There are a couple possible ways to evaluate agency decisions.
You seem to care about my opinion about the right outcome. I care about sharing my opinion about the right way to evaluate the decision. That should be the important thing, not my personal view of what is the best way for people to act.
If you think that agencies are reading the same law as everyone else, and that an evaluation should start and end with the written law, I have one answer.
If you think an agency is entitled to a certain leeway – that reasonable people might reach a couple of different decisions based on the law, and that as long as an agency reaches one that isn’t arbitrary or capricious, there’s a different answer.
But if you only care about what I would want to see happen in a magical world of puppies and hugs – why? Why ask? Why care what I prefer? What possible relevance is it?
If that’s what I’d wanted to say, I would’ve said it. Please don’t try to tell me what I care about.
Either tell us the case law, or tell us your opinion, or say nothing. This whole thing where you try to trap people in an inconsistency in order to score points does nothing to advance the discussion.
I know this is just reaching the lower courts and perhaps it may still get derailed, settled, reversed, etc… in the meantime.
Given that, is this an example of a possibly detrimental agency decision that could be upheld under a Chevron analysis but not without Chevron?
Meanwhile… I have known people who have relied on this form of loan forgiveness. I am not sure if this is the only such program, but my sister is relying on such a promise of loan forgiveness. I know she has made HUGE life decisions based upon that promise. But she is working for a state governmental agency.
[Foghorn Leghorn]That’s a joke, I say that’s a joke son. (That boy’s about as sharp as a bowling ball.)[/Foghorn Leghorn]
What is more “funny”, in a non-humorous sort of way, is that taking the joke as if it was a serious comment is the only part of my post that you actually responded to.
The straightforward question to you that remains unanswered I can repeat:
Accepting that applicants were directed to this delegated agency for determinations regarding their qualifications for this program and that there was no notice given that such determinations were provisional, tentative, and at most advisory, would a reasonable applicant assume that the designated delegated agency had the authority to make such a determination?
I will extend that question. If such are the facts and is what a reasonable applicant would assume then: are the courts likely to rule in favor of the applicants or the DOE; and independent of how we believe the courts will rule, what is ethically appropriate (even if you feel that ethics are a magical world of puppies and hugs)?
Case law under Chevron agency deference: in my opinion, the DoE gets to determine what jobs qualify per 34 CFR § 685.219, and the DoE gets to determine that the applicants were not entitled to rely on a third party FedLoan Servicing’s determination about eligibility under either the CFR or 20 USC § 1087e(m).
Case under a de novo review: in my opinion, the DoE’s interpretation is not correct (although I admit they could provide some additional facts that might serve to buttress their reasons for concluding that the various organizations don’t qualify, but, seriously, the A.B.A.'s Standing Committee on Legal Aid and Indigent Defendants is not public interest law?)
In either case, the people who relied on FedLoan might have sort of promissory estoppel or estoppel by reliance claim notwithstanding the eligibility determination.
Probably; I suggested above there might be some estoppel by reliance claim that’s viable even if the agency’s underlying eligibility determination is upheld.
I think there’s some fact-finding to be fleshed out before I’ll predict how courts will rule, but certainly the agency has lost the “sympathetic defendant” card.
Ethically, in my opinion, the agency misled people through incompetence and should now credit them with the time they have spent, plus a reasonable additional time to secure a qualifying job.
But why do you care about that second paragraph? Seriously? My view on ethics is solicited, in my opinion, when it will support an argument and never when the questioner is sure it will work against him. But it’s meaningless, unless you install me as Lord Protector of the Realm of the United States. Care about what the law is, not what happens in my imagination.
Yeah, of course it was. Don’t know how I thought otherwise. Must be humor-impaired.
I thoughr the comment about Trump’s lessons sinking in was a joke but that you were serious in believing this travesty was a result of the Betsy DeVos Department of Education, as opposed to the John King Department of Education.
Interestingly enough sometimes in GD we have discussion that are not exclusively based on what the law says but on what is ethical and sometimes about how the two differ. Some of us even had to look up what “estoppel” means.
It is possible, and sometimes even advantageous, to explore an issue through both lenses. Sometimes an entity will do what is ethical even when legally they are under no obligation to do so.
I had earlier recalled the clawback of re-enlistment bonuses. There seemed little question that as a matter of law the Pentagon could do that. (Maybe there was an estoppel there too? I dunno.) Still DoD Sec. Ash Carter was quick to order the Pentagon to not do so as it was clearly not something they should do. Puppies and hugs in the real world. Who knew?
That doesn’t answer why you were so hell-bound to get my opinion, though.
Look, I think GD suffers greatly from an onslaught of IMHO-style argumentation, and nowhere is it more evident than in these exchanges that morph from what the law IS to what the law SHOULD BE if only the rhetor’s personal codes of ethics and morality were enshrined into statute. People insist on positions they cannot possibly prove and devote huge swaths of time to back-and-forth arguments that ultimately amount to, “Well, you’re wrong.” (Or, not infrequently, “Well, you’re immoral/evil.”)
I prefer to leave my personal views at the doorstep, because they are given weight only when they accord with the prevailing view, and rejected summarily when they don’t. In short: trading morality arguments here becomes nothing more than a popular vote amongst thread participants.
I believe you too often understand the argument at the wrong level. Most of the time I’m not arguing as though I’m an attorney discussing what the law actually says; most of the time I’m arguing more like a legislator, discussing what the law should say.
Certainly arguments about what the law should say have little place in the courtroom. But they are the meat of the rotunda discussion; the only way the law gets written in the first place is through the discussion of what it should say, offering reasons in support of one’s opinion.
Perhaps if you viewed more discussions here as fake-legislators rather than fake-attorneys, you’d find yourself less frustrated.
That said, I appreciate your earlier post about Chevron vs. de novo review. That’s helpful information.
Honestly your coming into a thread that asked, explicitly, does this seem unfair to you, and do you think the government should have this right, with a dance around “I can’t answer that” struck me as such threadshitting that calling you out on it seemed the right thing to do.
Dude. You have serious legal knowledge chops. You could have easily stated a few "if-this-then-that"s and been part of a useful conversation. If you didn’t want to then just pass on the thread and do not participate. Even if you think discussions of ethics as well as law should be in IMHO rather than GD.
If you understood the op going straight to “the people who relied on FedLoan might have sort of promissory estoppel or estoppel by reliance claim” and maybe explaining it some to save us non-legal folks the effort of looking it up, would have been nice.
But no law required it so that’s just puppies and hugs!
Or as real voters and constituents, figuring what the law should say, in such a way to either inform their vote for legislators, or inform how they may instruct their currently elected legislators on how they would like them to legislate.
I agree, and Bricker, if you wanna keep playing (real) lawyer, that’s fine, 'cause I learn quite a bit from that, and ultimately, that’s why I end up spending time here, to learn things that I otherwise would not have. But I do think that you would find it more enjoyable if you participated in the “shoulds” occasionally.
