Citations
- 370 F. Supp. 3d 1
Full opinion text
AMERICAN BAR ASSOCIATION et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF EDUCATION et al., Defendants.
Civil Action No. 16-2476 (TJK)
United States District Court, District of Columbia.
Signed February 22, 2019
Chong Seok Park, Edward Francis Roche, John T. Dey, Ropes & Gray LLP, Washington, DC, for Plaintiffs.
Chetan A. Patil, Julie Shana Saltman, Chetan A. Patil, Julie Shana Saltman, U.S. Department of Justice, Brian J. Field, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.
MEMORANDUM OPINION
TIMOTHY J. KELLY, United States District Judge In 2007, Congress established the Public Service Loan Forgiveness Program ("PSLF" or "PSLF Program"), which offers federal student loan forgiveness for those who make ten years, or 120 months, of monthly loan payments while employed in public service. At any time, federal student loan borrowers employed in public service may check their ongoing eligibility to participate in the program by submitting an Employment Certification Form (ECF). Upon receipt of that form, the Department of Education (the "Department") determines whether the borrower's loan payments were made while employed at a qualifying "public service organization," such that they count towards the PSLF Program's requirements. This case concerns whether the Department's reversals of certain of those determinations, made before the borrower's completion of all 120 monthly loan payments, were lawful.
Plaintiffs American Bar Association (ABA) and Michelle Quintero-Millan, Geoffrey Burkhart, Kate Voigt, and Jamie Rudert (collectively, the "Individual Plaintiffs") filed this action against the Department and Betsy DeVos, in her official capacity as Secretary of Education (collectively, "Defendants"), challenging the Department's allegedly unlawful reversal of certain determinations under the PSLF Program. They bring five claims against Defendants. Counts I, II, III, and IV are brought under the Administrative Procedure Act (APA), 5 U.S.C. § 500 et seq. In Count I, Plaintiffs allege that the Department changed its interpretation of its regulations in an arbitrary and capricious manner by adopting new standards governing whether non-501(c)(3) not-for-profit organizations, such as the ABA and the Individual Plaintiffs' employers, qualify as "public service organizations" under the PSLF Program. ECF No. 1 ("Compl.") ¶¶ 183-92. In Count II, Plaintiffs allege that the Department failed to follow the APA's notice requirements when it introduced those standards. Id. ¶¶ 193-200. In Count III, the ABA and Plaintiffs Burkhart, Rudert, and Voigt allege that the Department's retroactive application of the standards was arbitrary and capricious. Id. ¶¶ 201-08. And in Count IV, Plaintiffs allege that the Department's new standards were themselves inconsistent with the PSLF statute and regulation. Id. ¶¶ 209-16. In Count V, Plaintiffs allege that the Department's retroactive application of the standards violated the Due Process Clause of the Fifth Amendment. Id. ¶¶ 217-20.
Before the Court are the parties' cross-motions for summary judgment. For the reasons explained below, the Court concludes that Defendants acted arbitrarily and capriciously when the Department changed its interpretation of the PSLF regulation in two ways without displaying awareness of its changed position, providing a reasoned explanation for that decision, and taking into account the serious reliance interests affected. Accordingly, summary judgment is appropriate on behalf of Quintero-Millan, Burkhart, and Voigt, on Count I, and the new standards on which the Department relied when it sent denial letters to them must be vacated. As a result, the Court need not reach their additional causes of action.
In contrast, summary judgment is appropriate in favor of Defendants on all causes of action brought by Rudert and the ABA. The record does not support Rudert's assertion that the Department impermissibly changed its interpretation of the PSLF regulation, and then relied on that interpretation in determining that his employment failed to qualify for the PSLF Program. For this and other reasons explained below, Rudert has failed to demonstrate that the APA was violated in his case. And further, for the reasons explained below, the Department's representations to the ABA concerning whether it qualified as a public service organization for purposes of the PSLF Program were not final agency actions subject to challenge by the ABA through the APA. Finally, both the ABA's and Rudert's claims under the Due Process Clause fail because both lack the protected property interests required to succeed on their claims.
Accordingly, the Court will grant in part and deny in part Plaintiffs' Motion for Summary Judgment, ECF No. 17, and grant in part and deny in part Defendants' Motion for Summary Judgment, ECF No. 22. For the reasons explained below, the Court will also grant Plaintiffs' Supplemental Motions to Allow for Extra-Record Review. ECF Nos. 24, 35.
I. Background
A. The PSLF Program
1. The PSLF Statute
In 2007, the College Cost Reduction and Access Act, Pub. L. No. 110-84, 121 Stat. 784, established the PSLF Program, under which the Department is required to forgive eligible loans of borrowers who make monthly loan payments for ten years while employed in public service. Under the statute, the Department must "cancel the balance of interest and principal" of qualifying student loans belonging to an individual who (1) is not in default on the loans, (2) makes 120 monthly payments after October 1, 2007, on the loans, and (3) is "employed in a public service job" at the time each payment is made and at the time of forgiveness. 20 U.S.C. § 1087e(m)(1). For a payment to qualify, the borrower must also be enrolled in an approved repayment plan, such as an "income-based repayment plan" ("IBR plan"), id. , which permits a borrower facing financial hardship to make lower monthly payments capped at a percentage of her gross income, 20 U.S.C. § 1098e(a). A "public service job" is defined to cover "a full-time job in ... government ..., public education ..., public interest law services (including prosecution or public defense or legal advocacy on behalf of low-income communities at a nonprofit organization) ..., [and] public service for individuals with disabilities." 20 U.S.C. § 1087e(m)(3)(B).
2. The PSLF Regulation
In October 2008, the Department promulgated a regulation setting forth the procedures through which a borrower may apply for loan forgiveness. See 34 C.F.R. § 685.219. The regulation defines the statutory term "employed in a public service job," 20 U.S.C. § 1087e(m)(1)(B), to require that an eligible borrower be "hired and paid by a public service organization," 34 C.F.R. § 685.219(b). Thus, a borrower's eligibility for the PSLF Program is not determined by her job responsibilities, but rather by whether her employer qualifies as a "public service organization." Id. Under the regulation, "public service organization" includes any government organization, not-for-profit organization classified under Section 501(c)(3) of the Internal Revenue Code, or not-for-profit private organization that is not classified under Section 501(c)(3) so long as it "provides [qualifying] public services" and does not engage in certain disqualifying activities. 34 C.F.R. § 685.219(b). The qualifying "public services" include, among many others, "public interest law services," "public education," and "public service for individuals with disabilities and the elderly." Id.
During the negotiated rulemaking process leading to the promulgation of the regulation, the Department agreed to develop a form with "an employer certification section and instructions regarding supporting documentation that the Department [needs] to determine the borrower's eligibility for the forgiveness benefit." Federal Perkins Loan Program, Federal Family Education Loan Program, and William D. Ford Federal Direct Loan Program, 73 Fed. Reg. 63,232, 63,241 -42 (Oct. 23, 2008); AR 45-46. The Department affirmed that the form would permit a borrower "to collect a certification from his or her employer either annually or at the close of the 120-payment qualifying period." 73 Fed. Reg. at 63,242 ; AR 46. Based on these commitments undertaken during the negotiated rulemaking, the Department developed a process through which a borrower may certify the eligibility of payments made during a particular period of employment at any time, long before she submits a loan forgiveness application upon completion of all 120 qualifying payments (the "ECF Process"). Oral Arg. Tr. at 25:1-11.
3. The ECF Process
According to the Department, the ECF Process allows borrowers to certify that their "employment and payments qualify for [the PSLF Program]." AR 178. Through the submission of an ECF, borrowers and their employers certify that the borrower was employed full-time for a qualifying public service organization when making monthly loan payments. See AR 152-53. In order to receive loan forgiveness under the program, borrowers must submit valid ECFs covering their "full-time public service employment while making the required 120 separate, qualifying monthly payments." AR 154. But, as noted above, borrowers may also submit ECFs before they are eligible to apply for loan forgiveness in order to "receive feedback on the eligibility of [a borrower's] employment and payments," AR 178, and to "verify that [a borrower's] employer qualifies as a public service organization," AR 152. The Department recommends that borrowers submit ECFs either annually or whenever the borrower changes employers. AR 154. A single ECF may cover loan payments made over any length of time, but the Department requires borrowers to submit separate ECFs for each employer. See AR 152-53. The ECF application must be signed by an authorized official from the relevant organization to verify that the borrower was a full-time employee during the relevant time period. Id.
The Department relies on PSLF servicers, primarily "FedLoan Servicing," to process ECFs prior to a borrower submitting a loan forgiveness application at the conclusion of making 120 qualifying monthly payments. AR 178. ECFs are processed in several steps. First, FedLoan Servicing conducts an "initial review" in which it "check[s] that the borrower provided all required information" and followed the form instructions. AR 143. Once the check is complete, Fedloan Servicing "determine[s] whether an employer is a qualifying public service organization" by confirming that the organization is listed in one of the Department's "searchable databases, based on the type of public service organization." Id. If FedLoan Servicing cannot determine whether an employer qualifies as a public service organization-and in all cases where a borrower submits an ECF based on her employment at a private, non-501(c)(3) not-for-profit organization-it is required to escalate the decision to the Department. AR 143, 160-61.
After determining that the borrower's employer is a qualifying public service organization, FedLoan Servicing will "determine whether the borrower has met the full-time requirement ... while employed [there]." AR 143. If FedLoan Servicing confirms that the borrower made loan payments while employed full-time at a qualifying employer, then, after approving the first ECF received by the borrower, it will "request the transfer of all federally-held loans" to FedLoan Servicing from the borrower's original loan servicer. AR 144. Once the transfer is made, FedLoan Servicing will "track the number of PSLF qualifying payments made after the loans [were] transferred from the original servicer." Id.
After completing 120 eligible monthly payments, borrowers may apply for loan forgiveness through a separate application. AR 179. If a borrower submitted ECFs covering the entire period during which she made 120 qualifying payments, then she must submit "one additional" ECF to verify that she is employed full-time with a qualifying public service organization at the time she submits the application. Id. If a borrower did not submit ECFs prior to completing her loan forgiveness application, or only submitted a portion of them, then she must provide all the remaining ECFs upon her application for loan forgiveness. Id.
B. Plaintiffs
The ABA is an organization for legal professionals that asserts that the Department unlawfully stripped it of its status as a qualifying public service organization for purposes of the PSLF Program. Compl. ¶¶ 21, 208. The Individual Plaintiffs are law school graduates who contend that they made qualifying loan payments under the PSLF Program while employed by public service organizations, including the ABA, over varying periods since 2011-but have since been informed that, to the contrary, because their employers are not public service organizations, their payments do not qualify. See id. ¶¶ 107-77.
1. ABA
The ABA is a private, not-for-profit 501(c)(6) organization that, among other activities, conducts legal education initiatives, administers the accreditation of law schools and other projects for the legal profession, and provides public interest law services. Pls.' MSJ Br., Ex. A ¶¶ 5-11. The ABA operates several public interest legal divisions, including the South Texas Pro Bono Asylum Representative Project ("ProBAR"), the Commission on Homelessness and Poverty, and the Center on Children and the Law. Id. , Ex. A ¶¶ 12, 14, 18. According to Plaintiffs, ProBAR serves as the nation's "largest provider ... of legal services and legal-rights education for detained unaccompanied immigrant children." Id. , Ex. A ¶ 12.
Following the establishment of the ECF Process in January 2012, the ABA asserts that several of its employees submitted ECFs to the Department and received letters in response confirming that their "employment with the ABA qualified" for participation in the PSLF program. Id. , Ex. A ¶ 22. Based on these determinations, the ABA informed several prospective employees that "it was a qualifying employer under the PSLF program." Id. , Ex. A ¶ 23. Beginning in 2015, ABA employees began to receive letters from the Department that denied their eligibility for the PSLF Program on the basis that the Department "could find no evidence of [the ABA] being a not-for-profit organization that also provides a qualifying service for the PSLF program." Id. , Ex. A ¶ 22; AR 185. Around April 2016, the ABA's then-Executive Director and Chief Operating Officer contacted the Department about the ABA's status. Pls.' MSJ Br., Ex. A ¶ 28. In June 2016, the Department informed the ABA that, even after reviewing the additional information the ABA had submitted, the Department concluded that the ABA did not qualify "as a public service organization for ... PSLF purposes" because it did not demonstrate "that the primary purpose of the ABA is to provide 'public interest law services' [as] the term is defined in the PSLF regulations." AR 190-91. After an additional exchange of letters and a meeting with Department officials, in December 2016 the Department reaffirmed to the ABA that it was not a qualifying public service organization "for the reasons outlined" in its June 2016 letter. AR 192-93.
2. Michelle Quintero-Millan
After graduating from the Sturm College of Law at the University of Denver in 2012, Quintero-Millan joined ProBAR in June 2012 as a Staff Attorney. See Pls.' MSJ Br., Ex. E ¶¶ 1, 4. She departed in May 2015 with the title of Supervising Attorney. Id. , Ex. E ¶ 7. During her time at ProBAR, Quintero-Millan provided pro bono legal services to undocumented and unaccompanied immigrant children in southern Texas. Id. , Ex. E ¶¶ 4-5. In November 2015, Quintero-Millan submitted her first ECF to FedLoan Servicing. Id. , Ex. E ¶ 10; AR 218. In November 2016, FedLoan Servicing informed Quintero-Millan, without explanation, that her employment at ProBAR did not qualify under the PSLF program. Pls.' MSJ Br., Ex. E ¶ 13; AR 237-38. Quintero-Millan asserts that she had accepted the position at ProBAR "with the understanding, based on [her] inquiries during the application process[,] that [her] employment would qualify for PSLF." Pls.' MSJ Br., Ex. E ¶ 9. Since January 2013, Quintero-Millan has been enrolled in an IBR plan, which caps her loan payments as a percentage of her income and, as a result, has caused her monthly payments to be less than the interest on her loans. Id. , Ex. E ¶ 16. Accordingly, Quintero-Millan's total federal student debt has increased from approximately $ 340,000 when she entered repayment to $ 430,446.48 as of May 2017. Id. , Ex. E ¶ 17.
3. Geoffrey Burkhart
In June 2014, Burkhart-a 2008 graduate of DePaul University College of Law-joined the ABA as Attorney and Project Director for the Division for Legal Services. Pls.' MSJ Br., Ex. D ¶¶ 1, 4. He remained in the position until December 21, 2016, when he became the Deputy Director of the ABA's Center for Innovation. Id. , Ex. D ¶ 4. While employed at the Division for Legal Services, Burkhart worked "to improve civil legal services and criminal justice for poor individuals through technological and process innovations." Id. His work included, among other responsibilities, drafting amicus briefs, conducting workload studies of public-defender offices, and launching a news service for public-defense leaders. Id. , Ex. D ¶ 5.
Prior to joining the ABA, Burkhart asserts that he received confirmation (though he does not specify how) from both the ABA and FedLoan Servicing that his prospective position there was eligible for the PSLF Program. Id. , Ex. D ¶ 7. Burkhart claims that he accepted the job in reliance on those representations. Id. In July 2014, Burkhart submitted an ECF to FedLoan Servicing and, that same month, received a letter confirming the eligibility of his loan payments. AR 208-11. Burkhart continued to submit ECFs in order to track his eligibility and received, as recently as June 28, 2016, verifications that his payments counted toward those necessary for loan forgiveness. Pls.' MSJ Br., Ex. D ¶ 8. On October 12, 2016, Burkhart received a letter from FedLoan Servicing informing him that upon its "further research and after consulting with the Department," it had reversed its previous determinations because the ABA does not "provide a qualifying service." AR 214-15. During his employment with the ABA, Burkhart has been enrolled in an IBR plan, which has caused his monthly payments to be lower than the accruing interest on his student loans. Pls.' MSJ Br., Ex. D ¶ 9. As a result, Burkhart estimates that the total balance of his "federal student loans has grown from $ 155,899.95 in October 2009 to over $ 200,000 as of May 17, 2017." Id. , Ex. D ¶ 11. Burkhart asserts that the Department's reversal has caused him and his family "great concern" and may force him to seek alternative employment. Id. , Ex. D ¶ 12.
4. Kate Voigt
Voigt graduated from Boston College Law School in 2011. Pls.' MSJ Br., Ex. C ¶ 1. In December 2011, she accepted a position in the Liaison Department of the American Immigration Lawyers Association ("AILA"), a 501(c)(6) organization that provides a variety of services for immigrants, as well as educational services on the topic of immigration. Id. , Ex. C ¶¶ 4-5. Shortly after starting at AILA, Voigt contacted the Department seeking clarification as to whether her position there qualified for the PSLF Program. Id. , Ex. C ¶ 6. In June 2012, the Department informed Voigt that her employment at AILA qualified. Id. As a result, Voigt claims, she continued to work at AILA. Id. , Ex. C ¶ 7.
In June 2014, Voigt contacted the Department about a letter received by her coworker that stated, to the contrary, that employment at AILA did not qualify under the PSLF Program. Id. , Ex. C ¶ 9. In response, the Department sent Voigt a letter in December 2014 informing her that, although it previously recognized employment with AILA as qualifying for the PSLF Program, it had reversed its position. AR 335. The letter was emailed to her by Ian Foss, a Department employee. AR 334. The Department had done so, the letter explained, because AILA's services did not fit within its definition of "public education services," defined by the Department as "services that provide educational enrichment or support directly to students or their families in a school or a school-like setting." AR 335-36. Voigt followed up to the letter by emailing Foss, expressing her disagreement with the decision. Pls.' MSJ Br., Ex. C ¶ 13. Voigt never received a response to the email. Id.
In November 2016, almost two years later, Voigt received a letter from FedLoan Servicing confirming that the Department had reversed its position as to whether employment at AILA qualified for the PSLF Program. Id. , Ex. C ¶ 17. Voigt asserts that, based on the Department's original confirmation, she chose to remain enrolled in an IBR plan that capped her monthly loan payments at an amount lower than the monthly interest charges of her student debt. Id. , Ex. C ¶ 8. Accordingly, Voigt estimates that, from October 2011 to May 2017, her federal student loan balance grew from $ 205,546 to $ 247,638.55. Id. , Ex. C ¶ 18. She asserts that the Department's decision to rescind her employment's eligibility has caused her great concern and has affected her ability to plan her finances. Id. , Ex. C ¶ 19.
5. Jamie Rudert
In April 2012, Rudert began working at Vietnam Veterans of America ("VVA"), a 501(c)(19) organization that provides advocacy and support services to Vietnam veterans, including representing veterans seeking government benefits and services. Id. , Ex. B ¶ 4; AR 315. Rudert, a 2010 graduate of the American University Washington College of Law, asserts that he first learned of the PSLF Program while in law school. Pls.' MSJ Br., Ex. B ¶¶ 1-2. Upon joining VVA, Rudert worked as an Appellate Attorney from April 2012 to May 2013, where he represented veterans with service-connected disability claims before the Board of Veterans' Appeals. Id. , Ex. B ¶ 6. In May 2013, he was promoted to Deputy Director. Id. , Ex. B ¶ 7. As Deputy Director, he continued to represent veterans in their appeals while also supervising other attorneys. Id. He remained in this position until September 2015, when he left VVA for Paralyzed Veterans of America ("PVA"), a 501(c)(3) organization, where he continued to represent veterans in disability-benefit appeals. Id. , Ex. B ¶ 11.
In July 2012, Rudert submitted an ECF and received a letter from FedLoan Servicing (which was not his loan servicer at the time but receives all ECF applications regardless of whether it is a borrower's servicer) indicating that his work at VVA from April 1, 2012, to June 18, 2012, qualified for the PSLF Program. Id. , Ex. B ¶ 8. On August 1, 2012, he received another letter from FedLoan Servicing, this one informing him that his loans were being transferred to FedLoan Servicing from his original loan servicer due to his qualifying payments. Id. , Ex. B ¶ 9. On October 30, 2014, he received a letter, in response to a second ECF submission, confirming that his employment at VVA qualified for the PSLF Program. Id. , Ex. B ¶ 10. FedLoan Servicing later informed Rudert that, as of January 2015, he had made 30 qualifying payments. Id.
In early 2016, after his departure from VVA, Rudert submitted another ECF, while employed at PVA, which covered loan payments during his final year at VVA. Id. , Ex. B ¶ 12. In April 2016, he received a letter from FedLoan Servicing informing him that, based on its "further research and after consulting with the Department," it "reversed [his] previously approved employment period" because VVA "does not provide a qualifying service." AR 282-83. Rudert asserts that, if he had known that his employment at VVA did not qualify for the PSLF Program, he would have departed earlier for another employer. Pls.' MSJ Br., Ex. B ¶ 14. During his participation in the PSLF Program, Rudert has been enrolled in an IBR plan, which has decreased his required monthly loan payments to an amount lower than the monthly interest charges on his total student debt. Id. , Ex. B ¶ 3. Consequently, Rudert estimates that his federal student loan balance has grown from $ 134,8087.16 in August 2012 to $ 161,985.02 in May 2017. Id. , Ex. B ¶¶ 9, 18.
II. The Parties' Motions for Summary Judgment
A. Legal Standard
Under Federal Rule of Civil Procedure 56(c), this Court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "Summary judgment is appropriately granted when, viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor." Lopez v. Council on Am.-Islamic Relations Action Network, Inc. , 826 F.3d 492, 496 (D.C. Cir. 2016). However, in a case involving review of an agency action under the APA, "the district judge sits as an appellate tribunal" and "[t]he 'entire case' on review is a question of law." Am. Biosci. Inc. v. Thompson , 269 F.3d 1077, 1083 (D.C. Cir. 2001). In such circumstances, the district court "is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Sierra Club v. Mainella , 459 F.Supp.2d 76, 90 (D.D.C. 2006) (quoting Occidental Eng'g Co. v. INS , 753 F.2d 766, 769 (9th Cir. 1985) ). Accordingly, the Court's review "is normally confined to the administrative record," Amfac Resorts, L.L.C. v. U.S. Dep't of the Interior , 143 F.Supp.2d 7, 10 (D.D.C. 2001), except within a "narrow set of exceptions," where a court may consult extra-record evidence due to "gross procedural deficiencies-such as where the administrative record itself is so deficient as to preclude effective review," Hill Dermaceuticals, Inc. v. FDA , 709 F.3d 44, 47 (D.C. Cir. 2013).
B. Analysis
Defendants assert two threshold challenges to Plaintiffs' APA claims. First, they assert that the ABA does not have a cause of action because its interests do not fall within the "zone of interests" protected by the PSLF statute. The Court concludes that the zone-of-interests test does not bar the ABA's claims. Second, Defendants assert that Plaintiffs do not have a cause of action because the Department's actions at issue are not final agency actions subject to judicial review. The Court concludes that the letters sent to the Individual Plaintiffs determining that their employment did not qualify for the PSLF Program-and thus that their loan payments made while working for those employers did not count toward the total needed for loan forgiveness-are final agency actions. Therefore, the Individual Plaintiffs may assert causes of action challenging them under the APA. On the other hand, the Department's letters to the ABA concerning its status as a qualifying "public service organization" under the PSLF regulation are not final agency actions. Therefore, the ABA may not assert APA claims directed at those letters.
Turning to the merits of the Individual Plaintiffs' APA claims, the Court concludes that the Department changed the standards by which it assessed whether non-501(c)(3) not-for-profit organizations qualified as public service organizations under the PSLF Program. Moreover, these changes were arbitrary and capricious because, in adopting the new standards, the Department failed to display awareness of its changed position, provide a reasoned analysis for that decision, and take into account the serious reliance interests affected. Because summary judgment is appropriate in favor of Quintero-Millan, Burkhart, and Voigt on Count I on that basis, the Court need not reach their other challenges under the APA, or their argument that the Department violated their due process rights under the Fifth Amendment.
On the other hand, the Court concludes that summary judgment is appropriate in Defendants' favor on Rudert's APA claims. It does so because it cannot conclude that the Department based its determination that his employment failed to qualify for the PSLF Program on a new interpretation of the PSLF regulation, and for other reasons explained below. Finally, the Court concludes that the ABA and Rudert's due process claims under the Fifth Amendment fail, as well. As a result, summary judgment is appropriate in Defendants'
favor as to all causes of action brought by the ABA and Rudert.
1. Whether the ABA's Injuries Fall Within the Zone of Interests of the PSLF Statute
Defendants assert that the ABA's alleged injuries do not fall within the zone of interests of the PSLF statute and regulation, which are "intended to provide student debt relief to borrowers," not public service organizations. Dfs.' Opp. at 21. The Court disagrees, especially given how this test is typically applied in the APA context.
The "zone-of-interests limitation" is a "requirement of general application" for "all statutorily created causes of action." Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 129, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014) (quoting Bennett v. Spear , 520 U.S. 154, 163, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ). The test, which "is not meant to be especially demanding," "denies a right of review if the plaintiff's 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." Clarke v. Sec. Indus. Ass'n , 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). "[T]here need be no indication of congressional purpose to benefit the would-be plaintiff" for a court to conclude that the plaintiff falls within a statute's zone of interests. Clarke , 479 U.S. at 400, 107 S.Ct. 750.
The zone-of-interests standard "is particularly generous as applied to plaintiffs who bring suit under the APA, in light of the need to 'preserv[e] the flexibility of the APA's omnibus judicial-review provision, which permits suit for violations of numerous statutes of varying character that do not themselves include causes of action for judicial review.' " Otay Mesa Prop., L.P. v. U.S. Dep't of the Interior , 144 F.Supp.3d 35, 58 (D.D.C. 2015) (quoting Lexmark Int'l , 572 U.S. at 130, 134 S.Ct. 1377 ); see also Mendoza v. Perez , 754 F.3d 1002, 1016 (D.C. Cir. 2014) ("[W]e apply the zone-of-interests test in a manner consistent with 'Congress's evident intent when enacting the APA to make agency action presumptively reviewable.' " (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak , 567 U.S. 209, 225, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012) ) ). In cases where the plaintiff asserts a cause of action under the APA, the "relevant zone of interest" is "defined by a substantive statute, not by the APA." Am. Inst. of Certified Pub. Accountants v. IRS , 746 Fed.Appx. 1, 7 (D.C. Cir. 2018) (collecting cases).
The Court concludes that the ABA's asserted interests in this action are not "so marginally related to or inconsistent with the purposes implicit in the [PSLF] statute that it cannot reasonably be assumed that Congress intended to permit the suit." Clarke , 479 U.S. at 399, 107 S.Ct. 750. Although the statute provides a direct benefit in the form of loan forgiveness to individual "borrower[s]," see 20 U.S.C. § 1087e(m)(1), it also promotes the interests of public service employers by providing significant financial subsidies to the borrowers they hire on the condition they remain employed in public service. By design, then, the PSLF statute facilitates a public service organization's recruitment of employees by decreasing their employees' long-term debt burden. This debt relief reduces pressure on public service organizations to raise salaries. See Pls.' MSJ Br., Ex. D ¶ 6. Thus, the PSLF statute allows public service organizations to attract and retain desirable employees and, as a result, such organizations have a significant interest in their employees' eligibility under the PSLF Program. See id. , Ex. A ¶¶ 25, 26. Consequently, the harms asserted by the ABA-including the negative impact on its ability to retain skilled employees and provide high-quality legal services, id. -"arguably fall[ ] within the zone of interests protected ... by the [PSLF statute]," Mendoza , 754 F.3d at 1016 (quoting Bennett , 520 U.S. at 162, 117 S.Ct. 1154 ).
Defendants argue that the ABA falls outside of the zone of interests of the PSLF statute because its purpose is "to encourage individuals to enter and continue in full-time public service employment." Dfs.' MSJ Br. at 21 (emphasis added) (quoting 34 C.F.R. § 685.219(a) ). The PSLF statute, Defendants argue, "does not mention public service organizations" and so "[a]ny benefit or harm" incurred by the ABA is only "incidental to the benefit incurred by the individual borrowers that the ABA employs." Id. at 21-22.
Defendants construe the PSLF statute too narrowly, at least for the purpose of applying the zone-of-interests test. To satisfy the test, a plaintiff need only show that its interests in the agency action "in practice can be expected to police the interests that the statute protects." Amgen, Inc. v. Smith , 357 F.3d 103, 109 (D.C. Cir. 2004) (quoting Mova Pharm. Corp. v. Shalala , 140 F.3d 1060, 1075 (D.C. Cir. 1998) ). Here, the ABA's interests in its own status as a qualifying public service organization under the PSLF Program fall squarely in line with the interests of the Individual Plaintiffs, whom Defendants concede may bring suit. Dfs.' MSJ Br. at 21-22. The ABA is motivated by its interests in increasing recruitment and lowering labor costs, which are entirely consistent with those interests more directly advanced by the PSLF statute. See Amgen , 357 F.3d at 109 ("Parties motivated by purely commercial interests routinely satisfy the zone of interests test under this court's precedents."). For these reasons, the Court holds that the ABA's alleged injuries fall within PSLF statute's zone of interests.
2. Whether Plaintiffs' APA Claims Challenge Final Agency Action
Next, the Court must determine whether Plaintiffs' APA claims challenge final agency action, such that they are cognizable under that statute. 5 U.S.C. § 704. The Individual Plaintiffs assert that the Department's letters informing them that their employment, and therefore their loan payments, did not qualify for the PSLF Program were final agency actions. The ABA argues that the letters sent to it concerning its status as a "public service organization" were final agency actions as well. See AR 190-93. The parties dedicated a substantial portion of their briefing and argument to this issue, underscoring its centrality to their dispute. See Dfs.' MSJ Br. at 13-20; Pls.' MSJ Br. at 14-20; Oral Arg. Tr. at 4:12-33:12.
"Where there is no final agency action, a plaintiff has no cause of action under the APA." Aracely, R. v. Nielsen , 319 F.Supp.3d 110, 138 (D.D.C. 2018). "Thus, although the absence of final agency action would not cost [the Court its] jurisdiction," it would cost Plaintiffs their "APA cause[s] of action." Trudeau v. FTC , 456 F.3d 178, 188-89 (D.C. Cir. 2006) ; see also Reliable Automatic Sprinkler Co., Inc. v. Consumer Prod. Safety Comm'n , 324 F.3d 726, 731 (D.C. Cir. 2003). The finality inquiry is governed by the two-prong test set forth in Bennett v. Spear , which states that to be final, agency action must (1) "mark the consummation of the agency's decisionmaking process" and (2) be an action "by which rights or obligations have determined, or from which legal consequences will flow." 520 U.S. at 177-78, 117 S.Ct. 1154 (internal citations and quotation marks omitted). The Supreme Court has instructed lower courts to "apply the finality requirement in a 'flexible' and 'pragmatic' way." Ciba-Geigy Corp. v. EPA , 801 F.2d 430, 435 (D.C. Cir. 1986) (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 149-50, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ).
a. Consummation of the Department's Decisionmaking Process
The Individual Plaintiffs
Under the first prong of the Bennett test, a final agency action "must mark the consummation of the agency's decisionmaking process" and "must not be of a merely tentative or interlocutory nature." Bennett , 520 U.S. at 177-78, 117 S.Ct. 1154 (internal citations and quotation marks omitted).
When considering the first Bennett prong, the D.C. Circuit has looked to the relevant language of the challenged agency decision. See Holistic Candlers & Consumers Ass'n v. FDA , 664 F.3d 940, 944 (D.C. Cir. 2012). The language of the denial letters demonstrates that they marked the Department's final determination that the Individual Plaintiffs' respective employment, and their payments made during that employment, did not qualify for the PSLF Program. The letters sent to Burkhart and Rudert unambiguously stated that the Department "reversed [their] previously approved employment period[s] under the PSLF program because [their employers] do[ ] not provide a qualifying service." AR 214, 282. Likewise, the Department's letter to Voigt flatly asserted that it had "determined that AILA is not a qualifying employer for PSLF purposes." AR 336. In the letter to Quintero-Millan, the Department stated that, based on its review of her ECFs, her employment "[d]oes [n]ot [q]ualify" and that she "may not participate in employment and payment tracking for PSLF." AR 237-38. This definitive language supports the conclusion that, upon sending the denial letters to the Individual Plaintiffs, the Department had completed its determination that their employment and the loan payments at issue did not qualify.
In arguing that the denial letters were not final, Defendants point to the allegedly less-than-definitive language in Quintero-Millan's letter, which stated that her "employer does not appear to qualify for PSLF" and invited her to "reapply if [she could] provide additional information to show that [her] employment qualifies." AR 237. But this language does not undermine the conclusion that her denial letter was a final agency action. First, other language in the letter was far more categorical about the Department's determination. The Department identified her "eligibility status" to be, simply, "Organization Does Not Qualify." Id. The letter suggested other possible eligibility statuses-for example, "Under Review" or "Missing Information"-each of which would have suggested a lack of finality. AR 237-38 (edits to capitalization). But according to Quintero-Millan's letter, neither of those applied to her. Second, even to the extent that the language cited by Defendants suggested that the Department might reconsider its decision, "[t]he mere possibility that an agency might reconsider in light of 'informal discussion' and invited contentions of inaccuracy does not suffice to make an otherwise final agency action nonfinal." Sackett v. EPA , 566 U.S. 120, 127, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012).
As part of the first Bennett prong, courts also look to "the way in which the agency subsequently treats the challenged action." Sw. Airlines Co. v. U.S. Dep't of Transp. , 832 F.3d 270, 275 (D.C. Cir. 2016) (collecting cases). The record on this point is particularly clear that the denial letters reflect final agency action. After the Department issued the denial letters, the Individual Plaintiffs did not receive any additional communication from the Department suggesting that the letters were tentative or interlocutory. Moreover, the ABA challenged the Department's basis for the denial letters issued to Quintero-Millan and Burkhart, but the Department reaffirmed its conclusion. AR 192-93. And when Rudert followed up with FedLoan Servicing after receiving his letter, a representative there simply informed him that "the Department of Education made the determination" and that "there was no appeal process put in place." AR 285. To date, and even after the filing of this lawsuit, the ineligibility determinations reflected in the Individual Plaintiffs' denial letters have apparently remained unchanged for periods ranging from 27 to 50 months. Pls.' MSJ Br., Ex. B ¶ 12; id. , Ex. C ¶ 18; id. , Ex. D ¶ 10; id. , Ex. E ¶ 13. Simply put, there is no indication in the record that these letters do not "represent[ ] the culmination of [the Department's] consideration of an issue." Soundboard Ass'n v. FTC , 888 F.3d 1261, 1267 (D.C. Cir. 2018).
Defendants contend that the Individual Plaintiffs' denial letters are "interlocutory and subject to change" because "the Department does not make a final determination on eligibility for PSLF until the borrower files her application ... after making 120 qualifying payments." Dfs.' MSJ Br. at 15-16. But this argument conflates separate determinations that the Department undertakes in connection with the PSLF Program. Certainly, the Department considers an application to determine a borrower's ultimate eligibility for debt relief only after she has submitted 120 qualifying loan payments. AR 153. But along the way, according to the Department, upon receiving an ECF it "verif[ies] that [the borrower's] employer qualifies as a public service organization" and "notif[ies] [the borrower] in writing of the number of qualifying payments ... made while employed in qualifying public service." AR 155. Through this process, the Department "determine[s]" the eligibility of loan payments made during a borrower's employment with a particular organization. See AR 143-44. And, if the loan payments are approved as eligible, the Department will "request the transfer of all federally-held loans" to FedLoan Servicing from the borrower's original loan servicer and "track the number of PSLF qualifying payments" going forward. AR 144. That the Individual Plaintiffs have not submitted applications for loan forgiveness does not undercut the conclusion that, at the very least, the denial letters reflect the end of the Department's decisionmaking process concerning whether a borrower's employer qualifies as a public service organization, and whether the loan payments at issue count toward the 120 monthly payments required.
Courts have also looked to other agency materials to evaluate whether an action marked the consummation of an agency's decisionmaking. See Holistic Candlers , 664 F.3d at 944 (consulting an FDA manual). In this case, language describing the ECF Process in the Department's guidance documents further underscores, in important ways, the conclusion that the denial letters marked the end of an agency process for the Individual Plaintiffs. For example, the Department's "Dear Borrower" letter-which was sent to all borrowers interested in the PSLF Program, such as the Individual Plaintiffs, see AR 142-instructed borrowers that, when submitting their final application for loan forgiveness, they "do not have to re-submit [ECFs]" that have "already been validated by the Department," AR 153. In the same letter, the Department informed them that it "will review" an application for loan forgiveness along with any ECFs "not previously validated by the Department" in order to "determine if [a borrower] fulfilled all of the requirements to be eligible for PSLF." Id. (emphasis added). Therefore, the Department's own language confirms that when it "validates" a borrower's employment and loan payments made during her time there, its determination marks the consummation of a process that is not revisited. At that point, "for all practical purposes [the Department] 'has ruled definitively' " on whether the payments count toward the 120 required by the PSLF statute. U.S. Army Corps of Eng'rs v. Hawkes Co., Inc. , --- U.S. ----, 136 S.Ct. 1807, 1814, 195 L.Ed.2d 77 (2016) (quoting Sackett , 566 U.S. at 131, 132 S.Ct. 1367 (Ginsburg, J., concurring) ).
In considering whether an agency action marks the consummation of a decisionmaking process, the D.C. Circuit has also instructed courts to look to "whether the impact of the [agency action] is sufficiently 'final' to warrant review in the context of the particular case." Citizens Ass'n of Georgetown v. FAA , 896 F.3d 425, 431 (D.C. Cir. 2018) (emphasis added) (quoting Friedman v. FAA , 841 F.3d 537, 542 (D.C. Cir. 2016) ). Here, the denial letters have impacted the Individual Plaintiffs' careers and finances in a significant way that underscores their finality, and warrants review at this time. After receiving the denial letter, Quintero-Millan interviewed for a director position at ProBAR, but then declined to pursue the position because she "could not work at ProBAR if [her] employment would not qualify for loan forgiveness."
Pls.' MSJ Br., Ex. E ¶ 19. Burkhart submits that, with the demands of a family and his "growing educational debt," the Department's decision caused him "great concern about [his] ability to meet [his] student loan obligations, and to doubt [his] decision to devote [his] career to public service." Id. , Ex. D ¶ 12. If he had received the denial letter earlier, he affirms that he "would not have accepted the position at the ABA." Id. , Ex. D ¶ 6. Voigt asserts that the Department's decision made it "exceedingly difficult to plan [her] finances responsibly," which led her to delay purchasing a home and refinancing her loans. Id. , Ex. C ¶ 19. And Rudert contends that the denial letter impacted his "decisions in employment, housing, marriage, and financial planning." Id. , Ex. B ¶ 16. Had he received his denial letter while employed at VVA, he submits that he "would have left and found a job that did qualify." Id. , Ex. B ¶ 14.
Defendants argue that the denial letters did not have "an immediate or significant practical effect" on the Individual Plaintiffs because their "eligibility for PSLF had not yet been finally determined." Dfs.' MSJ Br. at 17 n.6. This is nonsense. In the face of growing debt burdens, the Individual Plaintiffs structured their careers and long-term financial plans around their eligibility for the PSLF Program. The Department's determinations quite obviously had an "immediate" and "significant" impact on their ability to plan their careers and finances, despite the fact that they have not had (and may never have) the opportunity to submit an application for loan forgiveness. To hold otherwise would be incompatible with the Court's obligation to apply the finality requirement in a "flexible" and "pragmatic" manner. Ciba-Geigy , 801 F.2d at 435 (quoting Abbott Labs. , 387 U.S. at 149-50, 87 S.Ct. 1507 ).
Finally, Defendants contend that the Department's statements in the Federal Register during the PSLF negotiated rulemaking process demonstrate that the denial letters "fall well short of being the 'consummation' of the agency's decision-making process." Dfs.' MSJ Br. at 14. Of course, these statements are of quite limited value to the Court, insofar as they are not the "governing statutes and regulations [that] structure [an agency's] decisionmaking processes." Soundboard , 888 F.3d at 1267 ; see also Brock v. Cathedral Bluffs Shale Oil Co. , 796 F.2d 533, 539 (D.C. Cir. 1986) ("Publication in the Federal Register does not suggest that the matter published was meant to be a regulation."). Nonetheless, even on their own terms, they demonstrate nothing of the sort urged by Defendants.
Defendants largely rest their argument on part of the proposed rulemaking record. 73 Fed. Reg. at 37,705 ; AR 14. And admittedly, at that time the Department "considered ... but decided not to adopt" the recommendation that it "provid[e] for annual borrower submission and Departmental review and retention of the form ... that would be certified by the borrower's employer." 73 Fed. Reg. at 37,705 ; AR 14; see also Dfs.' MSJ Br. at 15; Oral Arg. Tr. at 20:4-21:17. But the problem for Defendants is that during the final rulemaking process, the Department largely reversed course. At that point, it decided to establish an annual employment-certification form, which led it to develop the ECF Process. 73 Fed. Reg. at 63,241 -42; AR 45-46. More specifically, the Department stated that it would develop a form for borrowers that would "include an employer certification section and instructions regarding supporting documentation that the Department will need to determine the borrower's eligibility for the forgiveness benefit." 73 Fed. Reg. at 63,241 -42; AR 45-46. Significantly, the Department represented that borrowers would be able to use the form to collect employment certifications at the close of the 120-month qualifying period, but also at other intermittent times as well. 73 Fed. Reg. at 63,242 ; AR 46. The Department did note that it "expect[ed] the borrower to collect and retain the necessary records that support the borrower's eligibility for this benefit." 73 Fed. Reg. at 63,242 ; AR 46. But in the end, the Department's statements in the Federal Register do not undermine the conclusion that the denial letters represented the consummation of the Department's process in determining whether the Individual Plaintiffs' employment-and loan payments made during that employment-qualified under the PSLF Program.
For the reasons described above, the Court concludes that the denial letters sent to the Individual Plaintiffs satisfy the first prong of the Bennett test.
b. Determination of Plaintiffs' Rights and Obligations
The Individual Plaintiffs
The second prong of the Bennett inquiry is satisfied if the agency action is "one by which 'rights or obligations have been determined,' or from which 'legal consequences will flow.' " Bennett , 520 U.S. at 177, 117 S.Ct. 1154 (quoting Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic , 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970) ). In other words, the second prong focuses on "whether the result of that process is one that will directly affect the parties." Franklin v. Massachusetts , 505 U.S. 788, 797, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992).
When the "definitiveness" of an agency decision satisfies the first Bennett prong, the D.C. Circuit has recognized that the same evidence may "also lead[ ] inexorably to the conclusion that [a plaintiff's] 'rights ... have been determined.' " Safari Club Int'l v. Jewell , 842 F.3d 1280, 1289 (D.C. Cir. 2016) (omission in original) (quoting Bennett , 520 U.S. at 178, 117 S.Ct. 1154 ); see also U.S. Army Corps of Eng'rs , 136 S.Ct. at 1814 ("The definitive nature of [the agency action] also gives rise to direct and appreciable legal consequences, thereby satisfying the second prong of Bennett ." (internal quotation marks omitted) ). And for reasons already explained, such is the case here for the Individual Plaintiffs, whose rights under the PSLF statute to have their loan payments count toward loan forgiveness were determined in the denial letters. See 20 U.S.C. § 1087e(m).
Defendants contend that the denial letters "fall well short of determining rights or obligations" because the letters only provide "provisional guidance" to the Individual Plaintiffs. Dfs.' MSJ Br. at 17. In support of their position, Defendants cite to the language contained in the denial letter to Quintero-Millan, addressed in the Court's analysis of Bennett 's first prong, stating that the Department will "only determine" whether the borrowers have "fulfilled all of the requirements to be eligible for PSLF" after submitting a final loan forgiveness application. Id. at 17-18 (citing AR 195). And again, Defendants note that the letters state that the borrower's "employer does not appear to qualify for PSLF." Id. at 18. But for all the reasons already explained, the denial letters were not provisional. At a minimum, the letters determined the rights of the Individual Plaintiffs to have the payments at issue count toward the 120 such payments needed. Additionally, in the cases of Burkhart and Voigt, who as of May 2017 continued to work for employers that the Department concluded did not qualify as "public service organizations," the letters effectively determined their eligibility to participate in the PSLF Program unless they changed jobs.
The ABA
Unlike the Individual Plaintiffs' denial letters, however, the Department's letters to the ABA are not actions by which a party's "rights or obligations have been determined" or from which "legal consequences will flow." Bennett , 520 U.S. at 178, 117 S.Ct. 1154.
In its June 2016 letter, the Department informed the ABA that it had "determined that the ABA does not qualify as a public service organization for [...] PSLF purposes" because it failed to demonstrate that its "primary purpose" was to provide "public interest law services." AR 190-91. In December 2016, the Department confirmed that determination. AR 192-93. Though these letters appear similar to those sent to the Individual Plaintiffs, they cannot satisfy the second prong of the Bennett test.
Under the PSLF statute, the Department has an obligation to provide loan forgiveness only to eligible borrowers. See 20 U.S.C. 1087e(m). The system by which it does so requires that borrowers collect and submit ECFs covering 120 valid loan payments, which the Department approves or denies as they are received. Accordingly, the Department's letters to the ABA-which do not constitute a determination on the eligibility of payments made by a particular borrower -cannot be said to determine rights or obligations under the statute. As an employer, the ABA has no such rights or obligations, since it has no possible claim to loan forgiveness. And indeed, there is no procedure set out in 34 C.F.R. § 685.219 or the Department's guidance by which an employer can seek to validate whether it meets the definition of a "public service organization" in a manner similar to the process available for borrowers to track the number of eligible payments they have completed. See 34 C.F.R. § 685.219 ; AR 168-80.
For the same reasons, legal consequences do not flow from the Department's letters to the ABA. When considering the issue of legal consequences, the D.C. Circuit has looked to "the actual legal effect (or lack thereof) of the agency action in question on regulated entities." Nat'l Min. Ass'n , 758 F.3d at 252. "[I]f the practical effect of the agency action is not a certain change in the legal obligations of a party, the action is non-final for the purpose of judicial review." Nat'l Ass'n of Home Builders , 415 F.3d at 15. Although the letters to the ABA describe separate eligibility determinations rendered by the Department, as well as the basis for those decisions, the letters themselves do not carry the same legal consequences for any particular borrower, like the letters sent to the Individual Plaintiffs. Nor do the letters carry legal consequences for the ABA. Because the ABA has no legal obligations or rights under the PSLF statute, the Department's letters cannot have changed them. And the ABA's extensive account of "serious recruiting and retention problems due to the revocation of its status as a PSLF-eligible employer" does not alter this conclusion. Pls.' Reply at 9. Practical effects alone, significant as they may be, do not meet the ABA's burden under Bennett 's second prong. See Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin. , 452 F.3d 798, 811 (D.C. Cir. 2006) ("The flaw in appellants' [finality] argument is that the 'consequences' to which they allude are practical, not legal."). Therefore, these letters are not final agency actions and are unreviewable under the APA. For this reason, the Court will enter judgment for Defendants on Counts I, II, III, and IV of the ABA's claims.
* * *
For the foregoing reasons, the Court concludes that the Department's denial letters sent to the Individual Plaintiffs were final agency actions, and the letters it sent to the ABA were not. Consequently, the Court will proceed to consider the Individual Plaintiffs' claims that the Department's determinations reflected in those letters violated the APA.
3. The Individual Plaintiffs' APA Claims
a. Whether the Department Changed its Practices
The Individual Plaintiffs allege, in Count I, that Defendants violated the APA when the Department changed its practices "without notice or explanation," Pls.' MSJ Br. at 29, by adopting a set of new "interpretations of statutory and regulatory terms defining the types of employment that qualify for the PSLF program." Pls.' Reply at 8; see also id. at 30-31. The Department relied upon these new interpretations, the Individual Plaintiffs argue, when it issued the denial letters to them and reversed its earlier determinations that their employment with the ABA, AILA, and VVA qualified. Pls.' MSJ Br. at 29-33. In fact, the various APA claims they bring are all predicated on their contention that the Department changed its interpretation of the PSLF regulation in certain ways, thereby rendering their employment and related payments ineligible under the PSLF Program. For their part, Defendants deny that any change took place, maintaining that the Department's denial letters were only "individualized, non-final determinations" that should not be read as "the agency's generally applicable policy in administering the PSLF." Dfs.' MSJ Br. at 28-29. Therefore, the first step in evaluating the Individual Plaintiffs' APA claims is determining whether the Department did in fact change its practices by applying a new interpretation of the PSLF regulation to the Individual Plaintiffs.
To determine whether an agency has changed its practices in the face of its insistence "that nothing [has] changed," courts independently review the administrative record.
Am. Wild Horse Preservation Campaign v. Perdue , 873 F.3d 914, 924-25 (D.C. Cir. 2017). But the record need not necessarily reflect formal documentation of a change for the Court to conclude that one has occurred. Aracely , 319 F.Supp.3d at 141 (concluding upon review of the record that "Plaintiffs' evidence of an unwritten ... policy ... outweigh[ed] Defendants' self-serving declaration to the contrary."). Indeed, another court in this district determined, over an agency's objections, that an agency changed its practices even where the plaintiffs "failed to cite any statute, regulation, policy memoranda, or any other document memorializing the [change] they challenge." R.I.L-R v. Johnson , 80 F.Supp.3d 164, 184 (D.D.C. 2015). Therefore, the Court will independently review the evidence in the record to determine whether the Department in fact changed its practices by applying a new interpretation of the PSLF regulation. In doing so, the Court will also consider-for reasons explained in Section III-extra-record evidence submitted by Plaintiffs.
The Individual Plaintiffs allege that the Department changed its interpretation of the PSLF regulation by adopting new, heightened standards governing whether non-501(c)(3) not-for-profit organizations qualify as public service organizations for purposes of the PSLF Program. They identify three newly-adopted standards the Court will refer to as the "Primary Purpose" standard, the "School-like Setting" standard, and the "Outright Provision of Services" standard. See Pls.' MSJ Br. at 31-33. The Court considers whether the evidence supports their claim that each reflects a change to how the Department interpreted and applied the PSLF regulation below.
The "Primary Purpose" Standard
The Individual Plaintiffs allege that, sometime between 2015 and 2016, the Department adopted the Primary Purpose standard as part of its determination as to whether non-501(c)(3) not-for-profit organizations that provide "public interest law services" qualify as "public service organizations" under the PSLF regulation. Id. at 31-32; id. , Ex. A ¶¶ 24, 31-36. Under this standard, for her loan payments to qualify, a borrow