UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BREAD FOR THE CITY, INC., )

Plaintiff, §

v. § Civil ease No. 15-1591 (RJL)
Ul(\l;§lél) STATES DEPARTMENT OF §
A ULTURE et al., § F I L E D

Defendants. ) SEP 30 2015

Clerk. U. .
MEMORAND'A;\£’IAOPINION owns forsthg‘M ::g’;r’:'r)':;'ya

 

(septembel{§g 2016) [Dkt. # 14]

Plaintiff Bread for the City, Inc. (“Bread for the City” or “plaintiff’) brings this
action against defendants the U.S. Department of Agriculture, Secretary of Agrieulture
Thomas J. Vilsack, and the Food and Nutrition Service (collectively, “USDA” or
“defendants”). In its Complaint, Bread for the City asserts that USDA misinterpreted the
clear command of 7 U.S.C. § 2036(a)(2) and, as a result, failed in fiscal year 2015 to
purchase and distribute more than $277 million Worth of food required by Congress as
part of The Emergency Food Assistance Program (“TEFAP”). Compl. [Dkt. # l].

Currently before the Court is USDA’s Motion to Dismiss the Complaint for lack
of subject matter jurisdiction and for failure to state a claim upon which relief can be
granted. [Dkt. #14]. F or the reasons stated beloW, the Court rejects Bread for the City’s

asserted legal theory and GRANTS defendants’ Motion to Dismiss the Complaint.

BACKGROUND

In 1983, Congress created The Emergency Food Assistance Program (“TEFAP”)
to provide free nutrition assistance to low-income Americans. Emergency Food
Assistance Act of 1983, Pub. L. 98-8, 97 Stat. 35 (1983). Under the program, USDA
purchases food with appropriated funds and distributes it to eligible state agencies, who
in turn must distribute a portion of the food to public or non»profit “emergency feeding
organizations.” 7 U.S.C. §§ 7501-02; 7 U.S.C. § 2036(a).

Bread for the City is a non-profit organization that distributes food to low-income
residents in the Washington, D.C. area. Compl. Tl 5. According to its Complaint, Bread
for the City has participated in TEFAP for at least twenty years and has in previous years
received a significant portion of the food that USDA distributed to the District of
Columbia as part of TEFAP. Id. 11 30.

In 2014, Congress passed the Agricultural Act of 2014, which reauthorized
TEFAP and established its spending levels for future fiscal years. Agricultural Act of
2014, Pub. L. 113-79; § 4027, 128 Stat. 649, 812-13 (2014) (codified at 7 U.S.C. §
2036(a)). Based on its interpretation of the statute, USDA purchased and distributed
$327 million worth of TEFAP food in fiscal year 2015. Compl. 1 33; Mem in Supp. of
Defs.’ Mot. to Dismiss at 4 [Dkt. # l4-l.] Bread for the City asserts that USDA
misinterpreted the statute, and argues that the agency was required to purchase and
distribute $604 million worth of food in fiscal year 2015. Compl. 11 l. Bread for the City
filed its Complaint in September 2015, seeking to compel USDA to spend the additional

$277 million and to comply with Bread for the City’s interpretation of the statute in

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future fiscal years.
STANDARD OF REVIEW

USDA moves to dismiss Bread for the City’s Complaint pursuant to Federal Rules
of Civil Procedure 12(b)(l) and 12(b)(6). A motion to dismiss under Rule 12(b)(l)
challenges the Court’s jurisdiction over the plaintiffs claims, while a Rule 12(b)(6)
motion challenges the sufficiency of a complaint.

When a defendant files a Rule l2(b)(l) motion to dismiss for lack of subject
matter jurisdiction, the plaintiff bears the burden of establishing the facts that support
jurisdiction by a preponderance of the evidence. Erby v. Unitea’ States, 424 F. Supp. 2d
180, 182 (D.D.C. 2006) (citing Lujan v. Defena'ers of Wila'life, 504 U.S. 555, 561 (1992).
Furthermore, since subject matter jurisdiction is a statutory and a constitutional Article III
requirement that cannot be waived by litigants, Aki`nseye v. Dist. of Columbia, 339 F.3d
970, 971 (D.C. Circ. 2003), the Court must independently satisfy itself that it has
jurisdiction to hear the plaintiffs claims. Arbaugh v. Y & H Corp., 546 U.S. 500, 514
(2006).

When deciding a motion to dismiss under Rule l2(b)(6), the Court must ascertain
whether the complaint contains “sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks and citations omitted). Although the Court must read the
complaint’s factual allegations in the light most favorable to the plaintiff, Bell Atlantic Co
v. Twombly, 550 U.S. 544, 555 (2007), the Court is not required to accept legal

conclusions cast in the form of factual assertions, Browm'ng v. Clinton, 292 F.3d 235, 242

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(D.C. Cir. 2002), and a claim that is premised on a faulty legal theory must be dismissed,
“without regard to whether it is based on an outlandish legal theory or on a close but
ultimately unavailing one.” Nietzke v. Wl`lliams, 490 U.S. 319, 327 (1989). For the
following reasons, the Court rejects defendants’ jurisdiction motion but agrees with its
Rule l2(b)(6) argument

ANALYSIS

I. The Court has subject matter jurisdiction over Bread for the City’s challenge
to TEFAP spending in 2015.

Whether the Court has jurisdiction over Bread for the City’s claims, at least
insofar as they relate to USDA’s TEFAP spending in fiscal year 2015, is to say the least,
not a close question,l Indeed, because Bread for the City is challenging USDA’s
interpretation of 7 U.S.C. § 2036(a)(2) and seeks declaratory and injunctive relief under
the Administrative Procedure Act, 5 U.S.C. § 701, the Mandamus Act, 28 U.S.C § 1361,
and the Declaratory Judgment Act, 28 U.S.C. § 2202, this Court is explicitly endowed
with subject matter jurisdiction over this Complaint. 28 U.S.C. § 1331 (granting district

courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties

 

‘ USDA’s jurisdictional argument in support of its Rule l2(b)(1) motion is focused on Bread for
the City’s request for prospective relief. According to USDA, any request for relief connected to
future fiscal years relies on assumptions about future congressional appropriations and agency
conduct that are too speculative to create a justiciable case or controversy. Mem. In Supp. Of
Defs.’ Mot. to Dismiss, at 17~21 [Dkt. # l4-l]; Defs.’ Reply Mem. in Supp. of Defs.’ Mot. to
Dismss at 12#15 [Dkt. # 16]. l make no decision about the justiciability of Bread for the City’s
claims for prospective relief. Bread for the City’s right to any relief, prospective or not, turns on
whether its interpretation of 7 U.S.C. § 2036(a) is correct. Because the Court has Subject matter
jurisdiction over Bread for the City’s claim as it relates to 2015, and must therefore resolve the
underlying legal question, l need not address the ripeness questions posed by prospective relief
unless and until I find that Bread for the City’s underlying legal theory is correct and that the
organization has in fact stated a claim upon which relief can be granted.

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of the United States”); 28 U.S.C § 1361 (granting district courts jurisdiction over federal
mandamus actions).

Furthermore, I easily conclude that Bread for the City has alleged sufficient facts
to establish standing. See Fooa’ & Waler Watch, Inc. v. Vz'lsack, 808 F.3d 905, 913 (D.C.
Cir. 2015) (“In order to establish jurisdiction, a party must establish standing.”). Indeed,
in order to establish standing at the motion to dismiss stage, the plaintiff need only “state
a plausible claim that [it has] suffered an injury in fact fairly traceable to the action of the
defendant that is likely to be redressed by a favorable decision on the merits.” Ia’. at 913.
Here, Bread for the City alleges that it has participated in TEFAP for at least 20 years,
that it has received a significant portion of the TEFAP food allocated to Washington,
D.C. in prior years, and that it would have likely received a higher allocation of food if
USDA had purchased the $604 million worth of food it believes the statute required.
Compl. 1111 5, 30. In effect, Bread for the City alleges that USDA’s failure to distribute
the correct amount of food to states (and the District of Columbia) caused the
organization to receive less food than it likely would have, and seeks an order directing
USDA to purchase the correct amount of food. Thus, based on these allegations alone, I
find that Bread for the City has the standing necessary to challenge USDA’s 2015
TEFAP spending See West Vz'rginz`a Assoc. of Cmty. Health Ctrs. v. Heckler, 734 F.2d
1570, 1572 (D.C. Cir. 1984) (holding that nonprofit entities had standing to challenge
federal agency’s formula for distributing grants to state agencies, who in turn distributed
grant funds to non-profit organizations, on the grounds that plaintiff organizations had

been denied the opportunity to compete for additional funding).

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II. Bread for the City’s Complaint raises a purely legal question that should be
resolved at the motion to dismiss stage and in favor of the defendants.

Ordinarily, a motion for summary judgment, rather than a Rule 12(b)(6) motion to
dismiss, is the “proper [procedural] mechanism for deciding as a matter of law, whether
an agency action is supported by the administrative record and consistent with the APA
standard of review.” R.J. Reynolds Tobacco Co. v. USDA, 130 F. Supp. 3d 356, 369
(D.D.C. 2015). However, Bread for the City’s Complaint raises a purely legal question_
whether the text of 7 U.S.C. § 2036(a)(2)2 required USDA to purchase more food than it
did in fiscal year 2015. Furthermore, USDA has declined to file the administrative record

with the Court, and its motion relies on nothing “other than the statute and relevant

 

2 The relevant language reads:

(1) In general.-From amounts made available to carry out this chapter, for each of the fiscal
years 2014 through 2018, the Secretary shall purchase a dollar amount described in
paragraph (2) of a variety of nutritious and useful commodities . . . and distribute the
commodities to States for distribution . . . .

(2) Amounts._The Secretary shall use to carry out paragraph (l)_

(A) for fiscal year 2008, $l90,000,000;
(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.
7 U.S.C. § 2036(a).

legislative history.” Defs.’ Mem. in Supp. of Mot. to Dismiss at l n.l. Under these
circumstances, it is procedurally permissible, and appropriate, to resolve the merits of
Bread for the City’s APA challenge at this early stage in the proceedings Am. Bankers’
Assoc. v. Nat’l Crea’it Union Admin., 271 F.3d 262, 266 (D.C. Cir. 2001) (affirming Rule
12(b)(6) dismissal of complaint where district could resolve APA challenge “with
nothing more than the statute and its legislative history”); Marshall Cly. Health Care
Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) (“The entire case on review is a
question of law, and only a question of law. And because a court can fully resolve any
purely legal question on a motion to dismiss, there is no inherent barrier to reaching the
merits at the 12(b)(6) stage.”).

I. Bread for the City’s Complaint fails to state a claim upon which relief can be
granted.

Bread for the City and USDA disagree about the proper interpretation of
§ 2036(a)(2)’s spending schedule and calculate wildly divergent TEFAP totals for 2015
through 2018, For the reasons stated below, l have concluded that USDA’s interpretation
of the statute is correct, that the agency was not required to spend an additional $277
million in 2015, and that Bread for the City’s Complaint must be dismissed for failure to
state a claim upon Which relief can be granted

A. USDA’s Interpretation: $327 Million in Fiscal Year 2015.

According to USDA’s interpretation of the statute, the agency was only required
to purchase $327 million worth of TEFAP food in fiscal year 2015.

Subparagraph (C) directs the USDA, for fiscal years 2010 through 2018, to spend

“the dollar amount . . . specified in subparagraph (B)”_$ 250 million_after it has been
adjusted by the same percentage as the USDA’s thrifty food plan. 7 U.S.C. § 2012(u)(4)
adjusts the cost of the plan for inflation every year, so this ensures that the TEFAP
baseline amount for 2010 through 2018 is adjusted to account for annual inflation For
fiscal year 2015, both parties agree that $277 million was the proper adjusted total. Mem
in Supp. of Defs.’ Mot. to Dismiss at 7; Opp’n to Mot. to Dismiss at 5 [Dkt. # 15].

According to USDA, subparagraph (D) simply instructs the agency, from 2015 to
2018, to augment the baseline amount with an additional amount that ranges from $50
million in 2015 to $15 million in 2018. Following this interpretation, USDA spent $327
million on TEFAP in fiscal year 2015.3

B. Bread for the City’s Theory: $604 Million in Fiscal Year 2015.

Unlike USDA, Bread for the City believes that § 2036(a)(2) required the agency to
spend $604 million4 in fiscal year 2015, and believes that USDA therefore failed to
purchase $277 million worth of TEFAP commodities in 2015. As an initial matter, Bread
for the City agrees with USDA that subparagraph (C) required the agency to spend $277

million in 2015. However, the organization believes that USDA had to spend that $277

 

3 USDA’s calculations are summarized as follows:

¢ Subparagraph (C): $250 million, adjusted for inflation= $277 million
0 Subparagraph (D)(i): + $50 million
0 FY 2015 Total TEFAP Expenditure: = $327 million

4 In its Complaint, Bread for the City alleges that USDA should have spent $602 million in 2015.
Compl. 11 27. However, under Bread for the City’s theory, the proper total is $604 million, and
its brief in opposition correctly uses that amount. See, e.g., Opp’n to Mot. to Dismiss at 5. At
the time it drafted the Complaint, Bread for the City may not have known the exact inflation
adjustment that established $277 million as the baseline amount, or it may have simply made an
arithmetical error. I shall treat 8604 million as Bread for the City’s proposed TEFAP total for

2015.

million twice, once in order to comply with subparagraph (C) and again to comply with
subparagraph (D). Subparagraph (C) instructs USDA to use $277 million, and
subparagraph (D) instructs the Secretary to use the “sum obtained by adding the total
dollar amount . . . specified in subparagraph (C) [$277 million] and . . . for fiscal year
2015, $50,000,000.” According to Bread for the City, each subparagraph creates an
independent, unconnected obligation to spend $277 million. Subparagraph (D)’s
reference to the “total dollar amount . . . specified in subparagraph (C)” is not merely a
reference connecting the two subparagraphs together, but a new and independent
command to count that $277 million all over again.5 l disagree.

In order to determine § 2036(a)(2)’s meaning, l begin with the statute’s text.
United States v. Nz'ce, 769 F.3d 1154, 1160 (D.C. Cir. 2014); Caminetti' v. United States,
242 U.S. 470, 485 (1917) (“[T]he meaning of a statute must, in the first instance, be
sought in the language in which the act is framed.”).

Bread for the City relies on three main textual arguments to support its double-
counting thesis. First, it argues that each subparagraph in § 2036(a)(2) is joined by an
implicit “and” that renders each subparagraph cumulative. Second, Bread for the City
argues that the use of the word “sum” in subparagraph (D) is rendered meaningless unless
USDA double-spends the $277 million identified in (C). Last, Bread for the City points

out that fiscal years 2015 through 2018 are referred to in two separate subparagraphs and

 

5 Bread for the City’s calculations are summarized as follows:

° Subparagraph (C): $250 million, adjusted for inflation= $277 million
' Subparagraph (D): 8277 million + $50 million= + $327 million
~ FY 2015 TEFAP Expenditure: $604 million

concludes that each subparagraph constitutes a separate, freestanding obligation to spend
$277 million in those years, All three, in my judgment, are too clever by half. How so?

In essence, plaintiffs arguments ignore the statute’s structure, distort its clear
meaning, and ultimately lead to a tortured reading of the statute. As an initial matter, the
implicit “ands” between subparagraphs cannot reasonably be interpreted to create a
cumulative, additive effect between subparagraphs Other than (C) and (D),
§2036(a)(2)’s subparagraphs address mutually exclusive time periods. For example,
subparagraph (A) addresses 2008, and (B) addresses 2009. If the “and” connecting those
subparagraphs is truly cumulative, then (B) commands the USDA to spend $250 million
in 2009, plus the Sl90 million already identified in (A), for a total of $440 million, This
interpretation creates a rapid and unsustainable snowballing effect that neither party
advances. Bread for the City attempts to sidestep this problem by arguing that the “and”
between subparagraphs is always cumulative, but has no practical effect when
subparagraphs address different fiscal years. Opp’n. to Mot. to Dismiss at 6. However,
they contend that because (C) and (D) are the only subparagraphs that refer to partially
overlapping fiscal years (i.e., 2015-2018), the “and” connecting them is the only one that
has consequence and must therefore be read as a plus sign. Please!

In effect, Bread for the City is asking this Court to interpret “and” to have a
different meaning between (C) and (D) than it does elsewhere in the statute. Recognizing
“the established canon of construction that similar language contained within the same
section of a statute must be accorded a consistent meaning,” I decline to do anything else

here. Janko v. Gates, 741 F.3d 136, 141 (D.C. Cir. 2014) (quoting Nat’l Credi`t Union

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Admin. v. First Nal’l Bank & T rust Co., 522 U.S. 479, 501 (1998)). Instead, the implicit
“and” must be read consistently through the text as a simply connective term that relates
provisions together, rather than as an arithmetical command. See And, Oxfora’ English
Dictionary (2d ed. 1989) (offering definition of "and" as "simply connective").

Fuithermore, l easily reject Bread for the City’s argument that the word “sum” in
subparagraph (D) is rendered meaningless unless USDA double counts the $277 million
specified in subparagraph (C). Put simply, a “sum” is nothing more than an amount
resulting “from the addition of two or more numbers.” Sum, Oxford English Dl'ctl'onary
(2d ed. 1989) (emphasis added). Even under the USDA’s interpretation, the USDA Was
required in fiscal year 2015 to add two dollar amounts together ($277 million + $50
million), so a “sum” is required under either party’s reading of the statute.

Bread for the City responds that if Congress wanted USDA to count the $277
million only one time, it Would have drafted subparagraph (D) to state that USDA should
spend $50 million “in addition to the total dollar amount . . . specified in
subparagraph (C),” rather than stating that USDA should use the “sum obtained by
adding the total dollar amount specified in (C) . . . [and $50 million.]” I disagree.
Although Bread for the City may have proposed a marginally clearer way for Congress to
express its meaning, it does not necessarily follow that Congress’s choice of the word
“sum,” rather than “in addition to,” alters the statute’s meaning. My role is not to nitpick
the Congress’s choice of words, but to determine the meaning of the words it in fact
chose. And I simply cannot discern how Congress’s use of the word “sum” commands

USDA to double-count the $277 million, To do so would, in effect, rewrite the statute.

ll

Not exactly the proper role for the judiciary!

Ultimately, Bread for the City’s textual argument rests on the fact that
subparagraphs (C) and (D) both address fiscal years 2015 through 2018, and both include
a reference to the inflation-adjusted $250 million, Subparagraph (C) tells USDA to use
an inflation-adjusted $250 million from 2010 to 2018, and (D) tells USDA to use the
“amount . . . specified in subparagraph (C)” from 2015 to 2018. According to Bread for
the City, the double reference somehow requires double counting. See Opp’n. to Mot. to
Dismiss at 5. Despite its superficial simplicity, that argument ignores the statute’s
structure. Section 2036(a)(2)’s subparagraphs build upon one another successively; they
are replete With cross-references to one another, and the meaning of most subparagraphs
cannot be understood without referring to the previous subparagraph For example,
subparagraph (C) instructs USDA to adjust the “dollar amount . . . [previously] specified
in subparagraph (B),” and subparagraph (E) takes as its starting point “the total dollar
amount . . . [previously] specified in subparagraph (D)(iv).” The same thing occurs in
subparagraph (D), which refers the reader to the “total dollar amount . . . specified in
subparagraph (C)” in determining the TEFAP total for 2015 to 2018,

Bread for the City’s argument ignores this pattern of successively building upon
prior subparagraphs and argues that subparagraph (D)’s reference to the
“amount . . . specified in subparagraph (C)” is somehow a second, unrelated command to
spend that $277 million all over again. Subparagraph (D)’s reference back to (C)
connects the two subparagraphs together. From 2010 to 2018, USDA should always

spend an inflation-adjusted $250 million on TEFAP. From 2015 to 2018, (D) establishes

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that the adjusted $250 million remains necessary, but is no longer sufficient; USDA must
instead include the additional amount specified in (D)(i-iv).

C. The Relevant Legislative History Dispels Any Doubt About the Clarity
of 7 U.S.C. §2036(a)(2).

Finally, to the extent that Bread for the City’s Complaint creates any doubts about
the clarity of § 2036(a)(2)’s text, an even cursory glance at its legislative history resolves
any question about the correctness of USDA’s interpretation Although their text and
structures varied slightly from the enacted statute, the House and Senate bills that led to
§ 2036(a)(2) both established a baseline amount of $265 million, accounted for inflation
adjustment, and instructed USDA to add a discrete but gradually diminishing amount to
the baseline over the next four years, See H.R. 2642, l 13th Congress. § 4016, Engrossed
Amendment Senate (July 18, 2013), https://\vww.congress.gov/'1l3/bills/l'1r2642/BH.I,S-
jj§_lli‘2642eas.pclf`; H.R. 2642, ll3th Cong. § 4027, Engrossed Amendment House (Sept.
28, 2013), https://Www.congress.gov/ll3/bills/hr2642/'B1LLS-1l3hr2642eah.pdf.
Neither bill instructed USDA to double the baseline amount, nor did the conference
report contain any indication that the conference committee intended to alter the spending
schedule to require double-counting Instead, the report corroborated USDA’s
interpretation of the statute and explicitly stated that the amended bill “provide[d] 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.” H.R. Rep. No.
113-333, at 440 (2014) (Conf. Rep.), https://www.congress.gov/l13/cmt/hi'pt333/C1U"l`-

113hrpt333.pdl`. While Congress may be regularly criticized for how it spends the

13

taxpayers’ funds, it is certainly not known, thank goodness, for miswriting statutes to
obtusely authorize-if not mandate-the expenditure of hundreds of millions of
unappropriated funds.
CONCLUSION
For all of the foregoing reasons, the Court GRANTS defendant’s Motion to
Dismiss the Complaint for failure to state a claim upon which relief can be granted An

Order consistent With this decision accompanies this Memorandum Opinion.

1

RICHA ON
United States District Judge

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