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’ BRIEF IN SUPPORT OF 

MOTION FOR A PRELIMINARY INJUNCTION

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TABLE OF CONTENTS

Table of Authorities........................................................................................................................................... ii

Introduction........................................................................................................................................................ 1

Background ......................................................................................................................................................... 3

I. The Department of Education’s Grant and Loan Programs........................................................ 3

II. The Department’s Limited Authority to Compromise Student Loan Debt............................... 4

III. The Debt Forgiveness Program......................................................................................................... 5

IV. Plaintiffs and Others Excluded from the Debt Forgiveness Program ...................................... 10

Argument........................................................................................................................................................... 11

I. Plaintiffs are likely to prevail on the merits.................................................................................... 11

A. Plaintiffs have standing........................................................................................................ 11

B. The Department violated the APA by adopting the Program without following 

the proper rulemaking procedures..................................................................................... 13

II. Plaintiffs are likely to suffer irreparable harm without a preliminary injunction...................... 22

III. The balance of harms and public interest weigh in favor of a preliminary injunction............ 23

Conclusion......................................................................................................................................................... 25

Certificate of Service........................................................................................................................................ 26

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TABLE OF AUTHORITIES

Cases

Ala. Ass’n of Realtors v. HHS, 

141 S. Ct. 2485 (2021) ................................................................................................................................ 17

Ass’n of Cmty. Cancer Ctrs. v. Azar, 

509 F. Supp. 3d 482 (D. Md. 2020)......................................................................................................2, 23

Atl. City Elec. Co. v. FERC, 

295 F.3d 1 (D.C. Cir. 2002) ......................................................................................................................... 4

Azar v. Allina Health Servs.,

139 S. Ct. 1804 (2019) ................................................................................................................................ 14

BST Holdings, LLC v. OSHA, 

17 F.4th 604 (5th Cir. 2021) ...................................................................................................................... 18

City & Cnty. of San Fran. v. U.S. Citizenship & Immigr. Servs., 

408 F. Supp. 3d 1057 (N.D. Cal. 2019).................................................................................................... 11

Davis v. Mich. Dep’t of Treasury, 

489 U.S. 803 (1989)..................................................................................................................................... 16

Ecosystem Invest. Partners v. Crosby Dredging, LLC, 

729 F. App’x 287 (5th Cir. 2018).............................................................................................................. 12

Eli Lilly & Co. v. Cochran, 

526 F. Supp. 3d 393 (S.D. Ind. 2021).................................................................................................22, 23

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000)..................................................................................................................................... 17

Fuller v. Winter, 

538 F. Supp. 2d 179 (D.D.C. 2008)............................................................................................................ 5

Fund For Animals, Inc. v. Norton, 

322 F.3d 728 (D.C. Cir. 2003)................................................................................................................... 12

Gordon v. City of Houston, Tex., 

79 F. Supp. 3d 676 (S.D. Tex. 2015)........................................................................................................ 24

In re Deepwater Horizon, 

732 F.3d 326 (5th Cir. 2013)...................................................................................................................... 24

Kaepa, Inc. v. Achilles Corp., 

76 F.3d 624 (5th Cir. 1996)........................................................................................................................ 24

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992)..................................................................................................................................... 11

MCI Tel. Corp. v. AT&T, 

512 U.S. 218 (1994)..................................................................................................................................... 17

N. Mariana Islands v. United States, 

686 F. Supp. 2d 7 (D.D.C. 2009)........................................................................................................22, 23

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Nat’l Family Planning & Reprod. Health Ass’n v. Sullivan, 

979 F.2d 227 (D.C. Cir. 1992)................................................................................................................... 14

Nat’l Min. Ass’n v. McCarthy, 

758 F.3d 243 (D.C. Cir. 2014)................................................................................................................... 13

New Jersey v. HHS, 

670 F.2d 1262 (3d Cir. 1981)....................................................................................................................... 1

NFIB v. OSHA, 

142 S. Ct. 661 (2022).............................................................................................................................17, 20

Nken v. Holder, 

556 U.S. 418 (2009)..................................................................................................................................... 23

Pendergest-Holt v. Certain Underwriters at Lloyd’s of London, 

600 F.3d 562 (5th Cir. 2010)...................................................................................................................... 11

Richardson v. Joslin, 

501 F.3d 415 (5th Cir. 2007)........................................................................................................................ 5

Summers v. Earth Island Inst., 

555 U.S. 488 (2009)..................................................................................................................................... 11

Tex. Democratic Party v. Benkiser, 

459 F.3d 582 (5th Cir. 2006)...................................................................................................................... 12

Texas v. Biden, 

10 F.4th 538 (5th Cir. 2021) ...................................................................................................................... 24

Texas v. EEOC, 

933 F.3d 433 (5th Cir. 2019)................................................................................................................ passim

Texas v. EPA, 

829 F.3d 405 (5th Cir. 2016)...................................................................................................................... 11

Texas v. United States, 

787 F.3d 733 (5th Cir. 2015)...................................................................................................................... 13

Texas v. United States, 

809 F.3d 134 (5th Cir. 2015)......................................................................................................... 12, 13, 24

U.S. Navy SEALs 1-26 v. Biden, 

578 F. Supp. 3d 822 (N.D. Tex. 2022)..................................................................................................... 23

U.S. Steel Corp. v. EPA, 

595 F.2d 207 (5th Cir. 1979)........................................................................................................... 1, 12, 22

U.S. Telecom Ass’n v. FCC, 

400 F.3d 29 (D.C. Cir. 2005)..................................................................................................................... 14

Utility Air Reg. Grp. v. EPA, 

573 U.S. 302 (2014)...............................................................................................................................17, 18

W. Virginia v. EPA, 

142 S. Ct. 2587 (2022) .............................................................................................................17, 18, 19, 20

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W&T Offshore, Inc. v. Bernhardt, 

946 F.3d 227 (5th Cir. 2019)...................................................................................................................... 13

Wages & White Lion Invest. LLC v. FDA, 

16 F.4th 1130 (5th Cir. 2021) .................................................................................................................... 24

Weyerhaeuser Co. v. Costle, 

590 F.2d 1011 (D.C. Cir. 1978)................................................................................................................... 1

Whitman v. Am. Trucking Ass’ns., Inc., 

531 U.S. 457 (2001)..................................................................................................................................... 17

Statutes & Rules

5 U.S.C. §551..................................................................................................................................................... 13

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

5 U.S.C. §705..................................................................................................................................................... 11

5 U.S.C. §706..................................................................................................................................................... 13

20 U.S.C. §1078-11........................................................................................................................................... 20

20 U.S.C. §1070a ................................................................................................................................................ 3

20 U.S.C. §1071 .................................................................................................................................................. 3

20 U.S.C. §1087a ................................................................................................................................................ 3

20 U.S.C. §1087aa............................................................................................................................................... 3

20 U.S.C. §1087ee ............................................................................................................................................ 20

20 U.S.C. §1087j ............................................................................................................................................... 20

20 U.S.C. §1098a ........................................................................................................................................14, 15

20 U.S.C. §1098aa.........................................................................................................................................9, 16

20 U.S.C. §1098bb...................................................................................................................................... passim

20 U.S.C. §1098ee ............................................................................................................................... 16, 21, 22

31 U.S.C. §3711 .................................................................................................................................................. 4

31 C.F.R. §901.1 ................................................................................................................................................. 4

31 C.F.R. §902.2 ...........................................................................................................................................4, 14

34 C.F.R. §30.70 ...........................................................................................................................................5, 14

81 Fed. Reg. 75,926 (Nov. 1, 2016)...........................................................................................................5, 14

H.R. 6800, 116th Cong. §150117(h) (2020) ................................................................................................. 18

Pub. L. 107-122, 115 Stat. 2386 (Jan. 15, 2002)........................................................................................... 15

Pub. L. 108-76, 117 Stat. 904 (Aug. 18, 2003)............................................................................................. 15

Pub. L. 116-136, 134 Stat. 281 (Mar. 2020).................................................................................................. 20

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Other Authorities

147 Cong. Rec. H7155 (Oct. 23, 2001)......................................................................................................... 18

147 Cong. Rec. S13311 (Dec. 14, 2001) ....................................................................................................... 18

149 Cong. Rec. H2522 (Apr. 1, 2003).............................................................................................. 16, 19, 20

A. Nova, Pelosi Says Biden Doesn’t Have Power to Cancel Student Debt, 

CNBC (July 28. 2021), https://cnb.cx/3S85wzp .................................................................................... 7

A. Restuccia, As Biden Zeroes In on Student-Loan Forgiveness Decision, Voter Anxiety Grows, 

Wall St. J. (May 23, 2022), https://on.wsj.com/3S46zAl...................................................................6, 7

A. Restuccia, Biden Decision on Student-Loan Forgiveness Unlikely Until Later in Summer, 

Officials Say, Wall St. J. (June 6, 2022), https://on.wsj.com/3qZN53V........................................5, 6, 7

B. Sullivan, How Biden’s Declaring the Pandemic ‘Over’ Complicates Efforts to Fight COVID, 

NPR (Sept. 20, 2022), https://n.pr/3Sjuw70......................................................................................... 21

Costs of Suspending Student Loan Payments and Canceling Debt, 

Cong. Budget Off. (Sept. 26, 2022), https://bit.ly/3SpZk6g ................................................................ 9

COVID-19 Loan Payment Pause and 0% Interest, 

Fed. Student Aid, U.S. Dep’t of Educ., https://bit.ly/3UNYMsi ...................................................... 21

D. Douglas-Gabriel, Student Loan Borrowers Anxious as Decision Lingers on Debt Cancellation, 

Wash. Post (June 10, 2022), https://wapo.st/3NUdlXg........................................................................ 6

Daniel Mangrum, et al., Liberty Street Economics: Three Key Facts from the Center for 

Microeconomic Data’s 2022 Student Loan Update, 

Fed. Rsrv. Bank of N.Y. (Aug. 9, 2022), https://nyfed.org/3dYCGCT........................................... 22

Fact Sheet: President Biden Announces Student Loan Relief for Borrowers Who Need It Most, 

The White House (Aug. 24, 2022), https://bit.ly/3dATj7p .................................................................. 8

Federal Pell Grant Program, 

U.S. Dep’t of Educ., https://bit.ly/3DKV6BG ...................................................................................... 3

Federal Pell Grants, 

U.S. Dep’t of Educ., https://bit.ly/3BCraVq .......................................................................................... 3

Federal Student Loan Portfolio, 

U.S. Dep’t of Educ., https://bit.ly/3qYd5Nm....................................................................................3, 4

G. Rubin, Mass Student Debt Cancellation Legally Risky Says Top Obama Education Lawyer, 

Wall St. J. (May 4, 2022), https://on.wsj.com/3DO0tjx........................................................................ 7

Jed Shugerman, Biden’s Student-Debt Rescue Plan Is a Legal Mess, 

The Atlantic (Sept. 4, 2022), https://bit.ly/3qVEK18 ........................................................................... 9

L. Egan, Biden to Review Executive Authority to Cancel Student Debt, 

NBC News (Apr. 1, 2021), https://nbcnews.to/3dD85dV................................................................... 7

M. Shear, Biden Gave In to Pressure on Student Debt Relief After Months of Doubt, 

N.Y. Times (Aug. 26, 2022), https://nyti.ms/3foJ2vy ......................................................................... 18

M. Stratford, Harder Than It Sounds: Income-Targeted Student Loan Forgiveness Invites 

a ‘Train Wreck,’ Politico (May 13, 2022), https://politi.co/3LEtXC1 .................................................. 6

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Memo. to Betsy DeVos Re: Student Loan Principal Balance Cancellation, Compromise, Discharge, 

and Forgiveness Authority, 

U.S. Dep’t of Educ. Off. of the Gen. Counsel, (Jan. 12, 2021), https://bit.ly/3LBA36n ................ 7

N. Bose, Biden Administration Changes Student Loan Guidance, as Republican-Led States 

File Lawsuit, Reuters (Sept. 29, 2022), https://reut.rs/3rhEPwD ......................................................... 9

One-Time Student Loan Debt Relief, 

U.S. Dep’t of Educ. (Sept. 8, 2022), https://bit.ly/3ygbuGz ............................................... 2, 8, 10, 23

One-Time Student Loan Debt Relief, 

U.S. Dep’t of Educ. (Oct. 1, 2022), https://bit.ly/3fBmyrm ................................................................ 8

S. Horsley, The Unemployment Rate Fell to 3.5%, Matching its Lowest Level in the 

Last 50 Years, NPR (Aug. 5, 2022), https://n.pr/3RhZQla................................................................. 22

T. Pager, Latest White House Plan Would Forgive $10,000 in Student Debt Per Borrower, 

Wash. Post (May 27, 2022), https://wapo.st/39lXnpW ....................................................................5, 6

The Biden Student Loan Forgiveness Plan: Budgetary Costs and Distributional Impact, 

Penn Wharton, Univ. of Pa. (Aug. 26, 2022), https://bit.ly/3UAxpBI............................................... 9

The Negotiated Rulemaking Process for Title IV Regulations—Frequently Asked Questions, 

U.S. Dep’t of Educ., https://bit.ly/3SCFqFf...................................................................................14, 15

The Secretary’s Legal Authority for Debt Cancellation, 

U.S. Dep’t of Educ. (Aug. 23, 2022), https://bit.ly/3fcXeYJ ............................................................... 9

Types of Aid, 

U.S. Dep’t of Educ., https://bit.ly/3S51Heu.....................................................................................3, 18

Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans, 

Off. of Legal Counsel, 2022 WL 3975075 (Aug. 23, 2022).................................................................. 15

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INTRODUCTION

The Administrative Procedure Act’s notice-and-comment procedures exist for good reason: 

“to ensure that unelected administrators, who are not directly accountable to the populace, are forced 

to justify their quasi-legislative rulemaking before an informed and skeptical public.” New Jersey v. HHS, 

670 F.2d 1262, 1281 (3d Cir. 1981). By requiring notice and comment, the APA “ensure[s] that 

affected parties have an opportunity to participate in and influence agency decision making at an early 

stage, when the agency is more likely to give real consideration to alternative ideas.” U.S. Steel Corp. v. 

EPA, 595 F.2d 207, 214 (5th Cir. 1979). Simply put, the APA’s notice-and-comment requirements 

promote “openness, explanation, and participatory democracy” and are a critical check on “the 

dangers of arbitrariness and irrationality in the formulation of rules.” Weyerhaeuser Co. v. Costle, 590 

F.2d 1011, 1027-28 (D.C. Cir. 1978).

Defendants (“the Department”) have flagrantly violated the APA’s notice-and-comment 

requirements. Behind closed doors, the Department promulgated a new Debt Forgiveness Program 

that will affect tens of millions of Americans and cost more than 400 billion dollars. Instead of 

providing notice and seeking comment from the public, the Department hammered out the critical 

details of the Program in secret and with an eye toward securing debt forgiveness in time for the 

November election. Along the way, the Department made numerous arbitrary decisions about the 

Program, including which individuals will receive debt forgiveness, how much of their debt will be 

forgiven, and which types of debt will qualify for the Program.

The result of this arbitrariness is predictable: some will benefit handsomely, some will be 

shortchanged, and others will be left out entirely. Plaintiffs are just a few of the millions of Americans 

who are being harmed by the Department’s arbitrary decisionmaking. Plaintiff Myra Brown does not 

qualify for debt forgiveness because the Program does not cover commercially held federal loans that 

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are not in default, and Plaintiff Alexander Taylor does not qualify for the full amount of debt 

forgiveness because he did not receive a Pell Grant when he was in college. 

By adopting the Program without providing notice and comment, the Department deprived 

Plaintiffs of their “‘procedural right to protect [their] concrete interests.’” Texas v. EEOC, 933 F.3d 

433, 447 (5th Cir. 2019) (cleaned up); see id. (“A violation of the APA’s notice-and-comment 

requirements is one example of a deprivation of a procedural right.”). If the Department is going to 

provide debt forgiveness, Plaintiffs believe that their student loan debt should be forgiven too. Ms. 

Brown believes it is irrational, arbitrary, and unfair to exclude her from the program because her 

federal student loans are commercially held and not in default. Mr. Taylor believes that it is irrational, 

arbitrary, and unfair to calculate the amount of debt forgiveness he receives based on the financial 

circumstances of his parents many years ago. Plaintiffs want an opportunity to present their views to 

the Department and to provide additional comments on any proposal from the Department to forgive 

student loan debts.

Without a preliminary injunction from this Court, Plaintiffs will be forever denied their 

procedural rights to protect their concrete interests. The Department will almost certainly complete 

(or substantially complete) the Program before the Court can rule on the merits. And the Department 

has repeatedly stressed that it will provide debt forgiveness only “one time.” One-Time Student Loan 

Debt Relief, U.S. Dep’t of Educ. (Sept. 8, 2022), https://bit.ly/3ygbuGz (Exhibit A) [App. 10]. Without 

relief, Plaintiffs will “never have an equivalent opportunity to influence the [Program’s] contents.” 

Ass’n of Cmty. Cancer Ctrs. v. Azar, 509 F. Supp. 3d 482, 501 (D. Md. 2020). Moreover, the Program 

affects nearly every American, including those with student loans and the general public that must 

ultimately pay for the Program. They all have a strong interest in providing their views to the 

government. By contrast, no public interest is served by allowing unlawful agency action to occur. 

The Court should grant Plaintiffs’ motion for a preliminary injunction. 

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BACKGROUND

I. The Department of Education’s Grant and Loan Programs

The Department of Education offers two primary types of financial aid to help students pay 

for their higher education: grants and loans. See Types of Aid, U.S. Dep’t of Educ., 

https://bit.ly/3S51Heu. Federal grants are “[f]inancial aid that generally [don’t] have to be repaid.” Id.

For example, the Department provides Pell Grants to undergraduate students if their parents’ income 

is below a certain threshold when they applied for the grant. Federal Pell Grant Program, U.S. Dep’t of 

Educ., https://bit.ly/3DKV6BG; 20 U.S.C. §1070a, et seq. The maximum Pell Grant award for the 

2022-2023 year is $6,895. Federal Pell Grants, U.S. Dep’t of Educ., https://bit.ly/3BCraVq.

Federal loans, by contrast, are “[b]orrowed money for college or career school [that] must be 

repaid with interest.” Types of Aid, supra. The Department currently administers three student loan 

programs. Under the William D. Ford Federal Direct Loan Program, the federal government makes 

loans directly to borrowers, who are then responsible for repaying the government. See 20 U.S.C. 

§1087a, et seq. Direct Loans account for about $1.4 trillion of outstanding student debt. See Federal 

Student Loan Portfolio, U.S. Dep’t of Educ., https://bit.ly/3qYd5Nm. Under the Federal Family 

Education Loan Program (“FFELP”), the federal government paid lenders to make student loans, and 

the federal government guaranteed their repayment. 20 U.S.C. §1071, et seq. The authority to issue 

loans under this program expired in 2010. Id. §1071(d). FFELP loans currently account for about 

$213.7 billion of outstanding student debt nationwide. See Federal Student Loan Portfolio, supra. Under 

the Perkins Loan Program, colleges and universities made loans to financially needy students, and the 

federal government guaranteed their repayment. 20 U.S.C. §1087aa, et seq. The authority to issue loans 

under the Perkins program expired in 2017. Id. §1087aa(b). Perkins Loans currently account for about 

$4 billion of outstanding student debt. See Federal Student Loan Portfolio, supra.

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About 43 million individuals have debts arising under these three programs. See Federal Student 

Loan Portfolio, supra. These individuals collectively have more than $1.61 trillion in outstanding debts. 

Id.

II. The Department’s Limited Authority to Compromise Student Loan Debt

Because federal agencies are a “creature of statute,” the Department of Education has “only

those authorities conferred upon it by Congress.” Atl. City Elec. Co. v. FERC, 295 F.3d 1, 8 (D.C. Cir. 

2002) (cleaned up). The Department thus cannot forgive student loan debt unless Congress has 

authorized it to do so. The primary statute governing when agencies may forgive debts is the Federal 

Claims Collection Act of 1966, which provides that agencies “shall try to collect a claim of the United 

States Government for money or property arising out of the activities of, or referred to, the agency.” 

31 U.S.C. §3711(a)(1). The Federal Claims Collection Standards (“FCCS”), which implement the 

Federal Claims Collection Act, require that “[f]ederal agencies shall aggressively collect all debts arising 

out of activities of . . . that agency.” 31 C.F.R. §901.1.

Under the FCCS, agencies are permitted to “compromise a debt” only in four circumstances: 

(1) where “the debtor is unable to pay the full amount in a reasonable time, as verified through credit 

reports or other financial information”; (2) the agency is “unable to collect the debt in full within a 

reasonable time by enforced collection proceedings”; (3) “the cost of collecting the debt does not 

justify the enforced collection of the full amount”; or (4) “[t]here is significant doubt concerning the 

Government’s ability to prove its case in court.” 31 C.F.R. §902.2(a); see also id. §902.2(b) (requiring 

agencies to consider individualized factors, including “[a]ge and health,” “[p]resent and potential 

income,” and “[i]nheritance prospects,” when determining a debtor’s inability to pay). 

The Department of Education’s regulations expressly incorporate the FCCS. Under the 

Department’s regulations, the Department “uses the standards in the FCCS, 31 CFR part 902, to 

determine whether compromise of a debt is appropriate if the debt arises under a program 

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administered by the Department.” 34 C.F.R. §30.70(a)(1); see also id. §30.70(e)(1) (“[U]nder the 

provisions of 31 CFR part 902 or 903, the Secretary may compromise a debt in any amount, or suspend

or terminate collection of a debt in any amount, if the debt arises under the Federal Family Education 

Loan Program . . . , the William D. Ford Federal Direct Loan program . . . , or the Perkins Loan 

Program.”); see also 81 Fed. Reg. 75,926, 76,070 (Nov. 1, 2016) (adopting these regulations after notice 

and comment). “It is a fundamental principle of administrative law that an agency is bound to adhere 

to its own regulations.” Fuller v. Winter, 538 F. Supp. 2d 179, 186 (D.D.C. 2008); see Richardson v. Joslin, 

501 F.3d 415, 418 (5th Cir. 2007) (an agency “must abide by its own regulations”).

III. The Debt Forgiveness Program

In the summer of 2022, reports emerged that the White House was considering taking 

executive action to forgive student loan debt for tens of millions of individuals. See T. Pager, Latest 

White House Plan Would Forgive $10,000 in Student Debt Per Borrower, Wash. Post (May 27, 2022), 

https://wapo.st/39lXnpW. Behind closed doors, White House officials were debating the various 

issues that would arise from such a program. Id. None of these discussions were open to the public. 

According to reports, White House officials “dr[ew] up a range of proposals” and were “waiting on 

the president to make a final decision.” See A. Restuccia, Biden Decision on Student-Loan Forgiveness 

Unlikely Until Later in Summer, Officials Say, Wall St. J. (June 6, 2022), https://on.wsj.com/3qZN53V.

A primary point of debate was the size of the debt forgiveness to each individual. Although 

Senator Elizabeth Warren and others were pushing for forgiving up to $50,000 in student debt per 

borrower, the President was “more comfortable with debt cancellation in the $10,000-per-borrower 

range.” A. Restuccia, As Biden Zeroes In on Student-Loan Forgiveness Decision, Voter Anxiety Grows, Wall St. 

J. (May 23, 2022), https://on.wsj.com/3S46zAl. As of late May, White House officials were “planning

to cancel $10,000 in student debt per borrower.” Pager, supra.

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The White House also was debating whether high-income individuals should be excluded from 

the debt forgiveness program. As of late May, the plan was to limit debt forgiveness to Americans 

“who earned less than $150,000 in the previous year, or less than $300,000 for married couples filing 

jointly.” Id. These income limits were “aimed at fending off criticism that across-the-board loan 

forgiveness would benefit some Americans with higher incomes who don’t need the help.”

M. Stratford, Harder Than It Sounds: Income-Targeted Student Loan Forgiveness Invites a ‘Train Wreck,’ Politico 

(May 13, 2022), https://politi.co/3LEtXC1. These “income caps [were] in flux,” however, because 

“some Democratic lawmakers [were] implor[ing] the White House to abandon means-testing.” 

D. Douglas-Gabriel, Student Loan Borrowers Anxious as Decision Lingers on Debt Cancellation, Wash. Post 

(June 10, 2022), https://wapo.st/3NUdlXg. White House officials were also debating alternatives to 

income thresholds, such as limiting debt forgiveness to “undergraduates or people who attend public 

universities.” Restuccia, Biden Decision on Student-Loan Forgiveness, supra.

Another factor “complicating the decision” was the best way “to implement [this] large new 

government program.” Id. Department officials “privately raised concerns about the complexity of 

adding an income test to student loan forgiveness” and “warn[ed] the White House that the agency 

lacks the data to automatically cancel loans based on a borrower’s earnings.” Stratford, supra. The 

Department thus believed that it would likely “need to set up some sort of application process to 

determine whether borrowers qualify for relief.” Id.

White House officials were also concerned “about the possible effects the move could have 

on record inflation” and were “cautious about doing anything that could be perceived as contributing 

to high prices.” Restuccia, Biden Decision on Student-Loan Forgiveness, supra. While some in the 

Administration dismissed these concerns, others warned that “student debt cancellation would 

exacerbate price pressures.” Id. Debt cancellation would also “encourage colleges and universities to 

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continue to raise tuition prices with the expectation that the costs would ultimately not be borne by 

their students.” Id.

Whether the President had the legal authority for such a program was also being debated. The 

Justice Department and the Department of Education were “weighing whether Mr. Biden has the 

legal authority to unilaterally wipe away loans through executive action.” Restuccia, As Biden Zeroes In, 

supra. The Department of Education under President Trump had determined that it lacked such 

authority, see Memo. to Betsy DeVos Re: Student Loan Principal Balance Cancellation, Compromise, Discharge, 

and Forgiveness Authority, U.S. Dep’t of Educ. Off. of the Gen. Counsel, (Jan. 12, 2021),

https://bit.ly/3LBA36n, and key Democrats agreed, including Speaker of the House Nancy Pelosi, 

see A. Nova, Pelosi Says Biden Doesn’t Have Power to Cancel Student Debt, CNBC (July 28. 2021), 

https://cnb.cx/3S85wzp; see also G. Rubin, Mass Student Debt Cancellation Legally Risky Says Top Obama 

Education Lawyer, Wall St. J. (May 4, 2022), https://on.wsj.com/3DO0tjx. President Biden nevertheless 

instructed the Department to prepare a memorandum exploring possible legal avenues to justify the 

Program. See L. Egan, Biden to Review Executive Authority to Cancel Student Debt, NBC News (Apr. 1, 

2021), https://nbcnews.to/3dD85dV. 

Finally, the White House was “weighing the political boost that could come from forgiving 

loans among young people and others against the backlash from voters who didn’t go to college, don’t 

have loans, or already paid them off.” Restuccia, Biden Decision on Student-Loan Forgiveness, supra. An 

overriding goal was to get the program done fast—so that debt forgiveness would occur in time for 

the November election. Restuccia, As Biden Zeroes In, supra. White House officials indicated that the 

President would announce his decision in July or August of 2022. Restuccia, Biden Decision on StudentLoan Forgiveness, supra. 

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At no point did the Department of Education provide notice of its plans or seek public 

comment on the program. Instead, the countless legal, policy, economic, and other issues implicated 

by such a program were all debated and determined in secret. 

On August 24, the White House announced that the President would “fulfill[] [his] campaign 

commitment” by providing debt forgiveness to millions of borrowers. 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. Under the Program, individuals would receive different levels of debt 

forgiveness based on whether they had received a Pell Grant in college. Those who received a Pell 

Grant could get up to $20,000 in debt forgiveness while those who did not could get only $10,000 in 

debt forgiveness. Exhibit A, One-Time Student Loan Debt Relief, supra [App. 10]. The Department also 

announced that those individuals who exceeded an income threshold would be ineligible for the 

program. Under the Program, individuals with student loans would be ineligible if they earned more 

than $125,000 (or $250,000 if married filing jointly) in 2020 and 2021. Id. [App. 10]. 

The Department further stated that “most federal student loans” would qualify for debt 

forgiveness, including Direct Loans, FFELP loans held by the Department or in default, and Perkins 

Loans held by the Department. Id. [App. 13-14]. But individuals with FFELP loans that are 

commercially held would “not [be] eligible for debt relief.” Id. [App. 15]. The Department asserted 

that it was currently “assessing whether to expand eligibility to borrowers with privately owned federal 

student loans, including FFEL and Perkins Loans.” Id. [App. 15].

The Department also released a five-page legal memorandum asserting that the Higher 

Education Relief Opportunities for Students (“HEROES”) Act of 2003 gave it the legal authority to 

enact the Debt Forgiveness Program. See The Secretary’s Legal Authority for Debt Cancellation, U.S. Dep’t 

of Educ. (Aug. 23, 2022), https://bit.ly/3fcXeYJ. The HEROES Act was enacted following the 

September 11 attacks and again shortly after the start of the Iraq War, and was designed primarily to 

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ensure that the “[h]undreds of thousands of Army, Air Force, Marine Corps, Navy, and Coast Guard 

reservists and members of the National Guard [who] ha[d] been called to active duty or active service” 

would not be “placed in a worse position financially in relation to that financial assistance” because of 

their military service. See 20 U.S.C. §§1098aa(b)(4), 1098bb(a)(2)(A). The Department’s legal 

justification for the Program was widely criticized following the White House’s announcement, even 

by those supporting debt cancelation. See, e.g., Jed Shugerman, Biden’s Student-Debt Rescue Plan Is a Legal 

Mess, The Atlantic (Sept. 4, 2022), https://bit.ly/3qVEK18. 

For most of September, the Department told the public that “borrowers with privately held 

federal student loans, such as through the FFEL, Perkins, and HEAL programs, can receive this relief 

by consolidating these loans into the Direct Loan Program.” Exhibit A, One-Time Student Loan Debt 

Relief, supra [App. 15]. But in late September, the Department switched course, instructing that “[a]s 

of Sept. 29, 2022, borrowers with federal student loans not held by ED cannot obtain one-time debt 

relief by consolidating those loans into Direct Loans.” One-Time Student Loan Debt Relief, U.S. Dep’t of 

Educ. (Oct. 1, 2022), https://bit.ly/3fBmyrm (Exhibit B) [App. 28]; see also N. Bose, Biden 

Administration Changes Student Loan Guidance, as Republican-Led States File Lawsuit, Reuters (Sept. 29, 

2022), https://reut.rs/3rhEPwD.

On September 27, the Secretary of Education sent a memorandum to the Assistant Secretary 

for Postsecondary Education in which he officially “issu[ed] waivers and modifications” to certain 

statutes and regulations in order to effectuate the Debt Forgiveness Program. Waivers Relating to 

Pandemic-Connected General Loan Discharge, Secretary of Educ. (Sept. 27, 2022) [App. 62].

1 Citing the 

HEROES Act, the Secretary directed the Department to “take all necessary actions to implement 

1 The Secretary’s memorandum was not made public until the evening of October 7, when the 

Department submitted it in response to a lawsuit brought by Nebraska and five other states. See 

Nebraska v. Biden, No. 22-cv-1040, Doc. 27-1 (E.D. Mo. 2022) [App. 62].

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these waivers and modifications and to provide notice of these waivers and modifications in the 

Federal Register.” Id.

The Secretary’s memorandum made no mention of the Debt Forgiveness Program’s costs. 

But the nonpartisan Congressional Budget Office has estimated that the Program will cost over $400 

billion. Costs of Suspending Student Loan Payments and Canceling Debt, Cong. Budget Off. (Sept. 26, 2022), 

https://bit.ly/3SpZk6g. Other economists put that number even higher at $469 billion to $519 billion. 

The Biden Student Loan Forgiveness Plan: Budgetary Costs and Distributional Impact, Penn Wharton, Univ. of 

Pa. (Aug. 26, 2022), https://bit.ly/3UAxpBI.

On October 7, in response to a federal lawsuit, the Department told a federal district court in 

Missouri that “[o]ver the next several weeks, the Department will be taking steps to implement the 

debt relief plan.” App. 39. The Department represented that it “will not discharge any student loan 

debt under the debt relief plan prior to October 23, 2022.” Id.

IV. Plaintiffs and Others Excluded from the Debt Forgiveness Program

Plaintiff Myra Brown is one of the millions of Americans who is ineligible for the Debt 

Forgiveness Program because her student loan debt is commercially held and not in default. Brown 

Decl. ¶¶5-6 [App. 1-2]. If the Department is going to provide debt forgiveness, Ms. Brown believes 

that her student loan debt should be forgiven too. Id. ¶7 [App. 2]. She believes it is irrational, arbitrary, 

and unfair to exclude her from the Program because her student loan debt is commercially held and 

not in default. Id. ¶8 [App. 2]. Ms. Brown wants an opportunity to present her views to the Department 

and provide additional comments on any proposal from the Department to forgive student loan debts. 

Id. ¶9 [App. 2].

Plaintiff Alexander Taylor is one of the millions of Americans who is ineligible for $20,000 in 

debt forgiveness because he did not receive a Pell Grant in college. Taylor Decl. ¶¶3-5 [App. 4]. If the

Department is going to provide debt forgiveness, Mr. Taylor believes that his student loan debt should 

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be forgiven too. Id. ¶6 [App. 5]. Mr. Taylor believes he should not be penalized because he did not 

receive a Pell Grant in college. Id. [App. 5]. Mr. Taylor makes less than $25,000 a year, but he is 

ineligible for the full $20,000 in debt forgiveness. Id. ¶7 [App. 5]. Yet others making more than five

times as much (up to $125,000 a year) will receive $20,000 in debt forgiveness if they got a Pell Grant 

in college. Mr. Taylor believes that it is irrational, arbitrary, and unfair to calculate the amount of debt 

forgiveness he receives based on the financial circumstances of his parents many years ago. Id. ¶9

[App. 5]. Mr. Taylor wants an opportunity to present his views to the Department and provide 

additional comments on any proposal from the Department to forgive student loan debts. Id. ¶10

[App. 5].

ARGUMENT

Plaintiffs are entitled to a preliminary injunction if they are “likely to succeed on the merits,” 

they are “likely to suffer irreparable harm in the absence of preliminary relief,” the “balance of equities 

tips in [their] favor,” and an injunction “is in the public interest.” Pendergest-Holt v. Certain Underwriters 

at Lloyd’s of London, 600 F.3d 562, 568-69 (5th Cir. 2010). In addition, under the Administrative 

Procedure Act, “to the extent necessary to prevent irreparable injury,” the Court “may issue all 

necessary and appropriate process to postpone the effective date of an agency action or to preserve 

status or rights pending conclusion of the review proceedings.” 5 U.S.C. §705. The factors governing 

issuance of a preliminary injunction also govern issuance of relief under Section 705. See Texas v. EPA, 

829 F.3d 405, 424, 435 (5th Cir. 2016); City & Cnty. of San Fran. v. U.S. Citizenship & Immigr. Servs., 408 

F. Supp. 3d 1057, 1078 (N.D. Cal. 2019). Plaintiffs meet those requirements here. 

I. Plaintiffs are likely to prevail on the merits.

A. Plaintiffs have standing.

A plaintiff has standing if he suffered an “injury in fact” that is “fairly traceable to the 

challenged action of the defendant” and can be “redressed by a favorable decision.” Lujan v. Defenders 

of Wildlife, 504 U.S. 555, 560-61 (1992) (cleaned up). In the APA context, a plaintiff can “show a 

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cognizable injury if [he] has been deprived of ‘a procedural right to protect [his] concrete interests.’” 

EEOC, 933 F.3d at 447 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)). “A violation 

of the APA’s notice-and-comment requirements is one example of a deprivation of a procedural 

right.” Id. The redressability requirement, in turn, “is lighter when the plaintiff asserts deprivation of 

a procedural right.” Id. “‘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.’” Id. (quoting Texas v. United States, 809 F.3d 134, 150-

51 (5th Cir. 2015)). Moreover, where, as here, the plaintiffs are “an object of the action,” there is 

“ordinarily little question that the action or inaction has caused [them] injury, and that a judgment 

preventing or requiring the action will redress it.” Id. at 446 (cleaned up). In these situations, a 

plaintiff’s “standing to seek review of [the] administrative action is self-evident.” Fund For Animals, Inc. 

v. Norton, 322 F.3d 728, 733 (D.C. Cir. 2003) (cleaned up).

Here, Plaintiffs both have student loan debt and the Department is pursuing a program of 

debt forgiveness. Under the APA, Plaintiffs should have had “an opportunity to participate in and 

influence [the Department’s] decision making at an early stage, when the agency [was] more likely to 

give real consideration to alternative ideas.” U.S. Steel Corp., 595 F.2d at 214. But the Department 

adopted the Program without providing notice and the opportunity to comment. In doing so, the 

Department deprived Plaintiffs of their “procedural right to protect [their] concrete interests.” EEOC, 

933 F.3d at 447 (cleaned up). Plaintiffs want the “opportunity to pursue [the] benefit” of debt 

forgiveness. Ecosystem Invest. Partners v. Crosby Dredging, LLC, 729 F. App’x 287, 292-93 (5th Cir. 2018).

If the Department is going to pursue debt forgiveness, Plaintiffs believe that their student loan debt 

should be forgiven too. Brown Decl. ¶7 [App. 2]; Taylor Decl. ¶6 [App. 5]. But under the Program, 

Ms. Brown will receive no debt forgiveness at all because her loans are commercially held and not in 

default. Brown Decl. ¶¶5-6 [App. 1-2]. And Mr. Taylor will not receive the full $20,000 in debt 

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forgiveness because he did not receive a Pell Grant in college. Taylor Decl. ¶¶3-5 [App. 4]. These

economic injuries are “‘a quintessential injury upon which to base standing.’” Ecosystem Invest. Partners, 

729 F. App’x at 292 (quoting Tex. Democratic Party v. Benkiser, 459 F.3d 582, 586 (5th Cir. 2006)).

In addition, Plaintiffs’ injuries were caused by the Defendants because their “lost chance” to 

receive debt forgiveness flows directly from the Program’s eligibility requirements. Id. at 293. And 

Plaintiffs satisfy the “lighter” redressability requirements because if the Program is vacated and set 

aside and the Department must go through the proper rulemaking procedures, there is unquestionably

“some possibility” that the Department could reconsider its decision. EEOC, 933 F.3d at 447; see, e.g.,

Texas v. United States, 787 F.3d 733, 753-54 (5th Cir. 2015) (finding standing because “[e]njoining the 

implementation of DAPA until it undergoes notice and comment could prompt DHS to reconsider 

its decision, which is all a litigant must show when asserting a procedural right”). Indeed, the critical 

details of the Program—such as which individuals will receive debt forgiveness, the amount of debt 

to be forgiven, and the types of debt that qualify—were all debated internally for months. Supra 5-7. 

Plaintiffs have standing.

B. The Department violated the APA by adopting the Program without following 

the proper rulemaking procedures.

The APA requires agencies to subject their substantive rules to notice and comment. See

5 U.S.C. §553. A “rule” is “an agency statement of general or particular applicability and future effect 

designed to implement, interpret, or prescribe law or policy.” Id. §551(4). Legislative rules typically 

“grant rights, impose obligations, or produce other significant effects on private interests.” W&T 

Offshore, Inc. v. Bernhardt, 946 F.3d 227, 237 (5th Cir. 2019). The APA requires courts to “hold unlawful 

and set aside agency action[s]” that are adopted “without observance of procedure required by law.” 

5 U.S.C. §706(2); e.g., Texas, 809 F.3d at 146 (affirming preliminary injunction of DHS’s DAPA 

program for failing to go through the notice-and-comment process).

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The Debt Forgiveness Program is a legislative rule. It creates a new program designed to 

implement a policy of eliminating or reducing debt obligations for certain individuals. 5 U.S.C. §551(4). 

It “grant[s] rights” by promising to eliminate individuals’ debt if they meet certain requirements, and

it “impose[s] obligations” on the Department to forgive debt for those who meet the requirements.

W&T Offshore, Inc., 946 F.3d at 237; see also Nat’l Min. Ass’n v. McCarthy, 758 F.3d 243, 251-52 (D.C. 

Cir. 2014) (“An agency action that sets forth legally binding requirements for a private party to obtain 

a permit or license is a legislative rule.”). The Program also produces “significant effects on private 

interests.” W&T Offshore, Inc., 946 F.3d at 237. Indeed, the Program “touches the lives of [tens of 

millions of] Americans” with student loan debt. Azar v. Allina Health Servs., 139 S. Ct. 1804, 1808 

(2019).

The Program also effectively amends or repeals the Department’s existing regulations. “[I]f an 

agency adopts a new position inconsistent with an existing regulation, or effects a substantive change 

in the regulation, notice and comment are required.” U.S. Telecom Ass’n v. FCC, 400 F.3d 29, 35 (D.C. 

Cir. 2005) (cleaned up). Under the Department’s regulations, the agency can compromise student loan 

debt only (1) where “the debtor is unable to pay the full amount in a reasonable time, as verified 

through credit reports or other financial information”; (2) the Department is “unable to collect the 

debt in full within a reasonable time by enforced collection proceedings”; (3) “the cost of collecting 

the debt does not justify the enforced collection of the full amount”; or (4) “[t]here is significant doubt 

concerning the Government’s ability to prove its case in court.” 31 C.F.R. §902.2(a)-(b); 34 C.F.R. 

§30.70(a)(1), (e)(1); see also 81 Fed. Reg. at 75,928, 76,070 (adopting regulations after notice and an 

opportunity for public comment). None of those circumstances apply here. Because the Debt 

Forgiveness Program is irreconcilable with the Department’s own regulations, the Department could 

not adopt the Program without conducting notice-and-comment rulemaking. See, e.g., Nat’l Family 

Planning & Reprod. Health Ass’n v. Sullivan, 979 F.2d 227, 240 (D.C. Cir. 1992).

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In addition, for any “regulations pertaining to [Title IV of the Higher Education Act of 1965],” 

the Department is also required to use “negotiated rulemaking” to develop the rule. 20 U.S.C. 

§1098a(b)(2); see The Negotiated Rulemaking Process for Title IV Regulations—Frequently Asked Questions, U.S. 

Dep’t of Educ., https://bit.ly/3SCFqFf (“The Department is specifically required by law to use 

negotiated rulemaking to develop NPRMs [notices of proposed rulemaking] for programs authorized 

under Title IV of the Higher Education Act of 1965[.]”). In negotiated rulemaking, before proposing 

its rule, the Department “obtain[s] the advice of and recommendations from individuals and 

representatives of the groups involved in student financial assistance programs under [Title IV], such 

as students, legal assistance organizations that represent students, institutions of higher education, 

State student grant agencies, guaranty agencies, lenders, secondary markets, loan servicers, guaranty 

agency servicers, and collection agencies.” 20 U.S.C. §1098a(a)(1). The Department’s proposed 

regulations must then “conform to agreements resulting from such negotiated rulemaking unless the 

Secretary reopens the negotiated rulemaking process or provides a written explanation to the 

participants in that process why the Secretary has decided to depart from such agreements.” Id.

§1098a(b)(2); see also The Negotiated Rulemaking Process for Title IV Regulations—Frequently Asked Questions, 

supra (“If consensus is achieved, the Department uses that regulatory language in its NPRM. . . . When 

the NPRM is published in the Federal Register, it contains a request for public comments and a 

deadline for submitting those comments.”). Thus, to the extent the Debt Forgiveness Program 

“pertain[s]” to Title IV, the Department was also required to adopt its proposed rule through 

negotiated rulemaking. 20 U.S.C. §1098a(b)(2); see Use of the HEROES Act of 2003 to Cancel the Principal 

Amounts of Student Loans, Off. of Legal Counsel, 2022 WL 3975075, at *2 (Aug. 23, 2022) (“The 

statutory provisions governing each student loan program are set forth in title IV of the Higher 

Education Act of 1965.”).

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The Department appears to believe that it has authority under the HEROES Act to 

promulgate the Debt Forgiveness Program and so the agency can “disregard notice-and-comment 

requirements.” Id. at *3 (citing 20 U.S.C. §1098bb(b)(1)-(2)). That is wrong. The HEROES Act does 

not authorize the Debt Forgiveness Program and thus does not excuse the Department from 

complying with the APA’s requirements.

The HEROES Act was a wartime measure passed in the wake of the September 11 attacks 

and again shortly after the start of the Iraq War. See Pub. L. 107-122, 115 Stat. 2386 (Jan. 15, 2002); 

Pub. L. 108-76, 117 Stat. 904 (Aug. 18, 2003). Congress recognized that “[h]undreds of thousands of 

Army, Air Force, Marine Corps, Navy, and Coast Guard reservists and members of the National 

Guard [had] been called to active duty or active service.” 20 U.S.C. §1098aa(b)(4). Through the 

HEROES Act, Congress sought to “provide[] to the Reservists who are leaving from their jobs to go 

overseas right now relief from making student loan payments for a period of time while they are away.”

149 Cong. Rec. H2522 (Apr. 1, 2003) (Rep. Garrett); id. at H2524 (Rep. Ryan) (the Act gives the 

Secretary “the opportunity to forbear a loan as our servicemen and servicewomen are activated” so 

that they will not have “to pay on their student loans for the time that they are active.”).

The Act accomplishes this goal by giving the Secretary of Education the power to “waive or 

modify any statutory or regulatory provision applicable to the student financial assistance programs 

under title IV of the Act as the Secretary deems necessary in connection with a war or other military 

operation or national emergency to provide the waivers or modifications authorized by paragraph (2).” 

20 U.S.C. §1098bb(a)(1). Paragraph 2, in turn, authorizes the Secretary to “waive or modify any 

provision described in paragraph (1) as may be necessary to ensure that recipients of student financial 

assistance under title IV of the Act 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.” Id.

§1098bb(a)(2)(A). An “affected individual” is an individual who “(A) is serving on active duty during 

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a war or other military operation or national emergency; (B) is performing qualifying National Guard 

duty during a war or other military operation or national emergency; (C) resides or is employed in an 

area that is declared a disaster area by any Federal, State, or local official in connection with a national 

emergency; or (D) suffered direct economic hardship as a direct result of a war or other military 

operation or national emergency, as determined by the Secretary.” Id. §1098ee(2).

“It is a fundamental canon of statutory construction that the words of a statute must be read 

in their context and with a view to their place in the overall statutory scheme.” Davis v. Mich. Dep’t of 

Treasury, 489 U.S. 803, 809 (1989). “Where the statute at issue is one that confers authority upon an 

administrative agency, that inquiry must be ‘shaped, at least in some measure, by the nature of the 

question presented’—whether Congress in fact meant to confer the power the agency has asserted.” 

W. Virginia v. EPA, 142 S. Ct. 2587, 2607-08 (2022) (quoting FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 159 (2000)). In these “major questions” cases, “the ‘history and the breadth of the 

authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, 

provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.” Id. at 

2608 (quoting Brown & Williamson Tobacco Corp., 529 U.S. at 159-60).

In these cases, courts presume that “Congress intends to make major policy decisions itself, 

not leave those decisions to agencies.” Id. at 2609 (cleaned up). Courts thus demand “something more 

than a merely plausible textual basis for the agency action.” Id. The agency “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)) That is because “[e]xtraordinary grants of regulatory authority are rarely 

accomplished through ‘modest words,’ ‘vague terms,’ or subtle device[s].’” Id. (quoting Whitman v. Am.

Trucking Ass’ns., Inc., 531 U.S. 457, 468 (2001)). “Nor does Congress typically use oblique or elliptical 

language to empower an agency to make a ‘radical or fundamental change’ to a statutory scheme.” Id.

(quoting MCI Tel. Corp. v. AT&T, 512 U.S. 218, 229 (1994)). The Supreme Court has recently and 

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repeatedly found agency actions unlawful under this “major questions” doctrine. See, e.g., id. at 2610

(EPA lacked authority to “substantially restructure the American energy market” through a “gap filler” 

provision in the agency’s enabling act.); Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021)

(HHS lacked authority to prohibit evictions in “80% of the country,” encompassing “between 6 and 

17 million tenants,” in response to COVID-19.); NFIB v. OSHA, 142 S. Ct. 661, 665 (2022) (OSHA 

lacked authority to “order[] 84 million Americans to either obtain a COVID-19 vaccine or undergo 

weekly medical testing at their own expense.”).

There is no doubt that “this is a major questions case.” W. Virginia, 142 S. Ct. 2610. The 

Program is a policy with “vast economic and political significance.” Utility Air Reg. Grp., 573 U.S. at

324 (cleaned up). The Debt Forgiveness Program wipes away the debts of tens of millions of 

individuals at a cost of more than 400 billion dollars. Supra 10. And the Program is unquestionably “one 

of today’s most hotly debated issues.” BST Holdings, LLC v. OSHA, 17 F.4th 604, 614 (5th Cir. 2021); 

see, e.g., M. Shear, Biden Gave In to Pressure on Student Debt Relief After Months of Doubt, N.Y. Times (Aug. 

26, 2022), https://nyti.ms/3foJ2vy (noting that the Program “has drawn fierce criticism from 

Republicans, who describe it as a costly giveaway to many who do not deserve it,” and has “ignited an 

intense debate about the economic consequences”). The Department of Education also has “claimed 

to discover in a long-extant statute an unheralded power representing a transformative expansion of 

its regulatory authority.” W. Virginia, 142 S. Ct. at 2610 (cleaned up). And the Department’s discovery 

here “allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly 

declined to enact itself.” Id. For example, in 2020, legislators attempted to pass a bill directing the 

Secretary of Education to “cancel or repay” Federal student loans up to “$10,000 [of] the total 

outstanding balance” for borrowers with financial hardship. See H.R. 6800, 116th Cong. §150117(h) 

(2020). But the bill failed in the Senate and was never signed into law.

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Congress never could have fathomed that the HEROES Act would be relied on to justify an 

agency action like the Debt Forgiveness Program. The HEROES Act initially passed by unanimous 

voice vote in both the House and the Senate, 147 Cong. Rec. H7155 (Oct. 23, 2001); 147 Cong. Rec. 

S13311 (Dec. 14, 2001), and it was reauthorized and amended in 2003 by unanimous voice vote in the 

Senate and with only one dissenting voice in the House, 149 Cong. Rec. S10866 (July 31, 2003); 

149 Cong. Rec. H2553-54 (Apr. 1, 2003). The Act was uncontroversial because Congress thought it

was doing little more than relieving active duty military from “making student loan payments for a 

period of time while they are away.” 149 Cong. Rec. at H2522 (Apr. 1, 2003) (Rep. Garrett). Over and 

over, legislators recognized this purpose of the Act. See, e.g., id. at H2524 (Rep. Isakson) (the Act 

ensures that our troops who “serve us in the Middle East and in Iraq” and their families “are not 

harassed by collectors and that their loan payments are deferred until they return”); id. at H2524-25 

(Rep. Boehner) (“None of us believe that our active duty soldiers should be in a position where they 

are going to have to make payments on their student loans while in fact they are not here. . . . What 

we want to do here is to make it clear to the Secretary that . . . he can, in fact, defer these payments.”); 

id. at H2525 (Rep. Burns) (“[W]e have before us today a sensible piece of legislation that will support 

our troops in completing their education. . . . The HEROES bill would excuse military personnel from 

their Federal student loan obligations while they are on active duty in service to the United States.”); 

see also id. H2524 (Rep. Ryan) (same); id. at H2522 (Rep. Garrett) (same).

“Given these circumstances, there is every reason to ‘hesitate before concluding that Congress’ 

meant to confer on [the Department] the authority it claims under [the HEROES Act].” W. Virginia, 

142 S. Ct. at 2610. Nothing in the HEROES Act gives the Department “clear congressional 

authorization” to implement the Program. Id. at 2609. That should end the matter.

Yet the Department’s assertion of authority is so strained that it would fail even if this were 

not a major questions case. The HEROES Act does not authorize the Department to cancel student 

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loan debt. The Department relies on its ability to “waive” or “modify” certain provisions. 20 U.S.C. 

§1098bb(a)(1). But these “modest words” cannot bear the weight the Department places on them.

W. Virginia, 142 S. Ct. at 2609. Under the Act, the Department’s waivers or modifications can do 

nothing more than ensure that borrowers “are not place[d] in a worse position financially in relation to

that financial assistance because of their status as affected individuals.” 20 U.S.C. §1098bb(a)(2)(A)

(emphasis added). But cancelling student debt does not place these individuals back in the same 

position in relation to their debt before the “war or other military operation or national emergency,”

id. §1098bb(a)(1)—it places them in a better position because their debts are gone. The Act’s legislative 

history confirms this understanding of the Department’s powers. See generally 149 Cong. Rec. 

H2522-27 (legislators expressing that the Department would defer payment obligations, not cancel 

them); supra 18-19.

The HEROES Act was not an unfettered grant of authority to the Department of Education 

to provide money to individuals in response to wars, natural disasters, and the like. Those functions 

are “simply not part of what the [Department of Education] was built for.” NFIB, 142 S. Ct. at 665

(cleaned up). It is Congress’s job to adopt such legislation. See, e.g., The Coronavirus Aid, Relief, and 

Economic Security (CARES) Act, Pub. L. 116-136, 134 Stat. 281 (Mar. 2020) (providing trillions of 

dollars to individuals, businesses, governments, and others in response to COVID-19). The grant of 

power to the Department under the HEROES Act was far more limited in scope. Indeed, when 

Congress gives the Department the power to cancel student loan debt, it does so explicitly. See, e.g.,

20 U.S.C. §1087j(a)-(b) (authorizing the Secretary to “carry out a program of canceling the obligation 

[of teachers] to repay a qualified loan amount” if certain conditions are met); 20 U.S.C. §1078-11 (“The 

Secretary shall forgive . . . the qualified loan amount . . . of the student loan obligation of a borrower 

who is employed full-time in an area of national need.”); 20 U.S.C. §1087ee (“Loans shall be canceled” 

for certain individuals engaging in public service). Congress never did that here.

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But even if the HEROES Act could be read to authorize the Secretary to cancel student loan 

debt—which it cannot—the Secretary still would not have the power under the Act to implement the 

Debt Forgiveness Program. The Department has far exceeded any authority to ensure that affected 

individuals “are not placed in a worse position financially in relation to that financial assistance because 

of their status as affected individuals.” 20 U.S.C. §1098bb(a)(2)(A). The Program fails to tie debt 

cancellation to an individual’s debts—e.g., by pausing his or her repayment obligations during an 

emergency. It instead provides arbitrary debt cancellation—either $10,000 or $20,000—that has no 

“relation to” the debts themselves. Id. Indeed, the Department already suspended most individuals’ 

obligations to make loan payments in March 2020 and set interest rates to 0%, which remains in place 

through the end of 2022. See COVID-19 Loan Payment Pause and 0% Interest, Fed. Student Aid, U.S. 

Dep’t of Educ., https://bit.ly/3UNYMsi. Moreover, the Department failed to recognize that any 

“national emergency” involving COVID-19 has long been over. As the President recently declared,

“the pandemic is over. . . . If you notice, no one’s wearing masks. Everybody seems to be in pretty 

good shape. And so I think it’s changing.” B. Sullivan, How Biden’s Declaring the Pandemic ‘Over’ 

Complicates Efforts to Fight COVID, NPR (Sept. 20, 2022), https://n.pr/3Sjuw70. The Program takes 

none of these circumstances into account.

The Program also improperly deems every American with student loan debt to be an “affected 

individual.” The Program is not limited to those who “reside[d] or [were] employed in an area that is 

declared a disaster area,” 20 U.S.C. §1098ee(2), because individuals who were living abroad during the 

pandemic are eligible for debt forgiveness. And the Department did not establish that those receiving 

debt cancellation “suffered direct economic hardship as a direct result of a war or other military 

operation or national emergency.” Id. §1098ee(2)(D) (emphasis added). Indeed, unemployment has 

been at historically low numbers, see S. Horsley, The Unemployment Rate Fell to 3.5%, Matching its Lowest 

Level in the Last 50 Years, NPR (Aug. 5, 2022), https://n.pr/3RhZQla; nearly 80 percent of all studentCase 4:22-cv-00908-O Document 4 Filed 10/10/22 Page 28 of 33 PageID 51
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loan borrowers have higher credit scores than before the start of COVID-19, see Daniel Mangrum, et 

al., Liberty Street Economics: Three Key Facts from the Center for Microeconomic Data’s 2022 Student Loan Update, 

Fed. Rsrv. Bank of N.Y. (Aug. 9, 2022), https://nyfed.org/3dYCGCT; and, since 2020, the 

Department has paused loan payments and set interest rates at 0%, see COVID-19 Loan Payment Pause 

and 0% Interest, supra. Given these circumstances, the Department cannot simply assume that all 

individuals making less than $125,000 “suffered direct economic hardship” as a “direct result” of 

COVID-19.

Because the HEROES Act does not authorize the Debt Forgiveness Program, the 

Department could not adopt the Program without following the proper rulemaking procedures. 

Plaintiffs are likely to prevail on the merits of their claims. 

II. Plaintiffs are likely to suffer irreparable harm without a preliminary injunction.

As explained, Plaintiffs have suffered a cognizable injury because they were “deprived of ‘a 

procedural right to protect [their] concrete interests.” EEOC, 933 F.3d at 447. In the preliminaryinjunction context, “‘many courts have found that a preliminary injunction may be issued solely on 

the grounds that a regulation was promulgated in a procedurally defective manner.’” Eli Lilly & Co. v. 

Cochran, 526 F. Supp. 3d 393, 408 (S.D. Ind. 2021) (listing cases). That is because the “purpose of the 

notice and comment requirement is to permit regulated entities to influence rulemaking at the 

beginning of the process and not simply after rules are already in place, at which point the agency ‘is 

far less likely to be receptive to comments.’” Id. (quoting N. Mariana Islands v. United States, 686 F. Supp. 

2d 7, 18 (D.D.C. 2009)); see U.S. Steel Corp, 595 F.2d at 214 (the APA is “designed to ensure that 

affected parties have an opportunity to participate in and influence agency decision making at an early 

stage, when the agency is more likely to give real consideration to alternative ideas”). Here, if the Debt 

Forgiveness Program “were permitted to go into effect and was later determined to have been 

promulgated without an adequate, fair opportunity for advance notice and comment, Plaintiffs would 

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be deprived of their right, under the APA, to provide meaningful input into the agency’s decision at a 

time when it is most likely to be carefully considered, a harm which the Court would be unable to fully 

remedy after the fact.” Eli Lilly & Co., 526 F. Supp. 3d at 409.

Indeed, Plaintiffs’ irreparable harm is even clearer here because of the temporary nature of the 

Program. The Department intends to hand out hundreds of billions of dollars in debt cancellation in 

the coming weeks, and the Department will complete (or substantially complete) the Program before 

the Court can ever rule on the merits. Nearly eight million individuals will soon receive debt 

forgiveness automatically and all others “can expect relief within six weeks” of applying. The BidenHarris Administration’s Student Debt Relief Plan Explained, U.S. Dep’t of Educ., https://bit.ly/3RSLc4a;

see also id. (encouraging individuals “to apply by mid-November in order to receive relief before the 

payment pause expires on December 31, 2022”). And when the money is gone, the Program will be 

over. The Department has repeatedly stressed that the Program will provide only “one-time” debt 

cancellation. See Exhibit A, One-Time Student Loan Debt Relief, supra [App. 10]; see also Opp. to P.I. Mot. 

at 27, Nebraska, No. 22-cv-1040 (E.D. Mo.) (noting that the Secretary “concluded that it was necessary 

and appropriate to order a limited, one-time discharge of student loan debt for [certain] borrowers”).

Without a preliminary injunction, Plaintiffs will “‘never have an equivalent opportunity to influence 

the [Program’s] contents.’” Ass’n of Cmty. Cancer Ctrs., 509 F. Supp. 3d at 501 (quoting N. Mariana 

Islands, 686 F. Supp. 2d at 18-19).

III. The balance of harms and public interest weigh in favor of a preliminary injunction.

The final two factors—the balance of the harms and whether an injunction will disserve the 

public interest—“merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418,

435 (2009). “When balancing the harms, courts must consider whether the movant’s injury outweighs 

the threatened harm to the party whom they seek to enjoin. The public interest element is broader in 

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scope.” U.S. Navy SEALs 1-26 v. Biden, 578 F. Supp. 3d 822, 840 (N.D. Tex. 2022). These factors 

favor a preliminary injunction.

The public would benefit from a preliminary injunction because it will preserve their rights to 

notice and comment. The Debt Forgiveness Program is an unprecedented program that will affect 

the entire country. Every American has an interest in commenting on the Program because of its costs, 

its effects on inflation, its impact on higher education, and countless other reasons. The millions of 

individuals like Plaintiffs who are being shortchanged or left out of the Program entirely have an 

interest in commenting on the Program. Universities, loan service providers, and state governments 

do too. And the list goes on. Without a preliminary injunction, everyone will be denied the opportunity 

to provide the government with their evidence and views on the Program. 

By contrast, the public interest will not be harmed by a preliminary injunction. The “public 

interest is in having governmental agencies abide by the federal laws that govern their existence and 

operations.” Texas v. Biden, 10 F.4th 538, 559 (5th Cir. 2021) (cleaned up)). And there is “no public 

interest in the perpetuation of unlawful agency action.” Wages & White Lion Invest. LLC v. FDA, 16 

F.4th 1130, 1143 (5th Cir. 2021) (cleaned up).

To be sure, individuals “who may be reaping [debt] recoveries” under the Program may

oppose a preliminary injunction. In re Deepwater Horizon, 732 F.3d 326, 345 (5th Cir. 2013). But their 

interests are “outweighed by the potential loss” to Plaintiffs and others who might qualify for 

forgiveness under a program that was lawfully created. See id. (reversing denial of preliminary 

injunction where settlement fund was being depleted by improper claimants). Moreover, a preliminary 

injunction will prevent the chaos that will inevitably follow if tens of millions of Americans are wrongly 

led to believe that their debts have been lawfully cancelled. The inherent “difficulty of restoring the 

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status quo ante if [the Program] were to be implemented” favors a preliminary injunction. Texas, 809 

F.3d at 187. A preliminary injunction is warranted.2

CONCLUSION

For the foregoing reasons, the Court should grant Plaintiffs’ motion for a preliminary 

injunction.

Dated: October 10, 2022

Respectfully submitted,

/s/ James F. Hasson _

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 

2 The Court should decline to require an injunction bond. Federal courts have broad 

“discretion” to “elect to require no security at all” when issuing a preliminary injunction. Kaepa, Inc. v. 

Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996). When “there is no risk of monetary loss to the 

defendants as a result of [a] preliminary injunction,” courts frequently grant “request[s] that the bond 

be waived.” Gordon v. City of Houston, Tex., 79 F. Supp. 3d 676, 695 (S.D. Tex. 2015). Waiving the bond 

requirement is particularly appropriate here because Plaintiffs are likely to succeed on the merits and 

Defendants will incur no harm from an injunction. Id.

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CERTIFICATE OF SERVICE

I certify that on October 10, 2022, I electronically filed the foregoing with the Clerk of Court 

using the CM/ECF System and will serve a copy on each of the Defendants according to the Federal 

Rules of Civil Procedure. 

/s/ James F. Hasson

James F. Hasson

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