Response to application from respondents Nebraska, et al. — Joseph R. Biden, President of the United States, et al., Petitioners v. Nebraska, et al.

Supreme Court briefNov 23, 2022

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No. 22A444

In the Supreme Court of the United States

J OSEPH R. B IDEN , J R ., P RESIDENT OF THE U NITED S TATES , ET AL.,

Applicants,

v.

STATE OF NEBRASKA, ET AL.,

Respondents.

On Application to Vacate Injunction Entered by the

United States Court of Appeals for the Eighth Circuit

RESPONSE TO APPLICATION TO VACATE INJUNCTION

ERIC S. SCHMITT

Attorney General of Missouri

D. JOHN SAUER

Solicitor General of Missouri

MICHAEL E. TALENT

Deputy Solicitor General of Missouri

MISSOURI ATTORNEY GENERAL’S

OFFICE

Post Office Box 899

Jefferson City, MO 65102

(314) 340-4869

michael.talent@ago.mo.gov

DOUGLAS J. PETERSON

Attorney General of Nebraska

JAMES A. CAMPBELL

Solicitor General of Nebraska

Counsel of Record

CHRISTIAN EDMONDS

Assistant Solicitor General of

Nebraska

OFFICE OF THE NEBRASKA

ATTORNEY GENERAL

2115 State Capitol

Lincoln, NE 68509

(402) 471-2682

jim.campbell@nebraska.gov

Counsel for Respondents

Additional Counsel Listed with Signature Block

TABLE OF CONTENTS

INTRODUCTION ...................................................................................... 1

STATEMENT ............................................................................................ 3

I.

Background on Student Loans......................................................... 3

II.

The HEROES Act ............................................................................. 5

III.

COVID-19 Pandemic and Student Loans ........................................ 6

IV.

The Mass Debt Cancellation ............................................................ 7

V.

Procedural History ......................................................................... 10

ARGUMENT ........................................................................................... 11

I.

The States are likely to succeed on the merits. ............................. 13

A.

The States have standing. .................................................... 13

1.

Missouri has standing due to the Cancellation’s

negative effect on MOHELA’s loan servicing. ............. 13

2.

The States have standing on other grounds................ 18

B.

The Cancellation exceeds the Department’s authority. ....... 22

C.

The Cancellation is arbitrary and capricious. ...................... 32

D.

The injunction is not overbroad. ........................................... 35

II.

The equities support the injunction............................................... 37

III.

If the Court thinks the application raises close questions, it

should leave the injunction in place and grant certiorari

before judgment. ............................................................................. 39

CONCLUSION ........................................................................................ 40

i

INTRODUCTION

The Administration is once again invoking the COVID-19 pandemic

to assert power far beyond anything Congress could have conceived.

Previously, this Court stopped CDC’s eviction moratorium. Ala. Ass’n of

Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021)

(per curiam). Later, it stayed OSHA’s vaccine-or-test mandate. NFIB v.

OSHA, 142 S. Ct. 661, 666–67 (2022) (per curiam). Now, while President

Biden publicly declares the pandemic over, the Secretary and Department of Education are using COVID-19 to justify the Mass Debt Cancellation—an unlawful attempt to erase over $400 billion of the $1.6

trillion in federal student-loan debt and eliminate all remaining loan

balances for roughly 20 million of 43 million borrowers.

The States of Nebraska, Missouri, Arkansas, Iowa, Kansas, and

South Carolina are likely to succeed in this challenge to the Cancellation.

The Higher Education Relief Opportunities for Students Act of 2003

(HEROES Act), Pub. L. No. 108-76, does not authorize this sweeping

action of great economic and political significance. The Act requires a

real connection to a national emergency. But the Department’s reliance

on the COVID-19 pandemic is a pretext to mask the President’s true goal

1

of fulfilling his campaign promise to erase student-loan debt. Hiding the

real motive, the agency attempts to connect the Cancellation to the

pandemic by citing current economic conditions supposedly caused by

COVID-19. But those conditions are not directly attributable to the pandemic, so the Department has failed to adequately link the Cancellation

to a national emergency.

In addition, the Act’s text and context demonstrate that its purpose

is to keep certain borrowers from falling into a worse position financially

in relation to their student loans. Yet the Secretary uses it here to place

tens of millions of borrowers in a better position by cancelling their loans

en masse. The Act does not allow the Secretary to effectively transform

federal student loans into grants. It is telling that the Secretary has

never before used the Act in this way.

The equities also weigh heavily against granting the application.

The Department can point to no emergency or imminent harm because,

just yesterday, the agency extended the payment pause on student loans

until the summer of 2023. Nor would lifting the injunction have any

practical effect since all the Department’s alleged injuries are independently caused by a separate judgment vacating the Cancellation in

2

another case. In contrast to the Department’s absence of any immediate

injury, lifting the injunction risks unleashing on the States a wave of

harms that could not be undone because of the Cancellation’s “irreversible impact.” App. 5a. Given this lopsided balance, the Court should

deny the Department’s request to vacate the Eighth Circuit’s injunction.

STATEMENT

I.

Background on Student Loans

The Higher Education Act (HEA) creates the Direct Loan Program.

20 U.S.C. §1087a et seq. Direct Loans are held by the Department and

serviced by non-federal entities. See D. Ct. Doc. 5-1, at 194–254. The

Higher Education Loan Authority of the State of Missouri (MOHELA)—

a “public instrumentality” of the State, Mo. Rev. Stat. §173.360, and part

of the Missouri Department of Higher Education and Workforce Development, §173.445—is one of those servicers. See D. Ct. Doc. 5-1, at 194–

254. MOHELA services loan accounts for borrowers in all 50 States. See

id. at 92–93.

The HEA also establishes the Federal Family Education Loan

(FFEL) Program. 20 U.S.C. §1071 et seq. FFEL loans are held by either

the Department or non-federal organizations. See D. Ct. Doc. 31-1, at 7–

3

10. Non-federal entities that hold FFEL loans—such as MOHELA and

the Arkansas Student Loan Authority (ASLA)—use them to secure bonds

and earn income. See D. Ct. Doc. 5-1, at 60, 66–67; D. Ct. Doc. 5-4, at 2,

¶6. Other institutions—like the Nebraska Investment Council (NIC),

which manages that State’s assets—invest in FFEL student-loan assetbacked securities (SLABS). See D. Ct. Doc. 5-2, at 1–2, ¶¶4–7. Federal

law allows borrowers to consolidate FFEL loans, which converts them

into Department-held Direct Loans. 34 C.F.R. §685.220.

The Secretary must “try to collect a claim . . . for money . . . arising

out of the activities of” the Department, which is to say he must collect

outstanding student-loan debt. 31 U.S.C. §3711(a)(1). When Congress

does not want the Secretary to collect on loans, it identifies specific

groups of borrowers eligible for loan cancellation. E.g., 20 U.S.C. §107810 ($5,000 in cancellation for teachers); 20 U.S.C. §1078-11 ($10,000 in

cancellation for service in areas of national need); 20 U.S.C. §1087ee

(percentage of cancellation for certain public service). Relatedly, when

Congress wants to give educational funds that students need not repay,

it establishes grant programs. See 20 U.S.C. §1070 et seq.

4

II.

The HEROES Act

Enacted in 2003, the HEROES Act permits the Secretary to “waive

or modify any statutory or regulatory provision applicable to the student

financial assistance programs” when “necessary in connection with a war

or other military operation or national emergency.”

20 U.S.C.

§1098bb(a)(1). To be authorized, the waiver or modification must also,

as relevant here, “be necessary to ensure that recipients of student financial assistance . . . who are affected individuals are not placed in a worse

position financially in relation to that financial assistance because of

their status as affected individuals.” §1098bb(a)(2)(A).

The HEROES Act’s congressional findings focus on affording relief

to people serving in the “military” for “our nation’s defense.” 20 U.S.C.

§1098aa(b)(1)–(6). The legislative history confirms the goal of relieving

active-duty military from “making student loan payments . . . while they

are away.” 149 Cong. Rec. at H2522 (Apr. 1, 2003) (Rep. Garrett).1

1 See also id. at H2524 (Rep. Isakson) (the Act ensures that the “loan

payments” of troops who “serve us in the Middle East and in Iraq” “are

deferred until they return”); id. at H2525 (Rep. Burns) (“The HEROES

bill would excuse military personnel from their Federal student loan

obligations while they are on active duty”); 153 Cong. Rec. at H10790

(Sept. 25, 2007) (Rep. Kline) (“This bill is specific in its intent to insure

that, as a result of a war or military contingency operation or national

5

III. COVID-19 Pandemic and Student Loans

As soon as the COVID-19 pandemic began, the Department invoked

the HEROES Act to pause payments and interest accrual on Department-held student loans. See 85 Fed. Reg. 79,856, 79,862–63 (Dec. 11,

2020). Congress quickly extended that forbearance through September

2020, see Pub. L. No. 116-136, §3513, and the Department later issued

repeated extensions that were set to expire on December 31, 2022, see 87

Fed. Reg. 61,512, 61,514 (Oct. 12, 2022). Yesterday, however, the Department extended forbearance again, and it is now scheduled to expire 60

days after (1) resolution of litigation over the Cancellation or (2) June 30,

2023, whichever is later. Department’s Press Release on Payment Pause

(Nov. 22, 2022), https://tinyurl.com/5n8z2tj9.

Earlier in the pandemic, Congress considered—but rejected—a

COVID-relief bill that would have discharged up to $10,000 in studentloan debt for some borrowers. H.R. 6800, 116th Cong. §150117(h) (2020).

In recent months, with COVID-19 subsiding, the President has declared

emergency, our men and women in uniform are protected.”); id. (Rep.

McKeon) (“What this bill does is allow the Secretary of Education to

accommodate the unique needs of our student soldiers”).

6

“[t]he pandemic . . . over.” 60 Minutes, Twitter (Sept. 18, 2022), https://

tinyurl.com/2s35maau.

IV. The Mass Debt Cancellation

Meanwhile, on August 24, 2022, the Department announced its

Mass Debt Cancellation. D. Ct. Doc. 5-3, at 4. The Administration explained that President Biden had “promised to provide targeted student

debt relief” “[d]uring the [2020 presidential] campaign” and was now

“following through.” Id. at 29. In an accompanying memorandum, the

Department revoked its prior view that it cannot cancel student-loan

debt, see Memorandum from Rubinstein to DeVos 6 (Jan. 12, 2021),

https://tinyurl.com/3kp29ys6 (Jan. 2021 Memo), and claimed such power

for the first time, see 87 Fed. Reg. 52,943, 52,943–45 (Aug. 30, 2022).

The Congressional Budget Office estimates that the Cancellation

will eliminate $430 billion of the $1.6 trillion in federal student-loan debt.

CBO Sept. 26, 2022 Letter at 3, https://tinyurl.com/2p95x8kk. Other

analyses project that the costs will approximate $519 billion. D. Ct. Doc.

5-3, at 23. Of the 43 million borrowers who still owe money, see CBO

Sept. 26, 2022 Letter, supra, at 3, over 40 million will be eligible for the

7

Cancellation, and nearly 20 million “will have their debt completely

canceled,” D. Ct. Doc. 5-3, at 31.

The Cancellation applies to Department-held loans, including

Direct, FFEL, and Perkins. 87 Fed. Reg. at 61,514. To be eligible, borrowers must have had “an Adjusted Gross Income (AGI) below $125,000

for an individual taxpayer or below $250,000 for borrowers filing jointly

. . . in either the 2020 or 2021 Federal tax year.” Ibid. (emphasis added).

These income cutoffs include most borrowers because 93 percent of

American households earn less than $250,000 annually. See Household

Income Percentiles, DQYDJ, https://tinyurl.com/vrks5mps. The Department will cancel up to $20,000 for eligible borrowers who received a Pell

grant and $10,000 for those who did not. 87 Fed. Reg. at 61,514. Borrowers can apply until December 31, 2023. D. Ct. Doc. 31-1, at 5.

The Cancellation’s details initially appeared only on the Department’s website. At that time, the website told “borrowers with privately

held federal student loans,” including FFEL loans, that they can receive

the Cancellation “by consolidating these loans into the Direct Loan program.” D. Ct. Doc. 5-3, at 9. This incentivized borrowers to consolidate

those loans. See D. Ct. Doc. 5-4, at 2, ¶7. Then on September 29, 2022—

8

the day the States filed suit—the Department edited its website to say

that borrowers with non-federally held FFEL loans can no longer become

eligible “by consolidating . . . into Direct Loans,” but that those who

“applied to consolidate” before that date remain “eligible.” D. Ct. Doc. 311, at 9. The Department has never explained this change, but by all

accounts, it was a ploy to avoid judicial review because entities holding

and investing in FFEL loans were “widely seen . . . inside . . . the

administration[] as presenting the greatest legal risk” to the Cancellation. Michael Stratford, Biden Administration Scales Back Student

Debt Relief for Millions Amid Legal Concerns, Politico (Sept. 29, 2022),

https://tinyurl.com/2hexr9cf.

The Department did not publicly disclose its justification for the

Cancellation until it filed the August 24 Rationale Memo in this case.

App. 36a–48a. That filing shows that the Secretary received the Memo

on August 24 and authorized the Cancellation at 9:25 am that same

morning. Id. at 32a–33a. The Department eventually published the

HEROES Act waiver authorizing the Cancellation on October 12. 87 Fed.

Reg. at 61,512.

9

V.

Procedural History

On September 29, the States sued and moved for a preliminary

injunction. App. 13a. On October 20, the district court denied the States’

motion and dismissed the case for lack of standing, id. at 9a–27a, but the

court recognized that the States raise “important and significant challenges” to the Cancellation, id. at 26a. The next day, after the appeal was

docketed with the Eighth Circuit, the States moved for (1) an injunction

pending appeal and (2) a temporary administrative stay, which the court

promptly granted. Id. at 7a.

On November 14, the Eighth Circuit enjoined the Cancellation.

App. 6a. The court’s analysis focused on Missouri’s standing. Id. at 3a–

5a. It began by detailing the close relation between Missouri and MOHELA, explaining that Missouri’s legislature created MOHELA as a

state entity, charged it with “support[ing] the efforts of public colleges

and universities,” and required it to contribute to the Lewis and Clark

Discovery Fund (LCD Fund) “in the State Treasury.” Id. at 3–4 (citations

omitted). Given those facts, “MOHELA may well be an arm of the State,”

the court said. Id. at 4 (collecting cases that so held). But even if not, the

Cancellation’s negative “financial impact on MOHELA . . . threatens to

10

independently impact Missouri” by preventing MOHELA from satisfying

its remaining obligation to pay $105.1 million into the LCD Fund. Ibid.

Because Missouri has standing, the court did not “address the standing

of the other States.” Id. at 5a.

The Eighth Circuit then concluded that the States have raised “substantial questions of law” about the Cancellation’s legality. App. 5a. The

court also found that “the equities strongly favor an injunction considering the irreversible impact the [Cancellation] would have as compared

to the lack of harm an injunction would presently impose.” Ibid. To “provide complete relief to the plaintiffs,” the court explained, it could not

limit the injunction to certain States or loans.

Id. at 6a.

Because

MOHELA services “$168.1 billion in student loan assets” nationwide and

is “one of the largest” servicers of federal student loans, the court determined that there is “no workable path in this emergency posture for

narrowing the scope of relief.” Ibid.

ARGUMENT

The Court should not vacate the Eighth Circuit’s injunction. The

Department passingly argues (at 14) that courts issuing injunctions must

announce plaintiffs’ likelihood to succeed on the merits and that the

11

Eighth Circuit’s finding of “substantial questions of law” is not enough.

The agency claims that Winter v. Natural Resources Defense Council,

Inc., 555 U.S. 7, 20 (2008), and Munaf v. Geren, 553 U.S. 674, 690 (2008),

establish this rule. They do not.

Winter addressed the standard for “irreparable harm” rather than

the standard for assessing the merits. 555 U.S. at 21–22. And the error

in Munaf was the lower court’s failure to “consider[] the merits” at all.

553 U.S. at 690–91. Tellingly, after Winter and Munaf, many circuits—

like the Eighth Circuit here—continue to approve injunctions where

plaintiffs present substantial questions on the merits and the equities

strongly favor them. See, e.g., Citigroup Glob. Mkts., Inc. v. VCG Special

Opportunities Master Fund Ltd., 598 F.3d 30, 34–38 (2d Cir. 2010) (“If

the Supreme Court had meant” for Winter or Munaf “to abrogate the

more flexible standard for a preliminary injunction, one would expect

some reference to the considerable history of the flexible standards

applied in this circuit, seven of our sister circuits, and in the Supreme

Court itself”). The Eighth Circuit thus committed no error here.

Though there is no basis to do so, if the Court remands over this

issue, it should enter an administrative stay forbidding the Department

12

from discharging loans under the Cancellation while the Eighth Circuit

takes up the injunction request again. The Department has already approved “16 million applications” from borrowers, and their debts are set

“to be discharged” as soon as “allowed by the courts.” Secretary’s Nov.

11, 2022 Statement, https://tinyurl.com/2cewh6h4.

Permitting those

discharges to occur would immediately inflict the irreparable harms that

the States are trying to avoid through this suit.

I.

The States are likely to succeed on the merits.

A.

The States have standing.

States are “entitled to special solicitude in [the] standing analysis.”

Massachusetts v. EPA, 549 U.S. 497, 520 (2007). Contrary to what the

Department says (at 15–18), Missouri has standing. And though the

Department ignores it, the other States have standing too.

1.

Missouri has standing due to the Cancellation’s

negative effect on MOHELA’s loan servicing.

The Cancellation will unquestionably inflict financial harm on MOHELA. Last fiscal year, MOHELA earned $88.9 million for “servicing 5.2

million” Direct Loan accounts. MOHELA FY 2022 Financial Statement

at 4, https://tinyurl.com/4chp295x. This revenue is determined by how

many accounts MOHELA services—the more it does, the more it earns,

13

see D. Ct. Doc. 5-1, at 197–98, 209–10—and the Cancellation will “completely” eliminate the debt of nearly half of all borrowers (20 of 43

million), D. Ct. Doc. 5-3, at 31. Because many borrowers have more than

one account, see D. Ct. Doc. 5-1, at 403–07, MOHELA is at risk of losing

at least half of the Direct Loan accounts it services, which equates to

millions of dollars of revenue per year. These financial losses to MOHELA harm Missouri in three ways.

First, MOHELA is a state agency, so financial harms to it are harms

to Missouri. MOHELA and Missouri are organizationally and politically

intertwined. MOHELA is “a public instrumentality” of Missouri that performs “essential public function[s].” Mo. Rev. Stat. §173.360. It is part

of the Missouri Department of Higher Education and Workforce Development. §173.445. Its board members are state officials appointed by the

State with the advice and consent of the legislature. §173.360; see also

§173.005.2 (coordinating board); §173.007 (commissioner of higher

education). And State law establishes MOHELA’s powers. §173.385.

MOHELA and Missouri are also financially linked. MOHELA owes

$105.1 million to the State’s LCD Fund, see MOHELA FY 2022 Financial

Statement, supra, at 20; Mo. Rev. Stat. §173.385.2, which supports

14

“capital projects” at Missouri’s “public colleges and universities,”

§173.392.2. And MOHELA is authorized to provide student financial aid,

see §173.385.1(6), (19), which it does by giving millions of dollars per year

to three scholarship programs run by its parent agency, the Department

of Higher Education and Workforce Development, see MOHELA FY 2022

Financial Statement, supra, at 10 (listing the programs).

Overall, the connection between MOHELA and Missouri is so close

that, as the Eighth Circuit noted, the agency “may well be an arm of the

State” for sovereign immunity. App. 4a (collecting cases reaching that

conclusion). Because of this tight relationship, financial injuries to MOHELA are harms to the State. See Arkansas v. Texas, 346 U.S. 368, 370–

71 (1953) (injury to state university is injury to the State); Alaska v.

Chevron Chem. Co., 669 F.2d 1299, 1302–03 (9th Cir. 1982) (similar).

The Department’s contrary arguments are unavailing. It is irrelevant that MOHELA “was not involved with the decision of the Missouri

Attorney General’s Office” to bring this suit, Appl. 16, because the

Attorney General alone decides whether to sue “to protect the rights and

interests of the state,” Mo. Rev. Stat. §27.060. And it is not dispositive

that MOHELA may “sue and be sued,” Appl. 16 (quoting Mo. Rev. Stat.

15

§173.385.1(3)), because bestowing that power on a state entity does not

mean that it is separate from the State. See State Highway Comm’n of

Wyo. v. Utah Constr. Co., 278 U.S. 194, 199 (1929) (connecting a state

entity to the State without addressing “the effect of the general grant of

power to sue or be sued . . . or its withdrawal”).

Second, Missouri has declared everything MOHELA does to be “the

performance of an essential public function.” Mo. Rev. Stat. §173.360.

Those functions include advancing vital state goals like ensuring that

Missouri “students have access to student loans” and providing funds to

Missouri’s “public colleges and universities.” Ibid. MOHELA’s revenue

funds those essential state functions. See §173.385.1–.2. The Cancellation’s negative effect on MOHELA’s finances injures Missouri by impairing MOHELA’s ability to carry out its state functions or forcing the State

to appropriate money to make up the deficit.

Third, Missouri has standing because the Cancellation’s adverse

“financial impact on MOHELA . . . threatens to independently impact

Missouri” by preventing or delaying MOHELA’s contributions to “the

LCD Fund,” App. 4a, and the State’s student aid programs, see MOHELA

FY 2022 Financial Statement, supra, at 10. MOHELA affirms that “[a]ny

16

available funds above its operating needs and reasonable reserves are

devoted . . . to student financial aid.” C.A. Rule 28(j) Letter, Attach. 1

(Nov. 1, 2022). By hindering MOHELA’s contributions to the State, the

Cancellation inflicts a classic financial injury on Missouri. See Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017). This conclusion

rebuts the Department’s third-party standing arguments (at 16–17) because it establishes that even if MOHELA and Missouri are separate

entities, Missouri may raise harms to its own interests. See Clinton v.

City of New York, 524 U.S. 417, 431 (1998) (concluding that the city’s

claim did not “belong[] to the State” even though the State would have

had a similar claim of its own).

The Department objects (at 17–18) to this standing theory as relying on “[g]uesswork” about “how MOHELA will react” to the Cancellation. Not so. The States rely on MOHELA’s legal obligation to contribute to the LCD Fund, see Mo. Rev. Stat. §173.385.2, MOHELA’s

demonstrated practice of funding the State’s student financial aid programs, see MOHELA FY 2022 Financial Statement, supra, at 10, and

“the predictable effect” that decreasing MOHELA’s revenue will have on

17

those contributions to the State, see Dep’t of Com. v. New York, 139 S. Ct.

2551, 2566 (2019). That goes far beyond “mere speculation.” Ibid.

The Department also asserts (at 17) that if Missouri has standing

to sue because of the harm to MOHELA, then “banks could sue anyone

who causes financial harm to their borrowers.” This analogy is off base.

Missouri created MOHELA, tasked it with performing essential functions for the State, selected its board members, and bestowed power on

it. That is entirely unlike the relationship between banks and their borrowers. Accordingly, the Department’s dire predictions about these kinds

of far-reaching implications miss the mark.

2.

The States have standing on other grounds.

Direct Tax Losses. Nebraska, Iowa, Kansas, and South Carolina

have standing because they face a “direct injury in the form of a loss of

specific tax revenues.” Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992).

Those States use federal adjusted gross income (AGI) to determine state

taxable income. See Neb. Rev. Stat. §77-2714.01(1); Iowa Code §422.7;

Kan. Stat. Ann. §79-32,117(a); S.C. Code §12-6-40. Normally, federal

AGI includes student loan discharge. See 26 U.S.C. §61(a)(11). But

18

under the American Rescue Plan Act (ARPA), federal AGI excludes those

discharges until January 1, 2026. See 26 U.S.C. §108(f)(5).

Without the Cancellation, hundreds of thousands of loans are set to

be discharged each year after January 1, 2026, under the Department’s

existing income-driven repayment (IDR) program. See U.S. Gov’t Accountability Office, GAO-22-103720, Federal Student Aid: Education

Needs to Take Steps to Ensure Eligible Loans Receive Income-Driven

Repayment Forgiveness 16 fig. 3 (2022), https://tinyurl.com/bdhzca8z.

These discharges will produce significant tax revenue for the States. But

the Cancellation will erase over $400 billion in student-loan debt now

when the States are not taxing loan discharges. That directly reduces

the loans available for discharge once the States resume taxing it and

thus will shrink the States’ revenue.

Even if the States could respond to the Cancellation by changing

their tax laws, that does not erase the injury. States have a sovereign

right “to create . . . a legal code.” Alfred L. Snapp & Son, Inc. v. Puerto

Rico ex rel. Barez, 458 U.S. 592, 601 (1982). Forcing States to exercise

that power by upending their preferred system for calculating state

taxable income is itself an injury, and “the possibility that a plaintiff

19

could avoid [one] injury by incurring [another] does not negate standing.”

Texas v. United States, 809 F.3d 134, 156–57 (5th Cir. 2015), aff’d by an

equally divided court, 579 U.S. 547 (2016). That is why many circuits

have declined to “treat[] the availability of changing state law as a bar to

standing.” Id. at 157; accord California v. Azar, 911 F.3d 558, 574 (9th

Cir. 2018).

Consolidation Harms. Missouri, Arkansas, and Nebraska have experienced other harms because the Cancellation predictably prompted

the widespread consolidation—and thus elimination—of non-federally

held FFEL loans. See D. Ct. Doc. 5-4, at 2, ¶¶6–7 ($5–6 million of ASLA’s

$100 million in FFEL loans were consolidated after the Cancellation was

announced). Missouri and Arkansas hold FFEL loans, and Nebraska invests in SLABS backed by FFEL loans. Eliminating those loans “reduc[es] the return on [the States’] investments” and thus inflicts an

“actual financial injury.” Franchise Tax Bd. of Cal. v. Alcan Aluminum

Ltd., 493 U.S. 331, 336 (1990).

While the Cancellation now excludes consolidation as a pathway to

eligibility, that does not foreclose standing. The States can still press

their consolidation injuries for two reasons.

20

First, the Department

changed its website’s language on consolidation and published the

HEROES waiver reflecting that change after suit was filed, so this is a

mootness (not standing) issue. See Davis v. FEC, 554 U.S. 724, 734

(2008) (standing focuses on “when the suit was filed”).

This sort of

“voluntary cessation” does not moot the States’ claims, Trinity Lutheran

Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017),

especially because the Department is attempting “to insulate [its] decision from review,” Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S.

298, 307 (2012). Second, the States can still obtain relief for their consolidation harms. For example, the Department could be ordered to direct

borrowers who recently consolidated that they must pay part of their

interest to the entity that held their prior FFEL loan. Such partial relief

suffices for standing. See Massachusetts, 549 U.S. at 526.

Quasi-Sovereign Harms. The States also have “a quasi-sovereign

interest in the health and well-being—both physical and economic—of

[their] residents.” Alfred L. Snapp, 458 U.S. at 607. MOHELA furthers

Missouri’s quasi-sovereign interest in higher education through its “essential public function[s]” of providing funding to students and the State’s

public universities. Mo. Rev. Stat. §173.360. When the Cancellation

21

reduces MOHELA’s revenue, it impairs Missourians’ access to high education and harms that quasi-sovereign state interest.

B.

The Cancellation exceeds the Department’s authority.

A reviewing court shall “hold unlawful and set aside agency action”

“in excess of statutory . . . authority.” 5 U.S.C. §706(2)(C). The Department claims authority under the HEROES Act. That Act allows the Secretary to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs” when “necessary in

connection with a . . . national emergency” “to ensure that recipients of

student financial assistance . . . who are affected individuals are not

placed in a worse position financially in relation to that financial

assistance because of their status as affected individuals.” 20 U.S.C.

§1098bb(a)(1)–(2)(A). This text does not authorize the Cancellation.

Insufficient Connection to Emergency. To begin, the Act requires a

real connection to a national emergency. The first clause demands that

the action be “necessary in connection with a . . . national emergency.”

20 U.S.C. §1098bb(a)(1). And the next specifies that borrowers must face

“a worse position financially in relation to [their] financial assistance

because of ” the national emergency. §1098bb(a)(2)(A) (emphasis added).

22

This statutory text requires more than the Department’s “but-for

causation” standard. See Use of the Heroes Act of 2003 to Cancel the Principal Amounts of Student Loans, 2022 WL 3975075, at *14 (O.L.C. Aug.

23, 2022). Because the but-for “consequences of an act go forward to eternity,” Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 266 n.10 (1992), that

interpretation produces absurd results, allowing COVID-19 to justify the

mass elimination of debt for years to come, see United States v. XCitement Video, Inc., 513 U.S. 64, 69 (1994) (counseling against absurd

constructions). In fact, the Department has argued that “in ten years,

[it] could still use the HEROES Act to forgive student loan debt because

of the COVID-19 pandemic if the Secretary deems it ‘necessary.’” Brown

v. U.S. Dep’t of Educ., No. 4:22-CV-0908-P, 2022 WL 16858525, at *13

(N.D. Tex. Nov. 10, 2022). Read correctly, however, the Act demands

proximate or direct causation, meaning COVID-19 must be the “cause

that directly produces” the need for relief. Proximate Cause, Black’s Law

Dictionary (11th ed. 2019); see, e.g., Holmes, 503 U.S. at 265–68 (interpreting “by reason of” in RICO to require proximate causation).

The Cancellation fails that requirement. The Department tries to

justify the program by citing “current economic conditions.” App. 37a–

23

39a (capitalization omitted). But those conditions are not primarily attributable to COVID-19. They are influenced by myriad other factors, including the President’s fiscal policies and geopolitical events. Indeed, the

Department admits that the cause of these economic conditions includes

“other factors (such as Russia’s invasion of Ukraine).” Id. at 38a. The

Department’s “indiscriminate approach” to economic conditions “fails to

account for [the] crucial distinction” between economic risk from COVID19 and economic “risk more generally.” NFIB, 142 S. Ct. at 666.

The Department also argues that the end of forbearance supports

the Cancellation. App. 37a. If, by this, the Secretary is suggesting that

the end of forbearance always leads to defaults, then the Department (not

COVID-19) caused the problem. Or if he thinks that resuming payments

will risk harm to borrowers because of the broader economic conditions,

the payment pause adds little to the analysis. Either way, the Department did not adequately connect the Cancellation to the pandemic.

Cannot Put Borrowers in Better Position by Discharging Principal.

The Cancellation also falls because the HEROES Act does not authorize

the direct discharge of loan principal. Relief must be “necessary” to keep

borrowers from falling into “a worse position financially in relation to”

24

their student loans. 20 U.S.C. §1098bb(a)(2)(A). Yet this direct discharge

of principal does not simply prevent borrowers from slipping into a worse

position but rather places them in a better one.

The Act’s obvious focus on addressing temporary challenges like a

“military operation or national emergency,” 20 U.S.C. §1098bb(a)(1),

further demonstrates that it is “incompatible” with the permanent cancellation of principal. See Utility Air Regulatory Group v. EPA, 573 U.S.

302, 322 (2014). Similarly, allowing the Secretary to erase loan principal

conflicts with Congress’s explicit distinction between student loans and

student grants. Compare 20 U.S.C. §1070 et seq. (grant programs), with

20 U.S.C. §1087a et seq. (Direct Loan Program). Blurring the division

between these two different forms of student aid would bring about “a

fundamental revision” of the statutory scheme. See MCI Telecommunications Corp. v. AT&T, Co., 512 U.S. 218, 231 (1994).

The Department argues (at 22–23) that other uses of the HEROES

Act have “had permanent and substantial economic effects.” This is

beside the point because none of the past examples directly erased loan

principal. Some of them—such as the COVID-19 payment pause and

expanded eligibility for defenses to repayment—might have the indirect

25

effect of reducing the principal that a borrower will ultimately pay. But

those are incidental effects of actions not aimed at eliminating principal.

Excessive Scope. The Cancellation’s scope—both who it covers and

the amount of debt discharged—also exceeds the Secretary’s authority.

The Secretary has not limited the Cancellation to only “affected individuals.” 20 U.S.C. §1098bb(a)(2)(A). While the Department argues (at 19)

that this class includes every borrower in the world, nothing in the

Department’s materials purports to find that all borrowers have suffered

“direct economic hardship” due to the pandemic. §1098ee(2)(D).

In addition, the Department has failed to respect the Act’s requirement that “affected individuals” be at risk of facing “a worse position

financially in relation to” their loans. 20 U.S.C. §1098bb(a)(2)(A). Many

eligible borrowers face no such peril. For instance, the program includes

high-income borrowers whose annual earnings have increased substantially since 2020, such as married individuals whose households earned

between $200,000 and $250,000 in 2020 and more than $350,000 in 2021.

No one can seriously contend that these borrowers need this relief.

The Department responds (at 24) by arguing that it need not provide relief “on a case-by-case basis” and that it may seek to “ensure”

26

affected individuals are not worse off. 20 U.S.C. §§1098bb(a)(2) & (b)(3).

But these statutory features at best permit modest imprecision. They do

not excuse the Department’s failure to tailor the eligibility requirements

or relief amount at all.2

Nondelegation. Under the Department’s reading of the HEROES

Act, it has the power to cancel student-loan debt, of any amount, see Appl.

22 (claiming the Secretary may “eliminate . . . borrower’s obligation”), for

“[a]ll student-loan borrowers,” see id. at 19, even a decade after a national

emergency begins, see Brown, 2022 WL 16858525, at *13. This interpretation raises serious nondelegation concerns, see Panama Refining Co. v.

Ryan, 293 U.S. 388, 429–30 (1935), which counsels against accepting it,

see Clark v. Martinez, 543 U.S. 371, 380–81 (2005) (avoidance doctrine).

Major-Questions Doctrine. The major-questions doctrine further

reinforces the Department’s lack of statutory authority. It applies to

agency action that addresses issues of immense “economic and political

significance” and demands that the agency show “clear congressional

2 As explained in the amicus brief of Utah, Ohio, and others (at Section

II.B.3.), the Cancellation also exceeds the Secretary’s authority because

it does not “waive” or “modify”—but rather rewrites—the provisions

referenced in the Federal Register notice. See Fed. Reg. at 61,514.

27

authorization.” West Virginia v. EPA, 142 S. Ct. 2587, 2608–09 (2022).

A “plausible textual basis” will not do. Id. at 2609.

The major-questions doctrine applies here for four reasons. First,

as the Department conceded below, see D. Ct. Doc. 27, at 41, it is claiming

authority to resolve a matter of great “economic and political significance,” West Virginia, 142 S. Ct. at 2608. With estimated costs between

$430 billion and $519 billion, see CBO Sept. 26, 2022 Letter, supra, at 3;

D. Ct. Doc. 5-3, at 23, the economic significance is plain, see Ala. Ass’n of

Realtors, 141 S. Ct. at 2489 (per curiam) (applying the doctrine when the

effect was $50 billion). So is the political significance. In recent years,

Congress has “conspicuously and repeatedly declined to enact” many student-loan discharge bills, West Virginia, 142 S. Ct. at 2610, including one

aimed at COVID-19 relief. E.g., H.R. 2034, 117th Cong. (2021); H.R.

6800, 116th Cong. §150117(h) (2020); S. 2235, 116th Cong. (2019).

Second, the Department claims an “unheralded power.” West Virginia, 142 S. Ct. at 2610. Until now, the agency has not “relied on the

HEROES Act . . . for the blanket or mass cancellation . . . of student loan

principal balances.” Jan. 2021 Memo, supra, at 6; see also The Biden

Administration Extends the Pause on Federal Student Loan Payments,

28

Congressional Research Service, at 2–3 (Jan. 27, 2021), https://tinyurl.

com/yxwm4eyj (“[B]efore the COVID-19 pandemic, Secretaries generally

invoked the HEROES Act relatively narrowly to grant relief to limited

subsets of borrowers, such as deployed military service members or

victims of certain natural disasters”). Illustrating just how unprecedented this is, the Department has not erased loan principal in its “[p]ast

experience[s] with student loan borrowers transitioning back into repayment after long periods of forbearance,” App. 37a—even though it says

that this circumstance requires the Cancellation here.

The Department denies (at 27) that it is asserting novel authority,

citing the COVID-19 payment pause’s $100 billion cost as a comparator.

That the Department’s best comparator is an action that did not directly

discharge loan principal—implemented during the pandemic’s lockdown

phase for a fraction of the Cancellation’s $430 billion cost—shows that

the agency has no real analogue.

Third, “the sheer scope of the [Department’s] claimed authority”

confirms the major-questions doctrine’s application. Ala. Ass’n of Realtors, 141 S. Ct. at 2489. As explained above, the Department asserts

power under the Act to cancel student-loan debt, of any amount, for any

29

borrower, even a decade or more after a national emergency begins. See

p. 27, supra. In other words, the agency believes that it has authority to

erase all $1.6 trillion in student-loan debt, effectively converting the

student-loan program into a student-grant program. Courts rightly greet

such “assertions of extravagant statutory power” with skepticism. West

Virginia, 142 S. Ct. at 2609 (cleaned up). That the Department also asks

(at 26–27) for judicial deference to the Secretary’s actions under the Act

further underscores the vast power it claims.

Fourth, the Cancellation conflicts with the HEA’s overall structure

and the HEROES Act’s legislative findings. The HEA not only distinguishes loans from grants, but also establishes specific classes of borrowers eligible for loan discharge. See p. 4, supra. Yet the Department’s

reading of the HEROES Act overrides those choices by authorizing the

agency to convert loans into grants and identify new, broadly defined

groups eligible for loan cancellation.

The HEA also recognizes the

importance of notice, comment, and collaboration by mandating “negotiated rulemaking” when the Department regulates on matters of student

financial assistance. 20 U.S.C. §1098a(b)(2). Given this, it is implausible

that Congress authorized the Department to use HEROES Act authority

30

to completely bypass notice-and-comment rulemaking for one of the

agency’s most costly and consequential actions ever. §1098bb(b)(1). And

because the HEROES Act’s congressional findings focus on affording

relief to those serving in the military, §1098aa(b)(1)–(6), “[t]here is little

reason to think Congress” intended the Act to authorize worldwide debt

discharge entirely unconnected to the military, West Virginia, 142 S. Ct.

at 2612.

The Department says (at 25) that the major-questions doctrine does

not apply because this case “involves the exercise of authority over a

government benefit program.” Yet the doctrine rests on “separation of

powers principles and a practical understanding of legislative intent”

that “presume[s] . . . Congress intends to make major policy decisions

itself.” West Virginia, 142 S. Ct. at 2609 (cleaned up). That presumption

applies regardless of whether an agency is regulating private actors or

administering a congressionally created benefit program. What matters

is whether an agency is exceeding authority that Congress gave it. That

can happen either when agencies regulate private parties or when they

administer government benefits. There is nothing about the latter situation that is inconsistent with the major-questions doctrine.

31

The Department also insists (at 28) that the HEROES Act “specifically contemplates that the Secretary” would “waiv[e] loan-repayment

provision.” But it cites no support for that statement because none exists.

Nor does the part of ARPA that “makes student-loan discharges . . . taxfree” until 2025 mean that Congress endorsed this use of HEROES.

Contra Appl. 28. Already-established loan programs, such as the IDR

program mentioned above, result in the ongoing discharge of studentloan debt. So the referenced ARPA provision, which exempts debt discharges beyond the circumstances at issue here, says nothing about the

HEROES Act. See Pub. L. 117-2, §9675, 135 Stat. 4, 185–86 (Mar. 11,

2021).

C.

The Cancellation is arbitrary and capricious.

Courts must “hold unlawful and set aside agency action” that is

“arbitrary” or “capricious.” 5 U.S.C. §706(2)(A). The Cancellation is

arbitrary and capricious for at least five reasons.

First, the Department did not consider any reasonable alternatives

to the Cancellation. “[W]hen an agency rescinds a prior policy its reasoned analysis must consider the alternatives that are within the ambit

of the existing policy.” DHS v. Regents of the Univ. of Cal., 140 S. Ct.

32

1891, 1913 (2020) (cleaned up). The Department is moving from a forbearance policy to the Cancellation, so it must consider alternatives like

(1) continuing forbearance and (2) other options to decrease monthly loan

payments. Because those alternatives are within the ambit of the existing policy, the failure to consider them “renders [the] decision arbitrary.”

Ibid. The Department says (at 30) that the Secretary “considered . . . the

availability of ‘other options to reduce monthly payments.’” But the

Secretary did not consider what he might do to reduce monthly payments;

rather, the Rationale Memo simply observed that “borrowers have other

options to reduce monthly payments, like income-driven repayment

(IDR) plans.” App. 39a (emphasis added). Nor, despite what the Department implies (at 31), did the Secretary “consider[]” the option of “continuing forbearance” in lieu of the Cancellation.

Second, the Department’s reliance on COVID-19 as its justification

for the Cancellation is “pretextual,” Dep’t of Com., 139 S. Ct. at 2573, and

an impermissible “post hoc rationalization,” Regents, 140 S. Ct. at 1908

(citation omitted). The agency did not first identify the Cancellation as

“necessary” to protect borrowers. 20 U.S.C. §1098bb(a)(2)(A). Rather,

the Department pursued the Cancellation after failed legislative efforts,

33

and it is using the pandemic as cover to “follow[] through” on the President’s campaign “promise.” D. Ct. Doc. 5-3, at 29. Indeed, the Secretary

approved the Cancellation at 9:25 am on the day he received the Rationale Memo. See App. 33a. Such rapid turnaround is the opposite of reasoned decisionmaking and shows that the supposed reliance on COVID19 is “contrived.” Dep’t of Com., 139 S. Ct. at 2575.

Third, the Department has not tried to justify key aspects of the

Cancellation’s broad scope. For example, the agency documents do not

offer any explanation—much less a reasonable one—for the $250,000

household income cutoff.

Nor has the Department addressed why

borrowers who exceed the income cutoff in either 2020 or 2021 qualify or

why a borrower can apply over a year from now for a program purportedly

addressing a pressing emergency. Such failures to explain core eligibility

requirements—which drive the Cancellation’s broad scope—cannot

survive review.

Fourth, because the Department was changing its forbearance

policy and “not writing on a blank slate, it was required to assess whether

there were reliance interests, determine whether they were significant,

and weigh any such interests against competing policy concerns.”

34

Regents, 140 S. Ct. at 1915 (cleaned up). Yet nothing in the agency materials suggests the Department did this. This failure to “consider[]” any

“reliance interests” is “arbitrary and capricious.” Ibid. The Department

accepts that it ignored the States’ reliance interests but asserts (at 31)

that those interests are not “cognizable.” The HEA itself, however, recognizes the vital interests of “groups involved in student financial assistance programs,” including the interests of “lenders,” secondary-market

participants, and “loan servicers” like the States. 20 U.S.C. §1098a(a)(1).

Fifth, the Department’s September 29 about-face on FFEL consolidation arbitrarily distinguishes between borrowers with non-federally

held FFEL loans who applied for consolidation before September 29 and

those who did not. The agency never rationalizes that distinction—nor

can it. By all accounts, it was an attempt to avoid legal challenges to the

program and thus reflects a failure to consider “the relevant issues” in

crafting the Cancellation. FCC v. Prometheus Radio Project, 141 S. Ct.

1150, 1158 (2021).

D.

The injunction is not overbroad.

The current scope of the Eighth Circuit’s injunction is necessary “to

provide complete relief” to the States. Madsen v. Women’s Health Ctr.,

35

Inc., 512 U.S. 753, 765 (1994). Denying this, the Department contends

(at 35) that the court should have simply “enjoined the Secretary from

discharging loans that are serviced by MOHELA.” But as the States told

the Eighth Circuit, such an injunction would not prevent the harms to

Missouri through MOHELA because the Department could skirt that

relief by transferring loans eligible for the Cancellation to one of the

agency’s eight other loan servicers. See Who’s My Student Loan Servicer,

U.S. Dep’t of Educ., https://tinyurl.com/2p9xkya8 (listing nine servicers).

A “geographically-limited injunction” would likewise “be ineffective” because borrowers and accounts “move among states.” Texas, 809

F.3d at 188; see also Pennsylvania v. President U.S., 930 F.3d 543, 576

(3d Cir. 2019), rev’d on other grounds, Little Sisters of the Poor v.

Pennsylvania, 140 S. Ct. 2367 (2020). Regarding the States’ tax harms,

interstate migration means that a borrower living in California with a

loan serviced in Wisconsin may reside in Iowa in 2026, so cancelling that

debt inflicts injury on Iowa. And as for the consolidation harms, FFEL

consolidations injure the States even if the borrowers live beyond their

borders.

36

II.

The equities support the injunction.

The equities analysis begins and ends with the Cancellation’s un-

lawfulness. “[O]ur system does not permit agencies to act unlawfully

even in pursuit of desirable ends.” Ala. Ass’n of Realtors, 141 S. Ct. at

2490. Accordingly, it is Congress’s “responsibility”—not this Court’s—“to

weigh [the] tradeoffs” of the Cancellation. NFIB, 142 S. Ct. at 666.

Even so, the equitable balance tilts decidedly toward the States. All

the Department’s purported harms have been independently caused by a

judgment vacating the Cancellation in a different case. See Brown, 2022

WL 16858525, at *15. Thus, lifting the injunction here will not solve the

Department’s concerns. Even without that judgment, now that the Department has extended the payment pause into the summer of 2023, its

allegations of immediate harm fall flat.

The Department’s specific arguments about harms to itself are likewise unpersuasive. The agency contends (at 35) that the injunction impedes its ability to “act quickly” to help borrowers during a national

emergency. But this plea for speed rings hollow now that the President

has declared the pandemic over and the payment pause has been

extended. Also unavailing is the Department’s protest (at 36–37) about

37

the supposedly “significant cost” of continuing the pause. Whatever those

temporary costs (roughly a few billion dollars per month), they pale in

comparison to the Cancellation’s $400 billion-plus price tag and the $100

billion already incurred for forbearance. Yesterday’s additional extension of the pause further undermines any claim that it is too expensive.

Nor does the injunction harm the public. To be sure, many eligible

borrowers prefer the Cancellation to proceed. But millions of others “who

pay taxes to finance the government,” App. 2a, and object to funding the

loans that borrowers voluntarily assumed, want the Cancellation to fall.

See Alexandra Marquez, Voters Split on Student Loan Forgiveness, New

Poll Shows, NBC News (Sep. 20, 2022), https://tinyurl.com/2p8ku6se.

The Department complains (at 37) about leaving borrowers in “limbo,”

but any uncertainty exists only because the agency publicly announced

an unlawful handout and has desperately tried to shield it from legal

review. Such “unclean hands” undercut the agency’s appeal to equity.

See Henderson v. United States, 575 U.S. 622, 625 n.1 (2015).

The

Department is also incorrect (at 35) that confining the injunction to

MOHELA’s accounts would benefit the public. From the public’s perspective, such a distinction would be arbitrary and unjust.

38

On the other hand, vacating the injunction would risk exposing the

States to the irreparable harms identified in the standing section above.

Missouri illustrates the point. It faces irreparable injury from the financial harms to MOHELA. Those monetary losses to MOHELA and the

corresponding adverse impact on Missouri’s receipt of funds from

MOHELA are not recoverable and thus are irreparable. See Ala. Ass’n of

Realtors, 141 S. Ct. at 2489 (lost income “with no guarantee of eventual

recovery” is “irreparable harm”). Also irreparable are the injuries to

Missouri’s quasi-sovereign interests in promoting higher education. See

Georgia v. Tenn. Copper Co., 206 U.S. 230, 239 (1907) (finding proper an

injunction to protect Georgia’s quasi-sovereign interests). And finally,

the other States face irreparable harm to their tax revenue and their

respective quasi-sovereign interests.

III. If the Court thinks the application raises close questions, it

should leave the injunction in place and grant certiorari

before judgment.

The Court should decline to lift or modify the injunction because, as

discussed above, the States have a strong likelihood of success on the

merits and the equities weigh decidedly in their favor. Yet if the Court

thinks the application raises close questions, it should leave the

39

injunction in place, grant certiorari before judgment on the two questions

presented, set an expedited timetable for briefing, and schedule a

February argument, as the Department suggests. Now that the agency

has extended the payment pause well into 2023, no one will be harmed

by leaving the injunction while this Court reviews the case.

If the Court grants certiorari, the States should be petitioners

because the district court entered final judgment against them. “This

Court reviews judgments,” California v. Rooney, 483 U.S. 307, 311 (1987)

(per curiam) (cleaned up), and the “usual rule” is that the Court does not

“consider[] prevailing parties’ petitions,” Camreta v. Greene, 563 U.S.

692, 709 (2011). Because the Department won the only judgment entered

in this case, the States should be petitioners if review is granted.

CONCLUSION

The Court should decline to vacate or modify the injunction.

40

Respectfully submitted,

ERIC S. SCHMITT

DOUGLAS J. PETERSON

Attorney General of Missouri

Attorney General of Nebraska

D. JOHN SAUER

JAMES A. CAMPBELL

Solicitor General of Missouri

Solicitor General of Nebraska

Counsel of Record

MICHAEL E. TALENT

Deputy Solicitor General of Missouri

MISSOURI ATTORNEY GENERAL’S

OFFICE

Post Office Box 899

Jefferson City, MO 65102

(314) 340-4869

michael.talent@ago.mo.gov

CHRISTIAN EDMONDS

Assistant Solicitor General of

Nebraska

OFFICE OF THE NEBRASKA

ATTORNEY GENERAL

2115 State Capitol

Lincoln, NE 68509

(402) 471-2682

jim.campbell@nebraska.gov

JEFFREY S. THOMPSON

LESLIE RUTLEDGE

Solicitor General of Iowa

Attorney General of Arkansas

SAMUEL P. LANGHOLZ

NICHOLAS J. BRONNI

Assistant Solicitor General of Iowa

Solicitor General of Arkansas

DYLAN L. JACOBS

Deputy Solicitor General of Arkansas

OFFICE OF THE ARKANSAS ATTORNEY

GENERAL

323 Center Street, Suite 200

Little Rock, AR 72201

(501) 682-2007

dylan.jacobs@arkansasag.gov

41

OFFICE OF THE IOWA ATTORNEY

GENERAL

1305 E. Walnut Street

Des Moines, Iowa 50319

(515) 281-5164

jeffrey.thompson@ag.iowa.gov

sam.langholz@ag.iowa.gov

DEREK SCHMIDT

ALAN WILSON

Attorney General of Kansas

Attorney General of South Carolina

SHANNON GRAMMEL

J. EMORY SMITH, JR.

Deputy Solicitor General of Kansas

Deputy Solicitor General of South

Carolina

OFFICE OF THE KANSAS ATTORNEY

GENERAL

120 SW 10th Avenue, 2nd Floor

Topeka, KS 66612

(785) 296-2215

shannon.grammel@ag.ks.gov

OFFICE OF THE ATTORNEY GENERAL

OF SOUTH CAROLINA

P.O. Box 11549

Columbia, SC 29211

803-734-3680

ESmith@scag.gov

November 2022

42

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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