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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MYRA BROWN and ALEXANDER 

TAYLOR,

Plaintiffs,

v.

U.S. DEPARTMENT OF EDUCATION; 

MIGUEL CARDONA, in his official capacity 

as the Secretary of Education,

Defendants.

CIVIL ACTION NO. 4:22-cv-908

PLAINTIFFS’ RESPONSE TO THE COURT’S ORDER

Per the Court’s November 2 Order, Plaintiffs have no objections to advancing their motion 

for a preliminary injunction to a determination on the merits.

1. Federal Rule of Civil Procedure 65 gives the Court broad discretion to “advance the 

trial on the merits and consolidate it with the [preliminary-injunction] hearing.” Fed. R. Civ. P. 65(a)(2); 

see D.L. Cromwell Invs., Inc. v. NASD Reg., Inc., 279 F.3d 155, 160 (2d Cir. 2002) (noting the “‘broad 

discretion accorded the district court by Rule 65(a)(2)’”). Doing so is proper where, as here, no material 

facts are in dispute and the case can be resolved as a matter of law. See, e.g., Cushing v. Jacobs, 2020 WL 

1444921, at *1 (D.N.J. Mar. 25, 2020) (converting plaintiff’s preliminary-injunction motion into one 

for summary judgment because the case “present[ed] a single issue of law” and required “speedy 

adjudication”); Carey v. Wis. Elections Comm’n, — F. Supp. 3d —, 2022 WL 3910457, at *2 (W.D. Wis. 

Aug. 31, 2022) (“[T]he parties haven’t identified a reason for delaying judgment in this case, . . . so the 

court will convert plaintiffs’ motion for a preliminary injunction into a motion for summary judgment, 

grant relief, and close the case.”).

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2. Here, the issues are purely legal and there are no material facts in dispute. See Pls’ Mot. 

11-25; Defs’ Opp. 8-30; Pls’ Reply 2-15. That is because “when a party seeks review of agency action 

under the APA, the district judge sits as an appellate tribunal, and the entire case on review is a question 

of law.” New York v. HHS, 414 F. Supp. 3d 475, 516 (S.D.N.Y. 2019) (cleaned up); see AstraZeneca 

Pharms. LP v. Becerra, 2022 WL 484587, at *3 (D. Del. Feb. 16, 2022) (same). “Summary judgment 

serves as ‘the mechanism for deciding, as a matter of law, whether the agency action is . . . consistent 

with the APA standard of review.’” O.A. v. Trump, 404 F. Supp. 3d 109, 125 (D.D.C. 2019).

3. There is no need for the Court to “defer considering” the merits to allow for discovery. 

Fed. R. Civ. P. 56(d). The Department has admitted to the relevant facts. See Defs’ Opp. 6 (“[B]ecause 

[Ms. Brown’s] loans are commercially held, she is not eligible for this particular exercise of 

discretionary debt relief.”); id. at 7 (“Because Mr. Taylor did not receive a Pell Grant in college, . . . he 

is not eligible for the additional $10,000 in debt relief.”); see also Pls’ App. 12, 14 (the Department

explaining that it has “detailed” information on borrowers’ loans and Pell Grants). Nor would the

Department have any basis to challenge Plaintiffs’ declarations. See Dunning v. Quander, 508 F.3d 8, 10 

(D.C. Cir. 2007) (“Without some reason to question the veracity of affiants, the desire to ‘test and 

elaborate’ affiants’ testimony falls short” and is insufficient “to require the district court to defer or 

deny dispositive action.” (cleaned up)); e.g., Shelby Cty. v. Holder, 270 F.R.D. 16, 19 (D.D.C. 2010) 

(refusing to delay summary judgment because “[t]he government has not shown that it needs discovery 

to assess Shelby County’s standing” and “has offered no reason to doubt the veracity of [the]

declaration in support of standing”).

4. The Court also need not wait for the Department to officially certify that it has 

submitted the complete administrative record. See Defs’ App. 3. Plaintiffs’ claim does not depend on 

the administrative record, see Pls. Mot. 11-25; Reply 2-15, and nothing the agency could produce could 

ever justify its failure to conduct negotiated rulemaking and provide notice and an opportunity to 

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comment, see E.B. v. U.S. Dep’t of State, 583 F. Supp. 3d 58, 62 n.3 (D.D.C. 2022) (“Defendants have 

not produced the administrative record in this case. But the record is unnecessary since the Court 

finds that notice-and-comment rulemaking was required.” (citation omitted)); Alphapointe v. Dep’t of 

Veterans Affs., 475 F. Supp. 3d 1, 12 (D.D.C. 2020) (“The APA either requires that the [agency action] 

be subject to notice and comment, or it does not. Resolving Plaintiffs’ challenge therefore requires no 

obvious need for the administrative record.”). Moreover, “the Court appears to possess” the 

administrative record in any event. E.B., 583 F Supp. 3d at 62 n.3. The Department already provided

the “documents related to the decision of the Secretary to provide one-time student loan debt relief.” 

Defs’ App. 2, ¶3 & 5-25; see also Outdoor Amusement Bus. Ass’n, Inc. v. DHS, 2017 WL 3189446, at *9 

(D. Md. July 27, 2017) (“Although DOL and DHS, like many other federal agencies, file certifications 

with administrative records as a matter of practice, certifications are not required by the APA or any

other law.” (cleaned up)).

5. The Court also has provided adequate notice that it may resolve the merits on an 

expedited basis. The Department was “on notice from the outset that [Plaintiffs’] claim hinged on the 

issue to be decided at the preliminary injunction hearing.” D.L. Cromwell Invs., Inc., 279 F.3d at 160. 

And this Court’s November 2 Order has provided the Department a further opportunity to raise 

objections. The Department cannot possibly show “substantial prejudice.” Id.

6. In light of the undisputed facts, Plaintiffs are entitled to summary judgment, as 

explained in their prior briefing. Because the Debt Forgiveness Program is a legislative rule, the 

Department could not adopt the Program without going through negotiated rulemaking and providing 

notice and an opportunity to comment. The Department’s only justification for disregarding these 

procedures is its contention that the Program is authorized by the HEROES Act. But the Program is 

not authorized by the HEROES Act, and so the Department had no authority to ignore its rulemaking 

obligations. Plaintiffs are thus entitled to summary judgment.

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7. The Court should vacate and set aside the Debt Forgiveness Program. See Compl. at 

14. The APA gives courts the power to “hold unlawful and set aside agency action.” 5 U.S.C. §706(2). 

“Under prevailing precedent, § 706 extends beyond the mere non-enforcement remedies available to 

courts that review the constitutionality of legislation, as it empowers courts to ‘set aside’—i.e., formally 

nullify and revoke—an unlawful agency action.” Data Mktg. P’ship, LP v. DOL, 45 F.4th 846, 859 (5th 

Cir. 2022) (citation omitted). “The default rule is that vacatur is the appropriate remedy.” Id. (listing 

cases). “This is especially true when there is a procedural violation.” Texas v. United States, — F. Supp.

3d —, 2022 WL 2109204, at *44 (S.D. Tex. June 10, 2022). Vacatur “‘restores the status quo before 

the invalid rule took effect,’ leaving the agency free to consider the problem anew.” Id.

8. No different result is warranted here. The Department committed serious and 

fundamental legal errors when it determined that the HEROES Act authorized it to create the Debt 

Forgiveness Program without negotiated rulemaking or notice and comment. These errors infect the 

Program to its core and can never be cured. See U.S. Steel Corp. v. EPA, 595 F.2d 207, 210 (5th Cir. 

1979) (agency’s failure to provide notice and comment required the court to “set aside the designations 

and remand to the Agency so that it may repromulgate the Alabama nonattainment list after proper 

public notice and opportunity to comment”); NRDC v. Wheeler, 955 F.3d 68, 85 (D.C. Cir. 2020)

(“Failure to provide the required notice and to invite public comment . . . is a fundamental flaw that 

normally requires vacatur of the rule.” (cleaned up)); Daimler Trucks N.A. LLC v. EPA, 737 F.3d 95, 

103 (D.C. Cir. 2013) (“[T]he court typically vacates rules when an agency ‘entirely fail[s]’ to provide 

notice and comment.” (quoting Shell Oil Co. v. EPA, 950 F.2d 741, 752 (D.C. Cir. 1991)). Moreover, 

any “disruption to [the Department] is largely the ‘uncertainty that typically attends vacatur of any 

rule,’” and any implementation to date has been “premised on a fundamental misunderstanding of 

federal law.” Texas, 2022 WL 2109204, at *45 (quoting Wheeler, 955 F.3d at 85). Thus, “[a]ny disruption 

does not outweigh the seriousness of [the Department’s] fundamental error[s].” Id.

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9. The district court would also be acting within its authority to grant Plaintiffs a 

permanent injunction. See Compl. 14. “‘The standard for a preliminary injunction is essentially the 

same as for a permanent injunction.’” ICEE Distribs., Inc. v. J&J Snack Foods Corp., 325 F.3d 586, 596 

n.34 (5th Cir. 2003). The only difference is that a plaintiff must show “‘actual success’” on the merits. 

Id. Because Plaintiffs are entitled to a preliminary injunction and have shown actual success on the 

merits, they are also entitled to a permanent injunction. See, e.g., Vizant Techs., LLC v. Whitchurch, 2016 

WL 97923, at *25-26 (E.D. Pa. 2016) (converting a preliminary injunction into a permanent 

injunction).

10. Finally, the Court’s intentions to “resolve the dispute in an expeditious manner” are 

warranted. Dkt. 19. Yesterday, the President stated that, “‘[b]y the end of this week, the Department 

of Education will have approved applications of 16 million Americans and sent the necessary 

paperwork to student loan servicers—the last step before the 16 million Americans can have their 

loan[s] discharged.’” Alex Gangitano, Biden Says 16M Student Debt Relief Applicants To Be Approved This 

Week, The Hill (Nov. 3, 2022), https://bit.ly/3gZHk4y. Without relief from this Court, the 

Department will forgive the debts of tens of millions of borrowers and shut down the Program—

forever depriving Plaintiffs of their procedural rights. The Court should expeditiously grant Plaintiffs 

summary judgment.

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Dated: November 4, 2022 Respectfully submitted,

/s/ J. Michael Connolly 

J. Michael Connolly (VA Bar No. 77632)

James F. Hasson (TX Bar No. 24109982)

Matthew Pociask* (IL Bar No. 6336568)

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard, Suite 700

Arlington, VA 22209

Tel: (703) 243-9423

Fax: (703) 243-9423

mike@consovoymccarthy.com

james@consovoymccarthy.com

matt@consovoymccarthy.com

Steven C. Begakis (VA Bar No. 95172)

CONSOVOY MCCARTHY PLLC

Fort Worth, TX

Tel: (703) 243-9423

Fax: (703) 243-9423

steven@consovoymccarthy.com

*Admitted in Illinois, but not Virginia. 

Supervised by principals at firm.

Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I certify that on November 4, 2022, I electronically filed the foregoing with the Clerk of Court 

using the CM/ECF System, which will serve a copy on all counsel of record.

/s/ J. Michael Connolly 

J. Michael Connolly

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