194 F.3d 169 (D.C. Cir. 1999)
Renee M. Jordan, Appellantv.Secretary of Education of the United States and Nebraska Student Loan Program, Appellees
No. 99-5024
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 25, 1999Decided November 16, 1999

Appeal from the United States District Courtfor the District of Columbia(No. 97cv00876)
Michael E. Tankersley argued the cause for appellant.With him on the briefs was Alan B. Morrison.
Meredith Manning, Assistant U.S. Attorney, argued the  cause for appellees.  With her on the brief were Wilma A.  Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.  Attorney.
David Ober was on the brief for appellee Nebraska Student  Loan Program.
Before:  Silberman, Ginsburg, and Randolph, Circuit  Judges.
Opinon for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge:


1
Renee Jordan sought a discharge of her federally guaranteed student loan because the  vocational school she attended had falsely certified her ability  to benefit from its training.  The holder of her loan refused,  and the Secretary of Education denied her appeal, on grounds  that she failed to satisfy a regulation that requires students  seeking a discharge to demonstrate an inability to find a job.When Jordan sued the Secretary, the district court granted  summary judgment against her.  We hold that the regulation  is inconsistent with the governing statute, and thus reverse.

I.

2
Under the Federal Family Education Loan Program, private lenders make loans for "eligible borrowers" to attend  "eligible" post-secondary institutions.  See 20 U.S.C. § 1071  et seq.1  State and private guaranty agencies insure the loans,  and the Secretary of Education reinsures the agencies.  Generally, eligible borrowers are those who have a high school  diploma or a GED.  However, an individual without a diploma  or GED may qualify to attend a vocational school if the school  certifies that she has the "ability to benefit" from the training  it provides.  Under § 1091(d), a student may demonstrate an  ability to benefit in one of three ways:  (1) by earning a GED  before graduation from the program or by the end of the first  year of study;  (2) by being counseled before admission and  completing a prescribed program of remedial education;  or  (3) by passing "a nationally recognized, standardized or industry developed test" that measures "the applicant's aptitude to  complete successfully the program to which the applicant has  applied."


3
In 1992, in response to public concern about vocational  schools that defrauded students by falsely certifying their  ability to benefit and then providing them worthless training,  Congress provided that if a "student's eligibility to borrow  under this part was falsely certified by the eligible institution  ... then the Secretary shall discharge the borrower's liability  on the loan."  20 U.S.C. § 1087(c)(1).  The agency holding  the loan decides whether to grant a discharge, subject to  review by the Secretary.  See 34 C.F.R. § 682.402(e).  A  student must submit a written statement affirming that she  was admitted to a school on the basis of ability to benefit but  did not satisfy the ability to benefit requirements.  If the  student completed the program, she also must state that she  "made a reasonable attempt to obtain employment in the  occupation for which the program was intended to provide  training, and--(1) Was not able to find employment in that  occupation;  or (2) Obtained employment in that occupation  only after receiving additional training that was not provided  by the school that certified the loan."  Section  682.402(e)(3)(ii)(C).


4
Jordan completed a six-month course at the National Business School's Law Enforcement Academy (NBS) in the District of Columbia.  When she was admitted to the school in  1987, she did not have a high school diploma or GED, and she  did not meet the requirements of § 1091(d).  Nevertheless,  NBS arranged for Jordan to obtain a guaranteed student  loan.  Jordan's experience was apparently not unique:  an  investigation by the Department of Education's Inspector  General and the FBI revealed that the school admitted  unqualified students by improperly administering entrance  examinations, in some cases by giving students the answers.


5
After her graduation from NBS, Jordan sought employment as a security officer.  She answered a newspaper advertisement for security officers, but she was told that she would  have to start at what she described as "an unacceptably low  salary" because she lacked a high school degree.  The record  is not entirely clear on whether Jordan was denied a position  or was offered a position that she declined.  In any event,  Jordan submitted a request for a discharge to the holder of her loan, the Nebraska Student Loan Program.  That agency  denied her request, because she had been offered a job that  she declined.  The holder also relied upon a policy statement  issued by the Deputy Assistant Secretary stating that, absent  "unusual circumstances," a guaranty agency could reasonably  "consider three separate attempts by the student to find a  job" persuasive evidence that the student had complied with  34 C.F.R. § 682.402(e)(3)(ii)(C).  The Secretary denied Jordan's appeal on the ground that she had been able to find  employment but simply declined the job she was offered.


6
Jordan then brought this action claiming that the subsequent employment conditions in the regulation exceeded the  Secretary's authority under the statute.  The district court  granted the Secretary's motion for summary judgment.  See  Jordan v. Riley, 26 F. Supp. 2d 173 (D.D.C. 1998).  The court  held that the regulation was a permissible interpretation of  the ambiguity created by the undefined term "falsely certified."  For purposes of summary judgment, it assumed that  Jordan had been denied a job, but it held that the regulatory  requirement of "a reasonable attempt to obtain employment"  could not be satisfied by only one unsuccessful attempt to find  employment, because "[a] sample size of one is too small" for  a student to demonstrate an inability to get a job.  Id. at 179.Jordan appealed.

II.

7
Jordan contends that the regulation at issue is inconsistent  with the statute and therefore fails the first step of the  analysis in Chevron U.S.A. Inc. v. Natural Resources Defense  Council, Inc., 467 U.S. 837 (1984).  The first part of the  regulation, it is argued, simply mirrors the statutory requirement that the student has been admitted to a school on the  basis of ability to benefit without actually satisfying the  ability to benefit test.  The second part, however, demands  that the student have made an unsuccessful effort to find  employment.  This condition, appellant argues, is found nowhere in the statute, and for the Secretary to impose it is to  violate the congressional command that he "shall discharge the borrower's liability" if statutory criteria are violated. Jordan also argues that, even if the regulation were valid, the  district court erred in applying a three-attempt rule, because  that rule was found only in a policy statement, and, in any  event, the Secretary did not rely on it.


8
The Secretary justifies the regulation by pointing out that  the statute does not define the term "falsely certified."  He  refers to the dictionary definition of "false" as "contrary to  truth or fact" and reasons that "one way to determine whether Ms. Jordan's ability to benefit from security guard training  was falsely certified in 1987 is to examine whether she in fact  had the ability to benefit from that training," as measured by  whether she subsequently found a job.  On his view, under  Chevron the regulation is a reasonable interpretation of an  ambiguous statute.


9
Ambiguity, of course, "is a creature not of definitional  possibilities but of statutory context."  Brown v. Gardner,  513 U.S. 115, 118 (1994).  The Secretary ignores that context,  for he overlooks that "ability to benefit" is defined in specific  terms in the statute.  A school does not certify a student's  general "ability" measured at the time of certification--still  less as to be determined in the future.  Rather, it certifies  that the student meets the particular conditions of § 1091(d).Because the school is never asked to certify (predict) that a  student will find a job, a student's post-training employment  experience is irrelevant to the truth or falsity of the certification.  The Secretary appears to recognize as much, for another provision of the same regulation already provides a definition of "falsely certified," one that is based solely on whether  the student met the objective criteria for certification before  being admitted.  See 34 C.F.R. § 682.402(e)(1)(i).


10
In other words, the statutory scheme is designed to place  obligations on schools, which must certify ability to benefit,  and on the government, which must police schools to ensure  that their certifications are accurate, or failing that must  compensate defrauded students.  Under the regulation, a  burden is shifted to the student:  she is obliged to seek a job  before she may claim the benefit of a discharge.  Thus, the Secretary has done more than simply add an obligation that is  not in the statute;  he has changed the nature of the statute.


11
It would be absurd, the Secretary argues, to allow students  to obtain discharges simply because of trivial technical defects  in the tests that were used to measure their ability to benefit. So it would.  That proposition is not in dispute:  Jordan  concedes that the Secretary could issue a regulation defining  "falsely certified" in such a way as to exclude certifications  that were defective because, for example, the student wrongly  took a photocopied version of the test rather than the original.  Indeed, the Secretary has already issued an interpretive  policy statement to that effect.  The legality of a "harmless  error" rule cannot justify this regulation, which has a policy  objective far exceeding the statutory framework.


12
Ultimately, the Secretary relies on a policy argument:  that  students who gain the benefit of the training should not get a  windfall by avoiding their loan obligations.2  He attempts to  tie that policy objective to the legislative history.  He refers  to a committee report indicating that Congress was concerned  that students whose eligibility was falsely certified were "left  without the skills needed to obtain employment and consequently did not have the means to repay the loans."  H.R.  Rep. No. 447, 102d Cong., 2d Sess. 52 (1992).  From this he  infers that Congress intended to discharge the loans only of  students who were unable to find employment.  We think  that is an inference too far.  Be that as it may, the Secretary  confuses the subjective intentions of the members of Congress with the statute that Congress actually enacted.  Cf.Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79  (1998) ("[I]t is ultimately the provisions of our laws rather  than the principal concerns of our legislators by which we are  governed.").  The Secretary may not rewrite the statute,  even if the enacting Congress might have approved of his  efforts.


13
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14
The judgment of the district court is reversed, and the case  is remanded for further proceedings consistent with this  opinion.


15
So ordered.



Notes:


1
 We discuss the statute as it existed at the time of the events at  issue in this case.  Congress has since made extensive changes to  the statutory scheme.


2
 The Secretary's regulation has its own perverse consequence. Even if a student received zero training--let us say the school was  a total sham--the student would be obliged to pay, if by dint of  drive and good fortune he or she happened to get a job.


