Response to application from respondent Myra Brown, et al. — Department of Education, et al., Petitioners v. Myra Brown, et al.

Supreme Court briefDec 7, 2022

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APPENDIX

TABLE OF CONTENTS

Order in the United States District Court for the Northern District of Texas

Fort Worth Division (November 10, 2022) ..................................................... App. 1

Declaration of Myra Brown in the United States District Court for the

Northern District of Texas Fort Worth Division (October 3, 2022)............. App. 27

Declaration of Alexander Taylor in the United States District Court for the

Northern District of Texas Fort Worth Division (October 1, 2022)............. App. 30

Declaration of J. Michael Connolly in the United States District Court for the

Northern District of Texas Fort Worth Division (October 4, 2022)............. App. 33

Exhibit A: StudentAid.gov web page titled One-Time Student Debt Relief, as

it appeared on September 8, 2022 ................................................................ App. 35

Exhibit B: StudentAid.gov web page titled One-Time Student Debt Relief, as

it appeared on October 1, 2022 ..................................................................... App. 48

Case 4:22-cv-00908-P Document 37 Filed 11/10/22

Page 1 of 26 PageID 569

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MYRA BROWN, ET AL.,

Plaintiffs,

No. 4:22-cv-0908-P

U.S. DEPARTMENT OF EDUCATION,

ET AL.,

Defendants.

ORDER

The Constitution vests “all legislative powers” in Congress. This

power, however, can be delegated to the executive branch. But if the

executive branch seeks to use that delegated power to create a law of

vast economic and political significance, it must have clear congressional

authorization. If not, the executive branch unconstitutionally exercises

“legislative powers” vested in Congress. In this case, the HEROES Act—

a law to provide loan assistance to military personnel defending our

nation—does not provide the executive branch clear congressional

authorization to create a $400 billion student loan forgiveness program.

The Program is thus an unconstitutional exercise of Congress’s

legislative power and must be vacated. 1

1 The Court expresses no opinion on whether the Program constitutes sound or

unsound public policy—a consideration inappropriate for the Court to contemplate—

as it falls outside the Court’s task of merely interpreting the law. See Harris v. Harris,

72 Va. (31 Gratt.) 13, 32 (1878) (“‘Compassion,’ said an eminent Virginia chancellor,

‘ought not to influence a judge, in whom, acting officially, apathy is less a vice than

sympathy.’” (quoting Chancellor George Wythe, Commentary on Field’s Ex’x v.

Harrison & Wife, Wythe’s Reports 282 (Minor’s Ed. 1794))); see also Letter from

Thomas Jefferson to Edmund Pendelton (Aug. 26, 1776), reprinted in 1 THE PAPERS OF

THOMAS JEFFERSON 505 (Julian P. Boyd, ed. 1950) (“Let mercy be the character of the

law-giver, but let the judge be a mere machine. The mercies of the law will be dispensed

equally and impartially to every description of men; those of the judge, or of the

executive power, will be the eccentric impulses of whimsical, capricious designing

men.”).

App. 1

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BACKGROUND

A. Title IV of the Higher Education Act

The Department of Education (“Department”) offers two types of

financial aid to help students pay for their college education—grants

and loans. 2 Grants do not have to be repaid. Id. But loans do. Id. Title

IV of the Higher Education Act of 1965 (“HEA”) covers the

administration of three types of federal student loans: (1) Direct Loans;

(2) Federal Family Education Loans (“FFEL”); and (3) Perkins Loans.

See 20 U.S.C. § 1070.

With Direct Loans, the federal government provides loans directly to

borrowers, who are responsible for repaying the government. See 20

U.S.C. § 1087a. With FFEL, the federal government pays lenders to offer

student loans, and the federal government guarantees their repayment.

20 U.S.C. § 1071. With Perkins Loans, colleges loan money to students,

and the federal government guarantees their repayment. § 1087aa. The

HEA also provides how to pay these loans, repayment options, and loan

forgiveness. See, e.g., 34 C.F.R. § 685.219; 20 U.S.C. §§ 1098e;

1087e(d)(1); 1078(b)(9)(A)(v).

B. Prior Attempts to Provide Loan Forgiveness

With rising college costs, federal student-loan debt has skyrocketed

to more than $1.61 trillion with 43 million borrowers. 3 As a result, there

have been multiple attempts to enact legislation to help alleviate

student-loan debt. For example, in 2019, Senator Elizabeth Warren

introduced a bill to provide $50,000 in debt forgiveness for those who

make under $100,000. See S. 2235, 116th Cong. (2019). Similarly,

Representative Al Lawson introduced a bill to forgive the outstanding

loan balance of all borrowers who make under $100,000 individually or

$200,000 if married and filing taxes jointly. See H.R. 2034, 117th Cong.

(2021). But both bills failed.

2 See Types of Aid, U.S. DEP’T OF EDUC., https://bit.ly/3S51Heu (last visited Nov.

7, 2022).

3 Federal Student Loan Portfolio, U.S. DEP’T OF EDUC., https://bit.ly/3qYd5Nm (last

visited Nov. 7, 2022).

App. 2

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The executive branch has also recently explored its ability to forgive

student loans. Specifically, the Trump administration considered its

statutory authority under the Higher Education Relief Opportunities for

Students Act of 2003 (“HEROES Act”) to forgive student loans due to

the COVID-19 pandemic. But the Department concluded that it lacked

such authority. 4 House speaker Nancy Pelosi agreed with the

Department’s conclusion: “People think that the president of the United

States has the power for debt forgiveness. . . He does not. He can

postpone, he can delay, but he does not have that power. That has to be

[accomplished through] an act of Congress.” 5

President Biden, however, promised to “forgive all undergraduate

tuition-related federal student debt from two- and four-year public

colleges and universities for debt-holders earning up to $125,000” while

campaigning for the presidency. 6 After becoming president, Biden

instructed the Department to prepare a memorandum exploring

possible legal avenues to justify a loan-forgiveness program. 7

The Department did so but changed its tune—concluding that the

HEROES Act allows the executive branch to create a loan-forgiveness

program to address the financial harms of the COVID-19 pandemic. 8

The next day, the White House announced that the President would

“fulfill [his] campaign commitment” by providing debt forgiveness to

millions of borrowers. 9

4 See Reed Rubinstein, Memorandum to Betsy DeVos Secretary of Education, U.S.

DEP’T OF EDUC. OFF. OF THE GEN. COUNS.

https://bit.ly/3LBA36n.

(Jan.

12,

2021,

5:46

PM),

5 Lauren Camera, Pelosi: Biden Lacks Authority to Cancel Student Debt, U.S.

NEWS. & WORLD REPORT (July 28, 2021, 3:16 PM), https://tinyurl.com/33ex63de.

6 Joe Biden, Joe Biden Outlines New Steps to Ease Economic Burden on Working

People, MEDIUM (Apr. 9, 2020), https://tinyurl.com/3cbw4zh2.

7 See L. Egan, Biden to Review Executive Authority to Cancel Student Debt, NBC

NEWS (Apr. 1, 2021, 1:36 PM), https://nbcnews.to/3dD85dV.

8 See Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student

Loans, 2022 WL 3975075 (O.L.C.), at *1 (Aug. 23, 2022).

9 See FACT SHEET: President Biden Announces Student Loan Relief for Borrowers

Who Need It Most, THE WHITE HOUSE (Aug. 24, 2022), https://bit.ly/3dATj7p.

App. 3

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C. The HEROES Act

The HEROES Act grants the Secretary of Education (“Secretary”)

the authority to “waive or modify any statutory or regulatory provision

applicable to the student financial assistance programs under title IV of

the Act [20 U.S.C. 1070 et seq.] as the Secretary deems necessary in

connection with a war or other military operation or national

emergency.” § 1098bb(a)(1) (alteration in original). “The term ‘national

emergency’ means a national emergency declared by the President of the

United States.” § 1098ee(4).

The waiver or modification must also “be necessary to ensure that”

certain objectives are achieved. § 1098bb(a)(2). The first of those

objectives is “to ensure that . . . recipients of student financial assistance

under title IV of the [HEA] 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 defines “affected individuals” to include people who reside

or are employed “in an area that is declared a disaster area by any

Federal, State, or local official in connection with a national emergency”

or who “suffered direct economic hardship as a direct result of a war or

other military operation or national emergency, as determined by the

Secretary.” § 1098ee(2)(C)–(D).

The second objective provides that “administrative requirements

placed on affected individuals . . . are minimized, to the extent possible

without impairing the integrity of the student financial assistance

programs, to ease the burden on such students and avoid inadvertent,

technical violations or defaults.” § 1098bb(a)(2). 10 If the objectives of

§ 1098bb(a)(2) are met, “[n]otwithstanding section 1232 of this title and

section 553 of title 5, the Secretary shall, by notice in the Federal

10 The HEROES Act provides three additional objectives. § 1098bb(a)(2)(C)–(E).

None of which are at issue or relevant to the Court’s analysis.

App. 4

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D. Student-Loan Program

The Secretary invoked its authority under the HEROES Act to create

a loan-forgiveness program (“Program”) that would address the

financial harms of the COVID-19 pandemic. 11 The Secretary contends

that COVID-19 pandemic was declared a national emergency by

President Trump in 2020 and thus a “national emergency” under the

HEROES Act. Id. And according to the Secretary, every portion of the

country is a “disaster area due to COVID-19,” and “every person with a

federal student loan under title IV of the HEA” is an affected individual.

Id.

Because the Secretary considered the objectives of § 1098bb(a)(2)

met, the Secretary provided notice of the waivers and modifications in

the Federal Register. Id. The notice provided that the Secretary modifies

“20 U.S.C. 1087, which applies to the Direct Loan Program under 20

U.S.C. 1087a and 1087e; 20 U.S.C. 1087dd(g); and 34 CFR part 674,

subpart D, and 34 CFR 682.402 and 685.212” to provide the debt relief

for certain borrowers who qualify. Id. A borrower qualifies if he

(1) individually makes under $125,000 or $250,000 if married and filing

taxes jointly and (2) has Direct, Perkins, or FFEL loans that are not

commercially held. Id. If a borrower qualifies, the Program provides

$20,000 in debt forgiveness to those who have received a Pell Grant and

$10,000 to those who did not. Id.

E. Procedural History

1. Plaintiffs’ Lawsuit

Plaintiffs Myra Brown and Alexander Taylor both have student

loans. ECF No. 1 at 3–4. Brown is ineligible for any debt forgiveness

under the Program because her loans are commercially held. Id. at 3.

And Taylor is ineligible for the full $20,000 in debt forgiveness under

the Program because he did not receive a Pell Grant. Id. at 3–4. Because

Brown loses out on $20,000 in debt forgiveness and Taylor loses out on

11 No.

2022-22205,

Fed.

Reg.

61512

(Oct.

12,

2022),

https://www.federalregister.gov/documents/2022/10/12/2022-22205/federal-studentaid-programs-federal-perkins-loan-program-federal-family-education-loan-programand.

App. 5

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$10,000, they disagree with the lines drawn for the Program’s eligibility

criteria. Id. at 2–3.

Brown and Taylor, however, could not voice their disagreement

because the Program did not undergo notice-and-comment rulemaking

procedures under the Administrative Procedure Act (“APA”). 12 As a

result, Plaintiffs sued the Department and Secretary, seeking vacatur

of the Program or nationwide injunctive relief for two reasons. First,

they allege that the Program violates the APA’s notice-and-comment

requirements. ECF No. 1 at 13–14. Second, they also contend that the

Secretary lacks the authority to implement the Program under the

HEROES Act. Id. at 4–5.

The same day Plaintiffs sued, they moved to enjoin the Department

“from enforcing, applying, or implementing the Program.” ECF No. 4 at

14. Shortly after, Defendants filed their opposition to Plaintiffs’ motion.

ECF No. 24.

2. Defendants’ Motion to Dismiss for Lack of Jurisdiction

Along with opposing Plaintiffs’ Motion for Preliminary Injunction,

Defendants moved to dismiss for lack of jurisdiction, contending that

Plaintiffs lack standing. See ECF Nos. 24 at 8–12; 25. And while not

mentioned in their motion, Defendants at the preliminary-injunction

hearing insinuated that not only do Plaintiffs lack standing, but nobody

has standing to challenge the Program. ECF No. 32 at 57–58.

3. Notice of the Court’s Intent to Rule on the Merits

Because of the prejudice Plaintiffs would experience if the Court

delays ruling on the merits, 13 no material facts are in dispute, and the

issues here are pure questions of law, the Court—out of an abundance

12 No.

2022-22205,

Fed.

Reg.

61512

(Oct.

12,

2022),

https://www.federalregister.gov/documents/2022/10/12/2022-22205/federal-studentaid-programs-federal-perkins-loan-program-federal-family-education-loan-programand.

13 See Aila Slisco, Student Loan Debt Relief Checks Could Be Mailed in “Two

(Oct.

27,

2022,

8:52

PM),

Weeks,”

Biden

Says,

NEWSWEEK

https://www.newsweek.com/student-loan-debt-relief-checks-could-mailed-two-weeksbiden-says-1755288 (stating that on November 3, 2022, President Biden proclaimed

that checks could be sent to those who applied for the Program within “two weeks”).

App. 6

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of caution—provided the Parties notice of the Court’s intent to advance

Plaintiffs’ Motion for Preliminary Injunction to a determination on the

merits under Federal Rule of Civil Procedure 65. See ECF No. 33. The

notice provided the Parties an opportunity to object to this advancement.

Id. Plaintiffs did not object. See ECF No. 34. But Defendants did and

contend that proceeding to the merits is improper. See ECF No. 35.

Thus, this case presents three issues. First, whether proceeding to

the merits is appropriate. Second, whether the Court has jurisdiction.

And third, whether Plaintiffs are entitled to relief. The Court addresses

each in turn.

LEGAL STANDARD

A preliminary injunction is an “extraordinary remedy” and will be

granted only if the movants carry their burden on four requirements.

Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008). The

movants must show: “(1) a substantial likelihood of success on the

merits; (2) a substantial threat of irreparable injury; (3) the threatened

injury to the movant outweighs the threatened harm to the party sought

to be enjoined; and (4) granting the injunctive relief will not disserve the

public interest.” City of Dall. v. Delta Airlines, Inc., 847 F.3d 279, 285

(5th Cir. 2017) (quotation omitted). “The decision to grant or deny a

preliminary injunction is discretionary with the district court.” Miss.

Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th

Cir. 1985).

Summary judgment is appropriate if “there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter

of law.” FED. R. CIV. P. 56(a). A fact is “material” if it could change the

outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). And a dispute about a material fact is “genuine” if “the

evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Id. The Court views the evidence in the light most

favorable to the nonmovant but need not comb through the record in

search of evidence creating a genuine issue of material fact. See

Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003).

App. 7

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ANALYSIS

A. Proceeding to the Merits is Appropriate

Under Federal Rule of Civil Procedure 65, “[b]efore or after beginning

the hearing on a motion for a preliminary injunction, the court may

advance the trial on the merits and consolidate it with the hearing.” FED.

R. CIV. P. 65(a)(2) (emphasis added). But if “the eventual outcome on the

merits is plain at the preliminary injunction stage, the judge should,

after due notice to the parties, merge the stages and enter a final

judgment.” Curtis 1000, Inc. v. Suess, 24 F.3d 941, 945 (7th Cir. 1994)

(emphasis added). Courts typically require that the parties “receive

clear and unambiguous notice [of the court’s intent to consolidate the

trial and the hearing] either before the hearing commences or at a time

which will still afford the parties a full opportunity to present their

respective cases.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)

(quoting Pughsley v. 3750 Lake Shore Drive Coop. Bldg., 463 F.2d 1055,

1057 (7th Cir. 1972)) (alteration in original). Courts may also consolidate

without giving the parties notice if the lack of notice is not prejudicial to

either party. See Wohlfahrt v. Mem’l Med. Ctr., 658 F.2d 416, 418 (5th

Cir. 1981).

If consolidation is appropriate, a district court may convert a

plaintiff’s preliminary-injunction motion into a motion for summary

judgment. H & W Indus., Inc. v. Formosa Plastics Corp., USA, 860 F.2d

172, 177 (5th Cir. 1988). “Summary judgment serves as ‘the mechanism

for deciding, as a matter of law, whether the agency action is . . .

consistent with the APA.’” O.A. v. Trump, 404 F. Supp. 3d 109, 125

(D.D.C. 2019).

Here, the Court provided the parties notice and an opportunity to

object. ECF No. 33. Defendants objected, contending that advancing to

a determination on the merits is improper for three reasons. ECF No.

35.

First, Defendants contend that Plaintiffs fail to meet the burden of

proof at the summary-judgment stage to establish standing. Id. at 1–2.

But if this were true, Defendants would not be prejudiced by proceeding

App. 8

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to the merits because the Court would rule in Defendants’ favor and

dismiss the case for lack of standing. This argument thus fails.

Second, Defendants have not had an opportunity to conduct

jurisdictional discovery to examine Plaintiffs’ intent to participate in

any comment process and the substance of their comments. But

assuming discovery revealed a fact issue as to Plaintiffs’ intent to

participate in any comment process and the substance of their

comments, those issues are not material to standing or the merits. Thus,

because these facts—even if resolved in Defendants’ favor—would not

“change the outcome of the lawsuit,” this objection is similarly meritless.

Sweetin v. City of Tex. City, 48 F.4th 387, 391 (5th Cir. 2022).

Third, Defendants have not yet produced the data underlying the

Secretary’s decision. ECF No. 35 at 3–4. Like Defendants’ second

objection, the data underlying the Secretary’s decision is not material.

Plaintiffs’ central arguments are whether the Secretary lacks the

authority for the Program and whether the Program had to go through

notice-and-comment procedures before the Secretary implemented the

Program. The data underlying the Secretary’s decision—while part of

the administrative record—is not material to either issue. See Sierra

Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 441 (5th Cir. 2001)

(stating that an issue of statutory construction is “a task which we are

competent to perform without the administrative record”); Alphapointe

v. Dep’t of Veterans Affs., 475 F. Supp. 3d 1, 12 (D.D.C. 2020) (stating

that resolving the plaintiffs’ notice-and-comment challenge “requires no

obvious need for the administrative record”).

The cases on which Defendants rely are not to the contrary. In each

case, the issue was whether the agency’s actions were “arbitrary and

capricious,” which concerns the reasonability of an agency’s decisionmaking process. See ECF No. 35 at 3–4; Citizens to Pres. Overton Park,

Inc. v. Volpe, 401 U.S. 402, 414 (1971), abrogated by Califano v. Sanders,

430 U.S. 99, 105 (1977); Dep’t of Com. v. New York, 139 S. Ct. 2551, 2564

(2019). Plaintiffs bring no such claim. See ECF No. 3. Nor does the data

underlying the Secretary’s decision have any bearing on any of

Plaintiffs’ claims. So even if the data underlying the Secretary’s decision

created a fact issue, that fact issue would not be material as it would not

App. 9

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Page 10 of 26 PageID 578

“change the outcome of the lawsuit.” Sweetin, 48 F.4th at 391.

Defendants’ third argument thus fails.

Thus, because Defendants identify no reason for delaying a

judgment, the prejudice resulting to Plaintiffs if the Court delays ruling

on the merits, no material facts are in dispute, and the issues here are

pure questions of law, the Court converts Plaintiffs’ preliminaryinjunction motion to a determination on the merits.

B. Jurisdiction

For the Court to reach the merits, Plaintiffs must establish the

Court’s jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

(1992). Article III of the Constitution limits federal-court jurisdiction to

“cases” and “controversies.” U.S. CONST. art. III, § 2. To satisfy this

requirement, a plaintiff must establish that he has standing—a

“personal stake” in the lawsuit. See Davis v. Fed. Election Comm’n, 554

U.S. 724, 732–33 (2008). At the summary-judgment stage, a plaintiff

must provide evidence of “specific facts” to establish standing. Id. Mere

allegations will not suffice. Lujan, 504 U.S. at 560

1. Standing

Standing contains three requirements. Lujan, 504 U.S. at 560. First,

there must be a concrete injury in fact that is not conjectural or

hypothetical. Whitmore v. Arkansas, 495 U.S. 149, 149 (1990). Second,

there must be causation—a fairly traceable connection between a

plaintiff’s injury and the complained-of conduct of the defendant. Simon

v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41–42 (1976). Third, there must

be redressability—a likelihood that the requested relief will redress the

alleged injury. See Lujan, 504 U.S. at 562. These three requirements

constitute the core of Article III’s case-or-controversy requirement. See

FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). But these

requirements are relaxed when a plaintiff asserts a deprivation of a

procedural right coupled with an associated concrete interest. See Texas

v. United States, 809 F.3d 134, 150–51 (5th Cir. 2015).

Defendants insinuate that nobody has standing to challenge the

Program—stating, “Article III of the Constitution imposes limitations

on the judiciary. And sometimes the result is that there is executive or

App. 10

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Page 11 of 26 PageID 579

legislative action for which there isn’t an appropriate plaintiff.” ECF No.

32 at 57. Defendants’ main contention, however, is that Plaintiffs lack

standing. ECF No. 24 at 8. Thus, the Court first addresses whether

anybody has standing to challenge the Program. And if so, whether

Plaintiffs have standing.

a. Defendants’ Contention that No One Has Standing to

Challenge the Program is Incorrect

Defendants seem to argue that no one has standing to challenge the

Program because where the government is providing a benefit, nobody

is harmed by the existence of that benefit. ECF No. 32 at 57–58. And

according to Defendants, “sometimes the result is that there is executive

or legislative action for which there isn’t an appropriate plaintiff.” Id. at

57 (emphasis added). The Court must disagree. The Supreme Court has

recognized that a plaintiff has standing to challenge a government

benefit in many cases. See, e.g., Ne. Fla. Chapter of Associated Gen.

Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993)

(holding that plaintiffs who did not qualify for government benefits had

standing); Bowsher v. Synar, 478 U.S. 714, 721 (1986) (holding that the

failure to receive benefits is enough to confer Article III standing).

Because Defendants’ contention that no one has standing to challenge

the Program because it confers a benefit is incorrect, the Court next

turns to whether Plaintiffs have standing.

b. Plaintiffs Have Standing

Injury in fact

Plaintiffs allege that their concrete injury is the deprivation of their

procedural right under the APA to provide meaningful input on any

proposal from the Department to forgive student-loan debt and their

accompanying economic interest in debt forgiveness. ECF No. 4 at 12.

As for Plaintiffs’ alleged deprivation of their procedural right, the

APA requires agencies administering their delegated authority to follow

certain procedures. See 5 U.S.C. § 553. These procedures obligate

agencies to subject their substantive rules to a notice-and-comment

period unless an exception applies. Id. A plaintiff is deprived of “a

procedural right to protect its concrete interests” if an agency violates

App. 11

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the APA’s procedural requirements. Texas v. EEOC, 933 F.3d 433, 447

(5th Cir. 2019) (citing Summers v. Earth Island Inst., 555 U.S. 488, 496

(2009)). But a bare assertion of a procedural right violation is not enough

to confer Article III standing. See Shrimpers & Fishermen of RGV v. Tex.

Comm’n on Env’t Quality, 968 F.3d 419, 426 (5th Cir. 2020). A plaintiff

must instead show a concrete injury stemming from that procedural

violation. Id.

Defendants dispute Plaintiffs’ alleged injuries for two reasons. First,

they argue that Plaintiffs could not have suffered a procedural

deprivation based on the lack of a notice-and-comment period because

the HEROES Act expressly exempts the APA’s notice-and-comment

requirement. ECF No. 24 at 8–9. Plaintiffs dispute this and argue that

because the HEROES Act does not authorize the Program, the Program

was promulgated in violation of the APA’s notice-and-comment

requirement. ECF No. 26 at 6–7. Because the Court must “assume, for

purposes of the standing analysis, that [Plaintiffs are] correct on the

merits of [their] claim that the [Program] was promulgated in violation

of the APA,” Plaintiffs have successfully alleged the deprivation of a

procedural right. EEOC, 933 F.3d at 447.

Second, Defendants assert, even if Plaintiffs have established the

violation of a procedural right, there is no accompanying concrete

interest stemming from that violation. ECF No. 24 at 9–11. They

contend that Plaintiffs’ “unhappiness that some other borrowers are

receiving a greater benefit than they are” is not a concrete interest. Id.

But this is untrue. Plaintiffs do not argue that they are injured because

other people are receiving loan forgiveness. Their injury—no matter how

many people are receiving loan forgiveness—is that they personally did

not receive forgiveness and were denied a procedural right to comment

on the Program’s eligibility requirements. Plaintiffs need to prove only

the existence of an associated “concrete interest,” not a guarantee of

concrete harm due to the procedural violation. EEOC, 933 F.3d at 447.

A benefit or legal-entitlement guarantee is not a prerequisite to

successfully establishing standing for a procedural-right violation. See,

e.g., Teton Historic Aviation Found. v. U.S. Dep’t of Def., 785 F.3d 719,

724 (D.C. Cir. 2015). A “plaintiff suffers a constitutionally cognizable

App. 12

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injury by the loss of an opportunity to pursue a benefit even though the

plaintiff may not be able to show that it was certain to receive that

benefit had it been accorded the lost opportunity.” Id.

Plaintiffs have a concrete interest in having their debts forgiven to a

greater degree. Brown is ineligible for the Program because her loans

are commercially held. And Taylor is ineligible for the full $20,000 in

debt forgiveness under the Program because he did not receive a Pell

Grant in college. Brown and Taylor’s inability to obtain the full benefit

of debt forgiveness under the Program flows directly from the Program’s

eligibility requirements. Thus, Defendants’ procedural error of not

providing for a notice-and-comment period—which the Court must

assume as true for standing—deprived Plaintiffs of “a non-illusory

opportunity to pursue [the] benefit” of greater debt forgiveness and an

opportunity to advocate for the expansion of the eligibility criteria of the

Program. Ecosystem Inv. Partners v. Crosby Dredging, LLC, 729 F.

App’x 287, 292 (5th Cir. 2018).

The first requirement of Article III standing is thus met.

ii.

Causation

Second, Plaintiffs argue that their injury is traceable to Defendants’

actions because Plaintiffs lost the chance to obtain more debt

forgiveness, which flows directly from Defendants’ promulgation of the

Program’s eligibility requirements that failed to undergo a notice-andcomment period. ECF No. 4 at 11–13. Defendants do not contest this

argument. And the Court agrees with Plaintiffs.

A plaintiff only has standing if he can assert a “personal injury fairly

traceable to the defendant’s allegedly unlawful conduct.” California v.

Texas, 141 S. Ct. 2104, 2117 (2021). An injury is fairly traceable if a

plaintiff’s “lost chance” to pursue a benefit flows directly from the

procedural violation. Ecosystem Inv. Partners, 729 F. App’x at 293.

Plaintiffs contend that they lost their chance to pursue debt forgiveness

by Defendants’ failure to offer a chance to comment on the Program’s

eligibility requirements. “This injury—denial of the opportunity to

participate—is more than fairly traceable to [the agency’s] alleged

App. 13

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inaction (failure to publish for notice and comment).” Nat’l Treasury

Emps. Union v. Newman, 768 F. Supp. 8, 10 (D.D.C. 1991).

Thus, the second requirement of Article III standing is met.

iii.

Redressability

Third, Plaintiffs contend that there is at least some possibility that

Defendants would reconsider the eligibility requirements of the

Program if it were enjoined or vacated, which fulfills the lighter

redressability requirement that applies when a procedural injury is

alleged. ECF No. 26 at 3–4. The Court agrees. To establish standing, a

plaintiff must normally prove that a favorable ruling would redress its

entire injury at the hands of a defendant. See Clapper v. Amnesty Intern.

USA, 568 U.S. 398, 409 (2013). But “when a litigant is vested with a

procedural right, that litigant has standing if there is some possibility

that the requested relief will prompt the injury-causing party to

reconsider the decision that allegedly harmed the litigant.”

Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (emphasis added). Even

if this lighter standard applies, a plaintiff must still show that it is

“likely, as opposed to merely speculative, that a favorable decision will

redress the [injury].” S. Christian Leadership Conf. v. Sup. Ct. of State

of La., 252 F.3d 781, 788 (5th Cir. 2001).

In response, Defendants argue that Plaintiffs’ alleged injury will not

be redressed by a favorable decision of the Court because enjoining or

vacating the Program will not provide Plaintiffs any loan forgiveness.

ECF No. 24 at 11. But Defendants misread the redressability

requirement in the context of procedural injuries. Plaintiffs need only

prove that there is some possibility that Defendants will reconsider the

confines of the Program if it is struck down in its current form. See Texas

v. United States, 787 F.3d 733, 754 (5th Cir. 2015). And “enjoining the

implementation of [the Program] until it undergoes notice and comment

could prompt [the Secretary] to reconsider its decision, which is all a

litigant must show when asserting a procedural right.” Id. at 753–54.

Because Plaintiffs satisfy all three Article III standing requirements,

they may challenge Defendants’ conduct on the merits. As a result, the

App. 14

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Court denies Defendants’ Motion to Dismiss for Lack of Jurisdiction

(ECF No. 25).

2. Judicial Review

When a party challenges the legality of agency action, the Court must

also ensure that the agency action at issue is reviewable under the APA.

Data Mktg. P’ship, LP v. U.S. Dep’t of Lab., 45 F.4th 846, 853 (5th Cir.

2022). An agency action is reviewable if (1) there has been a final agency

action and (2) the plaintiff’s injury is within the zone of interests of the

statute allegedly violated. See 5 U.S.C. § 704; Match–E–Be–Nash–She–

Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012).

Neither party disputes that the Program is reviewable under the APA.

Still, judicial review implicates jurisdiction. Data Mktg. P’ship, 45 F.4th

at 853. As a result, the Court must consider whether the Program is

reviewable under the APA to ensure that it does “not exceed the scope

of [its] jurisdiction.” Henderson v. Shinseki, 562 U.S. 428, 434 (2011).

a. Final Agency Action

Finality is a “jurisdictional prerequisite of judicial review.” Data

Mktg. P’ship, 45 F.4th at 853 (quotation omitted). The APA provides a

right to judicial review of “final agency action” unless the statute

precludes judicial review or the action falls under agency discretion. 5

U.S.C. § 701(a). To meet the limited agency exception, there must be

“no meaningful standard against which to judge the agency’s exercise of

discretion.” Lincoln v. Vigil, 508 U.S. 182, 191 (1993) (quotation

omitted). Actions that fall under agency discretion are rare and only

apply when the standard of review is unclear. 14

The text of the HEROES Act does not preclude judicial review, and

the Secretary’s action falls within the Act’s plain text, which authorizes

waivers or modifications of various student-loan provisions. 20 U.S.C.

14 See, e.g., Lincoln, 508 U.S. at 191 (1993) (holding that an agency’s use of lumpsum appropriation funds with no designation fell within the agency’s discretion);

Franklin v. Massachusetts, 505 U.S. 788, 817, (1992) (holding that an agency’s decision

to fire employee fell within the agency’s discretion); Heckler v. Chaney, 470 U.S. 821,

830 (1985) (holding that an agency’s decision not to enforce their own policy fell within

the agency’s discretion).

App. 15

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§ 1098bb(a)(1). This provides a clear standard of review. Thus, neither

exception in § 701(a) applies here.

Finality requires two things: (1) the action must be the ending result

or “consummation” of the entire agency decision-making process—not a

tentative or intermediate step in the process—and (2) the action must

determine rights or obligations that produce legal consequences. U.S.

Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 597, 599 (2016).

Both conditions of finality are present. First, in the Secretary’s

notice, the Department spells out its decision-making process, legal

basis for the decision, and intent to proceed with the Program. Nothing

in the waiver’s text reflects that the decision to implement the Program

is provisional or still under review. Second, the action—the Program—

forgives around eight million individuals a portion of their legallybinding student loan obligations, costing over $400 billion. This action

affects the rights and obligations of millions of loan recipients and

carries sweeping legal consequences for federal student-loan programs

by changing the terms of the HEA.

The Department’s action is thus final.

b. Zone of Interests

Along with the finality requirement, the Court may review an agency

action only if a plaintiff’s interests are “arguably within the zone of

interests to be protected or regulated by the statute that he says was

violated.” Patchak, 567 U.S. at 224. A plaintiff with Article III standing

satisfies the requirement unless their “interests are so marginally

related to or inconsistent with the purposes implicit in the statute that

it cannot reasonably be assumed that Congress intended to permit the

suit.” Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 177 (2011)

(quotation omitted). But doing so is not “especially demanding,” and “the

benefit of any doubt goes to the plaintiff.” Patchak, 567 U.S. at 225.

Here, Plaintiffs have Article III standing. And because the Secretary

considers Plaintiffs “affected individuals” under the HEROES Act and

are federal loan recipients excluded from the Program, they satisfy the

zone-of-interest test. The Court may thus review the agency’s

implementation of the Program.

App. 16

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C. Summary Judgment

Article I of the Constitution allows Congress to “delegate” some of its

legislative powers to administrative agencies. U.S. CONST. art. I, § 8, cl.

3; see Mistretta v. United States, 488 U.S. 361, 372 (1989). When

administering their delegated authority, agencies must comply with the

APA’s procedural and substantive requirements. See 5 U.S.C. § 553. The

procedural requirements obligate agencies to subject their substantive

rules to notice and comment unless an exception applies. See 5 U.S.C. §

553. The substantive requirements “‘requires courts to hold unlawful

and set aside agency action’ that is ‘in excess of statutory jurisdiction,

authority, or limitations.’” See Texas v. United States, 50 F.4th 498, 525

(5th Cir. 2022) (quoting 5 U.S.C. § 706(2)(C)).

Plaintiffs argue that the Program violates the APA’s procedural and

substantive requirements. The Court addresses each in turn.

1. APA’s Procedural Requirements

Plaintiffs argue that the Program violates the APA’s procedural

requirements because it did not go through notice and comment before

implementation. ECF No. 4 at 13.

The APA requires agencies to subject their substantive rules to

notice and comment. See 5 U.S.C. § 553. Substantive rules “grant rights,

impose obligations, or produce other significant effects on private

interests.” Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897,

908 (5th Cir. 1983) (quoting Batterton v. Marshall, 648 F.2d 694, 701–

02 (D.C. Cir. 1980)). A substantive rule is usually unenforceable if it does

not undergo notice and comment. Id. But if the agency’s authorizing

statute expressly exempts the agency’s rules from notice and comment,

the rule is enforceable. 5 U.S.C. § 559.

Plaintiffs argue that the Program is a substantive rule because it

‘“grants rights’ by promising to eliminate individuals’ debt if they meet

certain requirements and ‘imposes obligations’ on the Department to

forgive debt for those who meet the requirements.” See ECF No. 4 at 14

(quoting W & T Offshore, Inc. v. Bernhardt, 946 F.3d 227, 237 (5th Cir.

2019)). They rely on Bernhardt to support their argument. But this

reliance is misplaced. In Bernhardt, the agency’s statutory authority did

App. 17

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not exempt the agency from notice-and-comment requirements of the

APA. 946 F.3d at 237. The statutory authority here does:

“Notwithstanding section 1232 of this title and section 553 of Title 5, the

Secretary shall by notice in the Federal Register, publish the waivers or

modifications of statutory and regulatory provisions the Secretary

deems necessary to achieve the purposes of this section.”

§ 1098bb(b)(1). 15

Plaintiffs, however, argue that § 1098bb(b)(1) “applies only when the

waiver or modifications are ‘authorized’ under Section 1098bb(a)” and

that the Program is not “authorized” by § 1098bb(a). ECF No. 26 at 7.

Whether the HEROES Act authorizes the Program pertains to the

APA’s substantive requirements. But as a procedural matter, the

Secretary may waive or modify any provision without notice and

comment under the HEROES Act. All the APA requires is that the

Secretary publish the modifications of title IV of the HEA, which the

Secretary has done here.

Thus, because the Program was issued under the HEROES Act,

which exempts notice and comment, the Program did not violate the

APA’s procedural requirements. Whether the HEROES Act authorized

the Program is a different story.

2. APA’s Substantive Requirements

Plaintiffs contend that the Secretary lacks the authority to

implement the Program under the HEROES Act. ECF Nos. 4 at 16; 34

at 4. When reviewing an agency’s interpretation of its statutory

authority, courts have generally applied the framework established in

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

15 Whether § 1098bb(b)(1) exempts notice and comment turns on the word

“notwithstanding.” But a dictionary definition of “notwithstanding” does not answer

that question as “[d]rafters often use nothwithstanding in a catchall provision, where

its supposed referent is unclear.” See A. SCALIA & B. GARNER, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS 126 (2012) (emphasis in original). “A dependent

phrase that begins with notwithstanding indicates that the main clause that it

introduces or follows derogates from the provision to which it refers.” Id. Thus,

“notwithstanding is a fail-safe way of ensuring that the clause it introduces will

absolutely, positively prevail.” Id. at 127. Here, “notwithstanding” in § 1098bb(b)(1)

means without obstruction from the notice and comment requirements. Plaintiffs do

not dispute this meaning.

App. 18

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837, 843–44 (1984). Under Chevron, if a statute is ambiguous about the

issue, courts defer to the agency’s interpretation of the statute if it is

“reasonable.” Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218

(2009)). In recent years, however, the Supreme Court has chipped away

at Chevron—giving back “the benefit of doubt about the meaning of an

ambiguous law to the individual” instead of the government. Buffington

v. McDonough, No. 21-972, 2022 WL 16726027, at *5 (U.S. Nov. 7, 2022)

(cleaned up).

The most recent example of Chevron’s fall is the crystallization of the

long-developing major-questions doctrine in West Virginia v. EPA, 142

S. Ct. 2587 (2022). 16 The doctrine provides that when an agency seeks

to resolve a major question, a “merely plausible textual basis for the

agency action” is not enough. Id. at 2609. “The agency instead must

point to ‘clear congressional authorization’ for the power it claims.” Id.

(quoting Utility Air Reg. Grp. v. EPA, 573 U.S. 302, 324 (2014)).

Plaintiffs contend that the Program fails under the major-questions

doctrine. The Court thus addresses whether the doctrine applies. And if

so, whether there is “clear congressional authorization” for the

Program. 17

a. The Major-Questions Doctrine Applies

The major-questions doctrine applies if an agency claims the power

to make decisions of vast “economic and political significance.” Id. at

2607–14. It is unclear what exactly constitutes “vast economic

significance.” But courts have generally considered an agency action to

be of vast economic significance if it requires “billions of dollars in

spending.” King v. Burwell, 576 U.S. 473, 485 (2015). For example, the

Supreme Court in Alabama Association of Realtors v. Department of

16 The major-questions doctrine’s precise relationship to the Chevron framework is

unclear, as the Court did not mention Chevron in that case. Defendants stated at the

preliminary-injunction hearing that Chevron does not apply if the major-questions

doctrine applies. See ECF No. 32. Nor does either party mention Chevron in their

briefs. For those reasons, the Court reasons that Chevron is not applicable here. But

even if it were applicable, the major questions doctrine compels the same result—the

Secretary lacks “clear congressional authorization” to implement the Program—

regardless of how the major-questions doctrine fits into the Chevron framework.

App. 19

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Health & Human Services reasoned that an economic impact of $50

billion was of vast economic significance. 141 S. Ct. 2485, 2489 (2021).

Similarly, the Fifth Circuit in BST Holdings, L.L.C v. OSHA held that

$3 billion in compliance costs was enough to trigger the major-questions

doctrine. 17 F. 4th 604, 617 (5th Cir. 2021). Because the Program will

cost more than $400 billion—over 100 times more than the amount in

BST Holdings and 20 times more than the amount in Alabama

Association of Realtors—it has vast economic significance.

An agency action is politically significant if Congress has been

“engaged in robust debates” over bills authorizing something like the

agency’s action. West Virginia, 142 S. Ct. at 2620–21 (Gorsuch, J.,

concurring). And if Congress “considered and rejected” such bills, “that

too may be a sign that an agency is attempting to work around the

legislative process to resolve for itself a question of great political

significance.” Id. (cleaned up). For example, in NFIB v. OSHA, the

Supreme Court held that the major-questions doctrine applied when

various vaccine mandate bills considered by Congress had failed, and an

agency sought to mandate COVID-19 vaccines for millions of Americans.

142 S. Ct. 661, 662–66 (2022).

Similarly, Congress has introduced multiple bills to provide student

loan relief to those who make under a certain amount. See S. 2235, 116th

Cong. (2019); H.R. 2034, 117th Cong. (2021). And all have failed. A bill

was also introduced—to respond to the economic impact of COVID-19—

that provided the Secretary the authority to “cancel or repay” federal

student loans up to “$10,000 [of] the outstanding balance” for certain

borrowers. See H.R. 6800, 116th Cong. § 150117(h). But this bill also

failed. Thus, given Congress’s extensive consideration of various bills

seeking to forgive student loans and failure to pass such bills, the

Program is of vast political significance.

Oddly enough, Defendants do “not deny that this is a case of economic

and political significance.” ECF No. 24 at 22. Instead, they argue that

the doctrine does not apply because “this case involves the disbursement

of a federal benefit to individuals, not the kind of expansive regulation

of private parties that have previously triggered the doctrine.” Id. at

App. 20

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23. 18 But this statement is untrue. See Kentucky v. Biden, 23 F.4th 585,

606–08 (6th Cir. 2022) (applying the major-questions doctrine to vaccine

mandate for federal employees); Georgia v. President of the U.S., 46

F.4th 1283, 1295–96 (11th Cir. 2022) (same). And even if this were true,

the Court would not presume that the doctrine does not apply to an

agency decision of vast economic and political significance because it

involves the disbursement of a federal benefit. Instead, the Court must

“presume that ‘Congress intends to make major policy decisions itself,

not leave those decisions to agencies.’” West Virginia, 142 S. Ct. at 2609

(quoting U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 419 (D.C. Cir. 2017)).

Thus, because the Program is an agency action of vast economic and

political significance, the major-questions doctrine applies.

b. The Secretary Lacks “Clear Congressional Authorization” to

Implement the Program

Because the major-questions doctrine applies, the Government’s

assertion of authority is treated with “skepticism.” West Virginia, 142 S.

Ct. at 2614. “To overcome that skepticism, the Government must . . .

point to clear congressional authorization” permitting its action. Id.

(cleaned up). To do so, Defendants point to the HEROES Act. But the

text of the Act points the other way for at least three reasons. See

Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845) (“The law as it passed

is the will of the majority of both houses, and the only mode in which

that will is spoken is in the act itself; and we must gather their intention

from the language there used.”).

First, the HEROES Act does not mention loan forgiveness. If

Congress provided clear congressional authorization for $400 billion in

student loan forgiveness via the HEROES Act, it would have mentioned

loan forgiveness. The Act allows the Secretary only to “waive or modify”

provisions of title IV. The Secretary then uses that provision to rewrite

18 The Court finds it telling that Defendants—rather than addressing Plaintiffs’

arguments that the major-questions doctrine applies—copied and pasted their entire

major-questions doctrine section from another lawsuit challenging the Program.

Compare ECF No. 24 at 22–26, with Nebraska v. Biden, No. 4:22-CV-1040-HEA, ECF

No. 27 at 29–35.

App. 21

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title IV portions to provide for loan forgiveness. 19 But “enabling

legislation” like the HEROES Act is not an “open book to which the

agency may add pages and change the plot line.” West Virginia, 142 S.

Ct. at 2609 (2022); U.S. Fleet Servs. Inc. v. City of Fort Worth, 141 F.

Supp. 2d 631, 644 (N.D. Tex. 2001) (Mahon, J.) (refusing to engage in an

exercise of “legal jingoism” requiring the court to insert words into a law

or rule to arrive at a particular party’s interpretation). Agencies may

“not seek to hide elephants in mouseholes.” West Virginia, 142 S. at 2622

(Gorsuch, J., concurring) (quoting Whitman v. Am. Trucking Ass’ns, Inc.,

531 U.S. 457, 468 (2001)).

Second, the portions of the HEROES Act Defendants rely on fail to

provide clear congressional authorization for the Program. Defendants

rely on the COVID-19 pandemic as their justification for the Program.

They contend that the HEROES Act allows the Secretary the authority

to address the financial hardship of the COVID-19 pandemic. Indeed,

the COVID-19 pandemic falls within the HEROES Act’s definition of an

emergency. § 1098ee(4). But it is unclear whether the Program is

“necessary in connection with [that] national emergency.”

§ 1098bb(a)(1). The COVID-19 pandemic was declared a national

emergency almost three years ago and declared weeks before the

Program by the President as “over.” 20 Thus, it is unclear if COVID-19 is

still a “national emergency” under the Act.

Defendants contend that in ten years, they could still use the

HEROES Act to forgive student-loan debt because of the COVID-19

pandemic if the Secretary deems it “necessary.” ECF No. 32, at 69–70.

But a legislative provision with “broad or general language” will not

supply a clear statement. Id. at 2623. The Department’s reliance on its

19 As the Texas Supreme Court recognized 130 years ago:

When the purpose of a legislative enactment is obvious from the

language of the law itself, there is nothing left to construction. In such

case it is vain to ask the courts to attempt to liberate an invisible spirit,

supposed to live concealed within the body of the law, and thus

interpret away the manifest legislative intention by embracing

subjects not fairly within the scope of the statute.

Dodson v. Bunton, 17 S.W. 507, 508 (Tex. 1891).

20 60

Minutes (@60Minutes),

https://tinyurl.com/2s35maau.

TWITTER

App. 22

(Sept.

18,

2022,

7:09

PM),

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ability to modify provisions of title IV “as the Secretary deems necessary

in connection with a . . . national emergency” is the very language that

does not supply a clear statement. See, e.g., Ala. Ass’n of Realtors, 141

S. Ct. at 2489 (“It is hard to see what measures [the Government’s]

interpretation would place outside the CDC’s reach, and the

Government has identified no limit in [42 U.S.C.] § 361(a) beyond the

requirement that the CDC deem a measure ‘necessary.’”) (emphasis

added).

Third, “the agency’s past interpretations of the relevant statute” is

another clue that the Secretary lacks clear congressional authorization

for the Program. West Virginia, 142 S. Ct. at 2625 (Gorsuch, J.,

concurring). “When an agency claims to have found a previously

‘unheralded power’ in a rarely invoked statutory provision, its assertion

generally warrants ‘a measure of skepticism.’” Id. (quoting Utility Air,

573 U. S., at 324). According to the Department, they have not “relied

on the HEROES Act or any other statutory, regulatory, or interpretative

authority for the blanket or mass cancellation. . . of student loan

principal balances, and/or the material change of repayment amounts or

terms.” See Memorandum to Betsy DeVos Secretary of Education at 6.

Thus, because the Department lacks “clear congressional

authorization” for the Program under the HEROES Act, the Court

grants summary judgment for Plaintiffs.

c. Vacatur is the Appropriate Remedy

Next, the appropriate remedy. Plaintiffs seek two types of relief—

vacatur of the Program and nationwide injunctive relief. “Vacatur [of an

agency action] retroactively undoes or expunges a past [agency] action

. . . . Unlike an injunction, which merely blocks enforcement, vacatur

unwinds the challenged agency action.” Data Mktg. P’ship, 45 F.4th at

859 (quoting Driftless Area Land Conservancy v. Valcq, 16 F.4th 508,

522 (7th Cir. 2021)) (alterations and ellipsis in original). While “[i]t is

not beyond the power of a court, in appropriate circumstances, to issue

a nationwide injunction,” these circumstances do not justify such a

remedy. Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015).

App. 23

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Instead, “the ordinary practice is to vacate unlawful agency action.”

Data Mktg. P’ship, 45 F.4th at 859 (quoting United Steel v. Mine Safety

& Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019)). Vacatur is

authorized by 5 U.S.C. § 706, which requires the Court to decide “all

relevant questions of law [and] interpret constitutional and statutory

provisions” and “hold unlawful and set aside” agency action “not in

accordance with law,” “in excess of statutory jurisdiction,” or “short of

statutory right.” Because “under our Constitution, the people’s elected

representatives in Congress are the decisionmakers here—and they

have not clearly granted the agency the authority it claims for itself,”

the Program is unlawful. West Virginia, 142 S. Ct. at 2626 (2022)

(Gorsuch, J., concurring). The Court thus applies the “default rule” and

vacates the Program. See Data Mktg. P’ship, 45 F.4th at 859–60.

Sometimes courts—though authorized by the APA to vacate an

agency action—exercise their discretion to remand the action for

adjustments or another agency review. See, e.g., Texas v. United States,

50 F.4th at 529. In deciding whether to sidestep complete vacatur, courts

consider “(1) the seriousness of the deficiencies of the action, that is, how

likely the agency will be able to justify its decision on remand; and

(2) the disruptive consequences of the vacatur.” Id. If there is a small

defect or deficiency that is quickly curable or an existing complex agency

program that requires major winddown efforts, a court may remand

without vacating the entire action. See, e.g., Lion Health Servs., Inc. v.

Sebelius, 635 F.3d 693, 703 (5th Cir. 2011) (remanding to the agency to

recalculate amounts owed in a manner consistent with the statute).

Both factors weigh against remand. First, the agency’s misstep is not

correctible on remand—it is a complete usurpation of congressional

authorization implicating the separation of powers required by the

Constitution. Second, the Program does not require a significant

administrative winddown period, as loan forgiveness has not started.

Thus, remand is not the appropriate remedy.

For those reasons, vacatur of the Program is the appropriate remedy.

App. 24

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CONCLUSION

This case involves the question of whether Congress—through the

HEROES Act—gave the Secretary authority to implement a Program

that provides debt forgiveness to millions of student-loan borrowers,

totaling over $400 billion. Whether the Program constitutes good public

policy is not the role of this Court to determine. 21 Still, no one can

plausibly deny that it is either one of the largest delegations of

legislative power to the executive branch, or one of the largest exercises

of legislative power without congressional authority in the history of the

United States.

In this country, we are not ruled by an all-powerful executive with a

pen and a phone. Instead, we are ruled by a Constitution that provides

for three distinct and independent branches of government. As

President James Madison warned, “[t]he accumulation of all powers,

legislative, executive, and judiciary, in the same hands, whether of one,

a few, or many, and whether hereditary, self-appointed, or elective, may

justly be pronounced the very definition of tyranny.” THE FEDERALIST

NO. 47.

The Court is not blind to the current political division in our country.

But it is fundamental to the survival of our Republic that the separation

of powers as outlined in our Constitution be preserved. And having

interpreted the HEROES Act, the Court holds that it does not provide

“clear congressional authorization” for the Program proposed by the

Secretary.

Thus, Plaintiffs’ Motion for Summary Judgment (ECF No. 3) is

GRANTED, and Defendants’ Motion to Dismiss (ECF No. 25) is

21 Under our system of government, public policy is typically made by the Congress

through a negotiated-and-reasoned process among the members, with input from the

President, and based on how Congress legislated, those members would then be held

accountable by their constituents each election cycle. See Speaker Sam Rayburn,

quoted in D.B. Hardeman & Donald C. Bacon, RAYBURN: A BIOGRAPHY 429 (1987) (“A

[politician] who is not willing to get out and defend what he has done will ultimately

find himself in poor shape politically.”). As President Lyndon Johnson was fond of

admonishing Congress, “Come now, let us reason together.” JOHN BARTLETT, FAMILIAR

QUOTATIONS 872 (15th ed. 1980).

App. 25

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DENIED. And the Court DECLARES UNLAWFUL and VACATES

the Program.

SO ORDERED on this 10th day of November 2022.

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

App. 26

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MYRA BROWN and ALEXANDER

TAYLOR,

Plaintiffs,

Case No. ________

U.S. DEPARTMENT OF

EDUCATION; MIGUEL

CARDONA, in his official capacity as

the Secretary of Education,

Defendants.

DECLARATION OF MYRA BROWN

I am over the age of eighteen and under no mental disability or

impairment. I have personal knowledge of the following facts and, if called as a witness,

I would competently testify to them.

I received my undergraduate degree from the University of Texas at El-

Paso in 1993. I then attended graduate school at the Cox School of Business at Southern

Methodist University in Dallas, Texas.

I completed my graduate school studies in 2002.

To pay for graduate school, I received student loans through the Federal

Family Education Loan Program (“FFELP”).

I currently have two FFELP loans totaling more than $17,000. My loans

are commercially held and are not in default.

App. 27

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Page 4 of 85 PageID 60

Because my loans are commercially held and not in default, I am ineligible

for debt forgiveness under the Debt Forgiveness Program.

If the Department is going to provide debt forgiveness, I believe that my

student loan debt should be forgiven too.

I believe it is irrational, arbitrary, and unfair to exclude me from the

program because my federal student loans are commercially held and not in default.

I want an opportunity to present my views to the Department and provide

additional comments on any proposal from the Department to forgive student loan

debts.

App. 28

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Page 5 of 85 PageID 61

Per 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is true

and correct to the best of my knowledge.

Executed on Octobe r __3_, 2022.

App. 29

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Page 6 of 85 PageID 62

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MYRA BROWN and ALEXANDER

TAYLOR,

Plaintiffs,

Case No. ________

U.S. DEPARTMENT OF

EDUCATION; MIGUEL

CARDONA, in his official capacity as

the Secretary of Education,

Defendants.

DECLARATION OF ALEXANDER TAYLOR

I am over the age of eighteen and under no mental disability or

impairment. I have personal knowledge of the following facts and, if called as a witness,

I would competently testify to them.

I received my undergraduate degree from the University of Dallas. To pay

for my undergraduate studies, I received federal student loans through the Direct Loan

Program.

I currently have four loans totaling more than $35,000. My loans are held

by the Department of Education.

I am not married and made less than $125,000 in 2020 and 2021.

Because I never received a Pell Grant, I am ineligible to receive $20,000

in debt forgiveness under the Debt Forgiveness Program.

App. 30

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Page 7 of 85 PageID 63

If the Department is going to provide debt forgiveness, I believe that my

student loan debt should be forgiven too and that I should not be punished because I

did not receive a Pell Grant in college.

I make less than $25,000 a year, but I am ineligible for the $20,000 in debt

forgiveness.

Yet others making more than five times as much as I do (up to $125,000

a year) will receive $20,000 in debt relief if they got a Pell Grant in college.

I believe that it is irrational, arbitrary, and unfair to calculate the amount

of debt forgiveness I receive based on the financial circumstances of my parents many

years ago.

10.

I want an opportunity to present my views to the Department and provide

additional comments on any proposal from the Department to forgive student loan

debts.

App. 31

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Page 8 of 85 PageID 64

Per 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is

true and correct to the best of my knowledge.

Executed on October 1, 2022.

App. 32

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Page 9 of 85 PageID 65

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MYRA BROWN and ALEXANDER

TAYLOR,

Plaintiffs,

Case No. ________

U.S. DEPARTMENT OF

EDUCATION; MIGUEL

CARDONA, in his official capacity as

the Secretary of Education,

Defendants.

DECLARATION OF J. MICHAEL CONNOLLY

I am an attorney at the law firm Consovoy McCarthy PLLC and am

counsel for Plaintiffs.

I am over the age of eighteen and under no mental disability or

impairment. I have personal knowledge of the following facts and, if called as a witness,

I would competently testify to them.

Attached as Exhibit A is a true and correct copy of a web page from the

Department of Education’s StudentAid.gov website titled One-Time Student Debt Relief,

as it appeared on September 8, 2022, at https://studentaid.gov/debt-reliefannouncement/one-time-cancellation. An archived copy of the web page is available at

https://bit.ly/3ygbuGz.

App. 33

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Page 10 of 85 PageID 66

Attached as Exhibit B is a true and correct copy of a web page from the

Department of Education’s StudentAid.gov website titled One-Time Student Debt Relief,

as it appeared on October 1, 2022, at https://studentaid.gov/debt-reliefannouncement/one-time-cancellation. An archived copy of the web page is available at

https://bit.ly/3fBmyrm.

Per 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is true

and correct to the best of my knowledge.

Executed on October 4, 2022.

/s/ J. Michael Connolly

J. Michael Connolly

App. 34

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Exhibit A

App. 35

Page 11 of 85 PageID 67

Case 4:22-cv-00908-O Document 5 Filed 10/10/22 Page 12 of 85 PageID 68

The Wayback Machine - https://web.archive.org/web/20220908182538/https://studentaid.gov/debt-relief-anno…

An official website of the United States government.

Federal Student Aid

An OFFICE of the U.S. OEPARTMENT of EOUCATION

One-Time Student Loan Debt Relief

On Aug. 24, 2022, the Biden-Harris Administration announced a Student Debt Relief Plan that

includes one-time student loan debt relief targeted to low- and middle-income families.

The U.S. Department of Education (ED) will provide up to $20,000 in debt relief to Federal Pell

Grant recipients and up to $10,000 in debt relief to non-Pell Grant recipients. Borrowers with

loans held by ED are eligible for this relief if their individual income is less than $125,000 (or

$250,000 for households).

Get up to $20,000

in federal student

loan debt relief

based on your

income.

What Do I Need to Know?

An online form will be available by early October. Here are some steps you can take

App. 36

now and in the future.

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

p y

Page 13 of 85 PageID 69

Step 1: Check if you're eligible

You're eligible for student loan debt relief if your annual federal income was below

$125,000 (individual or married, filing separately) or $250,000 (married, filing jointly

or head of household) in 2021 or 2020.

• $20,000 in debt relief: If you received a Pell Grant in college and meet the

income threshold, you'll be eligible for up to $20,000 in debt relief.

• $10,000 in debt relief: If you did not receive a Pell Grant in college and meet the

income threshold, you'll be eligible for up to $10,000 in debt relief.

Step 2: Prepare

Here's what you can do to get ready and to make sure you get our updates:

• Log in to your account on StudentAid.gov and make sure your contact info is up

to date. We'll send you updates by both email and text message, so make sure to

can't remember if you have an account username and password (FSA ID), we

offer tips to help you access your account.

• If you don't have a StudentAid.gov account (FSA ID), you should create an

account to help you manage your loans.

• Make sure your loan servicer has your most current contact information so they

can reach you. If you don't know who your servicer is, you can log in and see

your servicer(s) in your account dashboard.

Step 3: Submit your application (when available)

The application will be available online by early October 2022.

We'll share updates on this page and send you an email when the application is

available. You'll have until Dec. 31, 2023, to submit your application.

Federal Pell Grants

How Do I Know If I Ever Received a Federal Pell Grant?

App. 37

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Page 14 of 85 PageID 70

Federal Pell Grants typically are awarded to undergraduate students with low or

moderate income.

Most borrowers can log in to StudentAid.gov to see if they received a Pell Grant. We

display information about the aid you received, including Pell Grants, on your

account dashboard and your “My Aid” pages.

When you apply for debt relief, we'll make sure all borrowers who received a Pell

Grant receive the full benefit of up to $20,000 in relief if they meet the income

requirements. ED has data on all borrowers who received a Pell Grant. If you

received a Pell Grant prior to 1994, that information won't display in StudentAid.gov,

but you'll still receive the full benefit.

If I have a Pell Grant, do I need to do anything to get the full $20,000 in debt

relief?



Yes. You just need to submit your application for debt relief. We have a record of

every student who has ever received a Federal Pell Grant. When you submit your

application, we'll check our records to determine if you have a Pell Grant, which

would qualify you for up to $20,000 in debt relief. You don't need to take any

additional action to show us that you received a Pell Grant.

Do I still qualify for the full $20,000 in debt relief if I received only one Pell

Grant?



Yes. As long as you received at least one Pell Grant of any amount, you qualify for the

additional $10,000 in debt relief. This additional $10,000 will be applied to eligible

loans, such as undergraduate, graduate, or parent loans. It doesn't matter if the Pell

App. 38

Case 4:22-cv-00908-O Document 5 Filed 10/10/22 Page 15 of 85 PageID 71

Grant was used for the same program of study or at the same school as your federal

student loan(s).

If I have parent PLUS loans and my child received a Pell Grant, can the full

$20,000 in debt relief be applied to my parent PLUS loans?



No. Eligibility for debt relief is based on each borrower's situation.

If a dependent student received a Pell Grant, up to $20,000 in debt relief will be

applied to the student's loans—not to any loans their parent may have taken out.

A parent who has taken out loans—including loans for their own studies or parent

PLUS loans for their child—may qualify for debt relief if they meet the income

eligibility criteria. If a parent also received a Pell Grant for their own studies, then

the parent borrower may be eligible for up to $20,000 in relief on their loans.

Otherwise, the parent borrower may be eligible for up to $10,000 in debt relief.

Which Loans Are Eligible?

Most federal student loans are eligible

Undergraduate and Graduate Direct Loans

Parent PLUS and Grad PLUS Loans

Consolidation Loans

Underlying loans disbursed on or before June 30, 2022

Federal Family Education Loan (FFEL)

Program Loans held by ED

Perkins Loans held by ED

Defaulted loans

ED-held or commercial ly serviced Subsidized, Unsubsidized, parent

PLUS, grad PLUS; and Perkins held by ED

App. 39

Case 4:22-cv-00908-O Document 5 Filed 10/10/22 Page 16 of 85 PageID 72

The following types of federal student loans with an outstanding balance as of June 30, 2022,

are eligible for relief:

• William D. Ford Federal Direct Loan (Direct Loan) Program loans

Subsidized loans

Unsubsidized loans

Parent PLUS loans

Graduate PLUS loans

Consolidation loans, as long as all of the underlying loans that were consolidated

were first disbursed on or before June 30, 2022

• Federal Family Education Loan (FFEL) Program loans held by ED or in default at a

guaranty agency

• Federal Perkins Loan Program loans held by ED

• Defaulted loans (includes ED-held or commercially serviced Subsidized Stafford,

Unsubsidized Stafford, parent PLUS, and graduate PLUS; and Perkins loans held by ED)

How do I know what kinds of loans I have?



You can identify your loan types by logging on to StudentAid.gov and selecting “My

Aid” in the dropdown menu under your name. In the “Loan Breakdown” section,

you'll see a list of each loan you received. You'll also see loans you paid off or

consolidated into a new loan. If you expand “View Loans” and select the “View Loan

Details” arrow next to a loan, you'll see the more detailed name for that loan.

Direct Loans begin with the word “Direct.” Federal Family Education Loan Program

loans begin with “FFEL.” Perkins Loans include the word “Perkins” in the name. If

the name of your servicer starts with “Dept. of Ed” or “Default Management

Collection System,” your FFEL or Perkins loan is federally managed (i.e., held by ED).

The “My Aid” section will also show you the servicer(s) for your loans.

Are defaulted loans eligible for debt relief?

App. 40



Are defaulted

loans eligible for

debt relief?

Case 4:22-cv-00908-O

Document

5 Filed 10/10/22

Page 17 of 85 PageID 73



Yes, defaulted loans are eligible for debt relief. If you have a remaining balance on

your defaulted loan(s) after relief is applied, consider getting or staying out of default

through the Fresh Start initiative.

Are private loans (i.e., non-federal loans) eligible for debt relief?



No. Private (non-federal) loans are not eligible for debt relief. If you consolidated

federal loans into a private (non-federal) loan, the consolidated private loan is not

eligible for debt relief.

Are parent PLUS loans and graduate PLUS loans eligible for debt relief?



Yes. All ED-held loans, including PLUS loans for parents and graduate students, are

eligible for relief.

Are Federal Family Education Loans (FFEL) or Perkins Loans eligible for debt

relief?



It depends. All loans eligible for the student loan pause are also eligible for relief,

including loans held by ED and guaranty agencies.

ED is assessing whether to expand eligibility to borrowers with privately owned

federal student loans, including FFEL and Perkins Loans. In the meantime,

borrowers with privately held federal student loans, such as through the FFEL,

Perkins, and HEAL programs, can receive this relief by consolidating these loans into

the Direct Loan program.

App. 41

Case 4:22-cv-00908-O Document 5 Filed 10/10/22 Page 18 of 85 PageID 74

FFEL Joint Consolidation Loans, often referred to as spousal consolidation loans, are

not eligible for consolidation into the Direct Loan program under current law.

Frequently Asked Questions (FAQs)

General Info About Debt Relief

How can I find out how much debt relief I'll get?



If you meet the income requirements and have eligible loans, the amount of your

debt relief will depend on your outstanding balance and whether you received a

Federal Pell Grant.

• If you received a Pell Grant, you can receive up to $20,000 in debt relief.

• If you didn't receive a Pell Grant, you can receive up to $10,000 in debt relief.

If your outstanding loan balance is less than the maximum amount of debt relief

you're eligible for, you'll receive only relief of your full loan balance.

Once you submit your application for debt relief, we'll determine your relief amount.

How will I know when debt relief has been applied to my account?



Your loan servicer will notify you when the relief has been applied to your account,

with details on how the relief was applied.

What happens if I still have a loan balance after debt relief is applied?

Loan balances remaining after relief will be re-amortized, meaning we will

recalculate your monthly payment based on your new balance, potentially reducing

App. 42



Case 4:22-cv-00908-O Document 5 Filed 10/10/22 Page 19 of 85 PageID 75

your monthly payment. Your loan servicer will communicate your new payment

amount to you.

Do I have to be repaying my loans to be eligible for debt relief?



No. Borrowers are eligible for debt relief regardless of whether they're in repayment,

in school, or in grace, as long as they meet the income requirements and have eligible

loans.

If I have multiple loans, can I pick which loans get the relief?



We'll determine how relief gets applied to your loans. See the next FAQ for additional

details. Federal Student Aid will make this determination and provide the guidance

to loan servicers, who will then process the relief.

How will debt relief be applied to my loans?

For borrowers with multiple loans, we'll apply the relief in the following order:

• Defaulted ED-held loans

• Defaulted commercial FFEL Program loans

• Non-defaulted Direct Loan Program loans and FFEL Program loans held by ED

• Perkins Loans held by ED

If you have multiple loans in a program type (e.g., multiple Direct Loan Program

loans), we'll apply the relief in the following order:

• Apply relief to loans with highest statutory interest rate.

App. 43



Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Page 20 of 85 PageID 76

• If interest rates are the same, apply to unsubsidized loans prior to subsidized

loans.

• If interest rate and subsidy status are the same, apply to the most recent loan.

• If interest rate, subsidy status, and disbursement date are the same, apply to the

loan with the lowest combined principal and interest balance.

Will my debt relief be taxed?



One-time student loan debt relief will not be subject to federal income taxes. State

and local tax implications will vary.

How do I get help if I have questions or need assistance?



We'll continue to update this page as we have more details. The program

information you can read here is the same information our contact center

agents have at this time. After the online application is live, support for the form

will be available at 1-833-932-3439.

Applying for Debt Relief

Will any borrowers receive automatic debt relief?



Although most borrowers will have to apply for debt relief, we have income data on

hand for around 8 million borrowers. These borrowers will get the relief

automatically.

How will I know if I automatically qualify for debt relief?

App. 44



Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Page 21 of 85 PageID 77

If we determine that you automatically qualify for debt relief, we'll send you an

email and text message (if you're signed up for text alerts). You don't have to take any

action. We'll provide your information to your loan servicer to process your relief.

We'll use Free Application for Federal Student Aid (FAFSA®) and income-driven

repayment application information to identify borrowers—or, as appropriate,

parents—who have submitted income data for tax years 2021 or 2020. We'll use this

data to determine which borrowers meet the income requirements. If we have

borrower data for both years, we'll use the year with the lower income.

When will the online application be available?



The online application will be available by early October 2022.

How do I know if you received my application?



When you submit your application for debt relief, you'll see a page online confirming

your form was submitted. You'll also get a confirmation email from us, so make sure

we have your most current email address. You can log in to StudentAid.gov and

review your contact information.

What happens if I applied for Public Service Loan Forgiveness (PSLF)?



We'll identify any borrower who submitted both an application for one-time student

loan debt relief and a PSLF form. If you receive one-time student loan debt relief and

are then determined to have been eligible for forgiveness under PSLF, we'll adjust

your loan and apply the PSLF discharge. The PSLF discharge may provide a refund

on certain eligible payments made after the borrower has already made 120

payments.

App. 45

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Page 22 of 85 PageID 78

How long do I have to apply for debt relief?



You'll have until Dec. 31, 2023, to submit your application for student loan debt relief.

Is there a paper version of the debt relief application?



Initially, the application will be available only online. A paper version of the form

will be made available at a future date, and you'll have until Dec. 31, 2023, to apply.

Beware of Scams

You might be contacted by a company saying they will help you get loan discharge,

forgiveness, cancellation, or debt relief for a fee. You never have to pay for help with

your federal student aid. Make sure you work only with ED and our trusted partners,

and never reveal your personal information or account password to anyone. Our

emails to borrowers come from noreply@studentaid.gov.

Learn how to avoid scams and what you can do if you're contacted by a scammer.

Get Support

We'll continue to update this page as we have more details. At this time, our contact center

agents have the same information you can read here. After the online form is live, support

for the form will be available at 1-833-932-3439.

Additional Links

Debt Relief Announcement

App. 46

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Public Service Loan Forgiveness

Income-driven Repayment Plans

Who's My Servicer?

Fed era IStudent Aid

An OFFICE of the U. S . DEPARTMENT of EDUCATION

w n @ 1m a

usa.gov | ed.gov

App. 47

Page 23 of 85 PageID 79

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

Exhibit B

App. 48

Page 24 of 85 PageID 80

Case 4:22-cv-00908-O Document 5 Filed 10/10/22 Page 25 of 85 PageID 81

The Wayback Machine - https://web.archive.org/web/20221001000544/https://studentaid.gov/debt-relief-announce…

An official website of the United States government.

Federal Student Aid

An OFFICE of the U.S. OEPARTMENT of EOUCATION

One-Time Student Loan Debt Relief

On Aug. 24, 2022, the Biden-Harris Administration announced a Student Debt Relief Plan that

includes one-time student loan debt relief targeted to low- and middle-income families.

The U.S. Department of Education (ED) will provide up to $20,000 in debt relief to Federal Pell

Grant recipients and up to $10,000 in debt relief to non-Pell Grant recipients. Borrowers with

loans held by ED are eligible for this relief if their individual income is less than $125,000 (or

$250,000 for households).

Get up to $20,000

in federal student

loan debt relief

based on your

income.

What Do I Need to Know?

An online form will be available in October 2022. Here are some steps you can

App. 49

take now and in the future.

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

p y

Page 26 of 85 PageID 82

Step 1: Check if you're eligible

You're eligible for student loan debt relief if your annual federal income was below

$125,000 (individual or married, filing separately) or $250,000 (married, filing jointly

or head of household) in 2020 or 2021.

• $20,000 in debt relief: If you received a Pell Grant in college and meet the

income threshold, you'll be eligible for up to $20,000 in debt relief.

• $10,000 in debt relief: If you did not receive a Pell Grant in college and meet the

income threshold, you'll be eligible for up to $10,000 in debt relief.

Step 2: Prepare

Here's what you can do to get ready and to make sure you get our updates:

• Log in to your account on StudentAid.gov and make sure your contact info is up

to date. We'll send you updates by both email and text message, so make sure to

can't remember if you have an account username and password (FSA ID), we

offer tips to help you access your account.

• If you don't have a StudentAid.gov account (FSA ID), you should create an

account to help you manage your loans.

• Make sure your loan servicer has your most current contact information so they

can reach you. If you don't know who your servicer is, you can log in and see

your servicer(s) in your account dashboard.

• To be notified when the process has officially opened, sign up at the Department

of Education subscription page.

Step 3: Submit your application (when available)

The application will be available online in October 2022.

We'll share updates on this page and send you an email when the application is

available. You'll have until Dec. 31, 2023, to submit your application.

Federal Pell Grants

App. 50

Case 4:22-cv-00908-O Document 5 Filed 10/10/22

How Do I Know If I Ever Received a Federal Pell Grant?

Page 27 of 85 PageID 83

Federal Pell Grants typically are awarded to undergraduate students with low or

moderate income.

Most borrowers can log in to StudentAid.gov to see if they received a Pell Grant. We

display information about the aid you received, including Pell Grants, on your

account dashboard and your “My Aid” pages.

When you apply for debt relief, we'll make sure all borrowers who received a Pell

Grant receive the full benefit of up to $20,000 in relief if they meet the income

requirements. ED has data on all borrowers who received a Pell Grant. If you

received a Pell Grant prior to 1994, that information won't display in StudentAid.gov,

but you'll still receive the full benefit.

If I have a Pell Grant, do I need to do anything to get the full $20,000 in debt

relief?



Yes. You just need to submit your application for debt relief. We have a record of

every student who has ever received a Federal Pell Grant. When you submit your

application, we'll check our records to determine if you have a Pell Grant, which

would qualify you for up to $20,000 in debt relief. You don't need to take any

additional action to show us that you received a Pell Grant.

Do I still qualify for the full $20,000 in debt relief if I received only one Pell

Grant?

Yes. As long as you received at least one Pell Grant of any amount, you qualify for

$20,000 in debt relief. This debt relief will be applied to eligible loans, such as

App. 51



Case 4:22-cv-00908-O Document 5 Filed 10/10/22 Page 28 of 85 PageID 84

undergraduate, graduate, or parent loans. It doesn't matter if the Pell Grant was used

for the same program of study or at the same school as your federal student loan(s).

If I have parent PLUS loans and my child received a Pell Grant, can my child's

$20,000 in debt relief be applied to my parent PLUS loans?



No. The debt relief will be applied only to your child's loan(s).

If a dependent student received a Pell Grant, up to $20,000 in debt relief will be

applied to the student's loans—not to any loans their parent may have taken out.

A parent who has taken out loans—including loans for their own studies or parent

PLUS loans for their child—may qualify for debt relief if they meet the income

eligibility criteria. If a parent also received a Pell Grant for their own studies, then

the parent borrower may be eligible for up to $20,000 in relief on their loans.

Otherwise, the parent borrower may be eligible for up to $10,000 in debt relief.

Which Loans Are Eligible?

Most federal student loans are eligible

Undergraduate and Graduate Direct Loans

Parent PLUS and Grad PLUS Loans

Consolidation Loans

Underlying loans disbursed on or before June 30, 2022

Federal Family Education Loan (FFEL)

Program Loans held by ED

Perkins Loans held by ED

Defaulted loans

ED-held or commercial ly serviced Subsidized, Unsubsidized, parent

PLUS, grad PLUS; and Perkins held by ED

App. 52

Case 4:22-cv-00908-O Document 5 Filed 10/10/22 Page 29 of 85 PageID 85

The following types of federal student loans with an outstanding balance as of June 30, 2022,

are eligible for relief:

• William D. Ford Federal Direct Loan (Direct Loan) Program loans

• Federal Family Education Loan (FFEL) Program loans held by ED or in default at a

guaranty agency

• Federal Perkins Loan Program loans held by ED

• Defaulted loans (includes ED-held or commercially serviced Subsidized Stafford,

Unsubsidized Stafford, parent PLUS, and graduate PLUS; and Perkins loans held by ED)

This means that subsidized loans, unsubsidized loans, parent PLUS loans, and graduate PLUS

loans held by ED are eligible. Consolidation loans are also eligible for relief, as long as all of

the underlying loans that were consolidated were ED-held loans and were disbursed on or

before June 30, 2022. Additionally, consolidation loans comprised of any FFEL or Perkins

loans not held by ED are also eligible, as long as the borrower applied for consolidation before

Sept. 29, 2022.