No.

22-3179

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

STATE OF NEBRASKA, STATE OF MISSOURI, STATE OF ARKANSAS,

STATE OF IOWA, STATE OF KANSAS, and STATE OF SOUTH CAROLINA,
Plaintiffs-Appellants,
v.
JOSEPH R. BIDEN, Jr., in his official capacity as the President of the United States
of America; MIGUEL CARDONA, in his official capacity as Secretary, United
States Department of Education; and UNITED STATES DEPARTMENT
OF EDUCATION,
Defendants-Appellees.
______________
On Appeal from the United States District Court
for the Eastern District of Missouri, Eastern Division

BRIEF OF THE NEW CIVIL LIBERTIES ALLIANCE

AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS
______________

October 24, 2022 John J. Vecchione

Sheng Li
Mark Chenoweth
NEW CIVIL LIBERTIES ALLIANCE
1225 19th St. NW, Suite 450
Washington, DC 20036
(202) 869-5210
[email protected]

Counsel for Amicus Curiae

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 CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned counsel

states that amicus curiae New Civil Liberties Alliance is a nonprofit organization under

the laws of the District of Columbia. It has no parent corporation, and no publicly held

corporation owns 10 percent or more of its stock.

/s/John J. Vecchione
John J. Vecchione

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 TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ........................................................................................... i

TABLE OF CONTENTS ............................................................................................................................... ii
TABLE OF AUTHORITIES ........................................................................................................................ iii
STATEMENT OF INTEREST ..................................................................................................................... 1
SUMMARY OF ARGUMENT ...................................................................................................................... 2
ARGUMENT..................................................................................................................................................... 4
I. DEFENDANTS’ INTERPRETATION OF THE HEROES ACT VIOLATES
THE CONSTITUTION’S VESTING CLAUSE ............................................................... 4
II. DEFENDANTS’ INTERPRETATION OF THE HEROES ACT VIOLATES
THE CONSTITUTION’S APPROPRIATIONS CLAUSE ................................................. 8
III. MASS DEBT CANCELLATION INFLICTS ADDITIONAL CONCRETE AND
IRREPARABLE INJURY ............................................................................................. 11
CONCLUSION ...............................................................................................................................................14
CERTIFICATE OF SERVICE ....................................................................................................................15
CERTIFICATE OF COMPLIANCE .........................................................................................................15

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 TABLE OF AUTHORITIES
Cases
A.I. Trade Fin., Inc. v. Petra Int’l Banking Corp.,
62 F.3d 1454, 1458, 1460, 1463 (D.C. Cir. 1995)........................................................... 9
A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935)........................................................................................................ 4, 7
Chamber of Com. of U.S. v. Edmondson,
594 F.3d 742 (10th Cir. 2010) ................................................................................... 13, 14
Clinton v. City of New York,
524 U.S. 417 (1998)...................................................................................................passim
Comcast Corp. v. Nat’l Assoc. of African AmericanOwned Media,
140 S. Ct. 1009, 1014 (2020) ........................................................................................... 13
Community Financial Services Association of America v. CFPB,
--- F.4th ---, 2022 WL 11054082 (5th Cir. Oct. 19, 2022) ........................................... 9
INS v. Chadha,
462 U.S. 919 (1983)............................................................................................................ 4
Jarkesy v. SEC,
34 F.4th 446 (5th Cir. 2022).............................................................................................. 6
Lujan v. Defs. of Wildlife,
504 U.S. 555, 560–61 (1992) ........................................................................................... 13
Marshall Field & Co. v. Clark,
143 U.S. 649 (1892)............................................................................................................ 5
OPM v. Richmond,
496 U.S. 414 (1990)........................................................................................................... 9
Texas Educ. Agency v. U.S. Dep’t of Educ. ,
992 F.3d 350 (5th Cir. 2021) ............................................................................................ 9

Statutes
20 U.S.C. § 1098aa .................................................................................................................. 4
20 U.S.C. § 1098bb ........................................................................................................passim

Other Authorities
Federal Student Aid Programs,
87 Fed. Reg. 61,512 (Oct. 12, 2022) .............................................................................. 10
Rebecca Falconer, Biden: “The pandemic is over”, Axios (Sep. 18, 2022) ............................. 8
Statements & Releases, White House, FACT SHEET: President Biden Announces Student
Loan Relief for Borrowers Who Need It Most (Aug. 24, 2022) ............................................. 7

Constitutional Provisions
U.S. Const. art. I, § 1 .......................................................................................................... 4, 8
U.S. Const. art. I, § 9 .............................................................................................................. 9

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 STATEMENT OF INTEREST

The New Civil Liberties Alliance (NCLA) is a nonprofit, non-partisan civil rights

organization devoted to defending constitutional freedoms from violations by the

administrative state. The “civil liberties” of the organization’s name include rights at

least as old as the U.S. Constitution itself, such as jury trial, due process of law, the right

to be tried in front of an impartial and independent judge, and the right to have laws

made by the nation’s elected lawmakers through constitutionally prescribed channels

(i.e., the right to self-government). These selfsame civil rights are also very

contemporary—and in dire need of renewed vindication—precisely because Congress,

the President, federal administrative agencies, and even sometimes the Judiciary, have

neglected them for so long.

NCLA aims to defend civil liberties—primarily by asserting constitutional

constraints on the administrative state. Although the American People still enjoy the

shell of their Republic, there has developed within it a very different sort of

government—a type, in fact, that the Constitution was designed to prevent. This

unconstitutional state within the Constitution’s United States is the focus of NCLA’s

concern.

NCLA is representing the Cato Institute in the United States District Court for

the District of Kansas in a similar challenge against the same Defendants’ invocation of

the Higher Education Relief Opportunities for Students Act of 2003 (“HEROES Act”),

Pub. L. No. 108-76, 117 Stat. 904, to cancel hundreds of billions of dollars of federally

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held student debt. See Cato Institute v. Dep’t of Educ. Case No. 5:22-cv-4055 (D. Kansas).

The Defendants argue that the HEROES Act should be read broadly to grant them

license to make virtually any modification or waiver of prior acts of Congress they deem

necessary to address the COVID-19 pandemic, including wiping out debt owned to the

Treasury. But if construed so broadly, the Act would divest to an executive agency

Congress’s power to make laws and appropriate funds, in violation of Article I, §§ 1

and 9 of the Constitution. Adherence to the separation-of-powers principles embedded

in the Constitution is, in NCLA’s view, essential to maintaining our Republic’s

representative form of government.

SUMMARY OF ARGUMENT

Under the Constitution, individuals are to be bound only by laws made with their

consent through their elected legislature. Confirming this principle is the separation of

powers, under which legislative power is exercised by Congress. The Framers decided

against any congressional delegation of power. Their intent found expression in the

Constitution’s Vesting Clause, which states that “[a]ll legislative Powers herein granted

shall be vested in a Congress of the United States[.]” U.S. Const. Art. I, § 1 (emphasis

added). The Framers also made clear that the power of the purse must reside solely in

the legislature. To this end, the Constitution’s Appropriations Clause explicitly provides

that “No Money shall be drawn from the Treasury, but in Consequence of

Appropriations made by Law.” Id. Art. I, § 9.

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 Defendants’ invocation of the HEROES Act to rewrite statutory provisions to

cancel hundreds of billions of dollars owed to the Treasury violates both the Vesting

and Appropriations Clauses. This scheme, referred to hereinafter as “Mass Debt

Cancellation,” is quintessentially legislative in character because it amends laws duly

passed by Congress. It is also an appropriation because any amount of cancelled debt

directly reduces funds that would otherwise flow into the Treasury. The HEROES Act

would be unquestionably unconstitutional if it empowered an executive agency—here

the Department of Education—to amend statutes and appropriate funds. See Clinton v.

City of New York, 524 U.S. 417, 440-41 (1998) (holding Line Item Veto Act was

unconstitutional because it impermissibly authorized the President to amend

appropriations statutes). Defendants’ reliance on an unconstitutional interpretation of

the HEROES Act to justify Mass Debt Cancellation guarantees that Plaintiffs will

ultimately succeed on the merits of their lawsuit.

Plaintiffs will also suffer concrete and irreparable injuries absent an injunction.

In addition to the injuries set forth the in Plaintiffs’ Motion for Injunction Pending

Appeal, Mass Debt Cancellation further injures Plaintiffs by taking away congressionally

enacted incentives under the Public Service Loan Forgiveness (“PSLF”) program for

student-loan borrowers to find and maintain employment at state agencies. See 20

U.S.C. § 1087e(m)(3)(B)(i) (establishing PSLF incentives for workers in “public service”

jobs). The loss of such incentives is both concrete for the purposes of Article III

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standing and irreparable. The Court should therefore put the unlawful Mass Debt

Cancellation scheme on pause while it considers the parties’ arguments on the merits.

ARGUMENT

I. DEFENDANTS’ INTERPRETATION OF THE HEROES ACT VIOLATES THE

CONSTITUTION’S VESTING CLAUSE

Article I, § 1, of the Constitution provides: “All legislative Powers herein granted

shall be vested in a Congress of the United States.” Congress may not “abdicate or …

transfer to others the essential legislative functions with which it is thus vested.” A.L.A.

Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935).

According to Defendants, Mass Debt Cancellation is authorized by the

HEROES Act, which Congress enacted in response to the September 11 terrorist

attacks “to support the members of the United States military and provide [student

loan] assistance with their transition into and out of active duty and active service.” 20

U.S.C. § 1098aa(b). Under the HEROES Act, “[t]he Secretary of Education … may

waive or modify any statutory … provision applicable to student financial assistance”

that he “deems necessary.” Id. § 1098bb(a)(1). Whether or not an intelligible principle

guides the waiver or modification, cf. 20 U.S.C. § 1098bb(a)(2), such waiver or

modification of legislation has an unavoidable and quintessential “legislative character,”

as “confirmed by the character of the Congressional action it supplants”—legislative

amendment. INS v. Chadha, 462 U.S. 919, 952 (1983).

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 In Clinton v. City of New York, the Court rejected the President’s authority under

the Line-Item Veto Act to “cancel” certain types of statutory “provisions that have

been signed into law.” 524 U.S. at 436. Because the effect of cancellation was to

“prevent[] the item ‘from having legal force or effect,’” the Court reasoned that its “legal

and practical effect” was to “amend[] … Acts of Congress” “after the bill[s] become[s]

law.” Id. at 437–39. It was of no moment that the cancellations did not formally “effect

a repeal” and that cancelled items continued to occupy space in the U.S. Code. What

mattered was that “the President made [the cancelled statutory provisions] entirely

inoperative as to appellees.” Id. at 441. The Court made clear that such changes to a

statute must “accord with a single, finely wrought and exhaustively considered,

procedure,” namely bicameralism and presentment. Id. at 439–40. There is no

difference between the cancellation of the budgetary provision rejected by the Court in

Clinton and the authority to “waive or modify any statutory … provision,” ostensibly

conferred by the HEROES Act. 20 U.S.C. § 1098bb(a)(1).

The Clinton Court distinguished Marshall Field & Co. v. Clark, 143 U.S. 649 (1892),

where the Court held a foreign-policy statute requiring the President to suspend certain

statutory provisions under circumstances specified by Congress was constitutional. The

Clinton Court emphasized that in Field, “Congress itself made the decision to suspend

or repeal the particular provisions at issue upon the occurrence of particular events,”

and “when the President determined that the contingency had arisen, he had a duty to

suspend” the statute. 524 U.S. at 443, 445 (emphasis added). In other words, the

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delegation of the power to suspend a statute was constitutional because there was no

room for “the President himself to effect the repeal of laws[] for his own policy

reasons.” Id. at 445. The constitutionality of this delegation was further supported by

the fact that “in the foreign affairs arena, the President has a degree of discretion and

freedom … which would not be admissible were domestic affairs alone involved.” Id.

(cleaned up).

Here, in contrast, not only is higher education financing a domestic matter, but

unlike the Field suspensions, the Secretary of Education does not have a duty to issue

waivers or modifications under conditions specified by Congress. Rather, he “may waive

or modify any statutory … provision.” 20 U.S.C. § 1098bb(a)(1) (emphasis added).

While the Secretary may exercise this power only in service of certain statutory

objectives, see id. § 1098bb(a)(2), the Act grants him unfettered discretion in choosing

whether and when to do so. The Secretary also has the unfettered discretion to act “as

[he] deems necessary,” id. § 1098bb(a)(1), meaning he controls which statutory

provisions are waived and what “terms and conditions” he replaces them with, id.

§ 1098bb(b)(2). He controls the contents of the statutory amendment with respect to

“affected individuals” and may rewrite the law as he sees fit as applied to those

individuals. In Jarkesy v. SEC, 34 F.4th 446, 461 (5th Cir. 2022), the Fifth Circuit held

that Congress’s grant of “unfettered discretion” in deciding whether to “bring a

securities fraud suit for monetary penalties within the agency [or] in an Article III court”

failed the intelligible-principle test and therefore violated the Vesting Clause. The

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HEROES Act, as construed and applied by Defendants, confers far greater discretion.

Assuming arguendo that “affected individuals” exist who satisfy the Act’s predicates for

receiving relief, the Secretary has unfettered discretion to provide them no relief at all

or, according to Defendants, completely cancel their debt. Because the HEROES Act

contains no intelligible principle to guide this awesome power, it is unconstitutional. Id.

The Secretary’s unfettered discretion impermissibly allows “his own policy

reasons”—rather than those of Congress—to determine the existence or timing of a

waiver or modification. Clinton, 524 U.S. at 445. The effects of this discretion are evident

here because the Secretary’s choice of whether to enact debt cancellation was motivated

by non-statutory policy considerations, including the rising cost of education “[s]ince

1980” and the aim of “[a]dvanc[ing] racial equity.” Statements & Releases, White House,

FACT SHEET: President Biden Announces Student Loan Relief for Borrowers Who Need It Most

(Aug. 24, 2022) (“This plan offers targeted debt relief as part of a comprehensive effort

to address the burden of growing college costs and make the student loan system more

manageable for working families.”). Such policy reasons also may have informed the

Secretary’s choice of when to enact debt cancellation: just weeks before a midterm

congressional election that will take place after the President declared “the pandemic is

over.” Rebecca Falconer, Biden: “The pandemic is over,” Axios (Sep. 18, 2022).1

1
Available at: https://www.axios.com/2022/09/19/biden-covid-pandemic-over (last
visited Oct. 21, 2022).

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 It is therefore clear that the President and his Secretary’s “own policy reasons”

for enacting debt cancellation impermissibly directed the Secretary’s choice to invoke

waiver and modification under § 1098bb. Clinton, 423 U.S. at 445. Even if that were not

so, the capacious discretion allowed by the HEROES Act (as interpreted by

Defendants) would certainly allow the Secretary’s own policy considerations to control

the timing and manner of a waiver or modification. Either way, the Act contradicts the

precedential requirement that “Congress itself ma[k]e the decision” of whether, when,

and how to suspend the laws, especially those with direct effects on the Treasury. Id.

The HEROES Act’s supposed grant of authority upon the Secretary to suspend

the statutory provisions concerning debt owed to the Treasury, to “modify” them with

his own “terms and conditions,” 20 U.S.C. § 1098bb(a)(1), (b)(2), and to do so when

and how “[he] deems necessary,” id. § 1098bb(a)(1), violates Article I, § 1 of the

Constitution, which vests control over such decisions in Congress.

II. DEFENDANTS’ INTERPRETATION OF THE HEROES ACT VIOLATES THE

CONSTITUTION’S APPROPRIATIONS CLAUSE

In addition to legislative powers, Defendants’ interpretation of the HEROES

Act to authorize the outright cancellation of debt owed to the Treasury would also

impermissibly vest Congress’s appropriation powers in the Executive. Any such

cancellation amounts to an appropriation that violates Article I, § 9 of the Constitution,

which provides: “No Money shall be drawn from the Treasury, but in Consequence of

Appropriations made by Law.” This Clause reflects the Framers’ decision to “carefully

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separate[] the ‘purse’ from the ‘sword’ by assigning to Congress and Congress alone the

power of the purse.” Texas Educ. Agency v. U.S. Dep’t of Educ., 992 F.3d 350, 362 (5th

Cir. 2021) (quoting The Federalist Nos. 78 (Alexander Hamilton); See also The Federalist

Nos. 48 (James Madison) (“[T]he legislative department alone has access to the pockets

of the people.”). By requiring that “no money can be paid out of the Treasury unless it

has been appropriated by an act of Congress,” the Appropriations Clause “assure[s]

that public funds will be spent according to the letter of the difficult judgments reached

by Congress as to the common good and not according to the individual favor of

Government agents[.]” OPM v. Richmond, 496 U.S. 414, 428 (1990) (citation omitted).

In Community Financial Services Association of America v. CFPB, --- F.4th ---, 2022

WL 11054082, at *14 (5th Cir. Oct. 19, 2022), the Fifth Circuit held that Congress may

not divest its power of the purse to an executive agency. Congress enacted a statute that

allows the Consumer Financial Protection Bureau to “requisition[] from the Federal

Reserve an amount ‘determined by [CFPB’s] Director to be reasonably necessary to

carry out’ the Bureau’s functions” and “[t]he Federal Reserve must grant that request

so long as it does not exceed 12% of the Federal Reserve’s ‘total operating expenses.’”

Id. (quoting 12 U.S.C. § 5491(a)). This self-funding mechanism is an exercise of

Congress’s power of the purse because “[t]he funds siphoned by the Bureau, in effect,

reduce amounts that would otherwise flow to the general fund of the Treasury.” Id.

The Fifth Circuit held the self-funding statute violated the Appropriations Clause

because Congress was prevented from exercising any control over how much funds

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CFBP siphons from the Treasury. Id. at *15 (“So the Bureau’s funding is double-

insulated on the front end from Congress’s appropriations power. And Congress

relinquished its jurisdiction to review agency funding on the back end.”).

Defendants’ interpretation of the HEROES Act as authorizing the cancellation

of debt likewise would allow an executive agency to wield the power of the purse

without Congressional control. To start, any cancellation of debt owed to the Treasury

is indisputably an exercise of appropriations power because, like the CFBP’s

requisitions, it “reduce amounts that would otherwise flow to the general fund of the

Treasury.” Id. at *14. Congress also has neither direct nor indirect control over this

appropriations power because debt may be cancelled as “the Secretary deems

necessary.” 20 U.S.C. § 1098bb(a)(1). The need for a “national emergency” is no

limitation because, according to Defendants, a qualifying national emergency exists

whenever the President declares one. See Federal Student Aid Programs, 87 Fed. Reg.

61,512, 61,513 (Oct. 12, 2022) (justifying cancellation because “the President declared

a national emergency concerning the COVID-19 pandemic”). Defendants’

interpretation of the HEROES Act to authorize the Secretary to cancel debt owed to

the Treasury therefore would violate “[t]he Appropriations Clause’s ‘straightforward

and explicit command’ ensur[ing] Congress’s exclusive power over the federal purse.”

CFPB, 2022 WL 11054082, at *13 (quoting Richmond, 496 U.S. at 428).

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III. MASS DEBT CANCELLATION INFLICTS ADDITIONAL CONCRETE AND
IRREPARABLE INJURY

Plaintiffs’ brief identifies several concrete injuries sufficient for Article III

standing that Mass Debt Cancellation inflicts and explains why such injuries are

irreparable. Appellants’ Br. at 8-15, 25. Even if the Court disagrees with Plaintiffs, an

injunction pending appeal is still appropriate because the Cancellation scheme inflicts

additional concrete and irreparable injuries on Plaintiffs by taking away PSLF incentives

that Congress enacted to help state governments recruit and retain college-educated

workers. The Court is permitted to consider these PSLF injuries as an alternative basis

for subject-matter jurisdiction. See A.I. Trade Fin., Inc. v. Petra Int’l Banking Corp., 62 F.3d

1454, 1458, 1460, 1463 (D.C. Cir. 1995) (rejecting plaintiff’s subject-matter jurisdiction

arguments based on diversity and 28 U.S.C. § 1331 but holding that the district court

nonetheless had jurisdiction for reasons plaintiff never raised).

Congress established the PSLF program to encourage individuals who owe

outstanding student-loan debt to seek and maintain employment with public-service

employers, including state-government agencies. 20 U.S.C. § 1087e(m)(3)(B)(i). The

PSLF does this by promising student-loan borrowers that their outstanding loan

balances will be completely discharged after they make 120 monthly payments (10 years)

while working at qualifying public-service employers. Id.; see also 34 C.F.R. § 685.219.

Because of PSLF, all else being equal, working for a qualifying employer is more

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financially advantageous to the estimated 40 million student-loan borrowers than

working for the same pay (or even higher pay) at a nonqualifying employer.

Put another way, by offering these incentives to student-loan borrowers in the

job market, Congress purposefully gave qualifying employers a valuable advantage over

nonqualifying employers in competing to recruit and retain college-educated talent.

PSLF effectively subsidizes a portion of a qualifying employer’s compensation costs for

each employee with outstanding student-loan debt. As state governments, Plaintiffs are

qualifying employers for purposes of PSLF and thus are among the employers that

Congress benefited through PSLF incentives. See 20 U.S.C. § 1087e(m)(3)(B)(i). Yet,

Mass Debt Cancellation undermines that benefit and would eliminate it entirely in many

cases. With the wave of an administrative wand, Defendants would vaporize most or

all of the outstanding student debt owed by the vast majority of current and prospective

PSLF participants, thereby removing PSLF’s financial incentives designed to induce

borrowers to seek and stay in jobs with state governments. In equal measure, the

scheme would raise Plaintiffs’ effective compensation costs because, all other things

being equal, Plaintiffs would need to raise the compensation they offer and pay to

employee-borrowers in an amount sufficient to replace the effective subsidy Congress

provided through PSLF.

Mass Debt Cancellation, if allowed to go forward, would thereby inflict direct

and immediate competitive and financial harm on Plaintiffs, which satisfies the injury-

in-fact requirement for Article III standing. Indeed, the Supreme Court “routinely

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recognizes probable economic injury resulting from [governmental actions] that alter

competitive conditions as sufficient to satisfy the [Article III ‘injury-in-fact’

requirement.]” Clinton, 524 U.S. at 433 (1998) (quoting 3 K. Davis & R. Pierce,

Administrative Law Treatise 13–14 (3d ed. 1994) (alterations in original)).

The competitive and financial injury is directly traceable to Defendants’ actions

because “but for [their] unlawful conduct, [Plaintiffs’] alleged injury would not have

occurred.” Comcast Corp. v. Nat’l Assoc. of African American-Owned Media, 140 S. Ct. 1009,

1014 (2020). And a favorable decision by this Court halting Mass Debt Cancellation

would redress the injury. Plaintiffs therefore satisfy the injury-in-fact, traceability, and

redressability elements of Article III standing. Lujan v. Defs. of Wildlife, 504 U.S. 555,

560–61 (1992).

The competitive and financial injury that Plaintiffs would suffer because of the

loss of PSLF incentives is irreparable because there is no way for Plaintiffs to recover

money damages against Defendants who are immune from suit. Chamber of Com. of U.S.

v. Edmondson, 594 F.3d 742, 770–71 (10th Cir. 2010) (“Imposition of monetary damages

that cannot later be recovered for reasons such as sovereign immunity constitutes

irreparable injury.”). Moreover, once Defendants cancel hundreds of billions of dollars

in student debt, the toothpaste cannot be put back in the tube, and therefore belated

injunctive relief from this or another court cannot replace the lost PSLF incentives. The

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competitive injuries would start becoming permanent as soon as cancellations begin to

occur and can only be fully prevented by an injunction pending appeal now.

CONCLUSION

For these reasons, the Court should grant Plaintiffs’ Motion for Injunction

Pending Appeal.

Respectfully submitted,

/s/John J. Vecchione
John J. Vecchione
Sheng Li
Mark Chenoweth
NEW CIVIL LIBERTIES ALLIANCE
1225 19th St. NW, Suite 450
Washington, DC 20036
(202) 869-5210
[email protected]

Counsel for Amicus Curiae

October 24, 2022

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 CERTIFICATE OF SERVICE

I hereby certify that on October 24, 2022, an electronic copy of the foregoing

brief amicus curiae was filed with the Clerk of Court for the United States Court of

Appeals for the Eight Circuit using the CM/ECF filing system and that service upon

counsel for the parties will be accomplished using the CM/ECF system.

/s/John J. Vecchione
John J. Vecchione

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limit of Federal Rule of Appellate

Procedure 29(a)(5) because it contains 3,224 words. This brief also complies with the

typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-

(6) because it was prepared using Microsoft Word 2016 in 14-point Garamond, a

proportionally spaced typeface.

/s/John J. Vecchione
John J. Vecchione

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