D.C. Circuit Review – Reviewed: “Most Things I Worry About”

by Aaron Nielson — Saturday, Oct. 7, 2017@Aaron_L_Nielson

My first CD was Tom Petty & the Heartbreakers’ Greatest Hits — perhaps the greatest CD of all time (and I’m only half kidding). I was 13 years old and listened to that disc about 800 million times. Soon thereafter I signed up with Columbia House to get 8 CDs for a penny and quickly purchased the entire Petty collection. One day, I decided to get some new music; I went to the used music shop where you could trade two CDS for one. I knew Tom Petty liked Johnny Cash and Bob Dylan, so I traded in four discs (none of them Petty, of course) and brought home Johnny Cash’s Greatest Hits and Bob Dylan’s Real Live (that’s probably the absolute worst Dylan album to begin with, but I became a fan anyway). Many times over the years, I’ve thought “you know, I haven’t heard Petty for a while” and put in one of his albums, and I’ve never regretted it.* This has been a sad week.

What does this have to do with the law? Well, Tom Petty once said something that I’ve been reflecting on: “If you’re not careful, [the music industry] can convince you that this is a career opportunity, like being a professional person. That’s not the reason I came into it. I’m a little concerned that the industry tries to convince … all these kids who want to play rock ‘n’ roll for a living, they get into this big corporate nightmare. It’s like entering law school. That bothers me. If you spend a lot of time thinking about your career, you don’t have one.”

The practice of law often gets a bad rap. Contrary to the conventional wisdom, lawyers are not boring — or, rather, they need not be boring. Consider this week’s lone D.C. Circuit case: Bread for the City v. Department of Agriculture. Congress has ordered the Department of Agriculture to spend millions of dollars on food for soup kitchens and the like. The question is how many millions. Here is the relevant statute:

(2) The Secretary shall [pay]—
(A) for fiscal year 2008, $190,000,000;
(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 [for inflation];
(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.

Grossly simplifying the fight, the case is about whether the Secretary was required to pay $327 million or $604 million in 2015. Bread for the City seeks the higher value, arguing that the agency should have to pay subsection (C) plus (D) [with (C) = $277 million and (D) = ($277 million plus $50 million)]. The government, by contrast, says it should just be $277 million plus $50 million.

Judge Randolph, joined by Judges Rogers and Millett, sided with the government:

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 $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.

(The Court also cited legislative history.)

Each of these points is contested in Bread for the City’s briefs (which also raise other arguments). But for purposes here, it is enough to observe that Judge Randolph is not boring. His analysis is interesting, as is his choice of an example. Many lawyers and judges are artisans in their own way; their clay is words and ideas. So if Tom Petty’s point was that lawyers are inherently boring, I respectfully disagree.

But I think his point was more subtle than that. What is the defining characteristic of a lawyer? That’s a hard question, but one possible answer is “risk aversion.” Lawyers are incredibly good at spotting and avoiding risks. For instance, when my wife and I purchased our house, we wanted one on the mountain. After we bought such a house, a very talented and lawyerly member of the faculty asked, “Well, aren’t you worried that a mountain lion is going to eat your children?” What a question! Not only is spotting risk what we are trained to do, it also is a trait that the law school admissions process encourages. Likewise, when lawyers represent clients, we spot risks for a living and often encourage taking the safe path. In many situations, this ability to spot and eliminate risks is a virtue; it is certainly valuable and someone has to do it. The problem is, however, that it is hard to be really good at spotting risks while also being willing to ignore risks when it makes sense to do so. An ability to spot risks is a virtue, but it’s also a virtue to be able to say “you know, sure, it is risky, but so what? Let’s roll the dice.”

One of my favorite Tom Petty lines is this one: “Most things I worry about, Never happen anyway.” In other words, risk is real and it is foolish to not to worry about it, but we should not be captive to risk — especially when the risk is remote. This is a very old concept, and it is a wise one. It also is a skill that lawyers need to work on. Law students should take hard classes, even if it means risking their GPAs. Sure, it is possible, but so what? What’s the worst that will happen and, really, how likely is it? Applying the same principle, lawyers should be willing to try new things. Again, what’s the worst that might happen, and how likely is it? Life is too short to be hostage to risk — “If you spend a lot of time thinking about your career, you don’t have one.”

Anyway, enough armchair philosophy. Enjoy this instead.

* If you are interested in great Petty songs that are not as famous, here’s a list (note, there are no songs from Full Moon Fever and Wildflowers; if you don’t own both of this albums, stop reading D.C. Circuit Review — Reviewed immediately and go purchase them):

Hometown Blues.

Magnolia.

Louisiana Rain.

Straight into Darkness.

Angel Dream (No. 2).

Both versions of Trailer.

Up in Mississippi Tonight.

Travelin.

The Kneeling Drunkard’s Plea.

You’re welcome.

 

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

Cite As: Author Name, Title, Yale J. on Reg.: Notice & Comment (date), URL.

Leave a Reply

Your email address will not be published. Required fields are marked *