CASE NO.

22-3179

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

STATE OF NEBRASKA, et al.,

Plaintiffs-Appellants,
v.
JOSEPH R. BIDEN, JR., in his official capacity as the President of the
United States of America, et al.,
Defendants-Appellees.

On Appeal from the United States District Court

for the Eastern District of Missouri
The Honorable District Court Judge Henry E. Autrey
Case No. 4:22-cv-1040-HEA

EMERGENCY MOTION FOR ADMINISTRATIVE STAY

OF AGENCY ACTION PENDING RULING ON MOTION
FOR INJUNCTION PENDING APPEAL AND REQUEST
FOR EXPEDITED BRIEFING ON THAT MOTION

ERIC S. SCHMITT DOUGLAS J. PETERSON

Attorney General of Missouri Attorney General of Nebraska
D. JOHN SAUER JAMES A. CAMPBELL
Solicitor General of Missouri Solicitor General of Nebraska
MICHAEL E. TALENT CHRISTIAN EDMONDS
Deputy Solicitor General of Missouri Assistant Solicitor General of
MISSOURI ATTORNEY GENERAL’S Nebraska
OFFICE OFFICE OF THE NEBRASKA
Post Office Box 899 ATTORNEY GENERAL
Jefferson City, MO 65102 2115 State Capitol
(314) 340-4869 Lincoln, NE 68509
[email protected] (402) 471-2682
[email protected]

Appellate Case: 22-3179 Page: 1 Date Filed: 10/21/2022 Entry ID: 5210237
 Yesterday, on October 20, 2022, the district court declined to enjoin

the Biden Administration’s Mass Debt Cancellation, R. Doc. 44, which

will erase over $400 billion of the $1.6 trillion in outstanding federal

student loan debt. See CBO Sept. 26, 2022 Letter at 3,

https://tinyurl.com/2p95x8kk. The district court acknowledged that

Plaintiffs-Appellants States of Nebraska, Missouri, Arkansas, Iowa,

Kansas, and South Carolina (collectively the “States”) raised “important

and significant challenges to the debt relief plan.” R. Doc. No. 44, at 18.

But the court declined to grant injunctive relief because it said that the

States all lacked standing. Id. It reached that conclusion even though

the Cancellation program will (1) reduce by millions of dollars the reve-

nue of a Missouri state entity charged with the “essential public func-

tion[]” of ensuring “post-secondary education students have access to stu-

dent loans,” Id. at 10–11 (quoting Mo. Rev. Stat. § 173.360), (2) threaten

the investments of Arkansas and Nebraska state entities, and (3) impose

enormous tax revenue losses on Nebraska, Iowa, Kansas, and South

Carolina.

Because the district court erred in dismissing the States’ case and

declining to enjoin the unlawful Cancellation program, the States have

1
Appellate Case: 22-3179 Page: 2 Date Filed: 10/21/2022 Entry ID: 5210237
filed a motion for an injunction pending appeal concurrently with this

motion. But Defendants-Appellees Joseph R. Biden, in his official

capacity as the President of the United States; Miguel Cardona, in his

official capacity as Secretary of the United States Department of

Education (the Secretary); and the United States Department of

Education (the Department) (collectively the “Administration”) say that

they will start cancelling student loan debt under the program as early

as October 23, which is just two days away. See R. Doc. 27-1, at 4, ¶5. To

ensure that does not happen before this Court can consider the States’

motion for an injunction pending appeal, the States respectfully request

that, by 9:00 AM Central Saturday October 22, the Court temporarily

stay the Administration from discharging any student loan debt under

the Cancellation program until this Court rules on that motion. See Fed.

R. App. P. 27(a)(1). The States also ask the Court to set an expedited

briefing schedule on the motion for an injunction pending appeal. The

States have asked the Administration for its position on these requests,

but as of the time of this filing, they have not received a response.

Last night, the States asked the district court to enter an injunction

pending appeal or a temporary administrative stay barring the

2
Appellate Case: 22-3179 Page: 3 Date Filed: 10/21/2022 Entry ID: 5210237
Administration from discharging any student loan debt under the Can-

cellation until this Court rules on the concurrently filed motion for an

injunction pending appeal. See R. Doc. 48, at 5. The district court denied

that request just before the States filed this motion. R. Doc. 50.1

ARGUMENT

1. For the reasons set out in the concurrently filed motion for an

injunction pending appeal, the States are entitled to an injunction

prohibiting the Administration from discharging student loan debt under

the Cancellation program during the pendency of this appeal. As that

motion explains, the States will suffer irreparable harm from the

discharge of that debt, and the district court was wrong to conclude that

the States lack standing to pursue their claims.

According to the Administration, the debt discharge might begin in

just two days. See R. Doc. 27-1, at 4, ¶5 (telling the district court that the

Department “will not discharge any student loan debt . . . prior to October

23, 2022 ”) (emphasis added). Given the incredibly short timeframe

1In the motion for an injunction pending appeal that the States filed with
this Court, they indicated that the district court had yet to rule on the
motion for temporary relief pending appeal that the States filed with that
court. The district court has now denied that motion.

3
Appellate Case: 22-3179 Page: 4 Date Filed: 10/21/2022 Entry ID: 5210237
between the district court’s decision and the apparent commencement of

debt discharge under the Cancellation—and the fact that October 23 is a

Sunday—the States’ request for a temporary administrative stay of

agency action is an appropriate way to maintain the status quo while

giving “the court sufficient opportunity to consider the merits of the”

States’ motion for an injunction pending appeal. Brady v. NFL, 638 F.3d

1004, 1005 (8th Cir. 2011); see also Redmond v. United States, 507 F.2d

1007, 1011 (5th Cir. 1975) (granting “a stay of [administrative] enforce-

ment of the period of disqualification pending the final outcome of this

cause on appeal”); Order, Cobell v. Norton 391 F.3d 251 (D.C. Cir. 2004),

2004 WL 603456, at *1 (granting an administrative stay “to give the court

sufficient opportunity to consider the merits of the motion”).

The equities also support this request. The States propose a

briefing schedule on their motion for an injunction pending appeal that

concludes by the middle of the day on Wednesday October 26—thus

drastically minimizing the duration of this temporary stay of agency

action and any potential harm that the Administration could conceivably

claim. Because the Department’s Cancellation program appears slated

to run to at least December 31, 2023, see R. Doc. 31-1, at 5, postponing

4
Appellate Case: 22-3179 Page: 5 Date Filed: 10/21/2022 Entry ID: 5210237
discharges by a few days will not materially hinder the program. Indeed,

granting this request will not prevent the Department from continuing

to accept discharge applications while awaiting a ruling on the motion for

an injunction pending appeal. Finally, the Department has paused loan

payments through December 31, 2022, for those eligible to receive

cancellation, see 87 Fed. Reg. 61512, 61514 (Oct. 12, 2022), so borrowers

will not be harmed by granting this request.

On the other hand, the imminent discharge of student loan debt

inflicts irreparable harm to the States, as set out in the concurrently filed

motion for an injunction pending appeal. Each day that the Department

cancels debt directly reduces revenue to State entities like MOHELA,

financial support for State higher education, and future tax revenue to

the States under operation of current law. In addition, each day of debt

discharge impairs the States’ sovereign and quasi-sovereign interests.

Such harms are likely to be significant, and to occur rapidly. As of

Monday October 17, more than eight million borrowers had applied for

debt cancellation, according to the Administration. See Alex Gangitano

and Brett Samuels, White House Says 8 Million Americans Have Applied

for Student Loan Debt Forgiveness, The Hill (Oct. 17, 2022),

5
Appellate Case: 22-3179 Page: 6 Date Filed: 10/21/2022 Entry ID: 5210237
https://tinyurl.com/bdhcajdt. That number has surely grown since then.

Also, on Monday, the Administration promised to “mov[e] as quickly as

possible to provide relief to as many as possible.” Id. Because eight

million borrowers account for roughly 20 percent of the total borrowers

who are eligible for the Cancellation, see R. Doc. 31-1, at 24, the

Administration could erase roughly $80 billion to $100 billion in student

loans as soon as this Sunday. To ensure that does not happen before this

Court can review what the district court acknowledged are “important

and significant challenges to the debt relief plan,” R. Doc. No. 44, at 18,

this Court should enter the requested administrative stay by 9:00 AM

Central Saturday October 22.

2. In order to facilitate the expeditious review of the States’ motion

for an injunction pending appeal, the States respectfully request that the

Court order the following expedited briefing schedule on that motion, see

Fed. R. App. P. 27(a)(3)–(4) (providing timelines and stating that the

Court may shorten the time for a response):

 Defendants-Appellees’ opposition due on or before 5:00 PM

Central, Monday, October 24, 2022.

6
Appellate Case: 22-3179 Page: 7 Date Filed: 10/21/2022 Entry ID: 5210237
  Plaintiffs-Appellants’ reply, if any, due on or before 12:00 PM

Central, Wednesday, October 26, 2022.

CONCLUSION

The States respectfully request that this Court maintain the status

quo by entering—before 9:00 AM Central on Saturday October 22—an

administrative stay prohibiting the Administration from discharging any

student loan debt under the challenged Cancellation program until this

Court rules on the States’ motion for an injunction pending appeal.

The States further request that the Court set the following briefing

schedule on their motion for an injunction pending appeal:

 Defendants-Appellees’ opposition due on or before 5:00 PM

Central, Monday, October 24, 2022.

 Plaintiffs-Appellants’ reply, if any, due on or before 12:00 PM

Central, Wednesday, October 26, 2022.

7
Appellate Case: 22-3179 Page: 8 Date Filed: 10/21/2022 Entry ID: 5210237
Dated: October 21, 2022 Respectfully submitted,

/s/ James A. Campbell

James A. Campbell

ERIC S. SCHMITT DOUGLAS J. PETERSON

Attorney General of Missouri Attorney General of Nebraska
D. JOHN SAUER JAMES A. CAMPBELL
Solicitor General of Missouri Solicitor General of Nebraska
MICHAEL E. TALENT CHRISTIAN EDMONDS
Deputy Solicitor General of Missouri Assistant Solicitor General of
MISSOURI ATTORNEY GENERAL’S Nebraska
OFFICE OFFICE OF THE NEBRASKA
Post Office Box 899 ATTORNEY GENERAL
Jefferson City, MO 65102 2115 State Capitol
(314) 340-4869 Lincoln, NE 68509
[email protected] (402) 471-2682
[email protected]

LESLIE RUTLEDGE JEFFREY S. THOMPSON

Attorney General of Arkansas Solicitor General of Iowa
NICHOLAS J. BRONNI SAMUEL P. LANGHOLZ
Solicitor General of Arkansas Assistant Solicitor General of Iowa
DYLAN L. JACOBS OFFICE OF THE IOWA ATTORNEY
Deputy Solicitor General of Arkansas GENERAL
OFFICE OF THE ARKANSAS ATTORNEY 1305 E. Walnut Street
GENERAL Des Moines, Iowa 50319
323 Center Street, Suite 200 (515) 281-5164
Little Rock, AR 72201 [email protected]
(501) 682-2007 [email protected]
[email protected]

8
Appellate Case: 22-3179 Page: 9 Date Filed: 10/21/2022 Entry ID: 5210237
DEREK SCHMIDT ALAN WILSON
Attorney General of Kansas Attorney General of South Carolina
SHANNON GRAMMEL J. EMORY SMITH, JR.
Deputy Solicitor General of Deputy Solicitor General of
Kansas South Carolina
OFFICE OF THE KANSAS ATTORNEY OFFICE OF THE ATTORNEY GENERAL
GENERAL OF SOUTH CAROLINA
120 SW 10th Avenue, 2nd Floor P.O. Box 11549
Topeka, KS 66612 Columbia, SC 29211
(785) 296-2215 803-734-3680
[email protected] [email protected]

9
Appellate Case: 22-3179 Page: 10 Date Filed: 10/21/2022 Entry ID: 5210237
 CERTIFICATE OF COMPLIANCE

This motion complies with the type-volume limit of Fed. R. App. P.

27(d)(2)(A) because, excluding the parts exempted by Fed. R. App. P.

32(f), it contains 1,342 words as determined by the word-counting feature

of Microsoft Word 2016.

This motion also complies with the typeface requirements of Fed.

R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P.

32(a)(6) because it has been prepared using Microsoft Word 2016 in 14-

point proportionally spaced Century Schoolbook font.

And this motion complies with the electronic-filing requirements of

Local Rule 28A(h)(2) because it was scanned for viruses using Windows

Defender and no virus was detected.

/s/ James A. Campbell

James A. Campbell

10
Appellate Case: 22-3179 Page: 11 Date Filed: 10/21/2022 Entry ID: 5210237
 CERTIFICATE OF SERVICE

I certify that on October 21, 2022, I electronically filed the foregoing

motion with the Clerk of the Court by using the CM/ECF system, and

that the CM/ECF system will accomplish service on all parties repre-

sented by counsel who are registered CM/ECF users. I also certify that

a copy of the foregoing motion was served by electronic mail on counsel

for Defendants-Appellees who have consented in writing to electronic

mail service at the following addresses:

Thomas Pulham
[email protected]

Courtney L. Dixon
[email protected]

Simon C. Brewer
[email protected]

Michael S. Raab
[email protected]

Sarah W. Carroll
[email protected]

/s/ James A. Campbell

James A. Campbell

11
Appellate Case: 22-3179 Page: 12 Date Filed: 10/21/2022 Entry ID: 5210237