On December 1, 2022, the U.S. Supreme Court addressed an application by the Biden Administration to vacate an injunction entered by the Eighth Circuit Court of Appeals that currently prevents the administration from enacting its plan to forgive approximately $400 billion in federal student loans.  Justice Kavanagh—the designated Justice for certain emergency appeals from the Eighth Circuit—referred the Administration’s application to the full Court, which, on its own initiative, converted the application to a petition for writ of certiorari before judgment and granted the petition.  The Court specifically directed the court clerk to establish a briefing schedule that would permit argument in February 2023.

A further procedural question is whether the Biden Administration will seek, and whether the Court will grant, a similar application in connection with the ongoing appeal to the Fifth Circuit of a district court decision that stands as a separate bar to the loan-forgiveness program.  The Fifth Circuit recently denied the Administration’s request for a stay of the district court’s ruling, but did agree to hear the challenge on an expedited basis.  Because that suit was brought by different plaintiffs claiming standing on different grounds, the Court may or may not have an interest in consolidating these cases for argument and decision.