United States Court of Appeals, District of Columbia Circuit
September 7, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-01591)
M. Killian argued the cause for appellant. With him on the
briefs were Thomas R. Lotterman and Clara Kollm.
Lilley, Attorney, U.S. Department of Justice, argued the
cause for appellees. With her on the brief was Mark B. Stern,
Before: Rogers and Millett, Circuit Judges, and Randolph,
Senior Circuit Judge.
RANDOLPH, SENIOR CIRCUIT JUDGE
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.
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).
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 . . .."
(2) is the portion of § 2036(a) at issue in this appeal.
It is as follows:
Secretary shall use to carry out paragraph (1)--
(A) for fiscal year 2008, $190, ...