Collier v. United States (In Re Charco, Inc.)

Filed: December 19, 2005
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
________________________
No. 04-2492
(CA-03-2323; BK-00-10432)
_______________________
In Re: CHARCO, INCORPORATED,
Debtor.
----------------------------------
BRENDA CLYDETTE DOVE COLLIER,
Plaintiff - Appellant,
versus
UNITED STATES OF AMERICA, by and through the
Internal Revenue Service,
Defendant - Appellee.
O R D E R
The court amends its opinion filed December 13, 2005, as
follows:
On page 14, first line -- the word “that” is added between the
words “than” and “the courts.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: CHARCO, INCORPORATED, 
Debtor.
BRENDA CLYDETTE DOVE COLLIER,
Plaintiff-Appellant,
 No. 04-2492
v.
UNITED STATES OF AMERICA, by and
through the Internal Revenue
Service,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, Chief District Judge.
(CA-03-2323; BK-00-10432)
Argued: September 19, 2005
Decided: December 13, 2005
Before NIEMEYER and LUTTIG, Circuit Judges, and
Robert J. CONRAD, Jr., United States District Judge
for the Western District of North Carolina,
sitting by designation.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Conrad joined. Judge Luttig wrote a dissenting opin-
ion.
2 IN RE: CHARCO, INC.
COUNSEL
ARGUED: Cheryl Lynne Connelly, CAMPBELL, WOODS, BAG-
LEY, EMERSON, MCNEER & HERNDON, Huntington, West Vir-
ginia, for Appellant. Mary Roccapriore Pelletier, UNITED STATES
DEPARTMENT OF JUSTICE, Tax Division, Washington, D.C., for
Appellee. ON BRIEF: Harry F. Bosen, Jr., Salem, Virginia; Charles
I. Jones, Jr., CAMPBELL, WOODS, BAGLEY, EMERSON,
MCNEER & HERNDON, Charleston, West Virginia, for Appellant.
Kasey Warner, United States Attorney, Eileen J. O’Connor, Assistant
Attorney General, David I. Pincus, UNITED STATES DEPART-
MENT OF JUSTICE, Tax Division, Washington, D.C., for Appellee.
OPINION
NIEMEYER, Circuit Judge:
Brenda Clydette Dove Collier and the Internal Revenue Service
("IRS"), the parties to the adversary proceeding on appeal, have each
filed a secured claim against Charco, Inc., d/b/a Dove Signs, the
debtor in this Chapter 7 bankruptcy proceeding. We now decide
which claim has priority in the limited funds that remain in the bank-
ruptcy estate.
Collier obtained a $121,500 judgment in a Virginia court against
the debtor and filed it in West Virginia before the IRS recorded its
$82,000 tax lien against the debtor, but she recorded her judgment in
West Virginia after the tax lien was recorded. Even though, under
West Virginia law, Collier obtained a lien on the debtor’s real prop-
erty when she obtained her judgment in West Virginia against the
debtor, under federal law an IRS tax lien still takes priority over an
unrecorded judgment lien "[i]f recording or docketing is necessary
under local law before a judgment becomes effective against third
parties acquiring liens on real property." 26 C.F.R. ("Treasury Regu-
lation") § 301.6323(h)-1(g). West Virginia law requires recordation
for a judgment to become "good as against" deed-of-trust creditors,
one class of third-party lienors, even though recordation is not
required before a judgment becomes good as against other third-party
lienors.
IN RE: CHARCO, INC. 3
Construing Treasury Regulation 301.6323(h)-1(g), we hold that the
Regulation gives the United States’ tax lien priority over Collier’s
unrecorded West Virginia judgment lien. Even though Collier
recorded her judgment lien, she did so after the IRS had recorded the
tax lien. Accordingly, we affirm the district court’s judgment denying
Collier lien priority.
I
On June 10, 1996, the IRS assessed $18,227.56 in unpaid taxes
against Charco, Inc. ("Charco"), of Princeton, West Virginia, and on
September 16, 1996, another $63,847.15. It then recorded a combined
tax lien of $82,074.71 on November 26, 1996, in the Mercer County
(West Virginia) Commission Clerk’s Office because Charco’s real
property was located in Mercer County.
Collier obtained a judgment against Charco in Roanoke County
(Virginia) Circuit Court on September 19, 1996, in the amount of
$121,500 plus interest and costs. To enforce that judgment in West
Virginia against Charco’s real property, Collier filed the judgment in
the Mercer County Circuit Court on October 21, 1996, pursuant to the
Uniform Enforcement of Foreign Judgments Act, W. Va. Code § 55-
14-2, which provides that a "judgment so filed has the same effect and
is subject to the same procedures, defenses and proceedings for
reopening, vacating or staying as a judgment of a circuit court of this
state and may be enforced or satisfied in like manner." She recorded
her judgment with the Mercer County Commission Clerk’s Office on
January 23, 1997.
Thus, Collier obtained judgment in West Virginia against Charco
before the IRS recorded the United States’ tax lien, but she recorded
her judgment after the IRS had recorded the tax lien.
In September 2000, creditors of Charco placed it in involuntary
bankruptcy under Chapter 7 of the Bankruptcy Code. During the pro-
ceedings, both the IRS and Collier filed proofs of secured claims —
the IRS for the United States, in the amount of $254,880.92; and Col-
lier, in the amount of $172,954.12. The proceeds from the sale of
Charco’s real property during the bankruptcy proceedings amounted
4 IN RE: CHARCO, INC.
to only $96,275.84 after deducting administrative costs and attorneys
fees.
Collier commenced this adversary proceeding in the bankruptcy
case against the United States "by and through" the IRS, seeking a
declaratory judgment that her judgment lien had priority over the
United States’ tax lien with respect to the remaining funds in the
bankruptcy estate. The bankruptcy court ruled that the United States’
tax lien had priority, and the district court affirmed. Both courts rea-
soned that Collier’s judgment lien had not been "perfected," as federal
regulations define the term, until Collier recorded it in January 1997.
This appeal followed.
II
Collier contends that when she filed her Virginia judgment against
Charco in West Virginia on October 21, 1996, she "perfected" a lien
against Charco’s real property pursuant to West Virginia Code § 38-
3-6, which provides in part that "[e]very judgment for money ren-
dered in this State . . . shall be a lien on all the real estate" of the
defendant within the State. Believing she had "perfected" her lien
against Charco’s property before the IRS recorded its lien, she asserts
priority in the remaining funds in Charco’s bankruptcy estate.
The IRS contends that Collier did not "perfect" her judgment lien
until she recorded it in January 1997 and that the IRS has priority
because it recorded its tax lien in November 1996.
The priority of federal tax liens as against competing liens asserted
against a taxpayer’s property is governed by federal law. Aquilino v.
United States, 363 U.S. 509, 514 (1960).
The Internal Revenue Code provides that the amount of assessed
tax, interest, and penalty not paid by a person after demand becomes
a lien in favor of the United States "upon all property and rights to
property" belonging to the person. 26 U.S.C. § 6321. The lien "ar-
ise[s] at the time the assessment is made." Id. § 6322. But it is not
"valid as against any purchaser, holder of a security interest, mechan-
ic’s lienor, or judgment lien creditor" until it is recorded locally. Id.
IN RE: CHARCO, INC. 5
§ 6323 (emphasis added). The priority between a recorded tax lien
and a judgment lien is governed by the rule of "first in time, first in
right." United States v. Pioneer Am. Ins. Co., 374 U.S. 84, 87 (1963);
see also United States v. Equitable Life Assurance Soc’y of the United
States, 384 U.S. 323, 327-28 (1966); Air Power, Inc. v. United States,
741 F.2d 53, 55 (4th Cir. 1984). But before a judgment lienholder can
have priority over tax lien, she must be a "judgment lien creditor" as
that term is used in 26 U.S.C. § 6323.
As used in § 6323, "judgment lien creditor" is defined by Treasury
Regulation 301.6323(h)-1(g) as "a person who has obtained a valid
judgment, in a court of record and of competent jurisdiction, for the
recovery of specifically designated property or for a certain sum of
money," and who "has perfected a lien under the judgment on the
property involved." 26 C.F.R. § 301.6323(h)-1(g) (emphasis added).
In this case, Collier contends that she perfected her lien on Char-
co’s property on October 21, 1996, when she domesticated her Vir-
ginia judgment by filing it in Mercer County, West Virginia. She
argues therefore that her lien was valid against the IRS’ subsequently
filed tax lien. Even though Collier did not record her judgment until
January 1997 — after the IRS had recorded its tax lien — she argues
that recordation was not required under West Virginia law to perfect
her lien. She relies on West Virginia Code § 38-3-6, which provides
in part that "every judgment for money rendered in this State . . . shall
be a lien on all the real estate of [the defendant]."
It is federal law, however, not state law, that defines when a judg-
ment lien is "perfected":
A judgment lien is not perfected until the identity of the
lienor, the property subject to the lien, and the amount of the
lien are established. . . . If recording or docketing is neces-
sary under local law before a judgment becomes effective
against third parties acquiring liens on real property, a
judgment lien under such local law is not perfected with
respect to real property until the time of such recordation
or docketing. . . .
26 C.F.R. § 301.6323(h)-1(g) (emphasis added). Thus, before a judg-
ment lien is perfected, a judgment lienor must (1) identify the lienor,
6 IN RE: CHARCO, INC.
(2) identify the property subject to the lien, (3) identify the amount
of the lien, and (4) record the lien "[i]f recording or docketing is nec-
essary under local law before a judgment becomes effective against
third parties acquiring liens on real property." Id. The determinative
question in this case is whether Collier had to record her judgment
lien in order to perfect it, which depends on whether recording is
required by local law "before a judgment becomes effective against
third parties acquiring liens on real property." Id. (emphasis added).
At oral argument counsel for the parties debated whether it was
more natural to read "third parties acquiring liens on real property" as
"any third party acquiring liens on real property" or as "all third par-
ties acquiring liens on real property." Neither position, however, cap-
tures precisely the clause’s meaning.1 Ordinarily, an unmodified
plural is used to describe a class of objects. For instance, a person
who claims "to enjoy eating apples" does not necessarily claim to
enjoy eating all apples. She very well might dislike overripe apples,
or she might never have tried Granny Smith apples. For these reasons,
she might not be satisfied if a friend just gave her any apple to eat.
When she declares that she "enjoys eating apples," she simply com-
municates that there exists a class of apples that she likes to eat. And
if there are apples that she in fact enjoys, the claim about enjoying
apples is an accurate one even if it does not include all apples.
Likewise, ordinary language analysis does not permit us to cabin
"third parties acquiring liens on real property" with the limiting terms
"one," "any," "some," or "all." These terms were not used in the Trea-
sury Regulation, and we conclude deliberately so. The choice not to
use such terms is justified with respect to — not because of — the
regulatory background within which the Regulation operates. States
have independent authority to create liens and to regulate how they
become effective against others. Given the variations in state laws, it
would have been impractical, if not impossible, for the regulation to
have cataloged each type of third-party lienor against which a judg-
ment in each State would have to "become effective" before it could
1
Our dissenting colleague resorts to the same analysis, refusing to
accept the text as written. The entire analysis of the dissent presupposes
that the statutory reference to "third parties acquiring liens on real prop-
erty" must mean either "all third parties" or "one third party."
IN RE: CHARCO, INC. 7
have been perfected vis-à-vis a federal tax lien. Moreover, the class
label accommodates changes in state lien laws without requiring a
change in the regulation for each change in state law. In this case,
therefore, we conclude that the use of an unmodified plural, "third
parties," identifies a class, the content of which varies with local lien
laws.2
Thus, we read the federal regulation to state that, to be considered
a "judgment lien creditor" with priority over a federal tax lien, the
creditor must perfect her judgment lien by recording it if a state has
identified a class of third parties acquiring liens against whom a judg-
ment is ineffective until it is recorded. Such a class of third parties
need not include every possible third party acquiring a lien, for the
federal regulation does not require recording only if state law requires
recording against any or all third parties. Rather, the regulation
requires recording against a class of third parties acquiring liens, no
matter how many third party lienors are part of the state-defined class.
Because we conclude that West Virginia law creates just such a class
of third parties against whom a judgment creditor must record her
judgment lien, we hold that a judgment lien creditor in West Virginia
must record her judgment lien to be valid against a recorded federal
tax lien.
In West Virginia, every judgment becomes a lien on real property
at the date of judgment, W. Va. Code § 38-3-6, but those judgments
are not liens against bona fide purchasers until they are recorded, W.
2
The dissent’s conclusion that "third parties" means "all third parties"
is driven by its fear that our interpretation requires recording even if a
State’s class of third parties acquiring liens on real property has but one
member. This outcome is untenable to the dissent because the entirety of
the dissent’s analysis rests on a false dichotomy that "third parties" must
mean either "all third parties" or "one third party," the latter of which
undercuts the drafter’s use of the plural. Yet plurality is not only a matter
of quantity, for, as we have shown, a plural word in common usage
serves when a quantity is unknown. It is conceivable that in a given case,
the class of third parties acquiring liens on real property is made up of
0, 1, 10, 100, or "all" third parties acquiring liens on real property in a
given State. But the actual quantity has no bearing on our interpretation
of this regulation, which is a regulation that assigns rights and obliga-
tions before a given case event comes to court.
8 IN RE: CHARCO, INC.
Va. Code § 38-3-7. Although bona fide purchasers are third parties,
they are not specifically third parties acquiring liens on real property,
so this class would not be a class of third parties that fulfills the con-
dition of the Treasury Regulation. But the West Virginia Supreme
Court has extended § 38-3-7 to apply also to deed-of-trust creditors,
and deed-of-trust creditors, who essentially are mortgagees, are
indeed third parties acquiring liens on real property. See Cooper v.
Cooper, 98 S.E.2d 769, 772 (W. Va. 1957); Amato v. Hall, 174 S.E.
686, 687 (W. Va. 1934); Weinberg v. Rempe, 15 W. Va. 829, 858
(1879).
In sum, West Virginia law identifies two distinct classes of third
parties acquiring liens on real property — deed-of-trust creditors and
everyone else. Although a West Virginia judgment is effective against
the class of "everyone else" whether or not it is recorded, it is not
effective against the class of "deed-of-trust creditors" unless recorded.
Thus, recording is necessary under West Virginia law before a West
Virginia judgment becomes effective against a class of third parties
acquiring liens — deed-of-trust creditors — and the condition of the
Treasury Regulation, therefore, is fulfilled. Collier accordingly would
have to record her judgment lien in order to perfect it under federal
law.
Although Congress could have retained absolute priority under the
common law "first in time, first in right" rule, it was satisfied to have
the IRS be treated no better and no worse than other third-party lien-
ors under state law. Cf. United States v. Kimbell Foods, Inc., 440 U.S.
715, 738 (1979) (observing that, in passing 26 U.S.C. § 6323, Con-
gress "recognized the priority of many state claims over federal tax
liens"). We note that our statutory interpretation in effect agrees with
that of the Eleventh Circuit, which concluded, when interpreting other
regulations promulgated under § 6323, that the regulations essentially
grant the IRS "most favored nation" status so that it receives the best
possible priority the state law would provide to a third-party lienor.
See In re Haas, 31 F.3d 1081, 1089 (11th Cir. 1994) (concluding that
the Treasury Regulation "operates to the put the IRS in the shoes of
any subsequent judgment creditor, including the most favorable
shoes").3
3
Our citation to In re Haas highlights a decision of the Eleventh Cir-
cuit in which it relied on the contextual reasoning of the IRS Regulations
IN RE: CHARCO, INC. 9
At bottom, we hold that if a State requires that a judgment be
recorded before it is effective against a class of third parties acquiring
liens on real property, an unrecorded judgment in the State is not,
under the Treasury Regulation, effective against a recorded federal
tax lien. Because West Virginia law does require recordation for a
judgment lien to be valid against a class of third parties acquiring
liens on real property — i.e., deed-of-trust creditors — the federal
regulation requires Collier to record her judgment lien to be valid
against a federal tax lien. Thus, Collier’s judgment lien obtained
before the IRS recorded its federal tax lien was ineffective against the
tax lien until it was recorded, and because it was recorded after the
tax lien was recorded, the IRS lien has priority over Collier’s.
Accordingly, the judgment of the district court is
AFFIRMED.
LUTTIG, Circuit Judge, dissenting:
I have no idea what the Treasury Department intended when it pro-
mulgated the regulation that is before us today. However, whatever
its intent, I suspect the Department drafted the regulation against a
background belief that state recordation laws do not generally distin-
guish among third-party creditors. But whether or not this was its
belief, I am confident as to the most defensible reading of the lan-
guage that the Department chose to effectuate whatever its intent was
(and, incidentally or not, that reading is consistent with what I suspect
was the Department’s background belief).
to point out that the IRS would not, in adopting a recordation require-
ment, place itself in an inferior position with respect to the priority of
liens when carrying out the task of collecting taxes. Contrary to what is
suggested by the dissent, however, this reference does not drive our
interpretation; rather it is cited to note that the result of our textual analy-
sis is in conformity with a similar result reached by the Eleventh Circuit.
Thus, the dissent incorrectly reads our opinion to say that we proceeded
from the speculation of an IRS intent "without any regard for the text."
Of course, our holding is grounded entirely on an interpretation of the
text, unmodified by the addition of words such as "all," "any," and
"some."
10 IN RE: CHARCO, INC.
I am confident that when the regulation states that a judgment must
be recorded if "third parties" must record, it is most plausibly read,
absent any contextual evidence to the contrary (as here), to mean that
judgment lien creditors in the state must record their judgments only
if the state requires that a judgment be recorded before it is effective
against all third-party creditors. Not just one third-party creditor. Not
just some third-party creditors. And not just some unspecified, sub-
stantial class of third-party creditors. All third-party creditors. Indeed,
this may well be the only even arguably plausible interpretation of the
actual language of the regulation.
The want to interpret the regulation contrary to its language most
naturally read is prompted, I believe, by nothing more than the dis-
comfort of uncertainty that is felt when one is faced with state law,
like that in West Virginia, that simply happens to be more nuanced
than I suspect the Department realized existed at the time it promul-
gated the regulation. This is a want to which it is particularly inappro-
priate for a court to yield, however, because to do so results not in an
interpretation, but in a rewriting, of the regulation’s language.
The alternative interpretations to the one I would place upon the
regulation, including the one embraced by the majority, are informed
by rank speculation as to the Department’s possible intent. And, to no
surprise, these interpretations require constructions of the regulatory
language that the language cannot even possibly bear.
The majority’s interpretation of the regulation is a perfect example.
The majority asserts that the purpose of the IRS regulation must have
been to ensure that the IRS was always the equal of the "most
favored" third party creditor in a given state, ante at 8 — an assertion
for which the majority does not offer even a hint of evidence. Based
upon nothing more than this pure speculation, and without any regard
for the text of the regulation, the majority proceeds directly to hold
that the regulation must mean that if a state requires that a judgment
be recorded before it is effective against any one third-party creditor,
then judgment lien creditors in the state must record their judgments
before their liens are perfected — the interpretation that would best
effectuate that assumed purpose. The majority cloaks this holding in
formulation that is comforting to the casual reader (and no doubt to
the majority as well) because it masks the difficult interpretive ques-
IN RE: CHARCO, INC. 11
tion. The majority states that recordation is required when state law
requires any "class" of third parties to record. But its holding that
such a "class" may consist of but a single individual could not be
clearer: "[T]he regulation requires recording against a class of third
parties acquiring liens, no matter how many third party lienors are
part of the state-defined class." See ante at 7 (emphasis added).
Whatever else the regulation means, it cannot possibly mean this.
At a bare minimum, given that the regulation refers to "third parties"
in the plural, there must at least be two third parties who are required
to record under state law in order for recordation of a judgment to be
needed. Contrary to the majority’s holding, surely it cannot suffice if
but one party is required under state law to record. But if "two" are
needed, then why "two" instead of "ten." If "ten," then why "ten"
instead of "a substantial number." If "a substantial number," then why
"a substantial number" instead of "a majority." And if "a majority,"
then why not "the vast number." There is simply no basis in law for
choosing any one of these over the other. No basis in the text of the
regulation. No basis in its structure or context. Not even a basis in
what the majority assumes to have been the regulation’s purpose.
I am perfectly content to support the ordinary meaning interpreta-
tion that I would give the regulation by appeal to the analogy of the
apple connoisseur (though I must confess to being baffled over the
majority’s invocation of this analogy in support of its interpretation).
If one says "I like apples," and he is to be understood as having said
either that "I like all apples" or that "I like one apple," he is most nat-
urally understood to have said that he likes all apples — at least if lan-
guage is to have any meaning beyond what one of us chooses to say
it means. Which is to say that, at least in ordinary language, when an
"unmodified plural" is used and there is no other adjectival language
of limitation or contextual evidence suggesting to the contrary, the
qualifier "all" is implicit. In other words, under these circumstances,
it is incumbent upon the speaker to qualify the phrase in the event he
wants to communicate something less.
Indeed, the majority itself appears to accept this fact of ordinary
understanding (though it may not realize it) when it protests that one
who claims to enjoy eating apples does not necessarily claim to enjoy
eating all apples; if the majority did not itself believe that a claim to
12 IN RE: CHARCO, INC.
like apples is better understood as a claim to like all apples, then it
almost certainly would not have felt the need to draw out this strictly
logical, but ultimately irrelevant, fact. And it most certainly would not
have drawn it out as to "all" but not as to "any."
Of course it is true that to claim that one likes apples is not neces-
sarily to claim enjoyment of all apples. But the question is not
whether the apple eater has necessarily claimed to like all apples or
claimed to like only one apple; the question, rather, is whether he is
better understood to have claimed to like all apples or to have claimed
like for merely one apple. The answer to this question is so obvious
as not to require statement — as, again, it would appear even the
majority would be obliged to concede.
No doubt recognizing that as between the conclusion that the apple
connoisseur’s claim refers to all apples and the conclusion that it
refers possibly only to one apple, the better is the former, the majority
reformulates, and thereby misformulates, the question presented as
one of whether the connoisseur’s claim is better understood as one to
like all apples or only as one to like some unspecified class of apples.
That is (returning to the regulation), the majority recasts the question
as whether the regulation is better understood as requiring that all
third parties record or only that some unspecified class of third parties
record, in order for recordation of a judgment to be needed. The
majority had seemed to flirt with this question at oral argument,
though it had itself acknowledged that to answer such a question in
the context of the instant regulation would invite resort to something
like the "Platonic form" (rather than customary rules of judicial inter-
pretation). See Transcript of Oral Argument (Sept. 19, 2005). Appar-
ently underestimating the ultimate appeal of the "Platonic form," I
had not believed that at the end of the day the majority would actually
find itself drawn to precisely this view of the presented question, and,
in pursuit of the answer to this question, even to the "Platonic form"
of interpretation that it acknowledged such a view of the question
would invite.
Nonetheless, having decided to accept its own invitation to resort
to the "Platonic form" (whatever that is in the context of judicial inter-
pretation), the majority fares no better than under the more traditional
modes of interpretation heretofore employed by the courts. For, with
IN RE: CHARCO, INC. 13
the question so framed, the ultimate vulnerability of the majority’s
interpretation of the regulation is only more clearly exposed: There is
absolutely no basis at all in the regulatory text for concluding that the
Treasury Department intended to require recordation whenever state
law required any unspecified class of third parties to record. At the
risk of repetition, if "two" are needed, then why "two" instead of
"ten." If "ten," then why "ten" instead of "a substantial number." If "a
substantial number," then why "a substantial number" instead of "a
majority." If "a majority," then why not "the vast number." And, of
course the hardest question for the majority, if any of these, then why
not "all" — the one among the alternatives that is supported by the
actual language of the regulation.
If the Department had intended such a rule as the majority settles
upon, we simply would not have had before us the language that we
do. If the Treasury Department had intended to require recordation of
a judgment if any class of third parties were obliged to record — even
a class of one — not only is it obvious that it would have written the
regulation differently than it did, but it borders on the incredible to
believe that it would have written the regulation as it did.
In sum, as would be expected of that which has as its object the
ideal rather than the actual or the real, the "Platonic form" has yielded
up for the majority an interpretation that produces what is sensed to
be the ideal for which resort to "the Form" was made, but, alas, it is
an interpretation that is able to claim no support whatsoever in that
which is of the actual — that with which we as judges are to be con-
cerned.
Because the majority appears to believe itself forced to its interpre-
tation by what it perceives to be the unintended and unacceptable con-
sequences of my interpretation, I should finally, perhaps, address
myself to those consequences at least to say that I am not troubled at
all about those that would appear to follow from the straightforward
reading of the regulation, and even if I were, I would not yield to a
troubled mind in this circumstance. To read the regulation as it is
written does not, in any sense that I can discern, produce an absurd
result. In fact, it would appear to produce a perfectly reasonable one.
However, if perchance it is not the result intended or wished, the
Department can simply amend the regulation forthwith. And far better
14 IN RE: CHARCO, INC.
that than that the courts persist in all manner of linguistic contortion in
effort to give judicial imprimatur to what it is only guessed to have been
the intention of those who promulgated the regulation that is the source
of our conjecture.
Were it the case that I disagreed with some parts of the majority’s
opinion, but agreed with others, I believe it would be incumbent upon
me to say more than simply that "I dissent." However, given that I
disagree not merely with some of the majority’s opinion but with the
whole of that opinion, I do not believe that more is required of me to
be said. I am, in other words, satisfied that none will misunderstand
the statement "I dissent" to mean that while I dissent from some parts
of my colleagues’ opinion, I concur in the remainder of the parts.
Except perhaps those for whom the "Platonic form" is irresistible
temptation.