         Case: 18-14490   Date Filed: 04/10/2020     Page: 1 of 31



                                                                     [PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 18-14490
                    ________________________

              D.C. Docket No. 1:17-cv-00253-MW-GRJ

AMANDA LAWSON-ROSS,
TRISTIAN BYRNE,

                                              Plaintiffs - Appellants,

                                versus

GREAT LAKES HIGHER EDUCATION CORPORATION,

                                       Defendant - Appellee.
                    ________________________

             Appeal from the United States District Court
                 for the Northern District of Florida
                    _______________________

                           (April 10, 2020)
               Case: 18-14490       Date Filed: 04/10/2020      Page: 2 of 31



Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO,∗
District Judge.

JILL PRYOR, Circuit Judge:

       Plaintiffs Dr. Amanda Lawson-Ross and Tristian Byrne (the “Borrowers”)

each took out federal student loans to finance higher education. The Borrowers’

federal student loans were serviced by defendant Great Lakes Higher Education

Corporation. The Borrowers alleged that Great Lakes made affirmative

misrepresentations to them and other borrowers that they were on track to have

their student loans forgiven based on their public-service employment when, in

fact, their loans were ineligible for the forgiveness program. The Borrowers sued

Great Lakes, bringing a variety of claims under Florida law, including the Florida

Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559.55 et seq.

       The district court ruled that the Borrowers’ claims were preempted by a

provision of the Higher Education Act of 1965, 20 U.S.C. §§ 1001 et seq.

(“HEA”), which prohibits the application of state law disclosure requirements to

loans made under federal student loan programs. 20 U.S.C. § 1098g. In this

appeal, we must decide whether the HEA preempts state law claims alleging that

student loan servicers made affirmative misrepresentations to borrowers regarding

their eligibility for a federal program that forgives student loan balances. We hold


       ∗Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
                                               2
                Case: 18-14490      Date Filed: 04/10/2020      Page: 3 of 31



that the HEA—which expressly preempts state law disclosure requirements—does

not preempt the Borrowers’ claims here. We therefore vacate the district court’s

dismissal of the claims and remand for further proceedings.

                       I.     STUDENT LOAN REGULATION

      Congress enacted the HEA, the primary statute governing federal student

loans, “to keep the college door open to all students of ability, regardless of

socioeconomic background.” Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028,

1030 (9th Cir. 2009) (internal quotation marks omitted); see also 20 U.S.C.

§ 1070(a). To fulfill this goal of improving access to higher education, the HEA

established the Federal Family Education Loan Program (“FFELP”). See

20 U.S.C. § 1071.

      Under the FFELP, lenders used their own funds to make loans, known as

FFEL loans, to students attending postsecondary institutions. These loans were

guaranteed by private guarantors and reinsured by the federal government. See id.

§ 1078(a)-(c). Although the federal government did not directly fund these loans,

it served as the ultimate guarantor of the loans through the reinsurance program. 1

Lenders for FFEL loans contracted with loan servicing companies to manage

borrowers’ repayment of the loans.




      1
          In 2010, the government stopped reinsuring new FFEL loans. 20 U.S.C. § 1071(d).
                                              3
              Case: 18-14490    Date Filed: 04/10/2020    Page: 4 of 31



      In time, Congress shifted away from the FFELP to the William D. Ford

Federal Direct Loan Program. See id. §§ 1087a-1087j. Under this program, the

federal government itself served as the lender, directly providing the funds for

student loans. Because the federal government directly provided the funds for

these loans, they aptly became known as “direct loans.” Id. § 1087a(b)(2). The

government contracted with non-government entities to service direct loans.

      To encourage student loan recipients to enter and remain employed in public

service jobs, Congress created the Public Service Loan Forgiveness Program

(“PSLF” or the “PSLF Program”), to forgive direct loan balances for borrowers

employed in government or not-for-profit organizations. See College Cost

Reduction and Access Act, Pub. L. No. 110-84 § 401, 121 Stat. 784, 800 (2007).

Under the PSLF Program, the federal government forgives outstanding student

loan balances for borrowers who: (1) made 120 payments on their loan after

October 1, 2007; (2) made these payments on an eligible direct loan; (3) were on a

qualifying repayment plan; and (4) were employed in public service at the time of

the loan forgiveness and had been employed in public service during the period in

which the 120 payments were made. 20 U.S.C. § 1087e(m)(1).

      A key requirement of the PSLF Program is that the 120 payments must be

made on an “eligible Federal Direct Loan.” Id. § 1087e(m). Congress defined an

“eligible Federal Direct Loan” to include “a Federal Direct Stafford Loan, Federal


                                          4
                Case: 18-14490        Date Filed: 04/10/2020       Page: 5 of 31



Direct PLUS Loan, or Federal Direct Unsubsidized Stafford Loan, or a Federal

Direct Consolidation Loan.” Id. § 1087e(m)(3)(A). Borrowers with other types of

federal student loan debt—including FFEL loans—are ineligible for the PSLF

Program. Borrowers with FFEL loans are not entirely out of luck, however. They

may consolidate their loans into a Federal Direct Consolidation Loan to become

eligible. See id. §§ 1078-3(b)(5); 1087e(m)(3)(A). But any payments they made

before consolidation do not count toward the 120 payments required for the

program.

       The HEA also imposes obligations on student loan lenders and loan

servicers.2 Most relevant to the Borrowers’ claims here are the requirements that

lenders and servicers make various disclosures to borrowers. See id. § 1083.

Although the HEA does not define the term “disclosure,” it specifies the

information that must be disclosed and when the disclosures must occur. Id.

§ 1083(a)-(b), (e). The HEA mandates disclosures at or during particular points in

time, including: (1) at or before the disbursement of loan proceeds (19 required

disclosures); (2) at or before the start of repayment (13 required disclosures); and

(3) periodically during repayment. See id. § 1083(a)-(b), (e). Certain information

must be provided with each bill or statement sent to the borrower, including the



       2
         Direct loans are subject to the “same terms, conditions, and benefits” as loans issued
under the FFELP. 20 U.S.C. § 1087e(a)(1).
                                                5
               Case: 18-14490         Date Filed: 04/10/2020   Page: 6 of 31



original principal amount of the loan, the borrower’s current outstanding loan

balance, the loan’s interest rate, and the total amount the borrower has paid in

interest and in the aggregate. Id. § 1083(e)(1). Additional information must be

disclosed when the borrower either has provided notice that she is having difficulty

making payments or is 60 days delinquent in making payments. See id.

§ 1083(e)(2)-(3).

      Along with imposing these disclosure requirements, the HEA expressly

preempts the imposition of state law disclosure requirements. Section 1098g,

entitled “Exemption from State disclosure requirements,” provides:

      Loans made, insured, or guaranteed pursuant to a program authorized
      by Title IV of the [HEA] . . . shall not be subject to any disclosure
      requirements of any State law.

Id. § 1098g.

                                II.      BACKGROUND

A.    Factual Background

      Defendant-appellee Great Lakes services the Borrowers’ federal student

loans. The Borrowers allege that Great Lakes representatives told them they were

eligible for forgiveness of their loans through the PSLF Program, and only later did




                                               6
                     Case: 18-14490        Date Filed: 04/10/2020       Page: 7 of 31



they discover they were not eligible—after they had already made payments that

could not then be counted toward the PSLF Program.3

          Plaintiff-appellant Lawson-Ross has a master’s degree and a doctoral degree

in counseling psychology. She borrowed to finance both degrees. The majority of

her loans were not Federal Direct Loans. 4 Since completing her doctorate,

Lawson-Ross has been employed at the University of Florida working in its

Counseling and Wellness Center and also at Florida Gulf Coast University’s

Counseling and Psychological Services Office. Given this work in public service,

Lawson-Ross expected that after 10 years of working her student loans would be

forgiven through the PSLF Program.

          Once she began repaying her student loans in 2007, Lawson-Ross regularly

contacted Great Lakes to “ensur[e] that she was on track to receive the benefits of

the PSLF.” Doc. 24 at ¶ 41. 5 During her communications with Great Lakes

representatives, she inquired about her eligibility for the PSLF Program, and the

representatives “repeatedly and explicitly” told her that she was “on track to



          3
         We describe the facts as alleged in the Borrowers’ complaint. In reviewing the grant of
a motion to dismiss, we accept the well-pleaded allegations in the complaint as true and view
them in the light most favorable to the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333,
1335 (11th Cir. 2012).
          4
         The complaint did not identify what the type of loans Lawson-Ross had; it alleged only
that they were not Federal Direct Loans.
          5
              Citations in the form “Doc. #” refer to the numbered entries on the district court’s
docket.
                                                      7
              Case: 18-14490    Date Filed: 04/10/2020   Page: 8 of 31



benefit [from] PSLF, that her loans qualified under that program, and that she

would not need to complete any additional forms until her 10 years of public

service was completed.” Id. at ¶ 42 (emphasis added).

      In July 2017, however—almost 10 years later—a Great Lakes representative

told Lawson-Ross that she was ineligible for the PSLF Program. She was

ineligible because most of her loans were not Federal Direct Loans—the only loans

eligible for the PSLF Program. As a result, none of the payments she had made

during those 10 years counted toward the PSLF Program. Had Lawson-Ross

known that her loans were ineligible for the PSLF Program, she either could have

made sure she was eligible for forgiveness under the PSLF Program (presumably

by consolidating her loans) or undertaken a different career path.

      Plaintiff-appellant Byrne graduated with an associate degree in criminal

justice. She took out FFEL loans to help finance her education. Byrne learned

about the PSLF Program while working for the Pinellas County Sheriff’s Office.

When she learned about the program, she reached out to Great Lakes to ask

whether her job with the sheriff’s office would qualify her for the program. A

Great Lakes representative informed her that to qualify for the PSLF Program, she

needed only to work full time in her current job, complete an application, have

human resources fill out a form certifying her employment, and apply for income-




                                         8
              Case: 18-14490     Date Filed: 04/10/2020   Page: 9 of 31



based payments. Great Lakes represented that once Byrne had made 120 payments

on her student loans, the remainder of her loan balance would be forgiven.

      Byrne followed Great Lakes’s instructions. She submitted an application for

loan forgiveness. After hearing nothing from Great Lakes, she submitted a second

application. Several months later, Great Lakes told Byrne that she was ineligible

for the PSLF Program because her loans were not Federal Direct Loans. If Great

Lakes had not misinformed Byrne, she would have taken the steps necessary to

ensure that she was eligible for the PSLF Program.

      As a federal student loan servicer, Great Lakes was responsible for

collecting payments from borrowers, providing borrowers with repayment options,

managing borrowers’ student loan accounts, and communicating with borrowers

about their loans. Great Lakes held itself out as an authority for advice about the

best path to student loan repayment. It did so, the Borrowers alleged, by stating on

its website, “You should never have to pay for student loan advice or services.

Call us, instead. Our representatives have access to your latest student loan

information and are trained to understand all of your options.” Id. at ¶ 29.

      The United States Department of Education (“DOE”) also encouraged

borrowers to consult their federal loan servicers regarding repayment and options

for borrowers having trouble making their loan payments. The DOE made

statements such as: “Work with your loan servicer to choose a federal student


                                          9
             Case: 18-14490      Date Filed: 04/10/2020   Page: 10 of 31



repayment plan that’s best for you;” “Your loan servicer will help you decide

whether one of these plans is right for you;” “Always contact your loan servicer

immediately if you are having trouble making your student loan payment;” and

“Why pay for help with your federal student loans when your loan servicer will

help you for FREE? Contact your servicer to apply for income-driven repayment

plans, student loan forgiveness, and more.” Id. at ¶ 27. Therefore, the Borrowers

reasonably looked to Great Lakes for advice about the PSLF Program and relied on

Great Lakes’s representations.

B.    Procedural History

      The Borrowers filed a complaint against Great Lakes alleging that it

misrepresented that they were on track to benefit from the PSLF Program when

they were not and that they were harmed by these misrepresentations. They further

alleged that Great Lakes had incentives to put its own interests ahead of the

Borrowers whose loans it serviced so that it could continue to service the loans and

benefit from the extra principal, fees, and interest that it would not otherwise have

collected had the Borrowers been given correct information so that they could

make their loans PSLF-eligible.

      On behalf of a class of similarly situated borrowers, the Borrowers brought

claims under Florida law for breach of fiduciary duty, negligence, unjust

enrichment, breach of implied-in-law contract, and violation of the FCCPA. See


                                          10
               Case: 18-14490       Date Filed: 04/10/2020       Page: 11 of 31



Fla. Stat. § 559.72.6 The Borrowers Lawson-Ross and Byrne alleged that they and

the other class members spent years making payments that they believed, based on

Great Lakes’s representations, qualified for the PSLF Program, only to find out

years later that none of their loan payments counted toward loan forgiveness.

       Great Lakes moved to dismiss the case for failure to state a claim. Among

other arguments, Great Lakes maintained that the Borrowers’ claims were

expressly preempted under § 1098g of the HEA. Invoking § 1098g’s explicit

preemption of “any disclosure requirements of any State law,” 20 U.S.C. § 1098g,

Great Lakes argued that the Borrowers’ claims were based on alleged failures to

disclose information. Allowing these state law claims to proceed, they contended,

would effectively impose additional disclosure requirements, in violation of

§ 1098g.

       After Great Lakes filed its motion to dismiss, the Secretary of the DOE

issued a notice outlining the agency’s position regarding federal preemption of

state law by the HEA. See Federal Preemption and State Regulation of the

Department of Education’s Federal Student Loans Programs and Federal Student

Loan Servicers, 83 Fed. Reg. 10619 (Mar. 12, 2018) (the “Notice”). In the Notice,

the Secretary announced that “Congress intended section 1098g to preempt any



       6
         The FCCPA prohibits false representations regarding the character or status of a debt
and forbids use of deceptive debt collection methods. Fla. Stat. § 559.72.
                                               11
               Case: 18-14490        Date Filed: 04/10/2020       Page: 12 of 31



State law requiring lenders to reveal facts or information not required by Federal

law.” Id. at 10621 (alteration adopted) (internal quotation marks omitted). 7

According to the Notice, state laws imposing “new prohibitions on

misrepresentation or the omission of material information” ran afoul of § 1098g’s

express preemption provision. Id.

       Great Lakes notified the district court that the Notice “squarely addresse[d]

the preemption issue” in Great Lakes’s favor. Doc. 30 at 3. The district court then

directed the parties to file supplemental briefs regarding the Notice and whether

the court should defer to it.

       In its supplemental briefing, Great Lakes again argued that the Borrowers’

claims were simply restyled nondisclosure claims that were expressly preempted.

It further argued that even if the court were to accept that the Borrowers’ claims

were based on affirmative misrepresentations rather than failures to disclose, the

claims nevertheless should be dismissed for failure to satisfy the heightened

pleading standards of Rule 9(b) of the Federal Rules of Civil Procedure. Claims

based on affirmative misrepresentation, Great Lakes contended, “sound in fraud”




       7
          The Notice further explained that it “interprets disclosure requirements under section
1098g of the HEA to encompass informal or non-written communications to borrowers as well
as reporting to third parties such as credit reporting bureaus.” Notice, 83 Fed. Reg. at 10621
(internal quotation marks omitted).
                                                12
               Case: 18-14490        Date Filed: 04/10/2020        Page: 13 of 31



and therefore must satisfy the requirements of Rule 9(b). Doc. 34 at 19–21

(internal quotation marks omitted).

       The district court granted Great Lakes’s motion to dismiss, concluding that

the Borrowers’ claims were expressly preempted by § 1098g. The court addressed

only the preemption arguments. It construed Great Lakes’s alleged

misrepresentations as a “failure to provide accurate information,” or “in other

words . . . [a] disclosure.” Doc. 44 at 8. Then, looking to Skidmore v. Swift & Co.,

323 U.S. 134 (1944), the district court determined that the DOE’s guidance in the

Notice was entitled to deference and concluded that the HEA expressly preempted

the Borrowers’ Florida state law claims and granted the motion to dismiss.8 The

Borrowers appealed that decision, which we now review.

                            III.    STANDARD OF REVIEW

       We review de novo the district court’s grant of a motion to dismiss for

failure to state a claim. See Snow v. DirecTV, Inc., 450 F.3d 1314, 1317 (11th Cir.

2006). We likewise review de novo whether federal law preempts a state law

claim. Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1181 (11th Cir.

2017) (en banc).

                                    IV.     DISCUSSION


       8
         Because the district court concluded that the Borrowers’ claims were preempted, it did
not reach the issue of whether the complaints’ allegations otherwise sufficed to state a claim for
relief.
                                                13
             Case: 18-14490     Date Filed: 04/10/2020   Page: 14 of 31



      The Constitution’s Supremacy Clause makes federal law “the supreme Law

of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const., art. VI, cl. 2. When applying the Supremacy

Clause, we begin “with the assumption that the historic police powers of the States

are not to be superseded by Federal Act unless that is the clear and manifest

purpose of Congress.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992)

(alterations adopted) (internal quotation marks omitted). “The purpose of

Congress is the ultimate touchstone” of preemption analysis. Retail Clerks Int’l

Ass’n, Local 1625 v. Schermerhorn, 375 U.S. 96, 103 (1963). In determining

Congress’s purpose, we look to the “text and structure of the statute at issue.” CSX

Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). Where Congress legislates

in a field traditionally occupied by the states, the presumption against preemption

“applies with particular force.” Altria Grp., Inc. v. Good, 555 U.S. 70, 77 (2008).

      Congress’s intent to preempt state law may be stated expressly in a statute or

implied by the statute’s structure and purpose. Jones v. Rath Packing Co.,

430 U.S. 519, 525 (1977). Absent express preemption language, congressional

intent to preempt state law will be implied where there is a “conflict with a

congressional enactment,” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541

(2001), or where “the scheme of federal regulation is sufficiently comprehensive to

make reasonable the inference that Congress left no room for supplementary state


                                         14
                Case: 18-14490     Date Filed: 04/10/2020   Page: 15 of 31



regulation” in a particular area of law, Hillsborough Cty. v. Automated Med. Labs.,

Inc., 471 U.S. 707, 713 (1985) (internal quotation marks omitted). These forms of

implied preemption are known as conflict preemption and field preemption,

respectively.

      In this appeal we confront the question of whether the Borrowers’ state law

claims are preempted, expressly or otherwise, by the HEA. Our answer to the

question is no. We divide our analysis into two parts. In Part A, we address why

the Borrowers’ claims are not expressly preempted by § 1098g of the HEA. In

Part B, we explain why the Borrowers’ claims are not preempted implicitly, either

by conflict or field preemption.

A.    The Borrowers’ Claims Are Not Expressly Preempted.

      We first consider whether the Borrowers’ claims are preempted by express

language in the HEA. The HEA includes various provisions that explicitly

preempt certain areas of state law. See, e.g., 20 U.S.C. §§ 1078(d) (state usury

laws); 1091a(a)(2) (state statutes of limitations); 1091a(b)(2) (state law infancy

defense). Section 1098g, entitled, “Exemption from State disclosure

requirements,” is one such express preemption provision. It provides:

     Loans made, insured, or guaranteed pursuant to a program authorized by
     Title IV of the [HEA] . . . shall not be subject to any disclosure
     requirements of any State law.

Id. § 1098g.


                                            15
             Case: 18-14490     Date Filed: 04/10/2020    Page: 16 of 31



      It is clear, and the parties do not contest, that § 1098g expressly preempts

state laws requiring federal student loan servicers to make additional disclosures

beyond what the HEA requires. The Borrowers’ complaint attempts to impose

state disclosure requirements on servicers, Great Lakes argues, because their

affirmative misrepresentation claims, at their core, are based on a failure to

disclose correct information. We reject Great Lakes’s characterization of the

Borrowers’ claims and its argument that § 1098g so broadly preempts state law.

We conclude that the precise language Congress used in § 1098g preempts only

state law that imposes disclosure requirements; state law causes of action arising

out of affirmative misrepresentations a servicer voluntarily made that did not

concern the subject matter of required disclosures impose no “disclosure

requirements.”

      Before we address Great Lakes’s characterization of the Borrowers’ claims,

as an initial matter we must “identify the domain expressly pre-empted” by

§ 1098g. Cipollone, 505 U.S. at 517 To identify the domain expressly preempted

by Congress, we read “the words of a statute . . . in their context and with a view to

their place in the overall statutory scheme.” Home Depot U. S. A., Inc. v. Jackson,

139 S. Ct. 1743, 1748 (2019) (internal quotation marks omitted). Section 1098g

concerns “disclosure requirements,” but the HEA does not define “disclosure

requirements” or “disclosure.” The HEA does, however, identify the disclosures it


                                          16
             Case: 18-14490     Date Filed: 04/10/2020    Page: 17 of 31



requires. See 20 U.S.C. § 1083(a), (b), (e). Viewed in its statutory context, then,

the term “disclosure requirements” refers to the HEA’s requirements that certain

information be communicated to borrowers during the various stages of a loan, as

laid out in § 1083 of the statute. Thus, the domain § 1098g preempts is the type of

disclosures to borrowers that § 1083 requires.

      We now turn to the nature of the Borrowers’ state law claims. We examine

whether these claims are based on failures to disclose, as Great Lakes contends,

such that allowing the claims to proceed would violate § 1098g. The Borrowers

allege that Great Lakes made affirmative misrepresentations to them while they

were in the repayment stage of their federal student loans. The most relevant part

of the HEA is § 1083(e), which details the “[r]equired disclosures during

repayment.” See id. § 1083(e). Section 1083(e) principally requires the servicer to

disclose information about the loan itself, including: the original principal amount

of the loan, the borrower’s current outstanding balance, the loan’s interest rate, the

fees the borrower has been charged, the total amount paid in interest on the loan,

and the aggregate total amount the borrower has paid on the loan. See id.

§ 1083(e)(1). In addition, when a borrower is having difficulty making payments,

the servicer must provide a description of available repayment plans, the

requirements for forbearance on the loan, and the options to help the borrower

avoid defaulting on the loan. See id. § 1083(e)(2).


                                          17
              Case: 18-14490     Date Filed: 04/10/2020    Page: 18 of 31



      Comparing these types of disclosures to the communications between Great

Lakes and the Borrowers here, we find little to no similarity. Although at first

blush the subject of the communications at issue might appear to resemble a

description of payment plans or options to prevent default, the Borrowers were not

behind on payments or facing default. Instead, they requested information about a

loan forgiveness program for borrowers employed in public service jobs,

specifically, whether they were in a position to meet that program’s requirements.

Great Lakes’s voluntary, personalized, affirmative misrepresentations in the form

of advice about whether an individual borrower was on track to qualify for the

PSLF Program was different in kind from any disclosure required by this

subsection or any other provision of the HEA. The Borrowers’ claims therefore

did not correspond with a failure to make a disclosure under the HEA.

      In concluding that the Borrowers’ affirmative misrepresentation claims are

simply restyled failure-to-disclose claims and so allowing the claims to proceed

would impose state law disclosure requirements on servicers in violation of

§ 1098g, the district court never considered what constitutes a disclosure under

§ 1083 or any other provision of the HEA. Without reference to the HEA’s

identification of information required to be disclosed, the district court stated that

“[c]laims that a servicer provided inaccurate information [are] no different than a

claim that Great Lakes failed to make proper disclosures.” Doc. 44 at 9. Great


                                           18
               Case: 18-14490       Date Filed: 04/10/2020      Page: 19 of 31



Lakes contends that this position is supported by Chae v. SLM Corp., 593 F.3d 936

(9th Cir. 2010). We first explain why Great Lakes’s characterization of the

Borrowers’ claims as failure-to-disclose claims is untenable and then explain why

Chae fails to persuade us otherwise.

       Taking a close look at the Borrowers’ complaint, we see no allegation that

Great Lakes failed to provide them with any information that it had a legal

obligation to disclose. Rather, the Borrowers alleged that when Great Lakes chose

to provide them with information it was not required to disclose—about their

eligibility for the PSLF Program—it gave false information. 9 If instead the

Borrowers had alleged that Great Lakes had a duty to inform them whether they

qualified for the PSLF Program, such a claim might well be preempted. But here,

Great Lakes was not required to say anything about loan forgiveness. It could have

remained silent instead of giving the Borrowers advice. Holding Great Lakes

liable for offering false information would therefore neither impose nor equate to

imposing on servicers a duty to disclose information. It would simply require


       9
         The Borrowers additionally argue that § 1083, read together with DOE regulations,
suggests that Congress intended to draw a distinction between written “disclosures” and “other
communications” between a borrower, on the one hand, and a lender or servicer, on the other,
see 34 C.F.R. § 682.205(a)(4)(ii). The Borrowers contend that this distinction leads to the
conclusion that the HEA provides no “guidance regarding what loan servicers may or may not
communicate in informal telephonic communications.” Appellants’ Br. at 23. Therefore, they
argue, federal law does not preempt state law with respect to such communications. Because we
conclude that the affirmative misrepresentations Great Lakes allegedly made were not subject to
disclosure requirements under the HEA, we need not address this argument.


                                              19
             Case: 18-14490     Date Filed: 04/10/2020    Page: 20 of 31



Great Lakes and other servicers to speak truthfully when they choose to speak

about a borrower’s qualification for the PSLF Program or any other topic on which

servicers have no duty to disclose.

      We find support for this distinction between an affirmative

misrepresentation and a failure to disclose in the law of torts. To succeed on a

failure-to-disclose claim, the plaintiff must establish that there was a duty to speak

and the duty was breached. See Chiarella v. United States, 445 U.S. 222, 228

(1980) (“[O]ne who fails to disclose material information . . . commits fraud only

when he is under a duty to do so. And the duty to disclose arises when one party

has information that the other party is entitled to know because of a fiduciary or

other similar relation of trust and confidence between them” (alteration adopted)

(internal quotations omitted)). In contrast, a claim alleging an affirmative

misrepresentation does not rely on a duty to disclose. See Nelson v. Great Lakes

Educ. Loan Servs., Inc., 928 F.3d 639, 649 (7th Cir. 2019) (“The common law tort

of fraud ordinarily requires a deliberately false statement of material fact. An

omission or failure to disclose, on the other hand, will not support a common law

fraud claim . . . .” (citations omitted)). Here, the Borrowers alleged no duty to

disclose information about the Borrowers’ eligibility for PSLF, only a duty to

speak truthfully; we thus reject Great Lakes’s characterization of the Borrowers’

claims as failure-to-disclose claims.


                                          20
               Case: 18-14490        Date Filed: 04/10/2020       Page: 21 of 31



       We now address Great Lakes’s argument that the Ninth Circuit’s decision in

Chae supports its characterization of the Borrowers’ claims as restyled failure-to-

disclose claims.10 Great Lakes argues that Chae is persuasive as a “nearly

identical” case. Appellee’s Br. at 41. At issue in Chae were state law claims

challenging how a federal student loan servicer communicated its methods of

calculating interest, assessing late fees, and setting the first repayment date. Chae,

593 F.3d at 940–41. The borrowers in Chae claimed, in part, that the servicer

violated California’s unfair competition law and Consumer Legal Remedies Act by

failing to disclose key information about these methods in its billing statements

and coupon books.11 Id. at 942. The Ninth Circuit concluded that these




       10
           Great Lakes also argues that the Borrowers’ claims are similar to a fraudulent
misrepresentation theory the Supreme Court held to be expressly preempted by § 5 of the federal
Public Health Cigarette Smoking Act of 1969 (“PHCSA”). Cipollone, 505 U.S. at 510. We
disagree that the Borrowers’ claims are analogous to the preempted fraudulent misrepresentation
theory in Cipollone. First, the preemption statute at issue in Cipollone contained broader,
different language than § 1098g of the HEA. Second, the Borrowers’ affirmative
misrepresentation claims are more like the second theory of fraudulent misrepresentation
addressed in Cipollone. The Court held in Cipollone that the plaintiffs’ second theory of
fraudulent misrepresentation was not preempted because it was based not on a duty related to
smoking and health, the subject of the PHCSA, but “rather on a more general obligation[,] the
duty not to deceive.” Id. at 528–29 (plurality opinion). Similarly, the Borrowers’ claims are
based not on a duty to disclose but the duty not to deceive. Thus, we are not persuaded by Great
Lakes’s argument that Cipollone leads to a contrary conclusion.
       11
          The plaintiffs in Chae also brought claims against the servicer for breach of contract,
unjust enrichment, breach of the implied covenant of good faith and fair dealing, and the use of
fraudulent and deceptive practices apart from the billing statements. See Chae, 593 F.3d at 943.
Because the Ninth Circuit held that these claims were not expressly preempted, we do not
discuss them here.
                                               21
             Case: 18-14490     Date Filed: 04/10/2020   Page: 22 of 31



misrepresentation claims were simply restyled nondisclosure claims that were

expressly preempted by § 1098g. Id. at 943.

      Importantly, these claims challenged how the servicer communicated

information that the HEA required it to disclose. Id. at 942–43; see Nelson,

928 F.3d 649–50 (“The plaintiffs in Chae complained about the supposed failures

to disclose key information in specific ways, such as loan terms and repayment

requirements. Since the defendant was required to disclose that information by

federal law and had disclosed it in ways permitted by federal law, the Ninth Circuit

found that the plaintiffs were implicitly seeking to impose additional disclosure

requirements under state law.”) Here, however, the Borrowers made no claim that

Great Lakes disclosed in a misleading manner information it was required to

disclose; rather, they alleged that Great Lakes voluntarily provided information on

a matter on which it was not required to disclose, and while doing so made

affirmative misrepresentations. Chae does not persuade us that the Borrowers’

claims are expressly preempted.

      Without a doubt, § 1098g of the HEA expressly preempts a state law’s

imposition of disclosure requirements on federal student loan servicers, but the

Borrowers do not allege that Great Lakes had a duty to disclose anything about the

PSLF Program—and in fact it had no such duty. Section 1098g of the HEA does

not expressly preempt the Borrowers’ claims.


                                         22
               Case: 18-14490        Date Filed: 04/10/2020       Page: 23 of 31



B.     The Borrowers’ Claims Are Not Otherwise Preempted.

       Having concluded that the Borrowers’ claims are not expressly preempted,

we next turn to Great Lakes’s argument that the Borrowers’ claims are preempted

implicitly, either by the doctrine of conflict or of field preemption.12

            1. Conflict Preemption Does Not Apply to the Borrowers’ Claims.

       Even where state law is not expressly preempted, it may nevertheless be

preempted where it “conflicts with federal law.” Cipollone, 505 U.S. at 516.

Conflict preemption can occur when (1) it is impossible for a party to comply with

both state and federal law, or (2) the state law “stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.”

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000) (internal

quotation marks omitted). We conclude that conflict preemption does not apply

here due to the general implication that arises when Congress has expressly

preempted specific areas of state law: that it did not intend to preempt state law

more broadly. But even if the inference against preemption should not be drawn

here, the Borrowers’ claims present no conflict with federal law because we remain

unconvinced that the purpose Great Lakes advances—uniformity for uniformity’s

sake—is in fact a goal of the HEA.


       12
         The district court did not address conflict or field preemption; having concluded that
the Borrowers’ claims were expressly preempted, the court had no need to address implied
preemption.
                                               23
              Case: 18-14490     Date Filed: 04/10/2020    Page: 24 of 31



      When Congress has explicitly addressed preemption in a statute, an

implication arises that it did not intend to preempt other areas of state law.

Graham, 857 F.3d at 1189; see Nelson, 928 F.3d at 648 (reasoning that the

inclusion of other express preemption provisions in the HEA “weigh[s] against

attributing to Congress a desire to preempt state law broadly”). In Cipollone, the

Supreme Court explained:

      When Congress has considered the issue of pre-emption and has
      included in the enacted legislation a provision explicitly addressing that
      issue, and when that provision provides a reliable indicium of
      congressional intent with respect to state authority, there is no need to
      infer congressional intent to pre-empt state laws from the substantive
      provisions of the legislation. Such reasoning is a variant of the familiar
      principle of expression unius est exclusio alterius: Congress’
      enactment of a provision defining the pre-emptive reach of a statute
      implies that matters beyond that reach are not pre-empted.

Cipollone, 505 U.S. at 517 (internal quotation marks and citations omitted). Based

on this implication, we conclude that conflict preemption does not apply. In the

HEA, Congress included provisions expressly preempting specific areas of state

law, including § 1098. See, e.g., 20 U.S.C. §§ 1078(d) (state usury laws);

1091a(a)(2) (state statutes of limitations); 1091a(b)(2) (state law infancy defense).

Section 1098g “offer[s] no cause to look beyond” it. Cipollone, 505 U.S. at 517.

We therefore find “no need to infer congressional intent to pre-empt state laws

from the substantive provisions” of the HEA. Id. (internal quotation marks

omitted).


                                          24
                Case: 18-14490        Date Filed: 04/10/2020        Page: 25 of 31



       But even assuming that conflict preemption could exist here despite the

HEA’s express preemption provisions, we would nonetheless conclude that the

Borrowers’ claims present no conflict with the HEA.13 Great Lakes argues that the

Borrowers’ state law claims would interfere with, and therefore stand as an

obstacle to, what Great Lakes contends was Congress’s objective in the federal

student loan program: uniformity of communications between loan servicers and

borrowers.14 Great Lakes’s argument fails because it rests on the mistaken premise



       13
          Great Lakes argues that we must defer to the DOE’s determination in the Notice that
Congress intended for the HEA to preempt state laws regulating servicers of FFEL loans. See
Notice, 83 Fed. Reg. at 10621. But we conclude that the Notice is entitled to no special
deference. We find persuasive the district court’s analysis of what deference the Notice is owed
in Student Loan Servicing Alliance v. District of Columbia, 351 F. Supp. 3d 26, 48–49 (D.D.C.
2018), and similarly conclude that Skidmore, 323 U.S. at 138, 140, provides the appropriate
framework for determining whether the agency’s determination is entitled to deference. Under
Skidmore, we conclude that the Notice should be given little weight because “it is not
particularly thorough and it ‘represents a stark, unexplained change’ in the Department’s
position.” Nelson, 928 F.3d at 651 n.2 (quoting Student Loan Servicing Alliance, 351 F. Supp.
3d at 50). We acknowledge that the Notice also addresses express preemption; however, we find
the Notice unpersuasive as to express preemption for the same reason.
       14
           Relying on Boyle v. United Technologies Corp., 487 U.S. 500, 508 (1988), Great Lakes
also advances a broader theory of conflict preemption, one based on the “uniquely federal
interest in uniformity.” Appellee’s Br. at 28. In Boyle, the Supreme Court held that state law is
preempted where there is: (1) “an area of uniquely federal interest” and (2) a “significant
conflict exists between an identifiable federal policy or interest and the operation of state law, or
the application of state law would frustrate specific objectives of federal legislation.” Boyle,
487 U.S. at 507 (alteration adopted) (citations and internal quotation marks omitted). Great
Lakes argues that there is a uniquely federal interest present in the HEA because loan servicers
act under contracts with the federal government.
        It is true that when liability is imposed on federal government contractors, the interest of
the federal government is affected. The inquiry does not end there, however, because even
though the conflict in an area of uniquely federal interest “need not be as sharp as that which
must exist for ordinary pre-emption,” a “conflict there must be.” Id. at 507–08. Because we
conclude that uniformity is not an overarching goal of the HEA, no such conflict exists, and
Boyle is inapplicable.
                                                 25
             Case: 18-14490     Date Filed: 04/10/2020    Page: 26 of 31



that Congress’s goal in enacting the federal student loan program was such

uniformity. Congress expressly identified the purposes of the program to include:

(A) “encourag[ing] States and nonprofit institutions and organizations to establish

adequate loan insurance programs for students,” (B) “provid[ing] a Federal

program of student loan insurance for students or lenders who do not have

reasonable access to a State or private nonprofit program of student loan

insurance,” (C) “pay[ing] a portion of the interest on loans to qualified students

which are insured,” and (D) “guarantee[ing] a portion of each loan insured under a

[qualified] program of a State or of a nonprofit private institution or organization.”

See 20 U.S.C. § 1071(a)(1). Notably, Congress did not use the word “uniformity”

or invoke the concept of uniformity in § 1071(a)(1).

      Absent a statement or other indication from Congress that its purpose in

enacting the FFELP was uniformity, multiple courts that have examined this issue

have determined that uniformity was not a goal of the HEA. See Coll. Loan Corp.

v. SLM Corp., 396 F.3d 588, 597 (4th Cir. 2005) (“We are unable to confirm that

the creation of ‘uniformity’ . . . was actually an important goal of the HEA.”);

Daniel v. Navient Sols., LLC, 328 F. Supp. 3d 1319, 1324 (M.D. Fla. 2018)

(“Uniformity, however, is not one of Congress’s expressed goals in enacting the

HEA . . . .”); see also Brooks v. Salle Mae, Inc., No. FSTCV096002530S,

2011 WL 6989888, at *9 (Conn. Super. Ct. Dec. 20, 2011) (unpublished)


                                          26
             Case: 18-14490     Date Filed: 04/10/2020   Page: 27 of 31



(concluding that “because uniformity is not mentioned as a goal of the HEA,”

compliance with the Connecticut Unfair Trade Practices Act “is not an obstacle to

the achievement of the objectives of the HEA”).

      We acknowledge that the Ninth Circuit in Chae concluded otherwise when it

determined that although some of the borrowers’ claims were not expressly

preempted by § 1098g, they nonetheless were implicitly preempted because they

posed an obstacle to the uniform operation of FFELP and therefore the HEA.

Chae, 593 F.3d at 946. In concluding that uniformity was an intended purpose of

the HEA, the Ninth Circuit relied on the comprehensive framework of the FFELP,

citing congressional direction to the DOE in the FFELP that referenced the

standardizing of forms, procedures, terms, conditions, and benefits throughout the

federal student loan programs. Id. at 944–45. The Ninth Circuit then determined

that allowing state law causes of action to proceed would conflict with that

purpose. Id. at 943, 945.

      We are unconvinced by the Ninth Circuit’s conclusion that uniformity was

an intended purpose of the HEA. Accepting the Ninth Circuit’s reasoning that the

HEA, through regulations in the FFELP, provides a detailed comprehensive

scheme or the standardization of certain procedures and other aspects of the federal

student loan program does not lead us to its conclusion because we do not infer

preemption from the comprehensive nature of a regulation alone. N.Y. State Dep’t


                                         27
             Case: 18-14490     Date Filed: 04/10/2020   Page: 28 of 31



of Soc. Servs. v. Dublino, 413 U.S. 405, 415 (1973). Although the guidance

provided by Congress in the FFELP is comprehensive, “subjects of modern social

and regulatory legislation often by their very nature require intricate and complex

responses from the Congress, but without Congress necessarily intending its

enactment as the exclusive means of meeting the problem.” Id. Chae is also

distinguishable because the Ninth Circuit identified the Congress’s purpose as the

“uniform administration” of the FFELP. 593 F.3d at 944–55, 948. The claims in

Chae concerned assessment of late fees, establishing repayment start dates, and

interest calculations—core administrative aspects of the FFELP that arguably

require more nationwide consistency than the subject of the claims at issue here,

personalized advice about loan forgiveness provided to individual student loan

borrowers. See id.; see also Nelson, 928 F.3d at 651 (noting that the broad

language regarding conflict preemption in Chae “focused on different sorts of

claims, where the value of uniformity would be more compelling than it is here”

and “assum[ing] the need for nationwide consistency on those sorts of

administrative mechanics is substantial”).

      Even if we assume that uniformity is a purpose of the HEA, the Borrowers’

claims would not conflict with that purpose. Congress’s interest in ensuring

uniform disclosures would not be harmed by a prohibition on voluntary affirmative

misrepresentations See Cipollone, 505 U.S. at 529 (“State-law prohibitions on


                                         28
               Case: 18-14490       Date Filed: 04/10/2020       Page: 29 of 31



false statements of material fact do not create ‘diverse, nonuniform, and confusing’

standards.”) (plurality opinion); see also Pennsylvania v. Navient Corp., 354 F.

Supp. 3d 529, 553 (M.D. Pa. 2018) (“Whether or not ‘uniformity’ is actually a goal

of the HEA . . . [t]he uniformity of the HEA in setting its requirements for the

standard parameters of the federal student loan programs is not harmed by

prohibiting unfair or deceptive conduct in the operation of those programs that is

not explicitly permitted by the HEA . . . .”). 15 We agree with the reasoning of

these courts: prohibiting Great Lakes from making affirmative misrepresentations

to borrowers—in contrast to imposing a duty to disclose—does no harm to

standardization of disclosures for federal student loan programs.

            2. The HEA Does Not Preempt the Field of Regulation of Student
               Loans.

       Relying on its argument that the HEA requires uniform administration, Great

Lakes argues that field preemption also applies. Field preemption exists where

Congress has “legislated so comprehensively” in an area of law that there is no

room for supplemental state legislation. R.J. Reynolds Tobacco Co. v. Durham

Cty., 479 U.S. 130, 140 (1986).

       We find Great Lakes’s field preemption argument to be the weakest of its

preemption arguments. This Court previously has addressed the question of field


       15
         An appeal of this decision is currently pending before the Third Circuit. See
Pennsylvania v. Navient Corp., No. 19-2116 (3rd Cir).
                                               29
             Case: 18-14490     Date Filed: 04/10/2020    Page: 30 of 31



preemption by the HEA in the context of debt collection and consumer protection

law. See Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1125–26 (11th Cir.

2004). Taking into account the HEA’s express preemption provisions, we

concluded in Cliff that “the enactment of the HEA does not ‘occupy the field’ of

debt collection practices and thus does not impliedly preempt [state laws].” Id. at

1126. We similarly conclude here that federal regulation of lending to students for

higher education is not so extensive as to indicate that Congress intended to occupy

the entire field. The mere fact that Congress has legislated in this field does not

imply that it seeks to occupy the entirety of it. See Keams v. Tempe Tech. Inst.,

Inc., 39 F.3d 222, 226 (9th Cir. 1994) (observing that “a detailed regulatory

scheme does not by itself imply preemption of state remedies” or an intent by

Congress to occupy the entire field). Given the implication against implied

preemption where Congress has expressly preempted specific areas of state law,

see Cipollone, 505 U.S. at 517, we conclude, as we did in Cliff, that field

preemption does not apply to the HEA.

      Our conclusion is consistent with decisions from other courts addressing

field preemption by the HEA. Indeed, no circuit court that has considered the issue

has found field preemption. See Nelson, 928 F.3d at 652 (“Courts have

consistently held that field preemption does not apply to the HEA, and we do as

well.”); Chae, 593 F.3d at 941–42 (noting that “field preemption does not apply to


                                          30
             Case: 18-14490     Date Filed: 04/10/2020    Page: 31 of 31



the HEA”); Armstrong v. Accrediting Council for Continuing Educ. & Training,

Inc., 168 F.3d 1362, 1369 (D.C. Cir. 1999) (concluding that “federal education

policy regarding [lending to students] is not so extensive as to occupy the field”).

Field preemption does not apply to the Borrowers’ claims.

                               V.    CONCLUSION

      The district court erred in concluding that the Borrowers’ claims were

preempted by the HEA. We note that Great Lakes raised in the district court

additional arguments why the Borrowers’ claims should be dismissed, including

that the Borrowers failed to meet Federal Rule of Civil Procedure 9(b)’s

heightened pleading standard. But “[b]ecause none of these issues were decided

initially, we decline to address them for the first time on appeal.” Leal v. Ga.

Dep’t of Corrs., 254 F.3d 1276, 1280–81 (11th Cir. 2001). We thus vacate the

district court’s order granting the motion to dismiss and remand for further

proceedings consistent with this opinion.

      VACATED and REMANDED.




                                          31
