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Biden Administration Goes to Bat for Betsy DeVos, Tries to Shield Her from Deposition in Students’ Class Action Lawsuit


President Joe Biden (L) pictured alongside former Secretary of Education Betsy DeVos (R)

The Biden administration argued Wednesday that former Secretary of Education Betsy DeVos should not have to give deposition testimony in a class action suit over the Department of Education’s (DOE) mishandling of thousands of student loans.

The lawsuit accuses the Education Department of refusing to process borrower defense claims, leaving more than 160,000 students “in limbo,” with bad credit and massive debt. Borrower defense claims allow students to seek loan forgiveness from the federal government when a school is found to have violated state law.

The “Borrower Defense Rule” has been a particularly sharp thorn in former Secretary DeVos’ side since she appeared on the education scene. From her confirmation hearing in which she was skewered for refusing to enforce federal anti-fraud rules, to DeVos’ highly-criticized move to disband the DOE’s “Borrower Defense Unit,” to a $100,000 court-imposed fine for sloppy management of claims by swindled students, DeVos’ attitude toward defrauded students has yielded near-constant ire from Democrats.

Plaintiffs in the class action lawsuit sought to depose DeVos, and U.S. District Judge William Alsup (a Bill Clinton appointee) agreed. Alsup found that although the request was unusual (given that DeVos is no longer the Secretary of Education), there had been enough evidence of bad faith in the DOE’s defense that there was an “extraordinary circumstance” supporting the need for a deposition. Alsup ruled that DeVos must answer a subpoena, reasoning that “Judicial process runs even to unwilling executives.”

The Biden Administration appealed Alsup’s ruling via petition for a writ of mandamus, asking the Ninth Circuit to quash the subpoena.  The DOJ argued that the firmly established rule against deposing heads of government agencies should apply in this case. It also argued that there simply isn’t any good reason to depose DeVos, noting that “The only asserted purpose for deposing former Secretary DeVos is to probe her mental processes related to official agency action,” and not to provide any official DOE information. The DOJ further asserted that deposing a former cabinet secretary is not only an improper request, but also one that will not yield any information that plaintiffs could not have obtained through less burdensome means.

Counsel made oral arguments Wednesday before a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit. The panel included U.S. Circuit Judges Milan Smith Jr. (a George W. Bush appointee), Richard Paez (a Bill Clinton appointee), and Jacqueline Nguyen ( a Barack Obama appointee).

Attorney Sean Janda of the DOJ argued that the district court erred in concluding that former secretary DeVos had any “unique and firsthand knowledge” about the borrower defense claims underlying the class action lawsuit.

Attorney Margaret O’Grady, who represented the plaintiffs, reminded the court about DeVos’ public opposition to enforcing the Borrower Defense Rule, saying, “We already know what she feels about borrower defense.”

O’Grady continued, explaining, “What we want to ask her about is who she told to stop processing borrower defense applications, what reason she gave for them to stop processing borrower defense applications, and how it came to be that when thousands of students were finally given an answer about their borrower defense application, they were given an answer that violated the Administrative Procedure Act.”

You can listen to the full oral arguments here.

[image via SAUL LOEB/AFP via Getty Images; Zach Gibson/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos