UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

MYRA BROWN, ET AL.,

Plaintiffs,

v. 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.”).

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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).

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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. (Jan. 12, 2021, 5:46 PM), 

https://bit.ly/3LBA36n.

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.

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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 

Register, publish the waivers or modification.” § 1098bb(b)(1). 

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.

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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 deemed 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, 87 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. 

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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 

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

12 No. 2022-22205, 87 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 

Weeks,” Biden Says, NEWSWEEK (Oct. 27, 2022, 8:52 PM), 

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”).

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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). 

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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 

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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 

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“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 

in this case, 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’ 

preliminary-injunction 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 

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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

i. 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 

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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 in the event of 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 

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cognizable 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 

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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 Tex. 

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 

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15 

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). 

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16 

§ 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 Agency’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.

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17 

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 

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18 

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. 

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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.

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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, considering Congress’s extensive consideration of various 

bills attempting 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 

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21 

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.

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22 

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 

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), TWITTER (Sept. 18, 2022, 7:09 PM), 

https://tinyurl.com/2s35maau.

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23 

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

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). The Department has 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 in favor of 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). 

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24 

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. 

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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 found of 

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

QUOTATIONS 872 (15th ed. 1980).

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26 

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 

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