Shawn P. Lacey v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 17-3296

SHAWN P. LACEY, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued July 11, 2019 Decided October 17, 2019)

Jennifer A. Zajac, of Oceanside, California, with whom Linda Blauhut, of Washington,

D.C., was on the brief, for the appellant.

Julia A. Turner, with whom Catherine C. Mitrano, Acting General Counsel; Mary Ann

Flynn, Chief Counsel; and Christopher W. Wallace, Deputy Chief Counsel, were on the brief, all

of Washington, D.C., for the appellee.

Before SCHOELEN, ALLEN, and TOTH, Judges.

TOTH, Judge, filed the opinion of the Court. ALLEN, Judge, filed an opinion concurring

in the judgment.

TOTH, Judge: The Veterans Retraining Assistance Program (VRAP) was a short-lived

program intended to provide older veterans with job retraining for various high-demand

occupations. VA denied Army veteran Shawn P. Lacey's application for VRAP benefits because

he sought to use them to pursue a bachelor's degree at a four-year college rather than an associate

degree (or a certificate attesting to a degree of similar nature) at a community college or technical

school. Mr. Lacey appealed this decision to the Board, arguing that the statute passed by Congress

only required a veteran to pursue a course that is offered by a community college or technical

school and did not require the veteran to take such course at a community college or technical

school.

Mr. Lacey is correct that the statute is at least ambiguous in this regard, as it provides no

clear answer to whether benefits can be used at four-year colleges or are limited only to community

colleges or technical schools. Further, because VA never issued any regulations or guidance

interpreting the statute, there is no agency position that warrants deference. In the absence of any

considered agency position, and having exhausted the traditional tools of statutory construction,

the Court concludes that the pro-veteran canon requires us to read the statute as including four-

year colleges and institutions when the course at issue is offered by a community college or

technical school.

I. BACKGROUND

VRAP was part of the VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, § 211, 125

Stat. 711, 713-15. The program was designed to be limited in duration and scope; it was effectuated

on July 1, 2012, and discontinued on March 31, 2014. § 211(a)(1), (k). Its basic purpose was to

provide training to veterans aged 35 to 60, who were unemployed but not otherwise eligible for

TDIU or VA education benefits, and who were not enrolled in other state or federal job training

programs at the time of application. § 211(e)(1). The statute capped the number of eligible veterans

at 45,000 for fiscal year 2012 and 54,000 from October 1, 2012, to March 31, 2014. § 211(a)(2).

It also limited the benefits to 12 months, based on the monthly rate paid out for chapter 30 benefits.

§ 211(b).

The dispute in this case centers on the following language:

Retraining assistance. Except as provided by subsection (k), each veteran who

participates in the program established under subsection (a)(1) shall be entitled to

up to 12 months of retraining assistance provided by the Secretary of Veterans

Affairs. Such retraining assistance may only be used by the veteran to pursue a

program of education (as such term is defined in section 3452(b) of title 38, United

States Code) for training, on a full-time basis, that—

(1) is approved under chapter 36 of such title [38 U.S.C. § 3670 et seq.];

(2) is offered by a community college or technical school;

(3) leads to an associate degree or a certificate (or other similar evidence of the

completion of the program of education or training);

(4) is designed to provide training for a high-demand occupation, as determined

by the Commissioner of Labor Statistics; and

(5) begins on or after July 1, 2012.

§ 211(b).

Army veteran Shawn P. Lacey was a student at Medaille College, a four-year college in

Buffalo, New York, when he applied for educational benefits under VRAP. In his application, Mr.

2

Lacey noted that he was pursuing a bachelor's degree in business administration in information

systems.

On July 26, 2012, the VA regional office (RO) informed him that he was eligible for

benefits but that the program he sought to pursue failed to meet the criteria under VRAP because

it was "not offered at a community college or technical school." R. at 76. He appealed to the Board,

explaining at his hearing that he had already received an associate's degree and needed only two

additional years to complete his bachelor's degree. Following the hearing, he submitted materials

to the effect that his course in business administration in information systems at Medaille College

constituted an approved "program of education" under VRAP and otherwise met all qualifications.

R at 17-18.

The Board denied Mr. Lacey's claim in an August 2, 2017, decision on the grounds that

Medaille College was not a community college or technical school. Save for this requirement, the

Board recognized that Mr. Lacey met all eligibility criteria. In construing the statute, the Board

invoked the negative implication canon, otherwise known under the Latin phrase expressio unius

est exclusio alterius, in reasoning that Congress, by mentioning community colleges and technical

schools, sought intentionally to exclude from the program four-year institutions such as colleges

and universities.

On appeal to this Court, both Mr. Lacey and the Secretary claim that the plain language

supports their reading of the statute. Mr. Lacey advocates a literal reading of the statutory terms,

which require only that a veteran pursue a program of education that is "offered by" a community

college or technical school and contain no discrete requirement that a veteran enroll in or take

courses at such institutions. He marshals several arguments claiming that the statutory context

supports his reading. First, he notes that Congress expressly referenced 38 U.S.C. § 3542(b) to

define the relevant terms "program of education" and that his program easily satisfies this

definition. Further, he points to section 3452(b)'s use of the term "educational institution," which

section 3452(c) defines to include universities and four-year colleges. Next, Mr. Lacey claims that

the parenthetical language in the phrase "leads to an associate degree or certificate (or other similar

evidence of completion of the program of education or training)" serves merely as an evidentiary

requirement in which Congress used purposefully inclusive language to signal its intent to include

a broad array of programs of education and not merely those that lead to an associate degree.

3

Finally, he maintains that the statute's remedial nature and purpose show that Congress intended

to provide broad flexibility to veterans to pursue a wide variety of educational programs.

The Secretary counters that the plain language of the statute makes apparent that Congress

sought to limit eligibility to veterans pursuing programs of education at community colleges and

technical schools. Per the Secretary, the most natural reading of "offered by a community college

or technical school" implies that a veteran must pursue such courses at the same community college

or technical school that offers them. In light of this language, the Secretary reasons that "it must

be presumed that Congress intended to give meaning to the requirement that the course of study

be offered at a community college or technical school when it enacted VRAP." Sec. Br. at 6. Contra

Mr. Lacey's position, the Secretary points to statutory language requiring that the program "leads

to an associate degree or certificate (or other similar evidence of the completion of the program of

education or training)" to show that Congress, in singling out associate degrees, intended benefits

to apply only to community colleges or technical schools where such degrees are offered. And as

a final measure of support, the Secretary cites to the legislative history, which contains extensive

discussion about the benefits of community colleges and technical schools.

II. ANALYSIS

The Court reviews statutory construction questions de novo. Martinez v. Wilkie,

31 Vet.App. 170, 175 (2019). Statutory analysis always begins with the text of the statute itself to

determine whether the language is plain and unambiguous. Robinson v. Shell Oil Co., 519 U.S.

337, 340 (1997). In making this determination, we look to "the language itself, the specific context

in which that language is used, and the broader context of the statute as a whole." Id. at 341. If the

statutory language is unambiguous and "the statutory scheme is coherent and consistent," then the

Court's statutory inquiry comes to an end. Id. at 340. In such cases, the court "must enforce [the

statute] according to its terms." King v. Burwell, 135 S. Ct. 2480, 2489 (2015).

Several canons of statutory construction guide our review of the statute's plain language.

One basic canon is that words generally take "their ordinary, contemporary, common meaning,"

which may be derived from dictionaries from the era of the statutory provision's enactment.

Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014). To derive their meaning, statutory terms

are not read in isolation, but "must be read in their context and with a view to their place in the

overall statutory scheme." Davis v. Michigan Dep’t. of Treasury, 489 U.S. 803, 809 (1989).

4

"Ambiguity is a creature not of definitional possibilities but of statutory context." Brown v.

Gardner, 513 U.S. 115, 118 (1994). Thus, in assessing the language of a statute, courts review the

overall statutory scheme "so that effect is given to all its provisions, so that no part will be

inoperative or superfluous, void or insignificant, and so that one section will not destroy another

unless the provision is the result of obvious mistake or error." Roper v. Nicholson, 20 Vet.App.

173, 178 (2006).

The dispute in this case centers on the following language: "Such retraining assistance may

only be used by the veteran to pursue a program of education (as such term is defined in section

3452(b) of title 38, United States Code) for training, on a full-time basis, that . . . is offered by a

community college or technical school" and "leads to an associate degree or a certificate (or other

similar evidence of the completion of the program of education or training)." § 211(b), 125 Stat.

at 713.

Examining the structure, the first thing to note is the placement of the limiting term "only"

at the beginning of the provision, which serves as a framing mechanism to restrict the availability

of benefits to the express conditions that immediately follow. The second class of restricting

factors follows shortly in the form of two relevant limitations to the nature of the program of

education that a veteran may pursue: it must be one that "is offered by a community college or

technical school," § 211(b)(2), and "leads to an associate degree or a certificate (or other similar

evidence of the completion of the program or training)." § 211(b)(3).

We begin with the term "program of education" because Congress defined this term via

reference to section 3452. That statute defines "program of education" broadly, noting that it

"means any curriculum or any combination of unit courses or subjects pursued at an educational

institution which is generally accepted as necessary to fulfill requirements for the attainment of a

predetermined and identified educational, professional, or vocational objective." § 3452(b). In

turn, subsection (c) of 3452 defines "educational institution" broadly to include "correspondence

school, business school, junior college, teacher's college, college, normal school, professional

school, university, or scientific or technical institution, or other institution furnishing education for

adults."

If this were the extent of the statute, there would be no dispute here as both Mr. Lacey's

"program of education" and "educational institution" fall squarely within the broad reach of the

definitions provided by section 3452. The crux of the dispute, however, focuses on the qualifying

5

language that immediately follows. As to these terms, Congress provided no express definitions

and so the Court must ascertain the meaning of the various terms and how they interrelate with

each other. See Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003) ("In the absence of an

express definition, we presume that Congress intended to give [statutory] words their ordinary

meanings.").

Analyzing the relevant terms in order of appearance, we begin with the verb "to pursue."

A contemporaneous dictionary provides various definitions for this verb including, most relevant

to this context: "to find or employ measures to obtain or accomplish." MERRIAM-WEBSTER'S

COLLEGIATE DICTIONARY 1011 (11th ed. 2014). Both the plain language and context of the statute

support the conclusion that Congress intended the term "pursue" to carry its common meaning as

something akin to engaging in a course of action toward a desired end. That Congress opted for

the word "pursue" rather than language such as "complete" or "successfully obtain" shows that it

did not intend to condition benefits on the attainment of a degree but only that a veteran pursue a

program of education that could ultimately culminate in a degree.

The focal point of the dispute centers on the language mandating that the program of

education be one that "is offered by a community college or technical school" and "leads to an

associate degree or certificate (or other similar evidence of the completion of the program of

education or training)." Congress's use of the passive voice of the verb "offer" highlights the fact

that the "program of education or training" remains the operative subject, which in turn, is "offered

by a community college or technical school." Coupled with the passive voice, the use of the

preposition "by" merely identifies the agent performing the action—a community college or

technical school. The verb "offer," when linked with a discrete object as it is here ("program of

education or training") commonly means to make a good or service available to another. See NEW

OXFORD AMERICAN DICTIONARY 1217 (3d ed. 2010) (defining "offer" as "make available for sale"

or "provide access or opportunity").

Subjecting this phrase to closer scrutiny reveals two possible interpretations. Mr. Lacey is

correct that, read in the most literal light, this language merely requires that the program of

education consist of a course made available by ("offered by") a community college or technical

school regardless of where such courses are ultimately taken. This reading rejects any necessary

connection between the type of entity that offers the course and the one that ultimately provides it.

Mr. Lacey contends that this language amounts to a deliberate legislative choice by Congress,

6

which could have conditioned eligibility on enrollment or otherwise drafted the statute to include

terms requiring a veteran to take classes "at" such schools. On this point, Mr. Lacey cites to federal

statutes such as 38 U.S.C. § 3680(a)(2), containing language restricting benefits to "eligible

veterans and eligible persons enrolled in courses set forth," to demonstrate that Congress could

have readily employed similar language in VRAP had it so desired. He also notes that a different

section of VRAP does in fact condition eligibility on a veteran not being "enrolled in" any federal

or state job training program at the time of application. § 211(e)(1)(F), 125 Stat. at 714. Under his

reading, the fact that Congress declined to use such language signals that it sought to allow veterans

a significant measure of flexibility in choosing where to pursue a program of education.

But the Secretary also stands on solid footing in countering that everyday usage supports

the notion that pursuing a course of education "offered by" a community college or technical

school implies that such courses must be taken at the same community college or technical school

that offers them. For further support, the Secretary points to the next limiting provision, namely

that the program of education "leads to an associate degree or a certificate (or other similar

evidence of the completion of the program of training)," § 211(b)(3), 125 Stat. at 713, to show that

Congress singled out only one type of degree—an associate degree—thus implicitly rejecting a

bachelor's degree as a qualifying program.

This supporting contention is less convincing, however, as this clause merely identifies

various forms of evidence—whether an associate degree, certificate, or other similar evidence—

sufficient to demonstrate completion of the program. Once again, the dictionary definition of the

operative verb "leads to" is broad in scope, "to tend toward or have a result (study leading to a

degree)." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY at 706. As in the case of "pursue,"

Congress's use of the open-ended verb "leads to" shows that it did not seek to condition eligibility

on the attainment of a degree but merely that the program ultimately culminate with some form of

proof of completion. Further, the use of the disjunctive term "or" coupled with the variety of

sources capable of demonstrating completion ("other similar evidence") shows that Congress

intentionally sought to cast a wide net in terms of the programs that it sought to cover.

Read in its full context, this provision serves to expand rather than limit the scope of the

statute by highlighting the breadth of degrees, certificates, or documents capable of serving as

proof of completion of the program of education or training. The Secretary's reading would have

more traction had Congress limited this provision to only associate degrees or otherwise tethered

7

the eligibility to a narrow, discernible class of degrees. But this provision does just the opposite: it

presents a seemingly limitless number of ways ("or other similar evidence of proof of completion")

through which a veteran can document completion of the program. Programs of education or

training are closely associated with the types of degrees they confer on participants; the difference

between a bachelor's degree, associate degree, technical certificate, or other documentation is not

a minor one. That Congress all but erased these distinctions by allowing any type of degree is of

no small significance.

The Board invoked the non-implication canon as decisive in its reading of the statute and

reasoned that the failure to expressly include four-year colleges among the institutions cited by the

statute showed that Congress intended to exclude such institutions. R. at 10. But this analysis

overlooks the salient fact that Congress expressly defined "program of education" by reference to

section 3452(b). As discussed, this definition contains an expansive list of the types of courses at

an "educational institution" that fall under that term. Significantly, section 3452(c) defined

"educational institution" to expressly include four-year colleges and universities. For this reason,

the negative implication canon carries little probative weight in determining a statutory meaning,

because Mr. Lacey's program of education appears to fall within the definition provided by

Congress. Likewise, the Board's citation to regulations from VA and other federal agencies for

guidance as to various definitions is misplaced where Congress provided its own definition when

it referenced section 3452 in VRAP. When Congress defines a term, neither courts nor agencies

are permitted to substitute their own definition, even if such definition might constitute an

improvement. AK Steel Corp. v. United States, 226 F.3d 1361, 1372 (Fed. Cir. 2000).

The operative question in statutory construction is "whether Congress has directly spoken

to the precise question at issue." Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

842 (1984). A statute is deemed ambiguous when traditional methods of statutory interpretation

fail to yield a definite meaning. Id. at 843-44. Here, the operative question is not whether Congress

intended veterans to use VRAP benefits at community colleges or technical schools but whether

Congress sought to limit such benefits to only those institutions.

Stitching the component parts together, we are presented with a statute that is at once

expansive in its language and yet contains discrete, if implied, limitations. Playing in Mr. Lacey's

favor is the sweeping and open-ended nature of the verbs Congress used: "pursue," "offered by,"

and "leads to." Further, the express definition by Congress of "program of education" in section

8

3452(b) is expansive and refers to "educational institutions" that include four-year institutions as

defined by section 3452(c). Likewise, the expansive array of degrees or certificates capable of

demonstrating completion suggests that Congress did not intend to limit the courses of study to a

narrow class of courses or programs. This factor is reinforced by the fact that the tuition amounts

and time allotment for use of such benefits are the same regardless of the program of education:

each qualifying veteran receives up to 12 months of benefits based on the monthly rate paid out

under chapter 30 of the GI Bill. Finally, the term "offered by" is not necessarily synonymous with

"offered at" or "enrolled at," which require only that a veteran pursue a program of education made

available by community colleges or technical schools.

By contrast, two main points play in the Secretary's favor. First, a natural reading of

"offered by" suggests at least an implied limitation that the veteran pursue the program of

education at the same institution where such program is offered. Second, there is little doubt that

community colleges and technical schools serve as the primary focus of the statute. Aside from

the cross-reference to section 3452, there is no express mention of colleges or four-year

institutions. Likewise, the legislative history contains extensive discussion about the benefits of

community colleges and technical schools and leaves little doubt that Congress drafted VRAP with

an eye toward bolstering attendance at such institutions.

Still, the Secretary's position and the legislative history are less instructive in answering

the operative question in dispute here, namely whether Congress clearly intended to limit the use

of benefits to only these institutions. On this question, the statute stands closer to equipoise

between the respective positions of the parties. In cases such as this, where a statute is susceptible

to more than one accepted meaning, a court must determine whether "all but one of the meanings

is ordinarily eliminated by context." Deal v. United States, 508 U.S. 129, 131-32 (1993). And here,

the context of the statute pulls in markedly different directions. Certain aspects such as the limiting

phrase "may only be used" coupled with the natural meaning of "offered by a community college

or technical school" strongly support the Secretary's reading; by contrast, the remainder of the

statute, including the expansive definition of "program of education" and the broad array of

suitable degrees or certificates shows that Congress did not intend to set specific limitations but

sought to allow veterans to pursue a wide variety of programs of education. Significantly, it would

not have been difficult for Congress to draft a statute that limited benefits only to veterans enrolled

at or taking classes at a community college or technical school. Whether this omission was the

9

product of hasty drafting or a deliberate legislative choice by Congress is immaterial: in either

event the statute is ambiguous.

Where the contextual clues in a statute do not reveal a single accepted meaning, it is

"eminently reasonable to conclude that [a statute's] silence is meant to convey nothing more than

a refusal to tie the agency's hands." Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 222 (2009).

This approach "is premised on the theory that a statute's ambiguity constitutes an implicit

delegation from Congress to the agency to fill in the statutory gaps." FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 159 (2000). Thus, the normal course of action in such cases would

be to consult the agency's official interpretation of the statute and determine whether it warranted

deference. See Cuozzo Speed Technologies, LLC v. Lee, 136 S. Ct. 2131, 2142 (2016) (Where a

statute leaves a gap or is ambiguous, courts "typically interpret it as granting the agency leeway to

enact rules that are reasonable in light of the text, nature, and purpose of the statute."). Here,

however, VA never promulgated any regulations or issued any guidance constituting an official

agency interpretation of various terms and so there is no position to which we can defer. See United

States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (holding that deference is only warranted to

agency interpretations promulgated in exercise of an authority delegated by statute).

In the absence of a clear answer from the text and structure of the statute or a countervailing

agency position to which deference is owed, we are left only with one remaining canon of

construction, namely the injunction that interpretive doubts should be resolved in favor of the

veteran. Gardner, 513 U.S. at 118. Here, both Mr. Lacey and the Secretary posited reasonable

readings of the statute. Indeed, this case may very well have turned out differently had VRAP

existed longer and the Secretary had time to issue official guidance as to the agency's position on

issues raised by the statute. But that's not what happened here, and the Court is left with a dispute

for which the statute provides no clear answer. By all accounts, Mr. Lacey fulfilled all the statutory

requirements save the disputed criteria and worked diligently to pursue his education. Absent a

clear statutory answer or any countervailing considerations, the pro-veteran canon compels the

Court to read the statute in Mr. Lacey's favor. For this reason, we conclude that Mr. Lacey's courses

at a four-year institution were covered under VRAP.

10

III. CONCLUSION

We REVERSE the Board's determination denying Mr. Lacey VRAP benefits because he

was not enrolled at a community college or technical school. The August 2, 2017, Board decision

is VACATED and the matter REMANDED for further consideration consistent with this opinion.

ALLEN, Judge, concurring in the judgment: Although I concur in the judgment we have

reached today, I write separately because I find the relevant statutory provision unambiguous. As

the Court explains, the parties' dispute turns on the proper interpretation of the following statutory

language: "Such retraining assistance may only be used by the veteran to pursue a program of

education (as such term is defined in section 3452(b) of title 38, United States Code) for training

on a full-time basis, that . . . is offered by a community college or technical school" and "leads to

an associate degree or a certificate (or other similar evidence of the completion of the program of

education or training) . . . ." § 211(b)(2)-(3). More narrowly, the issue is whether an eligible

"program of education" need only be offered at a community college or technical school, or

whether a veteran seeking retraining assistance must also be enrolled in such a "program of

education" at a community college or technical school.

"Our first step in interpreting a statute is to determine whether the language at issue has a

plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must

cease if the statutory language is unambiguous and 'the statutory scheme is coherent and

consistent.'" Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (quoting United States v. Ron

Pair Enters., Inc., 489 U.S. 235, 240 (1989)). I find this case straightforward. To be eligible for

VRAP benefits, Congress said, in relevant part, that "a program of education" needs to be "offered

by a community college or technical school." § 211(b)(2)-(3) (emphasis added). Congress did not

say a veteran needs to be "enrolled" in that program. Had Congress meant to condition receipt of

VRAP benefits on enrollment at a community college or technical school, Congress easily could

have done so.

Indeed, in the very statute at issue, Congress conditioned receipt of VRAP benefits on a

veteran not being "enrolled" in certain job training programs. § 211(e)(1)(F). "Where Congress

includes particular language in one section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally and purposely in the disparate

inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23 (1983) (citation, quotation

11

marks, and alteration omitted). Russello is instructive here, and there is no indication that Congress

unintentionally included "enrolled" in one portion of the statute, but used "offered" in a different

portion of the statute. Thus, I find the statute to unambiguously state that a veteran need only

pursue a "program of education" that is "offered by a community college or technical school" to

fall within the meaning of these discrete statutory provisions. § 211(b)(2)-(3). The plain language

of the statute demonstrates that a veteran does not need to be enrolled at the "community college

or technical school" to be eligible for VRAP benefits.

Further, this meaning would not render the statutory scheme inconsistent because the

statute does not include a prohibition, either explicit or implicit, on affording VRAP benefits to

veterans enrolled at a school other than a "community college or technical school." See Robinson,

519 U.S. at 340 (The Court's inquiry "cease[s] if the statutory language is unambiguous and 'the

statutory scheme is coherent and consistent.'" (citing Ron Pair Enters., 489 U.S. at 240)). Even the

requirement that the "program of education" must "lead[ ] to an associate degree or a certificate"

is not inconsistent with the interpretation that VRAP benefits can be used when the veteran is not

enrolled at a community college or technical school. This is because Congress went on to explicitly

state that "other similar evidence of the completion of the program" would suffice to meet this

statutory requirement. § 211(b)(3). Thus, a veteran can obtain benefits if enrolled in a program that

does not lead, specifically, to an associate degree or certificate. Finally, reading the statute in

accordance with its plain meaning does not render the statute incoherent because the plain meaning

is simply that the statute does not limit VRAP benefits to those veterans who are enrolled at a

"community college or technical school." See Robinson, 519 U.S. at 340.

The Court's analysis must begin and end with the plain meaning of the statute. Id. Absent

a statutory ambiguity, a court strays beyond its proper role when it looks to matters beyond the

words a legislative body employed. Because I find the statute unambiguous, I would have

concluded the analysis with the plain meaning of the statute. For these reasons, I respectfully

concur in the judgment only.

12