Professional Documents
Culture Documents
22A444
22A444
22A____
________________________________________________________________
________________________________________________________________
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v.
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ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
[email protected]
(202) 514-2217
________________________________________________________________
________________________________________________________________
PARTIES TO THE PROCEEDING
RELATED PROCEEDINGS
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No. 22A____
v.
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for Students Act of 2003 (HEROES Act or Act), Pub L. No. 108-76,
end of the year. But the Secretary also found that when repayment
lack of Article III standing, but the Eighth Circuit granted their
the court did not analyze the merits of respondents’ claims, much
what the Secretary did here. And the plan rested on the Secre-
payment. The Eighth Circuit did not address either the text of
the statute or the data supporting the plan. And the court com-
before judgment, grant the petition, and set the case for expedited
STATEMENT
A. Background
new loans under the latter two programs has expired, many loans
loans under the three programs, and their debts total roughly $1.62
enacting the HEROES Act. Like its predecessor, the HEROES Act
HEROES Act does not limit relief to borrowers who suffered hardship
need not act through notice and comment; instead, he need only
No. 108-76, § 6, 117 Stat. 908. But Congress extended the Act by
two years, Pub. L. No. 109-78, 119 Stat. 2043, and in 2007 made
the Act permanent, Pub. L. No. 110-93, 121 Stat. 999. Since 2003,
ing forbearance for Perkins loans and waiving the requirement that
3975075, at *5-*6 (Aug. 23, 2022) (OLC Op.); App., infra, 30a.
has killed more than one million Americans and led to the hospi-
students who left school during the pandemic. See App., infra,
all such loans. 85 Fed. Reg. 79,856, 79,857 (Dec. 11, 2020).
Pub. L. No. 116-136, Div. A, Tit. III, Subtit. B, § 3513, 134 Stat.
404. Both the Trump and Biden Administrations then further ex-
tended these protections under the HEROES Act. See, e.g., 85 Fed.
quency and default” due to the pandemic. App., infra, 32a. The
he would extend the pause a final time, through December 31, 2022.
January 2023, the Secretary invoked the HEROES Act and directed
mined that the $10,000 threshold (and $20,000 for Pell Grant re-
B. Proceedings Below
and the Department in the U.S. District Court for the Eastern
and dismissed the suit for lack of Article III standing. App.,
the [S]tate”; and the State has no legal obligation to pay MOHELA’s
ing to bring this suit (and did not address the other respondents’
The court of appeals then turned to the merits and the equi-
that the “merits of the appeal before this court involve substan-
tion omitted). The court also stated that the ”equities strongly
(N.D. Tex. Nov. 10, 2022). The plaintiffs in that case are two
individual borrowers who do not assert any injury from the provi-
claim that the plaintiffs themselves had not asserted (and would
sion and has sought a stay pending appeal. See Brown v. U.S. Dep’t
of Educ., appeal pending, No. 22-11115 (filed Nov. 14, 2022). That
ARGUMENT
Here, however, “one searches the opinion[] below in vain for any
Munaf v. Geren, 553 U.S. 674, 690 (2008). The Eighth Circuit
Lyons, 461 U.S. 95, 101 (1983). That is, the plaintiff must
“assert [its] own legal rights and interests, and cannot rest [its]
Warth v. Seldin, 422 U.S. 490, 499 (1975). Here, Missouri has
“sue and be sued” in its own name. Mo. Rev. Stat. § 173.385(3)
(2022). And MOHELA has publicly stated that it was “not involved
seek to block the program and that “the only communications between
principle that a plaintiff must “assert [its] own legal rights and
ury. The plan may not cause a significant drop in MOHELA’s revenue
18
the State. Guesswork about how the plan will affect MOHELA and
how MOHELA will react to those effects does not suffice to estab-
87 Fed. Reg. 10,289, 10,289 (Feb. 23, 2022). Both the Trump and
borrowers living and working abroad qualify because they have suf-
Finally, the Act authorizes the type of relief that the Sec-
ment obligations to ensure that they are not worse off in relation
Mot. For Inj. Pending Appeal 19-20. But the evidence before the
pp. 9-10, supra. And the evidence further showed that reducing
“risk that delinquency and default rates will rise above pre-
the Act: that borrowers “are not placed in a worse position fi-
Inj. Pending Appeal 21, the proposed relief directly targets those
pandemic, and thus face the highest risk of delinquency and default
Respondents have also asserted that the HEROES Act limits the
C.A. Mot. For Inj. Pending Appeal 20 (emphasis omitted). But the
those that establish the obligation to repay loans and the cir-
2022). The Department has estimated that these measures saved the
23
they enter repayment. See Resp. C.A. Mot. For Inj. Pending Appeal
24
20. But the Act makes clear that “[t]he Secretary is not required
affected individuals are not worse off with respect to their stu-
prophylactic rule.”).
trine, see Resp. C.A. Mot. For Inj. Pending Appeal 17-19, but that
“for the power it claims.” West Virginia v. EPA, 142 S. Ct. 2587,
2609 (2022); see id. at 2607-2609. But this case lacks the hall-
in any event.
every case where this Court has invoked the major questions doc-
demic. This case is thus far afield from cases like West Virginia,
where the Court found that the agency action at issue would have
529 U.S. 120, 160 (2000). The central provision of the HEROES
see Webster v. Doe, 486 U.S. 592, 600 (1988) (statutory authority
added); see City of New York v. FCC, 486 U.S. 57, 67 (1988) (holding
U.S. 302, 324 (2014). Since its enactment in 2003, the Department
2020, both the Trump and Biden Administrations have invoked the
Act to issue relief to all borrowers, see pp. 8-9, 22-23, supra.
ment more than $100 billion. See pp. 22-23, supra. To the extent
pandemic will go “further than what the Secretary has done in the
notion that Congress might not have foreseen such relief is like-
Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
1160 (2021), and “[i]t is not infrequent that the available data
scrutiny, an agency need only “examine the relevant data and ar-
‘rational connection between the facts found and the choice made.’ ”
the risk that delinquency and default rates will rise above pre-
and disregarded the statutory factors. Resp. C.A. Mot. For Inj.
bearance, App., infra, 39a -- and the Secretary in fact did tem-
omitted); see also Solenex LLC v. Bernhardt, 962 F.3d 520, 529
resemblance to Regents, where the Court found that the agency had
App., infra, 41a-47a. And given that the COVID-19 disaster dec-
III courts” and impose a severe “toll on the federal court system.”
Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., con-
curring); see DHS v. New York, 140 S. Ct. 599, 599-601 (2020)
[the injured parties].” Lewis v. Casey, 518 U.S. 343, 360 (1996).
U.S. 308, 319 (1999). Such relief must “be no more burdensome to
not provide relief beyond the parties to the case.” Hawaii, 138
in th[e] lawsuit, and hence were not the proper object of th[e
34
the challenged agency action. See New York, 140 S. Ct. at 601
late process unfolds often leaves the Executive Branch with little
choice but to seek emergency appellate relief. See New York, 140
ing this Court, of the benefits that accrue when different courts
alogue. Ibid.
35
simply enjoined the Secretary from discharging loans that are ser-
App., infra, 6a. But the Eighth Circuit did not find that any of
The harm to the government and the public from enjoining the
act. See pp. 9-11, 30-31, supra. The injunction thus frustrates
termined are necessary. See Maryland v. King, 567 U.S. 1301, 1303
soon as practicable.
Eligible borrowers have been told that they will be able to obtain
meaningful debt relief: for the average borrower, the relief con-
obligations.
standing, see pp. 15-18, supra -- much less the irreparable injury
III. IN THE ALTERNATIVE, THE COURT MAY WISH TO TREAT THIS APPLI-
CATION AS A PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
For the foregoing reasons, this Court should vacate the in-
ever, the Court denies that relief, it may wish to construe this
grant the petition, and set this case for expedited briefing and
Article III standing, and (2) whether the plan exceeds the Secre-
scheduled for Nov. 29, 2022); Nken v. Mukasey, 555 U.S. 1042
2023 sitting.
tary to grant such relief without delay. See pp. 6-7, 26-29,
See pp. 9-11, 20-21, supra. Yet the Eighth Circuit, in a six-page
could not hear the case this Term. Based on the briefing schedule
set by the Eighth Circuit, the appeal will not be fully briefed
40
Circuit enters judgment would thus likely delay the Court’s reso-
the plan after “full briefing and oral argument.” See Whole
C.J., dissenting).
CONCLUSION
judgment, grant the petition, and set this case for expedited
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
NOVEMBER 2022