Thomas v. Dep't of Educ. (In Re Thomas)

Case: 18-11091 Document: 00515055252 Page: 1 Date Filed: 07/30/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-11091 FILED

July 30, 2019

Lyle W. Cayce

In the Matter of: VERA FRANCES THOMAS Clerk

Debtor

VERA FRANCES THOMAS,

Appellant

v.

DEPARTMENT OF EDUCATION,

Appellee

Appeal from the United States District Court

for the Northern District of Texas

Before JONES, HO, and OLDHAM, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Thomas challenges the bankruptcy court’s denial of discharge

of her student loan debt pursuant to 11 U.S.C. § 523(a)(8). This court, like the

bankruptcy and district courts, is bound by our previous interpretation of the

discharge provision in In re Gerhardt, 348 F.3d 89 (5th Cir. 2003). Finding no

error, we AFFIRM.

I. Factual Background

Vera Frances Thomas, the Appellant, is over 60 years old and had to file

a Chapter 7 bankruptcy case in 2017. Ms. Thomas suffers from diabetic

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neuropathy, a degenerative condition that causes pain in her lower

extremities. Ms. Thomas is now unemployed and subsists on a combination of

public assistance and private charity. In February 2012, however, she had

worked for eight years at a call center in Southeastern Virginia and was

earning $11.40 per hour with benefits. That year, Ms. Thomas decided to

enroll at a local community college to improve her career prospects (she had a

high school diploma, but no higher education credits). She obtained two $3,500

loans through the Department of Education, the first on February 14, 2012 and

the second on September 21, 2012 to finance her first two semesters of courses.

Ms. Thomas did not return for a third semester, and her loans went into

repayment in December 2013. In spring 2014, she made payments of $41.24

and $41.61 on the loans.

Ms. Thomas’s health began to decline significantly in 2014 when she was

diagnosed with diabetic neuropathy. The condition, which often reduces

circulation in patients’ lower extremities, caused muscle weakness, numbness,

and pain in her legs and feet after prolonged standing. Ms. Thomas frequently

took unpaid leave from work at the call center to manage her symptoms and

incurred significant medical expenses. In 2016, her employer was acquired by

another company, and the new employer fired her for violating company

policies. Because she was terminated for cause, Ms. Thomas was ineligible for

unemployment benefits.

To defray costs, Ms. Thomas moved to Texas to live with her then-

boyfriend. She obtained work with Perfumania, then Whataburger, and finally

UPS. But each job required her to be on her feet, and she could not maintain

these positions. Since quitting UPS in 2017, Ms. Thomas has not obtained

employment that comports with her need for sedentary work.

Unable to make payments on her student loans and other significant

debts, Ms. Thomas filed Chapter 7 bankruptcy in Dallas and received a general

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discharge of her debts. Seeking a discharge of her student loan debt as well,

Ms. Thomas initiated an adversary complaint in bankruptcy court against the

Department of Education.

II. Procedural Background

To discharge student loan debt under the Bankruptcy Code, a debtor

must show that the debt would impose an “undue hardship” on the debtor if it

is not discharged. 11 U.S.C. § 523(a)(8). 1 In In re Gerhardt, 348 F.3d 89 (5th

Cir. 2003), this court adopted the three-prong test for evaluating “undue

hardship” claims established by the Second Circuit in Brunner v. New York

State Higher Education Service Corp., 831 F.2d 395 (2d Cir. 1987). To justify

the discharge of student loan debt under this test, a debtor must prove:

(1) that the debtor cannot maintain, based on current income and

expenses, a ‘minimal’ standard of living for [herself] and [her]

dependents if forced to repay the loans; (2) that additional

circumstances exist indicating that this state of affairs is likely to

persist for a significant portion of the repayment period of the

student loans; and (3) that the debtor has made good faith efforts

to repay the loans.

Gerhardt, 348 F.3d at 91 (quoting Brunner, 831 F.2d at 396).

The bankruptcy court held a trial to review Ms. Thomas’s complaint,

applied Gerhardt, and determined that “Ms. Thomas has not met her burden

of showing undue hardship under the controlling standard in the Fifth Circuit

. . . .” The bankruptcy court concluded that she had satisfied the first prong of

Brunner—showing an inability to maintain a minimal standard of living if

forced to repay the loan—because her monthly expenses ($640) exceeded her

monthly income ($194). Ms. Thomas failed to pass Brunner’s second standard,

1 This provision states: “A discharge under section 727…of this title does not discharge

an individual debtor from any debt … unless excepting such debt from discharge under this

paragraph would impose an undue hardship on the debtor and the debtor’s dependents, for-

--[enumerated government-backed and other student loans].” 11 U.S.C.

§ 523(a)(8).

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however, because she “conceded that she is unable to show she is completely

incapable of employment now or in the future;” she admitted that she could not

establish that her present state of affairs would persist for a significant portion

of the loans’ repayment period.

The bankruptcy court noted that the exceptionally demanding second

prong of Brunner requires more than a showing of dire financial straits because

the debtor must show that circumstances out of her control have resulted in a

“total incapacity” to repay the debt now and in the future. (quoting Gerhardt,

348 F.3d at 92). Moreover, the court observed that such situations are so rare

that “in fifteen years on the bench, the undersigned judge has never discharged

a student loan over the objection of the lender.” Having concluded that

Ms. Thomas could not satisfy the second Brunner prong, the court did not reach

a conclusion regarding the third prong.

Ms. Thomas appealed the bankruptcy court’s decision to the federal

district court, which affirmed essentially for the reasons stated by the

bankruptcy court. Despite ruling that her student loans were non-

dischargeable, both courts indicated sympathy for Ms. Thomas and their

discomfort with the demanding nature of the Brunner/Gerhardt test.

Ms. Thomas has appealed to this court.

III. Discussion

This court “review[s] the decision of a district court, sitting as an

appellate court, by applying the same standards of review to the bankruptcy

court’s finding of fact and conclusions of law as applied by the district court.”

In re Gerhardt, 348 F.3d at 91 (citation omitted). Consequently, the

“bankruptcy court’s findings of fact are reviewed for clear error and conclusions

of law are reviewed de novo.” Id. (citation omitted). An undue hardship

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determination under Gerhardt poses a question of law and is reviewed de novo.

Id. (citations omitted).

Ms. Thomas principally contends that the Brunner/Gerhardt test is

inconsistent with the plain meaning of the term “undue hardship” in

§ 523(a)(8) and urges this court to adopt a “totality of the circumstances” test

instead. As she concedes, this court is bound by Gerhardt until an en banc

panel of this court or the Supreme Court opts to alter our interpretation of

§ 523(a)(8). And despite Ms. Thomas’s challenges to its framework, the

Brunner test reflects the majority view of this discharge-limiting provision

among the circuit courts. Compare In re Faish, 72 F.3d 298 (3d Cir. 1995); In

re Frushour, 433 F.3d 393 (4th Cir. 2005); In re Oyler, 397 F.3d 382 (6th Cir.

2005); In re Roberson, 999 F.2d 1132 (7th Cir. 1993); In re Pena, 155 F.3d 1108

(9th Cir. 1998); Educ. Credit Mgmt. Corp. v. Polleys, 356 F.3d 1302 (10th Cir.

2004); In re Cox, 338 F.3d 1238 (11th Cir. 2003) (all adopting the Brunner test),

with Long v. Educ. Credit Mgmt. Corp. (In re Long), 322 F.3d 549, 554 (8th Cir.

2003) (holding that the statutory language of § 523(a)(8) contains “inherent

discretion” and that “fairness and equity require each undue hardship case to

be examined on the unique facts and circumstances that surround the

particular bankruptcy”).

The government does not challenge the bankruptcy court’s finding that

Ms. Thomas satisfied the first prong of the Brunner test because she cannot

maintain a minimal living standard if forced to repay the student loans. We

accept that finding for present purposes. Nor need we opine, despite the

government’s urging, on the third Brunner prong, which evaluates

Ms. Thomas’s good faith efforts to repay the loan. 2 Thus, the controlling

2 The government’s position is based on various avenues by which a student loan

debtor may seek reduction of payments, modifications of the terms, and in some instances

outright cancellation of all or part of the debts. Ms. Thomas availed herself of none of these

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inquiry here is whether Ms. Thomas demonstrated that due to external

circumstances beyond her control, i.e., her deteriorating diabetic conditions

and the costs associated with it, she is unable to maintain employment and is

unlikely to ever be able to repay the debt. Phrased in terms of

Brunner/Gerhardt, the question is whether because of external factors, her

present inability to pay her student loans and maintain a minimal standard of

living will persist throughout a significant portion of the loan repayment

period.

The answer to this question must be negative. Ms. Thomas’s argument

that she meets the second Brunner prong is contradicted by the record.

Foremost, she is, by her own admission, capable of employment in sedentary

work environments. Second, her actual employment experience demonstrates

that after losing the call center job, she was hired by three different employers,

although she quit when they were unable to accommodate her need to remain

sedentary for periods of time during her shifts. Finally, she lost her job at the

call center not because of physical problems beyond her control but for a

violation of company policies.

In sum, there is no evidence that Ms. Thomas’s present circumstances,

difficult as they are, are likely to persist throughout a significant portion of the

loans’ repayment period. Under the standard adopted by this court and the

vast majority of other circuit courts, Ms. Thomas is not eligible for a discharge

of her student loans.

IV. Critiques of Brunner and Gerhardt

Although the lower courts’ decision must be affirmed in light of our

governing authority, Ms. Thomas, along with an amicus, expends much of her

alternatives. The lower courts, however, did not make findings or conclusions based on this

prong of the Brunner/Gerhardt test.

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briefing on an extended critique of Brunner/Gerhardt and a plea that these

decisions be reevaluated. She argues that Brunner is no longer good law

because the court failed to engage in the close textual analysis that, accurately

conducted, would have substantially ameliorated the debtor’s burden to show

“undue hardship.” Ms. Thomas further argues that Brunner, if good law at all,

should only be applied to “unsympathetic” student loan default debtors.

Finally, Ms. Thomas contends that from a practical and policy standpoint,

Brunner no longer suits the times.

These critiques are unconvincing in view of both the text of § 523(a)(8)

and the context in which the provision was created and amended. Congress

has amended federal bankruptcy law on several occasions, increasing the

threshold for student loan discharges each time, before finally settling on an

“undue hardship” standard. Before 1976, student loans were easily

dischargeable. Abuses of the readily available discharge occurred. That year,

Congress passed amendments to the Higher Education Act of 1965 requiring

student loans to have been in repayment status for at least five years before

they could be discharged, unless the debtor could show that repayment would

cause undue hardship. Pub. L. 94-482 (Oct. 12, 1976). Section 523(a)(8) was

formally created two years later and incorporated essentially the same terms

contained in the Education Amendments of 1976. Pub. L. 95-598 (Nov. 6,

1978). See, e.g., In re Pelkowski, 990 F.2d 737, 742─43 (3d Cir. 1993) (“It is

undisputed that section 523(a)(8) was enacted in response to the belief that

students were taking advantage of the loan program,” and the provision’s

passage “focused on the twin goals of rescuing the student loan program from

fiscal doom and preventing abuse of the bankruptcy process by undeserving

debtors”).

In 1990, Congress changed the law again, extending the required

repayment period from five years to seven years prior to discharge and

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eliminating the dischargeability of government service scholarships by

students who failed to meet their obligations. 3 Pub. L. 101-647 (Nov. 29, 1990).

Finally, in response to the growing trend of commercial lending, Congress

amended the Bankruptcy Code yet again in 2005 to make qualified private

student loans harder to discharge, prohibiting discharge in all cases, unless

repayment would create “undue hardship” for the debtor. Pub. L. 109-8

(April 20, 2005). Section 523(a)(8) as it stands today excepts virtually all

student loans from discharge unless requiring repayment would “impose an

undue hardship on the debtor and the debtor’s dependents . . . .” Congress’s

series of amendments clearly evinces an intent to limit bankruptcy’s use as a

means of offloading student loan debt except in the most compelling

circumstances.

This trend is captured in the plain text of § 523(a)(8). When interpreting

statutes, “[w]ords are to be understood in their everyday meanings—unless the

context indicates that they bear a technical sense.” SCALIA & GARNER,

READING LAW: THE INTERPRETATION OF LEGAL TEXTS, 69 (2012). The Oxford

English Dictionary defines “undue” as “going beyond what is appropriate,

warranted, or natural” or “excessive.” Undue, Oxford English Dictionary

(OED) (3d ed., Mar. 2014). “Hardship” is defined as “a state of want or

privation.” Hardship, OED (3d ed., Mar. 2014). The plain meaning of the

words chosen by Congress is that student loans are not to be discharged unless

requiring repayment would impose intolerable difficulties on the debtor. The

threshold by definition must be greater than the ordinary circumstances that

3 That amendment came on the heels of litigation in the Eighth Circuit in which a

medical student accepted a government scholarship from the Physician Shortage Area

Scholarship Program on the condition that he work in an underserved area after graduation.

The student did not comply with the conditions of the scholarship after he graduated, and

when the government sought to recoup the money, the student filed for bankruptcy. U.S.

Dep’t Health & Human Servs. v. Smith, 807 F.2d 122 (8th Cir. 1986).

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might force one to seek bankruptcy relief. 4 As the Freshour court explained,

“Inability to pay one’s debts by itself cannot be sufficient; otherwise all

bankruptcy litigants would have undue hardship. The exception would

swallow the rule, and Congress’s restriction would be meaningless.” In re

Freshour, 433 F.3d at 399. This is the genesis of the Brunner/Gerhardt

standard, which inquires whether requiring a debtor to repay a student loan

is likely to prevent the debtor from maintaining a minimal standard of living

over the course of the repayment period despite good faith efforts to fulfill her

obligations.

Ms. Thomas attempts a false analogy between the term “undue

hardship” as used to cabin discharges of student loans and the same term as

applied to court approvals of voluntary reaffirmation agreements for individual

debts by pro se debtors. See 11 U.S.C. § 524(c)(6)(A) (a court may approve such

agreements only if “in the best interest of the debtor” and the agreement will

not impose “undue hardship”). The student loan provision places the burden

on the debtor to show undue hardship, while the latter provision requires close

supervision by the bankruptcy court to protect the debtor as a pro se litigant

4 Indeed, the general test for seeking bankruptcy relief is simply a person’s inability

generally to pay his debts as they come due. See generally 2 Alan N. Resnick & Henry J.

Sommer, COLLIER ON BANKRUPTCY ¶ 109.09 (16th 2019). A debtor’s good faith in seeking

relief is a premise of the powerful relief that bankruptcy offers—the opportunity of a fresh

start enforced by an injunction barring creditors’ collection efforts. See In re Little Creek Dev.

Co., 779 F.2d 1068, 1071 (5th Cir. 1986) (“Every bankruptcy statute since 1898 has

incorporated literally, or by judicial interpretation, a standard of good faith for the

commencement, prosecution, and confirmation of bankruptcy proceedings.”) (citations

omitted). See also Harris v. Viegelahn, 135 S. Ct. 1829, 1838 (2015) (noting that conversions

from Chapter 13 bankruptcy proceedings to Chapter 7 proceedings must be initiated in good

faith). But such inability, coupled with good faith, does not require a bankruptcy court to

find the debtor suffers from “undue hardship” as a prerequisite to filing.

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from herself or from wheedling creditors. Taken in context, the terms are not

inconsistent.

No doubt because so many student loans are ultimately backed by the

taxpayers, Congress intended to make student loan debt harder to discharge

than other types of consumer debt, and the courts’ adoption of a linguistically

accurate and demanding standard fulfills that intent. The consequence of the

Brunner/Gerhardt test is that sympathetic debtors like Ms. Thomas are held

to the same standard as debtors who are less sympathetic. But that is an

outcome for Congress to address, should it desire. The text of § 523(a)(8) draws

no distinction between debtors perceived as sympathetic or unsympathetic. It

is undoubtedly true that each case of claimed “undue hardship” must be

examined on its own facts, but reducing the Brunner/Gerhardt test to a

nebulous “totality of the circumstances” standard risks creating intolerable

inconsistency of results. The proposed weaker standard would inevitably

judicially expand an area of bankruptcy law that Congress has unambiguously

sought to constrict.

We also reject Ms. Thomas’s description of the present state of the law

as “time-clad,” that is, rendered obsolete by intervening events. Such events,

she contends, include Congress’s strengthening of collection remedies against

student loan debtors to include measures like garnishment and interception of

tax refunds, and the ever-increasing amount of student loan debt amassed in

recent years. Of course, as the government observes, enhanced collection

remedies are rendered useless if the circumstances affording bankruptcy

discharge of student loans are broadened. And the fact that student loans are

now mountainous in quantity poses systemic issues far beyond the capacity or

authority of courts, which can only interpret the written law. Moreover, that

Congress understands § 523(a)(8) to proscribe student loan discharges in all

but the most severe circumstances is evidenced by proposed amendments

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submitted in 2015, 2017, and 2019 that seek “to make student loans

dischargeable.” See H.R. 449 (Jan. 21, 2015); H.R. 2366 (May 4, 2017);

H.R. 770 (Jan. 24, 2019). Ultimate policy issues raised by Ms. Thomas and the

amicus are for Congress, not the courts.

For these reasons, the Brunner standard articulated by the Second

Circuit and adopted by this court in Gerhardt and by the majority of other

courts of appeals is supported by the plain meaning of § 523(a)(8) and bolstered

by the context in which this provision arose. Policy-based arguments do not

change this interpretation; the role of this court is to interpret the laws passed

by Congress, not to set bankruptcy policy.

V. Conclusion

The judgments of the bankruptcy court and the district court denying

discharge are AFFIRMED.

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