     Case: 18-11091     Document: 00515055252   Page: 1   Date Filed: 07/30/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                            United States Court of Appeals
                                                                     Fifth Circuit

                                 No. 18-11091                      FILED
                                                               July 30, 2019
                                                              Lyle W. Cayce
In the Matter of: VERA FRANCES THOMAS                              Clerk

            Debtor

VERA FRANCES THOMAS,

            Appellant

v.

DEPARTMENT OF EDUCATION,

            Appellee



                Appeal from the United States District Court
                     for the Northern District of Texas


Before JONES, HO, and OLDHAM, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Appellant Thomas challenges the bankruptcy court’s denial of discharge
of her student loan debt pursuant to 11 U.S.C. § 523(a)(8). This court, like the
bankruptcy and district courts, is bound by our previous interpretation of the
discharge provision in In re Gerhardt, 348 F.3d 89 (5th Cir. 2003). Finding no
error, we AFFIRM.
                             I. Factual Background
      Vera Frances Thomas, the Appellant, is over 60 years old and had to file
a Chapter 7 bankruptcy case in 2017.       Ms. Thomas suffers from diabetic
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                                No. 18-11091
neuropathy, a degenerative condition that causes pain in her lower
extremities. Ms. Thomas is now unemployed and subsists on a combination of
public assistance and private charity. In February 2012, however, she had
worked for eight years at a call center in Southeastern Virginia and was
earning $11.40 per hour with benefits. That year, Ms. Thomas decided to
enroll at a local community college to improve her career prospects (she had a
high school diploma, but no higher education credits). She obtained two $3,500
loans through the Department of Education, the first on February 14, 2012 and
the second on September 21, 2012 to finance her first two semesters of courses.
Ms. Thomas did not return for a third semester, and her loans went into
repayment in December 2013. In spring 2014, she made payments of $41.24
and $41.61 on the loans.
      Ms. Thomas’s health began to decline significantly in 2014 when she was
diagnosed with diabetic neuropathy.       The condition, which often reduces
circulation in patients’ lower extremities, caused muscle weakness, numbness,
and pain in her legs and feet after prolonged standing. Ms. Thomas frequently
took unpaid leave from work at the call center to manage her symptoms and
incurred significant medical expenses. In 2016, her employer was acquired by
another company, and the new employer fired her for violating company
policies. Because she was terminated for cause, Ms. Thomas was ineligible for
unemployment benefits.
      To defray costs, Ms. Thomas moved to Texas to live with her then-
boyfriend. She obtained work with Perfumania, then Whataburger, and finally
UPS. But each job required her to be on her feet, and she could not maintain
these positions. Since quitting UPS in 2017, Ms. Thomas has not obtained
employment that comports with her need for sedentary work.
      Unable to make payments on her student loans and other significant
debts, Ms. Thomas filed Chapter 7 bankruptcy in Dallas and received a general
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discharge of her debts. Seeking a discharge of her student loan debt as well,
Ms. Thomas initiated an adversary complaint in bankruptcy court against the
Department of Education.
                               II. Procedural Background
       To discharge student loan debt under the Bankruptcy Code, a debtor
must show that the debt would impose an “undue hardship” on the debtor if it
is not discharged. 11 U.S.C. § 523(a)(8). 1 In In re Gerhardt, 348 F.3d 89 (5th
Cir. 2003), this court adopted the three-prong test for evaluating “undue
hardship” claims established by the Second Circuit in Brunner v. New York
State Higher Education Service Corp., 831 F.2d 395 (2d Cir. 1987). To justify
the discharge of student loan debt under this test, a debtor must prove:
       (1) that the debtor cannot maintain, based on current income and
       expenses, a ‘minimal’ standard of living for [herself] and [her]
       dependents if forced to repay the loans; (2) that additional
       circumstances exist indicating that this state of affairs is likely to
       persist for a significant portion of the repayment period of the
       student loans; and (3) that the debtor has made good faith efforts
       to repay the loans.
Gerhardt, 348 F.3d at 91 (quoting Brunner, 831 F.2d at 396).
       The bankruptcy court held a trial to review Ms. Thomas’s complaint,
applied Gerhardt, and determined that “Ms. Thomas has not met her burden
of showing undue hardship under the controlling standard in the Fifth Circuit
. . . .” The bankruptcy court concluded that she had satisfied the first prong of
Brunner—showing an inability to maintain a minimal standard of living if
forced to repay the loan—because her monthly expenses ($640) exceeded her
monthly income ($194). Ms. Thomas failed to pass Brunner’s second standard,


       1 This provision states: “A discharge under section 727…of this title does not discharge
an individual debtor from any debt … unless excepting such debt from discharge under this
paragraph would impose an undue hardship on the debtor and the debtor’s dependents, for-
--[enumerated     government-backed        and   other     student   loans].”         11 U.S.C.
§ 523(a)(8).
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however, because she “conceded that she is unable to show she is completely
incapable of employment now or in the future;” she admitted that she could not
establish that her present state of affairs would persist for a significant portion
of the loans’ repayment period.
      The bankruptcy court noted that the exceptionally demanding second
prong of Brunner requires more than a showing of dire financial straits because
the debtor must show that circumstances out of her control have resulted in a
“total incapacity” to repay the debt now and in the future. (quoting Gerhardt,
348 F.3d at 92). Moreover, the court observed that such situations are so rare
that “in fifteen years on the bench, the undersigned judge has never discharged
a student loan over the objection of the lender.”             Having concluded that
Ms. Thomas could not satisfy the second Brunner prong, the court did not reach
a conclusion regarding the third prong.
      Ms. Thomas appealed the bankruptcy court’s decision to the federal
district court, which affirmed essentially for the reasons stated by the
bankruptcy court.      Despite ruling that her student loans were non-
dischargeable, both courts indicated sympathy for Ms. Thomas and their
discomfort with the demanding nature of the Brunner/Gerhardt test.
Ms. Thomas has appealed to this court.
                                  III. Discussion
      This court “review[s] the decision of a district court, sitting as an
appellate court, by applying the same standards of review to the bankruptcy
court’s finding of fact and conclusions of law as applied by the district court.”
In re Gerhardt, 348 F.3d at 91 (citation omitted).                Consequently, the
“bankruptcy court’s findings of fact are reviewed for clear error and conclusions
of law are reviewed de novo.” Id. (citation omitted). An undue hardship




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determination under Gerhardt poses a question of law and is reviewed de novo.
Id. (citations omitted).
       Ms. Thomas principally contends that the Brunner/Gerhardt test is
inconsistent with the plain meaning of the term “undue hardship” in
§ 523(a)(8) and urges this court to adopt a “totality of the circumstances” test
instead. As she concedes, this court is bound by Gerhardt until an en banc
panel of this court or the Supreme Court opts to alter our interpretation of
§ 523(a)(8).    And despite Ms. Thomas’s challenges to its framework, the
Brunner test reflects the majority view of this discharge-limiting provision
among the circuit courts. Compare In re Faish, 72 F.3d 298 (3d Cir. 1995); In
re Frushour, 433 F.3d 393 (4th Cir. 2005); In re Oyler, 397 F.3d 382 (6th Cir.
2005); In re Roberson, 999 F.2d 1132 (7th Cir. 1993); In re Pena, 155 F.3d 1108
(9th Cir. 1998); Educ. Credit Mgmt. Corp. v. Polleys, 356 F.3d 1302 (10th Cir.
2004); In re Cox, 338 F.3d 1238 (11th Cir. 2003) (all adopting the Brunner test),
with Long v. Educ. Credit Mgmt. Corp. (In re Long), 322 F.3d 549, 554 (8th Cir.
2003) (holding that the statutory language of § 523(a)(8) contains “inherent
discretion” and that “fairness and equity require each undue hardship case to
be examined on the unique facts and circumstances that surround the
particular bankruptcy”).
       The government does not challenge the bankruptcy court’s finding that
Ms. Thomas satisfied the first prong of the Brunner test because she cannot
maintain a minimal living standard if forced to repay the student loans. We
accept that finding for present purposes. Nor need we opine, despite the
government’s urging, on the third Brunner prong, which evaluates
Ms. Thomas’s good faith efforts to repay the loan. 2               Thus, the controlling


       2 The government’s position is based on various avenues by which a student loan
debtor may seek reduction of payments, modifications of the terms, and in some instances
outright cancellation of all or part of the debts. Ms. Thomas availed herself of none of these
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                                     No. 18-11091
inquiry here is whether Ms. Thomas demonstrated that due to external
circumstances beyond her control, i.e., her deteriorating diabetic conditions
and the costs associated with it, she is unable to maintain employment and is
unlikely to ever be able to repay the debt.                     Phrased in terms of
Brunner/Gerhardt, the question is whether because of external factors, her
present inability to pay her student loans and maintain a minimal standard of
living will persist throughout a significant portion of the loan repayment
period.
      The answer to this question must be negative. Ms. Thomas’s argument
that she meets the second Brunner prong is contradicted by the record.
Foremost, she is, by her own admission, capable of employment in sedentary
work environments. Second, her actual employment experience demonstrates
that after losing the call center job, she was hired by three different employers,
although she quit when they were unable to accommodate her need to remain
sedentary for periods of time during her shifts. Finally, she lost her job at the
call center not because of physical problems beyond her control but for a
violation of company policies.
      In sum, there is no evidence that Ms. Thomas’s present circumstances,
difficult as they are, are likely to persist throughout a significant portion of the
loans’ repayment period. Under the standard adopted by this court and the
vast majority of other circuit courts, Ms. Thomas is not eligible for a discharge
of her student loans.
                      IV. Critiques of Brunner and Gerhardt
      Although the lower courts’ decision must be affirmed in light of our
governing authority, Ms. Thomas, along with an amicus, expends much of her



alternatives. The lower courts, however, did not make findings or conclusions based on this
prong of the Brunner/Gerhardt test.
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                                 No. 18-11091
briefing on an extended critique of Brunner/Gerhardt and a plea that these
decisions be reevaluated. She argues that Brunner is no longer good law
because the court failed to engage in the close textual analysis that, accurately
conducted, would have substantially ameliorated the debtor’s burden to show
“undue hardship.” Ms. Thomas further argues that Brunner, if good law at all,
should only be applied to “unsympathetic” student loan default debtors.
Finally, Ms. Thomas contends that from a practical and policy standpoint,
Brunner no longer suits the times.
      These critiques are unconvincing in view of both the text of § 523(a)(8)
and the context in which the provision was created and amended. Congress
has amended federal bankruptcy law on several occasions, increasing the
threshold for student loan discharges each time, before finally settling on an
“undue hardship” standard.        Before 1976, student loans were easily
dischargeable. Abuses of the readily available discharge occurred. That year,
Congress passed amendments to the Higher Education Act of 1965 requiring
student loans to have been in repayment status for at least five years before
they could be discharged, unless the debtor could show that repayment would
cause undue hardship. Pub. L. 94-482 (Oct. 12, 1976). Section 523(a)(8) was
formally created two years later and incorporated essentially the same terms
contained in the Education Amendments of 1976. Pub. L. 95-598 (Nov. 6,
1978). See, e.g., In re Pelkowski, 990 F.2d 737, 742─43 (3d Cir. 1993) (“It is
undisputed that section 523(a)(8) was enacted in response to the belief that
students were taking advantage of the loan program,” and the provision’s
passage “focused on the twin goals of rescuing the student loan program from
fiscal doom and preventing abuse of the bankruptcy process by undeserving
debtors”).
      In 1990, Congress changed the law again, extending the required
repayment period from five years to seven years prior to discharge and
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eliminating the dischargeability of government service scholarships by
students who failed to meet their obligations. 3 Pub. L. 101-647 (Nov. 29, 1990).
Finally, in response to the growing trend of commercial lending, Congress
amended the Bankruptcy Code yet again in 2005 to make qualified private
student loans harder to discharge, prohibiting discharge in all cases, unless
repayment would create “undue hardship” for the debtor.                  Pub. L. 109-8
(April 20, 2005).     Section 523(a)(8) as it stands today excepts virtually all
student loans from discharge unless requiring repayment would “impose an
undue hardship on the debtor and the debtor’s dependents . . . .” Congress’s
series of amendments clearly evinces an intent to limit bankruptcy’s use as a
means of offloading student loan debt except in the most compelling
circumstances.
      This trend is captured in the plain text of § 523(a)(8). When interpreting
statutes, “[w]ords are to be understood in their everyday meanings—unless the
context indicates that they bear a technical sense.”               SCALIA & GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS, 69 (2012). The Oxford
English Dictionary defines “undue” as “going beyond what is appropriate,
warranted, or natural” or “excessive.” Undue, Oxford English Dictionary
(OED) (3d ed., Mar. 2014). “Hardship” is defined as “a state of want or
privation.” Hardship, OED (3d ed., Mar. 2014). The plain meaning of the
words chosen by Congress is that student loans are not to be discharged unless
requiring repayment would impose intolerable difficulties on the debtor. The
threshold by definition must be greater than the ordinary circumstances that



      3 That amendment came on the heels of litigation in the Eighth Circuit in which a
medical student accepted a government scholarship from the Physician Shortage Area
Scholarship Program on the condition that he work in an underserved area after graduation.
The student did not comply with the conditions of the scholarship after he graduated, and
when the government sought to recoup the money, the student filed for bankruptcy. U.S.
Dep’t Health & Human Servs. v. Smith, 807 F.2d 122 (8th Cir. 1986).
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might force one to seek bankruptcy relief. 4 As the Freshour court explained,
“Inability to pay one’s debts by itself cannot be sufficient; otherwise all
bankruptcy litigants would have undue hardship.                       The exception would
swallow the rule, and Congress’s restriction would be meaningless.” In re
Freshour, 433 F.3d at 399. This is the genesis of the Brunner/Gerhardt
standard, which inquires whether requiring a debtor to repay a student loan
is likely to prevent the debtor from maintaining a minimal standard of living
over the course of the repayment period despite good faith efforts to fulfill her
obligations.
       Ms. Thomas attempts a false analogy between the term “undue
hardship” as used to cabin discharges of student loans and the same term as
applied to court approvals of voluntary reaffirmation agreements for individual
debts by pro se debtors. See 11 U.S.C. § 524(c)(6)(A) (a court may approve such
agreements only if “in the best interest of the debtor” and the agreement will
not impose “undue hardship”). The student loan provision places the burden
on the debtor to show undue hardship, while the latter provision requires close
supervision by the bankruptcy court to protect the debtor as a pro se litigant




       4  Indeed, the general test for seeking bankruptcy relief is simply a person’s inability
generally to pay his debts as they come due. See generally 2 Alan N. Resnick & Henry J.
Sommer, COLLIER ON BANKRUPTCY ¶ 109.09 (16th 2019). A debtor’s good faith in seeking
relief is a premise of the powerful relief that bankruptcy offers—the opportunity of a fresh
start enforced by an injunction barring creditors’ collection efforts. See In re Little Creek Dev.
Co., 779 F.2d 1068, 1071 (5th Cir. 1986) (“Every bankruptcy statute since 1898 has
incorporated literally, or by judicial interpretation, a standard of good faith for the
commencement, prosecution, and confirmation of bankruptcy proceedings.”) (citations
omitted). See also Harris v. Viegelahn, 135 S. Ct. 1829, 1838 (2015) (noting that conversions
from Chapter 13 bankruptcy proceedings to Chapter 7 proceedings must be initiated in good
faith). But such inability, coupled with good faith, does not require a bankruptcy court to
find the debtor suffers from “undue hardship” as a prerequisite to filing.
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from herself or from wheedling creditors. Taken in context, the terms are not
inconsistent.
      No doubt because so many student loans are ultimately backed by the
taxpayers, Congress intended to make student loan debt harder to discharge
than other types of consumer debt, and the courts’ adoption of a linguistically
accurate and demanding standard fulfills that intent. The consequence of the
Brunner/Gerhardt test is that sympathetic debtors like Ms. Thomas are held
to the same standard as debtors who are less sympathetic. But that is an
outcome for Congress to address, should it desire. The text of § 523(a)(8) draws
no distinction between debtors perceived as sympathetic or unsympathetic. It
is undoubtedly true that each case of claimed “undue hardship” must be
examined on its own facts, but reducing the Brunner/Gerhardt test to a
nebulous “totality of the circumstances” standard risks creating intolerable
inconsistency of results.   The proposed weaker standard would inevitably
judicially expand an area of bankruptcy law that Congress has unambiguously
sought to constrict.
      We also reject Ms. Thomas’s description of the present state of the law
as “time-clad,” that is, rendered obsolete by intervening events. Such events,
she contends, include Congress’s strengthening of collection remedies against
student loan debtors to include measures like garnishment and interception of
tax refunds, and the ever-increasing amount of student loan debt amassed in
recent years.   Of course, as the government observes, enhanced collection
remedies are rendered useless if the circumstances affording bankruptcy
discharge of student loans are broadened. And the fact that student loans are
now mountainous in quantity poses systemic issues far beyond the capacity or
authority of courts, which can only interpret the written law. Moreover, that
Congress understands § 523(a)(8) to proscribe student loan discharges in all
but the most severe circumstances is evidenced by proposed amendments
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submitted in 2015, 2017, and 2019 that seek “to make student loans
dischargeable.”     See H.R. 449 (Jan. 21, 2015); H.R. 2366 (May 4, 2017);
H.R. 770 (Jan. 24, 2019). Ultimate policy issues raised by Ms. Thomas and the
amicus are for Congress, not the courts.
      For these reasons, the Brunner standard articulated by the Second
Circuit and adopted by this court in Gerhardt and by the majority of other
courts of appeals is supported by the plain meaning of § 523(a)(8) and bolstered
by the context in which this provision arose. Policy-based arguments do not
change this interpretation; the role of this court is to interpret the laws passed
by Congress, not to set bankruptcy policy.
                                 V. Conclusion
      The judgments of the bankruptcy court and the district court denying
discharge are AFFIRMED.




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