Financial Planning Ass'n v. Securities & Exchange Commission

GARLAND, Circuit Judge,

dissenting.

The Investment Advisers Act contains five specific exceptions, and further authorizes the SEC to exempt “such other persons not within the intent of this paragraph, as the Commission may designate by rules.” 15 U.S.C. § 80b-2(a)(ll). ' Unlike my colleagues, I cannot derive an unambiguous meaning from the terms “such other persons” and “within the intent of this paragraph.” As required by Chevron, I would therefore defer to the SEC’s reasonable interpretation of the statute it administers and uphold the Commission’s fee-based brokerage rule.

I

The Investment Advisers Act (IAA) imposes a series of requirements on “investment advisers.” See 15 U.S.C. §§ 80b-3 to -6. Paragraph 11 of section 202(a) of the Act defines an “investment adviser” as “any person who, for compensation, engages in the business of advising others ... as to the value of securities or as to the advisability of investing in, purchasing, or selling securities,” unless that person comes within one of six exceptions. Id. §'80b-2(a)(ll).* The first five exceptions include, inter alia, certain banks and bank holding companies, certain lawyers and accountants; and — most relevant here — certain brokers and dealers. The exception *402relating to broker-dealers — subsection (C) — exempts:

any broker or dealer whose performance of [advisory] services is solely incidental to the conduct of his business as a broker or dealer and who receives no special compensation therefor.

Id. § 80b-2(a)(ll)(C). The SEC has construed “special compensation” to mean any compensation other than brokerage commissions (or dealers’ “mark-ups” or “markdowns”). See Certain Broker-Dealers Deemed Not To Be Investment Advisers, 70 Fed.Reg. 20,424, 20,425 & n. 10 (Apr. 19, 2005) [hereinafter Certain Broker-Dealers]. Hence, a broker-dealer who receives any kind of compensation other than commissions does not come within the subsection (C) exception, even if he, too, provides advice solely as an incident to his business as a broker-dealer. See id. at 20,425.

In addition to the five specific exceptions, the IAA’s definition of covered investment advisers includes a sixth exception — subsection (F) — which reads as follows:

such other persons not within the intent of this paragraph, as the Commission may designate by rules and regulations or order.

15 U.S.C. § 80b-2(a)(ll)(F). That exception is the crux of this case. In the final rule currently under attack, the SEC exercised its authority under subsection (F) to create an exception for broker-dealers whose provision of advice is also solely incidental to their brokerage services, but who receive a particular kind of non-commission compensation. These broker-dealers — a group that did not exist when the IAA was passed in 1940 — charge either a fixed fee or a fee based on the amount of assets in the customer’s account. In return, they provide the customer with a traditional package of brokerage services that includes investment advice, execution, arranging for delivery and payment, and custodial and recordkeeping services. Certain Broker-Dealers, 70 Fed.Reg. at 20,425. Because these broker-dealers receive fee-based compensation rather than commissions, they receive “special compensation” within the meaning of subsection (C) and hence are not covered by that exception. See id.

As the court states, the question before us is whether subsection (F) gives the SEC the authority to “except from IAA coverage an additional group of broker-dealers beyond the broker-dealers exempted by Congress in subsection (C).” Court Op. at 487. The SEC believes that it does. In the Commission’s view, although these broker-dealers receive “special compensation” in a technical sense, they provide investment advice in the same manner as those who are exempt under subsection (C), and exempting them would thus serve the same purpose. See infra Part III.

Under the first step of Chevron analysis, if the terms of subsection (F) unambiguously preclude the SEC’s interpretation, we must reject it. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If the terms are ambiguous, however, we must proceed to Chevron’s second step and defer to the SEC’s interpretation if it is reasonable. See id.; Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).

II

The court begins and ends its analysis at Chevron step one, concluding that the SEC unambiguously lacks authority under subsection (F) to exempt any broker-dealers beyond those specified in subsection (C). Court Op. at 492. The court reaches this conclusion based on its examination of the *403subsection (F) terms “such other persons” and “within the intent of this paragraph.” I fail to appreciate the clarity of either term. Indeed, apart from the inherent ambiguity of the words themselves, clarity is particularly elusive because subsection (F)’s final clause — “as the Commission may designate by rules” — expressly authorizes the SEC to determine the intent of the paragraph and designate further exceptions by regulation. As the Supreme Court instructed in Chevron, where “there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation[,][s]ueh legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778; see Am. Council on Educ. v. FCC, 451 F.3d 226, 232 (D.C.Cir.2006).

A

Like my colleagues, I begin with the term “within the intent of this paragraph.” Under Chevron, a statutory term is unambiguous only if Congress has “directly spoken to the precise question at issue.” 467 U.S. at 842-43, 104 S.Ct. 2778. The court is obviously correct in stating that “the plain text of subsection (C) exempts only broker-dealers who do not receive special compensation for investment advice” — that is, broker-dealers who do not receive compensation other than commissions. Court Op. at 488 (emphasis added). But that is not the precise question before us. That question is whether Congress intended subsection (F) to permit the SEC to exempt broker-dealers beyond those already exempt under subsection (C).

The court cannot point to any words in paragraph 11, or in any other paragraph of the Act, that suggest a negative answer to that question — or that explain what Congress intended with respect to that question at all. Instead, the court appears to rely on a version of the expressio unius canon — the principle that the mention of one thing implies the exclusion of another — by reasoning that the exception for some broker-dealers in subsection (C) means that coverage of all other broker-dealers must be “within the intent of’ paragraph 11. But this court has repeatedly held that expressio unius is “an especially feeble helper in an administrative setting, where Congress is presumed to have left to reasonable agency discretion questions that it has not directly resolved.” Martini v. Fed. Nat’l Mortgage Ass’n, 178 F.3d 1336, 1343 (D.C.Cir.1999) (quoting Cheney R.R. Co. v. ICC, 902 F.2d 66, 69 (D.C.Cir.1990)) (internal quotation marks omitted); see Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 694 (D.C.Cir.1991) (“[T]he expressio canon is simply too thin a reed to support the conclusion that Congress has clearly resolved the issue.”). The canon’s negative inference is particularly implausible where — as in subsection (F) — Congress has explicitly authorized additional exceptions beyond those specified in the statute.

Turning from the statutory text to the legislative history, the court quotes a committee report stating that the “ ‘term “investment adviser” is so defined as specifically to exclude ... brokers (insofar as them advice is merely incidental to brokerage transactions for which they receive only brokerage commissions).’ ” Court Op. at 488 (quoting S. Rep. NO. 76-1775, at 22 (1940)) (emphasis added by the court); see also H.R. Rep. NO. 76-2639, at 28 (1940). This quotation, however, has the same problem identified above. The committee was referring only to the specific exclusion provided by subsection (C), and not to the further exclusions permitted by subsection (F). That is made clear by the sentence that follows the one quoted by the court: “In addition, the Commission is authorized by rules and regulations or order, to make certain further exceptions *404according to prescribed statutory standards.” S. Rep. NO. 76-1775, at 22 (emphasis added); see also H.R. Rep. NO. 76-2639, at 28. There is nothing in the committee report that explains Congress’ intentions with respect to those “further exceptions.”

B

The court also perceives clarity in the subsection (F) term “such other persons.” According to the court, “other persons” excludes any person who is a member of one of the broad categories referenced in paragraph ll’s five specific exceptions. Because some broker-dealers are referenced in subsection (C), the court concludes that the- subset of broker-dealers covered by the fee-based brokerage rule cannot constitute “other persons” within the meaning of subsection (F). See Court Op. at 488-89. The SEC, by contrast, contends that “other persons” excludes only, those persons who actually come within one of the five preceding exceptions. On the SEC’s reading, the fee-based brokerage rule is a permissible exercise of the Commission’s delegated authority because it exempts broker-dealers other than those exempted by subsection (C).

Because the IAA does not define “other persons,” the court turns to the dictionary to find its meaning. There, the court learns that “the word ‘other’ connotes ‘existing besides, or distinct from, that already mentioned or implied.’ ” Id. at 489 (quoting 2 The Shorter Oxford English Dictionary 1391 (2d ed.1936, republished 1939)). But like the text and the legislative history, the dictionary fails to resolve the precise question at issue. It cannot tell us whether the persons “already mentioned” in subsection (C) are “any broker or dealer,” as one might reasonably conclude if one looked only at the first four words of the subsection, or instead are “any broker or dealer whose performance of such services is solely incidental to the conduct of his business ... and who receives no special compensation therefor,” as one might reasonably conclude if one looked at all the words of the subsection. The SEC takes the latter approach, and neither the plain text nor the dictionary bars that construction. This should end the Chevron step one inquiry.

Turning away from the IAA altogether, the court next looks to judicial precedents construing two different provisions — Federal Rule of Civil Procedure 60(b) and the Securities Exchange Act of 1934. These cases, however, shed no light on the IAA.

In Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988), the Supreme Court interpreted Rule 60(b), which allows a court to grant relief from a final judgment for any of five sets of specific reasons (e.g., mistake), or — under the Rule’s sixth clause — for “any other reason justifying relief.” Fed. R. Civ. P. 60(b). Although Liljeberg does state that “ ‘clause (6) and clauses (1) through (5) are mutually exclusive,’ ” Court Op. at 489 (quoting Liljeberg, 486 U.S. at 864 n. 11, 108 S.Ct. 2194), the case is wholly inapposite. First, the Court was interpreting Rule 60(b) de novo, not reviewing an agency interpretation entitled to Chevron deference. At most, then, the Court’s statement indicates what it regarded as the best interpretation of the phrase “any other reason,” not what it saw as the only possible interpretation. Second, the reason the Court read Rule 60(b) as it did was that the rule contains a one-year statute of limitations for seeking relief under clause (1), while motions under clause (6) need only be brought within a “reasonable time.” Hence, barring a party from basing a clause (6) claim on the same grounds specified in clause (1) was necessary “to prevent clause (6) from being used to circumvent the 1-year limitations period that applies to clause (1).” Liljeberg, 486 U.S. *405at 864 n. 11, 108 S.Ct. 2194. There is nothing similar in the structure of IAA paragraph 11. Finally, the reading of Rule 60(b)’s “any other reason” clause rejected by the Supreme Court is actually the inverse of the SEC’s reading of subsection (F). The Court stated that “a party may ‘not avail himself of the broad “any other reason” clause’ ... if his motion is based on grounds specified in clause (1).” Id. (emphasis added) (quoting Klapprott v. United States, 335 U.S. 601, 613, 69 S.Ct. 384, 93 L.Ed. 266 (1949)). That is, a person who qualifies for relief under clause (1) cannot also obtain relief under clause (6). Here, by contrast, the SEC employed subsection (F)’s “such other persons” language to create an exception for persons who could not qualify for an exception under any of the preceding subsections.

This circuit’s interpretation of the Securities Exchange Act in American Bankers Association v. SEC, 804 F.2d 739 (D.C.Cir. 1986), is likewise inapposite. There, the court declined to accord Chevron deference to an SEC interpretation because it concerned the allocation of jurisdiction between the SEC and other agencies. The Exchange Act expressly excludes “banks,” which are regulated by the federal banking agencies, from the definitions of “brokers” and “dealers,” which are regulated by the SEC. See id. at 743 (citing 15 U.S.C. § 78c(a)(4)-(5)). The Act also contains a definition of “banks.” See id. at 744 (citing 15 U.S.C. § 78c(a)(6)). Although all of the Exchange Act’s definitions are preceded by an “unless the context otherwise requires” clause, American Bankers rejected the SEC’s effort to use that clause to redefine “banks” so as to subject some to SEC regulation. Such a “rote phrase,” the court said, “cannot provide the authority for one of the agencies whose jurisdictional boundaries are defined in the statute to alter by administrative regulation those very jurisdictional boundaries.” Id. at 754 (emphasis added). But there is no other agency in the picture in this case. Nor is the Exchange Act’s narrow direction to look to “context” to avoid “absurd consequences,” id. at 753, equivalent to subsection (F)’s express delegation of authority to the SEC to make further exceptions to the IAA. Indeed, American Bankers itself suggested that, had the Exchange Act contained such an “express delegation,” the result in that case might well have been different. Id. at 749.

In short, these cases do not illustrate an “underlying principle” that resolves the interpretive question in this case. Court Op. at 489. To the contrary, they merely tell us how courts have construed dissimilar language in dissimilar circumstances — that is, in situations where, unlike here, Chevron deference is inappropriate. There is, therefore, nothing in the text or structure, of paragraph 11 — or in any judicial precedent — that compels the statutory construction that the court has adopted.

C

Finally, the court seeks to buttress its arguments from text and structure with three more general considerations. First, it examines “the problems Congress sought to address in enacting the IAA.” Id. at 489. That the first item the court turns to in that examination is a 1939 “comprehensive study conducted by the SEC,” id., should cast some doubt on whether the court is better equipped to interpret the study’s import than the authoring agency. In any event, my colleagues learn little from this or any other aspect of the historical context beyond the fact that “[t]he IAA’s essential purpose was to ‘protect the public from the frauds and misrepresentations of unscrupulous tipsters and touts.’ ” Id. at 490 (quoting H.R. Rep. No. 76-2639, at 28). There is no doubt that this accurately identifies the intent of Congress at a *406high level of generality. But it, too, fails to address the precise question at issue here — the meaning of subsection (P). Nor should it come as any surprise that — as discussed in Part III below — the SEC neither disputes that the IAA’s essential purpose was to protect the public from fraud and misrepresentation, nor believes that its fee-based brokerage rule would be a boon to unscrupulous tipsters and touts.

My colleagues contend that “an additional weakness exists in the SEC’s interpretation” because it “flouts six decades of consistent SEC understanding of its authority under subsection (F).” Id. at 490. The only SEC opinions quoted for that proposition are two releases that refer only to subsection (C). Neither mentions subsection (F) at all, and neither considers whether an exception for fee-based brokerage would be appropriate under that (or any other) subsection. See id. at 490-91 n. 7 (citing 43 Fed.Reg. 19,224, 19,226 (May 4, 1978), and 11 Fed.Reg. 10,996 (Sept. 27, 1946) (republishing SEC General Counsel opinion letter of Oct. 28,1940)).

But even if the SEC had changed its construction of subsection (F), “ 'change is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.’” Brand X, 545 U.S. at 981, 125 S.Ct. 2688 (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996)). It is well-settled that “[a]n agency’s interpretation of a statute is entitled to no less deference ... simply because it has changed over time.” Nat’l Home Equity Mortgage Ass’n v. Office of Thrift Supervision, 373 F.3d 1355, 1360 (D.C.Cir.2004). Indeed, Chevron itself deferred to a changed agency interpretation. See Chevron, 467 U.S. at 863-64, 104 S.Ct. 2778. As the Court said in Brand X, “[u]nexplained inconsistency is, at most, a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the Administrative Procedure Act” — an issue my colleagues do not address. 545 U.S. at 981, 125 S.Ct. 2688. In any event, the SEC’s construction is neither inconsistent nor, as discussed in Part III, unexplained.

Last, my colleagues state that “the broader language found in § 206A [of the IAA] supports the conclusion that subsection (F) must be read more narrowly.” Court Op. at 492. Whether the exempting power delegated to the SEC under § 206A is in fact broader than that delegated by subsection (F) is unclear. Compare 15 U.S.C. § 80b-6a, with id. § 80b-2(a)(ll)(F). But even if it were, the court does not explain how § 206A, which was not added to the IAA until 1970, can provide insights into the intent of the Congress that enacted subsection (F) in 1940.

Because I fail to perceive the clarity required to vacate the SEC’s fee-based brokerage rule under the first step of Chevron analysis, I proceed to the second step.

Ill

Under Chevron step two, “if the implementing agency’s construction is reasonable,” a court must “accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.” Brand X, 545 U.S. at 980, 125 S.Ct. 2688 (citing Chevron, 467 U.S. at 843-44 & n. 11, 104 S.Ct. 2778).

For the same reasons that I find subsection (F)’s use of the term “such other persons” ambiguous, see supra Part II.B, I conclude that the SEC’s construction of that term is reasonable. There is nothing implausible about interpreting those words to encompass anyone not actually exempt under one of the five preceding exceptions. *407In so doing, the SEC does not “rewrite the statute.” Court Op. at 491. Rather, it gives effect to one of two plausible interpretations of the statutory language.

The reasonableness of the SEC’s interpretation of “such other persons” does not end the analysis, of course. Any regulatory exception must also be consistent with “the intent of’ paragraph 11. The remaining question, then, is whether an exception for broker-dealers who provide investment advice solely incidental to their business as broker-dealers, but who are paid fee-based rather than commission-based compensation, is consistent with that intent.

The SEC has presented a reasonable case for concluding that it is. The Commission explained that, at the time of the IAA’s passage in 1940, broker-dealers were providing investment advice and receiving compensation in only two ways: “as an auxiliary part of the traditional brokerage services for which their brokerage customers paid fixed commissions and, alternatively, as a distinct advisory service for which their advisory clients separately contracted and paid a fee.” Certain Broker-Dealers, 70 Fed.Reg. at 20,428. Congress was concerned about the potential for fraud and misrepresentation when advice was provided in the latter form— whether it was provided by broker-dealers charging separately for such advice or by others whose only business was to provide advice for a fee. See id. at 20,429-80 & n. 60. In enacting the IAA, however, Congress did not express the same concern about investment advice included within a larger package of brokerage services — as evidenced by the exception contained in subsection (C).

As the SEC interprets the legislative history, subsection (C) was intended to exempt broker-dealers when they gave investment advice as part of a package of traditional brokerage services, but not when they sold advice as a distinct service for a separate fee. See id. at 20,430. The 1940 SEC release quoted by the court, Court Op. at 490-91 n. 7, is to precisely that effect:

Clause (C) ... amounts to a recognition that brokers and dealers commonly give a certain amount of advice to their customers in the course of their regular business, and that it would be inappropriate to bring them within the scope of the [IAA] merely because of this aspect of their business. On the other hand, that portion of clause (C) which refers to “special compensation” amounts to an equally clear recognition that a broker or dealer who is specially compensated for the rendition of advice should be considered an investment adviser and not be excluded from the purview of the Act ....

11 Fed.Reg. 10,996 (Sept. 27, 1946) (emphasis added) (republishing SEC General Counsel opinion letter of Oct. 28, 1940). Since, at the time, the only kind of compensation that exchange rules permitted a broker-dealer to charge for a traditional package of services was the fixed brokerage commission, subsection (C)’s exception for broker-dealers receiving such compensation effectively exempted all broker-dealers who provided advice as part of such a package. See Certain Broker-Dealers, 70 Fed.Reg. at 20,431 & n. 75.

For several decades after the IAA was passed, subsection (C)’s “no special compensation” rule — understood to mean “no compensation other than brokerage commissions” — continued to exempt the only group of broker-dealers who gave advice as part of a traditional package of brokerage services. See id. at 20,431. In 1975, however, the SEC eliminated the requirement that broker-dealers charge only fixed commissions for brokerage services. See id. at 20,431 n. 74. In the 1990s, broker-dealers began to take advantage of the *408change by offering their customers fee-based brokerage accounts as an alternative to commissions. According to the SEC, these accounts provide customers with the same traditional package of brokerage services, but instead of paying a commission on each trade, a customer pays either a fixed fee or a fee based on the amount of assets in the account. See id. at 20,425.

In 1999, in response to these developments, the SEC first proposed what would become the final rule now before us. The Commission concluded that “these new fee-based brokerage programs ... were not fundamentally different from traditional brokerage programs” and that broker-dealers had simply “re-priced traditional brokerage programs rather than ... created advisory programs.” Id. at 20,426. Although fee-based brokers receive “special compensation” in the technical sense that they are paid in a form other than brokerage commissions, such brokers provide investment advice only as a part of a traditional package of brokerage sendees, just like the brokers who have always been exempt from the IAA. And unlike the broker-dealers who Congress intended to include within the Act’s coverage via subsection (C)’s bar on “special compensation,” the subset of broker-dealers exempted by the final rule do not charge a separate fee or separately contract for investment advice. (The final rule expressly excludes such broker-dealers from the exception. See 17 C.F.R. § 275.202(a)(ll)-l(b)(l).) Because the SEC reasonably believed that an exception for the broker-dealers covered by the final rule — a group that did not exist in 1940 — would serve the same purpose as the exception that Congress created when it passed the IAA, the Commission reasonably concluded that its final rule was consistent with the intent of paragraph 11. As the Commission explained:

There is no evidence that the “special compensation” requirement was included in section 202(a)(ll)(C) for any purpose beyond providing an easy way of accomplishing the underlying goal of excepting only advice that was provided as part of the package of traditional brokerage services. In particular, neither the legislative history of section 202(a)(ll)(G) nor the broader legislative history of the Advisers Act as a whole suggests that, in 1940, Congress viewed the form of compensation for the services at issue — commission versus fee-based compensation — as having any independent relevance in terms of the advisory services the Act was intended to reach.

Certain Broker-Dealers, 70 Fed.Reg. at 20,431 (footnote omitted).

The SEC also reasonably explained why its new exception was consistent with the IAA’s more general purpose of preventing fraud and misrepresentation. As the Commission points out, broker-dealers who are exempt from the IAA are not free from oversight, but instead are regulated under the Securities Exchange Act of 1934 and by self-regulatory organizations such as the New York Stock Exchange. Id. at 20,424. That regulation, the SEC explained, “provide[s] substantial protections for broker-dealer customers.” Id. at 20,-433. To supplement that regulation, the final rule further provides that broker-dealers cannot qualify for the exception unless they make specified disclosures about potential conflicts of interest to their customers. 17 C.F.R. § 275.202(a)(ll)-1(a)(1).

Moreover, a major impetus to promulgation of the rule was the SEC’s concern that commission-based compensation has conflict-of-interest and fraud potential of its own. Charging a commission for each transaction, the SEC said, gives brokers an incentive “to churn accounts, recommend unsuitable securities, and engage in aggressive marketing of brokerage ser*409vices.” Certain Broker-Dealers, 70 Fed. Reg. at 20,425. Under fee-based brokerage programs, by contrast, “compensation no longer depends on the number of transactions ..., thus reducing incentives ... to churn accounts, recommend unsuitable securities, or engage in high-pressure sales tactics.” Notice of Proposed Rulemaking, 64 Fed.Reg. 61,226, 61,228 (Nov. 10, 1999). The SEC feared that, if fee-based brokers remained subject to the IAA’s administrative burdens while commission-based brokers did not, a salutary evolution toward the former would be discouraged. See Certain Broker-Dealers, 70 Fed.Reg. at 20,426.

The Financial Planning Association and its amici advance a host of reasons to question the SEC’s judgment that the fee-based brokerage exception will not undermine investor protection. Whatever the validity of those concerns, they reflect policy disputes of the type that Chevron counsels us to leave to agency resolution. As the Supreme Court emphasized:

When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency— have a duty to respect legitimate policy choices made by those who do.

Chevron, 467 U.S. at 866, 104 S.Ct. 2778.

IV

The SEC’s interpretation of the Investment Advisers Act is “a reasonable interpretation of an ambiguous statute.” Christensen v. Harris County, 529 U.S. 576, 586-87, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). This is not to suggest that my colleagues’ interpretation is unreasonable, but only to acknowledge that when there are two reasonable interpretations of a statutory provision, a court must bow to the “interpretation made by the ... agency.” Chevron, 467 U.S. at 844, 104 S.Ct. 2778. Doing so, I respectfully dissent from the opinion of the court.

Congress added a seventh exception in 2006. My citations, like the court's, are to the preamendment statute.