Congressional Record, Volume 169 Issue 99 (Wednesday, June 7, 2023)

[Congressional Record Volume 169, Number 99 (Wednesday, June 7, 2023)]
[Senate]
[Pages S1998-S2000]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

GAO OPINION LETTER

Mr. MARSHALL. Mr. President, I ask unanimous consent that the
following GAO opinion letter be printed in the Congressional Record:

[[Page S1999]]

County to Program Discrimination Complaint Processing--Policy
Update
File: B-334411
Date: June 5, 2023.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Government

Accountability Office,

Washington, DC.

Decision

Matter of: U.S. Department of Agriculture, Food and Nutrition
Service--Applicability of the Congressional Review Act to
Food and Nutrition Service Policy Memorandum CRD 01-2022,
Application of Bostock v. Clayton County to Program
Discrimination Complaint Processing--Policy Update.
File: B-334411.
Date: June 5, 2023.

DIGEST

The U.S. Department of Agriculture, Food and Nutrition
Service (USDA/FNS) published a memorandum titled Application
of Bostock v. Clayton County to Program Discrimination
Complaint Processing--Policy Update (Update). GAO received a
request for a decision as to whether the Update is a rule for
purposes of the Congressional Review Act (CRA). CRA
incorporates the Administrative Procedure Act's (APA)
definition of a rule and requires that before a rule can take
effect, an agency must submit the rule to both the House of
Representatives and the Senate, as well as to the Comptroller
General. USDA/FNS did not submit a CRA report to Congress or
the Comptroller General on the Update.
The Update announced USDA/FNS's conclusion that the
prohibitions against sex discrimination in USDA/FNS-enforced
statutes prohibit discrimination on the basis of gender
identity and sexual orientation. Based on this conclusion,
the Update directed state agencies and program operators to
handle complaints alleging discrimination on the basis of
gender identity and sexual orientation as complaints of
prohibited sex discrimination. We conclude that the Update
meets CRA's definition of a rule and no CRA exception
applies. Therefore, the Update is subject to CRA's submission
requirement.

DECISION

On May 5, 2022, the U.S. Department of Agriculture, Food
and Nutrition Service (USDA/FNS) issued a memorandum titled
Application of Bostock v. Clayton County to Program
Discrimination Complaint Processing--Policy Update (Update),
available at https://www.fns.usda.gov/cr/crd-01-2022 (last
visited Apr. 14, 2023). We received a request for a decision
as to whether the Update is a rule for purposes of the
Congressional Review Act (CRA). Letter from Senators Roger
Marshall, Marsha Blackburn, John Barrasso, Tom Cotton, and
James Lankford, to the Comptroller General (June 16, 2022).
As discussed below, we conclude that the Update is a rule
subject to CRA's submission requirement.
Our practice when rendering decisions is to contact the
relevant agencies to obtain their legal views on the subject
of the request. GAO, Procedures and Practices for Legal
Decisions and Opinions, GAO-06-1064SP (Washington, D.C.:
Sept. 2006) (Procedures), available at https://www.gao.gov/
products/gao-06-1064sp. Accordingly, we reached out to USDA/
FNS to obtain the agency's legal views. Letter from Assistant
General Counsel, GAO, to General Counsel, USDA (July 13,
2022). Although USDA/FNS did not provide a substantive
response with its legal views due to ongoing litigation, we
determined we have sufficient information to issue a decision
on this matter. Letter from General Counsel, USDA, to
Assistant General Counsel, GAO (Aug. 4, 2022) (First Response
Letter); Letter from General Counsel, USDA, to Assistant
General Counsel, GAO (Oct. 20, 2022) (Second Response
Letter).

BACKGROUND

Prohibitions Against Sex Discrimination in USDA/FNS Programs
USDA/FNS administers federal programs to increase food
security and reduce hunger among children and low-income
people. USDA/FNS, Our Agency, About FNS, available at https:/
/www.fns.usda.gov (last visited Apr. 10, 2023). Laws such as
Title IX of the Education Amendments of 1972, as amended, 20
U.S.C. Sec. 1681-1688, and the Food and Nutrition Act of
2008, as amended, 7 U.S.C. Sec. Sec. 2011 et seq., include
prohibitions against sex discrimination. Update at 1. USDA/
FNS enforces those prohibitions. Id. Moreover, where USDA/FNS
has delegated certain program responsibilities to states and
other nonfederal entities, these states and entities may
process complaints alleging sex discrimination. See, e.g., 7
C.F.R. Sec. 271.4 (assigning states the responsibility to
administer the Supplemental Nutrition Assistance Program
(SNAP)), Sec. 272.6 (states may process SNAP applicants'
discrimination complaints).
In the Update, USDA/FNS announced that it had reevaluated
the prohibitions on sex discrimination ``in all FNS
programs'' due to the Supreme Court's decision in Bostock v.
Clayton County, 590 U.S. __, 140 S. Ct. 1731 (2020). Update
at 1, 2. The Supreme Court in Bostock held that the
prohibition in Title VII of the Civil Rights Act of 1964
against sex discrimination in employment includes a
prohibition against discrimination on the basis of gender
identity and sexual orientation. Bostock, at 1741. ``In light
of Bostock,'' USDA/FNS explained in the Update that
``discrimination based on gender identity and sexual
orientation can [also] constitute prohibited sex
discrimination under Title IX [of the Education Amendments of
1972] and the Food and Nutrition Act.'' Update at 2. With
respect to Title IX, USDA/FNS indicated that it was
``adopting'' recent analyses by the Department of Justice
and the Department of Education, both of which had applied
Bostock to find that Title IX includes a prohibition
against discrimination based on gender identity and sexual
orientation. With respect to the Food and Nutrition Act,
USDA/FNS said the Act's nondiscrimination provision is
``sufficiently similar'' to Title VII's nondiscrimination
language as to make Bostock's holding applicable. Id.
Based on the above determinations, the Update directed all
``State agencies and program operators'' who administer USDA/
FNS programs to ``expeditiously review their program
discrimination complaint procedures'' and ``make any changes
necessary to ensure complaints alleging discrimination on the
basis of gender identity and sexual orientation are processed
and evaluated as [sex discrimination] complaints.'' Update at
3. The Update further instructed state agencies to
``distribute [the Update] to local agencies, Program
Operators and Sponsors, and all other subrecipients of
Federal financial assistance.'' Id. Finally, the Update
``advised'' state agencies and program operators ``that the
interpretation outlined in [the Update] does not determine
the outcome in any particular case, which will depend on the
specific facts and circumstances of that case.'' Id.
The Congressional Review Act (CRA)
CRA, enacted in 1996 to strengthen congressional oversight
of agency rulemaking, requires federal agencies to submit a
report on each new rule to both houses of Congress and to the
Comptroller General for review before a rule can take effect.
5 U.S.C. Sec. 801(a)(1)(A). The report must contain a copy of
the rule, ``a concise general statement relating to the
rule,'' and the rule's proposed effective date. Id. CRA
allows Congress to review and disapprove federal agency rules
for a period of 60 days using special procedures. See 5
U.S.C. Sec. 802. If a resolution of disapproval is enacted,
then the new rule has no force or effect. 5 U.S.C.
Sec. 801(b)(1).
CRA adopts the definition of a rule under the
Administrative Procedure Act (APA), 5 U.S.C. Sec. 551(4),
which states that a rule is ``the whole or a part of an
agency statement of general or particular applicability and
future effect designed to implement, interpret, or prescribe
law or policy or describing the organization, procedure, or
practice requirements of an agency.'' 5 U.S.C. Sec. 804(3).
However, CRA excludes three categories of rules from
coverage: (1) rules of particular applicability; (2) rules
relating to agency management or personnel; and (3) rules of
agency organization, procedure, or practice that do not
substantially affect the rights or obligations of non-agency
parties. Id.
USDA/FNS did not submit a CRA report to Congress or the
Comptroller General on the Update. In its first response to
GAO, USDA/FNS asked us to ``withdraw [our] request for legal
information'' because of two pending lawsuits concerning the
Update. First Response Letter, at 1. When GAO informed USDA
that those lawsuits did not prevent us from carrying out our
responsibility to assist Congress, and that we would proceed
to issue a legal decision, USDA nevertheless ``respectfully
decline[d] to comment'' on the questions we posed. Second
Response Letter, at 1-2. Although USDA/FNS did not provide a
substantive response to GAO's inquiries concerning this
matter, we reviewed filings in the lawsuits identified in the
agency's First Response Letter to determine if the agency or
other parties raised arguments concerning the applicability
of CRA. We found no such arguments. Based on the factual
information and legal issues we reviewed, we determined we
have sufficient information to issue a decision on this
matter.

DISCUSSION

An agency action is subject to CRA if it meets the APA's
definition of a rule and no CRA exception applies. Because
the Update meets the APA's definition of a rule, and because
no CRA exception applies, the Update is subject to CRA's
submission requirement.
The Update meets the APA definition of a rule. It is an
agency statement issued by the FNS/Civil Rights Division to
the Regional and State Directors of all Food and Nutrition
Service programs. Update at 1. It has future effect because
it directs state agencies and program operators to ``make any
changes necessary'' to their complaint-handling processes and
``distribute this memorandum'' to additional personnel,
among other things. Id. at 3. It prescribes policy for
USDA/FNS, and all others implementing USDA/FNS programs,
by instructing ``that discrimination based on gender
identity and sexual orientation can constitute prohibited
sex discrimination under Title IX and the Food and
Nutrition Act. Id. at 2.
Additionally, none of CRA's exceptions apply:
First, the Update is not a rule of particular
applicability. Rules of particular applicability are those
addressed to specific, identified entities that address
actions that may or may not be taken, in light of the facts
and circumstances. B-334221, Feb. 9, 2023; B-333732, July 28,
2022. Here, by contrast, the Update is addressed to directors
in ``all regions'' and ``all states,'' and instructs them

[[Page S2000]]

to distribute the Update further to ``local agencies, Program
Operators and Sponsors, and all other subrecipients of
Federal financial assistance.'' Update at 1, 3. USDA/FNS
intended the Update to reach everyone implementing FNS
programs and instructed that it did not ``determine the
outcome in any particular case.'' Id. at 3. Thus, the Update
has general applicability. See, e.g., B-333732, July 28, 2022
(explaining that USDA Thrifty Food Plan updates addressed to
``all families'' lacked particular applicability).
Second, the Update is not a rule relating to agency
management or personnel. ``A rule falls within the CRA
exception for rules relating to agency management or
personnel if it relates to purely internal agency matters,
with no effect on non-agency parties.'' B-334221, Feb. 9,
2023. Here, the Update relates primarily to non-agency
parties. As discussed above, it is addressed to ``all state
directors'' of USDA/FNS programs, among others, and it
directs further distribution to other nonfederal entities.
Update at 1. The Update's stated purpose is to ``provide
direction to'' such non-agency parties, to ensure their
procedures comport with a USDA/FNS policy. Id. That policy,
moreover, concerns the rights of private households to have
their complaints of discrimination based on gender identity
and sexual orientation processed and evaluated as complaints
of discrimination based on sex. Id. at 3. Thus, the Update is
not a rule relating to agency management or personnel. See B-
333732, July 28, 2022 (USDA update to Thrifty Food Plan did
not qualify for CRA's second exception because it addressed
``the amount of SNAP benefits for qualifying families''), B-
333501, Dec. 14, 2021 (Centers for Disease Control and
Prevention (CDC) mask requirement did not qualify for CRA's
second exception because it addressed public travelers and
conveyance operators).
Third, and finally, the Update has a substantial impact on
the rights and obligations of non-agency parties. We have
recognized that agencies may meet the third CRA exception
when implementing ``new internal procedures'' to ensure
compliance with an ``existing statutory obligation.'' B-
330190, Dec. 19, 2018. Thus, in B-330190, we considered a
Department of Justice (DOJ) memorandum that adopted a zero
tolerance policy with regard to prosecuting certain
individuals who violated 8 U.S.C. Sec. 1325(a) by entering
the country illegally. Id. We found that DOJ's memo did not
``alter individual rights'' because there was no underlying
change in the legal rights of individuals crossing the
border. Id. Here, the Update purports merely to ``clarify''
existing requirements of anti-discrimination provisions.
Update, at 1. However, unlike in B-330190, the Update
forwards a novel interpretation of the law with respect to
USDA/FNS-enforced statutes.
Prior to Bostock, sex discrimination under Title VII of the
Civil Rights Act of 1964 was not universally understood to
include discrimination on the basis of gender identity and
sexual orientation; rather, the Supreme Court's decision
established that understanding as a matter of law. Bostock,
at 1741, 1754. Importantly, the Update itself is not even a
direct application of Bostock, but an extension of its
holding (in the Title VII context) to the context of USDA/
FNS-enforced statutes. The Update explains how USDA/FNS
``determined'' that discrimination on the basis of gender
identity and sexual orientation can constitute sex
discrimination under the statutes USDA/FNS enforces, and the
implication is that USDA/FNS had not reached or announced
that determination previously. Update at 3.
The Update does not qualify for CRA's third exception, as
it creates new policy and, in doing so, has a substantial
impact on the rights and obligations of non-agency parties.
See B-333732 at 5 (USDA Thrifty Food Plan update had
substantial impact by ``granting increased benefit
allotments'' to families); B-333501 at 5 (CDC mask
requirement had substantial impact by ``impos[ing] new
requirements on people who are traveling to wear masks'').
Namely, it expands the obligations of state agencies and
program operators by requiring them to ``review'' their
discrimination complaint procedures and ``make any changes
necessary.'' Update at 3. The Update also expands the rights
of FNS benefit applicants by requiring that an applicant's
complaint alleging discrimination on the basis of gender
identity and/or sexual orientation be processed and evaluated
as a complaint of discrimination based on sex, which was not
required prior to the Update.

CONCLUSION

The Update is a rule for CRA purposes because it meets the
APA's definition of a rule and no CRA exception applies.
Therefore, the Update is subject to CRA's requirement that it
be submitted to Congress before it can take effect.
Edda Emmanuelli Perez,
General Counsel.

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