Amicus Curiae Brief — Department of Education, et al., Petitioners v. Myra Brown, et al.

No. 22-535

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------UNITED STATES DEPARTMENT OF EDUCATION, et al.,

Petitioners,

v.

MYRA BROWN, et al.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari Before Judgment

To The United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE

LANDMARK LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------RICHARD P. HUTCHISON

LANDMARK LEGAL FOUNDATION

3100 Broadway

Suite 1210

Kansas City, MO 64111

816-931-5559

MICHAEL J. O’NEILL

Counsel of Record

MATTHEW C. FORYS

LANDMARK LEGAL FOUNDATION

19415 Deerfield Ave.

Suite 312

Leesburg, VA 20176

703-554-6100

mike@landmarklegal.org

Attorneys for Amicus Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ......................

1

INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................

1

ARGUMENT ........................................................

3

A.

B.

The Debt Forgiveness Program is a rule

subject to the APA’s notice-and-comment

process .......................................................

3

Notice-and-Comment serves an important

purpose by allowing interested parties

and the public the opportunity to participate in the rulemaking process .................

4

C.

Public comments submitted through the

notice-and-comment process would have

been beneficial in exposing legal weaknesses of the Program ............................... 11

D.

The HEROES Act does not justify the Department’s decision to avoid notice-andcomment .................................................... 13

E.

The APA’s exemption to notice-and-comment

pertaining to loans does not apply .............. 14

CONCLUSION..................................................... 16

ii

TABLE OF AUTHORITIES

Page

CASES:

Azar v. Allina Health Servs., 139 S.Ct. 1804

(2019) .......................................................................14

Batterton v. Marshall, 648 F.2d 694 (D.C. Cir.

1980) ..........................................................................3

Chocolate Manufactures Assoc. v. Block, 755 F.2d

1098 (4th Cir. 1985) ...................................................8

Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir.

2017) ........................................................................15

Connecticut Light & Power, Co. v. Nuclear Regul.

Com., 673 F.2d 525 (D.C. Cir. 1982) ..........................9

Guardian Fed. Sav & Loan Assn. v. Federal Sav.

& Loan Ins. Corp., 589 F.2d 658 (D.C. Cir.

1978) ........................................................................14

Intl. Union, UMW v. MSHA, 407 F.3d 1250 (D.C.

Cir. 2005) ...................................................................9

Make the Rd. N.Y. v. Wolf, 962 F.3d 612 (D.C. Cir.

2020) ........................................................................10

New Jersey, Dep’t of Env’t Protections v. EPA,

626 F.2d 1038 (D.C. Cir. 1980) ................................10

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92

(2015)............................................................. 4, 9, 15

Spartan Radiocasting Co. v. FCC, 619 F.2d 314

(4th Cir. 1980)............................................................8

iii

TABLE OF AUTHORITIES – Continued

Page

Texaco, Inc. v. Federal Power Comm’n, 412 F.2d

740 (3d Cir. 1969) ......................................................8

U.S. Telecom Ass’n v. FCC, 400 F.3d 29 (D.C. Cir.

2005) ..........................................................................4

STATUTES AND REGULATIONS:

5 U.S.C. §551(4) .............................................................3

5 U.S.C. §553 ........................................................... 8, 13

5 U.S.C. §553(a)(2) ......................................................15

5 U.S.C. §553(b) .............................................................4

5 U.S.C. §553(c) .............................................................4

5 U.S.C. §706(2) .............................................................8

20 U.S.C. §1098bb(b)(1) ..............................................14

31 C.F.R. §902.2(a) ......................................................15

34 C.F.R. §30.70(e)(1) ..................................................15

34 C.F.R. §685, Improving Income-Driven Repayment for the William D. Ford Federal Direct

Loan Program ....................................................... 6, 7

LEGISLATIVE MATERIALS:

149 Cong. Rec. H2522-05 (Apr. 1, 2003) .......................5

149 Cong. Rec. H2523-24 (Apr. 1, 2003) .......................5

149 Cong. Rec. S10866-01 (July 31, 2003) ...................5

H.R. 2034, 117 Cong. (2021) .........................................5

H.R. 4797, 117 Cong. (2021) .........................................5

iv

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES:

Costs of Suspending Student Loan Payments

and Canceling Debt, Cong. Budget Off. (Sept.

26, 2022) ................................................................ 5, 6

Fact Sheet: Clean Power Plan by the Numbers,

https://archive.epa.gov/epa/cleanpowerplan/

fact-sheet-clean-power-plan-numbers.html ...........13

Final Report of the Attorney General’s Committee on Administrative Procedure (1941) ............... 7, 9

GDP (current US$) – Argentina, World bank,

https://data.worldbank.org/indicator/NY.GDP.

MKTP.CD?locations=AR .........................................12

GDP by State, Bureau of Economic Analysis,

https://www.bea.gov/data/gdp/gdp-state ................12

Mariano-Florentino Cuellar, Rethinking Regulatory Democracy, 57 Admin. L. Rev. 411

(2005) ................................................................. 10, 11

Mark Kantrowitz, Joe Biden Will Limit Student

Loan Forgiveness, Forbes, Dec. 24, 2020,

https://www.forbes.com/sites/markkantrowitz/

2020/12/24/joe-biden-will-limit-student-loanforgiveness/?sh=31554dc91ce6 ...............................12

Thomas W. Merrill, The Chevron Doctrine: Its

Rise and Fall, and the Future of the Administrative State (2022).......................................... 7, 8, 11

1

INTEREST OF AMICUS CURIAE1

Landmark Legal Foundation (“Landmark”) is a

national public-interest law firm committed to preserving the principles of limited government, separation of powers, federalism, advancing an originalist

approach to the Constitution, and defending individual

rights and responsibilities. Landmark is particularly

concerned with encroachments by the executive

branch upon the legislative powers of Congress and the

ever-increasing powers of the administrative state.

Specializing in constitutional history and litigation,

Landmark submits this brief in support of Respondents.

---------------------------------♦---------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Secretary of Education’s (“Secretary”) Debt

Forgiveness Program (“Program”) is a colossal regulatory action affecting millions of individuals and costing the American taxpayers hundreds of billions of

dollars. Yet the American people never authorized this

action. Nor have the American people had the chance

to participate in its development and implementation.

Under any reasonable standard, it constitutes a “major

question” and thus needs clear authorization from

1

No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than Amicus Curiae, its members, or its counsel made

a monetary contribution to its preparation or submission.

2

Congress to implement. Congress never gave this authorization.

Attempts by Petitioner to justify the Program’s existence under the Higher Education Relief Opportunity for Students Act (“HEROES”) fail. Because the

HEROES Act does not authorize the Program, the Administrative Procedure Act (“APA”) obligates the Secretary to follow normal rulemaking procedures. This

means the Secretary needed to follow the prescribed

notice-and-comment process, which in turn, means

promulgating a proposed action, designating a period

for the public comments, and consider and respond to

those comments. The Secretary failed to follow this

process.

Notice-and-comment serves an important and

necessary purpose in the development and implementation of any substantive regulatory action. In this

case, notice-and-comment would have given interested

parties (and the public) the opportunity to shape an

agency action that will affect millions and cost hundreds of billions of dollars. It would have provided Respondents Myra Brown and Alexander Taylor the

opportunity to express their views on the Program and

influence the government’s actions. It would have obligated the Secretary to reconcile the Program with previous statements made by both the President and his

staff expressing doubts about his authority to forgive

student loans without clear congressional authorization. It would have given the Secretary (and the Biden

Administration) a sense of the Program’s political implications. But – in an apparent effort to accelerate its

3

implementation – the Secretary avoided subjecting the

Program to notice-and-comment. And, by avoiding notice-and-comment, the Secretary finalized a regulation

in violation of the APA. Such action should not be permitted by the Court.

Amicus Curiae therefore asks the Court to reverse

the judgment of the district court in Nebraska and uphold the judgment of the district court in Brown.

---------------------------------♦---------------------------------

ARGUMENT

A. The Debt Forgiveness Program is a rule

subject to the APA’s notice-and-comment

process.

As Respondents note, the HEROES Act does not

authorize the Program. Res. Brief at 41. The Secretary,

therefore, cannot use the HEROES Act to justify bypassing the APA. Because the Program is a rule, it is

subject to the APA’s notice-and-comment requirements. And because the Secretary did not subject the

Program to notice-and-comment, it must be declared

invalid.

The Program creates a new scheme that implements President Biden’s policy of eliminating or reducing debt obligations for certain individuals. 5 U.S.C.

§551(4). It “grants rights” by eliminating an individual’s debt if he or she meets certain requirements and

“impose[s] obligations” on the Department to forgive

debt to those who meet the requirements. Batterton v.

4

Marshall, 648 F.2d 694, 701-702 (D.C. Cir. 1980). The

Program also amends or repeals the Department’s existing regulations and thus triggers the APA’s noticeand-comment provisions. U.S. Telecom Ass’n v. FCC,

400 F.3d 29, 35 (D.C. Cir. 2005).

The APA, in turn, prescribes a three-step procedure for notice-and-comment rulemaking. Perez v.

Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015) first, the

agency “must issue a ‘[g]eneral notice of proposed rule

making . . . ’ ” Id. (quoting 5 U.S.C. §553(b)). Next, the

agency “must ‘give interested persons an opportunity

to participate in the rule making through submission

of written data, views, or arguments.’ ” Id. (quoting 5

U.S.C. §553(c)). At this step, “an agency must consider

and respond to significant comments received during

the period for public comment.” Id. Third, “when the

agency promulgates the final rule, it must include in

the rule’s text ‘a concise general statement of [its] basis

and purpose.’ ” Id. (quoting 5 U.S.C. §553(c)). Such

rules “have the ‘force and effect of law.’ ” Id.

B. Notice-and-Comment serves an important

purpose by allowing interested parties and

the public the opportunity to participate in

the rulemaking process.

Again, Respondents and other amici aptly explain

how the HEROES Act does not provide the statutory

authority for the Program. A detailed explanation

need not be repeated here, but briefly, the people –

through Congress and via the legislative process –

5

have never authorized a debt forgiveness program of

this scale. The Act – passed by overwhelming numbers

in both the Senate and the House of Representatives –

applied to active-duty members of the military deployed overseas. 149 Cong. Rec. S10866-01 (July 31,

2003); 149 Cong. Rec. H2522-05, H2523-24 (Apr. 1,

2003). It was never intended or designed to apply to

millions of individuals who never served in the armed

forces. Indeed, Petitioners cannot point to any part of

the statute that shows Congress authorized the HEROES Act to apply to millions of individuals who never

served in an active-duty capacity. Nor can Petitioners

show that Congress explicitly authorized the Secretary

to unilaterally cancel the debts of 40 million borrowers

at a cost of more than 400 billion dollars. Costs of Suspending Student Loan Payments and Canceling Debt,

Cong. Budget Off. (Sept. 26, 2022). And the Secretary

has never used the HEROES Act for mass cancellation

of student debt until now.

In fact, Congress has already declined to act on

proposed legislation that would forgive student loan

debt. A bill introduced by Congressman Alfred James

Lawson to provide student loan forgiveness to borrowers making less than $100,000 per year was referred

to the Committee on Education and Labor and the

Committee on Ways and Means but has yet to be voted

out of that committee. H.R. 2034, 117 Cong. (2021). Another effort (which would forgive up to $50,000 in federal student loans for any borrower) also failed to be

voted out of its committee. H.R. 4797, 117 Cong. (2021).

6

Had there been sufficient public support for these

bills, the will of the people would have prevailed and

Congress would have enacted applicable legislation.

The people, through their representatives in Congress

have spoken. But the Secretary defied this will by finalizing the Program. The Secretary also denied the

public the opportunity to express its will and to participate in the development and implementation of the

Program when it rammed through the regulatory action without following the notice-and-comment process. As stated previously, the Program affects millions

of individuals and leads to hundreds of billions in lost

revenue. Costs of Suspending Student Loan Payments

and Canceling Debt, Cong. Budget Off. (Sept. 26, 2022).

The Program will significantly alter the lives of millions of Americans. If upheld, millions will have up to

$20,000 of loan debt forgiven. If struck down, millions

of working-class individuals – who never attended college and never incurred student loans – will not bear

the brunt of subsidizing (through taxation) the higher

education costs of their fellow citizens. Individuals

with significant interests such as those holding only

private loans have been denied their say. In short, the

Secretary – at the behest of the Biden Administration

– dodged his legal obligations to seek public input for

its enormously consequential regulatory action.2

2

The Department has at least one regulatory program pending involving student loans that it has released for notice-andcomment. It has proposed amending regulations governing income-contingent repayments and to restructure and rename the

repayment plan regulations under the William D. Ford Federal

Direct Loan (Direct Loan) Program. Improving Income-Driven

7

The notice-and-comment process avoided by the

Department provides a crucial step in implementing

substantive rules. Administrative agencies are not representative bodies subject to accountability like elected

officials. Unlike legislatures, their functions are not to

“ascertain and register [the agency’s] will.” Final Report of the Attorney General’s Committee on Administrative Procedure, 101 (1941) (“Attorney General’s

Report”). Agencies’ “deliberations” are not “carried on

in public and its members are not subject to direct political controls as are legislators.” Id. An agency’s

“knowledge is rarely complete” and “it must always

learn the frequently clashing viewpoints of those

whom its regulations will affect.” Id. at 102. Public participation “in the rule-making process is essential in

order to permit administrative agencies to inform

themselves and to afford adequate safeguards to private interests.” Id. at 103. Thus, for a court to determine whether an agency has engaged in reasoned

decision-making, an agency must disclose materials

relevant to the rule; allow interested parties the opportunity to comment; and respond meaningfully to material comments.

Notice-and-comment also helps in ensuring an

agency’s action is within its statutory mandate. The

process “helps ensure that the agency allows meaningful participation by the public in the process of formulating the proper interpretation of statutes.” Thomas

W. Merrill, The Chevron Doctrine: Its Rise and Fall,

Repayment for the William D. Ford Federal Direct Loan Program,

34 C.F.R. §685.

8

and the Future of the Administrative State 248 (2022).

Disclosure of a proposed regulatory action followed by

public comment and subsequent agency response “establishes a dialogic process in which the agency and

concerned citizens interact and share their divergent

interests and perspectives.” Id. at 249. In turn, “[t]his

back-and-forth process fosters better understanding

and mutual respect and can lead to better interpretations, in the sense that they ultimately reflect a consensus view of the public interest.” Id.

Consistent with these principles, the APA mandates a process obligating agencies to receive and be

accountable to public input. 5 U.S.C. §553. The APA, in

turn, requires courts to “hold unlawful and set aside

agency action[s]” that are adopted “without observance

of procedures required by law.” 5 U.S.C. §706(2). The

process “encourages public participation in the administrative process and educates the agency, thereby

helping to ensure informed agency decisionmaking.”

Chocolate Manufacturers Assoc. v. Block, 755 F.2d

1098, 1103 (4th Cir. 1985) (citing Spartan Radiocasting Co. v. FCC, 619 F.2d 314, 321 (4th Cir. 1980)).

Providing notice of a major change gives “the public

the opportunity to participate in the rule-making process. It also enables the agency promulgating the rule

to educate itself before establishing rules and procedures which have a substantial impact on those regulated.” Texaco, Inc. v. Federal Power Comm’n, 412 F.2d

740, 744 (3d Cir. 1969). When an agency fails to follow

the APA’s notice-and-comment procedures “interested

parties will not be able to comment meaningfully upon

9

the agency’s proposals.” Connecticut Light & Power, Co.

v. Nuclear Regul. Com. 673 F.2d 525, 530 (D.C. Cir.

1982). Further, “the agency may operate with a onesided or mistaken picture of the issues at stake in a

rule-making.” Id.

The rulemaking process obligates the Department

to provide a notice to the public that it intends to engage in a regulatory action. Notice has three purposes:

(1) it ensures “that agency regulations are tested via

exposure to diverse public comment”; (2) it ensures

“fairness to affected parties”; and (3) it gives “affected

parties an opportunity to develop evidence in the

record to support their objections to the rule and

thereby enhance the quality of judicial review.” Intl.

Union, UMW v. MSHA, 407 F.3d 1250, 1259 (D.C. Cir.

2005). Next, the comment period allows “interested

members of the public to communicate information,

concerns, and criticisms to the agency during the

rule-making process.” Connecticut Light and Power,

Co. at 530. And participation by interested parties “is

essential in order to permit administrative agencies

to inform themselves and to afford adequate safeguards to private interests.” Attorney General’s Report

at 103.

Along with accepting comments from the public,

agencies have a duty to “consider and respond to significant comments received during the period for public comment.” Perez v. Mortg. Bankers Ass’n, 575 U.S.

92, 96 (2015). The right to comment “belongs to the

public regardless of whether they are savvy lawyers for

a chemical products company or individual laypeople

10

with no particular technical expertise.” MarianoFlorentino Cuellar, Rethinking Regulatory Democracy,

57 Admin. L. Rev. 411, 420 (2005). And generally “regulators cannot ignore all the comments they receive.”

Id. at 421. Thus, “[t]he right for public to comment, coupled with legal requirements that the agency must

give reasons for what it does, implies that the agency

has some legal responsibility to consider reasonable

alternative and significant issues raised in public comments.” Id.

Indeed, the importance of a complete notice and

robust comment process cannot be debated. This process subjects “the agency decisionmaking to public input and to obligate the agency to consider and respond

to the material comments and concerns that are

voiced.” Make the Rd. N.Y. v. Wolf, 962 F.3d 612, 634

(D.C. Cir. 2020). The fundamental purpose of the process therefore is “to ensure that affected parties have

an opportunity to participate in and influence agency

decision making at an early stage, when the agency is

likely to give real consideration to alternative ideas.”

New Jersey, Dep’t of Env’t Protections v. EPA, 626 F.2d

1038, 1049 (D.C. Cir. 1980). While not “an ideal means

for advancing representative democracy” the noticeand-comment process represents a “reasonable compromise for an imperfect world.” Rethinking Regulatory Democracy, 57 Admin. L. Rev. at 425. And agencies

respond to comments they receive by “making changes

in their proposed rule.” Id. at 460. Finally, the noticeand-comment process “lead[s] to outcomes that strike

a better balance between interest group preferences

11

and minimize the risk that the deal struck by the

agency will be upset by higher-level political intervention or judicial review.” The Chevron Doctrine at 250.

By violating the procedural requirements of the

APA, the Secretary denied the public the opportunity

to participate in the rulemaking process. Interested

parties (i.e., individuals who may have been excluded

from the loan-forgiveness plan despite holding student

loans) could not provide input on the efficacy of the

loan forgiveness program. Failure to abide by the notice-and-comment process also denied interested parties the opportunity to express alternate proposals for

loan forgiveness. And it prevented the Secretary from

considering those alternatives.

C. Public comments submitted through the notice-and-comment process would have been

beneficial in exposing legal weaknesses of

the Program.

Presumably, public participation in a regulatory

action of this size would be dramatic. The widespread

media coverage and the fact that millions are affected

would prompt thousands of comments. Rethinking

Regulatory Democracy, 57 Admin. L. Rev. at 469 (discussing the factors leading to rates of participation in

rulemaking proceedings). And those comments would

have raised “issues legally relevant [to the Secretary’s]

statutory mandate.” Id. at 460.

For example, submitted comments could have

shown:

12

-

How the Secretary’s decision to exclude individuals like Myra Brown and Alexander

Taylor from the Program adversely affected

them.

-

How finalization of the Program represents a

dramatic shift in the original position of the

President who originally conceded that the

Executive Branch lacked the authority to unilaterally forgive billions in student loans. In

December 2020, he stated, “That’s different

than my saying, and I’m going to get in trouble for saying this . . . for example, it’s arguable that the president may have the executive

power to forgive up to $50,000 in student

debt.” Mark Kantrowitz, Joe Biden Will Limit

Student Loan Forgiveness, Forbes, Dec. 24,

2020, https://www.forbes.com/sites/markkantrowitz/

2020/12/24/joe-biden-will-limit-student-loanforgiveness/?sh=31554dc91ce6. He continued,

“Well, I think [forgiving debt] is pretty questionable. I’m unsure of that. I’d be unlikely to

do that.” Id.

-

Placed in context the size and scope of the

Program. For example, the Program’s cost

exceeds the GDP of Argentina or that the Program’s cost exceeds the annual GDP of more

than 30 states. GDP (current US$) – Argentina, World bank, https://data.worldbank.org/

indicator/NY.GDP.MKTP.CD?locations=AR,

GDP by State, Bureau of Economic Analysis,

https://www.bea.gov/data/gdp/gdp-state.

-

How the Program’s cost is 50 times greater

than the estimated coasts for the Clean Power

13

Plan. Fact Sheet: Clean Power Plan by the Numbers, https://archive.epa.gov/epa/cleanpowerplan/

fact-sheet-clean-power-plan-numbers.html.

-

How the Program functions as a regressive

program that disproportionately benefits

wealthy debtors.

D. The HEROES Act does not justify the Department’s decision to avoid notice-andcomment.

Petitioners mistakenly assert that authorization

to bypass notice-and-comment amounts to a procedural exemption and that the Secretary only needs to

determine that HEROES Act applies. This is not true.

Petitioners rely on the HEROES Act to justify their

failure to follow the APA’s notice-and-comments requirements. Because the Act “expressly exempts the

Secretary from complying with ‘section 553 of title 5’ ”

they were under no obligation to follow the Act’s procedural requirements. Pet’rs’ Brief at 62.

Under Petitioners’ theory, it does not matter

whether the substantive provisions of the HEROES

act apply. All that is necessary is that the Secretary

determine “that the HEROES Act applies and that

waivers or modifications are necessary – not on the

substantive merits of the Secretary’s plan.” Pet’rs’ Brief

at 63.

The Department of Education cannot avoid the

APA’s notice-and-comment requirements by simply

asserting that its decision amounts to a procedural

14

action. “Agencies have never been able to avoid noticeand-comment simply by mislabeling their substantive

pronouncements.” Azar v. Allina Health Servs., 139

S.Ct. 1804, 1812 (2019). Courts, “have long looked to

the contents of the agency’s action, not the agency’s

self-serving label, when deciding whether statutory

notice-and-comment demands apply.” Id. While relevant, an agency’s “own label” “is not dispositive.” Id.

(quoting Guardian Fed. Sav & Loan Assn. v. Federal

Sav. & Loan Ins. Corp., 589 F.2d 658, 666-667 (D.C. Cir.

1978)).

Petitioners’ efforts to avoid the APA’s rulemaking

obligations by asserting the application of the Act fail

because the Act’s substantive provisions do not apply.

“Notwithstanding [the] APA’s notice-and-comment

provisions, 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.” 20

U.S.C. §1098bb(b)(1). If the “purposes” of the HEROES

Act do not apply, then the Secretary cannot rely on the

rest of the Act to circumvent the rulemaking process.

E. The APA’s exemption to notice-and-comment

pertaining to loans does not apply.

Although not raised by Petitioners, any effort to

exempt the Program from notice-and-comment by asserting the APA’s loan exemption provisions also fails.

While the APA exempts rules involving “a matter relating . . . to loans, grants, benefits or contracts” (5

15

U.S.C. §553(a)(2)), the Department of Education (and

the Secretary) must still follow its own rules. And the

Department followed the notice-and-comment process

when it promulgated its current regulations pertaining to the discharging of student loans which prohibit

blanket loan forgiveness. 34 C.F.R. §30.70(e)(1). Because of this, any alterations to the current rules must

again comply with the APA’s notice-and-comment process. Clean Air Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir.

2017).

Under the current regulatory framework, the Department may “compromise, suspend[d] or terminat[e]

a student loan” only if it complies with the Federal

Claims Collection Standards (“FCCS”). 34 C.F.R.

§30.70(e)(1). The FCCS requires agencies to “aggressively collect all debts.” 31 C.F.R. §902.2(a). Those

debts can be compromised or discharged when: (1) the

debtor cannot pay; (2) the agency cannot collect; (3) the

costs of collection are too onerous; or (4) the government faces litigation risk. The Loan Forgiveness Program amends these current rules and thus must

conform to the APA’s notice-and-comment requirements. As the Department followed the notice-andcomment process when finalizing 34 C.F.R.

§30.70(e)(1), it cannot amend or repeal this rule without again following the notice-and-comment process.

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 101 (2015).

---------------------------------♦---------------------------------

16

CONCLUSION

For these reasons, the Court should reverse the

judgment of the district court in Nebraska and affirm

the judgment of the district court in Brown.

Respectfully submitted,

RICHARD P. HUTCHISON

LANDMARK LEGAL FOUNDATION

3100 Broadway

Suite 1210

Kansas City, MO 64111

816-931-5559

MICHAEL J. O’NEILL

Counsel of Record

MATTHEW C. FORYS

LANDMARK LEGAL FOUNDATION

19415 Deerfield Ave.

Suite 312

Leesburg, VA 20176

703-554-6100

703-554-6119 (Facsimile)

mike@landmarklegal.org

Attorneys for Amicus Curiae