Sneak Peek: Department of Education PSLF Decision-Making

From the ongoing litigation between the ABA and Department of Education (ED), we’re able to get a glance at the ED’s internal PSLF decision-making process. In the ABA’s most recently filed Memo 08.21.17, we see that FedLoan Servicing will e-mail the ED employees who in turn ask the ED’s general counsel/attorney for advice. You can read the full e-mail exchange from Exhibit B and Exhibit C from the case.

The ED’s attorney appears to be the one more specifically defining the otherwise vague PSLF terms such as “public education.” Based on that attorney’s advice, the ED appears to retract approvals of the Employment Certification Form.

The ABA argues that the e-mail communications “expose the lack of any proper procedure pursued by the Department in changing its interpretations…these types of closed-door deliberations in determining a widely applicable policy hardly amount to the minimum level of notice required under the APA, much less notice-and-comment rulemaking” (see page 7 of ABA’s Memorandum).

We’ll keep you updated on this case.