Mackinac Center for Public Policy; Cato Institute v. MIGUEL CARDONA, Secretary, U.S. Department of Education

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0113p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MACKINAC CENTER FOR PUBLIC POLICY; CATO
INSTITUTE,
Plaintiffs-Appellants,
v.
MIGUEL CARDONA, Secretary, U.S. Department of
Education, in his official capacity; RICHARD
CORDRAY, Chief Operating Officer of Federal Student
Aid, U.S. Department of Education, in his official
capacity; U.S. DEPARTMENT OF EDUCATION,
Defendants-Appellees.
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No. 23-1736
Appeal from the United States District Court for the Eastern District of Michigan at Bay City.
No. 1:23-cv-11906—Thomas L. Ludington, District Judge.
Argued: March 21, 2024
Decided and Filed: May 17, 2024
Before: SILER, COLE, and MATHIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Sheng Li, NEW CIVIL LIBERTIES ALLIANCE, Washington, D.C., for
Appellants. Thomas Pulham, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees. ON BRIEF: Sheng Li, NEW CIVIL LIBERTIES ALLIANCE,
Washington, D.C., for Appellants. Thomas Pulham, Michael S. Raab, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Seth E. Mermin, David S.
Nahmias, U.C. BERKELEY CENTER FOR CONSUMER LAW & ECONOMIC JUSTICE,
Berkeley, California, PERSIS S. Yu, R. T. Winston Berkman-Breen, STUDENT BORROWER
PROTECTION CENTER, Washington, D.C., for Amici Curiae.
>

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_________________
OPINION
_________________
MATHIS, Circuit Judge. Many people consider a college education the ticket to the
American dream. Some take out student loans to get the ticket. Paying back those loans can turn
into a nightmare. Congress and the U.S. Department of Education stepped in to help by creating
income-driven student-loan repayment plans and the Public Service Loan Forgiveness program.
Various problems arose with these plans, including student-loan servicers steering
borrowers into postponing or reducing their student-loan payments for extended periods of time.
In response, the Department of Education announced, in April 2022 and July 2023, a one-time
account adjustment that would count months or years that borrowers spent in excessive
forbearance status toward debt forgiveness. The Mackinac Center for Public Policy and the Cato
Institute did not take kindly to the Department of Education’s action, so they sued to stop it. The
question presented is whether Plaintiffs’ complaint sufficiently alleged that they suffered an
injury in fact resulting from the adjustment based on competitor standing and deprivation of a
procedural right. We hold that it does not. We thus affirm the district court’s dismissal of
Plaintiffs’ complaint for lack of subject-matter jurisdiction.
I.
A.
For many, cost is the greatest barrier to attending college.1 The average rate charged to
full-time undergraduate students for tuition, fees, room, and board now exceeds $25,000 per
year.2 Fortunately, Congress took measures to lend a hand through Title IV of the Higher
Education Act of 1965, 20 U.S.C. § 1070 et seq.
1See Mary Deweese, Note, Failed: The Myths and Realities of Community Colleges, and How to Fulfill the
American Dream Through Community College Reform, 23 Geo. J. on Poverty L. & Pol’y 293, 296 (2016).
2Tuition Costs of Colleges and Universities, Nat’l Ctr. for Educ. Stat.,
https://nces.ed.gov/programs/digest/d23/tables/dt23_330.10.asp (last visited Apr. 12, 2024).

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Title IV’s purpose is pretty straightforward. Congress sought “to assist in making
available the benefits of postsecondary education to eligible students” to attend college by
providing “special programs” to assist those with financial need. 20 U.S.C. § 1070(a)(4)(A). To
that end, Congress directed the Department of Education to “carry out programs to achieve the
purposes” of Title IV. Id. § 1070(b).
Through the William D. Ford Federal Direct Loan Program, the federal government
“make[s] loans to all eligible students” to attend college. Id. § 1087a. The Department of
Education administers this student-loan program. The Direct Loan Program accounts for
roughly $1.6 trillion in student-loan debt owed by approximately 43 million borrowers. Biden v.
Nebraska, 143 S. Ct. 2355, 2362 (2023). To defray some borrowers’ costs of repaying the
student loans, Congress has approved several loan-forgiveness programs, including income-
driven repayment (“IDR”) plans and the Public Service Loan Forgiveness (“PSLF”) program.
See 20 U.S.C. §§ 1087e(m), 1098e(b)(7).
Under IDR plans, the Department of Education will forgive a student-loan debt after the
borrower makes the number of monthly payments required under one of four plans selected
based on the borrower’s income and family size.3 IDR plans have a forgiveness timeline of 20
or 25 years, and up to 3 years of deferment for economic hardship may count toward the monthly
payment requirement. 34 C.F.R. §§ 685.209(a)–(c), 685.221. Because these plans are based on
the borrower’s income, some low-income borrowers may have a required monthly payment as
low as $0. See, e.g., id. § 685.209(c)(5).
Congress created the PSLF program through the College Cost Reduction and Access Act
of 2007. Under the PSLF program, the Department of Education must “cancel” a borrower’s
debt if the borrower: (1) makes 120 monthly payments on an eligible loan under a designated
payment plan, including an IDR plan; (2) was employed in a “public service job” when she made
each of the 120 payments; and (3) still has public service employment at the time of forgiveness.
20 U.S.C. § 1087e(m)(1)(A), (B); 34 C.F.R. § 685.219(c). A public service job includes, among
other things, working for a tax-exempt nonprofit organization. 20 U.S.C. § 1087e(m)(3)(B)(i).
37 FAQs About Income-Driven Repayment Plans, Fed. Student Aid, https://studentaid.gov/articles/faqs-idr-
plan/ (last visited Apr. 10, 2024).

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The purpose of the PSLF program is “to encourage individuals to enter and continue in full-time
public service employment by forgiving the remaining balance of their Direct loans after they
satisfy the public service and loan payment requirements.” 34 C.F.R. § 685.219(a).
Under the IDR and PSLF programs, late or partial payments and some periods of
forbearance do not count toward the 120 monthly payments, nor does deferment for reasons
other than economic hardship. See 20 U.S.C. § 1087e(m)(1)(A) (describing what counts as
payments under the PSLF program); 34 C.F.R. §§ 685.219(c)(2), 682.215(f) (describing what
counts as payments under the PSLF and IDR programs, respectively). The Department of
Education defines “forbearance” as “permitting the temporary cessation of payments, allowing
an extension of time for making payments, or temporarily accepting smaller payments than
previously were scheduled.” 34 C.F.R. § 682.211(a)(1). A loan servicer can approve a period of
forbearance for a borrower. Id.
Loan forgiveness under PSLF and IDR programs may seem clear-cut, but there have been
numerous problems with administering these programs. This in turn affected borrowers’ ability
to obtain loan forgiveness. As a result, in April 2022, the Department of Education announced
its plan to “address[] historical failures in the administration of the federal student loan
programs.” Press Release, U.S. Dep’t of Educ., Department of Education Announces Actions to
Fix Longstanding Failures in the Student Loan Programs (Apr. 19, 2022).4 One such failure
involves the alleged steering of borrowers into long-term periods of forbearance in violation of
Department of Education rules, which provides for “a 12-month limit for any single use of
forbearance, and a 36-month cumulative limit on discretionary forbearance.” Id. To prevent this
practice and mitigate the resulting harm, the Department of Education announced it would make
“a one-time account adjustment that will count forbearances of more than 12 months consecutive
and more than 36 months cumulative toward forgiveness under IDR and PSLF.” Id. Essentially,
the Department of Education would count the relevant period(s) of forbearance as payments.
With the adjustment, approximately 40,000 borrowers would be eligible for immediate discharge
of debt under the PSLF program, and several thousand would be eligible for forgiveness under
4https://www.ed.gov/news/press-releases/department-education-announces-actions-fix-longstanding-
failures-student-loan-programs.

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IDR plans. Id. About 3.6 million borrowers would receive at least three years of additional
credit toward IDR forgiveness. Id.
In July 2023, the Department of Education also announced that it would provide “$39
billion in debt relief for [] 804,000 borrowers” who “have accumulated the equivalent of either
20 or 25 years of qualifying months.” Press Release, U.S. Dep’t of Educ., Biden-Harris
Administration to Provide 804,000 Borrowers with $39 Billion in Automatic Loan Forgiveness
as a Result of Fixes to Income Driven Repayment Plans (July 14, 2023).5 The Department of
Education explained that this relief is part of the previously announced adjustment. Id. Eligible
borrowers were to receive notifications that they were entitled to forgiveness. Id. Borrowers
who wished to opt out of the discharge could do so by contacting their loan servicer. Id.
B.
Plaintiffs are nonprofit, tax-exempt organizations that are qualified public service
employers under the PSLF program. They “have previously employed, and currently employ,
borrowers who participate, may become eligible to participate, or have previously participated in
the statutory PSLF program” and “expect to recruit other such employees in the future.” R. 1,
PageID 11.
In August 2023, Plaintiffs filed suit against Miguel Cardona, Secretary of the Department
of Education; Richard Cordray, Chief Operating Officer of Federal Student Aid at the
Department of Education; and the Department of Education. Although the Department of
Education’s adjustment has several aspects, Plaintiffs challenge only the part that would count
the months or years spent in long-term forbearance as payments toward forgiveness, claiming
that the action would keep them from realizing “the full statutory benefit to which they are
entitled under PSLF” and make it more difficult for them to recruit and retain employees. Id. at
13. Plaintiffs’ complaint includes four counts. First, Plaintiffs allege that the adjustment violates
the Appropriations Clause of Article I of the U.S. Constitution. Second, they allege that
Defendants exceeded their authority and violated the Administrative Procedures Act (“APA”) by
5https://www.ed.gov/news/press-releases/biden-harris-administration-provide-804000-borrowers-39-billion
-automatic-loan-forgiveness-result-fixes-income-driven-repayment-plans.

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crediting borrowers’ periods of forbearance toward forgiveness under the IDR or PSLF
programs. Third, Plaintiffs allege that the adjustment was arbitrary and capricious and therefore
violates the APA. Fourth, Plaintiffs allege that Defendants violated the APA when they enacted
the adjustment via press release rather than through notice-and-comment rulemaking.
Shortly after filing their complaint, Plaintiffs filed an ex parte motion for a temporary
restraining order and preliminary injunction, seeking to prevent the Department of Education
from discharging any debt through the long-term forbearance aspect of the adjustment. Before
Defendants could respond, however, the district court dismissed Plaintiffs’ complaint sua sponte
without prejudice, finding that Plaintiffs lacked standing, and denied their motion for injunctive
relief as moot. Plaintiffs now appeal, challenging the district court’s standing determination.
II.
The U.S. Constitution limits federal courts’ jurisdiction to deciding “Cases” and
“Controversies.” U.S. Const. art. III, § 2. These words do not cover every “challenge to
government action dressed up in a complaint with an official-looking caption.” Ass’n of Am.
Physicians & Surgeons v. U.S. FDA, 13 F.4th 531, 536 (6th Cir. 2021). Instead, to bring a case,
a plaintiff must have standing. TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). That is,
“the plaintiff must have a personal stake in the case.” Id. (internal quotation marks omitted).
“This is the threshold question in every federal case.” Warth v. Seldin, 422 U.S. 490, 498
(1975). To establish Article III standing, a plaintiff must have (1) suffered an injury in fact,
(2) that the defendant caused, and (3) that the court can redress with a decision in the plaintiff’s
favor. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
The burden of demonstrating standing falls on Plaintiffs. Id. And they must establish
standing “in the same way as any other matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the successive stages of the litigation.”
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). As the district court dismissed this case at
the pleading stage, Plaintiffs needed to “‘clearly . . . allege facts demonstrating’ standing.”
Spokeo, 578 U.S. at 338 (alteration in original) (quoting Warth, 422 U.S. at 518). A federal court

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must dismiss any case if the plaintiff fails to show standing. Binno v. Am. Bar Ass’n, 826 F.3d
338, 344 (6th Cir. 2016) (citation omitted).
We review a district court’s determination of Article III standing de novo. Id. In
determining whether Plaintiffs have established standing, we consider their complaint and any
documents attached to the complaint. Id. And we accept the complaint’s factual allegations as
true and construe the complaint in Plaintiffs’ favor. Id. But we need not accept the complaint’s
legal conclusions as true. Bearden v. Ballad Health, 967 F.3d 513, 517 (6th Cir. 2020) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
This case turns on whether Plaintiffs have clearly alleged facts showing that they suffered
an injury in fact due to the Department of Education’s account adjustment for student-loan
borrowers.
III.
To establish an injury in fact, Plaintiffs must show that they suffered harm “that is
concrete, particularized, and actual or imminent.” TransUnion, 594 U.S. at 423 (citation
omitted). A “concrete” injury “must actually exist.” Spokeo, 578 U.S. at 340. It must be “real,
and not abstract.” Id. (internal quotation marks omitted). A “particularized” injury “affect[s] the
plaintiff in a personal and individual way.” Id. at 339 (quoting Lujan, 504 U.S. at 560 n.1). An
injury is “imminent” if it “is certainly impending, or there is a substantial risk that the harm will
occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (internal quotation marks
omitted).
A party faces an uphill battle in establishing standing if it “is not [it]self the object of the
government action or inaction” at issue. Lujan, 504 U.S. at 562. In such a scenario, whether an
element of standing exists “depends on the unfettered choices made by independent actors not
before the courts and whose exercise of broad and legitimate discretion the courts cannot
presume either to control or to predict[.]” Id. (quotation omitted). As such, a party generally
lacks standing to challenge the government’s provision of benefits to a third party. See
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342–46 (2006) (discussing lack of standing in the
state taxpayer context).

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Plaintiffs claim they can show injury in fact under theories of competitor standing and
deprivation of a procedural right. We discuss each argument in turn.
A.
Government action that creates increased competition can cause economic injury. That is
the “basic law of economics.” New World Radio, Inc. v. FCC, 294 F.3d 164, 172 (D.C. Cir.
2002) (quotation omitted). Thus, courts allow parties to rely on competitor standing to satisfy
the injury-in-fact prong of the standing analysis. Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir.
2010). Specifically, the doctrine of competitor standing “recognizes that plaintiffs suffer an
economic injury ‘when agencies lift regulatory restrictions on their competitors or otherwise
allow increased competition against them.’” Block Commc’ns, Inc. v. FCC, 808 F. App’x 332,
336 (6th Cir. 2020) (quoting Sorenson Commc’ns, LLC v. FCC, 897 F.3d 214, 226 (D.C. Cir.
2018)); see also Air Excursions LLC v. Yellen, 66 F.4th 272, 279 (D.C. Cir. 2023). The
doctrine’s premise is “that one direct competitor’s gain of market share is another’s loss.”
Castro v. Scanlan, 86 F.4th 947, 954 (1st Cir. 2023).
A party invoking competitor standing does not have to wait for the harm to materialize.
See El Paso Nat. Gas Co. v. FERC, 50 F.3d 23, 27 (D.C. Cir. 1995). But such harm must be
“imminent.” Adams v. Watson, 10 F.3d 915, 921 (1st Cir. 1993).
Competitor standing “supplies the link between increased competition and tangible injury
but does not, by itself, supply the link between the challenged conduct and increased
competition.” Air Excursions, 66 F.4th at 281. “The latter must be apparent from the nature of
the challenged action itself . . . or from the well-pleaded allegations of the plaintiff’s
complaint[.]” Id. (internal citation omitted).
We have identified two considerations for allowing competitor standing to establish an
injury in fact. “First, when the government enters the market by chartering specially favored or
subsidized market actors, any limit on the activity of such institutions may arguably have, as an
implicit purpose, the goal of not distorting the market more than necessary.” Dismas Charities,
Inc. v. U.S. Dep’t of Just., 401 F.3d 666, 676–77 (6th Cir. 2005). And second, “the absence of

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competitor standing may render some agency action effectively immune from judicial review.”
Id. at 677.
Plaintiffs contend that the Department of Education’s student-loan adjustment increased
competition between them—public service employers—and private employers. So they must
show that the adjustment “results in ‘an actual or imminent increase in competition, which
increase . . . will almost certainly cause an injury in fact’ to any competitor in the relevant
market.” Air Excursions, 66 F.4th at 279–80 (quoting Sherley, 610 F.3d at 73). We can presume
increased competition if one of the following circumstances exists: (1) the government’s actions
allowed new persons or entities to enter a “fixed regulated market”; (2) the government created
“price competition” by lifting “price controls” on competitors; or (3) the government reimburses
a “competitor for selling its product or service at discounted rates.” Id. at 280 (citations and
quotation marks omitted). If the plaintiff cannot show one of those circumstances, its complaint
must establish that the government’s action increased competition in the relevant market.
Plaintiffs arguably attempt to rely on circumstance (2). But it is not at all apparent that
the adjustment lifted price controls on private employers, considering the adjustment benefits
third parties—student-loan borrowers—who are not in competition with public service or private
employers. Student-loan borrowers can also reject the adjustment and can otherwise decline the
discharge of their student-loan debt. Typically, an increase in competition is obvious because the
action directly impacts a competitor and does not necessarily “depend[] on the independent
actions of third parties[.]” New World Radio, 294 F.3d at 172. That is not the case here. So we
turn to Plaintiffs’ complaint to see if it makes the case for competitor standing.
But the complaint stumbles out of the gate. Plaintiffs failed to allege “specific, concrete
facts” to show that the adjustment has caused or will cause them competitive injury. Turaani v.
Wray, 988 F.3d 313, 318 (6th Cir. 2021) (quoting Warth, 422 U.S. at 508). Instead, the
complaint includes numerous legal conclusions masquerading as facts. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (explaining that a complaint “requires more than labels and
conclusions” for a plaintiff to show an entitlement to relief). Beyond that, Plaintiffs claim that
they suffered a concrete economic injury when the Department of Education authorized the
adjustment because it allegedly reduced Plaintiffs’ competitive benefits, namely “the financial

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incentive for student-loan debtors to seek and remain in jobs with public service employers, at
any given wage[.]” D. 11 at pp.15–16. According to Plaintiffs, “creating that deliberate
advantage is the main point of the program.” R. 1, PageID 12. The adjustment thus
disadvantages Plaintiffs in the market “to recruit and retain these [college-educated] borrowers as
employees.” R. 1-1, PageID 24.
Yet Plaintiffs’ complaint does not explain how the adjustment reduces the financial
incentive for borrowers to remain in public service jobs. Instead, the complaint makes broad,
conclusory assertions like “[u]nlawful cancellation of student-loan debt reduces the amount of a
borrower’s PSLF-cancellable debt and thus reduces the amount by which PSLF benefits
qualified employment”; “[b]y counting non-payments during periods of forbearance . . . the
Department shortens by 36 months the period affected PSLF debtors otherwise must work for a
public service employer in order to have their loans forgiven”; and “[b]ut for the One-Time
Account Adjustment, these 40,000 borrowers would have a strong financial incentive under
PSLF to seek and maintain employment with public service employers like Plaintiffs for the
entire 10-year statutory PSLF term.” R. 1, PageID 12–13.
Plaintiffs have not alleged any facts showing how the adjustment affects their ability to
“recruit and retain college-educated employees.” Id. at 13. They have not identified any current
employee that has received credit under the adjustment, nor do they claim that they expect to
imminently hire any employee who has received such credit. Furthermore, they have not alleged
that any employees have stopped working for them (or stated an intention to do so) based on the
adjustment. And they have not identified their competitors beyond saying private employers that
hire college-educated workers. As such, they have failed to sufficiently plead that they have
suffered an injury in fact.
Plaintiffs’ counterarguments do not persuade us otherwise.
1.
Plaintiffs rely on Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319 (Fed.
Cir. 2008), and Southwest Pennsylvania Growth Alliance v. Browner, 144 F.3d 984 (6th Cir.
1998), to argue that they are not required “to link the Adjustment to specific tangible loss, such

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as the effect on a specific current or prospective employee.” D. 11 at pp.13–15. But these cases
do not help Plaintiffs.
Canadian Lumber involved Congress’s amendment to the North American Free Trade
Agreement that allowed “antidumping and countervailing duties assessed on imported goods” to
be distributed to “affected domestic producers for qualifying expenditures” instead of depositing
that money with the U.S. Treasury. 517 F.3d at 1324 (quotation omitted). This seemingly gave
domestic producers a competitive advantage over their foreign counterparts. The Federal Circuit
affirmed the Court of International Trade’s finding that the Canadian Wheat Board had suffered
“an economic injury” caused by U.S. Customs and Border Protection’s “distribution of money to
the North Dakota Wheat Commission” under the law at issue. Id. at 1334. This was so because
the government gave money “to an entity that aim[ed] to take away market share from Canadian
wheat.” Id. “[E]conomic logic” supported this conclusion. Id. at 1333.
This case differs from Canadian Lumber. For one thing, Plaintiffs have not established
the markets in which they or their competitors operate. As such, they have failed to plead facts
showing that the adjustment financially benefits certain private employers, or private employers
in general. The financial benefit goes to the student-loan borrowers. Also, assuming we do not
require facts regarding the adjustment’s impact on specific employees or a specific tangible loss,
Plaintiffs have not provided sufficient facts that allow us to infer—by economic logic—that they
would more likely sustain injury from the adjustment.
In Sw. Pa. Growth Alliance, we held that an association representing Pennsylvania
manufacturers had standing to sue following the Environmental Protection Agency’s designation
of an area in Ohio as attainment, which lifted certain restrictions for the area and put
Pennsylvania manufacturers at an economic disadvantage compared to Ohio businesses.
144 F.3d at 988. We did not require a showing of tangible loss as to any specific business entity,
but such a showing was unnecessary because the EPA conceded that whether an area was
attainment or non-attainment would drive restrictions on businesses in those areas. Id. This
sufficed to show an economic disadvantage and establish injury in fact. Id.; see Block
Commc’ns, 808 F. App’x at 336 (recognizing that an economic injury occurs when “agencies lift

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regulatory restrictions” on a plaintiff’s competitors (quotation omitted)). Defendants have made
no such concession in this case.
But that does not stop Plaintiffs from relying on Sw. Pa. Growth Alliance. Indeed, they
claim that, like the Pennsylvania manufacturers in that case, they have shown competitor
standing because the adjustment puts them in a position of economic disadvantage relative to
private employers. Plaintiffs’ reliance on Sw. Pa. Growth Alliance is misplaced for two reasons.
First, unlike Sw. Pa. Growth Alliance, Plaintiffs do not claim that the adjustment will cause an
economic disadvantage by lifting restrictions on private employers. Nor can they because the
adjustment has nothing to do with restrictions on private employers. Second, Plaintiffs claim
that private employers’ recruitment and retention efforts will flourish thanks to the adjustment,
which means increased competition in the market to hire college-educated employees. But the
mere fact that Plaintiffs’ competitors may benefit from the adjustment is insufficient to establish
competitor standing. See Already, LLC v. Nike, Inc., 568 U.S. 85, 99 (2013) (“[S]tanding [must
be] based on an injury more particularized and more concrete than the mere assertion that
something unlawful benefited the plaintiff’s competitor.” (citations omitted)); see also Air
Excursions, 66 F.4th at 280 (“[A]n agency action does not confer competitor standing if it
merely creates a skewed playing field, by, for example, providing a windfall to a competitor.”
(internal quotation marks and citations omitted)).
Even if that were enough, Plaintiffs’ failure to plead sufficient facts prevents us from
determining their competitors. Neither the complaint nor its attached declarations answer this
question. And when pressed at oral argument, Plaintiffs referenced only a nationwide market for
college-educated employees and referred us to their respective webpages, which list their
supported nationwide professions.
Plaintiffs only speculate how and why their unidentified competitors might benefit from
the adjustment. If we recognized Plaintiffs’ purported economic disadvantage concept, we
would create a “boundless theory of standing.” Already, 568 U.S. at 99. That we cannot do.
Economic disadvantage alone is not enough, id., nor is speculation. See Block Commc’ns, 808 F.
App’x at 337 (rejecting competitor standing where the potential injuries were “speculative and
unsupported by specific facts”). In Canadian Lumber, the court “presumed . . . that a boon to

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some market participants is a detriment to their competitors,” 517 F.3d at 1334, but Plaintiffs
have not alleged sufficient facts to allow us to make the same presumption. Plaintiffs blame
their inability to provide specific information on the fact that “employers are not typically
involved in the PSLF loan-forgiveness process until an employee completes his or her 120-
month payment-and-service requirement and seeks certification from current and former
employers.” D. 11 at p.13 n.6. Regardless, Plaintiffs must provide some facts (e.g., how many
employees have been involved in the PSLF loan-forgiveness process) to support their argument
that they “almost certainly” would be injured because of the adjustment. Instead, Plaintiffs state
that the adjustment will impact their ability to recruit and retain employees without supplying
any explanatory facts. And without such facts, Plaintiffs have failed to “nudge[] their
[competitor standing] claim[] across the line from conceivable to plausible.” Twombly, 550 U.S.
at 570.
2.
Plaintiffs’ argument that the adjustment injures them by reducing their expected benefits
under the PSLF program does not save their claims. First, Plaintiffs argue that the adjustment
“unlawfully abridges PSLF’s statutory 10-year payment requirement” by counting periods of
long-term forbearance toward a borrower’s total monthly payments, allegedly requiring only
seven years of public service employment instead of ten years. D. 11 at p.18. But Plaintiffs’
view of how the adjustment works is just plain wrong. Student-loan debtors must still make 120
payments, all of which must come during a period of public service employment. See, e.g.,
Public Service Loan Forgiveness (PSLF), Fed. Student Aid6 (“Because you have to make 120
qualifying monthly payments, it will take at least 10 years before you can qualify for PSLF.”);
Public Service Loan Forgiveness FAQ, Fed. Student Aid7 (“[Borrowers] must make payments to
cover 120 separate monthly obligations.”). Plaintiffs’ inaccurate legal assertions regarding the
time required to achieve forgiveness under PSLF cannot show injury in fact.
6https://studentaid.gov/manage-loans/forgiveness-cancellation/public-service (last visited Apr. 10, 2024).
7https://studentaid.gov/manage-loans/forgiveness-cancellation/public-service/questions#qualifying-
payments (last visited Apr. 10, 2024).

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Second, Plaintiffs claim that the adjustment “takes individuals out of the pool of
borrowers whom PSLF incentivizes to work for public service employers,” thereby affecting
Plaintiffs’ ability to recruit and retain college-educated employees and “undermin[ing] the
statutory competitive advantage Congress conferred on [them].” D. 11 at p.19. Plaintiffs have
not pointed to any employees who have left, nor have they alleged that they have been unable to
fill vacancies due to a reduction in the pool of student-loan borrowers. Moreover, assuming a
reduction in the pool of borrowers did affect Plaintiffs’ ability to fill vacancies, several factors
beyond the adjustment could have a similar impact. For example, an employee may choose to
work for a different public service employer to satisfy part of their 120-month obligation for any
number of reasons unrelated to the adjustment, such as pay, location, work-life balance, or any
combination of factors. Without factual allegations concerning how many of Plaintiffs’
employees will be impacted by the adjustment and how many individuals may make
employment decisions based on the adjustment, Plaintiffs have not established an injury in fact.
See Air Excursions, 66 F.4th at 279–80.
Third, Plaintiffs claim the adjustment “reduces the incentives provided by PSLF by
making IDR forgiveness relatively more attractive by comparison.” D. 11 at p.19. This
argument is unconvincing and illogical. Plaintiffs have not alleged that any of their employees
have stopped seeking PSLF forgiveness because of the adjustment. And without supporting
facts, the claim is pure conjecture, not enough to show a competitive injury. Cf. Summers v.
Earth Island Inst., 555 U.S. 488, 496 (2009) (rejecting standing theory based on conjecture).
Without the adjustment, it takes 10 years to have debt cancelled under the PSLF program, and 20
to 25 years under IDR plans. See 20 U.S.C. § 1087e(m)(1); 34 C.F.R. §§ 685.209(a)–(c),
685.221. According to Plaintiffs, by shortening the IDR period to 17 to 22 years and the PSLF
period to 7 years, borrowers will not want to seek PSLF forgiveness. Even if the adjustment
operated this way (it does not), a borrower could have their debt cancelled faster under the PSLF
program than IDR plans with or without the adjustment. So, if an employee seeks speediness in
ridding herself of student-loan debt, the PSLF program is probably the way to go, with or
without the adjustment.

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At bottom, how the adjustment impacts Plaintiffs is up to individuals who are not parties
to this lawsuit. Plaintiffs have not pointed to any case holding that competitor standing exists to
challenge the government’s provision of benefits to third parties. Further, “most competitor
standing cases depend on [] core economic postulates,” Adams, 10 F.3d at 923 (quotation
omitted), and Plaintiffs’ allegations regarding supply and demand and the impact of financial
incentives on third-party student-loan debtors are wholly speculative. Cf. DaimlerChrysler
Corp., 547 U.S. at 344 (holding that plaintiffs did not have standing because their injury was
“‘conjectural or hypothetical’ in that it depend[ed] on how legislators respond[ed] to a reduction
in revenue” (quotation omitted)). Therefore, Plaintiffs have not “suppl[ied] the link between the
challenged conduct and increased competition,” Air Excursions, 66 F.4th at 281, and they cannot
establish an injury in fact through competitor standing.
3.
Plaintiffs also argue that the district court erred by dismissing the case without giving
Plaintiffs an opportunity to amend their complaint. But because Plaintiffs failed to raise that
argument in their opening brief, it is forfeited. Scott v. First S. Nat’l Bank, 936 F.3d 509, 522
(6th Cir. 2019).
B.
Plaintiffs have also failed to demonstrate Article III standing based on the alleged
deprivation of their procedural right to participate in notice-and-comment rulemaking under the
APA. Plaintiffs assert that Defendants did not comply with the APA when they adopted the
adjustment by press release instead of through notice-and-comment rulemaking.
The injury-in-fact prong of the standing analysis determines this issue as well. Under our
precedent, “merely stating a procedural injury is not enough.” Rice v. Vill. of Jonestown, 30
F.4th 584, 591 (6th Cir. 2022). Some aspects of the standing inquiry are relaxed in cases
involving procedural injury, see id. at 592, but a litigant still must demonstrate “that it has a
concrete interest that is affected by the deprivation of the claimed right,” Dep’t of Educ. v.
Brown, 600 U.S. 551, 562 (2023) (internal quotation marks omitted). “The deprivation of a
procedural right without some concrete interest that is affected by the deprivation—a procedural

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right in vacuo—is insufficient to create Article III standing.” Id. (internal quotation marks
omitted). Plaintiffs must show that “the procedures in question were ‘designed to protect some
threatened concrete interest of [theirs] that is the ultimate basis of [their] standing.’” Rice, 30
F.4th at 591 (quoting Lujan, 504 U.S. at 573 n.8).
Plaintiffs claim the PSLF program gave them competitive advantages and they have a
“concrete interest in retaining those advantages.” D. 11 at p.25. Plaintiffs ask us to analyze this
case like an environmental standing case because such cases often involve procedural injury. As
Plaintiffs see it, just as an individual in an environmental standing case may show a concrete
interest by asserting “an aesthetic or recreational interest in a particular place, or animal, or plant
species” and a credible threat of harm to that interest, Plaintiffs can show a concrete interest by
“alleging an economic interest in recruiting a particular species of worker—here PSLF-eligible
borrowers—and that Defendants’ conduct impaired such interest.” Id. at 27. Under this
approach, Plaintiffs contend that neither “[a]bsolute certainty” nor specificity is required; the
injury may be identified as an increased risk of harm stemming from the agency action. Id.
Again, we look to the complaint, and it does not explain how Defendants’ failure to
engage in notice-and-comment rulemaking impaired Plaintiffs’ purported interest in hiring
PSLF-eligible borrowers. See Lujan, 504 U.S. at 573 n.8 (rejecting the idea that “the
Government’s violation of a certain (undescribed) class of procedural duty satisfies the concrete-
injury requirement by itself, without any showing that the procedural violation endangers a
concrete interest of the plaintiff (apart from his interest in having the procedure observed)”). It is
far too speculative for Plaintiffs to say—without any supporting facts—that they have been
injured because the Department of Education did not engage in notice-and-comment rulemaking.
And mere speculation simply will not do.
Plaintiffs’ reliance on an out-of-circuit district court opinion does not change the result.
Plaintiffs claim that the court in American Bar Association v. U.S. Department of Education,
370 F. Supp. 3d 1 (D.D.C. 2019) (ABA), “found interest to challenge agency action that deprived
a single public service employer of all PSLF benefits.” D. 11 at p.30. First, the ABA court did
not address standing. ABA, 370 F. Supp. 3d at 18–19. Second, the circumstances of that case
were different. The plaintiffs were the ABA and law school graduates enrolled in the PSLF

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program and employed by public service employers. Id. at 10. The district court determined that
the ABA was injured when it was eliminated as a qualifying public service employer, and the
individual plaintiffs were injured when their employers’ PSLF status was removed. See id. at
14–17. The interests in that case were different than the ones here—the ABA and individual
plaintiffs were unable to benefit from the PSLF at all, whereas Plaintiffs here continue to receive
the benefits of their status as PSLF-qualified employers and have not shown that any of their
employees have been deprived of PSLF’s benefits. Therefore, Plaintiffs have not shown that
Defendants’ failure to use notice-and-comment rulemaking for the adjustment affected any
concrete interest. For these reasons, they cannot establish an injury in fact on procedural
grounds.
* * *
Because Plaintiffs failed to show that they suffered an injury in fact for any of the claims
they asserted, the district court lacked subject-matter jurisdiction to adjudicate their claims. See
Lujan, 504 U.S. at 560.
IV.
For the foregoing reasons, we AFFIRM the district court’s judgment.

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