Page:Department of Education v. Brown.pdf/9

Rh Taylor, on the other hand, is eligible for loan forgiveness—but only $10,000, rather than the maximum $20,000. That is because, despite now having an annual income of less than $25,000, he never received a Pell Grant. See App. 183, Complaint ¶61. Thus, individuals with annual income up to five times greater than his are eligible for twice as much loan forgiveness as he is if they ever received a Pell Grant.

Accordingly, both Brown and Taylor object to certain elements of the Plan—Brown to its limitation to federally held loans, and Taylor to the additional relief it doles out based on prior Pell Grants, with no regard for current income. Because the Department did not engage in negotiated rulemaking or notice and comment, however, Brown and Taylor had no formal opportunity to voice their views on the Plan prior to its adoption.

Alleging that the law entitles them to such an opportunity, Brown and Taylor brought this action in the U. S. District Court for the Northern District of Texas. Their one-count complaint claims that the Plan is unlawful because the Department promulgated it without observing the requirements of negotiated rulemaking and notice and comment. As a result, they claim, we should “[v]acate and set aside the” Plan under 5 U. S. C. §706(2)(D). App. 186.

Brown and Taylor recognize that the HEROES Act supplies exemptions from these procedural requirements. They argue, however, that an action of the Secretary falls within these exemptions only if it is substantively authorized by the Act; the Secretary, in their view, cannot merely invoke the “HEROES Act” to bypass negotiated rulemaking and notice and comment. According to Brown and Taylor, the Act does not substantively authorize the Plan, and so the Secretary was required to follow these procedures.

The District Court agreed with Brown and Taylor—in part. It rebuffed their central argument that the HEROES