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Thelma G. McCoy v. United States
Paid petition · United States Court of Appeals for the Fifth Circuit, No. 19-40269 · judgment June 5, 2020
Before the decision, roughly the 4.1% base rate. The model weighted this up for a Fifth Circuit decision below, a circuit split argued in the petition, and counsel who has filed here before.
Question presented
The Bankruptcy Code permits courts to discharge student loan debt in bankruptcy if a debtor can show that repaying it would cause her “undue hardship.” 11 U.S.C. § 523(a)(8). Two inconsistent standards have emerged to evaluate whether a debtor’s showing is sufficient. Most circuits, including the Fifth Circuit, apply the Brunner test, see Brunner v. New York State Higher Education Services Corp., 831 F.2d 395, 396 (2d Cir. 1987), which prohibits discharge unless the debtor can prove, among other things, a “total incapacity” to repay the debt in the future. Other courts have rejected Brunner in favor of a more flexible test under which the totality of circumstances may be considered. On this approach, courts ask whether the debtor’s “reasonable future financial resources will sufficiently cover payment of the student loan debt[] while still allowing for a minimal standard of living.” In re Long, 322 F.3d 549, 554-55 (8th Cir. 2003). The question presented is whether the Fifth Circuit erred in applying the Brunner test instead of the totality test to determine whether a debtor would suffer an “undue hardship” absent discharge of her student loan debt.
Counsel of record
For petitioner
Daniel Adam Rubens
Orrick, Herrington & Sutcliffe LLP
For respondent
Brian H. Fletcher
Acting Solicitor General
Case
Conference history
Distributed for 1 conference
Amicus briefs
3 cert-stage
Proceedings
- Jun 21 2021Petition DENIED.
- Jun 01 2021DISTRIBUTED for Conference of 6/17/2021.
- May 28 2021Reply of petitioner Thelma G. McCoy filed. (Distributed)
- May 17 2021Motion to delay distribution of the petition for a writ certiorari until June 1, 2021 granted.
- May 13 2021Motion of petitioner to delay distribution of the petition for a writ of certiorari under Rule 15.5 from May 25, 2021 to June 1, 2021, submitted to The Clerk.
- May 07 2021Brief of respondent United States in opposition filed.
- Mar 29 2021Motion to extend the time to file a response from April 5, 2021 to May 7, 2021, submitted to The Clerk.
- Mar 29 2021Motion to extend the time to file a response is granted and the time is further extended to and including May 7, 2021.
- Feb 16 2021Motion to extend the time to file a response is granted and the time is further extended to and including April 5, 2021.
- Feb 12 2021Motion to extend the time to file a response from March 5, 2021 to April 5, 2021, submitted to The Clerk.
- Feb 03 2021Brief amicus curiae of Center for Responsible Lending filed.
- Feb 02 2021Brief amici curiae of Consumer Bankruptcy and Student Loan Academics filed.
- Jan 29 2021Brief amici curiae of National Consumer Bankruptcy Rights Center and National Association of Consumer Bankruptcy Attorneys filed.
- Jan 13 2021Motion to extend the time to file a response is granted and the time is extended to and including March 5, 2021.
- Jan 11 2021Motion to extend the time to file a response from February 3, 2021 to March 5, 2021, submitted to The Clerk.
- Dec 30 2020Petition for a writ of certiorari filed. (Response due February 3, 2021)