1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ASCENDIUM EDUCATION SOLUTIONS, 

INC.,

Plaintiff,

v. Civil Action No. 1:19-cv-03831 (CJN)

MIGUEL CARDONA, Secretary of 

Education, et al.,

Defendants.

MEMORANDUM OPINION

This case concerns the validity of a federal rule that restricts the holders of defaulted 

student loans from recouping certain collection costs from borrowers. Defendants have moved to 

dismiss, see ECF No. 10, and Plaintiff has moved for summary judgment, see ECF No. 13. For 

the reasons discussed below, the Court grants in part and denies in part both motions. 

I. Background

FFEL Program and Guaranty Agencies

The Federal Family Education Loan Program was designed to incentivize lending to 

postsecondary students and their parents who had a lack of collateral or poor credit history.1

Private and public lenders made loans to students or their parents who had low incomes or poor 

credit histories and would otherwise be priced out of student loans. See 20 U.S.C. § 1078. Instead 

of those loans undergoing a typical underwriting process, the Program authorized certain nonprofit

1 The FFEL program has been discontinued for new loans since 2010. See 20 U.S.C. 

§ 1071(d).
2

entities—so-called “guaranty agencies”—to insure the lenders against the risk of default. The 

Department of Education, in turn, reinsured the guaranty agencies. See 20 U.S.C. § 1078; Compl. 

¶ 19.

Guaranty agencies are state or private nonprofit institutions that entered into agreements 

with the Department to serve as the intermediate guarantors. 20 U.S.C. § 1078(j). Guaranty 

agencies often have independent educational missions, but under the FFEL Program their role is 

to partner with the federal government to administer the Program, not to profit from their 

administration of the program. See Ohio Student Loan Com’n v. Cavazos, 900 F.2d 894, 899 (6th 

Cir. 1990).

At issue in this case are the activities that guaranty agencies are required or are permitted 

to engage in when a loan made under the FFEL Program enters default. A loan enters default 

when the borrower fails to make a required payment for 270 days. 20 U.S.C. § 1085(l). At that 

point, the guaranty agency is required to purchase the loan from the lender, assuming that the 

lender has satisfied its own various statutory and regulatory obligations. 20 U.S.C. § 1078(c); 34 

C.F.R. § 682.406(a). Thereafter, the guaranty agency must engage in a number of activities to 

attempt to collect on the loan, such as notifying the borrower of the debt, offering loan repayment 

plans, and, at times, reporting the default to credit agencies and commencing litigation. See, e.g., 

20 U.S.C. §§ 1078(c)(2)(A), (G); 34 C.F.R. § 682.410(b)(6). A guaranty agency’s collection 

activities must be “at least as extensive and forceful as those generally practiced by financial 

institutions for the collection of consumer loans.” 20 U.S.C. § 1085(f). If the guaranty agency is 

ultimately unable to recover money from the borrower, the government reimburses the guaranty 

agency for paying the lender’s default claim. 20 U.S.C. § 1078(c)(1)(A); 34 C.F.R. § 682.406.
3

Collection Activities

As noted above, a guaranty agency is required to engage in various activities to collect on 

a defaulted loan that it has purchased from a lender. See, e.g., 34 C.F.R. § 682.410(b)(6)(i). In 

particular, within 45 days of paying a lender’s default claim, “but before it . . . assesses collection 

costs against a borrower,” id. § 682.410(b)(5)(ii), the guaranty agency must, inter alia, send the 

borrower a written notice stating that the guaranty agency has paid the default claim and that the 

borrower may request access to the guarantor’s records; may seek administrative review of the 

legal enforceability or past due status of the loan; and may “enter into a repayment agreement on 

terms satisfactory to the agency,” id. §§ 682.410(b)(5)(ii)(A)–(D). The guaranty agency must 

allow the borrower “at least 60 days from the date the notice . . . is sent” to exercise these options. 

Id. § 682.410(b)(5)(iv)(B). 

The guaranty agency is also required to engage in particular “[c]ollection efforts on 

defaulted loans.” 34 C.F.R. § 682.410(b)(6). These efforts include locating the borrower and 

determining if she has the means to repay the debt, see id. at 682.410(b)(6)(i), and sending the

informational notice to the borrower, see id. at § 682.410(b)(6)(ii). Beginning sixty days after the 

guaranty agency mails the notice to the defaulted borrower, the agency may engage in certain 

additional activities, such as administratively garnishing the borrower’s wages, filing a civil suit 

to compel repayment, offsetting state or federal tax refunds, and “other lawful collection means to 

collect the debt.” Id. § 682.410(b)(6); see also 20 U.S.C. § 1072b(d)(3)(A) (defining “default 

collection activities” as activities that are “directly related to the collection of the loan on which a 

default claim has been paid to the participating lender, including the due diligence activities 

required pursuant to regulations of the Secretary.”). A guaranty agency may assign some of these 
4

more involved and costly activities to a collection agency. See, e.g., 34 C.F.R.

§ 682.410(b)(9)(i)(T)(1).

Under the rule challenged here, within the initial sixty-day period following the notice of 

default, borrowers have two ways to avoid the need for guaranty agencies to undertake additional 

steps once the sixty days are up. 34 C.F.R. § 682.410(b)(2). First, the borrower can enter into a 

“repayment agreement” on terms negotiated by the guaranty agency. Id. § 682.410(b)(5)(ii)(D). 

If a borrower enters into such an agreement within the first sixty days and meets her obligations 

under the agreement, additional collection activities are unnecessary. See id. § 682.410(b)(5)–(9). 

Second, a borrower may enter into a “loan rehabilitation agreement,” the terms of which are largely 

dictated by statute and regulation. See 20 U.S.C. § 1078-6; 34 C.F.R. § 682.405. Such agreements 

require the borrower to make nine “reasonable and affordable” monthly payments on the loan

within a ten-month period. 20 U.S.C. § 1078-6(a)(1). Once the payments are made, the agency 

must either “sell the loan to an eligible lender” or, if unable to do so, assign the loan to the 

Secretary. Id. § 1078-6(a)(1)(A). At that point the loan is “rehabilitated.” The loan exits default 

and the borrower is once again subject to the same terms and conditions on the loan as if he or she 

had never defaulted. Id. § 1078-6(a)(4). 

Collection Costs

The statute mandates that “a borrower who has defaulted on a loan made under [the FFEL 

Program] shall be required to pay, in addition to other charges specified in this subchapter[,] 

reasonable collection costs[.]” 20 U.S.C. § 1091a(b)(1). Prior to the issuance of the rule 

challenged here, the Department’s regulations explained that:

[T]he guaranty agency shall charge a borrower an amount equal to reasonable costs 

incurred by the agency in collecting a loan on which the agency has paid a default 

or bankruptcy claim. These costs may include, but are not limited to, all attorney’s 

fees, collection agency charges, and court costs. 
5

34 C.F.R. § 682.410(b)(2) (2018). With respect to borrowers who enter into loan rehabilitation 

agreements, the statute provides that when a guaranty agency has secured all of the nine required 

payments and sells the loan to a lender, it “may . . . in order to defray collection costs . . . charge 

to the borrower an amount not to exceed 16 percent of the outstanding principal and interest at the 

time of the loan sale.” 20 U.S.C. § 1078-6(a)(1)(D)(i)(II). Here, both parties assert that, provided 

a guaranty agency is permitted to charge any collection costs under this provision, the guaranty 

agency may charge the full 16 percent on rehabilitated loans. 

The Rulemaking

Although the FFEL Program was discontinued for new loans beginning in 2010, student 

borrowers remain obligated under loans made before 2010, and lenders, guaranty agencies, and 

the government continue to service such loans. In 2015, the government filed an amicus brief in 

the Seventh Circuit addressing the question of whether a guaranty agency can assess collection 

costs against a defaulted borrower who timely enters into a rehabilitation agreement and complies 

with that agreement. In that brief, the government explained its view that guaranty agencies could 

not charge collection costs in these circumstances because the regulations did not allow guaranty 

agencies to engage in collection activities against such borrowers. See Brief of the United States 

as Amicus Curiae in Support of the Appellant and Reversal, Bible v. United Student Aid Funds, 

Inc., No. 14-1806 (7th Cir.), Dkt. 34, at 9.2

 The Secretary subsequently issued a “Dear Colleague” 

2 The government argued that 34 C.F.R. § 682.410(b)(5)(ii) interpreted the statute’s use 

of “reasonable collection costs” and created a safeharbor for defaulting borrowers not to be 

assessed collection costs. Specifically, the regulation required the guaranty agency to offer an 

opportunity to enter into a repayment agreement “after [the agency] pays a default claim on the 

loan but before [the agency] . . . assesses collection costs.” Bible v. United Student Aid Funds,

Inc., 799 F.3d 633, 650 (7th Cir. 2015). The Seventh Circuit concluded that the Secretary’s 

interpretation of its regulations and the statute were entitled to deference. Bible v. United Student 

Aid Funds, Inc., 799 F.3d 633, 650 (7th Cir. 2015); see also id. at 661 (Flaum, J., concurring in 
6

letter taking the same position. See “Dear Colleague” Letter from Lynn B. Mahaffie, Assistant 

Secretary for Policy, Planning, and Innovation, Office of Postsecondary Education, U.S. Dep’t of 

Education, July 10, 2015 (“2015 Letter”).

Two years later, the Secretary rescinded its 2015 Letter, finding that the “position set forth” 

in that letter “would have benefitted from public input on the issues discussed.” The Department 

committed not to require compliance with the 2015 Letter’s interpretation “without providing prior 

notice and an opportunity for public comment.” “Dear Colleague” Letter from Lynn B. Mahaffie, 

Acting Assistant Secretary, Office of Postsecondary Education, U.S. Dep’t of Education, March 

16, 2017.

In June 2017, the Department began a negotiated rulemaking process to consider a number 

of topics relating to FFEL loans, including the issue of guaranty agency collection costs. See 82 

Fed. Reg. 27640 (June 16, 2017); see also 82 Fed. Reg. 41194, 41196 (Aug. 30, 2017). The 

relevant committee held public hearings; at one hearing, Plaintiff Ascendium Education Solutions,

Inc., provided an oral comment opposing the committee’s collection costs proposal. See Compl. 

¶ 13; Transcript, United States Dep’t of Education Borrower Defense and Financial Responsibility 

Negotiated Rulemaking Committee 2017–2018, Session 2, Thursday January 11, 2018, at 202; 

Def. Mot. at Exhibit A, ECF No. 10–1. The Department thereafter issued a notice of proposed 

rulemaking that included a proposal “to prohibit guaranty agencies from charging collection costs 

to borrowers who, within sixty days of receiving notice of default, enter into an acceptable 

repayment arrangement, including a loan rehabilitation plan.” 83 Fed. Reg. 37242, 37282 (July 

31, 2018). The Department stated that the proposed rule was consistent with the position it had 

part and concurring in the judgment) (deferring to the agency because “the regulatory landscape 

[is] sufficiently complex to merit deference”).
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taken in the 2015 “Dear Colleague” Letter. Id. Ascendium submitted a written comment opposing 

the proposed rule. See Compl. ¶ 52; Letter from Great Lakes Higher Education Guaranty Corp. to 

U.S. Dep’t of Education, Aug. 30, 2018.3

The Secretary issued a Final Rule on September 23, 2019, primarily dealing with borrower 

defenses to repayment claims. 84 Fed. Reg. 49788. As part of that Rule, the Secretary amended 

the regulations governing guaranty agencies to expressly prohibit them from charging collection 

costs to defaulting borrowers who have entered a repayment or rehabilitation agreement within the 

first sixty days after the notice of default. The relevant regulation, as amended, provides:

(i) Whether or not provided for in the borrower’s promissory note and subject to 

any limitation on the amount of those costs in that note, the guaranty agency may 

charge a borrower an amount equal to the reasonable costs incurred by the agency 

in collecting a loan on which the agency has paid a default or bankruptcy claim 

unless, within the 60-day period after the guaranty agency sends the initial notice 

described in [34 C.F.R. § 682.410(b)(6)(ii)], the borrower enters into an acceptable 

repayment agreement, including a rehabilitation agreement, and honors that 

agreement, in which case the guaranty agency must not charge a borrow any 

collection costs.

. . . 

(iii) The costs under this paragraph . . . include, but are not limited to, all attorneys’ 

fees, collection agency charges, and court costs. Except as provided in [other 

regulations], the amount charged a borrower must equal the lesser of—

(A)The amount the same borrower would be charged for the cost of 

collection under the formula in 34 CFR 30.60; or

(B) The amount the same borrower would be charged for the cost of 

collection if the loan was held by the U.S. Department of Education.

34 C.F.R. § 682.410(b)(2). 

3 Ascendium was formerly known as Great Lakes Higher Education Guaranty 

Corporation.
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Procedural Background

Plaintiff Ascendium is one of the nation’s largest higher-education non-profits. It acts as 

a guaranty agency in the FFEL program, and it uses some of the proceeds obtained from its 

guaranty operations to fund its philanthropy. Compl. ¶ 11.

Ascendium asserts two claims in its Complaint. First, it argues that the Rule is inconsistent 

with the Higher Education Act, which, Ascendium argues, authorizes the recovery by guaranty 

agencies of their reasonable collection costs and gives guarantors an unqualified right to charge a 

16 percent fee upon a loan’s rehabilitation. See Compl. ¶ 60; 20 U.S.C. § 1091a(b)(1); 20 U.S.C. 

§ 1078-6(a)(1)(D)(i)(II)(bb). Second, Ascendium argues that the Rule is arbitrary and capricious 

because it affects when costs may be recovered rather than whetherthe costs are reasonable, creates 

perverse incentives, and treats repayment and rehabilitation agreements the same despite 

significant differences. Compl. ¶ 65. Ascendium seeks declaratory and injunctive relief, including 

vacatur of the Rule and an injunction precluding its enforcement with respect to repayment 

agreements and rehabilitation agreements. Id. at ¶ 67.

The Parties filed dispositive motions. Def. Mot. to Dismiss, ECF No. 10; Pl. Mot. for 

Summ. J., ECF No. 13. On October 13, 2021, the Court heard argument on those Motions.

II. Legal Standards

Dispositive Motions in APA Cases

When assessing a dispositive motion on the merits in an Administrative Procedures Act 

case, this Court’s standard of review is the same whether on summary judgment or a motion to 

dismiss. Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). “The entire 

case on review is a question of law, and only a question of law,” and the “complaint, properly read, 

actually presents no factual allegations, but rather only arguments about the legal conclusion to be 

drawn about the agency action.” Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 
9

1226 (D.C. Cir. 1993). That is because neither the traditional motion to dismiss nor summary 

judgment standards apply for deciding, as a matter of law, whether an agency action is supported 

by the administrative record and is otherwise consistent with the Administrative Procedures Act. 

Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009); Stuttering Found. of America v. 

Springer, 498 F. Supp.2d 203, 207 (D.D.C. 2007) (citing Richards v. INS, 554 F.2d 1173, 1177 & 

n. 28 (D.C. Cir. 1977)). Thus, the Court “sits as an appellate tribunal,” Am. Bioscience, Inc., 269 

F.3d at 1083, and its review “is based on the agency record and limited to determining whether the 

agency acted” in violation of the Administrative Procedures Act. Rempfer, 583 F.3d at 865.

Deference

Evaluating whether an agency has exceeded its statutory authority is a question of statutory 

interpretation. Judicial deference is never afforded to an agency’s interpretation of unambiguous 

statutes. Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 

(1984). Nor are agencies entitled to judicial deference when interpreting unambiguous rules.

Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). To determine whether a statute or rule is ambiguous, 

a court must use all available tools of construction. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 447-

48 (1987); Kisor, 139 S. Ct. at 2416. If a statute or rule is ambiguous, an agency’s interpretation 

is entitled to deference to the extent the interpretation is based on a “permissible construction” 

given the ordinary tools of construction. AT&T, Inc. v. FCC, 886 F.3d 1236, 1245 (D.C. Cir. 2018) 

(quoting Chevron, 467 U.S. at 843). Even absent a considered interpretation as to which Chevron

or Auer deference is appropriate, an agency’s position should serve as persuasive authority 

depending on “the thoroughness evident in [the interpretation’s] consideration, the validity of its 

reasoning, its consistency with earlier and later pronouncements, and all factors which give it 
10

power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 

(1944).

Arbitrary & Capricious Review

When reviewing an agency’s action to determine whether it was arbitrary and capricious, 

a court may not substitute its policy judgment for that of the agency. Bowman Transp., Inc. v. 

Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 285–86 (1974). Nevertheless, a court must ensure

that an agency has engaged in reasoned decision-making. Allentown Mack Sales and Serv., Inc. v. 

N.L.R.B., 522 U.S. 359, 374–75 (1998); Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, 462 

U.S. 87, 105 (1983). Agency action is arbitrary and capricious when, for example, the agency (i)

relies on factors that Congress did not intend it to consider; (ii) fails to consider an important aspect 

of the problem; (iii) offers an explanation for its decision that runs counter to the evidence before 

the agency, or (iv) acts in a manner so implausible that it could not be ascribed to a difference in 

view or the product of agency expertise. Motor Vehicles Mfrs. Ass’n of U.S. v. State Farm Mut. 

Ins. Co., 463 U.S. 29, 43 (1983). Likewise, an agency action is arbitrary and capricious where it 

fails to “state its reasoning.” Select Specialty Hosp.–Bloomington, Inc. v. Burwell, 757 F.3d 308, 

312 (D.C. Cir. 2014).

III. Analysis

Justiciability

The government argues that the Court lacks jurisdiction over Ascendium’s challenge to the 

Rule’s limitation on collection fees for borrowers who enter “repayment agreements.” Ascendium 

concedes that it does not charge collection costs to borrowers who enter such agreements within 

sixty days, nor does not assert it would in the absence of the Rule. See Pl.’s Opp. to Def’s Mot. to 

Dismiss & Mot. for Summ. J., ECF 12, at 35. Thus, the government contends, Ascendium cannot 
11

establish Article III standing with respect to the Rule’s impact on collection costs in the context of 

repayment agreements. 

Ascendium has two responses. First, it argues that the Rule’s limitation on its ability to 

charge collection fees is itself an injury sufficient for Article III standing. Relying on Sierra Club, 

Ascendium argues that this is a situation in which “the complainant is ‘an object of the action (or 

forgone action) at issue’ . . . [and thus] there should be ‘little question that the action or inaction 

has caused him injury, and that a judgment preventing or requiring the action will redress it.’” 292 

F.3d at 899–900 (D.C. Cir. 2002) (quoting Lujan, 504 U.S. at 561–62). Second, Ascendium argues 

there is only one rule, not two. Even if it does not have standing in the context of repayment

agreements, it argues, it is indisputably injured with respect to the limitation on its ability to charge

fees in the context of rehabilitation agreements, and thus has standing to challenge the entire Rule. 

The Court disagrees. Ascendium has failed to show that it is injured with respect to the 

Rule’s prohibition on charging of collection costs with respect to repayment agreements. 

Ascendium does not charge collection costs to borrowers who enter such agreements, nor does not 

assert it would do so absent the Rule. Losing the ability to someday consider charging fees to such 

borrowers—without any intention ever to do so—is insufficient for Article III standing. See Lujan, 

504 U.S. at 564 (“‘[S]ome day’ intentions—without any description of concrete plans, or indeed 

any specification of when some day will be—do not support a finding of the ‘actual or imminent’ 

injury that [the Supreme Court’s] cases require.”). To be sure, when a government action directly 

affects one’s legal rights, “there is ordinarily little question that the action or inaction has caused 

him injury.” Lujan, 504 U.S. at 561–62. But here, the government action affects only a long-
12

unused legal right.4 As it relates to repayment agreements, the Rule does not require Ascendium 

to act differently, does not prohibit Ascendium from acting in the same way it has acted, and does 

not interfere with any plans that Ascendium has established for future action. 

Ascendium’s second argument fares no better. Ascendium is suffering an injury because 

the Rule prevents it from charging collection costs in the context of rehabilitation agreements, but

that injury does not create standing to challenge the entire Rule. The Court may “set aside” 

unlawful agency action, see 5 U.S.C. § 706(2), and Ascendium contends that the relevant agency 

action is the Rule’s entire amendment to 34 C.F.R. § 682.410. See Oral Argument Transcript at

33–34. But the Court of Appeals has strictly interpreted the “agency action” that a Court can “set 

aside” under § 706 to be only that narrow portion of a rule that is unlawful. See Cath. Soc. Serv.

v. Shalala, 12 F.3d 1123, 1128 (D.C. Cir. 1994); see also 5 U.S.C. § 551(13) (defining “Agency 

action” to “include[] the whole or a part of an agency rule[.]”) (emphasis added). Because the 

Court may “‘set aside’ only the part of a rule found to be invalid,” Cath. Soc. Serv., 12 F.3d at 

1128, so too must a plaintiff demonstrate standing as to every portion of a rule that it challenges.

Because Ascendium has not demonstrated an injury with respect to repayment agreements, it lacks 

standing to challenge the Rule as it pertains to such agreements.

5

4 Ascendium also did not argue that it does or would exercise the right to charge collection 

fees in the context of repayment agreements by leveraging that right in negotiations with debtors 

entering such agreements. 

5 The government argues that Ascendium forfeited its right to challenge the Rule with 

respect to repayment agreements because Ascendium did not raise the issue in its comments during 

the rulemaking. Not so. The exhaustion requirement is met if the record reveals the agency had 

“the opportunity to consider” “the very argument pressed” by the petitioner. Office of 

Communication of the United Church of Christ v. FCC, 465 F.2d 519, 523 (D.C. Cir. 1972). Here, 

the Rule’s written explanation discusses the issue. See Rule, 84 Fed. Reg. at 49877 (noting Section 

484A(b) of the statute requires all borrowers pay reasonable collection costs). And, in any event, 

while Ascendium’s comments were primarily directed towards rehabilitation fees, the statutory 
13

Statutory Authority

Despite the seeming complexity of the statutory and regulatory scheme, this case can be 

boiled down to a simple question: is the Rule permissible in light of the statutory command that a 

defaulting borrower “shall be required to pay . . . reasonable collection costs”? 20 U.S.C. § 

1091a(b)(1). The Court concludes that the answer is no. To be sure, a statute’s use of the term 

“reasonable” is typically an indication that Congress intended to grant an agency a substantial 

amount of deference on a particular issue. But this case turns principally on the definition of 

“collection costs,” not the reasonableness of the charges.6

 

This section first addresses Plaintiff’s argument that the Rule is inconsistent with the statute 

by limiting costs based on timing, not reasonableness. The Court concludes that that question 

merges with the issue of the definition of collection costs, to which the Court next turns. 

* * *

Ascendium argues that the Rule is unlawful because it prohibits—by its own words—a 

guaranty agency from recouping costs based on when the costs are incurred, not whethersuch costs

are reasonable. Recall that the statute mandates that “a borrower who has defaulted on a loan 

made under [FFEL loans] shall be required to pay . . . reasonable collection costs[.]” 20 U.S.C. § 

1091a(b)(1) (emphasis added). The Rule allows a guaranty agency to charge a borrower 

reasonable collection costs “unless, within the sixty-day period after the guaranty agency sends 

the initial notice . . . the borrower enters into an acceptable repayment agreement, including a 

section applies to repayment agreements and rehabilitation fees. 20 U.S.C. § 1091a(b). Forfeiture 

is not an additional bar to justiciability.

6 The government does not assert that it is unreasonable to charge collection costs that are 

incurred as a result of permitted collection activities. In any event, such an argument is plainly 

foreclosed by any reading of the statute.
14

rehabilitation agreement, and honors that agreement, in which case the guaranty agency must not 

charge a borrower any collection costs.” 34 C.F.R. § 682.410(b)(2)(i) (emphasis added). Thus, 

Ascendium contends, the regulation addresses when reasonable collection costs may be assessed, 

not whether certain kinds of collection costs are reasonable.

The government disagrees. It argues that the Rule is essentially a tautology: guarantors 

may recover collection costs, except in cases that do not involve any collection costs, in which 

case they may not. The government also argues that other regulations prohibit guaranty agencies 

from charging collection costs or assessing fees within the first sixty-day period.7

On first glance, Ascendium’s argument is persuasive. Rather than defining what collection 

costs are reasonable, the Rule places a condition precedent on a guaranty agency charging such 

costs: it cannot do so if the borrower enters an agreement within the sixty-day window. This, 

Ascendium contends, contradicts the statute, which provides that defaulting borrowers “shall be 

required to pay . . . reasonable collection costs.” 20 U.S.C. § 1091a(b)(1).

But the government’s response, if correct, would resolve the apparent contradiction. The 

Rule’s function (if not the way it is framed) would not be inconsistent with the statute if the 

universe of “reasonable collection costs” does not include any costs incurred by guaranty agencies 

when defaulted borrowers enter an agreement within the sixty-day period and stick to it. If 

“reasonable collection costs” are so-defined (or at least could permissibly be so-defined) then the

Rule does not condition the collection of such costs based on when they are incurred, but rather it 

implicitly defines which collection costs are reasonable, or it is a summary of the effect of other 

regulations. In other words, if there are no “reasonable costs incurred by the agency in collecting 

7 It may initially appear odd that the government understands the Rule to do so little. But 

recall that the Rule began as a mere interpretation of existing regulations, which the agency 

subsequently determined should go through notice and comment.
15

a loan” when a defaulted borrower enters an agreement in the sixty-day period, then the Rule is 

wholly consistent with the statute.

The Court therefore agrees with the government to the extent that it moves the goalposts—

Ascendium’s timing argument merges with the “collection costs” issue. That is, whether the Rule 

is consistent with the statute depends on the definition of reasonable collection costs.

* * *

Ascendium contends that the most natural definition of “collection costs” is those costs 

associated with default collection activities. See 20 U.S.C. § 1072b(d)(3)(A). In its view, such 

default collection activities include the initial notice of default, among other actions, which 

necessarily occurs before the sixty-day period is up. See 34 C.F.R. § 682.410(b)(6). As a result, 

Ascendium argues, guaranty agencies incur collection costs every time a loan is in default. And, 

Ascendium contends, it cannot be unreasonable to incur such costs; after all guaranty agencies are 

required by regulation to take many of these steps, including the initial notice of default. Id.

The government agrees that collection costs are those costs that relate to “collection 

activities,” but argues that “collection activities” are only those coercive actionsrelating to directly 

collecting on a loan, such as wage garnishment, administrative offsets, and civil litigation. Def. 

Reply at 12–13. Accordingly, the government concedes that guaranty agencies reasonably incur 

costs in the first sixty days following default, but contends that those costs are not collection costs. 

Def. Reply at 1; Transcript of Hearing on October 13, 2021 at 21–22 (hereinafter “Transcript”).

The government’s definition of “collection activities” as exclusively “coercive” activities

has obscure foundations. To begin, the government contends that the statute uses the terms 

“collections, collected or collect” inconsistently and so it is left to the Secretary to interpret what 

“collection activities” are. Def. Reply at 20; Transcript at 44. And the government argues that it 
16

has already defined “collection activities” in other regulations that predate the Rule here. Def. 

Reply at 12. The government points, for example, to a regulation that requires the Initial Notice

include the warning “that if [the borrower] does not make repayment arrangements acceptable to 

the agency, the agency will promptly initiate procedures to collect the debt[,]” 34 C.F.R. 

§ 682.410(b)(6)(ii) (emphasis added); Def. Rep. at 13; Transcript at 42–43. Other regulations 

prohibit guaranty agencies from engaging in coercive activities (including those warned of in the 

Initial Notice 34 C.F.R. § 682.410(b)(6)(ii)) until sixty days after the Initial Notice. See, e.g., 34 

C.F.R. § 682.410(b)(5)(ii), (iv)(B). According to the government, the “procedures to collect the 

debt” referenced in § 682.410(b)(6)(ii) must be coercive activities, so “collection activities” must 

therefore refer exclusively to coercive activities—and thus “collection costs” must also be limited 

to the costs of coercive activities. 

This position is strained. To begin, even if the statute sometimes uses the word “collection” 

to refer to coercive activities and at other times uses it to refer to noncoercive activities, that does 

not mean that the statute is ambiguous, but rather suggests a broader definition of “collection 

activity.” And even if the “procedures to collect the debt” that the guaranty agencies “will . . . 

initiate” are coercive procedures, that does not mean that “collection” refers exclusively to 

coercive activities. Coercive procedures are collection activities, but the inverse—that collection 

activities are only coercive actions—does not follow. 

Returning to the statute, it defines “default collection activities” as “activities of a guaranty 

agency that are directly related to the collection of the loan on which a default claim has been paid 

to the participating lender, including the due diligence activities pursuant to regulations of the 
17

Secretary.” 20 U.S.C. § 1072b(d)(3)(A).8

 The government argues that only coercive collection 

activities “directly relate” to loan collection because such activities result in payment without 

intermediate steps or further efforts to collect on the loan. Ascendium argues that collection 

activities cannot be so narrowly defined. It points to the statute’s uses of the term “collection” in 

other contexts in which coercive activity cannot be the only meaning. For example, the statute 

defines “default aversion activities” as “activities of a guaranty agency that are directly related to 

providing collection assistance to the lender on a delinquent loan, prior to the loan’s being legally 

in a default status . . .” 20 U.S.C. § 1072b(d)(3)(B) (emphasis added). By statute, such collection 

assistance cannot be coercive—before default, lenders are prohibited from engaging in the kinds 

of the coercive activities that the government contends are the extent of “collection activity.” See

20 U.S.C. § 1091a(a)(2) (identifying entities which may perform coercive collection actions

without limitations; including guaranty agencies but not lenders). And the statute provides that 

even monthly payments are “amounts collected on behalf of the obligation of a defaulted 

borrower.” 20 U.S.C. § 1072a(c)(2) (emphasis added).

9

 The statute thus identifies as collection

activities various types of acts that are not coercive. 

8 The government argues that this language expressly delegates authority to the Secretary 

to define “default collection activities.” Def. Mot. at 17; Def. Reply at 11–12. That is true only 

in part—the provision allows the Secretary to define “default collection activities” to the extent 

the Secretary implements “due diligence” regulations, but that is just part of the broader definition

of “default collection activities.” The provision does not expressly delegate to the Secretary the 

authority to define those activities “directly related to the collection of the loan.”

9 The government also attempts to show that the statute’s use of “collection” is narrow. 

For example, the government asserts that Congress “expressly distinguished” loan servicing from 

loan collection in the statute, citing 20 U.S.C. § 1085(a)(4)(C) and (m)(1)(A). See, e.g., Def. Reply 

at 20. To be sure, those provisions address loan servicing, but the government left unexplained 

how such provisions cast any doubt on loan servicing being a subset of collection activity.
18

Even if one thought the statute left the definition of “collection activities” sufficiently open 

for the agency to define them as limited to “coercive” collective activities, the regulations do not

do so. But see Def. Reply at 11–13. To be sure, the Rule does state that the relevant costs “include, 

but are not limited to, all attorneys’ fees, collection agency charges, and court costs”—that is, the 

primary coercive collection activities. 34 C.F.R. § 682.410(b)(2)(iii). But this is obviously an 

inclusive, not an exclusive, list. And the Rule goes on to say that the amount of collection costs 

charged “must equal the lesser of . . . the cost of collection under the formula in 34 C.F.R. § 30.60; 

or the amount the same borrower would be charged for the cost of collection if the loan was held 

by the U.S. Department of Education.” 34 C.F.R. § 682.410(b)(2)(iii). While the costs under the 

referenced regulation include attorneys’ fees, collection agency costs, and court fees, they also 

include: 

(1) Salaries of employees performing Federal loan servicing and debt collection 

activities; 

(2) Telephone and mailing costs;

(3) Costs for reporting debts to credit bureaus;

(4) Costs for purchase of credit bureau reports;

(5) Costs associated with computer operations and other costs associated with 

the maintenance of records; 

(6) Bank charges; [and]

...

(9) Costs charged by other Governmental agencies.

Such costs are not limited to the coercive activities that the government identifies as collection 

activities. Contra Def. Reply at 12–13. And like the statute, this list is also inclusive, not 

exclusive. 34 C.F.R. § 30.60 (“These costs include, but are not limited to:”).

The government argues that the foregoing list refers to both loan servicing and debt 

collection, and thereby implies that the delineated costs include more than just collection costs. 

See id. § 30.60(a)(1) (“Salaries of employees performing Federal loan servicing and debt collection 
19

activities.”). But the regulation itself states that all of the listed costs are “associated with the 

collection of a particular debt.” Id. at § 30.60(a) (emphasis added). The government highlights 

the distinction between “loan servicing” and “debt collection activities” in connection with 

salaries. See Def. Reply at 19–20. But that says nothing about whether collection activities are 

only coercive activities. And the salaries of loan servicing employees are costs that may be 

charged as collection costs. If anything, the Rule supports the reading that loan servicing is a 

subset of collection activity because it cross-references this regulation as the maximum amount of 

collection costs that a guaranty agency may charge.

10

The Department’s other regulations also imply a broad definition of “collection” and 

“collection activity,” certainly one that covers more than just coercive activities. Like the statute, 

those regulations classify a variety of non-coercive lender activities as “collection” when a 

borrower is delinquent—even before default. See, e.g., 34 C.F.R. § 682.411 (mandating that 

lenders perform “collection efforts” including telephone contacts and frequent mail notices).

11

And Department regulations require guaranty agencies to “engage in reasonable and documented 

collection activities” on loans for which it has paid a default claim. 34 C.F.R. § 682.410(b)(6)(i)

(emphasis added). Such collection activities are most naturally read to include the initial notice 

10 The government also argues that 34 C.F.R. § 30.60 permits the collection of these types 

of costs, but only to the extent that they are related to coercive procedures. It’s not clear that all 

delineated costs would occur in coercive procedures. But whether § 30.60 is so limited largely 

turns on the same issues discussed above because § 30.60 defines its own scope as related to costs 

associated with “collection of a particular debt.” Id. (emphasis added). Because the statute and 

other regulations regularly use “collection” to include non-coercive procedures, the government’s 

argument is unpersuasive.

11 Guaranty agencies are required to perform these same types of activities on all of their 

defaulted loans. See, e.g., 34 C.F.R. § 682.401(b)(4) (mandating guaranty agencies be able to 

respond to written, electronic, and phone inquiries); id. §§ 682.410(b)(5)(ii), (vi); id.

§ 682.410(b)(6)(ii) (requiring mailing notices demanding repayment).
20

that triggers the sixty-day window, as well as a variety of other non-coercive actions. See 34 

C.F.R. § 682.410(b)(6)(ii).

In sum, the Court concludes that “collection activity” necessarily includes more than just 

the limited set of coercive actions argued by the government. And, given the link between 

“collection activity” and “collection costs,” “collection costs” are also broader than just the costs 

associated with coercive activity. It is therefore impermissible for the agency to construe 

“collection activity” or “collection costs” as only relating to coercive activities. Rather, under the 

statute and the Department’s own regulations, “collection activities” include non-coercive 

activities, including, for example, the mailing of the initial notice; and “collection costs” includes 

the cost of such non-coercive activities. 

Given this conclusion, the portion of the Rule prohibiting a guaranty agency from charging 

even “reasonable costs incurred by the agency in collecting a loan” if the borrower enters an 

agreement within the sixty-day window is unlawful. Rule, 84 Fed. Reg. at 49926. Guaranty 

agencies engage in collection activities, and therefore reasonably incur collection costs, during that 

period. 

* * *

Ascendium also argues that the statute’s rehabilitation fee provision provides an 

additional basis for setting aside the Rule. That provision reads:

With respect to a loan sold under [the loan rehabilitation program]—(i) the guaranty 

agency—

(I) shall, in the case of a sale made on or after July 1, 2014, repay the 

Secretary 100 percent of the amount of the principal balance 

outstanding at the time of such sale, multiplied by the reinsurance 

percentage in effect when payment under the guaranty agreement 

was made with respect to the loan; and 
21

(II) may, in the case of a sale made on or after July 1, 2014, in order to 

defray collection costs—(aa) charge to the borrower an amount not 

to exceed 16 percent of the outstanding principal and interest at the 

time of the loan sale; and (bb) retain such amount from the proceeds 

of the loan sale . . . 

20 U.S.C. § 1078-6(a)(1)(D) (emphasis added). As Ascendium sees it, this provision 

unambiguously provides it the authority to charge a 16 percent fee on rehabilitated loans even if it 

incurs no collection costs at all. Ascendium argues that the “prefatory clause” (“in order to defray 

collection costs”) describes the purpose of the fee, but it does not limit the operative clause (“may 

. . . charge to the borrower an amount not to exceed 16 percent . . .”). See D.C. v. Heller, 554 U.S. 

570, 577 (2008) (“[A]part from [a] clarifying function, a prefatory clause does not limit or expand 

the scope of the operative clause.”).

The government argues that Congress limited this fee to instances in which guaranty 

agencies incur at least some collection costs. They argue that Ascendium’s contrary reading 

renders the phrase “in order to defray collection costs” superfluous. In the government’s view, the 

purpose provision informs the operative clause. The government does not argue Chevron 

deference is appropriate here, nor do they point to any administration action that would render 

deference appropriate.

Even under the government’s view of the statute, however, Ascendium’s challenge would 

prevail. After all, for the reasons discussed above, guaranty agencies do incur collection costs

from at least the mailing of the initial notice and certainly before the sixty-day period is up. Thus, 

even under the government’s interpretation, the Rule must be set aside because it prohibits the 

charging of fees to which guaranty agencies are entitled.12

12 The Court does not endorse either party’s interpretation of 20 U.S.C. § 1078-6(a)(1)(D). 

An alternative reading not raised by the parties would read the “prefatory clause” as an adverbial

clause, not a separate purpose statement. The clause’s placement between the verbs (between 
22 

Arbitrary & Capricious

Ascendium also argues that there are several ways in which the Rule is arbitrary and 

capricious, but none is persuasive beyond the reasons already discussed.

First, Ascendium argues that it is arbitrary to condition fees on the timing of a borrower’s 

entry into a repayment or rehabilitation agreement, rather than whether the costs themselves are 

reasonable. The Court agrees with this argument for the same reasons stated above, but it is not a 

separate ground for setting aside the Rule. 

Second, Ascendium contends that the Secretary did not sufficiently consider its comment 

that the Rule would create perverse incentive for guarantors to minimize their borrower outreach. 

Specifically, Ascendium argues, by preventing cost recovery only for those borrowers who entered 

into a repayment or rehabilitation agreement within the first sixty days after mailing the notice, the 

Rule incentivizes guaranty agencies to delay and deter such agreements until at least day 61. The 

government contends that it considered and rejected Ascendium’s argument, concluding that the 

recoupment of costs wasn’t intended as an “incentive to offer loan rehabilitation,” particularly 

because guaranty agencies are “statutorily required” to offer an opportunity for borrowers to enter 

such an agreement. 84 Fed. Reg. at 49877. As the Secretary pointed out, the statute requires 

guaranty agencies to offer borrowers the option of loan rehabilitation. See 20 U.S.C. § 1078-6. 

And guaranty agencies are obliged by regulation to inform borrowers of that option in the initial 

notice of default. See 34 C.F.R. § 682.410(b)(5)(vi)(M).

“may” and “charge”) may modify the manner in which the party “may . . . charge” the fee rather 

than the mere purpose for the operative clause. That is, another reading is that the fee may be 

charged but only to the extent necessary to defray collection costs. Under this reading, a guaranty 

agency would not have an unconditional entitlement to a 16 percent fee, but its recovery would be 

limited by the amount of collection costs it actually incurred. See Transcript at 5.
23 

The Court agrees with the government. The Secretary gave only a few words to address 

Ascendium’s comment. 84 Fed. Reg. at 49877. But the Court will not substitute its judgment 

about the wisdom of this Rule for the agency’s, which considered the issue and explained why it 

thought the “incentive” to offer loan rehabilitation was unnecessary. Whether guaranty agencies 

are sufficiently incentivized by the statutory requirement to offer high-quality customer service is 

an open question, but that tradeoff is one for the agency to make, not the Court. 

Third, Ascendium asserts the Rule is arbitrary and capricious because it ignores significant 

differences between rehabilitation agreements on terms satisfactory to the agency. The 

government responds that the differences do not result in a difference in the reasonableness of 

collection costs within the first sixty days. The Court again agrees with the government. The Rule 

concerns when charging collection costs is appropriate, not the substance of the programs. It is 

not unreasonable to treat the two programs alike for this limited purpose. 

IV. Conclusion 

For all of the above reasons, the Court grants in part and denies in part Defendant’s Motion 

to Dismiss and grants in part and denies in part Plaintiff’s Motion for Summary Judgment.

An order will be issued contemporaneously with this opinion.

DATE: February 24, 2022

CARL J. NICHOLS

United States District Judge