United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 7, 2017 Decided October 6, 2017
No. 16-5329
BREAD FOR THE CITY,
APPELLANT
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01591)
Bryan M. Killian argued the cause for appellant. With him
on the briefs were Thomas R. Lotterman and Clara Kollm.
Jaynie Lilley, Attorney, U.S. Department of Justice, argued
the cause for appellees. With her on the brief was Mark B.
Stern, Attorney.
Before: ROGERS and MILLETT, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
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RANDOLPH, Senior Circuit Judge: This is an appeal from
the order of the district court dismissing a complaint for failure
to state a cause of action. Bread for the City, Inc. v. United
States Dep’t of Agriculture, 211 F. Supp. 3d 327 (D.D.C. 2016).
The complaint, filed by Bread for the City, Inc., alleged that the
Department of Agriculture spent hundreds of millions of dollars
less than the law required on a program to provide food for the
needy.
The district court upheld the Agriculture Department’s
interpretation of 7 U.S.C. § 2036(a), a spending provision in The
Emergency Food Assistance Program, as modified by the
Agriculture Act of 2014. Pub. L. No. 113-79, § 4027(a), 128
Stat. 649, 812. Under the Program, the Agriculture Department
purchases surplus food and then distributes it to the States. 7
U.S.C. § 2036(a)(1). The States then distribute the food to
organizations providing nutrition assistance to the needy, such
as Bread for the City in the District of Columbia, which the
Program treats as a State. 7 U.S.C. §§ 2012(r), 7501(3)-(4),
7502(g).
Subsection 2036(a) sets the dollar amount of surplus food
the Agriculture Department must purchase each fiscal year.
Paragraph 2036(a)(1) now specifies that for fiscal years 2014
through 2018 the Department “shall purchase a dollar amount
described in paragraph (2) of a variety of nutritious and useful
commodities . . ..”
Paragraph (2) is the portion of § 2036(a) at issue in this
appeal. It is as follows:
(2) Amounts
The Secretary shall use to carry out paragraph (1)––
(A) for fiscal year 2008, $190,000,000;
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(B) for fiscal year 2009, $250,000,000;
(C) for each of fiscal years 2010 through 2018, the
dollar amount of commodities specified in
subparagraph (B) adjusted by the percentage by
which the thrifty food plan has been adjusted
under section 2012(u)(4) of this title between June
30, 2008, and June 30 of the immediately
preceding fiscal year;
(D) for each of fiscal years 2015 through 2018, the
sum obtained by adding the total dollar amount of
commodities specified in subparagraph (C) and––
(i) for fiscal year 2015, $50,000,000;
(ii) for fiscal year 2016, $40,000,000;
(iii) for fiscal year 2017, $20,000,000; and
(iv) for fiscal year 2018, $15,000,000; and
(E) for fiscal year 2019 and each subsequent fiscal
year, the total dollar amount of commodities
specified in subparagraph (D)(iv) adjusted by the
percentage by which the thrifty food plan has been
adjusted under section 2012(u)(4) of this title to
reflect changes between June 30, 2017, and June
30 of the immediately preceding fiscal year.
By way of example, for fiscal year 2015, the inflation
adjustment in subparagraph (C) amounted to $27 million. The
Agriculture Department therefore added this amount to the $250
million specified in subparagraph (B), for a total of $277
million. To this $277 million, the Department added the amount
specified in clause (D)(i), $50 million, for a total of $327
million. According to the plaintiff, that was far too little. By its
lights, the Department should have spent $604 million.
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To get to its $604 million figure, the plaintiff engages in the
following computations. Like the Agriculture Department, it
begins with subparagraph (C). But unlike the Department, the
plaintiff treats this provision as a stand-alone mandate, requiring
the Department to spend $277 million ($250 million plus the
inflation adjustment of $27 million). The plaintiff then lays this
amount on the table and moves on to subparagraph (D), treating
it as another separate, stand-alone spending requirement.
Therefore, for fiscal year 2015, clause (D)(i) required the
Department to spend $327 million ($277 million plus $50
million), in addition to the $277 million derived from
subparagraph (C). The $327 million added to the $277 million
comes to $604 million. That, the plaintiff claims, is what the
Agriculture Department should have spent on the Program rather
than the $327 million it actually spent.
It may be that a parsing machine could come up with
plaintiff’s $604 million number for fiscal year 2015. But what
does this prove? A parsing machine might also read “Time flies
like an arrow” to mean that time-flies, collectively, like an
arrow, as in “fruit flies like a banana”; or that one should time
the speed of flies as one would time the speed of an arrow; or
that Time magazine has taken to flight. See Steven Pinker, The
Language Instinct 209 (1994).
The most natural reading of the statutory text, however, is
that subsection (D) provides a specified supplement to the
expenditure amount calculated in subsection (C). Even if Bread
for the City’s parsing of § 2036(a)(2) were linguistically
possible, it is quite implausible. For one thing, it “is far too
convoluted to believe Congress intended it.” Chickasaw Nation
v. United States, 534 U.S. 84, 90 (2001). There is no explaining
why Congress would use such a roundabout method of requiring
such a substantial increase in spending. There is no good
explanation for why Congress, after requiring the expenditure of
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$277 million twice in fiscal year 2015, would tack on another
$50 million, as the plaintiff claims. And there is no explanation
for why Congress would retain the inflation adjustment while
increasing spending during fiscal years 2015 to 2018 by
hundreds of millions of dollars, amounts far exceeding any
possible loss of purchasing power through inflation.
It is therefore hardly surprising that both the Senate and
House drafts of the Agricultural Act of 2014 clearly provided for
spending increases to the Program that were consistent with the
Agriculture Department’s interpretation. H.R. 2642, 113th
Cong. § 4016, Engrossed Amendment Senate (July 18, 2013);
H.R. 2642, 113th Cong. § 4027, Engrossed Amendment House
(Sept. 28, 2013). The Conference Committee Report on the
2014 amendments, which added subparagraph (D) to § 2036(a),
further confirms the Department’s position. The Report states
that the bill “provides an increase in funding of $50 million for
fiscal year 2015, $40,000,000 for fiscal year 2016, $20,000,000
for fiscal year 2017, and $15,000,000 for fiscal year 2018”;
nowhere is there even a hint that in addition to these amounts,
spending would increase by an inflation-indexed $250 million
in each of these fiscal years. H.R. Rep. No. 113-333, at 440
(2014) (Conf. Rep.). The Congressional Budget Office report
took the same position as the Conference Report. Douglas W.
Elmendorf, Cong. Budget Office, Cost Estimate: H.R. 2642,
Agricultural Act of 2014 (2014). And to round things off, the
explanatory statements accompanying the 2015 and 2016
appropriations bills also support the Agriculture Department’s
understanding of § 2036(a)(2). H.R. Rep. No. 113-468, at 50
(2014); 160 Cong. Rec. H9313 (daily ed. Dec. 11, 2014); H.R.
Rep. No. 114-205, at 59 (2015); 161 Cong. Rec. H9700 (daily
ed. Dec. 17, 2015).
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In short, the available evidence shows that those intimately
involved in determining the spending levels of the Program do
not support Bread for the City’s version of § 2036(a).
Affirmed.