by RelQ.
The association of (p)ppGpp levels with resistance to antibiotics has been observed in E. coli (14, 19, 38, 40, 50). In most cases, antibiotic resistance was linked to low growth rates due to the stringent response and to reductions in autolytic activity (19, 50). Moreover, it has been demonstrated that artificially raising (p)ppGpp levels increased β-lactam tolerance in E. coli (19), and mutant cells lacking RelA were more susceptible to β-lactams (38). More recently, a direct correlation between intracellular (p)ppGpp levels and resistance to microcin J25, a plasmid-encoded antibacterial peptide, was established (40). In this latter case, resistance to microcin J25 was shown to involve (p)ppGpp-dependent induction of an efflux pump responsible for lowering the intracellular levels of the peptide (40). Despite its association with antibiotic resistance in E. coli, the role of (p)ppGpp in multitolerant bacteria, such as VRE, has not been evaluated. Here, we demonstrated that tolerance to vancomycin is intimately associated with (p)ppGpp pools. Although RelA is the enzyme responsible for rapid accumulation of (p)ppGpp, when exposed to inhibitory concentrations of vancomycin, the ΔrelA mutant had the same MIC as the wild-type strain, grew faster in the presence of subinhibitory concentrations of the drug, and survived better in time-kill studies. On the other hand, the ΔrelQ and ΔrelAQ strains had a lower MIC and slow or impaired growth in the presence of subinhibitory concentrations and were killed more rapidly by vancomycin, characteristics that were exacerbated in the ΔrelAQ strain. Considering that the ΔrelA strain, which is unable to break down (p)ppGpp, has high background levels of alarmone (synthesized by RelQ), that the ΔrelQ mutant produces lower basal (p)ppGpp pools (through RelA), and that the ΔrelAQ strain is completely unable to synthesize (p)ppGpp, one can speculate that higher basal levels of (p)ppGpp increase the expression of vancomycin tolerance/resistance determinants in E. faecalis. In many ways, because the ΔrelA strain grew better in the presence of subinhibitory concentrations of vancomycin, this result is in stark contrast with earlier findings for E. coli that indicated that antibiotic tolerance was linked to slow growth and reduced autolysis that was dependent on a functional RelA (13, 50). However, it is important to note that recent studies revealed that bacteria have evolved different modes of (p)ppGpp regulation and that the effects of (p)ppGpp on cell physiology vary greatly among different organisms (26, 34, 41). Presently it is not clear whether (p)ppGpp has a direct role in the expression of genes that confer vancomycin tolerance to E. faecalis or if it initiates a regulatory cascade that leads to tolerance. Future efforts aiming to dissect the scope of the (p)ppGpp regulon will help us identify potential downstream genes and pathways responsible for these effects.
It was interesting to note that there were clear phenotypic differences between strains expressing different levels of (p)ppGpp. While it appears that basal levels of (p)ppGpp produced by RelQ play a fundamental role in vancomycin tolerance, a functional RelA protein seems to be of greater relevance when cells are under environmental stress. However, it is possible that the reduced ability of the ΔrelA strain to grow under stress was due to toxic accumulation of (p)ppGpp through RelQ. If this is true, the key function of RelA during environmental stress may be to fine-tune basal levels of (p)ppGpp by virtue of its unique capacity to control (p)ppGpp/GTP ratios. This appears to be the case in S. mutans, since several experiments have suggested that one of the key roles of RelA is to limit the amount of (p)ppGpp that is allowed to accumulate in the cells from the action of RelP and RelQ (26, 35).
In the nematode C. elegans model, adult worms feeding on lawns of E. faecalis were killed over the course of several days in an infectious process that reproduces several aspects of human gram-positive pathogenesis (11). Furthermore, known virulence factors required for E. faecalis pathogenesis in mammalian model systems were also shown to be important for nematode killing and vice-versa (11, 29, 45). Here we showed that virulence of the ΔrelAQ double mutant, which is completely unable to produce (p)ppGpp, was highly attenuated in the C. elegans model. Interestingly, this was not the case for the ΔrelA and ΔrelQ single mutants, which produce basal levels of (p)ppGpp, and in the case of ΔrelQ, the mutant is capable of synthesizing large amounts of (p)ppGpp as part of a RelA-dependent stringent response. Therefore, it appears that basal levels of (p)ppGpp, rather than the stringent response, constitute the key factor controlling E. faecalis virulence in the C. elegans model.
In summary, this report reveals that (p)ppGpp plays an important role in stress tolerance and may be a key factor regulating tolerance and growth in the presence of vancomycin, two major factors that contribute to the emergence of E. faecalis as a pathogen. In addition, by using the C. elegans model of infection, we were able to demonstrate that (p)ppGpp is required for full virulence of E. faecalis. The discovery that the (p)ppGpp alarmone is associated with vancomycin tolerance in E. faecalis and possibly tolerance to other antibiotics is of particular importance. Although tolerant strains are not drug resistant, these strains retain the capacity to grow once the drug is discontinued and are thereby implicated in treatment failure and relapsing disease, especially when grown in biofilms (27). Moreover, bacterial tolerance facilitates the appearance of drug resistance, especially in organisms such as enterococci and Staphylococcus aureus, which can rapidly acquire resistance determinants from its surrounding environment. Although the (p)ppGpp-mediated stringent response is well known to protect the cells during starvation by shutting down global gene expression and by selectively activating transcription of genes involved in amino acid biosynthesis and stress survival, this report and others (26, 34) indicate that subtle changes in (p)ppGpp pools can dramatically affect cell homeostasis. Studies are under way to fully understand how and to what extent (p)ppGpp pools control virulence-related events in E. faecalis.
We are most grateful to Maria da Gloria Carvalho and Bernard Beall for clinical isolates of E. faecalis, Gary Dunny for strains and plasmids, and Roberta Faustoferri for critical reading of the manuscript.
This study was partially supported by the NIDCR Training Program in Oral Science Grant T32 DE007202 to J.A. and J.K.K., NIH, R21AI078104 to D.A.G., and a Ralph H. & Ruth J. McCullough Foundation award to V.C.
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In a previous article on why a Tardy S Election Is No Reason To Freak Out, we discussed making a late federal S corporation election under a 2013 Revenue Procedure that permits corporations to obtain relief for a late S election that is made within 3 years and 75 days from the effective date of the election. But what effect does a late S election have in New Jersey, which requires an S corporation to make a separate election to be treated as a New Jersey S corporation?
Because it is a prerequisite to being treated as a New Jersey S corporation that the corporation have made a federal S election, IRS approval of a federal S election is required before a corporation can apply for retroactive New Jersey S corporation status, although New Jersey law does not actually say that in so many words. Instead, the relevant regulations provide that a corporation may file a retroactive election to be recognized as a New Jersey S corporation if the corporation (1) is authorized to business in New Jersey, (2) is registered with the Division of Taxation, (3) has filed Form CBT-100S tax returns with New Jersey, but (4) has failed to file a timely New Jersey S corporation election. In addition, a retroactive New Jersey S corporation will not be granted if: (1) all appropriate corporation business tax returns have not been timely filed and taxes timely paid as if the New Jersey S corporation election request had been previously approved; (2) a New Jersey S corporation request is not received before an assessment becomes final; (3) the Division of Taxation has issued a notice denying a previous late-filed New Jersey S election request, and the taxpayer has not protested the denial within 90 days; or (4) all shareholders have not filed appropriate tax returns and paid tax in full when due as if the New Jersey S corporation election request had been previously approved, and the taxpayers have not reported the appropriate S corporation income on their returns.
An application for retroactive New Jersey S corporation status is made by filing Form CBT-2533-R (Retroactive S Election Application) with the Division of Revenue, together with Form CBT-2553 (New Jersey S Corporation or New Jersey QSSS Election). In addition, the corporation must pay an administrative user fee of $100 for each tax year that will be affected by the late filing.
 Rev. Proc. 2013-30 § 4.02, 2013-36 I.R.B. 173.
 See N.J. Stat. Ann. §§ 54:10A-4(o), (p), 54:10A-5.22(a); N.J. Admin. Code § 18:7-20.1(a)(1), (2), (c) (available through LexisNexis®).
 N.J. Admin. Code § 18:7-20.3(a); Xylem Dewatering Sols., Inc. v. Dir., Div. of Taxation, 30 N.J. Tax 41, 55 (2017). Before the adoption of section 18:7-20.3 in 2008, New Jersey did not have a retroactive New Jersey S corporation election procedure. See Shree Ram Invs., Inc. v. Dir., Div. of Taxation, No. A-0600-11T4, 2013 WL 4033629 (N.J. Super. Ct. App. Div. Aug. 9, 2013). The regulation was adopted to assist “honest taxpayers” who had inadvertently failed to make a New Jersey S election “with a procedure that is less draconian in its consequences than requiring the corporate taxpayer to pay tax, penalty and interest on the difference between the S corporation rates and the C corporation rates, requiring the difference between the S corporation rates and the C corporation rates, requiring the shareholders to file amended NJ-1040 returns to get refunds, and deal with the potential disparity in the statute of limitations between corporation business tax and gross income tax.” Xylem, 30 N.J. Tax at 55.
 N.J. Admin. Code § 18:7-20.3(c).