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’ BRIEF IN SUPPORT OF THEIR

MOTION TO STAY JUDGMENT PENDING APPEAL

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TABLE OF CONTENTS

INTRODUCTION...........................................................................................................................................1

ARGUMENT.....................................................................................................................................................1

I. Defendants Are Likely To Succeed on Appeal................................................................................2

A. The Court Lacks Subject-Matter Jurisdiction.....................................................................3

B. The Court’s Rulings on the Merits Were Erroneous. .......................................................5

1. The Court Erred by Entering Final Judgment on a Claim Plaintiffs 

Did Not Plead. ..........................................................................................................6

2. Defendants Have Shown that the Loan-Discharge Program Is 

Authorized by the HEROES Act, Presenting a Serious Legal 

Question on Appeal..................................................................................................8

C. The Court Erred by Entering Final Judgment on an Incomplete Record...................14

II. The Balance of Equities Overwhelmingly Favors a Stay Pending Appeal. ...............................17

III. At a Minimum, the Judgment Should Be Narrowed ....................................................................19

CONCLUSION...............................................................................................................................................20

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TABLE OF AUTHORITIES

CASES

Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,

141 S. Ct. 2485 (2021).................................................................................................................................13

Anderson v. Davila,

125 F.3d 148 (3d Cir. 1997)................................................................................................................. 14, 15

Arizona v. Biden,

31 F.4th 469 (6th Cir. 2022).......................................................................................................................19

Arnold v. Garlock, Inc.,

278 F.3d 426 (5th Cir. 2001) ................................................................................................................... 2, 6

Biden v. Missouri,

142 S. Ct. 647 (2022)............................................................................................................................ 10, 11

Bye v. MGM Resorts Int’l, Inc.,

49 F.4th 918 (5th Cir. 2022).................................................................................................................... 6, 7

California v. Texas,

141 S. Ct. 2104 (2021)...................................................................................................................................4

Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) .....................................................................................................................................16

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,

447 U.S. 102 (1980) .....................................................................................................................................14

Dep’t of Tex., Veterans of Foreign Wars of U.S. v. Tex. Lottery Comm’n,

760 F.3d 427 (5th Cir. 2014) ........................................................................................................................4

DHS v. New York,

140 S. Ct. 599 (2020)...................................................................................................................................19

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) .....................................................................................................................................13

Geddes v. Weber Cnty.,

No. 20-4083, 2022 WL 3371010 (10th Cir. Aug. 16, 2022).....................................................................7

Georgia v. President of the United States,

46 F.4th 1283 (11th Cir. 2022)............................................................................................................ 13, 19

Gill v. Whitford,

138 S. Ct. 1916 (2018).................................................................................................................................19

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Golden Gate Rest. Ass’n v. City & Cnty. of San Francisco,

512 F.3d 1112 (9th Cir. 2008)....................................................................................................................17

Hecht Co. v. Bowles,

321 U.S. 321 (1944) .....................................................................................................................................19

Henderson v. Stalder,

287 F.3d 374 (5th Cir. 2002) ........................................................................................................................5

Hilton v. Braunskill,

481 U.S. 770 (1987) .......................................................................................................................................1

Hunt v. Cromartie,

526 U.S. 541 (1999) .....................................................................................................................................16

Intell. Ventures II LLC v. BITCO Gen. Ins. Corp.,

No. 6:15-cv-59, 2015 WL 11616297 (E.D. Tex. Sept. 14, 2015)..........................................................15

Kentucky v. Biden,

23 F.4th 585 (6th Cir. 2022).......................................................................................................................13

Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,

140 S. Ct. 2367 (2020)...................................................................................................................................6

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) .....................................................................................................................................15

Madsen v. Women’s Health Ctr., Inc.,

512 U.S. 753 (1994) .....................................................................................................................................19

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) .......................................................................................................................................3

Nat’l Ass’n of Mfrs. v. Dep’t of Def., 

138 S. Ct. 617 (2018)...................................................................................................................................12

Nken v. Holder,

556 U.S. 418 (2009) .......................................................................................................................................2

Paris v. U.S. Dep’t of Hous. & Urb. Dev.,

713 F.2d 1341 (7th Cir. 1983)....................................................................................................................16

Park v. Direct Energy GP, LLC,

832 F. App’x 288 (5th Cir. 2020).................................................................................................................6

Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,

734 F.3d 406 (5th Cir. 2013) ........................................................................................................................1

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Pughsley v. 3750 Lake Shore Drive Coop. Bldg.,

463 F.2d 1055 (7th Cir. 1972)....................................................................................................................14

Richmond Med. Ctr. for Women v. Herring,

570 F.3d 165 (4th Cir. 2009) ........................................................................................................................8

Salazar v. Buono,

559 U.S. 700 (2010) .................................................................................................................................. 5, 8

Scenic Am., Inc. v. U.S. Dep’t of Transp.,

836 F.3d 42 (D.C. Cir. 2016)......................................................................................................................16

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) .......................................................................................................................................5

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ................................................................................................................................ 5, 16

Tex. Disposal Sys., Inc. v. FCCI Ins. Co.,

854 F. App’x 576 (5th Cir. 2021).................................................................................................................7

Texas v. United States,

14 F.4th 332 (5th Cir. 2021), opinion vacated on reh’g en banc, 24 F.4th 407 (5th Cir. 2021) .................17

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021)...................................................................................................................................3

United States v. Gonzales,

520 U.S. 1 (1997)............................................................................................................................................9

United States v. Sineneng-Smith,

140 S. Ct. 1575 (2020).............................................................................................................................. 6, 8

Univ. of Texas v. Camenisch,

451 U.S. 390 (1981) .....................................................................................................................................14

Valentine v. Collier,

956 F.3d 797 (5th Cir. 2020) ......................................................................................................................17

Van Buren v. United States,

141 S. Ct. 1648 (2021).................................................................................................................................11

West Virginia v. EPA,

142 S. Ct. 2587 (2022).......................................................................................................................... 12, 13

Wyoming v. U.S. Dep’t of Interior,

No. 2:15-cv-041-SWS, 2015 WL 9463708 (D. Wyo. Dec. 17, 2015)...................................................15

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STATUTES

20 U.S.C. § 1082...............................................................................................................................................13

20 U.S.C. § 1098bb ..................................................................................................................................... 9, 10

20 U.S.C. § 1098ee ...........................................................................................................................................11

42 U.S.C. § 1395x.............................................................................................................................................10

FEDERAL RULES

Fed. R. Civ. P. 56 .............................................................................................................................................16

Fed. R. Civ. P. 65 .............................................................................................................................................14

ADMINISTRATIVE & EXECUTIVE MATERIALS

Federal Student Aid Programs,

77 Fed. Reg. 59,311 (Sept. 27, 2012).........................................................................................................10

Federal Student Aid Programs,

85 Fed. Reg. 79,856 (Dec. 11, 2020).................................................................................................. 10, 11

Federal Student Aid Programs,

87 Fed. Reg. 61,512 (Oct. 12, 2022)............................................................................................................9

LEGISLATIVE MATERIALS

149 Cong. Rec. H2524 (daily ed. Apr. 1, 2003).............................................................................................9

153 Cong. Rec. H10789 (daily ed. Sept. 25, 2007)........................................................................................9

Federal Student Loan Integrity Act,

H.R. 7058, 117th Cong. (Mar. 11, 2022) ..................................................................................................14

Stop Reckless Student Loan Actions Act of 2022,

S. 4094, 117th Cong. (Apr. 27, 2022)........................................................................................................14

Stop Reckless Student Loan Actions Act of 2022,

H.R. 7656, 117th Cong. (May 3, 2022).....................................................................................................14

OTHER AUTHORITIES

FSA, Student Loan Delinquency and Default,

https://perma.cc/9RJ7-SXR2 ...................................................................................................................17

Webster’s Third New International Dictionary 97 (1976)......................................................................................9

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INTRODUCTION

Defendants respectfully request a stay pending appeal of the Court’s November 10, 2022 order

entering summary judgment for Plaintiffs and vacating the Department of Education’s program for 

providing targeted student-loan debt relief to individuals affected by the COVID-19 pandemic. See

Order, ECF No. 37 (as amended Nov. 14, 2022); Final Judgment, ECF No. 38. As explained below, 

Defendants are likely to succeed in their appeal because the Court lacked subject-matter jurisdiction

to enter an order that provides no legal redress to Plaintiffs, blocks millions of Americans from 

receiving debt relief, and rests on a claim that Plaintiffs did not even assert. The Court’s analysis of a

substantive claim that it advanced in place of the procedural claim that Plaintiffs pleaded was similarly 

improper and flawed. And for many similar reasons, the balance of equities weighs heavily against the 

Court’s injunction, and Defendants face irreparable harm from the delay of loan relief that is necessary 

to guard against student-loan borrowers becoming worse off with respect to their student loans as a 

result of COVID-19. Plaintiffs’ parochial interests in this case cannot outweigh the interests of the 

millions of borrowers who will suffer harm from the delay in relief.

Defendants respectfully request that the Court rule on this motion no later than Thursday, 

November 17, at 12:00 PM Central Time. Given the broad impact of the Court’s judgment, if the 

Court does not grant relief by that time, Defendants will seek relief from the U.S. Court of Appeals 

for the Fifth Circuit.

ARGUMENT

Courts consider four factors in assessing a motion for stay pending appeal: (1) the movant’s 

likelihood of prevailing on the merits of the appeal, (2) whether the movant will suffer irreparable 

harm absent a stay, (3) the harm that other parties will suffer if a stay is granted, and (4) the public 

interest. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Planned Parenthood of Greater Tex. Surgical 

Health Servs. v. Abbott, 734 F.3d 406, 410 (5th Cir. 2013). When the government is a party, its interests 

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and the public interest “merge.” Nken v. Holder, 556 U.S. 418, 435 (2009). A court that has found for 

one party on the merits is not required to reverse that position in order to grant a stay to the opposing 

party. Instead, when “a serious legal question is involved” and “the balance of the equities weighs 

heavily in favor of granting the stay,” a party seeking a stay pending appeal “need only present a 

substantial case on the merits.” Arnold v. Garlock, Inc., 278 F.3d 426, 438–39 (5th Cir. 2001) (citation 

omitted). Here, each of these factors weighs heavily in favor of a stay pending appellate review.

I. Defendants Are Likely To Succeed on Appeal.

In issuing its judgment of vacatur, the Court determined that Plaintiffs had sufficiently 

established standing in relation to alleged procedural violations of the Administrative Procedure Act 

(“APA”), but it rejected Plaintiffs’ procedural claim on the merits and held that “the Program did not 

violate the APA’s procedural requirements.” Order at 18. That should have been the end of the 

Court’s inquiry. But the Court proceeded to grant summary judgment based on purported substantive 

violations of the APA—specifically on the ground that Defendants’ loan-discharge program was not 

authorized by the HEROES Act—even though Plaintiffs’ complaint did not request relief based on 

any such substantive violations, and even though the Court never determined that Plaintiffs had 

standing to pursue such a claim. 

Defendants are likely to prevail on appeal because the Court’s determination that Plaintiffs 

have standing based on an alleged procedural violation (unaccompanied by any concrete harm) was 

erroneous. But even if Plaintiffs had standing to pursue their procedural claim, that could not entitle 

them to relief because—as the Court correctly concluded—that procedural claim is meritless. And

the Court improperly granted relief based on a theory that Plaintiffs indisputably lack standing to 

pursue and did not even plead. Even putting all that aside, Defendants are likely to succeed because 

the plain text of the HEROES Act authorizes the loan-discharge program, and the Court improperly 

applied the major questions doctrine to reach a different result.

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A. The Court Lacks Subject-Matter Jurisdiction.

As a threshold matter, Plaintiffs lack standing to challenge the loan forgiveness plan because 

they have suffered no injury-in-fact. Plaintiffs must demonstrate that the challenged action causes 

them to suffer an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the 

challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 

139, 149 (2010). Standing is essential because federal courts do not “possess a roving commission to 

publicly opine on every legal question” and do not “exercise general legal oversight of the Legislative 

and Executive Branches.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).

Here, the Court based its standing analysis on Plaintiffs’ assertion that they had been 

“depriv[ed] of their procedural right under the APA to provide meaningful input on any proposal 

from the Department to forgive student-loan debt.” Order at 11; see also id. at 12 (stating that Plaintiffs’ 

“injury” is “that they personally did not receive forgiveness and were denied a procedural right to 

comment on the Program’s eligibility requirements”). It thus determined that Plaintiffs had standing 

to pursue their claim that the Department violated the APA’s procedural requirements by 

promulgating the challenged policy without engaging in notice-and-comment. But the Court’s 

summary judgment decision was based on a different, unpleaded, claim—that the Secretary’s decision 

exceeds his authority under the HEROES Act—and the Court did not find that Plaintiffs have 

standing to assert that claim. “[S]tanding is not dispensed in gross; rather, plaintiffs must demonstrate 

standing for each claim that they press and for each form of relief that they seek (for example, 

injunctive relief and damages).” Ramirez, 141 S. Ct. at 2208. Here, Plaintiffs’ complaint asserted only 

one count: a violation of notice and comment rulemaking. Compl. ¶¶ 62–73. Plaintiffs did not even 

attempt to argue they would have standing to pursue a hypothetical separate claim that the loan 

forgiveness plan exceeded the Secretary’s statutory authority, and the Court erred in granting relief on 

a claim without determining whether Plaintiffs had standing to raise it. And indeed, Plaintiffs would 

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not have standing to bring a claim of a substantive violation because they cannot show any injury-infact traceable to the Department’s decision and redressable by a favorable decision from this Court. 

See Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. & Mot. to Dismiss at 8–12, ECF No. 24 (“PI Opp’n”). 

On redressability, in particular, the Court reasoned that a “lighter standard applies” when a 

plaintiff asserts a procedural violation. Order at 14. But the excess-of-statutory-authority claim that 

the Court actually ruled on does not arise “in the context of procedural injuries.” Id. Plaintiffs thus

have to make the “normal[]” showing that “a favorable ruling would redress [their] entire injury at 

[the] hands of the defendant,” id.—i.e., that it is “likely, as opposed to merely speculative, that a 

favorable decision will redress the plaintiff’s injury.” Dep’t of Tex., Veterans of Foreign Wars of U.S. v. 

Tex. Lottery Comm’n, 760 F.3d 427, 432 (5th Cir. 2014) (citation omitted). 

Because Plaintiffs have made no such showing, there is a telling disconnect between the 

Court’s redressability analysis and the remedy that it granted. See California v. Texas, 141 S. Ct. 2104, 

2115 (2021) (redressability “consider[s] the relationship between ‘the judicial relief requested’ and the 

‘injury’ suffered”). The Court reasoned that Plaintiffs’ alleged procedural injury—the lack of an 

opportunity to comment on the loan forgiveness program—was redressable because “there is at least 

some possibility that Defendants would reconsider the eligibility requirements of the Program if it 

were enjoined or vacated.” Order at 14. But the Court’s remedy—declaring that the Secretary 

exceeded his statutory authority and vacating the student loan forgiveness plan on a universal basis—

leaves Plaintiffs’ injuries unresolved: Neither Plaintiff will have any additional opportunity to 

comment on the loan forgiveness program because the Court now has rendered such a program legally 

unavailable. At best, Plaintiffs are thus left in the same position as before this case, without any 

additional opportunity to comment and with Plaintiff Brown holding the same amount of debt as she 

did at the outset of this litigation. But in truth, the Court’s remedy actually inflicts a new injury on 

Plaintiff Taylor, who will now owe $10,000 more in student loan debt than he would have owed in the 

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absence of the Court’s order. The Court’s failure to “find prospective relief that fits the remedy to 

the wrong or injury that has been established,” Salazar v. Buono, 559 U.S. 700, 718 (2010), evinces

Plaintiffs’ lack of standing to raise the merits claim for which the Court granted relief. 

The actual standing analysis that the Court conducted was also flawed. To start, as the Court 

correctly held, “the Secretary may waive or modify any provision without notice and comment under 

the HEROES Act.” Order at 18. As a matter of standing, then, Plaintiffs have no procedural right 

“granted by statute” to notice and comment or negotiated rulemaking, Spokeo, Inc. v. Robins, 578 U.S. 

330, 342 (2016), and Plaintiffs have not suffered any injury, procedural or otherwise, from the 

Secretary’s alleged failure to undertake processes he was under no legal requirement to utilize.

Moreover, as explained in Defendants’ briefing, the “deprivation of a procedural right without some 

concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing,” 

Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009), and Plaintiffs have no concrete interest in 

whether “a benefit has been [unlawfully] granted to others.” Henderson v. Stalder, 287 F.3d 374, 384 

(5th Cir. 2002) (Jones, J., concurring); see PI Opp’n at 9-11. 

Nor is the claimed procedural injury redressable by a Court order. Given the Court’s 

conclusion that the Department’s loan discharge policy was legally unauthorized because it is “one of 

the largest exercises of legislative power without congressional authority in the history of the United 

States,” Order at 25, the Department could hardly afford Plaintiffs relief after notice and comment by 

expanding the program to cover additional categories of student loan borrowers (including Plaintiffs, 

who argue simultaneously in this very lawsuit that the relief the Secretary determined to provide is too 

broad and yet that the Secretary should have included them in that relief).

B. The Court’s Rulings on the Merits Were Erroneous.

Defendants are also likely to succeed on appeal because the Court erred in finding a lack of

clear congressional authorization for the loan-discharge program. Two key errors infect the Court’s

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reasoning on the merits. First, to reach its decision, the Court deviated from the “principle of party 

presentation” by considering and ruling on a claim that was not pleaded by Plaintiffs. United States v. 

Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). And second, the Court improperly applied the major 

questions doctrine to “impos[e] limits on an agency’s discretion that are not supported by the text.” 

Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2381 (2020). Defendants

have at least raised a “substantial” question as to both errors, Arnold, 278 F.3d at 438–39, and while 

Defendants’ likelihood of success on either issue would independently support a stay, taken together, 

the case for a stay is substantial.

1. The Court Erred by Entering Final Judgment on a Claim Plaintiffs Did Not 

Plead. 

The Fifth Circuit has repeatedly (and recently) emphasized that “[a] claim which is not raised 

in the complaint but, rather, is raised only” in summary judgment proceedings “is not properly before 

the court.” Bye v. MGM Resorts Int’l, Inc., 49 F.4th 918, 925 (5th Cir. 2022) (citation omitted); see also

Park v. Direct Energy GP, LLC, 832 F. App’x 288, 295 (5th Cir. 2020). That rule reflects a key feature 

of “our adversarial system of adjudication,” namely that courts must “rely on the parties to frame the 

issues for decision” and remain “essentially passive instruments of government.” Sineneng-Smith, 140 

S. Ct. at 1579 (citations omitted). Here, the Court violated that “principle of party presentation,” id., 

by improperly contorting Plaintiffs’ claim on the merits from one of proper procedure to one of 

adequate statutory authority. See Order at 18–23. 

From its outset, this case concerned a single claim for relief: a request that the loan-discharge 

program “be held unlawful and set aside” because it “did not go through the proper procedures.” See 

Compl. ¶ 73; see also id. at 13 (labeling this claim as one for “Failure to Follow Proper Rulemaking 

Procedures” in violation of the APA). In unmistakable terms, this Court rejected that claim: As the 

Court put it, “because the [loan-discharge program] was issued under the HEROES Act, which 

exempts notice and comment, the Program did not violate the APA’s procedural requirements.” 

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Order at 18. The Court’s merits analysis should have ended there, “within the confines of the issue 

as the parties [had] presented it.” Tex. Disposal Sys., Inc. v. FCCI Ins. Co., 854 F. App’x 576, 579 n.6

(5th Cir. 2021). 

Nevertheless, after rejecting Plaintiffs’ procedural arguments, the Court went on to address 

the “APA’s Substantive Requirements.” Order at 18. It did so because, notwithstanding the 

exclusively procedural nature of Plaintiffs’ lone claim, the Court construed the complaint to have 

sought relief on a second basis: “that the Secretary lacks the authority to implement the Program 

under the HEROES Act.” Id. at 6. But the pages of the complaint that Court identified as advancing 

this second basis for relief, see id. (citing Compl. at 4–5), concern only the identity of the parties, the 

basis for jurisdiction and venue, and “background” regarding the Department of Education’s grant 

and loan programs and certain statutes governing compromises of student loan debt. Indeed, rather 

than appearing in the complaint, arguments about the major questions doctrine and the Secretary’s 

authority to forgive student loan debt under the HEROES Act were first introduced into this case 

through Plaintiffs’ motion for a preliminary injunction, which the Court later converted into a motion 

for summary judgment. 

By granting relief based on a claim that was raised only by motion and which substantially 

differed from the claim pleaded in the complaint, the Court violated the rule against consideration of 

unpleaded claims. See Bye, 49 F.4th at 925; accord Geddes v. Weber Cnty., No. 20-4083, 2022 WL 3371010, 

at *11 (10th Cir. Aug. 16, 2022) (discussing “a paradigmatic example of when it would be inappropriate

to allow a plaintiff to advance a new theory not pleaded in his complaint”). That this led the Court to 

grant a form of relief—vacatur of the Department’s policy as unauthorized by statute—that precludes 

the relief Plaintiffs requested in their complaint—an opportunity to provide comments on a future,

hopefully expanded, loan-discharge program—shows just how grave this error was. See Salazar, 559 

U.S. at 718 (“A court must find prospective relief that fits the remedy to the wrong or injury that has 

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been established.”); cf. Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009) (Article 

III’s limitation prevents federal courts from opining on “issues not before the court”).

The procedural focus of Plaintiffs’ claim was not ambiguous. The complaint extolled, 

prominently and at length, the virtues of the APA’s notice-and-comment requirements. See, e.g., 

Compl. ¶ 1. Plaintiffs’ entire claim to standing was based on an alleged deprivation of their 

“procedural right” to comment on the Department’s policy, and Plaintiffs bemoaned that “the 

Department hammered out the critical details of the [loan-discharge program] in secret,” id. ¶ 5, 

without providing them with “an opportunity to present their views . . . and to provide additional 

comments on any proposal . . . to forgive student loan debts,” id. ¶ 10. Nowhere did the complaint 

refer to the APA’s substantive requirements, allege that the Secretary lacked statutory authority to 

forgive the student loan debts at issue in this lawsuit, or mention the major questions doctrine and the 

clear congressional authorization that that doctrine sometimes requires in extraordinary cases. Yet 

these issues were the focus of the Court’s merits analysis, and they provide the only basis for the 

Court’s grant of summary judgment to Plaintiffs. Because that “radical transformation” of this case 

was unjustified, Sineneng-Smith, 140 S. Ct. at 1582, it is likely to be undone on appeal. 

2. Defendants Have Shown that the Loan-Discharge Program Is Authorized by 

the HEROES Act, Presenting a Serious Legal Question on Appeal.

Even assuming that Plaintiffs had properly asserted a substantive challenge to the Secretary’s 

statutory authority to implement the loan-discharge program, Defendants’ appeal is likely to succeed

because the program is authorized by the plain text of the HEROES Act. Although the Court 

purported to apply the major questions doctrine to require a statement of “clear congressional 

authorization to create a $400 billion student loan forgiveness program,” Order at 1, its majorquestions analysis is fundamentally flawed, and no clearer authorization than that already contained in 

the HEROES Act is required. 

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In the HEROES Act, Congress gave the Secretary broad authority to “waive or modify any

statutory or regulatory provision applicable to” federal student loan programs in response to a national 

emergency, “[n]otwithstanding any other provision of law” unless otherwise specified. 20 U.S.C. § 

1098bb(a)(1) (emphasis added). That authority extends as far as “necessary to ensure that” borrowers 

affected by the relevant national emergency are not left “in a worse position financially with respect 

to their student loans because of” it. Id. § 1098bb(a)(2). Congress knew that the Secretary’s exercise 

of this authority necessarily would vary in scope as necessary to respond to national emergencies, 

which could differ substantially in gravity and duration. See, e.g., 149 Cong. Rec. H2524 (Apr. 1, 2003) 

(statement of Rep. Kline) (“By granting flexibility to the Secretary of Education, the HEROES Act 

will . . . provide the Secretary with the authority to address issues not yet foreseen.”); 153 Cong. Rec. 

H10789 (Sept. 25, 2007) (statement of Rep. Sestak) (“Because of unforeseen national emergencies, 

such as Hurricane Katrina, as well as our continued military engagement overseas, it is important that 

we pass the legislation before us and allow the Secretary of Education to continue providing this 

needed relief.”). And in appropriate circumstances, that grant of authority naturally may license the 

discharge of borrowers’ loan obligations altogether, rather than the mere deferral of them. See United 

States v. Gonzales, 520 U.S. 1, 5 (1997) (“Read naturally, the word ‘any’ has an expansive meaning, that 

is, ‘one or some indiscriminately of whatever kind.’” (quoting Webster’s Third New International Dictionary

97 (1976))); see also 20 U.S.C. § 1098bb(a)(1) (providing that relevant statutory and regulatory 

provisions may be waived or modified “unless enacted with specific reference to this section”); 2022 

Notice, 87 Fed. Reg. 61,512, 61,514 (Oct. 12, 2022) (modifying certain provisions governing the 

discharge of student loan debts and the procedures for obtaining such discharges, as those provisions 

do not contain any cross-reference to 20 U.S.C. § 1098bb). 

For all the reasons that Defendants have already given, see PI Opp’n at 14–22, and which 

Defendants hereby incorporate by reference, the loan-discharge program falls well within the text and 

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purposes of the HEROES Act. The Court disagreed because it thought Congress “would have 

mentioned loan forgiveness” if it had intended to make such relief available by statute. Order at 21. 

But the same could be said for many other forms of relief that the Secretary has provided to borrowers 

even though they are not mentioned expressly in the HEROES Act, including deferrals of borrowers’ 

repayment obligations, see 2020 Notice, 85 Fed. Reg. 79,856, 79,857 (Dec. 11, 2020), and the waiver 

of students’ obligations to repay certain overpayments, see 2012 Notice, 77 Fed. Reg. 59,311, 59,313

(Sept. 27, 2012). Rather than dictate a list of every conceivable form of relief that might be appropriate 

in a given emergency—and recognizing that major emergencies tend to be unanticipated and difficult 

to plan for—Congress opted here to provide a more flexible grant of authority to be defined by the 

nature of the emergency and the harms anticipated to be suffered by affected borrowers. 20 U.S.C. § 

1098bb(a)(2). Given the acknowledged severity of the ongoing COVID-19 pandemic, and the 

financial difficulties that many borrowers will face when payments ultimately resume, the loandischarge program “fits neatly within the language of the statute,” and no more definite statement is 

required. Biden v. Missouri, 142 S. Ct. 647, 652 (2022) (approving vaccination requirement, over major 

questions objection, issued under a statute that “authorized the Secretary [of HHS] to impose 

conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the 

interest of the health and safety of individuals who are furnished services.’” (quoting 42 U.S.C. § 

1395x(e)(9))). And, of course, Congress did expressly authorize the Secretary to “waive” or “modify” 

provisions that oblige students to repay their student loans—the semantics of calling such waivers and 

modifications “loan forgiveness” does not take the Secretary’s action beyond the legitimate scope of 

the statutory text.

The Court also questioned, without answering, whether “COVID-19 is still a ‘national 

emergency’ under the Act.” Order at 22. But the Act is explicit and unambiguous: A “national 

emergency” exists when declared by the President of the United States. 20 U.S.C. § 1098ee(4). And 

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“[w]hen a statute includes an explicit definition of a term, [courts] must follow that definition.” Van 

Buren v. United States, 141 S. Ct. 1648, 1657 (2021) (citation omitted). Because the declaration of the 

COVID-19 pandemic as a national emergency remains in effect, and indeed, was recently renewed, see 

Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 87 

Fed. Reg. 10,289 (Feb. 18, 2022), the Court’s reliance on informal, extra-record assessments of the 

present severity of the pandemic was improper.1 Just as the Secretary may provide relief to affected 

borrowers even after a hurricane stops spinning, so may the Secretary provide appropriate relief to 

borrowers now to ensure that they are not made worse off by the pandemic. 

Finally, the Court claimed to find clear congressional authorization for the loan-discharge 

program lacking because such a program has not been implemented in the recent past. Order at 23. 

Yet the Court failed to acknowledge that the scope of the Secretary’s authority under the HEROES 

Act may vary in proportion to the scale of the emergency and harms involved. Thus, even though the 

Secretary had never before paused payments for all student loan borrowers under the Act, 

implementing such a pause was the first action the Secretary took in response to the pandemic. 2020 

Notice, 85 Fed. Reg. at 79, 857. If that pause and the subsequent loan-discharge program are broader 

in scope than pre-pandemic grants of relief under the HEROES Act, that difference simply reflects 

the vastly greater scope of the current national emergency and the economic devastation it has 

wrought, not any outer bound on the Secretary’s authority. See Missouri, 142 S. Ct. at 653 (upholding 

agency action that went “further than what the Secretary has done in the past” to achieve a statutory 

1 Citing a 60 Minutes tweet, the Court noted the President has publicly acknowledged that 

pandemic conditions are easing. Order at 22 n.20. But that easing will not erase the significant 

economic and personal harms that many have suffered over the last two and a half years. And 

continued easing is hardly a certainty, as the recent extension of the public health emergency shows. 

See Xavier Becerra, Renewal of Determination That a Public Health Emergency Exists, 

https://perma.cc/DXD8-SUD2 (Oct. 13, 2022).

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objective, in part because the agency “never had to address an infection problem of [the] scale and 

scope [of COVID-19] before”). 

The Court’s analysis of the Secretary’s statutory authority should have “beg[un] with the 

statutory text”—and, because the text is clear, “end[ed] there as well.” Nat’l Ass’n of Mfrs. v. Dep’t of 

Def., 138 S. Ct. 617, 631 (2018) (citation omitted). But instead, the Court reached to apply the majorquestions doctrine on the sole grounds that this case implicates “billions of dollars” and recently 

introduced draft bills on the topic have failed. Order at 19 (citation omitted); see also id. at 20. 

Even if the major questions doctrine applied, the Court’s application of that doctrine here is 

likely to be overturned on appeal. For one thing, the Court failed to grapple with the reasons 

underlying the Secretary’s determination that the loan forgiveness program is necessary to prevent 

certain borrowers from being made worse off with respect to their student loans as a result of the 

pandemic, focusing instead solely on the suggestion that the pandemic is over. See Order at 22. In 

failing to address the Secretary’s reasoning, the Court overlooked the close tie between the Secretary’s 

action here and the statutory standards that authorized him to act. 

The Court also failed to address substantial arguments raised by Defendants that this case is

not a “major questions case.” West Virginia v. EPA, 142 S. Ct. 2587, 2610 (2022). In prior majorquestions cases, the Supreme Court has sometimes considered whether the challenged action is within 

the agency’s traditional field of expertise in determining whether the major questions doctrine applies. 

See id. at 2612–13 (“When [an] agency has no comparative expertise in making certain policy 

judgments, we have said, Congress presumably would not task it with doing so.” (citation omitted)). 

But here, the Secretary of Education is indisputably in the business of administering the federal student 

financial aid programs and, in myriad circumstances, providing appropriate relief from federal student 

loan repayment obligations. And given the Secretary’s fundamental legal power to “compromise, 

waive, or release any right, title, claim, lien, or demand” acquired in the Secretary’s performance of his 

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vested “functions, powers, and duties” to administer federal student loans, 20 U.S.C. § 1082(a)(6), this 

case is unlike those where an agency has accreted to itself an entirely unexpected power. Cf. Ala. Ass’n

of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (“The moratorium intrudes into 

an area that is the particular domain of state law: the landlord-tenant relationship.”); FDA v. Brown & 

Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000) (“Congress . . . has . . . squarely rejected proposals 

to give the FDA jurisdiction over tobacco[.]”). 

Similarly, no major questions case considered by the Supreme Court has, to date, involved the 

disbursement of a federal benefit to private parties; instead, those cases have concerned the imposition 

of significant burdens on private parties. See, e.g, Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (regulating 

landlords across at least 80% of the country). And although the Court declared this distinction to be 

“untrue,” the circuit-level decisions that it cited—Kentucky v. Biden, 23 F.4th 585 (6th Cir. 2022) and 

Georgia v. President of the United States, 46 F.4th 1283 (11th Cir. 2022)—bear out the difference all the 

same, as they concerned a vaccination requirement imposed on private businesses and employees as 

a condition of eligibility to compete for and receive government contracts—not a “vaccine mandate 

for federal employees,” contra Order at 21, and not the provision of a statutory benefits pursuant to a 

program that an executive branch agency has been given clear congressional authorization to 

administer.

Finally, the Court applied the major questions doctrine despite the fact that there is nothing 

“cryptic,” Brown & Williamson, 529 U.S. at 160, or “ancillary,” West Virginia, 142 S. Ct. at 2602, about 

the HEROES Act’s central provisions. In granting the Secretary wide discretion to waive or modify 

provisions of the legal regime governing federal student loan programs, Congress did not “use oblique 

or elliptical language,” nor provide a potentially broad delegation “through ‘modest words,’ ‘vague 

terms,’ or ‘subtle device[s].’” West Virginia, 142 S. Ct. at 2609 (citation omitted). Indeed, it would 

have been hard for Congress to more clearly authorize the Secretary, during a national emergency, to 

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exercise maximum flexibility in crafting appropriate relief for student loan borrowers facing 

extraordinary and unforeseen circumstances.

2

 

C. The Court Erred by Entering Final Judgment on an Incomplete Record.

At the very least, Defendants are likely to succeed in showing that the Court’s decision to 

advance this case to final judgment was premature. While a court “may advance the trial on the merits 

and consolidate it with” the preliminary injunction hearing, Fed. R. Civ. P. 65(a)(2), doing so is proper 

only after “clear and unambiguous notice of the court’s intent to consolidate” provided “at a time 

which will still afford the parties a full opportunity to present their respective cases,” Univ. of Texas 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) (Stevens, J.)). That opportunity was not afforded to Defendants here. 

For one thing, the Court’s notice of its intent to consolidate the proceedings pursuant to Rule 

65(a)(2) came too late. By first providing notice that it was considering consolidation on November 

2, more than a week after holding the hearing on Plaintiffs’ motion for a preliminary injunction, the 

Court did not “state its intention to treat the hearing as a trial on the merits until after all testimony 

had been taken and all evidence had been submitted.” Anderson v. Davila, 125 F.3d 148, 158 (3d Cir. 

2 The Court also noted the failure of various legislative proposals involving loan forgiveness

in support of its major questions analysis. Order at 20. But the failure of those bills, which would 

have offered different relief, to different groups of borrowers, and for different reasons than the 

Secretary has articulated, says nothing about whether the Secretary’s action here was authorized under 

the HEROES Act. See, e.g., Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 117 (1980) 

(recognizing that “the views of a subsequent Congress form a hazardous basis for inferring the intent 

of an earlier one”(citation omitted)). It is also true that Congress has failed to amend the HEROES 

Act so as to prevent loan discharges—though the Court did not appear to find that relevant to its 

analysis—and so recent legislative history would seem to cut both ways at best. See, e.g., S. 4094, 117th 

Cong. § 4(d)(1) (introduced Apr. 27, 2022) (proposing to amend the HEROES Act to specify that 

“[n]otwithstanding any other provisions of law, the President or the Secretary of Education may not 

cancel the outstanding balances, or a portion of the balances, on covered loans due to the COVID19 national emergency or any other national emergency”); H.R. 7656, 117th Cong. § 4(d)(1) 

(introduced May 3, 2022) (same); see also H.R. 7058, 117th Cong. (introduced Mar. 11, 2022) (proposing 

to prohibit further waivers or modifications in connection with the COVID-19 pandemic).

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1997). Even then, the Court gave Defendants just two days to object. Thus, the Court improperly 

restricted Defendants to defenses prepared for a “more limited purpose” at the preliminary injunction 

stage and “on the basis of procedures that are less formal and evidence that is less complete.” Wyoming 

v. U.S. Dep’t of Interior, No. 2:15-cv-041-SWS, 2015 WL 9463708, at *2 (D. Wyo. Dec. 17, 2015)

(citation omitted). 

For this reason, there has been no adversarial testing of Plaintiffs’ standing allegations. See

ECF No. 35, at 2–3. In support of their preliminary injunction motion, Plaintiffs asserted through 

sworn declarations that they believe their “student loan debt should be forgiven too,” Pls.’ App. at 2,

5, 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,” id. at 2, 5. 

There is good reason to doubt those assertions, as Plaintiffs simultaneously argued for, and this Court 

ultimately granted, an order precluding the forgiveness of student loan debt altogether. Yet Plaintiffs 

did not present themselves at the preliminary injunction hearing, so those threadbare assertions have 

gone untested, without so much as a credibility determination from this Court. Cf. Intell. Ventures II 

LLC v. BITCO Gen. Ins. Corp., No. 6:15-cv-59, 2015 WL 11616297, at *2 (E.D. Tex. Sept. 14, 2015)

(noting the need to “judge the credibility and the proper weight, if any, to be given to . . . the statements 

of a declarant”). Moreover, Defendants had no notice that the preliminary injunction hearing would 

be their final opportunity to challenge Plaintiffs’ allegations. See Anderson, 125 F.3d at 158. Under

those circumstances, consolidation pursuant to Rule 65(a)(2) was improper.

In concluding otherwise, the Court reasoned that “Plaintiffs’ intent to participate in any 

comment process and the substance of their comments” were “not material to standing or the merits

. . . even if resolved in Defendants’ favor.” Order at 9. But that is incorrect. At summary judgment,

“the plaintiff can no longer rely on such ‘mere allegations,’ but must ‘set forth’ by affidavit or other 

evidence ‘specific facts’” to establish standing, Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)

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(quoting Fed. R. Civ. P. 56(e)), and “all justifiable inferences are to be drawn in [the nonmoving party’s]

favor,” Hunt v. Cromartie, 526 U.S. 541, 552 (1999). Applying that standard, and assuming that 

Plaintiffs did not actually intend to argue for the expansion of the loan forgiveness program to include 

them in any comment process, Plaintiffs would even more clearly have lost only “a procedural right 

in vacuo,” unrelated to any concrete interest, and indistinguishable from the abstract right of any person

to comment on government policies. Summers, 555 U.S. at 496; cf. Scenic Am., Inc. v. U.S. Dep’t of Transp., 

836 F.3d 42, 53 (D.C. Cir. 2016) (“Scenic’s lack of any evidentiary basis for its redressability 

contentions requires us to reject its standing as to its notice-and-comment claim.”). By depriving 

Defendants of the opportunity to contest Plaintiffs’ asserted basis for standing, the Court’s decision

to advance this case to final judgment prejudiced Defendants. 

Advancing this case to final judgment also resulted in the Court rendering a final decision on 

the merits before the administrative record could be filed. Under the APA, “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), so that too was error. See Paris v. 

U.S. Dep’t of Hous. & Urb. Dev., 713 F.2d 1341, 1346 (7th Cir. 1983) (“[T]he data upon which HUD 

relied in reaching the conclusions contained in its disposition recommendation are apparently still 

scattered in files throughout the HUD area office. These facts provide ample evidence of prejudice 

in a case involving review under the Administrative Procedure Act . . . .”). And contrary to the Court’s 

findings, see Order at 8–10, the administrative record was not necessarily immaterial to the outcome 

of this case, as it might have informed the Court’s decision as to the appropriate remedy. But because 

the Court closed these proceedings prematurely, Defendants were unable to litigate this case on the 

basis of a full record, and the Court entered a decision based on the “APA’s substantive requirements” 

without reviewing the agency record that forms the basis for APA review.

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II. The Balance of Equities Overwhelmingly Favors a Stay Pending Appeal.

The remaining stay factors also tilt decisively in favor of the government. 

While leaving Plaintiffs in the same place with respect to their notice-and-comment rights, and 

making Plaintiff Taylor worse off to the tune of $10,000, the Court’s judgment will impair the 

government’s and the public’s interest in mitigating financial harm to millions of federal student loan 

borrowers at the very moment that relief is needed. The Fifth Circuit has recognized that “[j]udicial

interference with a government agency’s policies often constitutes irreparable injury.” Texas v. United 

States, 14 F.4th 332, 340 (5th Cir. 2021), (citing Valentine v. Collier, 956 F.3d 797, 803 (5th Cir. 2020)), 

opinion vacated on reh’g en banc, 24 F.4th 407 (5th Cir. 2021). That is certainly so in this case, where 

Congress provided the Secretary, via clear statutory text, with significant discretion to act quickly, to 

craft appropriate relief, and to dispense with certain formal procedures that might otherwise be 

required, and yet the relief the Secretary deemed to be necessary has been put on hold by court order. 

The Secretary concluded, based on evidence unrebutted by Plaintiffs or the Court, that millions of 

federal student loan borrowers will be at a heightened risk of delinquency and default on their studentloan obligations when the current payment pause ends. These risks are severe, see Kvaal Decl. ¶ 6(c), 

App’x 3, and the consequences of default can be wide ranging and include wage garnishment, damage 

to borrowers’ credit reports, and the withholding of federal benefits. FSA, Student Loan Delinquency 

and Default, https://perma.cc/9RJ7-SXR2. The Secretary thus found that a measure of loan discharge 

would be appropriate to help guard student loan borrowers against those risks and assist them in 

recovering from the financial harm caused by the COVID-19 pandemic. Whatever parochial interests 

of Plaintiffs might be protected by the Court’s judgment, they pale in comparison to the interests of 

millions of student loan borrowers who face an imminent shift into repayment and need relief now. 

See Golden Gate Rest. Ass’n v. City & Cnty. of San Francisco, 512 F.3d 1112, 1126–27 (9th Cir. 2008) 

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(“[O]ur consideration of the public interest is constrained in this case, for the responsible public 

officials . . . have already considered that interest”).

The judgment also inflicts irreparable harm on Defendants by putting them to a perilous and 

unnecessary choice: restarting payments as previously planned—and thereby inviting the very cascade 

of delinquencies and defaults that prompted the Secretary to adopt the loan discharge program in the 

first place—or considering other options, which would impose their own costs. For instance, 

extending the pause on payments would cost the government several billion dollars per month in 

forborne payments from borrowers. Kvaal Decl. ¶ 9, App’x 5. Because the loan-discharge program 

is just one piece of the Secretary’s comprehensive effort to help student-loan borrowers emerge from 

the pandemic without serious financial harm with respect to their federal debts, prolonged uncertainty

over the propriety of the loan discharge program may undermine the Secretary’s efforts to provide 

borrowers with the full benefit of those other actions. 

Moreover, the public and potentially millions of individual borrowers will be harmed by the 

uncertainty and instability that is sure to ensue following this Court’s judgment. During the time the 

student loan relief application was open, approximately 26 million borrowers applied for debt relief, 

and the Department approved 16 million of those applications. See id. ¶ 5, App’x 2. As the appellate 

process drags on, as it might, these borrowers will be left with significant financial uncertainty. That

is particularly true of the approximately 18 million borrowers who were slated to have their federal 

loans forgiven in their entirety, and who already may have acted in reliance on that expected relief. See 

id. ¶ 7(b), App’x 5. 

Ultimately, it would be inequitable to inflict all these harms on the government, the public, 

and millions of individual student loan borrowers, particularly those most at risk of delinquency and 

default, only so that these two Plaintiffs can either be made similarly worse off (as to Plaintiff Taylor, 

losing $10,000 in loan forgiveness) or be left entirely unaffected (as to both Plaintiffs, having no greater 

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opportunity to provide comments on the loan forgiveness program than before and, as to Plaintiff 

Brown, remaining precluded from loan forgiveness under the program). That is all the more true here, 

where assisting Plaintiffs is not mutually exclusive with providing relief to millions of at-risk studentloan borrowers: the Department of Education is still reviewing other means by which it could provide 

student loan relief to other borrowers including Plaintiff Brown. U.S. Dep’t of Educ., FSA, One-Time 

Federal Student Loan Debt Relief – Are Federal Family Education Loan (FFEL) Program Loans or Perkins Loans 

Eligible for Debt Relief?, https://perma.cc/XS4H-GS6Z (“ED is assessing whether there are alternative 

pathways to provide relief to borrowers with federal student loans not held by ED, including FFEL 

Program loans and Perkins Loans, and is discussing this with private lenders.”). Vacatur of the

forgiveness plan is thus wholly unnecessary to provide Plaintiffs possible relief. 

III. At a Minimum, the Judgment Should Be Narrowed

If the Court does not issue a full stay of its decision, it should at least narrow the scope of its 

order to address Plaintiffs’ injury alone. It is now a familiar observation that universal vacatur and 

nationwide injunctions “upset the bedrock practice of case-by-case judgments with respect to the 

parties in each case.” Arizona v. Biden, 31 F.4th 469, 484 (6th Cir. 2022) (Sutton, J., concurring). They 

“force judges into making rushed, high-stakes, low-information decisions,” and open up “a nearly 

boundless opportunity to shop for a friendly forum.” DHS v. New York, 140 S. Ct. 599, 600–01 (2020) 

(Gorsuch, J., concurring). Accordingly, courts should “thoroughly analyze the extent of relief 

necessary” before awarding an injunction or vacatur with nationwide effect. Georgia, 46 F.4th at 1306. 

As a general matter, “[a] plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury,” 

Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018), and “no more burdensome to [Defendants] than 

necessary,” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). 

Granting universal relief here in the form of vacatur of the entire program is inconsistent with 

Article III and principles of equity. See Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944) (concluding that 

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Congress enacted the APA against a background rule that statutory remedies should be construed in 

accordance with “traditions of equity practice.”). Plaintiffs apparently believe that the only relief that 

would remedy their claimed injury is a nationwide prohibition on even one federal student loan 

borrower receiving even one dollar of loan relief. Even if they could show that they are injured by 

the government’s provision of student loan discharges to others, however, they cannot, as a matter of 

equity, justify a universal order of vacatur that deprives millions of needed relief. To the extent that 

it proves difficult for the Court to craft a remedy targeted to these Plaintiffs’ claimed injuries, that 

would only underscore the failings in Plaintiffs’ theory of standing and irreparable harm. 

CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court stay its final 

judgment pending resolution of Defendants’ appeal. 

Dated: November 15, 2022 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

BRIAN D. NETTER 

Deputy Assistant Attorney General

MARCIA BERMAN

Assistant Branch Director

/s/ Cody T. Knapp 

CODY T. KNAPP (NY #5715438)

KATE TALMOR

R. CHARLIE MERRITT

SAMUEL REBO

Trial Attorneys

U.S. Department of Justice

Civil Division

Federal Programs Branch

1100 L St. NW

Washington, D.C. 20005

Telephone: (202) 532-5663

Facsimile: (202) 616-8470

 E-mail: cody.t.knapp@usdoj.gov 

Counsel for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on November 15, 2022, I electronically filed the foregoing with the Clerk 

of the Court using the CM/ECF system, which will automatically serve a copy to all counsel of record.

/s/ Cody T. Knapp 

CODY T. KNAPP

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