IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MYRA BROWN and ALEXANDER 

TAYLOR,

Plaintiffs,

v.

U.S. DEPARTMENT OF EDUCATION and 

MIGUEL CARDONA, in his official capacity as 

Secretary of Education,

Defendants.

 Civil Action No. 4:22-cv-00908-P 

DEFENDANTS’ RESPONSE TO ORDER ON ADVANCING THE MERITS OF 

PLAINTIFFS’ COMPLAINT

At both the October 25, 2022 hearing on Plaintiffs’ Motion for Preliminary Injunction and in 

a separate order, see ECF No. 33, this Court has raised the possibility of converting Plaintiffs’ 

emergency motion to an ultimate determination on the merits of their complaint, see Federal Rule of 

Civil Procedure 65. Defendants respectfully respond to explain why, for at least three reasons,

advancing Plaintiffs’ motion at this stage would be improper.

First, proceeding to the merits would be inappropriate because this Court lacks jurisdiction 

over Plaintiffs’ complaint. Defendants’ pending motion to dismiss demonstrates that Plaintiffs are 

unable to carry their burden to establish standing, ECF No. 24, both because Plaintiffs suffered no 

procedural harm since Congress expressly exempted the challenged action from notice-and-comment 

requirements and because, even were that not the case, Plaintiffs are in no way harmed by the 

provision of targeted debt relief to other borrowers, id. at 8-12. Even were the Court not inclined to 

dismiss this case outright (as Defendants respectfully submit that it should), converting Plaintiffs’ 

preliminary injunction motion to a determination on the merits would be unwarranted because 

Plaintiffs have not yet attempted to meet the requisite evidentiary showing. “[E]ach element” of the 

standing inquiry “must be supported in the same way as any other matter on which the plaintiff bears 

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the burden of proof, i.e., with the manner and degree of evidence required at the successive stage of 

litigation,” so, at summary judgment, “the plaintiff can no longer rely on such ‘mere allegations,’ but 

must ‘set forth’ by affidavit or other evidence ‘specific facts.’” Lujan v. Defs. Of Wildlife, 504 U.S. 555, 

561 (1992). Plaintiffs’ burden in this suit is heightened by the very nature of their claim: “When a suit 

is one challenging the legality of government action or inaction, the nature and extent of facts that 

must be averred (at the summary judgment stage) ... depends considerably upon whether the plaintiff 

is himself an object of the action” and, “[w]hen ... a plaintiff’s asserted injury arises from the 

government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is 

needed.” Id. at 561-62. The result is that, “when the plaintiff is not himself the object of the 

government action or inaction he challenges, standing ... is ordinarily ‘substantially more difficult’ to 

establish.” Id. at 562; see also Inclusive Communities Project, Inc. v. Dep’t of Treasury, 946 F.3d 649, 655 (5th 

Cir. 2019) (Article III “standards make it difficult for a plaintiff to establish standing to challenge a 

government action if he isn’t its direct object”). These concerns are particularly acute here, where two 

individuals purportedly dissatisfied that they will not receive the full measure of a government benefit

flowing to other borrowersseek to forestall relief for tens of millions of Americans. This Court should 

not reach the merits of so weighty a question where Plaintiffs have not proven that the Secretary’s 

decision has harmed them or that a ruling blocking debt relief for other borrowers would benefit Plaintiffs 

in any concrete manner.

Second, and relatedly, this Court should not reach the merits because Defendants have not yet 

had an opportunity to conduct jurisdictional discovery, including taking Plaintiffs’ depositions. Thus 

far Plaintiffs have submitted two affidavits, each totaling 260 words or fewer, asserting their beliefs 

that it is “unfair to exclude [them] from the program,” and that they “want an opportunity to present 

[their] views to the Department and provide additional comments on any proposal from the 

Department to forgive student loan debts.” E.g., Pls.’ App. 2, Brown Decl. These threadbare assertions 

fall woefully short of carrying Plaintiffs’ burden to prove standing at the pleadings stage, much less 

for purposes of summary judgment. See Inclusive Communities Project, Inc., 946 F.3d at 655 (confirming 

that “mere allegations” do not suffice for standing at summary judgment and must instead be 

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supported by reliable evidence). Here, not only are Plaintiffs’ affidavits deficient for these purposes, 

but Defendants have had no opportunity to inquire as to salient issues, especially since Plaintiffs did 

not present themselves for cross examination at the recent hearing and Defendants did not anticipate 

the need to request their testimony at such a preliminary stage. Defendants should have the 

opportunity to examine Plaintiffs on matters including (but not limited to) their purported intent to 

participate in any comment process forthe challenged action, the substance of the comments Plaintiffs 

purportedly wish to submit, and the tension between Plaintiffs’ position that the forgiveness program 

should be expanded to include them and their position that the program is unlawfully overbroad,

which would presumably be part of their comments, compare Pls.’ App. 2, 4 with Pls. Mot. for Prelim. 

Inj. at 17-19. See also Cache Valley Elec. Co. v. Utah Dep’t of Transp., 149 F.3d 1119, 1124 (10th Cir. 1998) 

(“Because, at summary judgment, it is a plaintiff’s burden to adduce evidence sufficient to establish 

necessary jurisdictional facts,” it “may not establish standing by merely hypothesizing” that it would 

be better off absent the challenged action). Furthermore, due to the “limited purpose” of proceedings 

on a preliminary injunction and “the haste that is often necessary,” “it is generally inappropriate for a 

federal court at the preliminary-injunction stage to give a final judgment on the merits.” University of 

Texas v. Camenissch, 451 U.S. 390, 395 (1981). And while Federal Rule of Civil Procedure 65 does 

provide a mechanism for such advancement, to avoid prejudice to the non-moving party, clear and 

unambiguous notice is required either before the hearing begins “or at a time which will still afford 

the parties a full opportunity to present their respective cases.” Id. (citation omitted). Defendants have 

not had that opportunity. Despite Plaintiffs’ claim that “there are no material facts in dispute,” see ECF 

No. 34 at 2, there are substantial factual disputes relevant to Plaintiffs’ standing, and those questions 

cannot be resolved in Plaintiffs’ favor on the current record. At a minimum, the Court should set a 

period for jurisdictional discovery and briefing on the import of any evidence obtained before 

considering any ruling on the merits.

Third, Plaintiffs’ challenge to agency action under the Administrative Procedure Act should 

not be decided without production of an administrative record. Although Plaintiffs have styled their 

challenge as raising only a procedural claim, the substance of their arguments goessquarely to the merits 

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of the challenged decision, since Plaintiffs attempt to attack the substantive lawfulness of the decision 

under the guise of a procedural claim. See generally Pls.’ Br. at 13-21. As such, any decision on the merits 

by this Court (or review of that decision on appeal) should await production of the administrative 

record. “Judicial review is based upon the “full administrative record that was before [the Secretary] 

at the time [he] made [his] decision,” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), 

abrogated on other grounds by Califano v. Saunders, 430 U.S. 99 (1977), and “meaningful judicial review” 

must be based on the “agency’s contemporaneous explanation” presented in the administrative record, 

Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2573 (2019). Although the record currently before the 

Court contains the relevant decisional memoranda, the administrative record presumably would 

include additional information, including underlying data supporting the Secretary’s decision, and thus 

should form a part of the record for review of this important program. Plaintiffs’ reliance on cases 

holding that an administrative record was unnecessary for success on a notice-and-comment claim, 

ECF 34 at 2-3, is misplaced because, in contrast to a typical procedural challenge under the APA, here 

Plaintiffs attempt to sidestep a plainly applicable exception to notice and comment by attacking the 

substance of the decision. 

For at least these reasons, Defendants respectfully submit that the Court should not advance 

Plaintiffs’ emergency motion to summary judgment and should instead resolve Defendants’ motion 

to dismiss first and, if the Court denies that motion, permit jurisdictional discovery before proceeding.

Case 4:22-cv-00908-P Document 35 Filed 11/04/22 Page 4 of 6 PageID 430
Dated: November 4, 2022

 

Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General 

BRIAN D. NETTER

Deputy Assistant Attorney General 

MARCIA BERMAN

Assistant Branch Director

/s/ Kate Talmor 

KATE TALMOR (Md. Bar)

R. CHARLIE MERRITT

CODY T. KNAPP

SAMUEL REBO

Trial Attorneys

U.S. Department of Justice

Civil Division, Federal Programs Branch

1100 L Street NW

Washington, DC 20005

(202) 305-5267

kate.talmor@usdoj.gov

Counsel for Defendants

Case 4:22-cv-00908-P Document 35 Filed 11/04/22 Page 5 of 6 PageID 431
CERTIFICATE OF SERVICE

I hereby certify that all counsel of record are CM/ECF participants and service of this filing 

will be accomplished through filing on the public docket. 

/s/ Kate Talmor 

 KATE TALMOR (Md. Bar)

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