Tennessee v. U.S. Dep't of Agric.

• Docket Number: Case No. 3:22-cv-257
• Decision Date: 29 March 2023
• Citation: 665 F.Supp.3d 880
• Parties: The State of TENNESSEE, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

665 F.Supp.3d 880

The State of TENNESSEE, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants.

Case No. 3:22-cv-257

United States District Court, E.D. Tennessee, Northern Division, at Knoxville

Filed March 29, 2023

Andree S. Blumstein, Sherrard & Roe, PLC, Nashville, TN, Clark Lassiter Hildabrand, James Matthew Rice, Brandon James Smith, State of Tennessee, Office of Attorney General, Nashville, TN, Travis J. Royer, K & L Gates, LLP (Pittsburgh) Office of the Solicitor General, Pittsburgh, PA, for Plaintiff State of Tennessee.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Edmund G. LaCour, Jr., State of Alabama Office of the Attorney General Office of the Attorney General, Montgomery, AL, for Plaintiff State of Alabama.

Charles E. Brasington, Alaska Department of Law, Anchorage, AK, Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Justin Nelson, Office of the Attorney General—State of Alaska, Juneau, AK, for Plaintiff State of Alaska.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Nicholas J. Bronni, Office of the Arkansas Attorney General, Little Rock, AR, for Plaintiff State of Arkansas.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Drew F. Waldbeser, Office of the Georgia Attorney General, Atlanta, GA, Stephen John Petrany, Georgia Department of Law, Atlanta, GA, for Plaintiff State of Georgia.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Melinda Holmes, Thomas Molnar Fisher, Office of the Indiana Attorney General, Indianapolis, IN, for Plaintiff State of Indiana.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Kurtis K. Wiard, Office of the Kansas Attorney General, Topeka, KS, for Plaintiff State of Kansas.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Marc Manley, Office of the Kentucky Attorney General, Frankfort, KY, for Plaintiff Commonwealth of Kentucky.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Elizabeth B. Murrill, Joseph Scott St. John, Office of the Attorney General, Louisiana Dept. of Justice, Baton Rouge, LA, for Plaintiff State of Louisiana.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Justin L. Matheny, Office of the Attorney General, Jackson, MS, for Plaintiff State of Mississippi.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Dean John Sauer, James Otis Law Group, LLC, St. Louis, MO, for Plaintiff State of Missouri.

Christian Brian Corrigan, Montana Department of Justice Office of the Attorney General, Helena, MT, Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, David M.S. Dewhirst, Idaho Attorney General's Office Montana Department of Justice, Boise, ID, for Plaintiff State of Montana.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Eric J. Hamilton, Pro Hac Vice, James A. Campbell, Office of the Nebraska Attorney General Office of the Nebraska Attorney General, Lincoln, NE, for Plaintiff State of Nebraska.

Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Sylvia May Mailman, Office of the Ohio Attorney General, Cleveland, OH, for Plaintiff State of Ohio.

Bryan Cleveland, Oklahoma State Department of Education, Litigation Division, Oklahoma City, OK, Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, for Plaintiff State of Oklahoma.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, James Emory Smith, Jr., Office of the Attorney General, Columbia, SC, for Plaintiff State of South Carolina.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Paul Swedlund, Office of the Attorney General South Dakota, Pierre, SD, for Plaintiff State of South Dakota.

Aaron Rietz, Office of the Attorney General, General Litigation Division, Austin, TX, Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, for Plaintiff State of Texas.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Melissa Holyoak, Office of the Utah Attorney General, Salt Lake City, UT, for Plaintiff State of Utah.

Andrew N. Ferguson, Office of the Attorney General, Richmond, VA, Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Lucas W.E. Croslow, Sidley Austin LLP, Washington, DC, for Plaintiff Commonwealth of Virginia.

Clark Lassiter Hildabrand, State of Tennessee, Office of Attorney General, Nashville, TN, Lindsay S. See, WV Attorney General's Office, Charleston, WV, for Plaintiff State of West Virginia.

Cody Taylor Knapp, DOJ-Civ, Washington, DC, Jonathan D. Kossak, District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

TRAVIS R. McDONOUGH, UNITED STATES DISTRICT JUDGE

Do the Food and Nutrition Act of 2008, 7 U.S.C. § 2011, et seq. ("FNA"), and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. ("Title IX"), permit states to categorically refuse poor people federally funded food-assistance benefits based on gender identity? Do these statutes permit states to conceal from the public that such discrimination may violate federal law? Does a regulation interpreting these statutes to prohibit such food-assistance discrimination upend everything from free speech and religious freedom to living facilities and sports teams? On all counts, Plaintiff States¹ insist they do, but the Court disagrees.

Before the Court are Plaintiff States' motion for preliminary injunction (Doc. 2) and Defendants' motion to dismiss (Doc. 70). For the following reasons, Defendants' motion to dismiss (Doc. 70) will be GRANTED, and Plaintiff States' motion for preliminary injunction (Doc. 2) will be DENIED.

I. BACKGROUND

A. Executive Order 13,988

In Bostock v. Clayton County, Georgia, — U.S. —, 140 S. Ct. 1731, 207 L.Ed.2d 218 (2020), the United States Supreme Court held that Title VII of the Civil Rights Act of 1964's ("Title VII") prohibition on discrimination "because of ... sex" includes discrimination on the basis of gender identity and sexual orientation. In light of the Supreme Court's ruling in Bostock, on January 20, 2021, President Biden issued an executive order instructing agencies to review their regulations and other agency actions to evaluate whether any such actions may be inconsistent with Title VII or other statutory prohibitions on sex discrimination, including sexual-orientation and gender-identity discrimination. Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, 86 Fed. Reg. 7,023 (Jan. 20, 2021) [hereinafter "Executive Order 13,988"]. Executive Order 13,988 set forth the following review process:

(a) The head of each agency shall, as soon as practicable and in consultation with the Attorney General, as appropriate, review all existing orders, regulations, guidance documents, policies, programs, or other agency actions ("agency actions") that:

(i) were promulgated or are administered by the agency under Title VII or any other statute or regulation that prohibits sex discrimination, including any that relate to the agency's own compliance with such statutes or regulations; and

(ii) are or may be inconsistent with the policy set forth in section 1 of this order [interpreting statutory prohibitions on sex discrimination to prohibit gender-identity and sexual-orientation discrimination].

(b) The head of each agency shall, as soon as practicable and as appropriate and consistent with applicable law, including the Administrative Procedure Act (5 U.S.C. 551 et seq.), consider whether to revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination and the policy set forth in section 1 of this order.

(c) The head of each agency shall, as soon as practicable, also consider whether there are additional actions that the agency should take to ensure that it is fully implementing the policy set forth in section 1 of this order. If an agency takes an action described in this subsection or subsection (b) of this section, it shall seek to ensure that it is accounting for, and taking appropriate steps to combat, overlapping forms of discrimination, such as discrimination on the basis of race or disability.

(d) Within 100 days of the date of this order, the head of each agency shall develop, in consultation with the Attorney General, as appropriate, a plan to carry out actions that the agency has identified pursuant to subsections (b) and (c) of this section, as appropriate and consistent with applicable law.

Id. at 7023-24. Defendant United States Department of Agriculture ("USDA") conducted its review in accordance with Executive Order 13,988 and, therefore, examined the nondiscrimination provisions governing the programs and activities it funds. See Memorandum from Roberto Contreras, Director of the Civil Rights Division of the Food and Nutrition Service, CRD 01-2022, Application of Bostock v. Clayton County to Program Discrimination Complaint Processing — Policy Update (May 5, 2022), https://www.fns.usda.gov/cr/crd-01-2022 (on file with USDA) [hereinafter "May 5 Memo"].

B. SNAP and SNAP-Ed

One such program, administered and funded by the USDA's subagency, the Food and Nutrition Service ("FNS"), is the Supplemental Nutrition Assistance Program ("SNAP"). 7 U.S.C. §§ 2012(p), 2020. The purpose of SNAP is "[t]o alleviate [] hunger and malnutrition," and it "permit[s] low-income households to obtain a...