Nevertheless, the threatened harm here presents a compelling case for judicial review. Maintaining the status quo would cause Sallie Mae to forego an investment opportunity which has major implications for Sallie Mae's financial health. The securitization initiative would allow Sallie Mae to diversify sources of capital and, indeed, to identify new pools for investment. It would be manifestly unfair to hold Sallie Mae's transaction hostage to the Secretary's determination by precluding judicial review at this stage.
For the foregoing reasons -- and in view of guidance from this Circuit that on close questions of ripeness there is a "presumption of reviewability"
-- the Court holds that the controversy presented herein is ripe for judicial review.
B. DEFENDANT'S CLAIM THAT THE HEA BARS ISSUANCE OF DECLARATORY RELIEF
Defendant argues that the HEA expressly precludes the award of declaratory relief requested in this case. The HEA contains a limited waiver of sovereign immunity, allowing the Secretary to "sue and be sued" in connection with the FFEL Program, but prohibiting any "attachment, injunction, garnishment, or other similar process, mesne or final" to be issued against the Secretary. 20 U.S.C. § 1082(a)(2). Defendant claims that an adverse declaratory ruling in this action would have the effect of an injunction precluding the agency from acting on the opinion set forth in the letters from the General Counsel's Office, and hence is barred by the anti-injunction provision of the HEA.
There is substantial authority holding that anti-injunction clauses do not preclude consideration of requests for declaratory relief. See, e.g., Thomas v. Bennett, 856 F.2d 1165, 1167 (8th Cir. 1988) (the district court could properly consider plaintiff's claim for declaratory relief despite anti-injunction language of § 1082(a)(2) of the HEA); Pro Schools, Inc. v. Riley, 824 F. Supp. 1314, 1315-16 (E.D. Wis. 1993) (allowing plaintiff to file an amended complaint seeking declaratory relief for alleged violations of the HEA after claims for injunctive relief were dismissed). Plaintiff's challenge to the Secretary's interpretation is brought under the APA,
and courts have held that the anti-injunction clause of § 1082(a)(2) does not preclude relief for APA claims. See, e.g., Canterbury Career School, Inc. v. Riley, 833 F. Supp. 1097, 1102-03 (D.N.J. 1993); Int'l Dealers School, Inc. v. Riley, 840 F. Supp. 748, 749-50 (D. Nev. 1993).
Accordingly, the Court finds that the HEA does not preclude award of declaratory relief, should the facts warrant.
C. PLAINTIFF'S CLAIM THAT THE SECRETARY ACTED ARBITRARILY AND CAPRICIOUSLY IN INTERPRETING THE BUDGET ACT TO REQUIRE PAYMENT OF THE 30 BASIS POINT FEE ON SECURITIZED LOANS
Sallie Mae contends that the Department of Education acted arbitrarily and capriciously in advising Sallie Mae that the offset fee would apply to loans involved in its proposed securitization program.
Standard for Judicial Review of Agency Action
In reviewing an agency's interpretation of the laws it administers, this Court must first look to the plain language of the statute. Chevron, USA, Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 843, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Absent a clearly expressed legislative intent to the contrary, the plain language of the statute "must ordinarily be regarded as conclusive" Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). Agency action must be set aside if it is "arbitrary, capricious, or an abuse of discretion." Motor Vehicle Mfrs. Ass'n of U.S. v. EPA, 247 U.S. App. D.C. 268, 768 F.2d 385, 389 (D.C. Cir. 1985), cert. denied, 474 U.S. 1082, 106 S. Ct. 852, 88 L. Ed. 2d 892 (1986). If a statute is silent or ambiguous on a point, substantial deference must be given to the interpretation of that statute by the agency that is responsible for its implementation. The interpretation given by the agency need not be the only interpretation possible as long as it is a reasonable one. Chevron, 467 U.S. 837 at 842-45, 81 L. Ed. 2d 694, 104 S. Ct. 2778. A reviewing court should not defer to an agency position which is contrary to unambiguous Congressional intent. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 112 S. Ct. 2589, 2594, 120 L. Ed. 2d 379 (1992).
The amendment to the HEA provides, in relevant part:
The Association shall pay to the Secretary, on a monthly basis, an offset fee calculated on an annual basis in an amount equal to 0.30 percent of the principal amount of each loan made, insured or guaranteed under this part that the Association holds...and that was acquired on or after August 10, 1993.