Brown et al v. U.S. Department of Education et al

Filing 37

ORDER granting #3 Motion for Injunction; denying #25 Motion to Dismiss for Lack of Jurisdiction. (Ordered by Judge Mark Pittman on 11/10/2022) (chmb) Modified on 11/14/2022 per DJ chambers (bdb). (Main Document 37 replaced on 11/14/2022) (bdb).

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MYRA BROWN, ET AL.,
Plaintiffs,
v.

No. 4:22-cv-0908-P

U.S. DEPARTMENT OF EDUCATION,
ET AL.,
Defendants.
ORDER
The Constitution vests “all legislative powers” in Congress. This
power, however, can be delegated to the executive branch. But if the
executive branch seeks to use that delegated power to create a law of
vast economic and political significance, it must have clear congressional
authorization. If not, the executive branch unconstitutionally exercises
“legislative powers” vested in Congress. In this case, the HEROES Act—
a law to provide loan assistance to military personnel defending our
nation—does not provide the executive branch clear congressional
authorization to create a $400 billion student loan forgiveness program.
The Program is thus an unconstitutional exercise of Congress’s
legislative power and must be vacated. 1
1 The Court expresses no opinion on whether the Program constitutes sound or
unsound public policy—a consideration inappropriate for the Court to contemplate—
as it falls outside the Court’s task of merely interpreting the law. See Harris v. Harris,
72 Va. (31 Gratt.) 13, 32 (1878) (“‘Compassion,’ said an eminent Virginia chancellor,
‘ought not to influence a judge, in whom, acting officially, apathy is less a vice than
sympathy.’” (quoting Chancellor George Wythe, Commentary on Field’s Ex’x v.
Harrison & Wife, Wythe’s Reports 282 (Minor’s Ed. 1794))); see also Letter from
Thomas Jefferson to Edmund Pendelton (Aug. 26, 1776), reprinted in 1 THE PAPERS OF
THOMAS JEFFERSON 505 (Julian P. Boyd, ed. 1950) (“Let mercy be the character of the
law-giver, but let the judge be a mere machine. The mercies of the law will be dispensed
equally and impartially to every description of men; those of the judge, or of the
executive power, will be the eccentric impulses of whimsical, capricious designing
men.”).

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BACKGROUND
A. Title IV of the Higher Education Act
The Department of Education (“Department”) offers two types of
financial aid to help students pay for their college education—grants
and loans. 2 Grants do not have to be repaid. Id. But loans do. Id. Title
IV of the Higher Education Act of 1965 (“HEA”) covers the
administration of three types of federal student loans: (1) Direct Loans;
(2) Federal Family Education Loans (“FFEL”); and (3) Perkins Loans.
See 20 U.S.C. § 1070.
With Direct Loans, the federal government provides loans directly to
borrowers, who are responsible for repaying the government. See 20
U.S.C. § 1087a. With FFEL, the federal government pays lenders to offer
student loans, and the federal government guarantees their repayment.
20 U.S.C. § 1071. With Perkins Loans, colleges loan money to students,
and the federal government guarantees their repayment. § 1087aa. The
HEA also provides how to pay these loans, repayment options, and loan
forgiveness. See, e.g., 34 C.F.R. § 685.219; 20 U.S.C. §§ 1098e;
1087e(d)(1); 1078(b)(9)(A)(v).

B. Prior Attempts to Provide Loan Forgiveness
With rising college costs, federal student-loan debt has skyrocketed
to more than $1.61 trillion with 43 million borrowers. 3 As a result, there
have been multiple attempts to enact legislation to help alleviate
student-loan debt. For example, in 2019, Senator Elizabeth Warren
introduced a bill to provide $50,000 in debt forgiveness for those who
make under $100,000. See S. 2235, 116th Cong. (2019). Similarly,
Representative Al Lawson introduced a bill to forgive the outstanding
loan balance of all borrowers who make under $100,000 individually or
$200,000 if married and filing taxes jointly. See H.R. 2034, 117th Cong.
(2021). But both bills failed.

See Types of Aid, U.S. DEP’T OF EDUC., https://bit.ly/3S51Heu (last visited Nov.
7, 2022).
2

3 Federal Student Loan Portfolio, U.S. DEP’T OF EDUC., https://bit.ly/3qYd5Nm (last
visited Nov. 7, 2022).

2

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The executive branch has also recently explored its ability to forgive
student loans. Specifically, the Trump administration considered its
statutory authority under the Higher Education Relief Opportunities for
Students Act of 2003 (“HEROES Act”) to forgive student loans due to
the COVID-19 pandemic. But the Department concluded that it lacked
such authority. 4 House speaker Nancy Pelosi agreed with the
Department’s conclusion: “People think that the president of the United
States has the power for debt forgiveness. . . He does not. He can
postpone, he can delay, but he does not have that power. That has to be
[accomplished through] an act of Congress.” 5
President Biden, however, promised to “forgive all undergraduate
tuition-related federal student debt from two- and four-year public
colleges and universities for debt-holders earning up to $125,000” while
campaigning for the presidency. 6 After becoming president, Biden
instructed the Department to prepare a memorandum exploring
possible legal avenues to justify a loan forgiveness program. 7
The Department did so but changed its tune—concluding that the
HEROES Act allows the executive branch to create a loan-forgiveness
program to address the financial harms of the COVID-19 pandemic. 8

The next day, the White House announced that the President would
“fulfill [his] campaign commitment” by providing debt forgiveness to
millions of borrowers. 9

See Reed Rubinstein, Memorandum to Betsy DeVos Secretary of Education, U.S.
DEP’T OF EDUC. OFF. OF THE GEN. COUNS. (Jan. 12, 2021, 5:46 PM),
https://bit.ly/3LBA36n.
4

5 Lauren Camera, Pelosi: Biden Lacks Authority to Cancel Student Debt, U.S.
NEWS. & WORLD REPORT (July 28, 2021, 3:16 PM), https://tinyurl.com/33ex63de.

Joe Biden, Joe Biden Outlines New Steps to Ease Economic Burden on Working
People, MEDIUM (Apr. 9, 2020), https://tinyurl.com/3cbw4zh2.
6

7 See L. Egan, Biden to Review Executive Authority to Cancel Student Debt, NBC
NEWS (Apr. 1, 2021, 1:36 PM), https://nbcnews.to/3dD85dV.

See Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student
Loans, 2022 WL 3975075 (O.L.C.), at *1 (Aug. 23, 2022).
8

9 See FACT SHEET: President Biden Announces Student Loan Relief for Borrowers
Who Need It Most, THE WHITE HOUSE (Aug. 24, 2022), https://bit.ly/3dATj7p.

3

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C. The HEROES Act
The HEROES Act grants the Secretary of Education (“Secretary”)
the authority to “waive or modify any statutory or regulatory provision
applicable to the student financial assistance programs under title IV of
the Act [20 U.S.C. 1070 et seq.] as the Secretary deems necessary in
connection with a war or other military operation or national
emergency.” § 1098bb(a)(1) (alteration in original). “The term ‘national
emergency’ means a national emergency declared by the President of the
United States.” § 1098ee(4).
The waiver or modification must also “be necessary to ensure that”
certain objectives are achieved. § 1098bb(a)(2). The first of those
objectives is “to ensure that . . . recipients of student financial assistance
under title IV of the [HEA] who are affected individuals are not placed
in a worse position financially in relation to that financial assistance
because of their status as affected individuals.” § 1098bb(a)(2)(A). The
HEROES Act defines “affected individuals” to include people who reside
or are employed “in an area that is declared a disaster area by any
Federal, State, or local official in connection with a national emergency”
or who “suffered direct economic hardship as a direct result of a war or
other military operation or national emergency, as determined by the
Secretary.” § 1098ee(2)(C)–(D).
The second objective provides that “administrative requirements
placed on affected individuals . . . are minimized, to the extent possible
without impairing the integrity of the student financial assistance
programs, to ease the burden on such students and avoid inadvertent,
technical violations or defaults.” § 1098bb(a)(2). 10 If the objectives of
§ 1098bb(a)(2) are met, “[n]otwithstanding section 1232 of this title and
section 553 of title 5, the Secretary shall, by notice in the Federal
Register, publish the waivers or modification.” § 1098bb(b)(1).

The HEROES Act provides three additional objectives. § 1098bb(a)(2)(C)–(E).
None of which are at issue or relevant to the Court’s analysis.
10

4

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D. Student-Loan Program
The Secretary invoked its authority under the HEROES Act to create
a loan-forgiveness program (“Program”) that would address the
financial harms of the COVID-19 pandemic. 11 The Secretary contends
that COVID-19 pandemic was declared a national emergency by
President Trump in 2020 and thus a “national emergency” under the
HEROES Act. Id. And according to the Secretary, every portion of the
country is a “disaster area due to COVID-19,” and “every person with a
federal student loan under title IV of the HEA” is an affected individual.
Id.
Because the Secretary deemed the objectives of § 1098bb(a)(2) met,
the Secretary provided notice of the waivers and modifications in the
Federal Register. Id. The notice provided that the Secretary modifies “20
U.S.C. 1087, which applies to the Direct Loan Program under 20 U.S.C.
1087a and 1087e; 20 U.S.C. 1087dd(g); and 34 CFR part 674, subpart D,
and 34 CFR 682.402 and 685.212” to provide the debt relief for certain
borrowers who qualify. Id. A borrower qualifies if he (1) individually
makes under $125,000 or $250,000 if married and filing taxes jointly
and (2) has Direct, Perkins, or FFEL loans that are not commercially
held. Id. If a borrower qualifies, the Program provides $20,000 in debt
forgiveness to those who have received a Pell Grant and $10,000 to those
who did not. Id.

E. Procedural History
1. Plaintiffs’ Lawsuit
Plaintiffs Myra Brown and Alexander Taylor both have student
loans. ECF No. 1 at 3–4. Brown is ineligible for any debt forgiveness
under the Program because her loans are commercially held. Id. at 3.
And Taylor is ineligible for the full $20,000 in debt forgiveness under
the Program because he did not receive a Pell Grant. Id. at 3–4. Because
Brown loses out on $20,000 in debt forgiveness and Taylor loses out on

No.
2022-22205,
87
Fed.
Reg.
61512
(Oct.
12,
2022),
https://www.federalregister.gov/documents/2022/10/12/2022-22205/federal-studentaid-programs-federal-perkins-loan-program-federal-family-education-loan-programand.
11

5

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$10,000, they disagree with the lines drawn for the Program’s eligibility
criteria. Id. at 2–3.
Brown and Taylor, however, could not voice their disagreement
because the Program did not undergo notice-and-comment rulemaking
procedures under the Administrative Procedure Act (“APA”). 12 As a
result, Plaintiffs sued the Department and Secretary, seeking vacatur
of the Program or nationwide injunctive relief for two reasons. First,
they allege that the Program violates the APA’s notice-and-comment
requirements. ECF No. 1 at 13–14. Second, they also contend that the
Secretary lacks the authority to implement the Program under the
HEROES Act. Id. at 4–5.
The same day Plaintiffs sued, they moved to enjoin the Department
“from enforcing, applying, or implementing the Program.” ECF No. 4 at
14. Shortly after, Defendants filed their opposition to Plaintiffs’ motion.
ECF No. 24.

2. Defendants’ Motion to Dismiss for Lack of Jurisdiction
Along with opposing Plaintiffs’ Motion for Preliminary Injunction,
Defendants moved to dismiss for lack of jurisdiction, contending that
Plaintiffs lack standing. See ECF Nos. 24 at 8–12; 25. And while not
mentioned in their motion, Defendants at the preliminary-injunction
hearing insinuated that not only do Plaintiffs lack standing, but nobody
has standing to challenge the Program. ECF No. 32 at 57–58.

3. Notice of the Court’s Intent to Rule on the Merits
Because of the prejudice Plaintiffs would experience if the Court
delays ruling on the merits, 13 no material facts are in dispute, and the
issues here are pure questions of law, the Court—out of an abundance
of caution—provided the Parties notice of the Court’s intent to advance
No.
2022-22205,
87
Fed.
Reg.
61512
(Oct.
12,
2022),
https://www.federalregister.gov/documents/2022/10/12/2022-22205/federal-studentaid-programs-federal-perkins-loan-program-federal-family-education-loan-programand.
13 See Aila Slisco, Student Loan Debt Relief Checks Could Be Mailed in “Two
(Oct.
27,
2022,
8:52
PM),
Weeks,”
Biden
Says,
NEWSWEEK
https://www.newsweek.com/student-loan-debt-relief-checks-could-mailed-two-weeksbiden-says-1755288 (stating that on November 3, 2022, President Biden proclaimed
that checks could be sent to those who applied for the Program within “two weeks”).
12

6

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Plaintiffs’ Motion for Preliminary Injunction to a determination on the
merits under Federal Rule of Civil Procedure 65. See ECF No. 33. The
notice provided the Parties an opportunity to object to this advancement.
Id. Plaintiffs did not object. See ECF No. 34. But Defendants did and
contend that proceeding to the merits is improper. See ECF No. 35.
Thus, this case presents three issues. First, whether proceeding to
the merits is appropriate. Second, whether the Court has jurisdiction.
And third, whether Plaintiffs are entitled to relief. The Court addresses
each in turn.

LEGAL STANDARD
A preliminary injunction is an “extraordinary remedy” and will be
granted only if the movants carry their burden on four requirements.
Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008). The
movants must show: “(1) a substantial likelihood of success on the
merits; (2) a substantial threat of irreparable injury; (3) the threatened
injury to the movant outweighs the threatened harm to the party sought
to be enjoined; and (4) granting the injunctive relief will not disserve the
public interest.” City of Dall. v. Delta Airlines, Inc., 847 F.3d 279, 285
(5th Cir. 2017) (quotation omitted). “The decision to grant or deny a
preliminary injunction is discretionary with the district court.” Miss.
Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th
Cir. 1985).
Summary judgment is appropriate if “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a). A fact is “material” if it could change the
outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). And a dispute about a material fact is “genuine” if “the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. The Court views the evidence in the light most
favorable to the nonmovant but need not comb through the record in
search of evidence creating a genuine issue of material fact. See
Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003).

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ANALYSIS
A. Proceeding to the Merits is Appropriate
Under Federal Rule of Civil Procedure 65, “[b]efore or after beginning
the hearing on a motion for a preliminary injunction, the court may
advance the trial on the merits and consolidate it with the hearing.” FED.
R. CIV. P. 65(a)(2) (emphasis added). But if “the eventual outcome on the
merits is plain at the preliminary injunction stage, the judge should,
after due notice to the parties, merge the stages and enter a final
judgment.” Curtis 1000, Inc. v. Suess, 24 F.3d 941, 945 (7th Cir. 1994)
(emphasis added). Courts typically require that the parties “receive
clear and unambiguous notice [of the court’s intent to consolidate the
trial and the hearing] either before the hearing commences or at a time
which will still afford the parties a full opportunity to present their
respective cases.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)
(quoting Pughsley v. 3750 Lake Shore Drive Coop. Bldg., 463 F.2d 1055,
1057 (7th Cir. 1972)) (alteration in original). Courts may also consolidate
without giving the parties notice if the lack of notice is not prejudicial to
either party. See Wohlfahrt v. Mem’l Med. Ctr., 658 F.2d 416, 418 (5th
Cir. 1981).
If consolidation is appropriate, a district court may convert a
plaintiff’s preliminary-injunction motion into a motion for summary
judgment. H & W Indus., Inc. v. Formosa Plastics Corp., USA, 860 F.2d
172, 177 (5th Cir. 1988). “Summary judgment serves as ‘the mechanism
for deciding, as a matter of law, whether the agency action is . . .
consistent with the APA.’” O.A. v. Trump, 404 F. Supp. 3d 109, 125
(D.D.C. 2019).
Here, the Court provided the parties notice and an opportunity to
object. ECF No. 33. Defendants objected, contending that advancing to
a determination on the merits is improper for three reasons. ECF No.
35.
First, Defendants contend that Plaintiffs fail to meet the burden of
proof at the summary-judgment stage to establish standing. Id. at 1–2.
But if this were true, Defendants would not be prejudiced by proceeding

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to the merits because the Court would rule in Defendants favor and
dismiss the case for lack of standing. This argument thus fails.
Second, Defendants have not had an opportunity to conduct
jurisdictional discovery to examine Plaintiffs’ intent to participate in
any comment process and the substance of their comments. But
assuming discovery revealed a fact issue as to Plaintiffs’ intent to
participate in any comment process and the substance of their
comments, those issues are not material to standing or the merits. Thus,
because these facts—even if resolved in Defendants’ favor—would not
“change the outcome of the lawsuit,” this objection is similarly meritless.
Sweetin v. City of Tex. City, 48 F.4th 387, 391 (5th Cir. 2022).
Third, Defendants have not yet produced the data underlying the
Secretary’s decision. ECF No. 35 at 3–4. Like Defendants’ second
objection, the data underlying the Secretary’s decision is not material.
Plaintiffs’ central arguments are whether the Secretary lacks the
authority for the Program and whether the Program had to go through
notice-and-comment procedures before the Secretary implemented the
Program. The data underlying the Secretary’s decision—while part of
the administrative record—is not material to either issue. See Sierra
Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 441 (5th Cir. 2001)
(stating that an issue of statutory construction is “a task which we are
competent to perform without the administrative record”); Alphapointe
v. Dep’t of Veterans Affs., 475 F. Supp. 3d 1, 12 (D.D.C. 2020) (stating
that resolving the plaintiffs’ notice-and-comment challenge “requires no
obvious need for the administrative record”).
The cases on which Defendants rely are not to the contrary. In each
case, the issue was whether the agency’s actions were “arbitrary and
capricious,” which concerns the reasonability of an agency’s decisionmaking process. See ECF No. 35 at 3–4; Citizens to Pres. Overton Park,
Inc. v. Volpe, 401 U.S. 402, 414 (1971), abrogated by Califano v. Sanders,
430 U.S. 99, 105 (1977); Dep’t of Com. v. New York, 139 S. Ct. 2551, 2564
(2019). Plaintiffs bring no such claim. See ECF No. 3. Nor does the data
underlying the Secretary’s decision have any bearing on any of
Plaintiffs’ claims. So even if the data underlying the Secretary’s decision
created a fact issue, that fact issue would not be material as it would not
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“change the outcome of the lawsuit.” Sweetin, 48 F.4th at 391.
Defendants’ third argument thus fails.
Thus, because Defendants identify no reason for delaying a judgment
in this case, the prejudice resulting to Plaintiffs if the Court delays
ruling on the merits, no material facts are in dispute, and the issues
here are pure questions of law, the Court converts Plaintiffs’
preliminary-injunction motion to a determination on the merits.

B. Jurisdiction
For the Court to reach the merits, Plaintiffs must establish the
Court’s jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992). Article III of the Constitution limits federal-court jurisdiction to
“cases” and “controversies.” U.S. CONST. art. III, § 2. To satisfy this

requirement, a plaintiff must establish that he has standing—a

“personal stake” in the lawsuit. See Davis v. Fed. Election Comm’n, 554
U.S. 724, 732–33 (2008). At the summary-judgment stage, a plaintiff
must provide evidence of “specific facts” to establish standing. Id. Mere
allegations will not suffice. Lujan, 504 U.S. at 560

1. Standing
Standing contains three requirements. Lujan, 504 U.S. at 560. First,
there must be a concrete injury in fact that is not conjectural or
hypothetical. Whitmore v. Arkansas, 495 U.S. 149, 149 (1990). Second,
there must be causation—a fairly traceable connection between a
plaintiff’s injury and the complained-of conduct of the defendant. Simon
v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41–42 (1976). Third, there must
be redressability—a likelihood that the requested relief will redress the
alleged injury. See Lujan, 504 U.S. at 562. These three requirements
constitute the core of Article III’s case-or-controversy requirement. See
FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). But these
requirements are relaxed when a plaintiff asserts a deprivation of a
procedural right coupled with an associated concrete interest. See Texas
v. United States, 809 F.3d 134, 150–51 (5th Cir. 2015).
Defendants insinuate that nobody has standing to challenge the
Program—stating, “Article III of the Constitution imposes limitations
on the judiciary. And sometimes the result is that there is executive or
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legislative action for which there isn’t an appropriate plaintiff.” ECF No.
32 at 57. Defendants’ main contention, however, is that Plaintiffs lack
standing. ECF No. 24 at 8. Thus, the Court first addresses whether
anybody has standing to challenge the Program. And if so, whether
Plaintiffs have standing.

a. Defendants’ Contention that No One Has Standing to
Challenge the Program is Incorrect
Defendants seem to argue that no one has standing to challenge the
Program because where the government is providing a benefit, nobody
is harmed by the existence of that benefit. ECF No. 32 at 57–58. And
according to Defendants, “sometimes the result is that there is executive
or legislative action for which there isn’t an appropriate plaintiff.” Id. at
57 (emphasis added). The Court must disagree. The Supreme Court has
recognized that a plaintiff has standing to challenge a government
benefit in many cases. See, e.g., Ne. Fla. Chapter of Associated Gen.
Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993)
(holding that plaintiffs who did not qualify for government benefits had
standing); Bowsher v. Synar, 478 U.S. 714, 721, (1986) (holding that the
failure to receive benefits is enough to confer Article III standing).
Because Defendants’ contention that no one has standing to challenge
the Program because it confers a benefit is incorrect, the Court next
turns to whether Plaintiffs have standing.

b. Plaintiffs Have Standing
i.

Injury in fact

Plaintiffs allege that their concrete injury is the deprivation of their
procedural right under the APA to provide meaningful input on any
proposal from the Department to forgive student-loan debt and their
accompanying economic interest in debt forgiveness. ECF No. 4 at 12.
As for Plaintiffs’ alleged deprivation of their procedural right, the
APA requires agencies administering their delegated authority to follow
certain procedures. See 5 U.S.C. § 553. These procedures obligate
agencies to subject their substantive rules to a notice-and-comment
period unless an exception applies. Id. A plaintiff is deprived of “a
procedural right to protect its concrete interests” if an agency violates
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the APA’s procedural requirements. Texas v. EEOC, 933 F.3d 433, 447
(5th Cir. 2019) (citing Summers v. Earth Island Inst., 555 U.S. 488, 496
(2009)). But a bare assertion of a procedural right violation is not enough
to confer Article III standing. See Shrimpers & Fishermen of RGV v. Tex.
Comm’n on Env’t Quality, 968 F.3d 419, 426 (5th Cir. 2020). A plaintiff
must instead show a concrete injury stemming from that procedural
violation. Id.
Defendants dispute Plaintiffs’ alleged injuries for two reasons. First,
they argue that Plaintiffs could not have suffered a procedural
deprivation based on the lack of a notice-and-comment period because
the HEROES Act expressly exempts the APA’s notice-and-comment
requirement. ECF No. 24 at 8–9. Plaintiffs dispute this and argue that
because the HEROES Act does not authorize the Program, the Program
was promulgated in violation of the APA’s notice-and-comment
requirement. ECF No. 26 at 6–7. Because the Court must “assume, for
purposes of the standing analysis, that [Plaintiffs are] correct on the
merits of [their] claim that the [Program] was promulgated in violation
of the APA,” Plaintiffs have successfully alleged the deprivation of a
procedural right. EEOC, 933 F.3d at 447.
Second, Defendants assert, even if Plaintiffs have established the
violation of a procedural right, there is no accompanying concrete
interest stemming from that violation. ECF No. 24 at 9–11. They
contend that Plaintiffs’ “unhappiness that some other borrowers are
receiving a greater benefit than they are” is not a concrete interest. Id.
But this is untrue. Plaintiffs do not argue that they are injured because
other people are receiving loan forgiveness. Their injury—no matter how
many people are receiving loan forgiveness—is that they personally did
not receive forgiveness and were denied a procedural right to comment
on the Program’s eligibility requirements. Plaintiffs need to prove only
the existence of an associated “concrete interest,” not a guarantee of
concrete harm due to the procedural violation. EEOC, 933 F.3d at 447.

A benefit or legal-entitlement guarantee is not a prerequisite to
successfully establishing standing in the event of a procedural-right
violation. See, e.g., Teton Historic Aviation Found. v. U.S. Dep’t of Def.,
785 F.3d 719, 724 (D.C. Cir. 2015). A “plaintiff suffers a constitutionally
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cognizable injury by the loss of an opportunity to pursue a benefit even
though the plaintiff may not be able to show that it was certain to receive
that benefit had it been accorded the lost opportunity.” Id.
Plaintiffs have a concrete interest in having their debts forgiven to a
greater degree. Brown is ineligible for the Program because her loans
are commercially held. And Taylor is ineligible for the full $20,000 in
debt forgiveness under the Program because he did not receive a Pell
Grant in college. Brown and Taylor’s inability to obtain the full benefit
of debt forgiveness under the Program flows directly from the Program’s
eligibility requirements. Thus, Defendants’ procedural error of not
providing for a notice-and-comment period—which the Court must
assume as true for standing—deprived Plaintiffs of “a non-illusory
opportunity to pursue [the] benefit” of greater debt forgiveness and an
opportunity to advocate for the expansion of the eligibility criteria of the
Program. Ecosystem Inv. Partners v. Crosby Dredging, LLC, 729 F.
App’x 287, 292 (5th Cir. 2018).
The first requirement of Article III standing is thus met.
ii.

Causation

Second, Plaintiffs argue that their injury is traceable to Defendants’
actions because Plaintiffs lost the chance to obtain more debt
forgiveness, which flows directly from Defendants’ promulgation of the
Program’s eligibility requirements that failed to undergo a notice-andcomment period. ECF No. 4 at 11–13. Defendants do not contest this
argument. And the Court agrees with Plaintiffs.
A plaintiff only has standing if he can assert a “personal injury fairly
traceable to the defendant’s allegedly unlawful conduct.” California. v.
Texas, 141 S. Ct. 2104, 2117 (2021). An injury is fairly traceable if a
plaintiff’s “lost chance” to pursue a benefit flows directly from the
procedural violation. Ecosystem Inv. Partners, 729 F. App’x at 293.
Plaintiffs contend that they lost their chance to pursue debt forgiveness
by Defendants’ failure to offer a chance to comment on the Program’s
eligibility requirements. “This injury—denial of the opportunity to
participate—is more than fairly traceable to [the agency’s] alleged

13

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inaction (failure to publish for notice and comment).” Nat’l Treasury
Emps. Union v. Newman, 768 F. Supp. 8, 10 (D.D.C. 1991).
Thus, the second requirement of Article III standing is met.

iii.

Redressability

Third, Plaintiffs contend that there is at least some possibility that
Defendants would reconsider the eligibility requirements of the
Program if it were enjoined or vacated, which fulfills the lighter
redressability requirement that applies when a procedural injury is
alleged. ECF No. 26 at 3–4. The Court agrees. To establish standing, a
plaintiff must normally prove that a favorable ruling would redress its
entire injury at the hands of a defendant. See Clapper v. Amnesty Intern.
USA, 568 U.S. 398, 409 (2013). But “when a litigant is vested with a
procedural right, that litigant has standing if there is some possibility
that the requested relief will prompt the injury-causing party to
reconsider the decision that allegedly harmed the litigant.”
Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (emphasis added). Even
if this lighter standard applies, a plaintiff must still show that it is
“likely, as opposed to merely speculative, that a favorable decision will
redress the [injury].” S. Christian Leadership Conf. v. Sup. Ct. of State
of La., 252 F.3d 781, 788 (5th Cir. 2001).
In response, Defendants argue that Plaintiffs’ alleged injury will not
be redressed by a favorable decision of the Court because enjoining or
vacating the Program will not provide Plaintiffs any loan forgiveness.
ECF No. 24 at 11. But Defendants misread the redressability
requirement in the context of procedural injuries. Plaintiffs need only
prove that there is some possibility that Defendants will reconsider the
confines of the Program if it is struck down in its current form. See Tex.
v. United States, 787 F.3d 733, 754 (5th Cir. 2015). And “enjoining the
implementation of [the Program] until it undergoes notice and comment
could prompt [the Secretary] to reconsider its decision, which is all a
litigant must show when asserting a procedural right.” Id. at 753–54.
Because Plaintiffs satisfy all three Article III standing requirements,
they may challenge Defendants’ conduct on the merits. As a result, the

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Court denies Defendants’ Motion to Dismiss for Lack of Jurisdiction
(ECF No. 25).

2. Judicial Review
When a party challenges the legality of agency action, the Court must
also ensure that the agency action at issue is reviewable under the APA.
Data Mktg. P’ship, LP v. U.S. Dep’t of Lab., 45 F.4th 846, 853 (5th Cir.
2022). An agency action is reviewable if (1) there has been a final agency
action and (2) the plaintiff’s injury is within the zone of interests of the
statute allegedly violated. See 5 U.S.C. § 704; Match–E–Be–Nash–She–
Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012).
Neither party disputes that the Program is reviewable under the APA.

Still, judicial review implicates jurisdiction. Data Mktg. P’ship, 45 F.4th
at 853. As a result, the Court must consider whether the Program is
reviewable under the APA to ensure that it does “not exceed the scope
of [its] jurisdiction.” Henderson v. Shinseki, 562 U.S. 428, 434 (2011).

a. Final Agency Action
Finality is a “jurisdictional prerequisite of judicial review.” Data
Mktg. P’ship, 45 F.4th at 853 (quotation omitted). The APA provides a
right to judicial review of “final agency action” unless the statute
precludes judicial review or the action falls under agency discretion. 5
U.S.C. § 701(a). To meet the limited agency exception, there must be
“no meaningful standard against which to judge the agency’s exercise of
discretion.” Lincoln v. Vigil, 508 U.S. 182, 191 (1993) (quotation
omitted). Actions that fall under agency discretion are rare and only
apply when the standard of review is unclear. 14
The text of the HEROES Act does not preclude judicial review, and
the Secretary’s action falls within the Act’s plain text, which authorizes
waivers or modifications of various student-loan provisions. 20 U.S.C.
See, e.g., Lincoln, 508 U.S. at 191 (1993) (holding that an agency’s use of lumpsum appropriation funds with no designation fell within the agency’s discretion);
Franklin v. Massachusetts, 505 U.S. 788, 817, (1992) (holding that an agency’s decision
to fire employee fell within the agency’s discretion); Heckler v. Chaney, 470 U.S. 821,
830, (1985) (holding that an agency’s decision not to enforce their own policy fell within
the agency’s discretion).
14

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§ 1098bb(a)(1). This provides a clear standard of review. Thus, neither
exception in § 701(a) applies here.
Finality requires two things: (1) the action must be the ending result
or “consummation” of the entire agency decision-making process—not a
tentative or intermediate step in the process—and (2) the action must
determine rights or obligations that produce legal consequences. U.S.
Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 597, 599 (2016).
Both conditions of finality are present. First, in the Secretary’s
notice, the Department spells out its decision-making process, legal
basis for the decision, and intent to proceed with the Program. Nothing
in the waiver’s text reflects that the decision to implement the Program
is provisional or still under review. Second, the action—the Program—
forgives around eight million individuals a portion of their legallybinding student loan obligations, costing over $400 billion. This action
affects the rights and obligations of millions of loan recipients and
carries sweeping legal consequences for federal student-loan programs
by changing the terms of the HEA.
The Agency’s action is thus final.

b. Zone of Interests
Along with the finality requirement, the Court may review an agency
action only if a plaintiff’s interests are “arguably within the zone of
interests to be protected or regulated by the statute that he says was
violated.” Patchak, 567 U.S. at 224. A plaintiff with Article III standing
satisfies the requirement unless their “interests are so marginally
related to or inconsistent with the purposes implicit in the statute that
it cannot reasonably be assumed that Congress intended to permit the
suit.” Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 177 (2011)
(quotation omitted). But doing so is not “especially demanding,” and “the
benefit of any doubt goes to the plaintiff.” Patchak, 567 U.S. at 225.
Here, Plaintiffs have Article III standing. And because the Secretary
considers Plaintiffs “affected individuals” under the HEROES Act and
are federal loan recipients excluded from the Program, they satisfy the
zone-of-interest test. The Court may thus review the agency’s
implementation of the Program.
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C. Summary Judgment
Article I of the Constitution allows Congress to “delegate” some of its
legislative powers to administrative agencies. U.S. CONST. art. I, § 8, cl.
3; see Mistretta v. United States, 488 U.S. 361, 372 (1989). When
administering their delegated authority, agencies must comply with the
APA’s procedural and substantive requirements. See 5 U.S.C. § 553. The
procedural requirements obligate agencies to subject their substantive
rules to notice and comment unless an exception applies. See 5 U.S.C. §
553. The substantive requirements “‘requires courts to hold unlawful
and set aside agency action’ that is ‘in excess of statutory jurisdiction,
authority, or limitations.’” See Texas v. United States, 50 F.4th 498, 525
(5th Cir. 2022) (quoting 5 U.S.C. § 706(2)(C)).
Plaintiffs argue that the Program violates the APA’s procedural and
substantive requirements. The Court addresses each in turn.

1. APA’s Procedural Requirements
Plaintiffs argue that the Program violates the APA’s procedural
requirements because it did not go through notice and comment before
implementation. ECF No. 4 at 13.
The APA requires agencies to subject their substantive rules to
notice and comment. See 5 U.S.C. § 553. Substantive rules “grant rights,
impose obligations, or produce other significant effects on private
interests.” Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897,
908 (5th Cir. 1983) (quoting Batterton v. Marshall, 648 F.2d 694, 701–
02 (D.C. Cir. 1980)). A substantive rule is usually unenforceable if it does
not undergo notice and comment. Id. But if the agency’s authorizing
statute expressly exempts the agency’s rules from notice and comment,
the rule is enforceable. 5 U.S.C. § 559.

Plaintiffs argue that the Program is a substantive rule because it
‘“grants rights’ by promising to eliminate individuals’ debt if they meet
certain requirements and ‘imposes obligations’ on the Department to
forgive debt for those who meet the requirements.” See ECF No. 4 at 14
(quoting W & T Offshore, Inc. v. Bernhardt, 946 F.3d 227, 237 (5th Cir.
2019)). They rely on Bernhardt to support their argument. But this
reliance is misplaced. In Bernhardt, the agency’s statutory authority did
17

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not exempt the agency from notice-and-comment requirements of the
APA. 946 F.3d at 237. The statutory authority here does:
“Notwithstanding section 1232 of this title and section 553 of Title 5, the
Secretary shall by notice in the Federal Register, publish the waivers or
modifications of statutory and regulatory provisions the Secretary
deems necessary to achieve the purposes of this section.”
§ 1098bb(b)(1). 15
Plaintiffs, however, argue that § 1098bb(b)(1) “applies only when the
waiver or modifications are ‘authorized’ under Section 1098bb(a)” and
that the Program is not “authorized” by § 1098bb(a). ECF No. 26 at 7.
Whether the HEROES Act authorizes the Program pertains to the
APA’s substantive requirements. But as a procedural matter, the
Secretary may waive or modify any provision without notice and
comment under the HEROES Act. All the APA requires is that the
Secretary publish the modifications of title IV of the HEA, which the
Secretary has done here.
Thus, because the Program was issued under the HEROES Act,
which exempts notice and comment, the Program did not violate the
APA’s procedural requirements. Whether the HEROES Act authorized
the Program is a different story.

2. APA’s Substantive Requirements
Plaintiffs contend that the Secretary lacks the authority to
implement the Program under the HEROES Act. ECF Nos. 4 at 16; 34
at 4. When reviewing an agency’s interpretation of its statutory
authority, courts have generally applied the framework established in
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
Whether § 1098bb(b)(1) exempts notice and comment turns on the word
“notwithstanding.” But a dictionary definition of “notwithstanding” does not answer
that question as “[d]rafters often use nothwithstanding in a catchall provision, where
its supposed referent is unclear.” See A. SCALIA & B. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 126 (2012) (emphasis in original). “A dependent
phrase that begins with notwithstanding indicates that the main clause that it
introduces or follows derogates from the provision to which it refers.” Id. Thus,
“notwithstanding is a fail-safe way of ensuring that the clause it introduces will
absolutely, positively prevail.” Id. at 127. Here, “notwithstanding” in § 1098bb(b)(1)
means without obstruction from the notice and comment requirements. Plaintiffs do
not dispute this meaning.
15

18

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837, 843–44 (1984). Under Chevron, if a statute is ambiguous about the
issue, courts defer to the agency’s interpretation of the statute if it is
“reasonable.” Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218
(2009)). In recent years, however, the Supreme Court has chipped away
at Chevron—giving back “the benefit of doubt about the meaning of an
ambiguous law to the individual” instead of the government. Buffington
v. McDonough, No. 21-972, 2022 WL 16726027, at *5 (U.S. Nov. 7, 2022)
(cleaned up).
The most recent example of Chevron’s fall is the crystallization of the
long-developing major-questions doctrine in West Virginia. v. EPA, 142
S. Ct. 2587 (2022). 16 The doctrine provides that when an agency seeks
to resolve a major question, a “merely plausible textual basis for the
agency action” is not enough. Id. at 2609. “The agency instead must
point to ‘clear congressional authorization’ for the power it claims. Id.
(quoting Utility Air Reg. Grp. v. EPA, 573 U.S. 302, 324 (2014)).
Plaintiffs contend that the Program fails under the major-questions
doctrine. The Court thus addresses whether the doctrine applies. And if
so, whether there is “clear congressional authorization” for the
Program. 17

a. The Major-Questions Doctrine Applies
The major-questions doctrine applies if an agency claims the power
to make decisions of vast “economic and political significance.” Id. at
2607–14. It is unclear what exactly constitutes “vast economic
significance.” But courts have generally considered an agency action to
be of vast economic significance if it requires “billions of dollars in
spending.” King v. Burwell, 576 U.S. 473, 485 (2015). For example, the
Supreme Court in Alabama Association of Realtors v. Department of
The major-questions doctrine’s precise relationship to the Chevron framework is
unclear, as the Court did not mention Chevron in that case. Defendants stated at the
preliminary-injunction hearing that Chevron does not apply if the major-questions
doctrine applies. See ECF No. 32. Nor does either party mention Chevron in their
briefs. For those reasons, the Court reasons that Chevron is not applicable here. But
even if it were applicable, the major questions doctrine compels the same result—the
Secretary lacks “clear congressional authorization” to implement the Program—
regardless of how the major-questions doctrine fits into the Chevron framework.
16

19

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Health & Human Services reasoned that an economic impact of $50
billion was of vast economic significance. 141 S. Ct. 2485, 2489 (2021).
Similarly, the Fifth Circuit in BST Holdings, L.L.C v. OSHA held that
$3 billion in compliance costs was enough to trigger the major-questions
doctrine. 17 F. 4th 604, 617 (5th Cir. 2021). Because the Program will
cost more than $400 billion—over 100 times more than the amount in
BST Holdings and 20 times more than the amount in Alabama
Association of Realtors—it has vast economic significance.
An agency action is politically significant if Congress has been
“engaged in robust debates” over bills authorizing something like the
agency’s action. West Virginia., 142 S. Ct. at 2620–21 (Gorsuch, J.,
concurring). And if Congress “considered and rejected” such bills, “that
too may be a sign that an agency is attempting to work around the
legislative process to resolve for itself a question of great political
significance.” Id. (cleaned up). For example, in NFIB v. OSHA, the
Supreme Court held that the major-questions doctrine applied when
various vaccine mandate bills considered by Congress had failed, and an
agency sought to mandate COVID-19 vaccines for millions of Americans.
142 S. Ct. 661, 662–66 (2022).
Similarly, Congress has introduced multiple bills to provide student
loan relief to those who make under a certain amount. See S. 2235, 116th
Cong. (2019); H.R. 2034, 117th Cong. (2021). And all have failed. A bill
was also introduced—to respond to the economic impact of COVID-19—
that provided the Secretary the authority to “cancel or repay” federal
student loans up to “$10,000 [of] the outstanding balance” for certain
borrowers. See H.R. 6800, 116th Cong. § 150117(h). But this bill also
failed. Thus, considering Congress’s extensive consideration of various
bills attempting to forgive student loans and failure to pass such bills,
the Program is of vast political significance.

Oddly enough, Defendants do “not deny that this is a case of economic
and political significance.” ECF No. 24 at 22. Instead, they argue that
the doctrine does not apply because “this case involves the disbursement
of a federal benefit to individuals, not the kind of expansive regulation
of private parties that have previously triggered the doctrine.” Id. at

20

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23. 18 But this statement is untrue. See Kentucky v. Biden, 23 F.4th 585,
606–08 (6th Cir. 2022) (applying the major-questions doctrine to vaccine
mandate for federal employees); Georgia v. President of the U.S., 46
F.4th 1283, 1295–96 (11th Cir. 2022) (same). And even if this were true,
the Court would not presume that the doctrine does not apply to an
agency decision of vast economic and political significance because it
involves the disbursement of a federal benefit. Instead, the Court must
“presume that ‘Congress intends to make major policy decisions itself,
not leave those decisions to agencies.’” West Virginia, 142 S. Ct. at 2609
(quoting U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 419 (D.C. Cir. 2017)).
Thus, because the Program is an agency action of vast economic and
political significance, the major-questions doctrine applies.

b. The Secretary Lacks “Clear Congressional Authorization” to
Implement the Program
Because the major-questions doctrine applies, the Government’s
assertion of authority is treated with “skepticism.” West Virginia, 142 S.
Ct. at 2614. “To overcome that skepticism, the Government must . . .
point to clear congressional authorization” permitting its action. Id.
(cleaned up). To do so, Defendants point to the HEROES Act. But the
text of the Act points the other way for at least three reasons. See
Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845) (“The law as it passed
is the will of the majority of both houses, and the only mode in which
that will is spoken is in the act itself; and we must gather their intention
from the language there used.”).
First, the HEROES Act does not mention loan forgiveness. If
Congress provided clear congressional authorization for $400 billion in
student loan forgiveness via the HEROES Act, it would have mentioned
loan forgiveness. The Act allows the Secretary only to “waive or modify”
provisions of title IV. The Secretary then uses that provision to rewrite

The Court finds it telling that Defendants—rather than addressing Plaintiffs’
arguments that the major-questions doctrine applies—copied and pasted their entire
major-questions doctrine section from another lawsuit challenging the Program.
Compare ECF No. 24 at 22–26, with Nebraska v. Biden, No. 4:22-CV-1040-HEA, ECF
No. 27 at 29–35.
18

21

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title IV portions to provide for loan forgiveness. 19 But “enabling
legislation” like the HEROES Act is not an “open book to which the
agency may add pages and change the plot line.” West Virginia, 142 S.
Ct. at 2609 (2022); U.S. Fleet Servs. Inc. v. City of Fort Worth, 141 F.
Supp. 2d 631, 644 (N.D. Tex. 2001) (Mahon, J.) (refusing to engage in an
exercise of “legal jingoism” requiring the court to insert words into a law
or rule to arrive at a particular party’s interpretation). Agencies may
“not seek to hide elephants in mouseholes.” West Virginia, 142 S. at 2622
(Gorsuch, J., concurring) (quoting Whitman v. Am. Trucking Ass’ns, Inc.,
531 U.S. 457, 468 (2001)).
Second, the portions of the HEROES Act Defendants rely on fail to
provide clear congressional authorization for the Program. Defendants
rely on the COVID-19 pandemic as their justification for the Program.
They contend that the HEROES Act allows the Secretary the authority
to address the financial hardship of the COVID-19 pandemic. Indeed,
the COVID-19 pandemic falls within the HEROES Act’s definition of an
emergency. § 1098ee(4). But it is unclear whether the Program is
“necessary in connection with [that] national emergency.”
§ 1098bb(a)(1). The COVID-19 pandemic was declared a national
emergency almost three years ago and declared weeks before the
Program by the President as “over.” 20 Thus, it is unclear if COVID-19 is
still a “national emergency” under the Act.
Defendants contend that in ten years, they could still use the
HEROES Act to forgive student loan debt because of the COVID-19
pandemic if the Secretary deems it “necessary.” ECF No. 32, at 69–70.
But a legislative provision with “broad or general language” will not
19

As the Texas Supreme Court recognized 130 years ago:

When the purpose of a legislative enactment is obvious from the language
of the law itself, there is nothing left to construction. In such case it is vain
to ask the courts to attempt to liberate an invisible spirit, supposed to live
concealed within the body of the law, and thus interpret away the manifest
legislative intention by embracing subjects not fairly within the scope of
the statute.
Dodson v. Bunton, 17 S.W. 507, 508 (Tex. 1891).
60 Minutes (@60Minutes),
https://tinyurl.com/2s35maau.
20

TWITTER

22

(Sept.

18,

2022,

7:09

PM),

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supply a clear statement. Id. at 2623. The Department’s reliance on its
ability to modify provisions of title IV “as the Secretary deems necessary
in connection with a . . . national emergency” is the very language that
does not supply a clear statement. See, e.g., Ala. Ass’n of Realtors, 141
S. Ct. at 2489 (“It is hard to see what measures [the Government’s]
interpretation would place outside the CDC’s reach, and the
Government has identified no limit in [42 U.S.C.] § 361(a) beyond the
requirement that the CDC deem a measure ‘necessary.”) (emphasis
added).
Third, “the agency’s past interpretations of the relevant statute” is
another clue that the Secretary lacks clear congressional authorization
for the Program. West Virginia., 142 S. Ct. at 2625 (Gorsuch, J.,
concurring). “When an agency claims to have found a previously
‘unheralded power’ in a rarely invoked statutory provision, its assertion
generally warrants “a measure of skepticism.” Id. (quoting Utility Air,
573 U. S., at 324). The Department has not “relied on the HEROES Act
or any other statutory, regulatory, or interpretative authority for the
blanket or mass cancellation. . . of student loan principal balances,
and/or the material change of repayment amounts or terms.” See
Memorandum to Betsy DeVos Secretary of Education at 6.
Thus,

because

the

Department

lacks

“clear

congressional

authorization” for the Program under the HEROES Act, the Court
grants summary judgment in favor of Plaintiffs.

c. Vacatur is the Appropriate Remedy
Next, the appropriate remedy. Plaintiffs seek two types of relief—
vacatur of the Program and nationwide injunctive relief. “Vacatur [of an
agency action] retroactively undoes or expunges a past [agency] action
. . . . Unlike an injunction, which merely blocks enforcement, vacatur
unwinds the challenged agency action.” Data Mktg. P’ship, 45 F.4th at
859 (quoting Driftless Area Land Conservancy v. Valcq, 16 F.4th 508,
522 (7th Cir. 2021)) (alterations and ellipsis in original). While “[i]t is
not beyond the power of a court, in appropriate circumstances, to issue
a nationwide injunction,” these circumstances do not justify such a
remedy. Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015).
23

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Instead, “the ordinary practice is to vacate unlawful agency action.”
Data Mktg. P’ship, 45 F.4th at 859 (quoting United Steel v. Mine Safety
& Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019)). Vacatur is
authorized by 5 U.S.C. § 706, which requires the Court to decide “all
relevant questions of law [and] interpret constitutional and statutory
provisions” and “hold unlawful and set aside” agency action “not in
accordance with law,” “in excess of statutory jurisdiction,” or “short of
statutory right.” Because “under our Constitution, the people’s elected
representatives in Congress are the decisionmakers here—and they
have not clearly granted the agency the authority it claims for itself,”
the Program is unlawful. West Virginia, 142 S. Ct. at 2626 (2022)
(Gorsuch, J., concurring). The Court thus applies the “default rule” and
vacates the Program. See Data Mktg. P’ship, 45 F.4th at 859–60.
Sometimes courts—though authorized by the APA to vacate an
agency action—exercise their discretion to remand the action for
adjustments or another agency review. See, e.g., Texas v. United States,
50 F.4th at 529. In deciding whether to sidestep complete vacatur, courts
consider “(1) the seriousness of the deficiencies of the action, that is, how
likely the agency will be able to justify its decision on remand; and
(2) the disruptive consequences of the vacatur.” Id. If there is a small
defect or deficiency that is quickly curable or an existing complex agency
program that requires major winddown efforts, a court may remand
without vacating the entire action. See, e.g., Lion Health Servs., Inc. v.
Sebelius, 635 F.3d 693, 703 (5th Cir. 2011) (remanding to the agency to
recalculate amounts owed in a manner consistent with the statute).
Both factors weigh against remand. First, the agency’s misstep is not
correctible on remand—it is a complete usurpation of congressional
authorization implicating the separation of powers required by the
Constitution. Second, the Program does not require a significant
administrative winddown period, as loan forgiveness has not started.
Thus, remand is not the appropriate remedy.
For those reasons, vacatur of the Program is the appropriate remedy.

24

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CONCLUSION
This case involves the question of whether Congress—through the
HEROES Act—gave the Secretary authority to implement a Program
that provides debt forgiveness to millions of student-loan borrowers,
totaling over $400 billion. Whether the Program constitutes good public
policy is not the role of this Court to determine. 21 Still, no one can
plausibly deny that it is either one of the largest delegations of
legislative power to the executive branch, or one of the largest exercises
of legislative power without congressional authority in the history of the
United States.
In this country, we are not ruled by an all-powerful executive with a
pen and a phone. Instead, we are ruled by a Constitution that provides
for three distinct and independent branches of government. As
President James Madison warned, “[t]he accumulation of all powers,
legislative, executive, and judiciary, in the same hands, whether of one,
a few, or many, and whether hereditary, self-appointed, or elective, may
justly be pronounced the very definition of tyranny.” THE FEDERALIST
NO. 47.
The Court is not blind to the current political division in our country.
But it is fundamental to the survival of our Republic that the separation
of powers as outlined in our Constitution be preserved. And having
interpreted the HEROES Act, the Court holds that it does not provide
“clear congressional authorization” for the Program proposed by the
Secretary.
Thus, Plaintiffs’ Motion for Summary Judgment (ECF No. 3) is
GRANTED and Defendants’ Motion to Dismiss (ECF No. 25) is

Under our system of government, public policy is typically made by the Congress
through a negotiated-and-reasoned process among the members, with input from the
President, and based on how Congress legislated, those members would then be held
accountable by their constituents each election cycle. See Speaker Sam Rayburn,
quoted in D.B. Hardeman & Donald C. Bacon, RAYBURN: A BIOGRAPHY 429 (1987) (“A
[politician] who is not willing to get out and defend what he has done will ultimately
find himself in poor shape politically.”). As President Lyndon Johnson was found of
admonishing Congress, “Come now, let us reason together.” JOHN BARTLETT, FAMILIAR
QUOTATIONS 872 (15th ed. 1980).
21

25

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DENIED. And the Court DECLARES UNLAWFUL and VACATES
the Program.
SO ORDERED on this 10th day of November 2022.

Mark T. Pittman
UNITED STATES DISTRICT JUDGE

26