Case 1:23-cv-00711 Document 1 Filed 03/16/23 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

Functional Government Initiative

Plaintiff,
v.

United States Department of Education

Defendant.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. §

552, the Declaratory Judgment Act, and 28 U.S.C. §§ 2201 and 2202, for injunctive, declaratory,

and other appropriate relief. Plaintiff Functional Government Initiative (“FGI”) challenges the

failure of the United States Department of Education (“ED”) to disclose to FGI records that

generally pertain to student loan forgiveness or the extension of the moratorium on loan

repayments through the end of December 2022. The specific records sought are detailed below.

2. This case seeks declaratory relief that ED is in violation of FOIA, 5 U.S.C. §

552(a)(6)(E), ED’s regulations, and 28 C.F.R. § 16.5(e), and for injunctive relief ordering ED to

immediately process and release to FGI the requested records in their entirety.

Jurisdiction and Venue

3. This Court has both subject matter jurisdiction over this action and personal

jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(c)(i). This Court
 Case 1:23-cv-00711 Document 1 Filed 03/16/23 Page 2 of 7

also has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 2201(a), and 2202. Venue

lies in this district under 5 U.S.C. § 552(a)(4)(B).

Parties

4. Plaintiff FGI is an unincorporated association of individuals dedicated to

improving the American public’s access to information about the officials, decisions, actions,

and priorities of their government. See D.C. Code § 29-1102(5).

5. Defendant ED is a Cabinet-level department of the United States government

responsible for establishing policies on federal financial aid for education, and distributing and

monitoring those funds, collecting data on America’s schools and disseminating research,

focusing national attention on key educational issues, and prohibiting discrimination and

ensuring equal access to education. ED has possession and control of the requested records and

is responsible for fulfilling FGI’s FOIA request.

Statutory and Regulatory Background

6. FOIA requires agencies of the federal government to release requested records to

the public unless one or more specific statutory exemptions apply.

7. An agency must notify a party making a FOIA request within 20 working days of

the agency’s determination and the reasons therefor and of the requester’s right to appeal the

determination to the agency head. 5 U.S.C. § 552(a)(6)(A)(i).

Factual Background

8. The forgiveness of student loans, without any legislation approving or directing

the forgiveness of those loans, is the subject of considerable legal debate, along with ethical and

moral concerns.

2
 Case 1:23-cv-00711 Document 1 Filed 03/16/23 Page 3 of 7

9. Loan “forgiveness” by the Federal Government does not “eliminate” the loan;

rather, it merely shifts the obligation to repay the borrowers to the Federal Government, funded

by the taxpaying public.

10. Legally, the Administration’s decision to forgive certain student loans or portions

thereof is subject to a challenge that the Administration did not have congressional authorization

to implement the program. See https://apnews.com/article/student-loan-forgiveness-supreme-

court-case-explained-8c62622e87c4ebff995f971263d932fc (accessed Mar. 10, 2023).

11. The program is also subject to criticism that it transfers the obligations of people

who incurred student loan debts to taxpayers whose debts—whether education-related or not—

were not “forgiven.” See https://www.cnn.com/2022/08/26/opinions/biden-student-loan-

forgiveness-unfair-dent/index.html (accessed Mar. 10, 2023).

12. Those legal and moral concerns would be heightened by any records

demonstrating that, for example, the program and the decision to forgive the loans was motivated

by political concerns as opposed to an effort to faithfully execute the laws passed by Congress.

13. In an effort to gain an understanding of the Administration’s basis for its decision

to implement the student loan forgiveness program, and to share that information with the

taxpaying public, the FOIA request at issue seeks records relating to whether the

Administration’s program was motivated by opinion polls, the timing of the midterm election,

and records regarding the Administration’s purported legal authority for implementing the

program.

3
 Case 1:23-cv-00711 Document 1 Filed 03/16/23 Page 4 of 7

22-03507-F

14. On August 25, 2022, FGI sent the subject FOIA request1 to ED’s FOIA Service

Center seeking all records and communications regarding student loan forgiveness or the

extension of the moratorium on loan repayments through the end of December 2022. FGI

included certain key words to assist in the search for responsive records, as well as the names of

certain ED officials and staff they were requesting be subject to these searches. See id.

15. The subject FOIA request stated that it requested information from June 20, 2022,

to the date ED began its search. Id.

16. FGI also sought a waiver of fees associated with processing its request and

explained in its request that the requested records would be of primary benefit to the public

interest and because the requested records contribute to the public’s understanding of the

operations or activities of the government. Id.

17. On August 26, 2022, FGI received a response via email from the ED FOIA

Manager that its FOIA request had been received, was assigned tracking number 22-03507-F,

and was in “In Process” status.2

18. On September 14, 2022, FGI received, via email, a letter from ED’s Service

Center stating the subject FOIA request had been received August 25, 2022, and that FGI’s

request for a waiver of all fees had been granted.3

19. On September 23, 2022, FGI received another letter from ED’s FOIA Service

Center stating it would not be able to respond to the subject FOIA request by the 20-day

1
Attached hereto as Exhibit 1.
2
Attached hereto as Exhibit 2.
3
Attached hereto as Exhibit 3.

4
 Case 1:23-cv-00711 Document 1 Filed 03/16/23 Page 5 of 7

statutory requirement due to the scope of the request requiring ED to “conduct a vast search

across multiple program offices, which we anticipate will result in a large amount of responsive

records.”4 That letter did not indicate any anticipated date a response or documents would be

provided to FGI. Id.

20. On November 4, 2022, FGI asked, via email, whether the search for responsive

documents had begun, and for an estimated date it could expect to receive responsive

documents.5

21. On November 7, 2022, FGI received an email response6 simply stating that 22-

03507-F was “In Process” and that the search for responsive records was still being conducted,

and provided a “Check Status” link to view the status of 22-03507-F.

22. FGI responded that the “Check Status” link provided only re-stated that 22-

03507-F was still “in process.” See id.

23. Having received no further communication or documents for nearly four months,

on February 28, 2023, FGI asked whether the search had progressed and when FGI could expect

to receive a response. FGI also noted that the “Check Status” link page still noted the vague “in

process” status, the same since August 26, 2022, as noted above. See id.

24. As of the filing date of this Complaint, FGI has received no documents or further

response from ED regarding 22-03507-F.

25. It is apparent that, without litigation, ED will not produce the requested

documents in a timeframe that allows for timely public disclosure regarding ED’s actions.

4
Attached hereto as Exhibit 4.
5
Attached hereto as Exhibit 5 (personal telephone number redacted).
6
Attached hereto as Exhibit 6 (personal telephone number redacted).

5
 Case 1:23-cv-00711 Document 1 Filed 03/16/23 Page 6 of 7

Accordingly, FGI has now exhausted all applicable administrative remedies with respect to 22-

03507-F.

PLAINTIFF’S CLAIM FOR RELIEF

CLAIM ONE
(Wrongful Withholding of Non-Exempt Records
In Violation of FOIA by ED, 5 U.S.C. § 552)

26. FGI repeats and re-alleges paragraphs 1-25.

27. FGI properly requested records within the custody and control of ED and/or its

subsidiary offices.

28. ED failed to comply with the statutory time limits for making a determination on

the FOIA request, and by withholding from disclosure records responsive to FGI’s FOIA request

to ED.

29. FGI is therefore entitled to injunctive and declaratory relief with respect to the

immediate processing and disclosure of the requested records.

Requested Relief

WHEREFORE, FGI respectfully requests that this Court:

(1) Order defendant ED to immediately and fully process Plaintiff FGI’s August 25, 2022

FOIA request (22-03507-F) and disclose all non-exempt documents immediately to

FGI;

(2) Issue a declaration that FGI is entitled to both immediate processing and disclosure of

the requested records and indexes justifying the withholding of all or any portion of

responsive records under claim of exemption;

(3) Retain jurisdiction of this action to ensure no agency records are wrongfully withheld;

and

6
 Case 1:23-cv-00711 Document 1 Filed 03/16/23 Page 7 of 7

(4) Grant such other relief as this Court may deem just and proper.

Counsel for FGI further requests that the Court award reasonable attorneys’ fees and

other litigation costs incurred in this action pursuant to 5 U.S.C. § 552(a)(4)(E).

Dated: March 16, 2023 Respectfully submitted,

/s/ Paul M. Bartkowski

Counsel for Functional Government Initiative