UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 16-2476 (TJK) AMERICAN BAR ASSOCIATION et al. , Plainti ff

s , v. UNITED STATES DEPARTMENT OF EDUCATION et al. , De f

endants

.

MEMORANDUM OPINION In 2007, Congress established the P ublic Service Loan Forgivene ss Program (“PSLF” or “PSLF Program”), which offers fed eral student loan forgiveness for those who make ten years, or 120 months, of monthly loan payments while employed in publi c service. At any time, federal student loan borrower s employed in public service may c heck their ongoing eligibility to participate in the program by submitting an Employment Certific ation Form (ECF). Upon receipt of that form, the Department of Education (the “Departm ent”) determines whether the borrower’s loan payments were made while employed at a qualifyi ng “public service organization,” such that they c ount towards the PSLF Program’s requirements. This case concerns whether the Department’ s reversals of certain of those determinations, made before the borrower’s completion of all 120 monthly loan payments, were la wful. Plaintiffs American Bar Associat ion (ABA) and Michelle Quintero -Millan, Geoffrey Burkhart, Kate Voigt, and Jamie R udert (collectively, the “Indi vidual Plaintiffs”) filed this action against the Department and Bets y DeVos, in her official capacity as Secretary of Education (collectively, “Defendants”), c hallenging the Department’s alle gedly unlawful reversal of certain determinations under the PSLF Program. They bring five claims against Defendants. Counts I,2 II, III, and IV are br ought under the Admini strative Procedure Act (APA), 5 U.S.C. § 500 et seq. In Count I, Plaintiffs allege th at the Department changed its i nterpretation of its regulations in an arbitrary and capricious manne r by adopting new standards governing whether non-501(c)(3) not-for-profit organizations, suc h as the ABA and the Individua l Plaintiffs’ employers, qualify as “public service organizations” under the PSLF Program. ECF No. 1 (“Compl.”) ¶¶ 183–92. In Count II, Plaintiffs allege that the Department failed to follo w the APA’s notice requirements when it introduce d those standards. Id. ¶¶ 193–200. In Count III, the ABA and Plaintiffs Burkhart, Rudert, and Voigt allege that the Department’s retroa ctive application of the standards was arbitrary and capricious. Id. ¶¶ 201–08. And in Count IV, Plain tiffs allege that the Department’s new standards were t hemselves inconsistent with th e PSLF statute and regulation.
Id. ¶¶ 209–16. In Count V, Plaintiffs a llege that the Department’ s retroactive ap plication of the standards violated the Due Proce ss Clause of the Fifth Amendmen t. Id. ¶¶ 217–20. Before the Court are the parties’ cross-motions for summary jud gment. For the reasons explained below, the Court concl udes that Defenda nts acted arbi trarily and capriciously when the Department changed its interpret ation of the PSLF regulation in two ways without displaying awareness of its changed position, providing a reasoned explana tion for that decision, and taking into account the serious relian ce interests a ffected. Accordin gly, summary judgment is appropriate on behalf of Quint ero-Millan, Burkhart, and Voigt, on Count I, and the new standards on which the Departmen t relied when it sent denial le tters to them must be vacated. As a result, the Court need not rea ch their additional causes of a ction. In contrast, summary judgment is appropriate in favor of Defend ants on all causes of action brought by Rudert and the ABA. The record does not supp ort Rudert’s asse rtion that the Department impermissibly changed its interpretation of the PSLF regulation, and then relied on3 that interpretation in determining that his employment failed t o qualify for the PSLF Program. For this and other reasons explai ned below, Rudert has failed t o demonstrate that the APA was violated in his case. And furth er, for the reasons explained b elow, the Department’s representations to the ABA concer ning whether it qualified as apublic service organization for purposes of the PSLF Program were not final agency actions subj ect to challenge by the ABA through the APA. Finally, both th e ABA’s and Rudert’s claims under the Due Process Clause fail because both lack the protected property interests require d to succeed on their claims. Accordingly, the Court will grant in part and deny in part Plai ntiffs’ Motion for Summary Judgment, ECF No. 17, and grant in part and deny in part Defend ants’ Motion for Summary Judgment, ECF No. 22. For the reasons explained below, the Cou rt will also grant Plaintiffs’ Supplemental Motions to Allow for Extra-Record Review. ECF Nos . 24, 35. 1 Background A. The PSLF Program 1. The PSLF Statute In 2007, the College Cost Reduction and Access Act, Pub. L. No. 110-84, 121 Stat. 784, established the PSLF Program, under which the Department is required to forgive eligible loans of borrowers who make monthly loan payments for ten years while employed in public service. Under the statute, the Department must “cancel the balance of i nterest and principal” of qualifying student loans belonging to an individual who (1) is not in default on the loans, (2)

1 In evaluating these motions, the Court considered all relevant filings including, but not limited to, the following: Compl.; ECF No. 14 (“Ans.”); ECF No. 17 at 1 –4 (“Mot.”); id. at 5–99 (“Pls.’ MSJ Br.”); ECF No. 22 at 1–2 (“Cross-Mot.”); id. at 3–46 (“Defs.’ MSJ Br.”); ECF No. 24 (“Pls.’ Supp. Br.”); ECF No. 25 (“Pls.’ Reply”); ECF No. 30 (“D efs.’ Opp. to Supp.”); ECF No. 31 (“Defs.’ Reply”); ECF No. 32 (“Pls.’ Supp. Reply”); ECF Nos. 34-1, 34-2 (Joint Appendix, with citations designated as “AR __”); ECF No. 35 (“Pls.’ 2d Su pp. Br.”); ECF No. 36 (“Defs.’ Opp. to 2d Supp.”); ECF No. 37 (“Pls.’ 2d Supp. Reply”); and EC F No. 46 (“Oral Arg. Tr.”).4 makes 120 monthly payments aft er October 1, 2007, on the loans, and (3) is “employed in a public service job” at the time each payment is made and at the time of forgiveness. 20 U.S.C. § 1087e(m)(1). For a payment to qualify, the borrower must also be enrolled in an approved repayment plan, such as an “income-based repayment plan” (“IBR plan”), id. , which permits a borrower facing financial hardsh ip to make lower monthly paymen ts capped at a percentage of her gross income, 20 U.S.C. § 1098e (a). A “public service job” is defined to cover “a full-time job in . . . government . . . , public education . . . , public interest law services (including prosecution or public defense or legal advocacy on behalf of lo w-income communities at a nonprofit organization) . . . , [and] public service for indivi duals with disabili ties.” 20 U.S.C. § 1087e(m)(3)(B).
2. The PSLF Regulation In October 2008, the Department pr omulgated a regulation settin g forth the procedures through which a borrower may apply for loan forgiveness. See 34 C.F.R. § 685.219. The regulation defines the statuto ry term “employed in a public ser vice job,” 20 U.S.C. § 1087e(m)(1)(B), to require that an eligible borro wer be “hired and paid by a public service organization,” 34 C.F.R. § 685.219(b). Thus, a borrower’s elig ibility for the PSLF Program is not determined by her job responsib ilities, but rather by wheth er her employer qualifies as a “public service organization.” Id. Under the regulation, “public s ervice organization” includes any government organization, not-fo r-profit organization classi fied under Secti on 501(c)(3) of the Internal Revenue Code, or not-f or-profit private organizati on that is not classified under Section 501(c)(3) so long as it “provides [qualifying] public s ervices” and does not engage in certain disqualifying activ ities. 34 C.F.R. § 685.219(b). The qualifying “public services” include, among many others, “public i nterest law services,” “pu blic education,” and “public service for individuals with di sabilities and the elderly.” Id.5 During the negotiated rulemaking pr ocess leading to the promulg ation of the regulation, the Department agreed to develop a form with “an employer certi fication section and instructions regarding supporting documentation that the Department [needs] to determine the borrower’s eligibility for the forgiveness be nefit.” Federal Perkins LoanProgram, Federal Family Education Loan Program, and William D. Ford Federal Direct Loan Program, 73 Fed. Reg. 63,232, 63,241– 42 (Oct. 23, 2008); AR 45–46. The Department affirmed that the form would permit a borrower “to collect a certification from his or her employer either annually or at the close of the 120- payment qualifying period.” 73 Fed. Reg. at 63,242; AR 46. Based on these commitments undertaken during the negotiated r ulemaking, the Department dev eloped a process through which a borrower may certify the e ligibility of payments made d uring a particular period of employment at any time, long befo re she submits a loan forgiven ess application upon completion of all 120 qualifying payments (the “ECF Process”). Oral Arg. Tr. at 25:1–11.
3. The ECF Process According to the Department, the ECF Process allows borrowers t o certify that their “employment and payments qualify for [the PSLF Program].” AR 1 78. Through the submission of an ECF, borrowers and their e mployers certify that the borro wer was employed full-time for a qualifying public service organi zation when making monthly loanpayments. See AR 152–53. In order to receive loan forgiveness under the program, borrowe rs must submit valid ECFs covering their “full-time public service employment while makin g the required 120 separate, qualifying monthly payments.” AR 154. But, as noted above, bo rrowers may also submit ECFs before they are eligible to appl y for loan forgiveness in order to “receive feedback on the eligibility of [a borrower’s] e mployment and payments,” AR 178, and to “verify that [a borrower’s] employer qualifies as a public servi ce organization ,” AR 152. The Department recommends that borrowers submit ECFs either annually or whenev er the borrower changes6 employers. AR 154. A single ECF may cover loan payments made over any length of time, but the Department requires borrowers to submit separate ECFs for e ach employer. See AR 152–53. The ECF application must be sig ned by an authorized official fr om the relevant organization to verify that the borrower was a full-time employee during the re levant time period. Id. The Department relies on PSLF se rvicers, primarily “FedLoan Servicing,” to process ECFs prior to a borrower submitting a loan forgiveness applicat ion at the conclusion of making 120 qualifying monthly payments. A R 178. ECFs are processed i n several steps. First, FedLoan Servicing conducts an “init ial review” in which it “che ck[s] that the borrower provided all required informati on” and followed the form instructions. AR 143. Once the check is complete, Fedloan Servicing “dete rmine[s] whether an employer i s a qualifying public service organization” by confirming that th e organization is listed in one of the Department’s “searchable databases, base d on the type of public service orga nization.” Id. If FedLoan Servicing cannot determine whethe r an employer qualifies as a p ublic service organization—and in all cases where a borrower submits an ECF based on her emplo yment at a private, non501(c)(3) not-for-profit organi zation—it is required to escalat e the decision to the Department. AR 143, 160–61. After determining that the borrower’s employer is a qualifying public service organization, FedLoan Servicing w ill “determine whether the borrower has met the full-time requirement . . . while employed [there].” AR 143. If FedLoan Servicing confirms that the borrower made loan payments while employed full-time at a quali fying employer, then, after approving the first ECF received by the borrower, it will “requ est the transfer of all federallyheld loans” to FedLoan Servici ng from the borro wer’s original l oan servicer. AR 144. Once the7 transfer is made, FedLoan Servicing will “track the number of P SLF qualifying payments made after the loans [were] transferre d from the original servicer.” Id. After completing 120 eligible monthly payments, borrowers may a pply for loan forgiveness through a separate application. AR 179. If a borr ower submitted ECFs covering the entire period during which she made 120 qualifying payments, th en she must submit “one additional” ECF to verify that sh e is employed full-time with aqualifying public service organization at the time she submits the application. Id. If a borrower did not submit ECFs prior to completing her loan forgive ness application, or only submitt ed a portion of them, then she must provide all the remaining E CFs upon her application for lo an forgiveness. Id.
B. Plaintiffs The ABA is an organization for leg al professionals that asserts that the Department unlawfully stripped it of its s tatus as a qualifying public service organization for purposes of the PSLF Program. Compl. ¶¶ 21, 208. T he Individual Plaintiffs ar e law school graduates who contend that they made qualif ying loan payments under the PSLF Program while employed by public service organizations, inc luding the ABA, over varying p eriods since 2011—but have since been informed that, to the contrary, because their employ ers are not public service organizations, their pa yments do not qualify. See id. ¶¶ 107–77.
1. ABA The ABA is a private, not-for-pro fit 501(c)(6) organization tha t, among other activities, conducts legal education initiati ves, administers the accredita tion of law schools and other projects for the legal professi on, and provides public interest law services. Pls.’ MSJ Br., Ex. A ¶¶ 5–11. The ABA operates several public interest legal divisi ons, including the South Texas Pro Bono Asylum Representative Project (“ProBAR”), the Commissi on on Homelessness and Poverty, and the Center on Children and the Law. Id. , Ex. A ¶¶ 12, 14, 18. According to8 Plaintiffs, ProBAR serves as th e nation’s “largest provider . . . of legal services and legal-rights education for detained unaccompanied immigrant children.” Id. , Ex. A ¶ 12. Following the establishment of t he ECF Process in January 2012, the ABA asserts that several of its employees submitte d ECFs to the Department and r eceived letters in response confirming that their “employme nt with the ABA qualified” for p articipation in the PSLF
program. Id. , Ex. A ¶ 22. Based on these determinations, the ABA informed several prospective employees that “it was a qualifyi ng employer under the PSLF pro gram.” Id. , Ex. A ¶ 23. Beginning in 2015, ABA employees bega n to receive letters from the Department that denied their eligibility for the PSLF Program on the basis that the De partment “could find no evidence of [the ABA] being a not-for-pro fit organization that also prov ides a qualifying service for the PSLF program.” Id. , Ex. A ¶ 22; AR 185. Around April 2016, the ABA’s then-Execut ive Director and Chief Operating Offi cer contacted the Department a bout the ABA’s status. Pls.’ MSJ Br., Ex. A ¶ 28. In June 2016, the Department informed the ABA that, even after reviewing the additional information the ABA had submitted, the Departmen t concluded that the ABA did not qualify “as a public service organization for . . . PSLF pu rposes” because it did not demonstrate “that the primary pur pose of the ABA is to provide ‘public interest law services’ [as] the term is defined in the PSLF regulations.” AR 190–91. After an additional exchange of letters and a meeting with Department officials, in December 20 16 the Department reaffirmed to the ABA that it was not a qua lifying public service organizatio n “for the reasons outlined” in its June 2016 letter. AR 192–93.
2. Michelle Quintero-Millan After graduating from the Sturm College of Law at the University of Denver in 2012, Quintero-Millan joined ProBAR in June 2012 as a Staff Attorney. See Pls.’ MSJ Br., Ex. E ¶¶ 1, 4. She departed in May 2015 with the title of Supervisin g Attorney. Id. , Ex. E ¶ 7. During9 her time at ProBAR, Quinter o-Millan provided pro bono legal services to undocumented and unaccompanied immigrant children in southern Texas. Id. , Ex. E ¶¶ 4–5. In November 2015, Quintero-Millan submitted her fi rst ECF to FedLoan Servicing. Id. , Ex. E ¶ 10; AR 218. In November 2016, FedLoan Servicing i nformed Quintero-Millan, with out explanation, that her employment at ProBAR did not qua lify under the PSLF program. P ls.’ MSJ Br., Ex. E ¶ 13; AR 237–38. Quintero-Millan asserts th at she had accepted the posi tion at ProBAR “with the understanding, based on [her] inqui ries during the application process[,] that [her] employment would qualify for PSLF.” Pls.’ MSJ Br., Ex. E ¶ 9. Since Janu ary 2013, Quintero-Millan has been enrolled in an IBR plan, whichcaps her loan payments as apercentage of her income and, as a result, has caused her mont hly payments to be less than th e interest on her loans. Id. , Ex. E ¶ 16. Accordingly, Quintero-Millan’ s total federal student deb t has increased from approximately $340,000 when she entered repayment to $430,446.4 8 as of May 2017. Id. , Ex. E ¶ 17.
3. Geoffrey Burkhart In June 2014, Burkhart—a 2008 graduate of DePaul University Col lege of Law—joined the ABA as Attorney and ProjectDirector for the Division for L egal Services. Pls.’ MSJ Br., Ex. D ¶¶ 1, 4. He remained in the position until December 21, 2016 , when he became the Deputy Director of the ABA’s C enter for Innovation. Id. , Ex. D ¶ 4. While employed at the Division for Legal Services, Burkhart worked “ to improve civil legal service s and criminal justice for poor individuals through technologica l and process innovations.” Id. His work included, among other responsibilities, drafting amic us briefs, conducting workload s tudies of public-defender offices, and launching a news service fo r public-defense leaders. Id. , Ex. D ¶ 5. Prior to joining the ABA, Burkha rt asserts that he received con firmation (though he does not specify how) from both the A BA and FedLoan Servicing that h is prospective position there10 was eligible for the PSLF Program. Id. , Ex. D ¶ 7. Burkhart claims that he accepted the job in reliance on those representations. Id. In July 2014, Burkhart submitted an ECF to FedLoan Servicing and, that same month, r eceived a letter confirming th e eligibility of his loan payments. AR 208–11. Burkhart continued to s ubmit ECFs in order to track his eligibility and received, as recently as June 28, 2016, verifications that his payments coun ted toward those necessary for loan forgiveness. Pls.’ MSJ Br., Ex. D ¶ 8. On October 12, 20 16, Burkhart received a letter from FedLoan Servicing informi ng him that upon its “further res earch and after consulting with the Department,” it had reverse d its previous dete rminations be cause the ABA does not “provide a qualifying service.” AR 214–15. D uring his employment with the ABA, Burkhart has been enrolled in an IBR plan, which ha s caused his monthly payments to be lower than the accruing interest on his student loans . Pls.’ MSJ Br., Ex. D ¶ 9. As aresult, Burkhart estimates that the total balance of his “federal s tudent loans has grown from $155 ,899.95 in October 2009 to over $200,000 as of May 17, 2017.” Id. , Ex. D ¶ 11. Burkhart asserts thatthe Department’s reversal has caused him and his family “great concern” and may force him to seek alternative employment. Id. , Ex. D ¶ 12.
4. Kate Voigt Voigt graduated from Boston College Law School in 2011. Pls.’ MSJ Br., Ex. C ¶ 1. In December 2011, she accepted a pos ition in the Liaison Departmen t of the American Immigration Lawyers Association (“AILA”), a501(c)(6) organization that pro vides a variety of services for immigrants, as well as educationa l services on the topic of imm igration. Id. , Ex. C ¶¶ 4–5

. Shortly after starting at AILA, V oigt contacted the Department seeking clarif ication as to whether her position there qua lified for the PSLF Program. Id. , Ex. C ¶ 6. In June 2012, the Department informed Voigt that her employment at AILA qualified

. Id. As a result, Voigt claims, she continued to work at AILA. Id. , Ex. C ¶ 7.11 In June 2014, Voigt contacted the D epartment about a letter rec eived by her coworker that stated, to the contrary, that employment at AILA did not qualify under the PSLF Program.
Id. , Ex. C ¶ 9. In response, the Departm ent sent Voigt a letter i n December 2014 informing her that, although it previously recogn ized employment with AILA as qualifying for the PSLF Program, it had reversed its pos ition. AR 335. The letter was emailed to her by Ian Foss, a Department employee. AR 334. The Department had done so, the letter explained, because AILA’s services did not fit within its definition of “public ed ucation services ,” defined by the Department as “services that pr ovide educational enrichment or support directly to students or their families in a school or a school-like setting.” AR 335–3 6. Voigt followed up to the letter by emailing Foss, expressing her disagreement with the decision . Pls.’ MSJ Br., Ex. C ¶ 13. Voigt never received a response to the email. Id. In November 2016, almost two years la ter, Voigt received a lett er from FedLoan Servicing confirming that the De partment had reversed its posit ion as to whether employment at AILA qualified for the PSLF Program. Id. , Ex. C ¶ 17. Voigt assert s that, based on the Department’s original confirma tion, she chose to remain enrolle d in an IBR plan that capped her monthly loan payments at an amountlower than the monthly inter est charges of her student debt.
Id. , Ex. C ¶ 8. Accordingly, Voigt estim ates that, from October 2 011 to May 2017, her federal student loan balan ce grew from $205,546 to $247,638.55. Id. , Ex. C ¶ 18. She asserts that the Department’s decision to rescind her employment’s eligibility h as caused her great concern and has affected her ability to plan her finances. Id. , Ex. C ¶ 19

. 5. Jamie Rudert In April 2012, Rudert began working at Vietnam Veterans of Amer ica (“VVA”), a 501(c)(19) organization that provides advocacy and support serv ices to Vietnam veterans, including representing veteran s seeking government benefits and services. Id. , Ex. B ¶ 4; AR12 315. Rudert, a 2010 graduate of the A merican University Washin gton College of Law, asserts that he first learned of the PSL F Program while in law school. Pls.’ MSJ Br., Ex. B ¶¶ 1–2. Upon joining VVA, Rudert worked a s an Appellate Attorney from April 2012 to May 2013, where he represented veterans w ith service-connected disability claims before the Board of Veterans’ Appeals. Id. , Ex. B ¶ 6. In May 2013, he was promote d to Deputy Director. Id. , Ex. B ¶ 7. As Deputy Director, he cont inued to represent veterans in their appeals while also supervising other attorneys. Id. He remained in this position until September 2015, when he le ft VVA for Paralyzed Veterans of A merica (“PVA”), a 501(c)(3) orga nization, where he continued to represent veterans in dis ability-benefit appeals. Id. , Ex. B ¶ 11. In July 2012, Rudert submitted an ECF and received a letter fro m FedLoan Servicing (which was not his loan service r at the time but receives all E CF applications regardless of whether it is a borrower’s servi cer) indicating that his work a t VVA from April 1, 2012, to June 18, 2012, qualified for the PSLF Program. Id. , Ex. B ¶ 8. On August 1, 2012, he received another letter from FedLoan Servicing, this one informing him that his loans were being transferred to FedLoan Servicing f rom his original loan service r due to his qualifying payments.
Id. , Ex. B ¶ 9. On October 30, 2014, he received a letter, in response to a second ECF submission, confirming that his employment at VVA qualified for the PSLF Program. Id. , Ex. B ¶ 10. FedLoan Servicing later inf ormed Rudert that, as of Janu ary 2015, he had made 30 qualifying payments. Id. In early 2016, after his departur e from VVA, Rudert submitted a nother ECF, while employed at PVA, which covered loan payments during his final y ear at VVA. Id. , Ex. B ¶ 12. In April 2016, he received a lette r from FedLoan Servicing info rming him that, based on its “further research and after cons ulting with the Department,” it “reversed [his] previously13 approved employment period” because VVA “does not provide a qua lifying service.” AR 282– 83. Rudert asserts that, if he had known that his employment a t VVA did not qualify for the PSLF Program, he would have departed earlier for another employ er. Pls.’ MSJ Br., Ex. B ¶ 14. During his participation in the PSLF Program, Rudert has been e nrolled in an IBR plan, which has decreased his required monthly loan payments to an amount l ower than the monthly interest charges on his total student debt. Id. , Ex. B ¶ 3. Consequently, Rudert estimates that his federal student loan balance has grown from $134,8087.16 in August 2012 to $161,985.02 in May 2017.
Id. , Ex. B ¶¶ 9, 18. The Parties’ Motions for Summary Judgment A. Legal Standard Under Federal Rule of Civil Pro cedure 56(c), this Court must gr ant summary judgment “if the movant shows that there is no genuine dispute as to anymaterial fact and the movant is entitled to judgment as a matter of law.” “Summary judgment is appropriately granted when, viewing the evidence in the light most favorable to the non-mov ants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdic t in their favor.” Lopez v. Council on Am.-Islamic Relations Action Network, Inc. , 826 F.3d 492, 496 (D.C. Cir. 2016). However, in a case involving review of an agency action under the APA, “the district judge sits as an appellate tribunal” and “[t]he ‘ entire case’ on review is a que stion of law.” Am. Biosci. Inc. v. Thompson , 269 F.3d 1077, 1083 (D.C. Cir. 2001). In such circumstances, the district court “is to determine whether or not as a ma tter of law the evidence in the administrative record permitted the agency to make the decision it did.” Sierra Club v. Mainella , 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (quoting Occidental Eng’g Co. v. INS , 753 F.2d 766, 769 (9th Cir. 1985)). Accordingly, the Court’s review “is normally confined to the administrative record,” Amfac Resorts, L.L.C. v. U.S. Dep’t of the Interior , 143 F. Supp. 2d 7, 10 (D.D.C. 2001), except within a “narrow set of14 exceptions,” where a court may c onsult extra-record evidence du e to “gross procedural deficiencies—such as where the administrative record itself is so deficient as to preclude effective review,” Hill Dermaceuticals, Inc. v. FDA , 709 F.3d 44, 47 (D.C. Cir. 2013).
B. Analysis Defendants assert two threshold c hallenges to Plaintiffs’ APA c laims. First, they assert that the ABA does not have a cau se of action because its intere sts do not fall within the “zone of interests” protected by the PSLF statute. The Court concludes that the zone-of-interests test does not bar the ABA’s claims. Second, D efendants assert that Plain tiffs do not have a cause of action because the Department’s act ions at issue are not final agency actions subject to judicial review. The Court concludes thatthe letters sent to the Indiv idual Plaintiffs determining that their employment did not qualify for the PSLF Program—and thus that their loan payments made while working for those employers did not count toward the tota l needed for loan forgiveness— are final agency actions. The refore, the Individual Plaintiffs may assert causes of action challenging them under the APA . On the other hand, the Departm ent’s letters to the ABA concerning its status as a qua lifying “public service organizat ion” under the PSLF regulation are not final agency actions. There fore, the ABA may not assert AP A claims directed at those letters. Turning to the merits of the Indiv idual Plaintiffs’ APA claims, the Court concludes that the Department changed the standards by which it assessed wheth er non-501(c)(3) not-for-profit organizations qualified as public service organizations under t he PSLF Program. Moreover, these changes were arbitrary a nd capricious because, in adoptin g the new standards, the Department failed to display a wareness of its changed position, provide a reasoned analysis for that decision, and take into account the serious reliance inter ests affected. Because summary judgment is appropriate in favor of Quintero-Millan, Burkhart, and Voigt on Count I on that15 basis, the Court need not reach their other challenges under th e APA, or their argument that the Department violated their due pr ocess rights under the Fifth Am endment. On the other hand, the Court conclu des that summary judgment is appropriate in Defendants’ favor on Rudert’s APA claims. It does so because i t cannot conclude that the Department based its determinati on that his employment failed t o qualify for the PSLF Program on a new interpretation of the PSLF regulation, and for other r easons explained below. Finally, the Court concludes that the A BA and Rudert’s due process claim s under the Fifth Amendment fail, as well. As a result, summary judgment is appropriate in Defendants’ favor as to all causes of action brought by the ABA and Rudert.
1. Whether the ABA’s Injuries Fall Within the Zone of Interests of the PSLF Statute Defendants assert that the ABA’ s alleged injuries do not fall w ithin the zone of interests of the PSLF statut e and regulation, 2 which are “intended to provid e student debt relief to borrowers,” not public service organizations. Dfs.’ Opp. at 21 . The Court disagrees, especially given how this test is typicall y applied in the APA context. The “zone-of-interests limitati on” is a “requirement of general application” for “all statutorily created c auses of action.” Lexmark Int’l, Inc. v. Sta tic Control Components, Inc. , 572 U.S. 118, 129 (2014) (quoting Bennett v. Spear , 520 U.S. 154, 163 (1997)). The test, which “is not meant to be especially demandi ng,” “denies a right of revie w if the plaintiff’s interests are so

2 Although Defendants allege that th e ABA’s claims fall outside the zone of interests of both the PSLF statute and regulation, Def endants cite to no authority in dicating that the zone-of-interests doctrine applies to agency regul ations. The Supreme Court instructs that the doctrine applies to “all statutorily created causes of action” based on the presumption that Congress “‘legislat[es] against the background of’ the z one-of-interests limitation . . . .” Lexmark Int’l, Inc ., 572 U.S. at 129 (quoting Bennett , 520 U.S. at 163) (emphasis adde d). But Defendants can point to no similar instruction that the zone -of-interests doctrine applies equally to a regulation promulgated by an agency. Accordingly, the Court concludes that it need on ly assess whether the ABA’s alleged injuries fall within the zone of interests of the PSLF statute.16 marginally related to or inconsis tent with the purposes implici t in the statute that it cannot reasonably be assumed that Congres s intended to permit the suit .” Clarke v. Sec. Indus. Ass’n , 479 U.S. 388, 399 (1987). “[T]here need be no indication of co ngressional purpose to benefit the would-be plaintiff” for a court to conclude that the plaintiff falls within a sta tute’s zone of interests. Clarke , 479 U.S. at 400. The zone-of-interests standard “ is particularly generous as app lied to plaintiffs who bring suit under the APA, in light of the need to ‘preserv[e] the fle xibility of the APA’s omnibus judicial-review provision, whic h permits suit for violations of numerous statutes of varying character that do not themselves include causes of action for j udicial review.’” Otay Mesa Prop., L.P. v. U.S. Dep’t of the Interior , 144 F. Supp. 3d 35, 58 (D.D.C. 2015) (quoting Lexmark Int’l , 572 U.S. at 130); see also Mendoza v. Perez , 754 F.3d 1002, 1016 (D.C. Cir. 2014) (“[W]e apply the zone-of-interests test in amanner consistent with ‘Congres s’s evident intent when enacting the APA to make agency action p resumptively reviewable.’” (quot ing Match–E–Be–Nash–She– Wish Band of Pottawatomi Indians v. Patchak , 567 U.S. 209, 225 (2012))). In cases where the plaintiff asserts a cause of ac tion under the APA, the “relevan t zone of interest” is “defined by a substantive statute, not by the APA.” Am. Inst. of Certified Pub. Accountants v. IRS , Civ. No. 15-5256, 2018 WL 3893768, at *4 (D. C. Cir. Aug. 14, 2018) (coll ecting cases). The Court concludes that the ABA ’s asserted interests in this a ction are not “so marginally related to or inconsis tent with the purposes implici t in the [PSLF] statute that it cannot reasonably be assumed tha t Congress intended to permit t he suit.” Clarke , 479 U.S. at 399. Although the statute provides a direct benefit in the form of loan forgiveness to individual “borrower[s],” see 20 U.S.C. § 1087e(m)(1), it also pr omotes the interests of publ ic service employers by providing significant fi nancial subsidies to the b orrowers they hire on the17 condition they remain employe d in public service. By design, then, the PSLF statute facilitates a public service organization’s r ecruitment of employees by decre asing their employees’ long-term debt burden. This debt relief reduces pressure on public servi ce organizations to raise salaries.
See Pls.’ MSJ Br., Ex. D ¶ 6. Thus, t he PSLF statute allows publi c service organizations to attract and retain desirable emp loyees and, as a result, such o rganizations have a significant interest in their employees’ eligibility under the PSLF Program

. See id. , Ex. A ¶¶ 25, 26. Consequently, the harms asserte d by the ABA—including the negat ive impact on its ability to retain skilled employees and pr ovide high-quality legal service s, id. —“arguably fall[] within the zone of interests protecte d . . . by the [PSLF statute],” Mendoza , 754 F.3d at 1016 (quoting
Bennett , 520 U.S. at 162). Defendants argue that the ABA fa lls outside of the zone of inte rests of the PSLF statute because its purpose is “to encourage individuals to enter and continue i n full-time public service employment.” Dfs.’ MSJ Br. a t 21 (emphasis added) (quoting 34 C.F.R. § 685.219(a)). The PSLF statute, Defendants argue , “does not mention public servic e organizations” and so “[a]ny benefit or harm” incurred by the A BA is only “incidental to the benefit incurred by the individual borrowers that the ABA employs.” Id. at 21–22. Defendants construe the PSLF st atute too narrowly, at least for the purpose of applying the zone-of-interests test. To s atisfy the test, a plaintiff n eed only show that its interests in the agency action “in practice can be expected to police the intere sts that the statute protects.” Amgen, Inc. v. Smith , 357 F.3d 103, 109 (D.C. Cir. 2004) (quoting Mova Pharm. Corp. v. Shalala , 140 F.3d 1060, 1075 (D.C. Cir. 1998)). Here, the ABA’s inter ests in its own status as a qualifying public service organi zation under the PSLF Program f all squarely in line with the interests of the Individual Plai ntiffs, whom Defendants concede may bring suit. Dfs.’ MSJ Br. at18 21–22. The ABA is motivated by its i nterests in increasing rec ruitment and lowering labor costs, which are entirely consistent wit h those interests more directl y advanced by the PSLF statute. See Amgen , 357 F.3d at 109 (“Parties motivated by purely comme rcial interests routinely satisfy the zone of interests test under this court’s precedents.”). F or these reasons, t he Court holds that the ABA’s alleged injuries fall within PSLF statute’s zone of i nterests. 2. Whether Plaintiffs’ APA Claims Challenge Final Agency Action Next, the Court must determine wh ether Plaintiffs’ APA claims c hallenge final agency action, such that they are cogni zable under that statute. 5 U. S.C. § 704. The Individual Plaintiffs assert that the Department’s letters informing them that their employment, and therefore their loan payments, did not qualify for the PSLF Program were final agency actions. 3 The ABA argues that the letters sent t o it concerning its status as a “ public service organization” were final agency actions as well. See AR 190–93. The parties dedicated a s ubstantial portion of thei r briefing and argument to this i ssue, underscoring its centralit y to their dispute. See Dfs.’ MSJ Br. at 13–20; Pls.’ MSJ Br. at 14–20; Oral Arg. Tr. at 4:12–33: 12. “Where there is no final agenc y action, a plaintiff has no caus e of action under the APA.” Aracely, R. v. Nielsen , 319 F. Supp. 3d 110, 138 (D.D.C. 2018). “Thus, although the absence of final agency action would not cost [the Court its] jurisdiction ,” it would cost Plaintiffs their “APA cause[s] of action.” Trudeau v. FTC , 456 F.3d 178, 188–89 (D.C. Cir. 2006); see also Reliable Automatic Sprinkler Co., Inc. v. Consumer Prod. Safety Comm’n , 324 F. 3d 726, 731 (D.C. Cir. 2003). The finality i nquiry is governed by the two- prong test set forth in Bennett v. Spear , which states that to be final, age ncy action must (1) “mark the consummation of the

3 The “denial letters” receive d by the Individual Plaintiffs are : (1) the Octobe r 12, 2016 letter to Burkhart, AR 214–15; (2) the N ovember 19, 2016 letter to Quinte ro-Millan, AR 237–39; (3) the April 19, 2016 and April 21, 2016 letters to Rudert, AR 277–79, 282–83; and (4) the December 10, 2014 letter to Voigt, AR 335–36.19 agency’s decisionmaking proce ss” and (2) be an action “by whichrights or obligations have determined, or from which legal consequences will flow.” 520 U .S. at 177–78 (internal citations and quotation marks omitted). The Supreme Court has instructed lower courts to “apply the finality requirement in a ‘flexible’ and ‘pragmatic’ way.” Ciba-Geigy Corp. v. EPA , 801 F.2d 430, 435 (D.C. Cir. 1986) (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 149–50 (1967)).

a. Consummation of the Department’s Decisionmaking Process The Individual Plaintiffs Under the first prong of the Bennett test, a final agency action “must mark the consummation of the agency’s decisionmaking process” and “must not be of a merely tentative or interlocutory nature.” Bennett , 520 U.S. at 177–78 (internal cit ations and quotation marks omitted). When considering the first Bennett prong, the D.C. Circuit has looked to the relevant language of the challenged agency decision. See Holistic Candlers & Consumers Ass’n v. FDA , 664 F.3d 940, 944 (D.C. Cir. 2012). The language of the denial letters demonstrates that they marked the Department’s final de termination that the Individual Plaintiffs’ respective employment, and their payments ma de during that employment, did not qualify for the PSLF Program. 4 The letters sent to Burkhart and Rudert unambiguously stated that the Department “reversed [their] previously a pproved employment period[s] unde r the PSLF program because [their employers] do[] not provi de a qualifying service.” AR 2 14, 282. Likewise, the Department’s letter to Voigt fla tly asserted that it had “deter mined that AILA is not a qualifying employer for PSLF purposes.” A R 336. In the letter to Quinter o-Millan, the Department stated that, based on its review of her EC Fs, her employment “[d]oes [ n]ot [q]ualify” and that she “may

4 Because the Departmen t’s letters to the ABA fail to satisfy th e second prong of the Bennett test, as discussed below, the Court need not address them here.20 not participate in employment a nd payment tracking for PSLF.” AR 237–38. This definitive language supports the conclusi on that, upon sending the denial letters to the Individual Plaintiffs, the Department had completed its determination that their emplo yment and the loan payments at issue did not qualify. In arguing that the denial lette rs were not final, Defendants p oint to the allegedly lessthan-definitive language in Quint ero-Millan’s letter, which sta ted that her “employer does not appear to qualify for PSLF” and i nvited her to “reapply if [she could] provide additional information to show that [her] employment qualifies.” AR 237. But this language does not undermine the conclusion that her denial letter was a final age ncy action. First, other language in the letter was far more categor ical about the Department’s dete rmination. The Department identified her “eligib ility status” to be, simply, “Organizatio n Does Not Qualify.” Id. The letter suggested other possible eligibil ity statuses—for example, “Und er Review” or “Missing Information”—each of which woul d have suggested a lack of final ity. AR 237–38 (edits to capitalization). But according t o Quintero-Millan’s letter, ne ither of those applied to her. Second, even to the extent that t he language cited by Defendant s suggested that the Department might reconsider its decision, “[t]he mere possibility that an agency might reconsider in light of ‘informal discussion’ and invited contentions of inaccuracy doe s not suffice to make an otherwise final agency action nonfinal.” Sackett v. EPA , 566 U.S. 120, 127 (2012). As part of the first Bennett prong, courts also look to “the way in which the agency subsequently treats the challenged action.” Sw. Airlines Co. v. U.S. Dep’t of Transp. , 832 F.3d 270, 275 (D.C. Cir. 2016) (collecting cases). The record on th is point is particularly clear that the denial letters r eflect final agency action. After the Department issued the denial letters, the Individual Plaintiffs did not rec eive any additional communicat ion from the Department21 suggesting that the letters wer e tentative or interlocutory. M oreover, the ABA challenged the Department’s basis for the denial letters issued to Quintero-Mi llan and Burkhart, but the Department reaffirmed its c onclusion. AR 192–93. And when Rud ert followed up with FedLoan Servicing after receiving hi s letter, a representative there simply informed him that “the Department of Education made the determination” and that “there was no appeal process put in place.” AR 285. To date, and even after the filing of this la wsuit, the ineligibility determinations reflected in the Individual Plaintiffs’ denial l etters have apparently remained unchanged for periods ranging from 27 to 50 months. Pls.’ MSJ Br., Ex. B ¶ 12; id. , Ex. C ¶ 18; id. , Ex. D ¶ 10; id. , Ex. E ¶ 13. Simply put, there is no indication in the record that these letters do not “represent[] the culmination of [the Department’s] consi deration of an issue.”
Soundboard Ass’n v. FTC , 888 F.3d 1261, 1267 (D.C. Cir. 2018). Defendants contend that the Indi vidual Plaintiffs’ denial lette rs are “interlocutory and subject to change” because “the Department does not make a fina l determination on eligibility for PSLF until the borrower files her application . . . after m aking 120 qualifying payments.” Dfs.’ MSJ Br. at 15–16. But this argument conflates separate d eterminations that the Department undertakes in connect ion with the PSLF Program. Certainly, the Department considers an application to determine a borrower’s ultimate eli gibility for debt relief only after she has submitted 120 qualifying loan payments. AR 153. But a long the way, according to the Department, upon receiving an ECF it “verif[ies] that [the borr ower’s] employer qualifies as a public service organization” and “ notif[ies] [the borrower] in writing of the number of qualifying payments . . . made while employed in qualifying public service .” AR 155. Through this process, the Department “determi ne[s]” the eligibility of loan payments made during a borrower’s employment with a particular organization. See AR 143–44. And, if the loan22 payments are approved as eligible, the Department will “request the transfer of all federally-held loans” to FedLoan Servicing from the borrower’s original loan s ervicer and “track the number of PSLF qualifying payments” going forward. AR 144. That the Ind ividual Plaintiffs have not submitted applications for loan forgiveness does not undercut t he conclusion that, at the very least, the denial letters reflect the end of the Department’s d ecisionmaking process concerning whether a borrower’s employer qua lifies as a public service org anization, and whether the loan payments at issue count towar d the 120 monthly payments require d. Courts have also looked to other ag ency materials to evaluate w hether an action marked the consummation of an agency’s decisionmaking. See Holistic Candlers , 664 F.3d at 944 (consulting an FDA manual). In th is case, language describing the ECF Process in the Department’s guidance documents further underscores, in important ways, the conclusion that the denial letters marked the end of an agency process for the Individual Plaintiffs. For example, the Department’s “Dear Borrower” letter—which was sent to all b orrowers interested in the PSLF Program, such as the Individual Plaintiffs, see AR 142—instructed borrowers that, when submitting their final applicati on for loan forgiveness, they “ do not have to re-submit [ECFs]” that have “already been validated by the Department,” AR 153. In the same letter, the Department informed them that it “will review” an application f or loan forgiveness along with any ECFs “ not previously validated by the Department” in order to “determine if [a borrower] fulfilled all of the requirements to be eligible for PSLF.” Id. (emphasis added). Therefore, the Department’s own language confirms that when it “validates” a b orrower’s employment and loan payments made during her time th ere, its determination marks th e consummation of a process that is not revisited. At that point, “for all practical purpo ses [the Department] ‘has ruled definitively’” on whether the payments count toward the 120 req uired by the PSLF statute. U.S.23 Army Corps of Eng’rs v. Hawkes Co., Inc. , 136 S. Ct. 1807, 1814 (2016) (quoting Sackett , 566 U.S. at 131 (Ginsburg, J., concurring)). In considering whether an agenc y action marks the consummation of a decisionmaking process, the D.C. Circuit has also instructed courts to look to “whether the impact of the [agency action] is sufficiently ‘final’ t o warrant review in the contex t of the particular case.” Citizens Ass’n of Georgetown v. FAA , 896 F.3d 425, 431 (D.C. Cir. 2018) (empha sis added) (quoting
Friedman v. FAA , 841 F.3d 537, 542 (D.C. Cir. 2016)). Her e, the denial letter s have impacted the Individual Plaintiffs’ caree rs and finances in a significant way that underscores their finality, and warrants review at this time. 5 After receiving the denial lette r, Quintero-Millan interviewe d for a director position at ProB AR, but then declined to pursue the position because she “could not work at ProBAR if [her] empl oyment would not qualify for lo an forgiveness.” Pls.’ MSJ Br., Ex. E ¶ 19. Burkhart submits that, with the demands of a famil y and his “growing educational debt,” the Department’s deci sion caused him “great concern abou t [his] ability to meet [his] student loan obligations, a nd to doubt [his] decision to devote [his] career to public service.” Id. , Ex. D ¶ 12. If he had received the denial letter earlier, he a ffirms that he “would not have accepted the position at the ABA.” Id. , Ex. D ¶ 6. Voigt asserts that t he Department’s decision made it “exceedingly difficult to plan [her] finances responsib ly,” which led her to delay

5 In addressing whether the denial letters had “an immediate or significant practical effect” on the Individual Plaintiffs, the C ourt may consider factual asser tions in declarations attached to their motion papers. See Pharm. Research & Manufacturers of Am. v. U.S. Dep’t of Health & Human Servs. , 138 F. Supp. 3d 31, 45–46 (D.D.C. 2015) (looking to “sworn de clarations” of regulated entities to assess wh ether an agency action had “an i mmediate and significant burden” for purposes of determining finality); Nat’l Min. Ass’n v. Jackson , 880 F. Supp. 2d 119, 130–31 (D.D.C. 2012) (reviewing declarat ions to assess “the practical effect of [the] ostensibly nonbinding [regulation]” (quoting Nat’l Ass’n of Home Builders v. Norton , 415 F.3d 8, 15 (D.C. Cir. 2005))), rev’d on other grounds sub nom. Nat’l Min. Ass’n v. McCarthy , 758 F.3d 243, 252 (D.C. Cir. 2014).24 purchasing a home and refinancing her loans. Id. , Ex. C ¶ 19. And Rudert contends that the denial letter impacted his “d ecisions in employment, housing, m arriage, and financial planning.”
Id. , Ex. B ¶ 16. Had he received his de nial letter while employed at VVA, he submits that he “would have left and found ajob that did qualify.” Id. , Ex. B ¶ 14. Defendants argue that the deni al letters did not have “an immed iate or significant practical effect” on the Individua l Plaintiffs because their “e ligibility for PSLF had not yet been finally determined.” Dfs.’ M SJ Br. at 17 n.6. This is nonsens e. In the face of growing debt burdens, the Individual Plaintiffs structured their careers and long-term financial plans around their eligibility for the PSLF Program. The Department’s determinations quite obviously had an “immediate” and “significant” impact on their ability to plan their careers and f inances, despite the fact that they have not ha d (and may never have) the opport unity to submit an application for loan forgiveness. To hold otherw ise would be incompatible withthe Court’s obligation to apply the finality requirement in a “ flexible” and “pragmatic” manner

. Ciba-Geigy, 801 F.2d at 435 (quoting Abbott Labs. , 387 U.S. at 149–50). Finally, Defendants contend that the Department’s statements in the Federal Register during the PSLF negotiated rulemak ing process demonstrate that the denial letters “fall well short of being the ‘consummation’ of the agency’s decision-maki ng process.” Dfs.’ MSJ Br. at 14. Of course, these statements are of quite limited value to the Court, insofar as they are not the “governing statutes and regulati ons [that] structure [an agency ’s] decisionmaking processes.”
Soundboard , 888 F.3d at 1267; see also Brock v. Cathedral Bluffs Shale Oil Co. , 796 F.2d 533, 539 (D.C. Cir. 1986) (“ Publication in the Federal Register does not suggest that the matter published was meant to be a regulation.”). N onetheless, even on their own t erms, they demonstrate nothing of the s ort urged by Defendants.25 Defendants largely rest the ir argument on part of the proposed rulemaking record. 73 Fed. Reg. at 37,705; AR 14. And admittedly, at that time the D epartment “considered . . . but decided not to adopt” the recommen dation that it “provid[e] for annual borrower submission and Departmental review and reten tion of the form . . . that would be certified by the borrower’s employer.” 73 Fed. Reg. at 37,705; AR 14; see also Dfs.’ MSJ Br. at 15; Oral Arg. Tr. at 20:4– 21:17. But the problem for Defe ndants is that during the final rulemaking process, the Department largely reversed cour se. At that point, it decided to establish an annual employmentcertification form, which led i t to develop the ECF Process. 7 3 Fed. Reg. at 63,241–42; AR 45– 46. More specifically, the Department stated that it would dev elop a form for borrowers that would “include an employer certif ication section and instructio ns regarding supporting documentation that the Department will need to determine the bo rrower’s eligibility for the forgiveness benefit.” 73 Fed. Reg. at 63,241–42; AR 45–46. Si gnificantly, the Department represented that borro wers would be able to use the form to col lect employment certifications at the close of the 120-month qua lifying period, but also at other intermittent times as well . 73 Fed. Reg. at 63,242; AR 46. The Department did note that it “expect [ed] the borrower to collect and retain the necessary records th at support the borrower’s eligib ility for this bene fit.” 73 Fed. Reg. at 63,242; AR 46. But in the end, the Department’s statements in the Federal Register do not undermine the conclusion that the denial letters represented th e consummation of the Department’s process in determini ng whether the Individual Plai ntiffs’ employment—and loan payments made during that emp loyment—qualified under the PSLF P rogram. For the reasons described above, t he Court concludes that the d enial letters sent to the Individual Plaintiffs satis fy the first prong of the Bennett test.26 b. Determination of Plaintiffs’ Rights and Obligations The Individual Plaintiffs The second prong of the Bennett inquiry is satisfied if the ag ency action is “one by which ‘rights or obligations have been de termined,’ or from which ‘le gal consequences will flow.’”
Bennett , 520 U.S. at 177 (quoting Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget
Transatlantic , 400 U.S. 62, 71 (1970)). In other w ords, the second prong fo cuses on “whether the result of that process is one that will directly affect the parties.” Franklin v. Massachusetts , 505 U.S. 788, 797 (1992). When the “definitiveness” of an agency decision satisfies the f irst Bennett prong, the D.C. Circuit has recognized that the same evidence may “also le ad[] inexorably to the conclusion that [a plaintiff’s] ‘right s . . . have been determined.’” Safari Club Int’l v. Jewell , 842 F.3d 1280, 1289 (D.C. Cir. 2016) (omission i n original) (quoting Bennett , 520 U.S. at 178); see also U.S. Army Corps of Eng’rs , 136 S. Ct. at 1814 (“The definitiv e nature of [the agency act ion] also gives rise to direct and appreciab le legal consequences, thereb y satisfying the second prong of
Bennett .” (internal quotation marks omitted)). And for reasons alread y explained, such is the case here for the Individual Pl aintiffs, whose rights under the PSLF statute to have their loan payments count toward loan forgi veness were determined in the d enial letters. See 20 U.S.C. § 1087e(m). Defendants contend that the denial letters “fall well short of determining rights or obligations” because the letters only provide “provisional guid ance” to the Individual Plaintiffs. Dfs.’ MSJ Br. at 17. In support of their position, Defendants cite to the language contained in the denial letter to Quintero-Mi llan, addressed in the Court’s analysis of Bennett ’s first prong, stating that the Department wil l “only determine” whether the b orrowers have “fulfilled all of the requirements to be eligible for PSLF” after submitting a final loan forgiveness application. Id. at27 17–18 (citing AR 195). And again, Def endants note that the letters state that the borrower’s “employer does not appear to qualify for PSLF.” Id. at 18. But for all the reasons already explained, the denial letters wer e not provisional. At a minimum, the letters determined the rights of the Individual Plainti ffs to have the payments at iss ue count toward the 120 such payments needed. Additionally, i n the cases of Burkhart and Vo igt, who as of May 2017 continued to work for employers that the Department concluded d id not qualify as “public service organizations,” the letters effectively determined thei r eligibility to participate in the PSLF Program unless they changed jobs. The ABA Unlike the Individual Plaintiffs ’ denial letters, however, the Department’s letters to the ABA are not actions by which a pa rty’s “rights or obligations h ave been determined” or from which “legal consequences will flow.” Bennett , 520 U.S. at 178. In its June 2016 letter, the Department informed the ABA that i t had “determined that the ABA does not qualify as a public service organization for [. . .] PSLF purposes” because it failed to demonstrate that its “prim ary purpose” was to provide “publi c interest law services.” AR 190–91. In December 2016, the Department confirmed that determ ination. AR 192–93. Though these letters appear similar to those sent to the Indivi dual Plaintiffs, they cannot satisfy the second prong of the Bennett test. Under the PSLF statute, the Depa rtment has an obligation to pro vide loan forgiveness only to eligible borrowers

. See 20 U.S.C. 1087e(m). The system by which it does so requires that borrowers collect and s ubmit ECFs covering 120 valid loan payments, which the Department approves or denies as they are received. Accordingl y, the Department’s letters to the ABA—which do not constitute a determination on the eligibility of payments made by a28 particular borrower —cannot be said to determine ri ghts or obligations under the st atute. As an employer, the ABA has no such rig hts or obligations, since it h as no possible claim to loan forgiveness. And indeed, there is no procedure set out in 34 C .F.R. § 685.219 or the Department’s guidance by which an employer can seek to validate whether it meets the definition of a “public service organization” in a manner similar to the p rocess available for borrowers to track the number of eligible pa yments they have completed. See 34 C.F.R. § 685.219; AR 168–
80. For the same reasons, legal consequences do not flow from the D epartment’s letters to the ABA. When considering the issue of legal consequences, the D.C. Circuit has looked to “the actual legal effect (or lack the reof) of the agency action in q uestion on regulated entities.” Nat’l
Min. Ass’n , 758 F.3d at 252. “[I]f the practic al effect of the agency ac tion is not a certain change in the legal obligations of aparty, the action is non-final fo r the purpose of judicial review.” Nat’l Ass’n of Home Builders , 415 F.3d at 15. Although the letters to the ABA describe sep arate eligibility determinations rende red by the Department, as well as the basis for those decisions, the letters themselves do not carry the same legal consequences for any particular borrower, like the letters sent to the Indivi dual Plaintiffs. Nor do the lett ers carry legal consequences for the ABA. Because the ABA has no leg al obligations or rights under the PSLF statute, the Department’s letters cannot have changed them. And the ABA’s e xtensive account of “serious recruiting and retention problem s due to the revocation of its status as a PSLF-eligible employer” does not alter this conclusion. P ls.’ Reply at 9. Practical e ffects alone, significant as they may be, do not meet the ABA’s burden under Bennett ’s second prong. See Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin. , 452 F.3d 798, 811 (D.C. Cir. 2006) (“The flaw in appellants’ [finality] argument is that the ‘consequences’ to w hich they allude are practical, not29 legal.”). Therefore, these lette rs are not final agency action s and are unreview able under the APA. For this reason, the Court wi ll enter judgment for Defend ants on Counts I, II, III, and IV of the ABA’s claims.
* * * For the foregoing reasons, the Court concludes that the Departm ent’s denial letters sent to the Individual Plaintiffs were final agency actions, and the le tters it sent to the ABA were not. Consequently, the Court will proceed to consider the Individual Plaintiffs’ claims that the Department’s determinations ref lected in those letters violated the APA.
3. The Individual Plaintiffs’ APA Claims

a. Whether the Department Changed its Practices The Individual Plaintiffs alleg e, in Count I, that Defendants v iolated the APA when the Department changed its practices “without notice or explanation ,” Pls.’ MSJ Br. at 29, by adopting a set of new “interpret ations of statutory and regulat ory terms defining the types of employment that qualify for the PSLF program.” Pls.’ Reply at 8; see also id. at 30–31. The Department relied upon these new in terpretations, the Individua l Plaintiffs argue, when it issued the denial letters t o them and reversed its earlier determinati ons that their employment with the ABA, AILA, and VVA qualified. P ls.’ MSJ Br. at 29–33. In fact , the various APA claims they bring are all predicated on their contention th at the Department changed its interpretation of the PSLF regulation in certain ways, t hereby rendering their employ ment and related payments ineligible under the PSLF Program . For their part, Defendants deny that any change took place, maintaining that the Department’ s denial letters were only “ind ividualized, non-final determinations” that should not be read as “the agency’s genera lly applicable policy in administering the PSLF.” Dfs .’ MSJ Br. at 28–29. Therefore, t he first step in evaluating the30 Individual Plaintiffs’ APA claims is determining whether the De partment did in fact change its practices by applying a new inter pretation of the PSLF regulati on to the Individual Plaintiffs. 6 To determine whether an agency ha s changed its practices in the face of its insistence “that nothing [has] changed,” cour ts independently review the a dministrative record. Am. Wild Horse Preservation Campaign v. Perdue , 873 F.3d 914, 924–25 (D.C. Cir. 2017). But the record need not necessarily reflect formal documentation of a change f or the Court to conclude that one has occurred. Aracely , 319 F. Supp. 3d at 141 (concluding u pon review of the record that “Plaintiffs’ evidence of an unwritten . . . policy . . . outwei gh[ed] Defendants’ self-serving declaration to the contrary.”) . Indeed, another court in this district determined, over an agency’s objections, that an agency change d its practices even where the plaintiffs “failed to cite any statute, regulation, policy me moranda, or any other document me morializing the [change] they challenge.” R.I.L—R v. Johnson , 80 F. Supp. 3d 164, 184 (D.D.C. 2015). Therefore, the Court

6 Throughout the briefing, the partie s reference tw o distinct se ts of agency actions: (1) the issuance of the denial letters and (2) the alleged adoption of new standards by which the Department determined whether non -501(c)(3) not-for-profit orga nizations qualified as public service organizations under the PSLF Program. Compare Pls.’ MSJ Br. at 15-16 (arguing that the Department’s “eligibility de nials” are final agency actions ) with id. at 25-26 (arguing that the standards reflect the Departmen t’s “changed interpretations” of the PSLF regulation). However, the parties only address the fina lity of the denial letters, an d not the finality of the Department’s decision to adopt the purportedly- new standards on which the le tters were based. While Defendants argue that the denial letters, and other letters in response to ECF submissions, should not be considered final, they cont end that the three contested standards reflect the Department’s “consistent and unchanged” interpretation of the PSLF regulatio n. Dfs.’ MSJ Br. at 30. And although Defendants suggested at or al argument, for the first t ime, that these standards may not reflect final agency action, tha t suggestion was made only in f urtherance of their argument that the denial letters were not final. See Oral Arg. Tr. at 27:15–28: 16. Therefore, for the same reasons that the denial letters are final—and in light of Defen dants’ position that the Department applied the standards at issue to determine that the Individual Plaintiffs’ employment did not qualify under the PSLF Program, Dfs.’ MSJ Br. at 27—the Court c oncludes that it may review the Department’s adoption of the s tandards as fin al agency acti on, as well, see Aracely , 319 F. Supp. 3d at 139 (reviewing cases in which an unwritten agency p olicy, applied through individual determinations, is de termined “to be judicially revi ewable as a final action”).31 will independently review the evidence in the record to determi ne whether the Department in fact changed its practices by applyi ng a new interpretation of the P SLF regulation. In doing so, the Court will also consider—for reasons explained in Section III—e xtra-record evidence submitted by Plaintiffs. The Individual Plaintiffs allege that the Department changed it s interpretation of the PSLF regulation by adopting new, hei ghtened standards governing whether non-501(c)(3) notfor-profit organizations qualify a s public servi ce organization s for purposes of the PSLF Program. 7 They identify three newly-adopte d standards the Court will re fer to as the “Primary Purpose” standard, the “School-like Setting” standard, and the “Outright Provision of Services” standard. See Pls.’ MSJ Br. at 31–33. The Court considers whether the eviden ce supports their claim that each reflects a cha nge to how the Department interpr eted and applied the PSLF regulation below. The “Primary Purpose” Standard The Individual Plaintiffs alleg e that, sometime between 2015 an d 2016, the Department adopted the Primary Purpose sta ndard as part of its determinati on as to whether non-501(c)(3) not-for-profit organizations tha t provide “public interest law services” qualify as “public service organizations” under the PSLF regulation. Id. at 31–32; id. , Ex. A ¶¶ 24, 31–36. Under this standard, for her loan payment s to qualify, a borrower must dem onstrate that the “primary purpose” of her non-501(c)(3) not-f or-profit employer is to pro vide qualifying public services.
See id. , Ex. A ¶ 31; AR 190–91. As Defendants’ concede, the Departmen t relied on this

7 The Court notes that these s tandards appear to have no bearing on the eligibility of borrowers who are not employed at non-501(c)(3 ) not-for-profit organizati ons, such as Federal, State and local government employees, uniformed members of the U.S. ArmedForces or the National Guard, employees of 501(c)(3) not-for-profits, or those who are otherwise eligib le for the PSLF Program. See 34 C.F.R. § 685.219(b); Oral Arg. Tr. at 24:2–10.32 reasoning when it sent denial le tters to ABA employees in 2016, Dfs.’ MSJ Br. at 27, which includes the denial letters cha llenged by Quintero-Millan and B urkhart, see AR 214–15, 237–39. The Individual Plaintiffs cont end that, by adopting the standar d, the Department “reversed [its] past practice without notice or e xplanation.” Pls.’ MSJ Br. at 29. Defendants, by contrast, contend that the Department had always applied this reasoning i n evaluating whether employment at particular organi zations qualified for the PSLF P rogram, and that the letters approving ECFs submitted by Burkhart prior to his 2016 denial l etter resulted from a “mistake” or “contractor’s error.” Dfs.’ M SJ Br. at 9; Dfs.’ Reply at 17 –18. The evidence supports the Individua l Plaintiffs’ claim that the Department changed how it interpreted and applied the PSLF regulation by adopting the Primary Purpose standard at some point before it began issuing deni al letters to ABA employees l ike Quintero-Millan and Burkhart. The Department’s handling of Burkhart’s case is, at a minimum, consistent with such a change. As discussed above, despite the ABA ’s apparent failure to meet this standard, the Department approved his employment there on a t least four occasions before reversing course. Pls.’ MSJ Br., Ex. D ¶¶ 7–8. In addition, according to the ABA, several of its other employees received letters confirming that their employment there had qualified as well. Id. , Ex. A ¶ 22. But the record is also notable for what it lacks: any evidence as to wh ether the Department applied the Primary Purpose standard—or e ven sought information about any e mployer’s primary purpose— prior to sending letters to th e ABA’s employees denying their e ligibility in 2015. 8 Id. , Ex. A ¶ 24. The earliest specific refere nce to the Primary Purpose s tandard in the record appears to be

8 At oral argument, the Court in vited Defendants to point to any evidence in the record, or to submit additional evidence, showi ng that it had a pplied the Pri mary Purpose and School-like Setting standards prior t o 2015 or 2014, respectively. Oral Ar g. Tr. 49:25–51:17. Defendants did not do so.33 in the Department’s June 2016 letter to the ABA. See AR 190–91 (describing how the Department had not received documen tation demonstrating “that t he primary purpose of the ABA is to provide ‘public in terest law services’”). The extra-record evidence—whic h consists of internal Department and FedLoan Servicing email traffic—addre sses this point directly. And it demonstrates that the Department changed how it interpreted the PSLF regulation by adopting the Primary Purpose standard and applying it to borrowers gener ally. In February 2017, a FedLoa n Servicing employee emailed Foss to express “concern[]” as t o whether his recent instructio n that an “organization’s ‘primary purpose’ [had] to be to provide one of the qualifying services” was “directly conflicting with how we have been evaluating certa in [public health] organizatio ns” based on guidance Foss had offered several years earlier. 9 Pls.’ Supp. Br., Ex. B. The employee referenced a prior case in which FedLoan Servicing and the D epartment, in applying that gu idance, had jointly agreed to approve an employer even though its primary purpose did not involve a qualifying service. Id. In response, Foss instructed the employee to “do a retraction” of the employer’s e ligibility status.
Id. Foss then requested that th e employee “comb through those org anizations that [they had] approved” and “provide [the Department] a list, like [the emplo yee had] done for public education and public interest legal services .” Id. (emphasis added). Not long afterward, in June 2017, tha t same FedLoan Servicing e mployee described to a co-worker how, a “few months a go,” the Department “introduced anew concept in the review, ‘primary purpose.’” Pls.’ 2d Supp. Br., Ex. E. As a result, t he Department was reevaluating ECFs that FedLoan Servicing had p reviously approved based on ea rlier Department guidance.

9 In 2014, Foss had sent Voigt the Department’s explanation as t o why it changed its position on whether her employment at AILA qualified for the PSLF Program. See AR 334.34 Id. In fact, the employee recounte d, FedLoan Servicing had provid ed the Department a spreadsheet of organizations t hat it had approved pursuant to t he prior guidance, but the Department “still ha[d] not provided follow-up” on it. Id. The next month, FedLoan Servicing updated its “Employment Certificat ion Form Manual” to reflect t hat “[a]s of February 23, 2017, [the Department] advised [that] a private not-for-profit (non-5 01(c)(3)) organization should be evaluated based on [its] ‘primary purpose.’” Id. , Ex. C. This extra-record evidence shows that the Department’s adoption of the Primary Purpose standard represented a change to how it interpreted and applied the PSLF regulation. To be sure, this evidence postdates the denial letters sent to Quintero-Mil lan and Burkhart, and some of it appears to concern the standard’s application to public health organizations specifically. Nonetheless, it shows a Department employee referencing an earlier implementation of the Primary Purpose standard with r egard to “public interest legal services” employers. Pls.’ Supp. Br., Ex. B. That implementation a pparently required the Depart ment to request a list of such employers that had been approved b eforehand so that they could be reconsidered. Id. And it does not appear that the manual used by FedLoan Servicing to ap ply the PSLF regulation included the Primary Purpose standard until as late as 2017. P ls.’ 2d Supp. Br., Ex. E. Indeed, following the commencement of thi s action, the Department added the Primary Purpose standard to its on-line descri ption of the PSLF Pr ogram’s qualifications

. See Pls.’ Reply at 18 n.6;
Federal Student Aid: Public Service Loan Forgiveness , https://studentaid.ed.gov/sa/repayloans/forgiveness-cancellati on/public-service#qualify (last vis ited Feb. 21, 2019). This evidence simply does not comport with Defe ndants’ contention that the pr ior letters sent to Burkhart and other ABA employees confirming that their employment qualified for the PSLF Program were35 the result of individualized mis takes or errors in applying a s tandard that had always been in place. In total, this evidence makes a bundantly clear that, at some po int before sending the denial letters to Quintero-Mi llan and Burkhart in 2016, the Dep artment changed its practices by adopting the Primary Purpose st andard. Through this change, the Department modified the requirements by which a non-501(c)(3 ) not-for-profit organizati on may qualify as a public service organization by adding the condition that organizations that serve multiple purposes must show that their primary one is to provide a qualifying public service. Regardless of whether adding such a requirement was “a reasonable decision” and “cons istent with the intent of the statute,” as Defendants conte nd, Dfs.’ MSJ Br. at 27, the Department’s adoption of the Primary Purpose standard constituted a c hange to how it interpreted and applied the PSLF regulation. And as explained in more detail be low, that change, at the leas t, required it to meet the minimum requirements for reasoned decisionmaking under the APA. See Ark Initiative v. Tidwell , 816 F.3d 119, 128 (D.C. Cir. 2016) (“Where an agency changes a poli cy or practice, it ‘is obligated to supply a reasoned analysis fo r the change.’” (quoting Motor Vehicle Mfrs. Ass’n of the U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983)). The “School-Like Setting” Standard According to the Individual Plai ntiffs, the Department also cha nged its practices by adopting the School-like Setting standard, and then relied uponthat standard in sending Voigt her denial letter in December 2014. Pls.’ MSJ Br. at 32; AR 33 5–36. Under the School-like Setting standard, a public educati on organization under conside ration for PSLF eligibility is required to demonstrate that it provides qualifying services “i n a school or a school-like setting.” AR 336. Over two years beforehand, w hen the Department determi ned that Voigt’s employer,36 AILA, qualified as “an eligible pub lic service organization” un der 34 C.F.R. § 685.219(b), AR 337, the Individual Plaintiffs contend this standard “did no t exist,” 10 Pls.’ MSJ Br. at 32. As with the Primary Purpose standard, the Department does not cont est that the School-like Setting standard provided the underlying rationale for its ultimate det ermination that Voigt’s employment at AILA did not qualif y as an organization that prov ides public education services. Dfs.’ MSJ Br. at 27. But the Dep artment submits that it has “c onsistently applied” its interpretation of “public educati on” services since the initial promulgation of the PSLF regulation. Dfs.’ Reply at 15–16. The evidence, however, shows that the Department changed how it interpreted and applied the PSLF regulation by adop ting this new standard. Onc e again, there is evidence in the record consistent with such a cha nge—for example, at first, the Department told Voigt that her employment at AILA “[met] the definition of public service orga nization” under the regulation, only to then reverse course, A R 337—but it does not directly ad dress the point. And, as it did with the Primary Purpose standar d, the Department added the Sch ool-like Setting standard to an updated version of its ECF instruc tion sheet following the comm encement of this suit. Pls.’ MSJ Br. at 10–11 n.4; see Public Service Loan Forgiveness (PSLF): Employment Certificatio n Form at 3, https://studentaid.ed.gov/sa/s ites/default/files/public-s ervice-employment-certificationform.pdf (last visited Feb. 21, 2019) . However, the record doe s not contain any evidence, one way or the other, as to whether t he Department applied the Scho ol-like Setting standard to any

10 In its June 2012 confirmation that Voigt’s employment was elig ible, the Department did not specify whether AILA qualified a s an organization that provided “public interest law services” or “public education services.” See AR 337. Defendants contend that, a t that time, the Department had mistakenly determined that AILA qualified as “a not-for-pro fit organization that provided public interest law services.” D fs.’ MSJ Br. at 10. Plaintiff s do not challenge the Department’s determination that AILA was not a qualifying pub lic service org anization on that basis. See Pls.’ Reply at 30.37 particular borrower’s employmen t, or even inquired into the set ting in which an organization provided education services, before its December 2014 denial le tter to Voigt. See supra note 8. The extra-record evidence, howev er, decimates Defendants’ posit ion in Voigt’s case. In August 2014, Foss emailed a FedLoan Servicing employee, excited ly announcing that Department had finally “se ttled . . . on a definition of public education!” Pls.’ Supp. Br., Ex. C. Foss then went on to describe how the new definition would requ ire a qualifying organization to “provide educational enrichment or support directly to students or their families in a school or a school-like setting.” Id. This email, unrebutted by the D epartment, is all-but-conclusi ve evidence that it introduced the S chool-like Setting standard ov er two years after it informed Voigt in June 2012 that her empl oyment at AILA qualified, and afew months before it reversed itself in her case. And even accepting Defendants’ contention— for which there is no contemporaneous evidence—that the Department did not assess Voi gt’s employment as potentially providing public edu cation services (as opposed to public interest law services) prior to issuing its June 2012 letter, the extra-record evidence show s that the Department adopted this new standard years after its pr omulgation of the PSLF regulatio n. See id. Moreover, as noted above, the extra-record evidence indicates that, after it adopt ed this new standard, the Department was forced to retract l etters that had previously co nfirmed borrowers’ eligibility based on their employment with organizations that provided “ public education and public interest legal services.” Id. , Ex. B (emphasis added). Based on this evidence, the Court co ncludes that the Department changed how it interpreted and applied the PSL F regulation by adopting the Sch ool-like Setting standard, and then applied that new standar d to Voigt’s case. Through this c hange, the Department added the condition that qualifying organi zations must provide public edu cation services directly to38 students or their families in a s chool or a school-like setting

. 11 That requirement appears nowhere in the text of the re gulation itself, which does not de fine the term “public education.”
See 34 C.F.R. § 685.219(b). And while such a reading of the regula tion may be reasonable, as explained in more detail below, the Department was obligated, a t a minimum, to meet the APA’s requirements for reasoned decisionmaking when it changed its pr actices to adopt the standard. The “Outright Provision of Services” Standard Finally, the Individual Plaintiffs argue that the Department ch anged its practices by adopting the Outright Provision of Services standard when consi dering whether an organization provides a “public service for i ndividuals with disabilities an d the elderly” under 34 C.F.R. § 685.219(b). Pls.’ MSJ Br. at 32–33. Under this purported stan dard, an organization that “[p]rovides . . . public servi ces,” 34 C.F.R. § 685.219(b), mus t “provide the services outright ,” Pls.’ MSJ Br. at 33 (emphasis added) (quoting AR 331). The Dep artment relied on this new rationale, according to the Indi vidual Plaintiffs, when it issu ed the April 2016 denial letter to Rudert on the basis that VVA only “ facilitate[d] the provision of disability-related services” and did not “provide the services outright.” 12 Id. at 32–33 (quoting AR 331). Unlike the Individual Plaintiffs ’ claims about the Primary Purp ose and School-like Setting standards, however, their c laim that the Outright Provi sion of Services standard

11 The Court notes that the extra -record evidence , by reflecting the adoption and application of both the Primary Purpose standard and the School-like Setting s tandard to borrowers in an across-the-board fashion, further underscores the finality of t he denial letters sent to QuinteroMillan, Burkhart, and Voigt. See supra Section II(B)(2).

12 The Department appears to have also determined that VVA did no t meet the regulatory requirements to provide “public int erest law services” because it was not “funded in whole or in part by a local, State, Federal, o r Tribal government” as set o ut in 34 C.F.R. § 685.219(b). See AR 330–31. Rudert does not challenge the Department’s determin ation as to this alternative basis for eligibility.39 represented a change to the Depa rtment’s interpretation of the PSLF regulation is unsupported by the evidence. The only reference to this alleged standard in the record is in an August 2016 letter from the Department to a congresswoman who had inquired about R udert’s denial. AR 330–31. And unlike with the oth er standards, there is no extra-record e vidence that shows a discrete shift how the Department’s interprete d and applied the PSLF regulatio n. Indeed, the purported Outright Provision of Services s tandard appears only to reflect a straightforward application of the regulation to Rudert’s case, r ather than a new interpretati on, given that its plain language mandates that a qualifying organi zation “[p]rovide[]” particular public services. 34 C.F.R. § 685.219(b). Without additional supporting evidence, the Indi vidual Plaintiffs’ argument that Rudert’s denial represents a ch ange in the Department’s practic es following the promulgation of the PSLF regulation is unpersuasi ve. At bottom, the Court cann ot conclude, “as a factual matter,” that the Department “changed its past position . . . . ” United Student Aid Funds, Inc. v. King , 200 F. Supp. 3d 163, 170 (D.D.C. 2016).
b. The Individual Plaintiffs’ Pr ocedural APA Claim (Count I) In Count I, the Individual Plain tiffs assert, among other thing s, that because the Department changed its interpret ations of the PSLF regulation b y adopting the Primary Purpose and School-like Setting standard s, it must—but did not—adhere t o certain minimal procedural requirements under the APA. The Court agrees. The Department argues, for various reasons, that the Primary Purpose and Sc hool-like Settin g standards are “reasonable” and “consistent with the intent of the statute.” Dfs.’ MSJ Br. at 25–28. Maybe so. But its refusal to concede that it40 changed its practices when it a dopted the standards effectivelyprecluded it from satisfying the APA’s basic procedural re quirements when it did so. 13 The APA requires that a court “h old unlawful and set aside agen cy action” that is “arbitrary, capricious, an abus e of discretion, or otherwise no t in accordance with law.” 5 U.S.C. § 706(2). Under this standard, courts do not “substitute [thei r] judgment for that of the agency,” but review the action to determin e whether the agency “examine[ d] the relevant data and articulat[d] a satisfactory expl anation for its a ction[,] inclu ding a ‘rational c onnection between the facts found and the choice made.’” Mingo Logan Coal Co. v. EPA , 829 F.3d 710, 719 (D.C. Cir. 2016) (quoting State Farm Mut. Auto. Ins. , 463 U.S. at 43). “One of the core tenets of reasoned decisionmaking . . . is th at ‘an agency changing its c ourse . . . is obligated to supply a reasoned analysis for the change.” Jicarilla Apache Nation v. U.S. Dep’t. of the Interior , 613 F.3d 1112, 1119 (D.C. Cir. 2010) (sec ond omission in original) (quoting State Farm Mut. Auto
Ins. , 463 U.S. at 42); see Judulang v. Holder , 565 U.S. 42, 45 (2011) (“When an administrative agency sets policy, it must provi de a reasoned explanation for its action.”). And although “an agency ‘is free to alter its pa st rulings and practices even inan adjudicatory setting,’” Dilmon v.

13 Although the parties agree that t he Primary Purpose and School -like Setting standards represent the Department’s inter pretation of its own regulation s, they do not squarely address in their briefing the type of agenc y action by which the Departmen t adopted the standards. See Nat’l Min. Ass’n , 758 F.3d at 251 (“The APA divide s agency action . . . into three boxes: legislative rules, interpretiv e rules, and general statements o f policy.”). At times, Plaintiffs suggest that the Department’s a doption of the standards constituted a legislative rulemaking, which would require the Departm ent to undergo formal notice-and -comment procedures. Pls.’ MSJ Br. at 11, 30 n.15; see 5 U.S.C. § 553. Defendants, by contra st, skirt the issue by ta king the position that the Department app lied the standards consistentlysince the promulgation of the PSLF regulation and therefore did not engage in any agency acti on subject to the APA. Dfs.’ MSJ Br. at 30. Given the Court’s conclusion that the Departmen t engaged in arbitrary and capricious action by departing from its past practices without meeting the basic procedural requirements of the APA—and ruli ng in favor of Quintero-Millan, Burkhart, and Voigt on that basis—it need not determine the specific type of agency action the Department undertook in adopting the Primary Purpose a nd School-like Setting standards.41 Nat’l Transp. Safety Bd. , 588 F.3d 1085, 1090 (D.C. Cir. 2009) (quoting Airmark Corp. v. FAA , 758 F.2d 685, 691–92 (D.C. Cir. 1985), it is required “to ‘disp lay awareness that it is changing position’ and [may not] ‘depart from a prior policy sub silentio or simply disregard rules that are still on the books,’” id. (quoting FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 515 (2009));
see also Lone Mountain Processing, Inc. v. Sec’y of Labor , 709 F.3d 1161, 1164 (D.C. Cir. 2013) (“[A]n agency changing its c ourse must supply a reasoned analysis indica ting that prior policies and standards are be ing deliberately changed, not casu ally ignored.” (quoting Greater Boston Television Corp. v. FCC , 444 F.2d 841, 852 (D.C. Cir. 1970))). Further, when an agenc y changes a policy, “serious relian ce interests must be taken int o account.” Mingo Logan Coal , 829 F.3d at 719 (quoting Fox Television Stations , 556 U.S. at 515). Consequently, “where the agency has failed to provide eve n [a] minimal level of analysis , its action is arbitrary and capricious and . . . cannot carry the force of law.” Encino Motorcars, LLC v. Navarro , 136 S. Ct. 2117, 2125 (2016) Therefore, by adopting new standard s that modified the criteriaby which borrowers’ employment qualified for the PSLF Program, the Department was r equired to “display awareness” of its changing position, provide reasoned analysis for that decision, and take into account any serious reliance interests affected. Id. As explained in more detail below, the Department failed to satisfy the se requirements as to Quintero- Millan, Burkhart, and Voigt. There is no indication in the re cord that, prior to issuing the denial letters to QuinteroMillan and Burkhart, the Department acknowledged that it change d its practices by adopting the Primary Purpose standard, provided a reasoned analysis for sucha change, or demonstrated that it had considered the substantial reliance interests at stake. Nor did the Department meet these minimum requirements in the deni al letters themselves. Indeed, the Department did not even42 reference the Primary Purpose stan dard as the basis for its dec ision in the denial letters issued to Quintero-Millan and Burkhart, although it now asserts that it r elied on it when evaluating the eligibility of ABA empl oyees at that time. See Dfs.’ MSJ Br. at 27. And to this day, the Department has not acknowledge d that it changed its practices i n this regard. Therefore, Quintero-Millan and Burkhart wer e provided none of the process required by the APA, and the Department concedes as much. See id. at 30 (arguing that no proce ss was required because the Department’s interpretation of the PSLF regulation remained unc hanged). Accordingly, the Department acted arbitrarily a nd capriciously when it adopted the Primary Purpose standard without the minimum requirement s of reasoned decisionmaking anddetermined that QuinteroMillan and Burkhart’s employm ent did not qualify on that basis. Summary judgment is thus warranted in their favor, and a gainst Defendants, on Count I. Likewise, the Department failed to provide Voigt with the requi red minimum process under the APA when it denied that her employment qualified for the PSLF program by applying the School-like Setting standa rd. In her December 2014 denial letter, the Department mentioned the relevant standard by informi ng her that it “co nsiders ‘publ ic education services’ to be services that provide educationa l enrichment or support directl y to students or their families in a school or school-like setting.” AR 336. But the Department fa iled to acknowledge that it had adopted this standard just a fe w months beforehand, failed to e xplain its reasoning for the change to its practices, and f ailed to show that it had considered the relevant reliance interests. 14 And

14 Even if the Department had not ye t settled on an interpretatio n of the term “public education services” before it adopted the School-like Setting standard in2014, its application of that standard from that point forwar d would still be arbitrary and c apricious for lack of any reasoned explanation. See Kirwa v. U.S. Dep’t of Defense , 285 F. Supp. 3d 21, 39 (D.D.C. 2017) (“Whether [an agency] is taking an initial agency action or cha nging a longstanding policy, or practice, it must still provide a reasoned explanation for its action.”).43 there is no indication in the record that it met these minimum procedural requirements through any other means, such as a publ ic notice to borro wers, prior to issuing the denial letter to Voigt. Therefore, the Department acte d arbitrarily and capriciously wh en it adopted the School-like Setting standard without meeting the requirements of reasoned d ecisionmaking and, on that basis, determined that Voigt’s employment did not qualify. For this reason, summary judgment is warranted in Voigt’s favor , and against Defendants, on CountI as well. In contrast, because the record does not support the conclusionthat the Department changed its interpret ation of the PSLF re gulation by adopting the purported Outright Provision of Services standard, the Court canno t conclude that it violated the APA’s procedural requirements when it determined that Rudert ’s employment at the VVA did not qualify. See Select Specialty Hosp.-Bloomington, Inc. v. Sebelius , 774 F. Supp. 2d 332, 344–45 (D.D.C. 2011) (denying similar APA procedural claims b ecause the plaintiffs “d[id] not show that the [agency] actually changed [its] interpretation of the regulation”). Although the Individual Plaintiffs contend that the Department “articulate[d] a new standard” when it issued it s denial letter to Rudert, Pls.’ MSJ Br. at 33, they fail to provide clear evidence that any suc h change occurred. Accordingly, Rudert has not carried his burde n of persuading the Court that the Department’s application of the Outright Provision of Services standard required it to sati sfy any procedural requirements at all. Therefore, summary judgmen t must be granted for Defendant s, and against Rudert, on
Count I. Quintero-Millan, Burkhart, and Voi gt also allege that the Department’s new standards violated the APA because the Department failed to satisfy the A PA’s notice requirements, “failed to comport w ith the PSLF program’s authorizing statute . . . [and] applied regulatory changes in an impermissibly retro active manner.” Pls.’ MSJ Br. at 1. Additionally, they allege44 that the Department’s reliance on those standards violated “due process under the Fifth Amendment.” Id. However, because the Court’s c onclusion that the Department v iolated the APA’s most basic procedural requi rements disposes of their moti ons for summary judgment, the Court need not reach these additional claims. See Spirit of the Sage Council v. Norton , 294 F. Supp. 2d 67, 90 (D.D.C. 2003) (“Given that it appears clear that the [agency rule] was adopted ‘without observance of the proced ure required by law,’ 5 U.S.C. § 706(2)(D), the Court need not reach the question of whether the [rule] is, as a substantive m atter, ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” ), vacated in part , 411 F.3d 225 (D.C. Cir. 2005).

c. Rudert’s Remaining APA Claims (Counts II–IV) Having determined that Defendants are entitled to summary judgm ent on Rudert’s procedural APA claim, the Court turns to his remaining APA clai ms—namely, that the Department failed to follow APA notice requirements when it ado pted the purported Outright Provision of Services standard, tha t it unlawfully imposed retr oactive consequences in applying the standard to Rudert, and that th e standard is contrary to th e PSLF statute and regulation. The Court concludes that Defendants are entitled to s ummary judgmen t on each of these claims. 15 First, Defendants are entitle d to summary judgment on Rudert’s claim in Count II that the Department failed to follow APA notice requirements. The statu te requires that agencies publish in the federal register all “substantive rules of general applicability a dopted as authorized by law, and statements of general polic y or interpretations of general applicability formulated and adopted by the agency.” 5 U.S.C . § 552(a)(1)(D). The requirem ent to publish in advance

15 In Plaintiffs’ reply brief, Rudert also argues—for the first t ime—that the Department erred when it concluded, as a factual matter, that VVA did not directlyprovide a “public service for individuals with disabilities. ” Pls.’ Reply at 28–29. The Cou rt considers this ar gument forfeited. See Abdullah v. Obama , 753 F.3d 193, 199 (D.C. Cir. 2014).45 applies only to “substantive ru les” and not to “interpretive ru les, general statements of policy, or rules of agency organizati on, procedure, or practice.” Stuart-James Co. v. SEC , 857 F.2d 796, 800 (D.C. Cir. 1988). Because the Court cannot conclude on thi s record that Rudert’s denial letter was based on any sort of ne wly-adopted rule or policy ch ange—much less a new substantive rule—Defendants ar e entitled to summary judgment. Second, Defendants are also en titled to summary judgment on Rud ert’s claim in Count III that the Department imposed r etroactive consequences on him by relying on a new standard to revoke the eligibility status of his employment and past loan p ayments. “[A] retroactive rule forbidden by the APA is one which ‘alter[s] the past legal consequences of past actions.’” Celtronix Telemetry, Inc. v. FCC , 272 F.3d 585, 588 (D.C. Cir. 2001) (quoting Bowen v. Georgetown Univ. Hosp. , 488 U.S. 204, 219 (1988) (Scalia, J. c oncurring)) (alteration s in original). “To determine whethe r a rule is impermissibly retro active, [the Court must] first look to see whether it affects a substantive change from the agency’ s prior regulation or practice.” Ne. Hosp Corp. v. Sebelius , 657 F.3d 1, 14 (D.C. Cir. 2011) (quoting Nat’l Min. Ass’n v. Dep’t of
Labor , 292 F.3d 849, 860 (D.C. Cir. 2002)). And again, as set forth in Section II(B)(3)(a), the record does not support Rudert’s c laim that the Department appl ied or relied upon a new rule or interpretation when it determin ed that his employment at VVA di d not qualify under the PSLF Program. Moreover, although the Department previously confirme d to Rudert that his employment was eligible, an agenc y’s attempt to correct a “mist ake in interpreting and applying its own recently promulgated regulations” does not necessarily trigger the APA’s prohibition on retroactive rules. Alvarado Parkway Inst., Inc. v. Mendez , 789 F. Supp. 1190, 1201 (D.D.C. 1992). Therefore, the Court cannot conclude that the Departmen t took impermissible retroactive action.46 Third, Defendants are entitled t o summary judgment on Rudert’s claim in Count IV that the purported Outright Provision of Services standard is substa ntively inconsistent with the plain language of the statute and the PSLF regulation. Even assuming for the sake of argument that this standard reflected an inte rpretation of the regulation, it is not plainly incons istent with it. Indeed, “as a general rule, [the Court] defers to the [an agenc y’s interpretation] ‘unless [its] interpretation is plainly errone ous or inconsistent with the re gulation.’” Decker v. Nw. Envtl. Def. Ctr. , 568 U.S. 597, 613 (2013) (citati ons omitted) (quoting Chase Bank USA, N.A. v. McCoy , 562 U.S. 195, 208 (2011)). Here, the PSLF regulation require s that a qualifying organization “provide[] . . . pub lic services.” 34 C.F.R. § 68 5.219(b). Although, as Rudert points out, the regulation does not contain the term “outright, ” Pls.’ MSJ Br. at 33, the inclusion of that qualifier does not suggest that the Department’s purported interpretation is “plainly erroneous” or that the Departme nt acted outside the scope of th e regulation. And even without applying a deferential standard, s uch an interpretation would b e reasonable on its face. Further, Plaintiffs concede that they do not challenge the regulation as inconsistent with the statute, see Pls.’ Reply at 18 n.5, and so the a lleged interpretation would be consistent with the statute for the same reasons. And in any event, to repeat, Rudert has not demo nstrated that the Department’s determination of his employment e ligibility reflected a new int erpretation of the PSLF regulation at all, rather than simply an a pplication of the regulation to his individual case. Therefore, the Court must enter summary judgmen t for Defendants on Rudert’s su bstantive APA claim.
4. The ABA’s and Rudert’s Fifth Amendment Due Process Claims (Count V) In Count V, the ABA and Rudert assert that the Department violated their due process rights under the Fifth Amendment when it “retroactively revoked[the ABA’s] status as a PSLFeligible employer, thus comprom ising its ability to attract and retain employees” and “purged47 [Rudert’s] prior years of certi fied PSLF-work and loan payments without notice.” Compl. ¶¶ 219–20. To bring a claim under the Due Process Clause, a pl aintiff must show (1) “deprivation of a protected liber ty or property interest,” (2) “by the government,” (3) “without the process that is ‘due’ under the Fifth Amendment.” NB ex rel. Peacock v. District of Columbia , 794 F.3d 31, 41 (D.C. Cir. 2015). Therefore, the Court first determ ines if either the ABA or Rude rt has a property interest “that triggers Fifth Amendme nt due process protection.” C&E Servs., Inc. of Wash. v. D.C. Water & Sewer Auth. , 310 F.3d 197, 200 (D.C. Cir. 2002) (quoting Reeve Aleutian Airways, Inc. v. United States , 982 F.2d 594, 598 (D.C. Cir. 1993)). “[T ]he existence of a p roperty interest is determined by reference to ‘exis ting rules or understandings th at stem from an independent source such as state law.’” Ralls Corp. v. Comm. on Foreign Inv. in the U.S. , 758 F.3d 296, 315 (D.C. Cir. 2014) (quoting Phillips v. Wash. Legal Found. , 524 U.S. 156, 164 (1998)). To demonstrate a protected property interest in a benefit, a plain tiff “clearly must have more than an abstract need or desire for it . He must have more than a unila teral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth , 408 U.S. 564, 577 (1972). The Court agrees with Defendant s that the ABA has no protected property interest in its status as a qualifying organization that provides public intere st law services. The ABA’s qualification under the PSLF re gulation is understandably important to the ABA because of the second-order effects of that de termination on its employees and recruitment. But as explained in Section II(B)(2)(b), the PSLF statute does not create any prope rty rights for the ABA . The PSLF statute grants an entitlement t o debt relief for borrowers dete rmined to be eligible, but it creates no legitimate claim of entitleme nt to a property i nterest prote cted by the Fifth Amendment on the48 ABA’s part. See 20 U.S.C. § 1087e(m). Accordingl y, Defendants are entitled to summary judgment on the ABA’s claim under the Fifth Amendment’s Due Pro cess Clause. In addition, the statute only creates rights for those borrower s who are entitled to benefits under the PSLF Program. As discussed above, the Department det ermined that Rudert’s employment with VVA did not qualify because VVA does not provid e public services for individuals with disabilities outright, in light of the PSLF re gulation’s requirement that the organization “provide[] . . . public services.” 34 C.F.R. § 68 5.219(b). Therefore, Rudert has not demonstrated that he is entitled to a property interest protect ed by the Fifth Amendment. For this reason, Defendants are entitled to summary judgment on this cla im as well.
Plaintiffs’ Motions for Extra-Record Review Plaintiffs have also filed two m otions for extra-record review. Pls.’ Supp. Br.; Pls.’ 2d Supp. Br. For the reasons explai ned below, and as reflected inthe analysis in Section II(B)(3)(a), the Court will grant both motions.
A. Legal Standard It is “black-letter administrativ e law that in an APA case, a r eviewing court ‘should have before it neither more nor less information than did the agency when it made its decision.’” Hill
Dermaceuticals , 709 F.3d at 47 (quoting Walter O. Boswell Mem’l Hosp. v. Heckler , 749 F.2d 788, 792 (D.C. Cir. 1984)). And the agency enjoys a “presumpti on” that it has properly compiled the entire record of mate rials that it considered, eit her directly or indirectly, in making its decision. See, e.g. , Maritel, Inc. v. Collins , 422 F. Supp. 2d 188, 196 (D.D.C. 2006). The D.C. Circuit has observed that t his rule against extra-record e vidence “exerts its maximum force when the substantive soundness of the agency’s decision is unde r scrutiny.” Esch v. Yeutter , 876 F.2d 976, 991 (D.C. Cir. 1989). On the other hand, when “the p rocedural validity of the49 [agency’s] action also remains in serious question[,] . . . it may sometimes be appropriate to resort to extra-record informati on to enable judicial review to become effective.” Id

. Although the exceptions to this ru le “are quite narrow and rare ly invoked,” CTS Corp. v.
EPA , 759 F.3d 52, 64 (D.C. Cir. 2014), in Esch the D.C. Circuit set forth eight circumstances in which a court might consider ext ra-record evidence. Since then , it has appeared to substantially narrow the circumstances under wh ich extra record review is app ropriate, as Judge Mehta explained in detail in United Student Aid Funds v. DeVos , 237 F. Supp. 3d 1, 4 (D.D.C. 2017) (collecting cases). The Court n eed not review a ll those cases here. It suffices to say that “although the number of situations in which extra-record eviden ce may be considered has dwindled over time, the D.C. Cir cuit has consistently stated th at where the district court cannot determine from the administrative record whether the agency com plied with its procedural obligations, the district court may consider extra-record evide nce.” Id.
B. Analysis During and after briefing on the pa rties’ motions for summary j udgment, Plaintiffs twice moved the Court to allow for extr a-record revie w of documents that they allege “provide irrefutable evidence of the Department’s changed interpretation s of the relevant statutory and regulatory terms at i ssue in this case.” 16 Pls.’ 2d Supp. Br., Mot. Plaintiffs urge the Court to make an exception to the “defau lt rule” in APA cases here, because they “challenge gross procedural deficiencies” in that the current record precludes j udicial review as to whether the

16 Plaintiffs assert that they obtained the documents submitted a s extra-record evidence through two public records requests made pursuant to the Pennsylvania R ight-to-Know Act, 65 P.S. § 67.101, et seq. , and directed to the Pennsylvani a Higher Education Assistance Agency, which does business as FedLoan Servi cing, as well as through a FOIA r equest by Voigt litigated in Voigt v. U.S. Dep’t of Educ. , No. 17-790 (D.D.C.) (Complaint filed Apr. 28, 2017)

. Pls.’ Supp. Br., Ex. A ¶¶ 3–5; Pls.’ 2d S upp. Br., Ex. A ¶¶ 6–9. Defendant s do not contest the authenticity of these documents.50 Department adopted the Primary Purpose and School-like Setting standards as new interpretations of the PSLF re gulation following its promulgati on. Pls.’ Supp. Br. at 3–4. The Court agrees that this is th e rare APA case in which consid eration of Plaintiffs’ proffered extra-record evidence is permissible. First, it is t he procedural—as opposed to substantive—validity of the Depart ment’s actions that are prima rily at issue, so the usual rule prohibiting extra-reco rd evidence applies with less potency. A s the D.C. Circuit recently reaffirmed, “district courts may consult extra-record evidence when ‘the proce dural validity of the [agency’s] action . . . rem ains in serious question.’” Hill Dermaceuticals , 709 F.3d at 47 (alterations in or iginal) (quoting Esch , 876 F.2d at 991). Second, the “administrative recor d itself is so deficient as to preclude effective review” as

to whether the Department changed its interpretation of the PSLF r egulation when it adopted the Primary Purpose and School-like Setting standards. Id. Defendants argue that this lack of evidence in the record supports their contention that no such c hange occurred. See, e.g. , Dfs.’ MSJ Br. at 24. But there is al so no evidence supporting their own assertion that the Department’s practices have “b een consistent and unchanged” all along, id. at 30, even after the Court requested Defendants to d irect it to any such evidence. See supra note 8. Certainly, the Department’s reversals of its d ecisions relating to the Individ ual Plaintiffs and the ABA’s other employees are consistent with s uch a change. But these handful of individual cases hardly provide an adequate record for the Court to evaluate Plaintiffs ’ claims. The extra-record evidence offered by Plaintiffs is the only direct evidence rele vant to the question of whether the Department changed its interpret ations of the PSLF regulation i n the ways claimed by Plaintiffs. For all the reasons explained in Section II(B)(3)(a), the extra -record evidence at issue here51 “shed[s] light on an issue not a ddressed by the adm inistrative record itself,” a nd may therefore be considered. Nat’l Min. Ass’n v. Jackson , 856 F. Supp. 2d 150, 158 (D.D.C. 2012).
In United Student Aid Funds, Judge Mehta recently reached the same conclusion in a highly similar circumstance. In that case, the administrative record was “silent” on “two factual issues central to resolving wheth er [a] Dear Colleague Letter a nnounced a ‘new rule’ in a manner that satisfie[d] the A PA.” 237 F. Supp. 3d 1, 5 (D.D.C. 2017). Like here, the question in that case was whether an agency acti on “constituted [a] type of chan ge in position” that triggered procedural obligations under the APA. Id. In that case, the court hel d that the relevant lack of evidence in the record on the age ncy’s alleged change was a “‘g ross procedural deficiency’ that preclude[d] effective review of [ the plaintiff’s] APA claims an d thus warrant[ed] admission of extra-record evidence.” Id. at 6 (quoting Hill Dermaceuticals , 709 F.3d at 47). Such is the case here. Defendants advance several argum ents urging the Court not to co nsider the extra-record evidence, but none of them are persuasive. First, Defendants argue that the extra-record evidence should n ot be considered because the documents at issue were not “ before the agency” at the time of the decisions at issue. Defs.’ Opp. to Supp. at 4. But extra-reco rd review of documents not b efore the agency is precisely what the exceptions to the gene ral rule in APA cases permit. See, e.g ., Univ. of Colo. Health at Mem’l Hosp. v. Burwell , 151 F. Supp. 3d 1, 13 (D.D.C. 2015) (“[A] party may seek to supplement the record with ‘extr a-judicial evidence that was no t initially before the agency’ but [which] the party ‘believes shoul d nonetheless be included in t he administrative record.’” (alteration in or iginal) (quoting WildEarth Guardians v. Salazar , 670 F. Supp. 2d 1, 5 n.4 (D.D.C. 2009))).52 Second, Defendants assert that th e extra-record e vidence is irr elevant, for a variety of reasons—either because it postdates the agency actions at issue , or it relates to FedLoan Servicing (as opposed to Department) employees, or it concerns individual borrowers or employers not at issue in this case. Defs.’ Opp. to 2d Supp. at 4. None of these arguments withstand scrutiny. The extra-re cord evidence is highly probat ive as to whether the Department changed its interpret ation of the PSLF re gulation by introducin g the Primary Purpose and School-like Setting standards. Th e evidence concerning Voigt’s c laim makes the point the most clearly. As described in Section II(B)(3)(a), one email depict s a Department employee announcing in August 2014 that th e Department had “settled” on a “definition of public education” that required such s ervices to be provided “in a sch ool or school-like setting.” See Pls.’ Supp. Br., Ex. C. He did so onl y after the Department to ld Voigt in June 2012 that her employment at AILA qualified, but well before the Department se nt her a denial letter in December 2014. And although the ema il does not concern Voigt’s case specifically, that is part of the point—it demonstrates tha t the Department adopted a new standard for “public education services” and then applied that st andard across the board, to the borrower reflected in the email as well as others, like Voigt. As for Quintero-Millan and Burkha rt, the extra-record evidence does indeed postdate their denial letters. And to be s ure, in some cases the eviden ce reflects communications from FedLoan Servicing employees, as op posed to the Department’s—a d istinction that in this context hardly makes a difference given t he integrated way in which ECF s are processed. See AR 143, 160–61 (guidance instructing that a ll ECF submissions for non-5 01(c)(3) not-for-profit organizations be escalated to the Department). But in any even t, the most important of these emails reflects a Department employee discussing an earlier effort to implement the Primary53 Purpose standard to “public inter est legal services” organizati ons. Pls.’ Supp. Br., Ex. B. And at that time, the Department apparently tasked FedLoan Servicing e mployees with compiling a list of ECFs that had to be reevaluated based on its introduction of this new standard. Id. This is highly relevant evidence—notwith standing the date of the commun ication itself, and that it concerned processing of another borrower’s ECF—that the Departm ent had previously introduced the Primary Purpose st andard as a general, broadly-applicable interpretation of the PSLF regulation that required a reevaluation of prior determina tions, contrary to its position here. Accordingly, the Court will grant Plaintiffs’ Motion to Allow f or Extra-Record Review and Supplemental Motion to Allow for Extra-Record Review, and, as reflected above, has considered the extra-record evidence submitted by Plaintiffs inits evaluation of their claims. Remedy Under 5 U.S.C. § 706(2), courts must “hold unlawful and set asi de agency action” that it determines to be arbitrary and capricious. “When a reviewing c ourt determines that agency regulations are unlawful, the ord inary result is that rules are vacated—not that their application to individual petitioners is proscribed.” Harmon v. Thornburgh , 878 F.2d 484, 495 n.21 (D.C. Cir. 1989); see Fertilizer Inst. v. EPA , 935 F.2d 1303, 1313 (D.C. Cir. 1991). Although the Court has wide discr etion to apply an appropriate remedy in APA cases, it sees no reason not to apply this u sual remedy to the Primary Pu rpose and School-like Setting standards. For their part, Def endants do not provide any parti cular reason why the Court should not vacate these standards until the procedural deficiencies id entified above are corrected. Therefore, the Court will vacate the Primary Purpose and School -like Setting standards, as well as remand the denial letters s ent to Quintero-Millan, AR 237–39 , Burkhart, AR 214–15, and Voigt, AR 335–36, to the Departmentfor further consideration c onsistent with this Opinion.54 Conclusion For all of the above reasons, the Court will, in a separate Ord er, grant in part and deny in part Plaintiffs’ Motion for Summary Judgment, ECF No. 17; grantin part and deny in part Defendants’ Cross-Motion for Summary Judgment, ECF No. 22; and grant Plaintiffs’ Motion to Allow for Extra-Record Review, ECF No. 24, and Supplemental Mot ion to Allow for ExtraRecord Review, ECF No. 35.
/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: February 22, 2019