Ayes v. U.S. Department of Veterans Affairs

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

TAYLOR AYES; WILLIAM P. 
CUTSHALL; FRANK A. RIBAR; EDWARD
C. SMITH; JAMES F. MARTIN;
WILLIAM C. TERRIO,
Plaintiffs-Appellants,
 No. 05-2263
v.
U. S. DEPARTMENT OF VETERANS
AFFAIRS,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-04-904-5)

Argued: October 26, 2006

Decided: December 27, 2006

Before WILKINSON, NIEMEYER, and WILLIAMS,
Circuit Judges.

Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Wilkinson and Judge Niemeyer joined.

COUNSEL

ARGUED: Trawick Hamilton Stubbs, Jr., STUBBS & PERDUE,
P.A., Raleigh, North Carolina, for Appellants. Neal Irving Fowler,
2 AYES v. U. S. DEP’T OF VETERANS AFFAIRS
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Laurie B. Biggs, STUBBS &
PERDUE, P.A., Raleigh, North Carolina, for Appellants. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.

OPINION

WILLIAMS, Circuit Judge:

Taylor Ayes, William P. Cutshall, Frank A. Ribar, Edward C.
Smith, James F. Martin, and William C. Terrio (collectively "Appel-
lants") filed a class action complaint against the U.S. Department of
Veterans Affairs (VA) on behalf of themselves and a putative class
of veterans. The complaint alleged that the VA violated 11 U.S.C.A.
§ 525 (West 2004 & Supp. 2006), the anti-discrimination provision of
the Bankruptcy Code, by refusing to fully restore veteran home-loan
guaranty entitlements to Appellants solely because of their previous
discharges in bankruptcy. The district court granted the VA’s motion
to dismiss, made pursuant to Federal Rule of Civil Procedure
12(b)(6), because it concluded that § 525(a) does not apply to the vet-
eran guaranty entitlement, which is set out at 38 U.S.C.A. § 3701 et.
seq. (West 2002 & Supp. 2006).

We affirm. Section 525(a) prohibits a governmental unit from
denying a "license, permit, charter, franchise, or other similar grant"
solely because an individual has filed for or received a discharge in
bankruptcy. 11 U.S.C.A. § 525(a). Because Appellants concede that
the veteran guaranty entitlement is not a "license," "permit," "charter,"
or "franchise" and we hold that it is not an "other similar grant," we
conclude that § 525(a) does not apply to the veteran guaranty entitle-
ment.

I.

Because the facts of this appeal are undisputed, we are left only to
decide the legal question of § 525(a)’s applicability to the veteran
 AYES v. U. S. DEP’T OF VETERANS AFFAIRS 3
guaranty entitlement. Pursuant to the Servicemen’s Readjustment Act
of 1944, codified at 38 U.S.C.A. § 3701 et seq., the VA provides
housing assistance to certain veterans meeting length-of-service
requirements by guarantying home loans made to them by private
lenders. The VA "automatically guarantee[s]" loans for certain veter-
ans when the loans will be used for, among other things, the purchase
or construction of a home. 38 U.S.C.A. § 3710(a). Pursuant to 38
U.S.C.A. § 3703, the VA computes the guaranty amount as a percent-
age of the unpaid loan balance, with the percentage varying depend-
ing on the size of the original loan.1 38 U.S.C.A. § 3703(a)(1)(A). If
the veteran later defaults on the loan, the VA pays the private lender
the amount it guaranteed on behalf of the veteran. 38 U.S.C.A.
§ 3732(a)(1). In such cases, the VA becomes subrogated to the rights
of the private lender for the amount paid by the VA on the guaranty.
Id. While the regulations relating to the veteran guaranty program
state that any amount paid by the VA in satisfaction of a guaranty
made on behalf of a veteran "shall constitute a debt owing to the
United States by such veteran," 38 C.F.R. § 36.4323(e) (2006), the
VA acknowledges that it does not take any action to collect this debt.

There is no limit to the number of times a veteran may receive the
guaranty entitlement, but the amount of guaranty available to the vet-
eran is always limited by any previously used guaranty amount that
has not been restored to the VA or does not otherwise qualify for
exclusion. 38 U.S.C.A. § 3702(b). Specifically, § 3702(b) provides
the following:

In computing the aggregate amount of guaranty or insurance
housing loan entitlement available to a veteran under this
chapter, the Secretary may exclude the amount of guaranty
or insurance housing loan entitlement used for any guaran-
teed, insured, or direct loan under the following circum-
stances:

(1) (A) The property which secured the loan
has been disposed of by the veteran or has
1
For example, the basic entitlement for any loan of more than $56,520
is the lesser of $36,000 or forty percent of the loan. 38 U.S.C.A.
§ 3703(a)(1)(A)(i)(III)(West 2002 & Supp. 2006).
4 AYES v. U. S. DEP’T OF VETERANS AFFAIRS
been destroyed by fire or other natural haz-
ard; and

(B) the loan has been repaid in full, or the
Secretary has been released from liability as
to the loan, or if the Secretary has suffered a
loss on such loan, the loss has been paid in
full.

38 U.S.C.A. § 3702(b)(1)(A)-(B).

In other words, the amount of guaranty available to a veteran upon
a successive application for the benefit is reduced by the amount of
loss that the VA suffered on any previous guaranty made on behalf
of the veteran until that loss is repaid.2 Absent an exercise of the VA’s
discretion to waive the repayment requirements, if a veteran wishes
to receive the "full" guaranty amount after the VA previously suffered
a loss on a guaranty made on his or her behalf, the veteran has no
choice but to repay the loss in full.

Appellants are six veterans who allege that they sought home loans
from various private lenders after having received discharges in bank-
ruptcy under either Chapter 7 or Chapter 11 of the Bankruptcy Code
and were denied these loans because the VA refused to extend "full"
guaranties on their behalf. The VA refused to extend full guaranty
amounts to Appellants because it had suffered losses on previous loan
guaranties made on their behalf that had not been repaid. Appellants
contend that as a result of the VA’s decision not to fully reinstate loan
guaranties to them following their discharges in bankruptcy, they
2
The VA does retain some discretion in computing the aggregate
amount of guaranty available to a veteran who has previously used the
guaranty entitlement. Section 3702(b) states that the VA Secretary "may
exclude" previously used amounts of guaranty when the requirements in
either § 3702(b)(1)(A) or (b)(1)(B) are met. 38 U.S.C.A. § 3702(b). The
regulations implementing the statute provide that the VA Secretary, "in
any case involving circumstances deemed appropriate, may waive" the
requirements in § 3702(b)(1)(A) or (b)(1)(B). 38 C.F.R. § 36.4302
(2006). Obviously, the VA chose not to exercise its discretion to waive
these requirements in Appellants’ cases.
 AYES v. U. S. DEP’T OF VETERANS AFFAIRS 5
were severely limited in their ability to obtain private home loans. We
have jurisdiction over this appeal pursuant to 28 U.S.C.A. § 1291
(West 2006).

II.

We review de novo the district court’s grant of the VA’s motion
to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6).
Bominflot, Inc. v. The M/V Henrich S, 465 F.3d 144, 145 (4th Cir.
2006). "[A] Rule 12(b)(6) motion should only be granted if, after
accepting all well-pleaded allegations in the plaintiff’s complaint as
true and drawing all reasonable factual inferences from those facts in
the plaintiff’s favor, it appears certain that the plaintiff cannot prove
any set of facts in support of his claim entitling him to relief."
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

Section 525(a) of the Bankruptcy Code provides in pertinent part
that "a governmental unit may not deny, revoke, suspend, or refuse
to renew a license, permit, charter, franchise, or other similar grant to
. . . [or] discriminate with respect to such a grant against . . . a person
that is or has been a debtor under this title or a bankrupt or debtor
under the Bankruptcy Act . . . ." 11 U.S.C.A. § 525(a). The statute
codified the result of Perez v. Campbell, 402 U.S. 637 (1971), in
which the Supreme Court applied the Supremacy Clause to strike
down an Arizona financial responsibility law that conditioned rein-
statement of a debtor’s driver’s license on repayment of an accident-
related judgment that had been discharged in bankruptcy. Id. at 656.
The Court held that the Arizona law violated the policy underlying
the Bankruptcy Code, sometimes called the "fresh start" policy, that
debtors be given a "new opportunity in life . . . unhampered by the
pressure and discouragement of pre-existing debt" because it gave
creditors a "powerful weapon with which to force bankrupts to pay
their debts despite their discharge." Id. at 648, 654 (internal quotation
marks omitted).

To establish a violation of § 525(a), Appellants must show that (1)
the VA is a governmental unit, (2) the veteran guaranty entitlement
is an item covered by the statute, and (3) the VA discriminated
against Appellants solely because of their discharges in bankruptcy.
11 U.S.C.A. § 525(a). The VA concedes that it is a "governmental
6 AYES v. U. S. DEP’T OF VETERANS AFFAIRS
unit" under the statute, but argues that Appellants cannot show that
the veteran guaranty entitlement is an item covered by § 525(a) or that
the VA discriminated against Appellants solely because of their prior
discharges in bankruptcy.

Conceding that the veteran guaranty entitlement is not a "license,"
"permit," "charter," or "franchise," Appellants argue that the veteran
guaranty entitlement comes within § 525’s protections because it is an
"other similar grant." The veteran guaranty entitlement is undoubtedly
a "grant" as that term is used in the statute: a veteran satisfying the
length-of-service requirements is entitled to the loan guaranty benefit.
See Black’s Law Dictionary 719 (8th ed. 2004) (defining grant as "an
agreement that creates a right of any description other than the one
held by the grantor"). The question is whether it is a "similar" grant
to those specific items listed in § 525(a).

In interpreting a statute, "a court should always turn first to one,
cardinal canon [of construction] before all others": the plain meaning
rule. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992). We
must presume that "Congress says in a statute what it means and
means in a statute what it says. . . ." Hartford Underwriters Ins. Co.
v. Union Planters Blank, N.A., 530 U.S. 1, 6 (2000)(internal quotation
marks omitted). When the words of a statute are unambiguous, then,
"this first canon is also the last: ‘judicial inquiry is complete.’" Conn.
Nat’l Bank, 503 U.S. at 254 (quoting Rubin v. United States, 449 U.S.
424, 430 (1981)). Of course, in looking to the plain meaning, we must
consider the context in which the statutory words are used because
"[w]e do not . . . construe statutory phrases in isolation; we read stat-
utes as a whole." United States v. Morton, 467 U.S. 822, 828 (1984).

Section 525(a)’s meaning is plain. The statute clearly specifies that
its protections extend to "licenses, permits, charters, [and] franchises,"
and to grants "similar" to those items.3 11 U.S.C.A. § 525(a).
3
We note that our mode of analysis would not change even if the word
"similar" were omitted from the statute. When "general words follow
specific words in a statutory enumeration," we apply the interpretive
principle of ejusdem generis ("of the same kind") and construe "the gen-
eral words . . . to embrace only objects similar in nature to those objects
 AYES v. U. S. DEP’T OF VETERANS AFFAIRS 7
Although the term "grant" is not defined in the statute, the use of the
word "similar" limits the universe of "grants" to which § 525(a)
applies, ensuring that only grants bearing a family resemblance to
licenses, permits, charters, and franchises enjoy the anti-
discrimination protections of the Bankruptcy Code. Unfortunately for
Appellants, the veteran guaranty entitlement bears no such resem-
blance to the items listed in § 525(a). Licenses, permits, charters, and
franchises are all governmental authorizations that typically permit an
individual to pursue some occupation or endeavor aimed at economic
betterment. See Watts v. Pa. Hous. Fin. Co., 876 F.2d 1090, 1093 (3d
Cir. 1989)("[T]he items enumerated [in § 525(a)] are in the nature of
indicia of authority from a governmental unit to the authorized person
to pursue some endeavor."). For example, governmental entities issue
real-estate, driver’s, and medical licenses; building and business per-
mits; corporate charters; and utility franchises. All of these implicate
"government’s role as a gatekeeper in determining who may pursue
certain livelihoods," Toth v. Mich. State Hous. Dev. Auth., 136 F.3d
477, 480 (6th Cir. 1998), and show that Congress intended § 525(a)’s
protections to be "limited to situations sufficiently similar to Perez,"
In re Goldrich, 771 F.2d 28, 30 (2d Cir. 1985). This interpretation of
"other similar grant" is supported by the remainder of § 525(a), which
forbids governmental discrimination in employment decisions based
on an individual’s discharge in bankruptcy. See 11 U.S.C.A. § 525(a).

A home loan guaranty, on the other hand, does not implicate the
government’s gate-keeping role in determining who may pursue cer-
tain livelihoods because, unlike the enumerated items in § 525(a), a
person can obtain a home loan or guaranty from the private sector. A
governmental entity’s refusal to issue, for example, a commercial real
estate license to a bankrupt individual completely forecloses that indi-

enumerated by the preceding specific words." Wash. State Dep’t of Soc.
and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384
(2003)(emphasis added)(internal quotation marks omitted). Omitting the
word "similar," Section 525(a) would present a "textbook ejusdem
generis scenario." Andrews v. United States, 441 F.3d 220, 224 (4th Cir.
2006). It would contain a general phrase — "other grant" — that fol-
lowed a list of specific items — "license, permit, charter, franchise." 11
U.S.C.A. § 525(a).
8 AYES v. U. S. DEP’T OF VETERANS AFFAIRS
vidual from legally pursuing a career as a commercial realtor. If a
governmental entity refuses to guarantee a home loan for a bankrupt
individual, however, that individual is not doomed to homelessness;
he may seek a guaranty from family or friends, may seek another pri-
vate loan, perhaps on less favorable terms, or he may rent.4 Indeed,
Appellants concede that they "might be able to obtain a home loan
from another lender on less favorable terms." (Appellant’s Br. at 18.)
That governmental units do not exercise exclusive or even pervasive
control over the "world" of home loans dooms Appellants’ argument.

The Second Circuit’s decision in Goldrich, which has served as the
lodestar in the § 525(a) context, is the closest analogue to the instant
case. Goldrich held that § 525(a) was inapplicable to New York’s stu-
dent loan guaranty program because a student loan guaranty was not
a "similar grant" to the items listed in the statute. Goldrich, 771 F.2d
at 30-31. The Goldrich court reasoned that a "credit guarantee is not
4
Appellants rely on the Second Circuit’s decision in In re Stoltz, 315
F.3d 80 (2d Cir. 2002), in support of their contention that the veteran
guaranty entitlement is similar to the enumerated items in § 525(a). In
Stoltz, the Second Circuit held that a public housing lease is an "other
similar grant" under § 525(a). Id. at 90-91. Reasoning that the enumer-
ated items in § 525(a) are "property interests [that] are unobtainable from
the private sector and essential to a debtor’s fresh start," the Stoltz court
noted that a public housing lease is "by definition . . . obtainable only
from governmental entities" and that "[i]n light of the notoriously
lengthy waiting lists that may exist for public housing, . . . an evicted
debtor-tenant . . . would quite possibly become homeless - a status not
conducive to economic survival." Id. at 90. Even if we agreed with
Stoltz, the public housing lease at issue in that case is manifestly different
than the home loan guaranty here. First, unlike a public housing lease,
home loans and loan guaranties are not "by definition" only obtainable
from governmental entities. Second, as we have noted, failure to obtain
a home loan guaranty is not a step toward homelessness for the veteran-
debtor; the veteran may obtain a home loan on less favorable terms or
may choose alternative housing arrangements that do not involve owner-
ship. Third, unlike the public housing benefit in Stoltz, the veteran guar-
anty entitlement is not available only to those who, through bankruptcy
or other financial hardship, cannot obtain a home loan. If Oliver Stone,
the presumably wealthy Oscar-winning film director and veteran of the
Vietnam War, applied for the guaranty benefit, he would be entitled to
receive it just like the recently-bankrupted veteran would.
 AYES v. U. S. DEP’T OF VETERANS AFFAIRS 9
a license, permit, charter, or franchise[,] nor is it in any way similar
to those grants," and stated that "[a]lthough the exact scope of the
items enumerated [in § 525(a)] may be undefined, the fact that the list
is composed solely of benefits conferred by the state that are unre-
lated to credit5 is unambiguous." Id. at 30 (footnote added).
"[R]eluctant to probe beyond the plain language of [§ 525(a)]," the
court concluded that the student loan guaranty at issue was of a "dis-
tinctly different character" than the items listed in the statute. Id.

Appellants acknowledge that Goldrich’s rationale is plainly at odds
with their position on appeal, but they argue that Congress’s enact-
ment in 1994 of 11 U.S.C.A. § 525(c) rendered Goldrich a dead letter
and clearly evinced Congress’s intent to have § 525(a) apply to all
government loan guaranties. To be sure, § 525(c) clearly abrogated
Goldrich’s specific holding and extended the anti-discrimination pro-
tections of § 525(c) to student loan guaranties. See 11 U.S.C.A.
§ 525(c)("A governmental unit that operates a student grant or loan
program . . . may not deny a grant, loan, loan guarantee, or loan
insurance to a person that is or has been a debtor under this title or
. . . under the Bankruptcy Act. . . ." (emphasis added)). There is, how-
ever, no indication in the language of § 525(c) that Congress also
intended the section to apply to other kinds of loan guaranties besides
those of the student loan variety. Congress’s tightly-worded abroga-
tion of Goldrich’s specific holding "justif[ies] the inference that items
5
While we emphasize that the central question under § 525(a) is
whether the home loan guaranty is an "other similar grant" to the items
listed in the statute and not whether the guaranty is more like an exten-
sion of credit, we agree with the district court that "the extension of a
home loan guaranty has financial consequences for the guarantor that are
not dissimilar to consequences often faced by those who extend credit."
(J.A. at 132.) Moreover, and contrary to Appellants’ contention, a veter-
an’s creditworthiness is relevant, at least minimally, to the overall deci-
sion to extend the guaranty benefit; a veteran is only automatically
eligible for a guaranty when a private lender concludes that the veteran
meets the standards of creditworthiness — including debt-to-income
ratio, income-stability, and monthly-income requirements — established
by the VA. See 38 U.S.C.A. §§ 3701(g)(2), (3) (West 2002). These facts
reveal the similarities between the veteran guaranty entitlement and tra-
ditional extensions of credit and clearly show the dissimilarities between
the guaranty entitlement and the items listed in § 525(a).
10 AYES v. U. S. DEP’T OF VETERANS AFFAIRS
not mentioned" — in this case, other kinds of loan guaranties —
"were excluded by deliberate choice, not inadvertence." Barnhart v.
Peabody Coal Co., 537 U.S. 149, 168 (2003). Had Congress intended
to extend § 525’s protections to other government loan guaranties
besides student loans, it easily could have revised § 525(a) to prevent
a governmental unity from denying a "license, permit, franchise, char-
ter, loan guaranty, or other similar grant" on the basis of a previous
discharge in bankruptcy or, alternatively, it could have included some
term in § 525(c) that would have supported extension of § 525(a)’s
protections to all government loan guaranties, not just those of the
student loan variety. That Congress chose instead to narrowly amend
§ 525 to abrogate the specific holding of Goldrich is strong evidence
that its failure to mention other kinds of loan guaranties in § 525(c)
was intentional.6 The time-honored maxim expressio unius est exclu-
sio alterius ("the expression of one thing implies the exclusion of
another") applies with great force here.

In reaching this conclusion, we, like our sister circuits, refuse to
venture beyond the confines of the statutory language to broadly con-
strue § 525(a)’s specific "other similar grant" language in reliance on
the general "fresh start" policy underlying the Bankruptcy Code. See,
e.g., Watts, 876 F.2d at 1093-94 (holding that an emergency
mortgage-assistance loan is not an "other similar grant" and stating
that "[w]hen an unambiguous statute is interpreted to mean what it
says, the interpretation is not narrow"); Toth, 136 F.3d at 479-80
(holding that a government home improvement loan is not an "other
6
Appellants argue that exclusion of the veteran loan guaranty program
from the protections of § 525(a) makes little sense in light of Congress’s
extension of § 525(a)’s coverage to student loan guaranties, but Congress
could easily have concluded that the differences between student and
home loan guaranties require such a distinction. Because education is
often crucial to securing employment, § 525(c)’s prohibition against dis-
crimination in the granting of student loan guaranties to bankrupts is con-
sistent with § 525’s goal of allowing former debtors in bankruptcy to
earn a living. See 11 U.S.C.A. § 525(c). Moreover, Congress has taken
other steps to ensure the continuing wide availability of student loans,
highlighting their uniqueness under the Bankruptcy Code. See, e.g., 11
U.S.C.A. 523(a)(8) (West 2004 & Supp. 2006)(making student loans
nondischargeable under the Bankruptcy Code except in cases of "undue
hardship").
 AYES v. U. S. DEP’T OF VETERANS AFFAIRS 11
similar grant" under § 525(a)); Goldrich, 771 F.2d at 30 (concluding
that Congress intended § 525(a)’s reach to be "limited to situations
sufficiently similar to Perez".). Assuming, as we must, that "Congress
says in a statute what it means and means in a statute what it says
there," Hartford Underwriters, 530 U.S. at 6 (internal quotation
marks omitted), we conclude that Congress’s limitation of § 525(a)’s
protections to licenses, permits, charters, franchises, and grants simi-
lar to those items indicates, at best, the full extent to which Congress
intended § 525(a) to effectuate the "fresh start" policy underlying the
Bankruptcy Code.7 As Watts noted, because § 525(a) is unambiguous,
our interpretation is not "narrow," but instead succinctly correct.
Watts, 876 F.2d at 1093-94.

III.

In sum, because we conclude that the veteran guaranty entitlement
is not an "other similar grant" within the meaning of § 525(a), we
hold that the anti-discrimination protections of § 525 do not apply to
the veteran home loan guaranty program. While we have sympathy
for Appellants, if their arguments carried the day and the VA was
always required to issue a "full" guaranty irrespective of whether it
has suffered a loss on a veteran’s behalf, the VA’s financial exposure
under the program would increase dramatically, potentially threaten-
ing the program’s long-term viability. This is no mere pipedream, as
7
Indeed, on its face, § 525(a) applies to items — such as the recre-
ational hunting and fishing licenses noted above — that can in no way
be described as "essential" to a debtor’s fresh start, which counsels
against courts extending § 525(a) beyond its plain language to effectuate
the overarching policy of the Bankruptcy Code. See Stoltz, 315 F.3d at
95 (Walker, C.J., dissenting)("Although some interests such as a vendor
license, may be essential to a bankrupt’s fresh start, others, such as a rec-
reational fishing license, are not."). On the other hand, the inclusion of
these items within the definitions of the enumerated items in § 525(a)
also does not force a reading of the statute that brings other items unre-
lated to the goals of § 525(a) within the statute’s protections. That the
plain language of § 525(a) extends § 525(a)’s protections to items unre-
lated to § 525(a)’s policies is not an invitation to courts to extend
§ 525(a)’s protections to items not covered by the plain language. In any
event, even recreational hunting and fishing licenses are only available
from governmental entities.
12 AYES v. U. S. DEP’T OF VETERANS AFFAIRS
the incentive for veterans to repay home loans guaranteed by the VA
would disappear if veterans could demand full guaranties even after
the VA had suffered an unrecouped loss on a guaranty made on their
behalf. Requests for full guaranties would likely multiply like party
guests, with the VA ultimately "flipping the bill" on defaulted loans
at a greater clip. Appellants assume that the VA has deep pockets; we
assume that those pockets only function well when they do not have
holes in them. Jettisoning the plain language of § 525(a) to extend its
coverage over the VA’s guaranty program would create such holes.
Nevertheless, if Congress wishes to extend § 525’s protections to
other kinds of loan guaranties besides student loan guaranties, it can
easily do so with a few strokes of the pen.

AFFIRMED