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’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY 

INJUNCTION AND MOTION TO DISMISS

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TABLE OF CONTENTS

BACKGROUND............................................................................................................................................................2

I. Statutory and Regulatory Background .........................................................................................................2

II. The HEROES Act............................................................................................................................................3

III. The COVID-19 Pandemic.............................................................................................................................4

IV. The Targeted One-Time Pandemic Loan Discharge Plan...................................................................6

V. This Litigation......................................................................................................................................................6

LEGAL STANDARD...................................................................................................................................................8

ARGUMENT...................................................................................................................................................................8

I. Plaintiffs Lack Standing To Complain That Other Borrowers Are Receiving Relief...................8

II. Plaintiffs Cannot Show a Likelihood Of Success On The Merits...................................................12

A. The HEROES Act Provides For An Expedited Process That Does Not Include 

Notice-and-Comment Procedures.......................................................................................................13

B. The HEROES Act Authorizes the Secretary’s Provision of Targeted Debt Relief. ............14

1. The HEROES Act Authorizes the Secretary to Modify Provisions 

Regarding Loan Discharge.............................................................................................14

2. The Loan Discharges Apply to a Proper Subset of Affected 

Borrowers............................................................................................................................16

3. The Secretary Reasonably Determined That a Measure of Discharge 

Was Needed to Reduce Delinquency and Default Risk Among 

Lower-Income Borrowers..............................................................................................19

C. The Major Questions Doctrine Does Not Undermine the Clear Statutory 

Authorization Provided by the HEROES Act.................................................................................22

III. Plaintiffs Have Failed to Establish Any Legally Cognizable Interest, Let Alone 

Irreparable Harm.............................................................................................................................................27

IV. The Balance of the Equities and Public Interest Weigh Against Injunctive Relief. ...................29

V. Any Relief Should Be Appropriately Limited. .......................................................................................30

CONCLUSION.............................................................................................................................................................30

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TABLE OF AUTHORITIES

Cases

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021).......................................................................................................................................23, 25

Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville,

896 F.2d 1283 (11th Cir. 1990).............................................................................................................................28

City of Hearne v. Johnson,

929 F.3d 298 (5th Cir. 2019)..................................................................................................................................10

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

447 U.S. 102 (1980) ..................................................................................................................................................26

Cornish v. Dudas,

540 F. Supp. 2d 61 (D.D.C. 2008).......................................................................................................................29

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) ...............................................................................................................................................8, 9

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ...........................................................................................................................................24, 25

Georgia v. President,

46 F.4th 1283 (11th Cir. 2022)..............................................................................................................................30

Gill v. Whitford,

138 S. Ct. 1916 (2018)..............................................................................................................................................30

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

512 F.3d 1112 (9th Cir. 2008)................................................................................................................................29

Henderson v. Stalder,

287 F.3d 374 (5th Cir. 2002)...........................................................................................................................11, 12

Holland Am. Ins. Co. v. Succession of Roy,

777 F.2d 992 (5th Cir. 1985)..................................................................................................................................27

In re Compl. of RLB Contracting, Inc.,

773 F.3d 596 (5th Cir. 2014)....................................................................................................................................8

Jordan v. Fisher,

823 F.3d 805 (5th Cir. 2016)....................................................................................................................................8

Lake Charles Diesel, Inc., v. Gen. Motors Corp.,

328 F.3d 192 (5th Cir. 2003)....................................................................................................................................8

Case 4:22-cv-00908-P Document 24 Filed 10/19/22 Page 3 of 39 PageID 220
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Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,

140 S. Ct. 2367 (2020)..............................................................................................................................................27

Louisiana v. Becerra,

20 F.4th 260 (5th Cir. 2021)...................................................................................................................................30

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) .............................................................................................................................................8, 10

Machete Prods., LLC v. Page,

809 F.3d 281 (5th Cir. 2015)....................................................................................................................................8

Madsen v. Women’s Health Ctr., Inc.,

512 U.S. 753 (1994) ..................................................................................................................................................30

Matrixx Initiatives, Inc. v. Siracusano,

563 U.S. 27 (2011).....................................................................................................................................................18

Missouri v. Biden,

142 S. Ct. 647 (2022)................................................................................................................................................24

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) ....................................................................................................................................................9

Morgan v. Huntington Ingalls, Inc.,

879 F.3d 602 (5th Cir. 2018)..................................................................................................................................10

Munaf v. Geren,

553 U.S. 674 (2008) ....................................................................................................................................................8

Nat’l Ass’n of Mfrs. v. Dep’t of,

Def., 138 S. Ct. 617 (2018).....................................................................................................................................27

Nken v. Holder,

556 U.S. 418 (2009) ..................................................................................................................................................29

Optimus Steel, LLC v. U.S. Army Corps of Engr’s,

492 F. Supp. 3d 701 (E.D. Tex. 2020)................................................................................................................28

Ramming v. United States,

281 F.3d 158 (5th Cir. 2001)....................................................................................................................................8

Sampson v. Murray,

415 U.S. 61 (1974).....................................................................................................................................................27

Sepulvado v. Jindal,

729 F.3d 413 (5th Cir. 2013)....................................................................................................................................8

Case 4:22-cv-00908-P Document 24 Filed 10/19/22 Page 4 of 39 PageID 221
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Shrimpers & Fishermen of RGV v. Texas Comm’n on Env’t Quality,

968 F.3d 419 (5th Cir. 2020)..................................................................................................................................10

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) .............................................................................................................................................9, 10

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998).......................................................................................................................................................9

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ..................................................................................................................................................10

Texas v. EEOC,

933 F.3d 433 (5th Cir. 2019)...........................................................................................................................11, 12

Texas v. United States,

809 F.3d 134 (5th Cir. 2015)..................................................................................................................................11

Texas, Veterans of Foreign Wars v. Texas Lottery Comm’n,

760 F.3d 427 (5th Cir. 2014)..................................................................................................................................12

TransUnion, LLC v. Ramirez,

141 S. Ct. 2190 (2021)................................................................................................................................................9

Trump v. Hawaii,

138 S. Ct. 2392 (2018)..............................................................................................................................................30

United States v. Gonzales,

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

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

2022 WL 3975075 (Aug. 23, 2022)........................................................................................................................4

Utility Air Regulatory Group v. E.P.A,

573 U.S. 302 (5th Cir. 2011)....................................................................................................................................23

West Virginia v. EPA,

142 S. Ct. 2587 (2022)........................................................................................................................................passim

Williamson v. Tucker,

645 F.2d 404 (5th Cir. 1981)....................................................................................................................................8

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008)...........................................................................................................................................8, 10, 25

Statutes

5 U.S.C. § 553...........................................................................................................................................................13, 14

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5 U.S.C. § 553(b)(A) ......................................................................................................................................................14

5 U.S.C. § 553(b)(B).......................................................................................................................................................14

5 U.S.C. § 559....................................................................................................................................................................9

5 U.S.C. § 706(2)(C).......................................................................................................................................................14

20 U.S.C. § 1070 ...............................................................................................................................................................2

20 U.S.C. § 1082(a)(6)...................................................................................................................................................25

20 U.S.C. § 1087ll.............................................................................................................................................................2

20 U.S.C. § 1098a ......................................................................................................................................................4, 13

20 U.S.C. § 1098bb.................................................................................................................................................15, 23

20 U.S.C. § 1098bb(a)(1)........................................................................................................................................passim

20 U.S.C. § 1098bb(a)(2)................................................................................................................................15, 16, 18

20 U.S.C. § 1098bb(a)(2)(A)...................................................................................................................19, 20, 21, 24

20 U.S.C. § 1098bb(a)-(b)............................................................................................................................................29

20 U.S.C. § 1098bb(b)(1) ........................................................................................................................................9, 13

20 U.S.C. § 1098bb(b)(3) ......................................................................................................................................16, 18

20 U.S.C. § 1098ee(2)....................................................................................................................................................17

20 U.S.C. § 1232 .............................................................................................................................................................13

20 U.S.C. §§ 1082 .............................................................................................................................................................3

26 U.S.C. § 108................................................................................................................................................................27

50 U.S.C. § 1621 ...............................................................................................................................................................3

Higher Education Relief Opportunities for Students Act of 2003,

Pub. L. No. 108-76 117 Stat 904 (2003)...............................................................................................................3

Coronavirus Aid, Relief, and Economic Security Act,

Pub. L. No. 116-136 134 Stat 281(2020) .............................................................................................................5

American Rescue Plan Act, 

Pub. L. No. 117-2, 135 Stat 4 (2021)...................................................................................................................27

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Administrative and Executive Materials

34 C.F.R. § 30.70 ............................................................................................................................................................25

Federal Student Aid Programs,

87 Fed. Reg. 10,289 (Feb. 18, 2022)....................................................................................................................17

Declaring a National Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak,

85 Fed. Reg. 15,337 (Mar. 18, 2020)......................................................................................................................4

Federal Student Aid Programs, 

85 Fed. Reg. 79,856, 79,857 (Dec. 11, 2020). .....................................................................................................5

Notice of Debt Cancellation Legal Memorandum,

87 Fed. Reg. 52,943 (Aug. 30, 2022) .....................................................................................................................4

Federal Student Aid Programs,

87 Fed. Reg. 61,512 (Oct. 12, 2022) .....................................................................................................................6

Legislative Materials

Stop Reckless Student Loan Actions Act of 2022,

S. 4094, 117th Cong. § 4(d)(1) (Apr. 27, 2022)................................................................................................26

Federal Student Loan Integrity Act,

H.R. 7058, 117th Cong. (Mar. 11, 2022)...........................................................................................................26

Stop Reckless Student Loan Actions Act of 2022,

H.R. 7656, 117th Cong. § 4(d)(1) (May 3, 2022).............................................................................................26

Other Authorities

Centers for Disease Control and Prevention, COVID Data Tracker, (Oct. 6, 2022),

https://perma.cc/5ERQ-4XQW............................................................................................................................4

Federal Emergency Management Agency, COVID-19 Disaster Declarations, (Oct. 18, 2022), 

https://perma.cc/B7KA-W4KD............................................................................................................................4

Federal Student Aid, Fiscal Year 2020 Annual Report 38, (Oct. 6, 2022),

https://perma.cc/9ZM7-HWZP............................................................................................................................5

Merriam Webster’s Dictionary, (Oct. 18, 2022), 

https://www.merriam-webster.com/dictionary/ensure................................................................................16

Student Loan Delinquency and Default, 

https://perma.cc/9T5Y-7Q9L..............................................................................................................................30

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U.S. Dep’t of Education, “Biden-Harris Administration Announces Final Student Loan

Pause Extension Through December 31 and Targeted Debt Cancellation to Smooth

Transition to Repayment,” (Aug. 24, 2022),

https://perma.cc/AP3Q-3V6C...............................................................................................................................5

U.S. Dep’t of Education, “Education Department Approves $5.8 Billion Group Discharge to

Cancel all Remaining Loans for 560,000 Borrowers Who Attended Corinthian,” (June 1, 2022),

https://perma.cc/MTW6-XABV.........................................................................................................................26

U.S. Dep’t of Education, “Secretary DeVos Cancels Student Loans, Resets Pell Eligibility,

and Extends Closed School Discharge Period for Students Impacted by Dream Center

School Closures,” (Nov. 8, 2019), 

https://perma.cc/FRT6-WAWS...........................................................................................................................26

U.S. Dep’t of Educ., FSA, One-Time Student Debt Relief,

https://perma.cc/ER4E-6RCS ...............................................................................................................................6

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Plaintiffs, two individuals, claim to have standing to challenge the Department of Education’s 

student debt forgiveness program based on the fact that they did not have the opportunity to persuade 

the Department to expand a program that, in the very same motion, they argue was unlawful because

of its overbreadth. Plaintiffs’ only claim, that the Department failed to subject its decision to provide 

one-time student-loan debt relief to notice and comment, is belied by the express terms of the Higher 

Education Relief Opportunities for Students Act of 2003 (“HEROES Act”), which exempts the 

Secretary’s waivers and modifications of student loan debt from notice and comment. Plaintiffs 

therefore have no procedural right to notice and comment, and its absence cannot be a procedural 

violation that injured anyone. Likewise, Plaintiffs’ alleged harm—that they will not receive the full 

measure of relief offered to other borrowers under the program—is nothing but a generalized 

grievance shared by tens of millions of borrowers that does not confer standing. Nor are Plaintiffs’ 

purported injuries redressable by an order enjoining debt relief for those included in the program, as 

it would not require the Department to expand the program to include Plaintiffs. Plaintiffs’ complaint 

should be dismissed for lack of standing, and the lack of cognizable injury also prevents Plaintiffs 

from establishing irreparable harm for purposes of obtaining emergency relief.

Nor can Plaintiffs transform their sole procedural claim into a substantive claim by arguing

that the HEROES Act’s exemption from notice-and-comment rulemaking does not apply because the 

HEROES Act does not authorize the one-time student-loan debt relief. In notable tension to their 

standing argument—which is based on the theory that the invocation of the HEROES Act was too 

modest—Plaintiffs’ substantive contention is based largely on the assertion that the program’s scope 

is too broad. But Congress authorized the Secretary to undertake the challenged action: The Higher 

Education Act of 1965, as amended (“HEA”), has long vested the Department with broad authority 

to manage the federal student financial aid programs, to determine the terms and conditions upon 

which borrowers are required to repay their student loans to the Department, and to discharge or 

modify loan obligations in a wide variety of circumstances. In 2003, Congress added to that authority 

by enacting the HEROES Act, which authorizes the Secretary of Education to waive or modify 

statutory and regulatory provisions governing the federal student financial aid programs, including 

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those related to the terms of student loans administered by the Department, to ameliorate the 

economic effects of war or national emergency. COVID-19 is plainly such an emergency, and 

Plaintiffs do not claim otherwise. 

In August 2022, as the Nation focuses on emerging from the pandemic, the Secretary 

determined that the loan repayment pause initiated by his predecessor should come to an end. But 

because economically vulnerable borrowers face a high risk of delinquency and default as a result of 

the pandemic—a risk that is particularly acute when payments resume—the Secretary invoked the 

HEROES Act to provide targeted student loan cancellation so that affected individuals will not be 

worse off with respect to their student loans because of the COVID-19 pandemic. The Secretary’s 

action under the HEROES Act is grounded in an analysis of the economic effects of the national 

emergency and is tailored to recovery from it. Because that decision fits comfortably within his

HEROES Act authority, any substantive challenge to the program bootstrapped to Plaintiffs’ 

procedural claim is not likely to succeed on the merits. 

Nor does the public interest support the issuance of a preliminary injunction. Plaintiffs’ wish 

to benefit more fully from the Secretary’s debt relief program should not tip the scales against the 

millions of student loan borrowers who, economic researchers and the Secretary have concluded, will 

be at increased risk of default on their student loans when repayment restarts. 

BACKGROUND

I. Statutory and Regulatory Background

The Secretary of Education (“Secretary”) is charged with carrying out certain student loan 

programs under Title IV of the HEA, 20 U.S.C. § 1070 et seq. Foremost among these is the William 

D. Ford Federal Direct Loan Program, which allows students to apply for and receive Direct Loans 

from the federal government to pay for their educational expenses, including tuition and living 

expenses. 20 U.S.C. § 1087ll. Title IV also includes other programs, such as the Federal Family 

Education Loan (“FFEL”) Program, id. §§ 1071-1087-4, and the Perkins Loan Program, id. §§ 1087aa1087ii, although no new loans are authorized under either program. See id. § 1078(a)(1) (no new FFEL 

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loans after July 1, 2010); id. § 1087aa(b)(2) (no new Perkins loans after September 30, 2017). The HEA 

delegates significant authority to the Secretary to administer the Department’s portfolio of more than 

43 million federal student loans, see 20 U.S.C. §§ 1082, 3441, 3471, including the authority to 

“compromise, waive, or release any right, title, claim, lien, or demand” acquired in the Secretary’s 

performance of his vested “functions, powers, and duties” to administer student loans, id. § 1082(a). 

II. The HEROES Act

The HEROES Act, Pub. L. No. 108-76, 117 Stat. 904 (2003) (codified at 20 U.S.C. §§ 1098aa1098ee), authorizes the Secretary to take broad and decisive action with respect to the federal student 

financial aid programs in times of national emergency. Specifically it provides that, “[n]otwithstanding 

any other provision of law,” the Secretary may “waive or modify any statutory or regulatory provision 

applicable to” the federal student financial aid programs “as the Secretary deems necessary in 

connection with a ... national emergency to” accomplish certain statutory goals. 20 U.S.C. 

§ 1098bb(a)(1). As relevant here, the Secretary may provide such waivers as “necessary to ensure” that 

(1) covered Title IV financial aid recipients “are not placed in a worse position financially in relation 

to that financial assistance because of their status as affected individuals,” and (2) administrative 

requirements placed on such covered individuals are “minimized ... to ease the burden on such 

students and avoid inadvertent, technical violations or defaults.” Id. § 1098bb(a)(2). The Act defines 

the covered population of “affected individual[s]” broadly to encompass any individual who, as 

relevant here, either “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 “suffered direct economic hardship 

as a direct result of a [national emergency] as determined by the Secretary.” Id. § 1098ee(2). And a 

“national emergency” is “a national emergency declared by the President of the United States.” 

Id. § 1098ee(4); see also 50 U.S.C. § 1621 (authorizing President to declare national emergency).

The Act exempts any exercise of the Secretary’s authority from certain otherwise-applicable 

procedural requirements, including Administrative Procedure Act (“APA”) notice-and-comment 

rulemaking. Section 1098bb(b)(1) provides that “[n]otwithstanding section 1232 of this title and 

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section 553 of Title 5, the Secretary shall, by notice in the Federal Register, publish the waivers or 

modifications of statutory and regulatory provisions the Secretary deems necessary to achieve the 

purposes of this section.” And Section 1098bb(b)(1)(d) states that 20 U.S.C. § 1098a, which requires 

the Department to engage in negotiated rulemaking to develop certain proposed rules under the HEA, 

“shall not apply to the waivers and modifications authorized or required by this part.”

The statute also explicitly states that the Secretary “is not required to exercise the waiver or 

modification authority under this section on a case-by-case basis.” Id. § 1098bb(b)(3). Historically, the 

Department has exercised this authority to provide categorical relief to borrowers in connection with 

national emergencies. See U.S. Dep’t of Just., Office of Legal Counsel, Use of the HEROES Act of 2003 

to Cancel the Principal Amounts of Student Loans, 2022 WL 3975075, at *4-5 (Aug. 23, 2022) (“OLC 

Opinion”); U.S. Dep’t of Educ., Office of the General Counsel, The Secretary’s Legal Authority for Debt 

Cancellation (Aug. 23, 2022), available at Notice of Debt Cancellation Legal Memorandum, 87 Fed. Reg. 

52,943 (Aug. 30, 2022) (“ED Legal Authority Memo”).

III. The COVID-19 Pandemic

In March 2020, then-President Trump declared a national emergency to contain and combat 

the virus known as COVID-19. See Declaring a National Emergency Concerning the Novel 

Coronavirus Disease (COVID-19) Outbreak, 85 Fed. Reg. 15,337 (Mar. 18, 2020). That declaration 

remains in effect, and the federal government has declared every state, the District of Columbia, and 

the territories to be disaster areas due to COVID-19. See Federal Emergency Management Agency, 

COVID-19 Disaster Declarations, https://perma.cc/B7KA-W4KD. Over the past two and a half 

years, COVID-19 has killed more than 1 million Americans, see Centers for Disease Control and 

Prevention, COVID Data Tracker (Oct. 6, 2022), https://perma.cc/5ERQ-4XQW, and has caused 

significant disruptions to all aspects of American life. Even now, COVID-19 is killing more than 300 

Americans and causing thousands more to be hospitalized every day. Id.

In response to the pandemic and the myriad economic difficulties it has imposed, the federal 

government has taken several significant actions to provide relief to federal student loan borrowers 

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with Department-held loans. On March 20, 2020, the Secretary invoked the HEROES Act to pause 

repayment obligations and suspend interest accrual on Department-held student loans. See Federal 

Student Aid Programs, 85 Fed. Reg. 79,856, 79,857 (Dec. 11, 2020) (“2020 Notice”). Shortly 

thereafter, Congress enacted legislation directing the Secretary to suspend all payments on any Title 

IV loans held by the Department and apply a zero-percent interest rate to all such loans, through 

September 2020. Coronavirus Aid, Relief, And Economic Security Act, Pub. L. No. 116-136, § 3513, 

134 Stat. 281 (2020). These protections were extended by both the Trump Administration and the 

Biden Administration and remain in effect today pursuant to invocations of the Secretary’s HEROES 

Act authority. See, e.g., 2020 Notice, 85 Fed. Reg. at 79,857; Federal Student Aid (“FSA”), Fiscal Year 

2020 Annual Report (Nov. 16, 2020), https://perma.cc/9ZM7-HWZP (“FSA Report”); Memo from 

Secretary Cardona to Chief Operating Officer (“COO”) Cordray (“Decision Memo”), Ex. B to Decl. 

of James Kvaal (“Kvaal Decl.”), App’x 22. As a result, federal student loan borrowers with 

Department-held loans have not been required to make payments on those loans for more than two 

and a half years. On August 24, 2022, the Secretary announced that he would use his authority under 

the HEROES Act to extend the payment pause and zero-percent interest protections one final time, 

through December 31, 2022. See U.S. Dep’t of Educ., Biden-Harris Administration Announces Final Student 

Loan Pause Extension Through December 31 and Targeted Debt Cancellation to Smooth Transition to Repayment

(Aug. 24, 2022), https://perma.cc/AP3Q-3V6C.

IV. The Targeted One-Time Pandemic Loan Discharge Plan

To address the financial harms to student loan borrowers caused by the pandemic and ensure 

a smooth transition back to repayment status after this long payment pause, the Secretary announced 

he would use his HEROES Act authority to provide targeted one-time debt relief to federal student 

loan borrowers affected by the pandemic.

1 Id. Designed to “address the financial harms of the 

pandemic” by providing relief to “borrowers at highest risk of delinquencies or default once payments 

1 The Secretary published the relevant HEROES Act waivers and modifications in a notice in the 

Federal Register on October 12, 2022. See 87 Fed. Reg. 61,512 (Oct. 12, 2022) (“2022 Notice”).

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resume,” the Department’s plan will make up to $10,000 in student loan debt relief available to eligible 

borrowers making less than $125,000 (or married couples making less than $250,000). Id. Borrowers 

who received a Pell Grant to attend college are eligible to receive up to $20,000 in loan relief. Id.

This loan forgiveness program is based on the Secretary’s determination that such measures 

are necessary to ensure that “borrowers subject to the payment pause are not placed in a worse 

position financially by the COVID-19 national emergency as they restart payments.” Decision Memo

at 1. The Secretary recognized that while the payment pause had “delivered substantial relief to 

millions of loan borrowers,” additional steps are needed to address the “heightened risk of loan 

delinquency and default” that many borrowers face upon reentering repayment and to ensure that 

such borrowers are not “in a worse position financially due to the pandemic with regard to their ability 

to repay their loans.” Id. That determination was based on, among other things, an economic analysis 

finding that discharging $10,000 in federal student loan debt (and $20,000 for Pell Grant recipients) 

for borrowers making less than $125,000 (or households making less than $250,000) would reduce the 

likelihood of delinquency and default for borrowers transitioning back to repayment and ensure that 

such borrowers are not made worse off with respect to their financial assistance by the COVID-19 

pandemic. See generally Rationale for Pandemic-Connected Loan Discharge Program (“Supporting 

Analysis”), App’x 8-18. Direct Loans, FFEL and Perkins loans held by the Department, as well as

most defaulted loans are eligible for one-time debt relief. See U.S. Dep’t of Educ., FSA, One-Time 

Student Debt Relief, https://perma.cc/ER4E-6RCS. Privately-held FFEL and Perkins loans are not 

eligible for relief, although borrowers with such loans are eligible for relief if they applied to 

consolidate into a Department-held loan before September 29, 2022.

V. This Litigation

Plaintiffs are two individual Texas residents dissatisfied with the scope of the Secretary’s 

targeted debt-relief plan. Plaintiff Myra Brown has roughly $17,000 in outstanding student loans but, 

because her loans are commercially held, she is not eligible for this particular exercise of discretionary 

debt relief. Compl., ECF No. 1, ¶ 14. Plaintiff Alexander Taylor’s roughly $35,000 in student loans 

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are held by the Department of Education and, because his most-recent income fell below the $125,000 

threshold, Mr. Taylor is eligible for $10,000 in loan forgiveness. Id. ¶ 16. Because Mr. Taylor did not 

receive a Pell Grant in college, however, he is not eligible for the additional $10,000 in debt relief. Id. 

Plaintiffs’ one-count complaint claims that “their student loan debt should be forgiven too” 

because, they feel, “it is irrational, arbitrary, and unfair” to provide a greater measure of benefits to 

others but not to themselves. See Compl. ¶ 10. Plaintiffs allege that the Secretary erred by not 

subjecting his debt-relief plan to public notice and comment before finalizing its scope; on this basis, 

they ask the Court to enjoin the Department “from enforcing, applying, or implementing the 

Program” for any of the more than 40 million lower-income Americans who currently are eligible for,

and expecting to benefit from, debt relief. Id. at 14. The same day Plaintiffs filed their suit, they moved 

for a preliminary injunction seeking to forestall debt relief for millions of Americans. See Mot. for 

Prelim. Inj., (“PI Br.”), ECF No. 4. 

LEGAL STANDARD

“A preliminary injunction is an extraordinary and drastic remedy” that should “never [be]

awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689–90 (2008) (citation omitted). A plaintiff may 

obtain this “extraordinary remedy” only “upon a clear showing” that it is “entitled to such relief.” 

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). The plaintiff must show (1) “a substantial 

threat of irreparable injury,” (2) “a substantial likelihood of success on the merits,” (3) “that the 

threatened injury if the injunction is denied outweighs any harm that will result if the injunction is 

granted,” and (4) “that the grant of an injunction will not disserve the public interest.” Jordan v. Fisher, 

823 F.3d 805, 809 (5th Cir. 2016) (quoting Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013)). The 

plaintiff must “clearly carr[y] the burden of persuasion on all four requirements.” Id. (citation omitted); 

see also, e.g., Lake Charles Diesel, Inc., v. Gen. Motors Corp., 328 F.3d 192, 203 (5th Cir. 2003).

“Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to 

challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v. United States, 

281 F.3d 158, 161 (5th Cir. 2001). To survive a Rule 12(b)(1) motion, a plaintiff bears the burden to 

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establish a court’s jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). It is “presume[d] that 

federal courts lack jurisdiction unless the contrary appears affirmatively from the record.” 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006) (citation omitted). “[I]n examining a Rule 

12(b)(1) motion, a district court is empowered to find facts as necessary to determine whether it has 

jurisdiction.” Machete Prods., LLC v. Page, 809 F.3d 281, 287 (5th Cir. 2015). Accordingly, “the district 

court may consider evidence outside the pleadings and resolve factual disputes.” In re Compl. of RLB 

Contracting, Inc., 773 F.3d 596, 601 (5th Cir. 2014); see also Williamson v. Tucker, 645 F.2d 404, 413 (5th 

Cir. 1981) (on a Rule 12(b)(1) motion, a district court is “free to weigh the evidence and satisfy itself 

... of its power to hear the case”) (citation omitted). 

ARGUMENT

I. Plaintiffs Lack Standing To Complain That Other Borrowers Are Receiving Relief

Standing is a jurisdictional requirement, and this Court “cannot proceed at all” unless plaintiffs 

establish the “irreducible constitutional minimum of standing,” Steel Co. v. Citizens for a Better Env’t, 523 

U.S. 83, 94, 102 (1998) (citation omitted), “for each form of relief sought,” DaimlerChrysler Corp., 547 

U.S. at 352 (citation omitted). Plaintiffs can only meet this burden by demonstrating 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). Here, Plaintiffs’ claimed injuries are based solely 

on the contention that they have been “deprived of a procedural right” to participate in notice-andcomment rulemaking in violation of the APA. See PI Br. at 11-12. Plaintiffs’ allegations fail to establish 

standing for several reasons.

First, Plaintiffs’ procedural notice-and-comment claim fails because the Secretary promulgated 

the challenged policy pursuant to his authority under the HEROES Act, which Congress expressly 

exempted from APA notice-and-comment procedures and the HEA’s negotiated rulemaking 

requirements. See 20 U.S.C. § 1098bb(b)(1), (d); 5 U.S.C. § 559 (subsequently passed statutes may 

modify APA requirements, if explicit). Therefore Plaintiffs have no procedural right “granted by 

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statute” to either notice-and-comment or negotiated rulemaking, Spokeo, Inc. v. Robins, 578 U.S. 330,

342 (2016), and the Secretary’s alleged failure to engage in the same cannot be a procedural violation 

that injured anyone. See TransUnion, LLC v. Ramirez, 141 S. Ct. 2190, 2200 (2021) (“No concrete harm, 

no standing.”). Plaintiffs cannot establish harm based on the inability to opine on an agency decision 

that Congress did not subject to public comment in the first place. None of the cases Plaintiffs cite 

for the proposition that standing can be based on a deprivation of the right to notice and comment 

involved such a clear-cut absence of such right as is the case here. Plaintiffs’ retort to § 1098bb(b)(1), 

(d) is simply that the HEROES Act does not apply, because it “does not authorize the Debt 

Forgiveness Program.” But that bootstrapping does not negate the fact that notice and comment was 

not required here under the plain terms of the HEROES Act (and the argument fails on its merits, as 

discussed infra.)

Second, even if notice-and-comment procedures applied, it is well established that Plaintiffs 

“cannot satisfy the demands of Article III by alleging a bare procedural violation.” Spokeo, Inc., 578 

U.S. at 342; see also, e.g., Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (“deprivation of a 

procedural right without some concrete interest that is affected by the deprivation—a procedural right 

in vacuo—is insufficient to create Article III standing”); City of Hearne v. Johnson, 929 F.3d 298, 301-02 

(5th Cir. 2019) (same); Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, 606-07 (5th Cir. 2018) (same). 

Rather, Plaintiffs must show not just the mere existence of a procedural violation (which is nonexistent here in any event), but also a concrete injury stemming from the procedural violation. See, e.g., 

Shrimpers & Fishermen of RGV v. Texas Comm’n on Env’t Quality, 968 F.3d 419, 426 (5th Cir. 2020) (noting 

that a plaintiff “can have standing to enforce procedural rights only if ‘the procedures in question are 

designed to protect some threatened concrete interest’ that is ‘the ultimate basis of his standing’” 

(quoting Lujan, 504 U.S. at 573 n.8 (1992))). 

This they cannot do. To the extent Plaintiffs claim any concrete injury from the Department’s 

policy—separate and apart from the contention that they wished to comment—it is that “Plaintiffs 

believe that their student loan debt should be forgiven too,” PI Br. at 12. They claim “economic 

injuries” because Ms. Brown allegedly will not receive any student loan debt forgiveness under the 

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policy and because Mr. Taylor allegedly will receive $10,000 in forgiveness rather than the $20,000 

available to Pell Grant recipients. Id. at 12-13. This claim of injury is highly suspect because elsewhere 

Plaintiffs argue vociferously that the very breadth of the loan forgiveness program makes it illegal. 

Plaintiffs do not explain how they are injured by their inability to submit a comment that would have 

apparently argued that a program they contend was too broad should have been expanded even further 

to benefit them.

But even if Plaintiffs’ allegations could be credited, they still would lack standing because their 

allegations of a procedural violation are not accompanied by any concrete harm flowing therefrom. 

Plaintiffs have no entitlement to any amount of loan forgiveness—as they elsewhere recognize, they 

are generally required to repay their federal student loan obligations except in such circumstances as 

the Department determines to relieve them of that obligation under authority granted by Congress, 

see, e.g., PI Br. at 4-5. Their entire case, then, reduces to unhappiness that some other borrowers are 

receiving a greater benefit than they are—i.e., a complaint about the terms on which the Department 

has determined to exercise its statutory authority to confer a discretionary benefit on other federal 

student loan borrowers who are not parties to this lawsuit. That is not a concrete injury. “As a general 

proposition, a plaintiff who complains merely that a benefit has been [unlawfully] granted to others is 

asserting only a ‘generalized grievance’ that does not allow the plaintiff standing to obtain judicial relief 

for the alleged wrong in federal court.” Henderson v. Stalder, 287 F.3d 374, 384 (5th Cir. 2002) (Jones, 

J., concurring). Plaintiffs may wish the Department had determined to provide them with the same 

relief that it determined, consistent with its HEROES Act authority, to grant other borrowers, but 

they have no legal entitlement to receive such relief and no concrete interest sufficient to challenge its 

provision to others.

Plaintiffs’ reliance on Texas v. EEOC, 933 F.3d 433 (5th Cir. 2019), is misplaced. That case

involved a challenge by the State of Texas to an agency guidance document that the Fifth Circuit 

determined “force[d] the plaintiff either to alter its conduct, or expose itself to potential liability.” Id. 

at 446. Critically, the court found that Texas was “the object of the Guidance and has suffered multiple 

injuries as a result,” including an “increased regulatory burden” and pressure, in its sovereign capacity, 

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to “change state law.” Id. at 446 (citations omitted). While noting that Texas had also adequately 

“established ... a procedural injury” based on its APA notice-and-comment claim, the court 

emphasized that the procedural violation “undercuts Texas’s concrete interest, as a sovereign state, in 

maintaining compliance with its laws.” Id. at 447. That type of concrete injury is missing here. Cf. Texas 

v. United States, 809 F.3d 134, 154-55 (5th Cir. 2015) (finding that Texas had standing to assert both 

substantive and procedural APA claims, after first finding that it was entitled to “‘special solicitude’ in 

the standing inquiry” in the particular circumstances of that case, because it “demonstrate[ed] that it 

would incur significant costs in issuing driver’s licenses”). 

Third, Plaintiffs cannot show that their purported injury will “likely ... be redressed by a 

favorable decision of the court.” Henderson, 287 F.3d at 381 (citation omitted). While Plaintiffs rely on 

case law suggesting that the burden of showing redressability may be “lighter when the plaintiff asserts 

deprivation of a procedural right,” EEOC, 933 F.3d at 447, they still must show that a favorable 

decision “will relieve a discrete injury to [themselves].” Dep’f of Texas, Veterans of Foreign Wars v. Texas 

Lottery Comm’n, 760 F.3d 427, 432 (5th Cir. 2014). As discussed above, the actual concrete injury they 

attempt (but fail) to establish is in not receiving discretionary loan relief. That injury cannot be 

redressed by the relief Plaintiffs seek, i.e., an order enjoining debt relief for tens of millions of lowerincome Americans. Compl. at 14. That would do nothing to remedy the alleged harm stemming from 

Plaintiffs’ belief that “their student loan debt should be forgiven too.” PI Br. at 12. Plaintiff Myra 

Brown would still have the same amount of debt, and Plaintiff Alexander Taylor would actually owe

$10,000 more in student loan debt than he would absent an injunction. Plaintiffs have no standing to 

seek judicial relief that would not redress their claimed injuries. See Henderson, 287 F.3d at 381 (finding 

lack of redressability where plaintiff’s requested remedy “would merely function to prevent other” 

individuals from receiving a benefit to which plaintiff claimed she was entitled). Indeed, the only way 

those injuries could be redressed, under Plaintiffs’ own theories, would be if the Department 

determined to award them loan relief pursuant to a different source of statutory authority. But the 

Court has no authority to provide that kind of redress, which Plaintiffs in any event are free to petition 

the Department at any time to grant, on a discretionary basis, without judicial intervention.

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Plaintiffs’ complaint should be dismissed for lack of standing because they simply have no 

concrete interest in forestalling debt relief for millions of Americans based on their own displeasure 

with the Secretary’s chosen parameters. 

II. Plaintiffs Cannot Show a Likelihood Of Success On The Merits

Not only do Plaintiffs lack standing for all the reasons set forth above, their sole count is 

meritless. Because the HEROES Act authorizes the Secretary to waive or modify relevant statutory 

and regulatory provisions without observing notice-and-comment procedures that might otherwise be 

required by the APA or HEA, and because the Secretary acted pursuant to the Act in granting the 

one-time discharge of student loan debts challenged here, Plaintiffs’ notice-and-comment claim fails, 

see Compl. ¶¶ 62–73; PI Br. at 13–22, and they have not established a likelihood of success sufficient 

to warrant the extraordinary remedy they seek. 

A. The HEROES Act Provides For An Expedited Process That Does Not Include 

Notice-and-Comment Procedures.

Plaintiffs challenge the one-time discharge of student-loan debts on only one ground: that the 

Secretary acted “without observance of procedure required by law,” in violation of the APA. Compl. 

at 14. But on October 12, 2022, the Secretary provided public notice of the waivers and modifications 

issued in order to implement the discharges. See 2022 Notice, 87 Fed. Reg. at 61,514. That notice 

satisfies the only procedural requirement imposed by the HEROES Act because, as discussed above, 

the HEROES Act applies in emergencies when the need to act is paramount; Congress thus expressly 

chose to exempt waivers and modifications under the Act from APA notice-and-comment procedures 

and the HEA’s negotiated rulemaking requirements. 20 U.S.C. § 1098bb(b)(1), (d). The Secretary has 

thus observed all the procedures required by law in this context, and Plaintiffs’ claim to additional 

processes contrary to the emergency procedures established by the HEROES Act is baseless.

As explained above, the HEROES Act authorizes the Secretary in appropriate circumstances 

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

programs under title IV of the Act.” 20 U.S.C. § 1098bb(a)(1). The Act also specifies the procedures 

required to exercise that authority: The Secretary “shall, by notice in the Federal Register, publish the 

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waivers or modifications,” “[n]otwithstanding” the rulemaking requirements of the APA and other 

general requirements for regulations issued under the HEA, including negotiated rulemaking. Id.

§ 1098bb(b)(1) (cross-referencing 20 U.S.C. § 1232 and 5 U.S.C. § 553), (d) (cross-referencing 20 

U.S.C. § 1098a). That plain language provides that the Secretary shall follow a streamlined emergency 

procedure when acting pursuant to the Act, not the notice-and-comment requirements that might 

apply in other contexts.

Plaintiffs do not appear to dispute this and instead quibble with Congress’s choice. They 

emphasize the virtues of notice-and-comment rulemaking, see Compl. ¶¶ 1–3, and survey the various 

circumstances under which the APA’s notice-and-comment requirements generally apply, PI Br. at 

13–14, but all of that is beside the point. Congress has determined here, as it has in other areas, see, 

e.g., 5 U.S.C. § 553(b)(A)–(B), that notice-and-comment procedures need not be followed for purposes 

of selecting and implementing necessary waivers and modifications under the HEROES Act. Cf. 5 

U.S.C. § 553(b)(B); § 559. Plaintiffs provide no basis for overriding that congressional determination, 

arguing instead that the HEROES Act simply “does not authorize the Debt Forgiveness Program.” 

Pls.’ Br. at 16. Because the Secretary acted pursuant to the HEROES Act, and because actions under 

that Act are expressly exempted from notice-and-comment rulemaking, Plaintiffs’ notice-andcomment claim fails on its face.

B. The HEROES Act Authorizes the Secretary’s Provision of Targeted Debt 

Relief.

Plaintiffs rest their notice-and-comment claim on the contention that the HEROES Act does 

not authorize the one-time student-loan debt discharge. As Plaintiffs see it, since the Secretary lacked 

authority under the HEROES Act, the Department should have proceeded through normal 

rulemaking procedures. But the HEROES Act does authorize limited debt discharges in connection 

with the COVID-19 pandemic, dooming Plaintiffs’ claim.2

2 To the extent that Plaintiffs seek relief on the ground that the Secretary exceeded his statutory 

authority under the HEROES Act, they have not properly pleaded such a claim, and their effort to 

shoehorn such a claim under a notice-and-comment umbrella fails. See 5 U.S.C. § 706(2)(C)–(D).

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1. The HEROES Act Authorizes the Secretary to Modify Provisions 

Regarding Loan Discharge.

In the HEROES Act, Congress gave the Secretary broad authority to waive or modify studentloan obligations in response to a national emergency. The Act provides that, “[n]otwithstanding any 

other provision of law, unless enacted with specific reference to” Section 1098bb, the Secretary may 

“waive or modify any statutory or regulatory provision applicable to” the federal student loan 

programs. 20 U.S.C. § 1098bb(a)(1) (emphasis added); see also 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))). Pursuant to that 

authority, the Secretary here has modified certain provisions that govern the discharge of student loan 

debts and the procedures for obtaining such discharges, see 2022 Notice at 61,514, an action that 

parallels earlier waivers and modifications made by the Secretary and his predecessor to implement 

the payment pause beginning in March 2020 and continuing today, see 2020 Notice at 79,857. Because 

none of those provisions contains a cross-reference to 20 U.S.C. § 1098bb, the Secretary may modify 

them under the circumstances specified by the Act. 

Plaintiffs disagree. See PI Br. at 19–20. In their view, “waive” and “modify” are “modest 

words” that do not permit the Secretary to “cancel student loan debt.” Id. But that view is difficult to 

square with the plain meaning of those words and impossible to reconcile with the surrounding 

statutory text authorizing waivers and modifications “[n]otwithstanding any other provision of law” 

save only for provisions “enacted with specific reference to this section.” 20 U.S.C. § 1098bb(a)(1); see 

also Modify, Black’s Law Dictionary (“modify” means “[t]o make somewhat different”); Waive, Black’s 

Law Dictionary (“waive” means to “to give up (a right or claim) voluntarily,” to “refrain from insisting 

on,” or “to forgo”). 

Moreover, in contending that the HEROES Act cannot authorize any limited cancellation of 

outstanding debt because doing so “does not place these individuals back in the same position in 

relation to their debt before the” relevant emergency but instead “places them in a better position 

(distinguishing between acts “in excess of statutory jurisdiction” and those taken “without 

observance of procedure required by law”).

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because their debts are gone,” PI Br. at 20, Plaintiffs advance an inappropriately crabbed reading of 

the statutory text. For one thing, Plaintiffs’ reading would permit relief only for individuals who are 

already delinquent on their loan payments, in default, or otherwise in a worse position with respect to 

their student loans. But limiting relief in this way would be inconsistent with the proactive and 

prospective language of the Act, which authorizes the Secretary “to ensure that ... affected individuals 

are not placed in a worse position financially in relation to [their] financial assistance because of their 

status as affected individuals.” 20 U.S.C. § 1098bb(a)(2) (emphasis added). That language authorizes 

the Secretary to protect affected individuals whose financial situation would deteriorate in the 

foreseeable future without regulatory action—not just individuals whose financial situation has already 

collapsed. See Ensure, MerriamWebster’s Dictionary, https://www.merriamwebster.com/dictionary/ensure (defining “ensure” as meaning “to make ... certain” or “guarantee”).

Nothing in the HEROES Act supports Plaintiffs’ contention that relief is allowed only if each 

affected individual would otherwise be worse off with respect to their student-loan obligations than 

before the relevant emergency. The Act contains no least-restrictive-means requirement, and instead

authorizes the Secretary to provide such relief “as may be necessary to ensure” that the Act’s objectives 

are achieved, 20 U.S.C. § 1098bb(a)(2), without any obligation to make case-by-case determinations,

see id. § 1098bb(b)(3). By its very nature, the type of categorical relief Congress authorized anticipates 

that not every member of an affected group may be worse off with respect to their student loans

absent relief. It is sufficient that the Secretary determines, as he has done here, that relief is necessary 

to ensure that the group of affected individuals do not suffer a deterioration in their financial position 

with respect to their loans. As such, the relief awarded by the Secretary here—as with past exercises 

of HEROES Act authority to pause payments, lower interest rates, and count months of non-payment 

toward loan forgiveness programs during the COVID-19 pandemic—is fully consistent with the text 

and purposes of the HEROES Act. 

Plaintiffs’ argument also ignores the Secretary’s reasons for acting here. In setting the income 

caps for loan discharges under the HEROES Act, the Secretary relied upon data that shows affected 

individuals often become worse off in relation to their student loans after a period of forbearance 

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imposed during an emergency. See Supporting Analysis at 2. Indeed, an analysis of the Department’s 

data following recent disasters showed that the rate of borrower defaults following forbearance 

increased over 21-fold. See id. Given those findings, and in light of his authority to act as to broad 

groups of borrowers without conducting a case-by-case analysis, see 20 U.S.C. § 1098bb(b)(3), the 

Secretary acted reasonably to provide debt discharge in addition to the payment pause, in order to 

ensure that affected individuals with the lowest incomes will not become worse off in relation to their 

student-loan obligations due to the pandemic once those loans enter repayment. 

2. The Loan Discharges Apply to a Proper Subset of Affected Borrowers.

The HEROES Act also authorizes the Secretary to provide relief to the group of borrowers 

at issue here: federal student loan borrowers who have been affected by the COVID-19 pandemic and 

who, after the pandemic-induced payment pause ends, will be at highest risk of delinquency and 

default. The Secretary reasonably concluded that, given the profound depth and sweep of the COVID19 pandemic, and “because the Federal Government has declared every State, the District of 

Columbia, and all five permanently populated United States territories to be disaster areas due to 

COVID-19,” 2022 Notice at 61,513, any borrower who “resides or is employed in” one of those areas 

falls within the HEROES Act’s definition of an “affected individual,” 20 U.S.C. § 1098ee(2). The 

Secretary also reasonably concluded that borrowers qualify as “affected individual[s]” on the 

independent ground that they have “suffered direct economic hardship as a direct result of” the 

pandemic. Id. § 1098ee(2)(D) (providing that a finding of direct economic hardship from a national 

emergency is to be “determined by the Secretary”); see also 2022 Notice at 61,513 (making this 

determination). Indeed, as confirmed by the President’s latest continuation of the national emergency 

concerning COVID-19, see 87 Fed. Reg. 10,289 (Feb. 18, 2022), the pandemic is an ongoing national 

emergency that, after more than two years, has left no aspect of daily life untouched.

Given that all parts of the United States have been declared to be disaster areas due to the 

COVID-19 pandemic, the President’s proclamation that the pandemic constitutes a national 

emergency, and the well-established, widespread economic hardship stemming from that emergency, 

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the Secretary reasonably determined that all borrowers of federal student loans qualify as “affected 

individuals.” See 2022 Notice at 61,513 (“[T]he ‘affected individuals’ for purposes of the waivers and 

modifications described in this document include any person with a Federal student loan under title 

IV of the HEA”). That determination is as appropriate now as every time the Secretary and his 

predecessor have invoked HEROES Act authority during the pandemic (including in providing the 

payment pauses that Plaintiffs do not challenge here). See, e.g., 2020 Notice at 79,857 (“An ‘affected 

borrower’ is one whose Federal student loans provided under title IV are in repayment.”).

At the same time, however, the Secretary has not granted loan discharges to all borrowers who 

qualify as “affected individuals” under the HEROES Act. Rather, the action that Plaintiffs challenge 

is much more tailored: The Secretary has limited discharges to loans held by a subgroup of affected 

individuals—those found to be at highest risk of delinquency and default on student loan obligations 

after the current payment pause ends. And he has done so only after finding such modifications 

“necessary to ensure that” members of that subgroup do not emerge from the pandemic “in a worse 

position financially with respect to their student loans because of” it. See 2022 Notice at 61,513; see also 

Decision Memo at 1; 20 U.S.C. § 1098bb(a)(2). That judgment was informed by a careful study of the 

Department’s past experience in roughly analogous circumstances, of administrative data collected by 

the Department, and of other research published by federal agencies and independent experts in the 

areas of consumer debt and student financial aid. See generally Supporting Analysis. And it falls squarely 

within the letter and spirit of the HEROES Act.

Nevertheless, Plaintiffs contend that the Secretary has authorized relief for too broad a group 

of borrowers, complaining that “individuals who were living abroad during the pandemic are eligible 

for debt forgiveness,” and that the Secretary “did not establish that those receiving debt cancellation 

‘suffered direct economic hardship as a direct result of’” the pandemic. PI Br. at 21. These complaints 

are difficult to square with Plaintiffs’ theory of injury—that the debt relief was not broad enough because 

it did not encompass Ms. Brown’s commercially held loans and did not extend the fullest measure of 

relief to Mr. Taylor. Moreover, the HEROES Act does not require perfect tailoring. Indeed, Congress 

anticipated—and rejected—Plaintiffs’ overbreadth objections, expressly providing that “[t]he 

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Secretary is not required to exercise the waiver or modification authority [provided by the Act] on a 

case-by-case basis.” 20 U.S.C. § 1098bb(b)(3). By authorizing the Secretary to utilize categorical rules, 

Congress accepted that there would be some degree of imprecision in the allocation of relief. See 

Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 39 (2011). And so the fact that relief may not be 

“necessary” for every single recipient does not undermine the Secretary’s decision, or suggest that his 

exercise of discretion was not guided by the ends enumerated in Section 1098bb(a)(2). To the contrary, 

by limiting the availability of loan discharges to particular amounts and to a defined subgroup of 

affected, at-risk borrowers for which further relief is necessary, the Secretary has exercised his 

congressionally granted discretion in a manner tailored to vindicate Congress’s purposes. And even if 

the Secretary’s action applies too broadly, that would not justify enjoining debt relief as to all recipients.

3. The Secretary Reasonably Determined That a Measure of Discharge 

Was Needed to Reduce Delinquency and Default Risk Among LowerIncome Borrowers.

It was also reasonable for the Secretary to determine that, in addition to other pandemicrelated relief, the specific targeted loan discharges at issue here “may be necessary to ensure that” 

borrowers in the lowest income sets of affected individuals “are not placed in a worse position 

financially in relation to” their federal student loans “because of their status as affected individuals.” 

Decision Memo; see also 20 U.S.C. § 1098bb(a)(2)(A). That judgment was informed by a careful study 

of the Department’s past experience in roughly analogous circumstances, of administrative data 

collected by the Department, and of other research published by federal agencies and independent 

experts in the areas of consumer debt and student financial aid. See generally Supporting Analysis.

The Secretary considered evidence that borrowers face a heightened risk of delinquency and 

default as their loans are placed back into repayment following long periods of forbearance, and that 

this risk is particularly acute with respect to lower-income borrowers and Pell Grant recipients. Id. at 

2. The Department has found that, historically, when borrowers affected by natural disasters have 

received payment pauses similar to the one currently in effect due to the COVID-19 pandemic, those 

borrowers’ transitions back into repayment have been correlated with “documented spikes in student 

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loan defaults.” Id. In particular, recent administrative data compiled following Hurricanes Maria, 

Harvey, and Irma and the northern California wildfires in late 2017 showed that borrowers involved 

in those disasters who had received a payment pause like the one provided during the COVID-19 

pandemic were over 21 times more likely to default on their repayment obligations in the calendar 

year following the end of that forbearance than they had been in the calendar year before the regional 

disaster was declared. Id. The data also revealed that Pell Grant recipients were especially vulnerable 

following the end of forbearance. Id. 

The Secretary also considered evidence concerning the current economic conditions facing 

borrowers as they prepare to enter repayment at the end of the year. Id. That evidence included survey 

data showing that higher percentages of lower-income borrowers expect to have greater difficulty 

making full payments after the pandemic than they had before it. Id. And though self-reported, those 

expectations were supported by the research findings of other government agencies. For example, 

researchers at the Consumer Financial Protection Bureau found that, even as most student loans have 

remained in forbearance throughout the pandemic and many borrowers have benefited from other 

pandemic-related economic support, delinquency on non-student loan debt among student loan 

borrowers has already returned to pre-pandemic levels. Id. at 3. Similarly, after comparing credit report 

data for student loan borrowers subject to the payment pause and those whose loans remained in 

repayment, researchers at the Federal Reserve Bank of New York concluded that, absent additional 

relief alongside the end of the payment pause, borrowers will likely experience delinquencies on federal 

student loan debt at higher levels than before the pandemic. Id. Finally, the Secretary evaluated 

evidence that recent pandemic-induced inflationary pressures have diminished the financial well-being 

of many households, particularly those with lower incomes. Id. Based on all the evidence presented to 

him, the Secretary reasonably found that, absent action to reduce the threat of delinquency and default, 

student loan borrowers at lower income levels face serious risks that, as they exit the pandemic and 

their loans go back into repayment, they will promptly be placed in a worse financial position with 

respect to their student loans—i.e., face an immediate risk of delinquency of default that did not exist 

prior to the pandemic—than they would have been in the absence of the COVID-19 pandemic. Id. 

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In light of this, the Secretary reasonably concluded that discharging a limited measure of 

student loan debt for affected borrowers would mitigate the heightened risk of delinquency and 

default. The evidence reviewed by the Secretary revealed that targeted discharges would reduce 

borrowers’ total liabilities and monthly payment burdens, contributing to increased rates of repayment 

success and to greater overall financial well-being. Id. at 4. And an analysis of the Department’s 

administrative data showed that the specific proposal presented to the Secretary—providing a 

maximum benefit of $10,000 to borrowers below the individual and household income caps of 

$125,000 and $250,000, and a maximum of $20,000 to borrowers below those caps who previously 

received a Pell Grant—would be sufficient to reduce the median borrowers’ monthly payments by 

38%, permitting many of the most vulnerable borrowers to enter repayment with significantly reduced 

monthly payments. Id. at 6. The evidence before the Secretary supported his determination that setting 

certain discharge amounts would address the risk of heightened delinquency and default rates facing 

affected borrowers as a result of the pandemic. Id. 

The Secretary’s chosen income eligibility levels are supported by other considerations. As the 

Secretary recognized, “not all borrowers are equally at risk of” delinquency and default. Id. In 

particular, in the year before the pandemic, incomes above the $125,000 individual income cutoff that 

the Secretary adopted were correlated with a substantial reduction in the rate of inconsistent payments 

reported by borrowers as compared to incomes below the cutoff. Id. Reinforcing the reasonability of 

the Secretary’s chosen cutoff, data considered by the Secretary shows that borrowers in the $100,000–

$125,000 income bracket also experienced greater difficulty before the pandemic in repaying loans 

than did borrowers with incomes above $125,000. Id. at 9. Borrowers with incomes below $125,000 

were substantially more likely to report financial insecurity, to have experienced a period of 

unemployment, to have suffered educational harms during the pandemic, and to otherwise have been

disproportionately impacted over the course of the pandemic. Id. And as to Pell recipients, who are 

disproportionately low-income, generally come from families without significant wealth or resources, 

and already face substantially higher risks of default and delinquency than other student loan 

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borrowers, the Secretary’s selection of the $125,000 cutoff was even more clearly supported: At that 

income level, 99% of Pell recipients would qualify for relief. Id. at 11.

In view of this substantial evidence that additional relief is needed to ensure that the most 

vulnerable subset of borrowers currently receiving the benefit of the payment pause are not at 

substantial risk of becoming delinquent or defaulting on their loan obligations when payments resume, 

the Secretary reasonably concluded that it was necessary and appropriate to order a limited, one-time 

discharge of student loan debt for those borrowers.

None of Plaintiffs’ arguments undermine this conclusion. In criticizing the Secretary’s 

determination of necessity, Plaintiffs again rely on the benefits of the payment pause. See PI Br. at 21. 

But as discussed above, data reviewed by the Secretary showed that many borrowers, particularly those 

earning individual incomes below $125,000, continue to be in more-precarious financial straits than 

they had been in before the pandemic, notwithstanding the ongoing payment pause. See Supporting 

Analysis at 6–12. And the data also showed that, without further action, substantial numbers of those 

borrowers would likely fall into delinquency or default when payments restart at the conclusion of the 

pandemic, wiping out the significant benefits of the payment pause for those borrowers. See id. at 2. 

Because that would leave many borrowers in a worse position with respect to their financial assistance 

following the pandemic, the Secretary reasonably determined that it was necessary to adopt additional 

measures, including limited loan discharges, that would smooth the transition into repayment for many 

lower-income individuals and families. And while Plaintiffs disparage the amount of debt cancellation 

as “arbitrary,” with “no ‘relation to’” any particular individual’s amount of debt, PI Br. at 21, they do 

not grapple with the Secretary’s findings that borrowers with incomes below $125,000, as a group, and 

borrowers who received Pell grants, as a group, face heightened risks of difficulty in repaying their 

student loans. Indeed, as the Department’s analysis demonstrates, the Secretary chose a reasonable 

measure of debt relief in order to ensure that those currently benefiting from the payment pause would 

not suffer financial harm when payments resume.

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C. The Major Questions Doctrine Does Not Undermine the Clear Statutory 

Authorization Provided by the HEROES Act.

Perhaps recognizing that their argument finds no basis in the text of the HEROES Act, 

Plaintiffs invoke the major questions doctrine. See PI Br. at 17–19.

3 In a few extraordinary cases, the 

Supreme Court has required “clear congressional authorization” for sweeping agency action where, 

“under more ‘ordinary’ circumstances,” a “merely plausible textual basis” for that action might suffice 

under standard principles of statutory interpretation. West Virginia v. EPA, 142 S. Ct. 2587, 2609 

(2022); see also Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021) (“We expect Congress to 

speak clearly when authorizing an agency to exercise powers of ‘vast economic and political 

significance.’”) (citation omitted). This is not such an extraordinary case.

That is not to deny that this is a case of economic and political significance, cf. PI Br. at 17–

18; many cases challenging national policies are. But not every agency action of economic and political 

significance triggers the doctrine. Rather, the hallmark of a “major questions case” is a marked 

incongruence between the agency action at issue and the history, purpose, or context of the statute 

that purportedly authorizes it. Thus, the Supreme Court has invalidated agency action that advanced 

“novel reading[s]” of longstanding statutes, West Virginia, 142 S. Ct. at 2605, in order to claim 

“extravagant statutory power over the national economy,” id. at 2609, and made “decisions of vast 

economic and political significance,” id. at 2605 (citation omitted), without firm indication that 

Congress intended to grant that authority. See also Utility Air, 573 U.S. at 324 (requiring clear 

congressional authorization “[w]hen an agency claims to discover in a long-extant statute an 

unheralded power to regulate ‘a significant portion of the American economy,’” and the challenged 

action would “bring about an enormous and transformative expansion in ... regulatory authority”). 

This case bears none of these features. For one thing, the Secretary’s action is consistent with 

and proportional to the clearly apparent purposes of the HEROES Act. The Act’s central provision, 

Section 1098bb, is all about getting student-loan-related relief to affected borrowers in “response to 

3 Plaintiffs’ reliance on the major questions doctrine conflicts with their purported desire to urge the 

Secretary to expand the debt-relief program’s parameters. Plaintiffs’ major-questions arguments would 

appear to apply with equal force had the Secretary acted under any statutory authority available to him, 

not just the HEROES Act.

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military contingencies and national emergencies.” 20 U.S.C. § 1098bb. It is unsurprising, then, that the 

Secretary relied on that provision to grant relief to federal student loan borrowers facing harm from 

the COVID-19 pandemic. See Decision Memo at 1. For another, this case involves the disbursement 

of a federal benefit to individuals, not the kind of expansive regulation of private parties that has 

previously triggered the doctrine. Cf. Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (regulating landlords 

across at least 80% of the country). And it should come as no shock that the relief that the Secretary 

has ordered under the Act is substantial. The scope of the Secretary’s action matches the scope of the 

COVID-19 emergency, and if it is 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 different understanding of the reach

of the HEROES Act during its first 19 years of existence. See Missouri v. Biden, 142 S. Ct. 647, 653 

(2022) (upholding agency action that went “further than what the Secretary has done in the past” to 

achieve statutory objective, in part because the agency “never had to address an infection problem of 

[the] scale and scope [of COVID-19] before”). 

Moreover, there is nothing “cryptic,” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 

160 (2000), or “ancillary,” West Virginia, 142 S. Ct. at 2605, about the Act’s provisions, which operate 

together, through unambiguous language, to give the Secretary maximum flexibility to prevent affected 

borrowers from suffering financially with respect to their financial assistance as a result of an 

emergency. See, e.g., 20 U.S.C. § 1098bb(a)(1) (providing waiver and modification authority 

“[n]otwithstanding any other provision of law, unless enacted with specific reference to this section”); 

id. §§ 1098bb(b)(1), (d) (waiving certain procedural requirements); id. § 1098bb(b)(3) (clarifying that 

the Secretary need not exercise waiver or modification authority “on a case-by-case basis”). Moreover, 

prior student-debt relief measures provided under the Act, particularly the payment pause, were 

among the first interventions made following the March 2020 outbreak of the novel coronavirus, and 

their legality has never been questioned.

All of that distinguishes this case from West Virginia. The Court found there that the agency 

action at issue involved the use of what the Court described as a “little-used backwater” provision of 

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the Clean Air Act to impose a 10% energy rate hike, permanently shut down many power plants, inflict 

a $1 trillion loss to GDP, and require a complete reorganization of American energy infrastructure. 

142 S. Ct. at 2604, 2613. In that context, the Court concluded that some “skepticism” of the agency’s 

position might have been warranted. Id. at 2614. But nothing of the sort is justified here, where the 

Secretary has granted a limited measure of debt relief to certain borrowers affected by the COVID-19 

pandemic pursuant to the central provision of a statute whose purpose is the provision of substantial 

loan-related relief to borrowers during a war or national emergency.

Sometimes, the Supreme Court also looks to whether the challenged action is within the 

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

West Virginia, 142 S. Ct. 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.”) (internal 

quotation omitted). Here again, this factor shows that the doctrine does not apply. The Secretary of 

Education is 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 the 

Secretary’s action is limited to providing relief within the confines of the programs he administers—

he has not purported to use HEROES Act authority in a manner that would expand the jurisdiction 

of his Department. This too distinguishes this case from major questions cases where agencies 

exercised authority in unaccustomed areas. See, e.g., Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (“The 

moratorium intrudes into an area that is the particular domain of state law: the landlord- tenant 

relationship.”); Brown & Williamson, 529 U.S. at 159-60 (“Congress has ... squarely rejected proposals 

to give the FDA jurisdiction over tobacco.”). 

Finally, the Secretary’s use of HEROES Act authority to discharge some measure of student 

loan debt in appropriate cases cannot fairly be characterized as an “unheralded power,” PI Br. at 18, 

or a delegation that Congress “never could have fathomed,” id. at 19. Congress has vested the Secretary 

with extensive authority to reduce or eliminate borrowers’ debt obligations under the federal student 

loan programs. This authority, which dates back nearly six decades to the enactment of the HEA in 

1965, is foundational to the Secretary’s power to administer the federal student loan programs. The 

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statute granted the Secretary the fundamental legal power to “compromise, waive, or release” any 

“right, title, claim, lien, or demand” acquired in the Secretary’s performance of his vested “functions, 

powers, and duties” to administer federal student loans. 20 U.S.C. § 1082(a)(6); see also, e.g., id. § 

1087dd(g)(1). Pursuant to this broad authority, the Secretary regularly “releases” student loan debts 

owed to the Department by federal student loan borrowers on terms that he determines, and he may 

do so at substantial amounts. See 34 C.F.R. § 30.70 (a)(2); id. Part 682, App. D (waiving right to refuse 

to pay claims to guaranty agencies and lenders where they violated certain regulations and would not

qualify for payment); Education Department Approves $5.8 Billion Group Discharge to Cancel all Remaining 

Loans for 560,000 Borrowers Who Attended Corinthian (June 1, 2022), https://perma.cc/MTW6-XABV; 

Secretary DeVos Cancels Student Loans, Resets Pell Eligibility, and Extends Closed School Discharge Period for 

Students Impacted by Dream Center School Closures (Nov. 8, 2019), https://perma.cc/FRT6-WAWS. That 

Congress long ago granted the Secretary this discharge authority, together with the unambiguous 

language of the HEROES Act, undermines Plaintiffs’ claim that Congress withheld authority to 

modify loan discharge provisions under the HEROES Act. See PI Br. at 19.4

In any event, the text of the HEROES Act shows that Congress anticipated that the Secretary

might have to use his authority broadly. 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 

4 In suggesting that Congress cannot have intended to delegate broad-based authority to discharge 

loans under the HEROES Act, Plaintiffs point to the failure of certain legislative proposals involving 

loan forgiveness. See PI Br. at 18. But the failure of those proposals, which would have offered greater 

amounts of forgiveness to different groups of borrowers, says nothing about whether the Secretary’s 

action here was authorized. 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)). If anything, recent legislation introduced to amend the 

HEROES Act to prevent loan discharges would seem to show that at least some understand the Act 

to permit such relief currently. See, e.g., S. 4094, 117th Cong. § 4(d)(1) (introduced Apr. 27, 2022) 

(proposing amendment 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 COVID-19 national emergency or any other national emergency”); H.R. 

7656, § 4(d)(1) (introduced May 3, 2022) (same); see also H.R. 7058, 117th Cong. 27, 2022) (proposing 

amendment stating “[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 COVID-19 national emergency or any other national emergency”).

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

terms,’ or ‘subtle devices.’” West Virginia, 142 S. Ct. at 2609 (citation omitted). Indeed, it would have 

been hard for Congress to more clearly express its intent to provide the Secretary, during a national 

emergency, with maximum flexibility to provide appropriate relief to student loan borrowers facing 

extraordinary and unforeseen circumstances. If there could have been any question whether Congress 

in fact meant to empower the Secretary to waive or modify any statutory or regulatory 

provision applicable to federal student loan programs, Congress eliminated all doubt by granting that 

authority “[n]otwithstanding any other provision of law, unless enacted with specific reference to” the 

HEROES Act. 20 U.S.C. § 1098bb(a)(1). And it cannot be said that Congress could not have foreseen 

that the Secretary might discharge student loans under the HEROES Act: In apparent anticipation of 

that outcome, it created a “Special Rule for Discharges in 2021 Through 2025,” making student loan 

discharges tax-free in pandemic-related relief legislation. See American Rescue Plan Act of 2021, Pub. 

L. No. 117-2 § 9675, codified at 26 U.S.C. § 108.

The analysis of an agency’s statutory authority “begins with the statutory text”—and, when 

the text is clear, it “ends there as well.” Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 631 (2018)

(citation omitted). Courts may not “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). 

Because the Secretary here can point to “‘clear congressional authorization’ for the power [he] claims,” 

his exercise of that authority survives whatever degree of “skepticism” may be counseled by the major 

questions doctrine. West Virginia, 142 S. Ct. at 2609.

III. Plaintiffs Have Failed to Establish Any Legally Cognizable Interest, Let Alone 

Irreparable Harm.

As demonstrated above, Plaintiffs suffer no harm whatsoever when other borrowers receive a 

targeted measure of debt relief—a conclusion unchanged by Plaintiffs’ strategic choice to repackage 

their challenge to the Secretary’s statutory authority as a purported procedural violation. In any event, 

Plaintiffs’ insistence that they will suffer irreparable harm as soon as loan discharges begin is baseless. 

“Injunctive relief is an extraordinary and drastic remedy, not to be granted routinely, but only when 

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the movant, by a clear showing, carries the burden of persuasion.” Holland Am. Ins. Co. v. Succession of 

Roy, 777 F.2d 992, 997 (5th Cir. 1985). “The key word in this consideration is irreparable ... The 

possibility that adequate compensatory or other corrective relief will be available at a later date, in the 

ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 

415 U.S. 61, 90 (1974). 

First and foremost, Plaintiffs’ reliance on a purported procedural violation, standing alone, 

cannot carry their burden because they have failed to submit “sufficient evidence of ... injury” flowing 

from a violation and because an “unproven procedural violation cannot establish irreparable harm.” 

Optimus Steel, LLC v. U.S. Army Corps of Engr’s, 492 F. Supp. 3d 701, 726 (E.D. Tex. 2020). Because 

Plaintiffs cannot show any procedural violation (since Congress explicitly chose not to subject actions 

taken under the HEROES Act to notice and comment), Plaintiffs cannot show irreparable harm. 

Furthermore, even if targeted debt cancellation were subject to the APA’s notice-and-comment process 

and even if Plaintiffs could show some concrete injury flowing from their inability to comment in 

advance, any such harm still would not be irreparable because the Secretary could simply call for notice 

and comment on the parameters of debt relief at a later time. That would fully address any injury 

Plaintiffs might claim to have suffered, even if other individuals’ loans had been forgiven in the 

interim. And an injunction against other individuals receiving debt relief would do nothing to redress 

any injury Plaintiffs might claim to have suffered by not receiving relief.

In other words, Plaintiffs’ complaints that the program “will provide only ‘one-time’ debt 

cancellation,” PI Br. at 23, are meaningless because nothing would prevent the Secretary from 

subjecting the parameters of the program to notice and comment if ordered to do so, or from 

broadening the scope of the program as Plaintiffs purportedly would prefer if that action were 

appropriate and supported by the administrative record. But that possibility surely cannot justify an 

injunction against others receiving debt relief when Plaintiffs claim to prefer that the program be 

broadened to include them. Even if Plaintiffs could establish any legally cognizable harm by their loans 

falling outside the full scope of this particular exercise of discretionary debt relief—and they assuredly 

cannot, since there is no entitlement to loan forgiveness—that still would not support an injunction 

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here, since the scope of debt forgiveness could be expanded to encompass additional borrowers, and 

“[a]n injury is ‘irreparable’ only if it cannot be undone through monetary remedies.” N.E. Fl. Chapter 

of Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990). What

Plaintiffs claim to be seeking here is plainly a form of “monetary remedies” (i.e., additional debt 

forgiveness), which is per se not irreparable. After all, if supported by appropriate factual 

circumstances, the Secretary could initiate (or Plaintiffs could petition for the Secretary to undertake) 

a different debt-forgiveness rulemaking, which establishes that enjoining this invocation of HEROES 

Act authority doesn’t redress any irreparable injury. 

The fact that neither named Plaintiff can demonstrate irreparable injury is a sufficient basis on 

which to deny Plaintiffs’ emergency motions. This Court should decline to forestall important debt 

relief for millions of needy Americans based on nothing more than two individuals’ envious 

dissatisfaction with the program’s reach.

IV. The Balance of the Equities and Public Interest Weigh Against Injunctive Relief.

The balance of the equities and the public interest—factors that merge when the government 

is the opposing party—weigh strongly in the Government’s favor. See Nken v. Holder, 556 U.S. 418, 

435 (2009). In times of national emergencies, Congress determined that it is in the public interest for 

the Secretary to act swiftly and without notice-and-comment rulemaking to protect student loan 

borrowers, and Plaintiffs have no countervailing interest in altering Congress’s decision.

The Secretary’s decision to help millions of student loan borrowers smoothly exit the COVID19 pandemic pause and to guard against the associated concrete and imminent risks of default and 

delinquency is in the public interest. It also reflects Congress’s judgment that the Secretary should be 

able to react nimbly to protect student loan borrowers in times of national emergency. See 20 U.S.C. 

§ 1098bb(a)-(b), (d) (enabling the Secretary to “waive or modify” any federal student loan provision 

without notice-and-comment rulemaking or case-by-case determinations); see also Golden Gate Rest. 

Ass’n v. City & Cnty. of San Francisco, 512 F.3d 1112, 1126-27 (9th Cir. 2008) (concluding that “our 

consideration of the public interest is constrained in this case, for ... responsible public officials ...

have already considered that interest”); Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008) (“There 

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is inherent harm to an agency in preventing it from enforcing regulations that Congress found it in 

the public interest to direct that agency develop.”).

Moreover, while Plaintiffs may wish to benefit more fully from the Secretary’s debt relief 

program, their desire should not tip the scales against the millions of remaining student loan 

borrowers, who, economic researchers and the Secretary conclude, will be at increased risk of default 

on their student loans when repayment restarts. Some of the most prominent consequences of such 

default include wage garnishment, credit report damage, and the withholding of federal benefits. FSA, 

Student Loan Delinquency and Default, https://perma.cc/9T5Y-7Q9L.5 Accordingly, the Secretary 

concluded that aiding these specific borrowers is in the public interest, and Congress, through the 

HEROES Act, concluded it is in the public interest to move swiftly towards that goal, without noticeand-comment rulemaking. A preliminary injunction enjoining the Secretary from doing so harms the 

public interests identified by the Secretary and by Congress.

V. Any Relief Should Be Appropriately Limited.

If the Court were to disagree with Defendants’ arguments, any relief ordered should be no 

broader than necessary to remedy any demonstrated irreparable harm to the two Plaintiffs in this 

action. “A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury,” Gill v. Whitford, 

138 S. Ct. 1916, 1934 (2018), and “injunctive relief should be no more burdensome to the defendant 

than necessary to provide complete relief to the plaintiffs,” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 

753, 765 (1994) (citation omitted). Plaintiffs’ requested nationwide relief is inconsistent with this 

principle and inappropriate here. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., 

concurring) (noting that nationwide injunctions “take a toll on the federal court system—preventing 

legal questions from percolating through the federal courts, encouraging forum shopping, and making 

every case a national emergency for the courts and for the Executive Branch”); Georgia v. President of 

the United States, 46 F.4th 1283, 1303 (11th Cir. 2022) (noting “nationwide injunctions push against the 

boundaries of judicial power, and very often impede the proper functioning of our federal court 

5 Plaintiffs do not attempt to argue that their financial interests outweigh those of the borrowers.

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system”). Because the challenged policy here is “an issue of great significance currently being litigated” 

in other district courts across the country, the Court should “limit[] the scope of [any] injunction” to 

award relief only to a Plaintiff in this case who is able to demonstrate irreparable harm. See Louisiana 

v. Becerra, 20 F.4th 260, 264 (5th Cir. 2021) (narrowing nationwide injunction entered by district court).

CONCLUSION

For the reasons stated herein, this Court should deny Plaintiffs’ request for extraordinary 

relief and dismiss this case for lack of standing.

Dated: October 19, 2022 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General 

MARCIA BERMAN

Assistant Branch Director

/s/ Kate Talmor 

KATE TALMOR (Md. Bar)

R. CHARLIE MERRITT

CODY T. KNAPP

SAMUEL REBO

Trial Attorneys

U.S. Department of Justice

Civil Division, Federal Programs Branch

1100 L Street NW

Washington, DC 20005

(202) 305-5267

kate.talmor@usdoj.gov

Counsel for Defendants

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CERTIFICATE OF SERVICE

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

will be accomplished through filing on the public docket. 

/s/ Kate Talmor 

KATE TALMOR (Md. Bar)

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