Department of Education v. Brown

600 U.S. 551

• Court: Supreme Court of the United States
• Decided: June 30, 2023
• Docket: 22-535
• Status: Published

Opinion

PRELIMINARY PRINT

Volume 600 U. S. Part 1 Pages 551–569

OFFICIAL REPORTS OF

THE SUPREME COURT June 30, 2023

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. OCTOBER TERM, 2022 551

Syllabus

DEPARTMENT OF EDUCATION et al. v. BROWN et al. certiorari before judgment to the united states court of appeals for the fth circuit No. 22–535. Argued February 28, 2023—Decided June 30, 2023 To alleviate hardship expected to be caused by the impending resumption of federal student-loan repayments that had been suspended during the multi-year coronavirus pandemic, Secretary of Education Miguel Car- dona announced a substantial student-loan debt-forgiveness plan (Plan). The Plan discharges $10,000 to $20,000 of an eligible borrower's debt, depending on criteria such as the borrower's income and the type of loan held. The Secretary invoked the Higher Education Relief Oppor- tunities for Students Act of 2003 (HEROES Act), which authorizes the Secretary “to waive or modify any provision” applicable to federal “stu- dent fnancial assistance” programs “as may be necessary to ensure that . . . recipients of student fnancial assistance” are no worse off “fnan- cially in relation to that fnancial assistance because” of a national emer- gency or disaster. 20 U. S. C. §§ 1098bb(a)(1), (a)(2)(A), 1098ee(2)(C)– (D). The HEROES Act also exempts rules promulgated pursuant to it from the otherwise-applicable negotiated-rulemaking and notice-and- comment processes. Before the Plan took effect, various plaintiffs—including respondents here—sued to enjoin it. Respondents Myra Brown and Alexander Taylor are two borrowers who do not qualify for the maximum relief available under the Plan. Their one-count complaint alleges that the Secretary was required to follow notice-and-comment and negotiated- rulemaking procedures in promulgating the Plan, which all agree he did not do. Brown and Taylor argue that the HEROES Act's procedural exemptions apply only when the rule promulgated is substantively au- thorized by the Act, and because the HEROES Act does not authorize the Plan (they argue), the Secretary was required to follow negotiated rulemaking and notice and comment. The District Court rejected their argument regarding the scope of the HEROES Act's procedural exemp- tions, but nevertheless vacated the Plan as substantively unauthorized. This Court granted certiorari before judgment to consider this case alongside Biden v. Nebraska, No. 22–506, which presents a similar chal- lenge to the Plan. Held: Because respondents fail to establish that any injury they suffer from not having their loans forgiven is fairly traceable to the Plan, they 552 DEPARTMENT OF EDUCATION v. BROWN

lack Article III standing, so the Court has no jurisdiction to address their procedural claim. Pp. 560–569. (a) “This case begins and ends with standing.” Carney v. Adams, 592 U. S. –––, –––. The Court's authority under the Constitution is limited to resolving “Cases” or “Controversies.” Art. III, § 2. The Court's jurisprudence has “established that the irreducible constitu- tional minimum of standing contains three elements” that a plaintiff must plead and—ultimately—prove. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560. Those elements are: (1) a “concrete and particular- ized” injury that is (2) “fairly traceable” to the challenged action of the defendant and (3) “likely” to be “redressed by a favorable decision.” Id., at 560–561 (alterations and internal quotation marks omitted). But where, as here, the plaintiff alleges that she has been deprived of a procedural right to protect her concrete interest, she need not show that observing the contested procedure would necessarily lead to a different substantive result. Id., at 572, n. 7. Pp. 560–562. (b) As articulated in this Court, respondents' claim and theory of standing are twofold: First, because the HEROES Act does not substan- tively authorize the Plan, the Secretary was obligated to follow typical negotiated-rulemaking and notice-and-comment requirements. Second, if the Secretary had observed those procedures, respondents might have used those opportunities to convince him not only that proceeding under the HEROES Act is unlawful, but also that he should instead adopt a different loan-forgiveness program under the Higher Education Act of 1965 (HEA), and to make that program more generous to respondents than the Plan. Respondents assert there is at least a chance that this series of events will come to pass now if this Court vacates the Plan. Pp. 562–563. (c) Respondents' standing claim most clearly fails on traceability: They cannot show that their purported injury of not receiving loan relief under the HEA is fairly traceable to the Department's (allegedly unlaw- ful) decision to grant loan relief under the HEROES Act. Pp. 563–569. (1) Signifcantly, respondents are not claiming that they are injured by not being suffciently included among the Plan's benefciaries: They think the Plan is substantively unlawful and instead seek debt forgive- ness under the HEA. But a decision regarding the lawfulness of the Plan does not directly affect respondents' ability to obtain loan relief under the HEA; the Department's authority to grant loan relief under the HEA (upon which the Court does not pass) is not affected by whether the Plan is lawful or unlawful. Any connection between loan forgiveness under the two statutes is speculative. While it is true that the Court's procedural-standing case law toler- ates uncertainty over whether observing certain procedures would have Cite as: 600 U. S. 551 (2023) 553

led to (caused) a different substantive outcome, see Lujan, 504 U. S., at 572, n. 7, the causal uncertainty here is not so limited. Instead, the uncertainty concerns whether the substantive decisions the Department has made regarding the Plan under the HEROES Act have a causal relationship with other substantive decisions respondents want the De- partment to make under the HEA. There is no precedent for tolerating this sort of causal uncertainty. Respondents cannot show that the de- nial of HEA loan relief—their ostensible injury—“fairly can be traced to” the Department's decision to grant loan relief in the Plan. Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 42–43. There is little reason to think that the Department's discretionary deci- sion to pursue one mechanism of loan relief under the HEROES Act has anything to do with its discretionary decision to pursue (or not pursue) action under the HEA. “The line of causation between” the Depart- ment's promulgation of the Plan and respondents' lack of benefts under the HEA “is attenuated at best,” Allen v. Wright, 468 U. S. 737, 757, and all too dependent on “ `conjecture,' ” Summers v. Earth Island In- stitute, 555 U. S. 488, 496. Pp. 564–567. (2) Respondents' attempts to tie the Plan to potential HEA relief are unavailing. Although the Department has occasionally referred to “one-time” student-loan relief in publicizing the Plan, the Plan itself con- tains no such reference. And any incidental effect of the Plan on the likelihood that the Department will undertake a separate loan- forgiveness program under a different statute is too weak and specula- tive to show that the absence of HEA-based loan forgiveness is fairly traceable to the Plan. See, e. g., Simon, 426 U. S., at 42–43. To the extent the Department has determined that the Plan crowds out other efforts to forgive student loans, that determination is a discretionary one that respondents may petition the Department to reconsider. Fi- nally, respondents cannot demonstrate causation on the theory that the Department's failure to observe the requisite procedural rules cost them a chance to obtain debt forgiveness; they do not want debt forgiveness under the HEROES Act, and nothing the Department has done de- prives them of a chance to seek debt forgiveness under the HEA. Re- spondents cannot meaningfully connect the absence of loan relief under the HEA to the adoption of the Plan, so they have failed to show that their injury is fairly traceable to the Plan. Pp. 567–568. Vacated and remanded.

Alito, J., delivered the opinion for a unanimous Court.

Solicitor General Prelogar argued the cause for petition- ers. With her on the briefs were Principal Deputy Assist- 554 DEPARTMENT OF EDUCATION v. BROWN

Counsel

ant Attorney General Boynton, Deputy Solicitor General Fletcher, Vivek Sur i, Yaira Dubin, Michael S. Raab, Thomas Pulham, and Brian Siegel. J. Michael Connolly argued the cause for respondents. With him on the brief were Cameron T. Norris, Gilbert C. Dickey, James F. Hasson, and Steven C. Begakis.* *Briefs of amici curiae urging reversal were fled for the Americans for Prosperity Foundation et al. by J. Marc Wheat, Michael Pepson, and Cyn- thia Fleming Crawford; for Borrower Advocacy and Legal Aid Organiza- tions by Joshua Rovenger and Persis Yu; for the Empire Center for Public Policy, Inc., et al. by Misha Tseytlin and Timothy L. McHugh; for the Foundation for Government Accountability by Stewart L. Whitson; for the Hamilton Lincoln Law Institute et al. by Theodore H. Frank and Curt A. Levey; for Legal Scholars by Jeffrey B. Dubner and Sean A. Lev; for Local Governments by Jonathan B. Miller, Joshua A. Rosenthal, Atleen Kaur, Mark Griffn, Arturo G. Michel, James D. Smiertka, Peter M. Bollinger, Leslie J. Girard, John P. Markovs, Diana P. Cortes, Sheena Hamilton, Lyndsey M. Olson, and Ronald A. Hope; for the National Education Asso- ciation by Alice O'Brien and Jeffrey W. Burritt; for Samuel L. Bray et al. by Melissa Arbus Sherry; and for Jed Handelsman Shugerman by Brian H. Pandya. Briefs of amici curiae urging vacatur were fled for Arch- City Defenders et al. by Seth E. Mermin; for the Cato Institute et al. by Anastasia P. Boden and Ilya Shaprio; for Six Veterans' Organizations by Boris Bershteyn; and for Student Loan Experts by Christopher J. Wright and Stephen W. Miller. Briefs of amici curiae urging affrmance were fled for the State of Utah et al. by Sean D. Reyes, Attorney General of Utah, Melissa Holyoak, Solicitor General, and Dave Yost, Attorney General of Ohio, Benjamin M. Flowers, Solicitor General, Sylvia May Mailman, Deputy Solicitor Gen- eral, and by the Attorneys General for their respective States as follows: Steve Marshall of Alabama, Treg R. Taylor of Alaska, Ashley Moody of Florida, Christopher M. Carr of Georgia, Raúl Labrador of Idaho, Theo- dore E. Rokita of Indiana, Jeff Landry of Louisiana, Lynn Fitch of Missis- sippi, Austin Knudsen of Montana, John M. Formella of New Hampshire, Gentner Drummond of Oklahoma, Jonathan Skrmetti of Tennessee, Ken Paxton of Texas, Patrick Morrisey of West Virginia, and Bridget Hill of Wyoming; for the American Center for Law and Justice by Jay Alan Sek- ulow, Stuart J. Roth, Colby M. May, Jordan A. Sekulow, and Laura B. Hernandez; for the Buckeye Institute by David C. Tryon and Robert Alt; for Sen. Marsha Blackburn et al. by Steven A. Engel and Michael H. Mc- Ginley; for Elisabeth DeVos et al. by Alexander Akerman; for Michael Cite as: 600 U. S. 551 (2023) 555

Opinion of the Court

Justice Alito delivered the opinion of the Court. In August 2022, the Secretary of Education announced a large-scale student-loan forgiveness program. He pledged to discharge hundreds of billions of dollars in student-loan debt owed by millions of borrowers. According to the Sec- retary, the discharge was necessary to alleviate hardship caused by the impending resumption of loan repayments, which had been suspended during the multi-year coronavirus pandemic, and he therefore invoked authority that he claimed he enjoyed under the Higher Education Relief Op-

W. McConnell et al. by William R. Levi; for Howard McKeon et al. by Caleb Kruckenberg; and for 128 U. S. Representatives et al. by Jennifer L. Mascott and R. Trent McCotter. Briefs of amici curiae were fled for the Commonwealth of Massachu- setts et al. by Elizabeth N. Dewar, Acting Attorney General of Massachu- setts, and Yael Shavit, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Rob Bonta of Califor- nia, Philip J. Weiser of Colorado, William Tong of Connecticut, Kathleen Jennings of Delaware, Brian L. Schwalb of the District of Columbia, Anne E. Lopez of Hawaii, Kwame Raoul of Illinois, Anthony G. Brown of Mary- land, Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron D. Ford of Nevada, Matthew J. Platkin of New Jersey, Raúl Torrez of New Mexico, Letitia James of New York, Joshua H. Stein of North Carolina, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter F. Neronha of Rhode Island, Charity R. Clark of Vermont, Robert W. Ferguson of Washington, and Joshua L. Kaul of Wisconsin; for the America First Pol- icy Institute by Craig W. Trainor and Rachel Jag; for the American Feder- ation of Teachers et al. by Yelena Konanova, Faith E. Gay, and Max H. Siegel; for the Atlantic Legal Foundation by Lawrence S. Ebner; for the Chamber of Commerce of the United States of America by Robert E. Dunn, Jennifer B. Dickey, and Amy Miller; for the Landmark Legal Foundation by Michael J. O'Neill, Matthew C. Forys, and Richard P. Hutchison; for the Lawyers' Committee for Civil Rights Under Law et al. by Damon Hewitt, Jon Greenbaum, David Hinojosa, and Genevieve Bonadies Torres; for the New Civil Liberties Alliance by Markham S. Chenoweth and Russell G. Ryan; for the Protect Democracy Project by Justin Florence and Genevieve Nadeau; for George Miller by Elizabeth B. Wydra and Brianne J. Gorod; and for Lawrence A. Stein by Mr. Stein, pro se. 556 DEPARTMENT OF EDUCATION v. BROWN

portunities for Students Act of 2003 (HEROES Act). 117 Stat. 904, codifed at 20 U. S. C. § 1070 et seq. The following month, the Secretary directed that specifc actions be taken to implement the loan-forgiveness plan (Plan). The amount of relief available to a borrower under the Plan depends on various criteria, including the borrower's income and the type of loan the borrower holds. Before the Plan took effect, however, various plaintiffs— including respondents here—sued to enjoin it. Respondents are two individual borrowers who, for different reasons, do not qualify for the maximum relief available under the Plan. They argue that the Department of Education promulgated the Plan without following mandatory procedures known as (1) negotiated rulemaking and (2) notice and comment. The District Court held in favor of respondents, and we granted certiorari before judgment to consider this case alongside Biden v. Nebraska, No. 22–506, which presents a similar challenge to the Plan. Ultimately, however, we do not resolve respondents' pro- cedural claim because we conclude that they lack standing to bring it. Accordingly, we vacate the judgment of the United States District Court for the Northern District of Texas and remand with instructions to dismiss. We simultaneously deny as moot the Department's application for a stay pend- ing appeal. I A The Court's opinion in Biden v. Nebraska, 600 U. S. 477 (2023), recounts the relevant background of the HEROES Act, so only a brief summary is provided here. The Act au- thorizes the Secretary of Education “to waive or modify any provision” applicable to federal “student fnancial assistance” programs “as may be necessary to ensure that . . . recipients of student fnancial assistance” who live or work in a declared disaster area, or suffer direct economic hardship as a result Cite as: 600 U. S. 551 (2023) 557

of a national emergency, “are not placed in a worse position fnancially in relation to that fnancial assistance because” of the disaster or emergency. 20 U. S. C. §§ 1098bb(a)(1), (a)(2)(A), 1098ee(2)(C)–(D). In addition to this substantive grant of authority, the HEROES Act dispenses with certain procedural rules for actions taken pursuant to it. First, the HEROES Act permits the Secretary to imple- ment any “waivers and modifcations authorized or required” by the Act without engaging in the “negotiated rulemaking” that is typically required before proposing regulations relat- ing to student fnancial assistance. § 1098bb(d). Negoti- ated rulemaking is a lengthy deliberative process involving many stakeholders. Pursuant to this process, the Secretary must frst obtain “advice of and recommendations” from a long list of sources, including “individuals and representa- tives” of groups “such as students, legal assistance organiza- tions that represent students, institutions of higher educa- tion, State student grant agencies, guaranty agencies, lenders, secondary markets, loan servicers, guaranty agency servicers, and collection agencies.” § 1098a(a)(1). Then, informed by this consultation, the Secretary must submit draft regulations for consideration in a negotiation process involving participants who are “chosen by the Secretary from individuals nominated by” such groups. § 1098a(b)(1). Only after taking these steps may the Secretary “publis[h] proposed regulations in the Federal Register,” ibid., accom- panied by a summary of the information the Secretary re- ceived throughout the process, § 1098a(a)(2). The HEROES Act, however, permits the Secretary to bypass this onerous process. § 1098bb(d). The HEROES Act also authorizes the Secretary to bypass notice-and-comment procedures that the Administrative Pro- cedure Act (APA) would otherwise demand. The APA typi- cally requires agencies to give the public “[g]eneral notice of [a] proposed rule making” by publication in the Federal 558 DEPARTMENT OF EDUCATION v. BROWN

Register, and then to provide “interested persons an oppor- tunity to participate in the rule making through submission of written data, views, or arguments” regarding the pro- posed rule. 5 U. S. C. §§ 553(b), (c). The agency may pro- mulgate a fnal rule only after providing notice and opportu- nity for comment. § 553(c). But the HEROES Act instead permits the Secretary to implement the waivers and modif- cations he “deems necessary to achieve the purposes of ” the Act merely by “publish[ing]” “notice in the Federal Regis- ter.” 20 U. S. C. § 1098bb(b)(1).

B On September 27, 2022, Secretary of Education Miguel Cardona, invoking authority under the HEROES Act, di- rected the issuance of waivers and modifcations that would bring about the forgiveness of a substantial amount of student-loan debt. In particular, he purported to effect the discharge of (1) $10,000 of eligible, federally held student- loan debt for any individual borrower with 2020 or 2021 in- come under $125,000 (or household income under $250,000), and (2) an additional $10,000 (making a total of $20,000) for any such borrower who had ever received a Pell Grant. Pell Grants are Government-funded grants to help defray the cost of postsecondary education; eligibility for these grants turns principally on the income of a student's family when the student applies to and is enrolled in the relevant educa- tional program (almost always undergraduate study). See §§ 1070a(b)(2), 1087mm(a), 1091; see also 34 CFR § 690.6(c) (2022) (limited eligibility for students in a qualifying “post- baccalaureate program”). Secretary Cardona directed that these actions be taken via a publication in the Federal Regis- ter, see App. 262; all agree that he did not observe the gen- erally applicable negotiated-rulemaking or notice-and- comment processes in devising and announcing the Plan. Notwithstanding the Plan's scope and expense, not all student-loan borrowers were pleased with it. Myra Brown Cite as: 600 U. S. 551 (2023) 559

and Alexander Taylor, plaintiffs in this case, are two such dissatisfed borrowers, albeit for different reasons. Brown's loans are “commercially held,” id., at 171, Complaint ¶10, meaning that her creditor is an entity other than the Federal Government. The Plan, however, applies only to borrowers whose loans fall into one or more categories of loans “held by the Department.” 87 Fed. Reg. 61513 (2022). Conse- quently, Brown is not entitled to any loan forgiveness under the Plan. 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, Com- plaint ¶61. Thus, individuals with annual income up to fve 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 ele- ments 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. Be- cause the Department did not engage in negotiated rule- making 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 De- partment promulgated it without observing the require- ments 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 sup- plies exemptions from these procedural requirements. They argue, however, that an action of the Secretary falls within these exemptions only if it is substantively authorized 560 DEPARTMENT OF EDUCATION v. BROWN

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 Act exempts from procedural requirements only those ac- tions that the Act substantively authorizes. But the Dis- trict Court nonetheless held that the Plan exceeds the Se- cretary's authority under the HEROES Act and therefore entered judgment vacating it. 640 F. Supp. 3d 644, 668 (2022). After the Fifth Circuit denied the Department's motion for a stay pending appeal, the Department applied to this Court for such a stay. The Department advised in the alter- native that we could treat its application as a petition for certiorari before judgment. We did just that, granting the Department's petition for certiorari before judgment and deferring consideration of its application for a stay. 598 U. S. ––– (2022). We now review the judgment in No. 22– 535 and dispose of the pending application in No. 22A489.

II We ultimately do not address Brown and Taylor's argu- ment that the Department failed to observe proper proce- dures in promulgating the Plan. “We have `an obligation to assure ourselves' of litigants' standing under Article III” be- fore proceeding to the merits of a case. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 340 (2006) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 180 (2000)). And because we conclude that Brown and Taylor lack standing, “[t]his case begins and ends with standing.” Carney v. Adams, 592 U. S. –––, ––– (2020). In particular, we hold that Brown and Taylor fail to Cite as: 600 U. S. 551 (2023) 561

establish that any injury they suffer from not having their loans forgiven is fairly traceable to the Plan.

A Our authority under the Constitution is limited to resolv- ing “Cases” or “Controversies.” Art. III, § 2. “The doc- trine of standing,” among others, “implements this” limit on our authority. Carney, 592 U. S., at –––. Our jurispru- dence has “established that the irreducible constitutional minimum of standing contains three elements” that a plain- tiff must plead and—ultimately—prove. Lujan v. Defend- ers of Wildlife, 504 U. S. 555, 560 (1992). “First, the plaintiff must have suffered an `injury in fact' ” that is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Ibid. (some internal quotation marks omitted). Second, the plaintiff's injury must be “fairly traceable to the challenged action of the defendant,” meaning that “there must be a causal connection between the injury and the conduct complained of.” Ibid. (internal quotation marks and alterations omitted). “Third, it must be `likely,' as opposed to merely `speculative,' that the injury will be redressed by a favorable decision.” Id., at 561 (some inter- nal quotation marks omitted). We have found, however, that when a statute affords a litigant “a procedural right to protect his concrete interests,” the litigant may establish Article III jurisdiction without meeting the usual “standards for redressability and immedi- acy.” Id., at 572, n. 7. For example, we hypothesized a per- son “living adjacent to the site for proposed construction of a federally licensed dam” and explained that this person “has standing to challenge the licensing agency's failure to pre- pare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered.” Ibid. In this context, the fact that the defendant might well come to the 562 DEPARTMENT OF EDUCATION v. BROWN

same decision after abiding by the contested procedural re- quirement does not deprive a plaintiff of standing. Regardless of the redressability showing we have toler- ated in the procedural-rights context, we have never held a litigant who asserts such a right is excused from demonstrat- ing that it has a “concrete interest that is affected by the deprivation” of the claimed right. Summers v. Earth Is- land Institute, 555 U. S. 488, 496–497 (2009). We emphasized this requirement in Summers, where we were asked to review U. S. Forest Service regulations ex- empting certain minor land-management decisions from the typical notice-and-comment process. Id., at 490–491. The plaintiffs in that case did not have any “concrete plans to observe nature in [a] specifc area” affected by actions the Service took pursuant to this exemption, id., at 497, and we therefore held that they lacked standing, id., at 494–497. As we put it, the “deprivation of a procedural right without some concrete interest that is affected by the deprivation— a procedural right in vacuo—is insuffcient to create Arti- cle III standing.” Id., at 496.

B Before applying this framework, we pause to explain both respondents' theory of standing and the substance of their claim, which have not always been readily ascertainable—or consistently described—during this litigation. Upon initial inspection, respondents' merits theory ap- pears to be in tension with the possibility that the Depart- ment could redress their injury. Respondents argue simul- taneously (1) that the Department might have treated them more generously if it had solicited their input in developing the Plan and (2) that the Department lacks substantive au- thority to promulgate broad-based loan forgiveness under the HEROES Act. It would be quite odd for Brown and Taylor to complain about being unable to seek an increase in the scope of an administrative action that they think the Department cannot lawfully take. Cite as: 600 U. S. 551 (2023) 563

Respondents belatedly attempted to address this strange feature of their argument. Their complaint does not say a word about standing. But in their reply supporting their motion in the District Court for an injunction against the Plan, they ventured a brief attempt to explain their position on this threshold issue. They insisted that the Department cannot adopt the Plan under the HEROES Act regardless of the procedures it follows. Reply in No. 4:22–cv–908 (ND Tex., Oct. 20, 2022), ECF Doc. 26, pp. 3–4. But they observed that the Department has claimed it also has author- ity to forgive loans under a different statute, the Higher Ed- ucation Act of 1965 (HEA), which authorizes the Secretary to “compromise, waive, or release any right, title, claim, lien, or demand.” 20 U. S. C. § 1082(a)(6). Thus, respondents ar- gued, there is a chance that vacating the Plan would prompt the Department to pursue loan relief under the HEA instead. In this Court, Brown and Taylor discuss the HEA at length for the frst time in this litigation. See Brief for Respond- ents 28–32. Having recounted this history, we now understand re- spondents' claim and theory of standing as follows. First, because the HEROES Act does not substantively authorize the Plan, the Department was obligated to follow the typical negotiated-rulemaking and notice-and-comment require- ments. Second, if the Department had observed those pro- cedures, respondents might have used those opportunities to convince the Department (1) that proceeding under the HEROES Act is unlawful or otherwise undesirable, and (2) that it should adopt a different loan-forgiveness plan under the HEA instead, one that is more generous to them than the HEROES Act plan that they allege is unlawful. They as- sert there is at least a chance that this series of events will come to pass now if we vacate the Plan. Id., at 19.

C Describing respondents' claim illustrates how unusual it is. They claim they are injured because the Government has not 564 DEPARTMENT OF EDUCATION v. BROWN

adopted a lawful benefts program under which they would qualify for assistance. But the same could be said of anyone who might beneft from a benefts program that the Govern- ment has not chosen to adopt. It is diffcult to see how such an injury could be particular (since all people suffer it) or concrete (since an as-yet-uncreated benefts plan is necessar- ily “ `abstract' ” and not “ `real' ”).1 Spokeo, Inc. v. Robins, 578 U. S. 330, 340 (2016); see also Allen v. Wright, 468 U. S. 737, 755–756 (1984) (rejecting a theory that would “extend [standing] nationwide”). Nor have we ever accepted that an injury is redressable when the prospect of redress turns on the Government's wholly discretionary decision to create a new regulatory or benefts program. Nonetheless, we think the defciencies of respondents' claim are clearest with respect to traceability. They can- not show that their purported injury of not receiving loan relief under the HEA is fairly traceable to the Department's (allegedly unlawful) decision to grant loan relief under the HEROES Act. 1 At the outset, we reiterate what respondents' claim is not. Respondents are not claiming that they are injured by not being included in the Plan (or, in Taylor's case, by being remunerated by the Plan less generously than he thinks him- self entitled to). After all, they think the Plan is substan- tively unlawful, a merits contention that “we accept as valid” for purposes of analyzing standing. Federal Election Comm'n v. Ted Cruz for Senate, 596 U. S. –––, ––– (2022). It would be quite strange to think that a party experiences an Article III injury by not being affected by an unlawful action (in Brown's case) or not being more affected by such action (in Taylor's).

1 In contrast, a claim of unlawful exclusion from an existing benefts program can be ft for judicial resolution. See, e. g., Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 449, 462 (2017). Cite as: 600 U. S. 551 (2023) 565

Instead, respondents seek relief under a separate statu- tory source. They name the HEA as that potential source, but presumably they would be pleased for the Department to invoke any other lawful source (if one exists) as grounds for granting them loan relief. Their interest is in obtaining loan forgiveness in general. The Plan, however, is independent of any student-loan re- lief the Department might craft under the HEA (or any other statute). A decision by this Court that the Plan is lawful would have no effect on the Department's ability to forgive respondents' loans under the HEA.2 Thus, the Plan poses no legal obstacle to the Department's choosing to fnd other ways to remedy the harm respondents experience from not having their loans forgiven. Put differently, the Department's decision to give other people relief under a different statutory scheme did not cause respondents not to obtain the benefts they want. The cause of their supposed injury is far more pedestrian than that: The Department has simply chosen not to give them the relief they want. Ordinarily, a party's recourse to induce an agency to take a desired action is to fle not a lawsuit, but a “petition for the issuance, amendment, or re- peal of a rule.” 5 U. S. C. § 553(e). The denial of such a petition “must be justifed by a statement of reasons,” which in turn “can be appealed to the courts” if the litigant has standing to maintain such a suit. Auer v. Robbins, 519 U. S. 452, 459 (1997). Contesting a separate benefts program based on a theory that it crowds out the desired one, how- ever, is an approach for which we have been unable to fnd any precedent. It is true that in procedural-standing cases, we tolerate uncertainty over whether observing certain procedures would have led to (caused) a different substantive outcome, 2 We do not opine on the substantive lawfulness of any action the De- partment might take under the HEA or add anything to our construction of the HEROES Act as set forth in today's opinion in Nebraska. 566 DEPARTMENT OF EDUCATION v. BROWN

as with Lujan's example of the dam and the bypassed envi- ronmental impact statement. See 504 U. S., at 572, n. 7. In this case, however, the causal uncertainty is not merely over whether observing certain procedures would have led to a different substantive outcome. Instead, the uncertainty concerns whether the substantive decisions the Department has made regarding the Plan under the HEROES Act have a causal relationship with other substantive decisions re- spondents want the Department to make under the HEA. There is no precedent for tolerating this sort of causal uncertainty. Our other procedural-standing cases demonstrate the point. In the example posited in Lujan, proceeding with building the dam as planned and simultaneously sparing the adjacent landowner from the negative effects of the dam are mutually exclusive options. See ibid. While it might be uncertain whether undertaking an environmental impact statement would prevent the dam from being built, it is clear that building the dam would directly injure the landowner. Similarly, in a case like Summers, it might be uncertain whether public comment would alter any particular land- management decision the Forest Service makes. There would be no uncertainty, however, that a plaintiff with con- crete plans to observe nature in a particular area “would be harmed if the [land-management project] went forward without incorporation of the ideas he would have suggested” in his comments. 555 U. S., at 494.3 Accordingly, Brown and Taylor need not allege that ob- serving negotiated rulemaking and notice and comment would “ `force' ” the Department to reach substantive results

3 Although no plaintiff in Summers had standing because none had alleged specifc plans to observe nature in one of the areas at issue in the case, see 555 U. S., at 500, the point remains that, in an equivalent case featuring those specifc plans, environmental damage to such a plain- tiff's esthetic interests could fairly be traced to the Service's land- management choices. Cite as: 600 U. S. 551 (2023) 567

more favorable to them than those embodied in the Plan. Lemon v. Geren, 514 F. 3d 1312, 1314–1315 (CADC 2008). But they must still show—pursuant to our customary trace- ability standards—that the Plan's substance causes their in- jury by impairing loan relief under the HEA. Brown and Taylor cannot meet this standard. “It is purely speculative whether the denia[l]” of HEA loan re- lief—their ostensible injury—“fairly can be traced to” the Department's decision to grant loan relief in the Plan. Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 42–43 (1976); see also Warth v. Seldin, 422 U. S. 490, 503–504 (1975). As noted above, HEROES Act loan relief and HEA loan relief function independently of each other. If the Depart- ment may lawfully grant loan relief under both the HEROES Act and the HEA, it is entitled to choose to do both, neither, or only one (provided that it suffciently explains its reason- ing, see 5 U. S. C. § 706(2)(A)). There is little reason to think that its discretionary decision to pursue one mechanism of loan relief has anything to do with its discretionary decision to pursue (or not pursue) another. “The line of causation between” the Department's promulgation of the Plan and re- spondents' lack of benefts under the HEA “is attenuated at best,” Allen, 468 U. S., at 757, and all too dependent on “ `conjecture,' ” Summers, 555 U. S., at 496.

2 Respondents' attempts to tie the Plan to potential HEA relief are unavailing. They point to a handful of documents related to the Plan that say that the Department is providing “one-time” student-loan relief. See, e. g., App. 215, 221, 225. Such statements, Brown and Taylor argue, show that the decision to grant loan relief under the HEROES Act fore- closed HEA relief. This is insuffcient. The Plan itself—the action under re- view here—contains no reference to “one-time” relief. See 568 DEPARTMENT OF EDUCATION v. BROWN

87 Fed. Reg. 61512–61514. And to the extent that the De- partment's decision to adopt the Plan under the HEROES Act might have some incidental effect on the likelihood that the Department will undertake a separate loan-forgiveness program under a different statute, the relationship is not suf- fciently close to persuade us that the latter is fairly traceable to the former. See, e. g., Simon, 426 U. S., at 42–43 (accept- ing that certain tax rules might “ `encourag[e]' ” or “ `discour- age' ” particular behavior, but nonetheless holding that con- nection to be insuffcient to establish standing where it was “just as plausible” that actors would “forgo favorable tax treatment”). Moreover, no one argues that the existing ref- erences to one-time relief are legally binding. To whatever extent the Department has determined that the Plan crowds out other efforts to forgive student loans, that, too, is a dis- cretionary and independent decision that respondents may ask it to reconsider with a § 553(e) petition. Finally, Brown and Taylor also argue that they have dem- onstrated causation because the Secretary's failure to ob- serve the requisite procedural rules cost them a “ `chance' ” to “obtain debt forgiveness.” Brief for Respondents 28. But referring in the abstract to a “chance” of obtaining “debt forgiveness” does not solve their problem. They do not want debt forgiveness under the HEROES Act, which they claim is unlawful. They want debt forgiveness under the HEA. Nothing the Secretary has done deprives them of a “chance” to seek that result. Because respondents cannot meaningfully connect the ab- sence of loan relief under the HEA to the adoption of the Plan, they have failed to show that their injury is fairly traceable to the Plan. * * * For these reasons, respondents lack standing, and we therefore vacate the judgment of the District Court and re- mand the case with instructions to dismiss. By vacating the Cite as: 600 U. S. 551 (2023) 569

District Court's judgment, we obviate the need to grant the interim relief the Department requests in its application in No. 22A489. We therefore deny the application as moot. It is so ordered.

Reporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

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