• Advisory Opinion 2021-002 (pdf)

December 4, 2021

QUESTION PRESENTED

Whether the Legal Services Corporation (LSC) has authority under Section 501(a)(2)(A) of Public Law 104-134, as amended by Public Law 113-6, to impose increases or decreases in Basic Field Grant funding resulting from the statutorily required triennial adjustment over a multi-year period.

BRIEF ANSWER

No, LSC does not have the authority to phase in the triennial funding adjustments. Congress amended Section 501(a)(2)(A) to require LSC to allocate Basic Field Grant funds in an “equal [amount] per individual in poverty for all geographic areas, as determined triennially by the Bureau of the Census[.]” Pub. L. 113-6, 127 Stat. 198, 268 (2013). At the same time, Congress stated that “with respect to fiscal year 2013, the change in allocation resulting from the amendment made to this subparagraph . . . shall be only half of the change which would otherwise result from that amendment in order to phase in the change over a 2 year period[.]” Id. Because Congress provided no other justification for extending the time in which LSC could implement funding changes resulting from the triennial adjustment, standard principles of statutory interpretation lead to the conclusion that LSC lacks the authority to extend the period over which it imposes the changes.

BACKGROUND AND APPLICABLE LAW

Beginning in 1996, Congress directed LSC to allocate Basic Field Grant funds to its grantees “so as to provide . . . an equal figure per individual in poverty for all geographic areas, as determined on the basis of the most recent decennial census of population conducted pursuant to section 141 of title 13, United States Code.” Pub. L. 104-134, sec. 501(a)(2)(A), 121 Stat. 1321, 1321-51 (1996). Consistent with that direction and subsequent to the administration of the decennial census in 2000, LSC adjusted the funding awards to each grantee based on the proportional increases or decreases in the number of individuals living in poverty in each grantee’s service area. LSC implemented the funding adjustments in 2003, the first funding cycle after the necessary data from the 2000 census was available. See 67 Fed. Reg. 63942, 63943 (Nov. 15, 2002).

For the following decennial census in 2010, the U.S. Census Bureau significantly shortened the form used to collect information. Relevantly, the Census Bureau eliminated the questions used to determine the poverty population for each state and territory. See Index of Questions, 2010, U.S. Census Bureau, https://www.census.gov/history/www/through_the_decades/index_of_questions/2010.html. Instead, the Census Bureau began collecting that information through its annual American Community Survey, a practice the Census Bureau continues today. Seeid. Because LSC could not use the 2010 decennial census information to recalculate the poverty population for each grantee’s service area, LSC had to both identify a new data source that would allow it to make funding calculations consistent with the requirement in Section 501(a)(2)(A) and ask Congress to amend Section 501(a)(2)(A) to permit LSC to use the new data source.

In 2011, after considering a range of potential data sources and time frames for adjusting Basic Field Grant allocations to most accurately reflect the poverty population in each grantee’s service area, LSC Management recommended to its Board of Directors (“Board”) a proposal to ask Congress to amend Section 501(a)(2)(A) so that the number of individuals in poverty in each geographic area could be determined by the U.S. Census Bureau, without any reference to the decennial census and the first reallocation could be phased in over two years, in FY 2013 and FY 2014.

The Board adopted Management’s recommendations. See Resolution 2011-014, “On Proposing Changes to the LSC FY 2013 Appropriation Language to Reflect New Poverty Data from the U.S. Census Bureau and Related Distribution of LSC Funds,” adopted Sept. 19, 2011. Notably absent from the Resolution is any indication of interest on the part of Management or the Board to give LSC authority to phase in funding adjustments for reasons other than mitigating the burden on grantees in the initial years of transition to triennial adjustments.

Congress adopted LSC’s proposed amendments. In the Fiscal Year 2013 appropriations statute, Congress struck the language requiring LSC to use decennial census data to reallocate basic field grant funding. Congress replaced the original text of Section 501(a)(2)(A) with the following language:

(A) except as provided in subparagraph (B), an equal figure per individual in poverty for all geographic areas, as determined triennially by the Bureau of the Census, except that, with respect to fiscal year 2013, the change in allocation resulting from the amendment made to this subparagraph by the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2013 shall be only half of the change which would otherwise result from that amendment in order to phase in the change over a 2 year period.

See Pub. L. 113-6, 127 Stat. 198, 268 (2013). Like LSC, Congress adopted a phase in period only for the initial years of transition from using the decennial census as the basis for making funding adjustments to the new triennial adjustment period.

ANALYSIS

Based on the plain language of the 2013 amendments to Section 501(a)(2)(A), LSC had authority to phase in the statutorily required funding adjustment only in fiscal years 2013 and 2014, the years identified in the amendments. Congress did not give LSC authority to phase in funding adjustments over a multi-year period for any subsequent years.

WILL A. GUNN
Vice President for Legal Affairs and General Counsel