The Biden administration is backing former Education Secretary Betsy DeVos as she tries to avoid having to testify in a lawsuit challenging the Trump administration’s lengthy delays and sweeping denials of student loan forgiveness claims.
The Justice Department joined with DeVos on Monday to fight a subpoena seeking her deposition as part of a class-action lawsuit brought on behalf of some 160,000 former for-profit college students seeking loan forgiveness on the grounds that they were defrauded.
DeVos is no longer the defendant in the lawsuit since she resigned from office Jan. 7 in the wake of the Capitol riots. But lawyers for the student borrowers say they need her testimony to get to the bottom of why her agency for years slow-walked the loan forgiveness claims and then began churning out denial letters with little explanation.
Democrats for four years slammed DeVos’ handling of student loan forgiveness for defrauded borrowers under a program known as “borrower defense to repayment.” President Joe Biden has vowed to reverse DeVos’ approach and restore Obama-era policies that were designed to more easily relieve the debts of students who were misled or cheated by their college.
But the Justice Department under the Biden administration is now coming to DeVos’ defense in the lawsuit, teaming up with her personal attorney this week to fight the subpoena compelling her testimony.
“Plaintiffs’ demand for a former Cabinet official’s deposition is extraordinary, unnecessary, and unsupported,” DeVos’ personal attorney and Justice Department lawyers wrote in a joint court filing on Monday. “It is a transparent attempt at harassment — part of a PR campaign that has been central to Plaintiffs’ litigation strategy from the outset.”
The Justice Department did not immediately respond to a request for comment. DeVos’ personal attorney in the case is Jesse Panuccio, who was the No. 3 official at the Justice Department during the Trump administration and is now a partner at Boies Schiller Flexner. He declined to comment on Tuesday.
The motion to block the subpoena was signed by Panuccio and Brian Boynton, who recently became acting assistant attorney general in the Biden administration. It was filed in federal court in the Southern District of Florida, which is where DeVos is a part-time resident, according to the filing.
A footnote in the filing says that DOJ is representing DeVos “in her capacity as former U.S. Secretary of Education” and “pursuant to DOJ’s representation of the U.S. Department of Education in the underlying litigation.”
The student loan borrowers are represented by Housing and Economic Rights Advocates and Harvard Law School’s Project on Predatory Student Lending, which successfully sued to block a range of DeVos’ higher education policies throughout the Trump administration.
The class-action lawsuit over the Trump administration’s processing of debt relief claims accused DeVos of illegally delaying action on tens of thousands of applications for loan forgiveness that piled up at the Education Department, in some cases for years, without receiving a decision.
Last spring, the borrowers and the Trump administration struck a preliminary deal that would have forced the Education Department to speed up its adjudication of their claims.
But several months later, the federal judge overseeing the case scrapped that settlement, ruling that DeVos had undercut the deal by denying large swaths of the outstanding claims without sufficient explanation. U.S. District Judge William Alsup of the Northern District of California blasted DeVos’ sweeping denials of the borrowers’ claims as “potentially unlawful” and “disturbingly Kafkaesque.”
Alsup, a Clinton appointee, at that time took the unusual step of authorizing the depositions of up to five Education Department officials to allow the class of student borrowers to probe the Trump administration’s decision to deny the claims and its months-long delays in processing them.
Alsup’s order had explicitly prohibited the deposition of Secretary DeVos. But after she resigned, the judge noted in a new one-paragraph order that he had imposed “no such restriction on Citizen DeVos” and said the plaintiffs were free to subpoena her.
Attorneys for the student borrowers late last month followed through with that demand, seeking DeVos’ testimony in a virtual deposition on Feb. 25.
In the joint filing by DeVos’ personal attorney and the DOJ, the lawyers said it was an “extraordinary request” for the student borrowers to seek the deposition of a former Cabinet secretary, who they said are usually shielded from having to testify about official actions.
They argued that the student borrowers have not shown that DeVos’ testimony is essential to their case and that they’ve exhausted alternative sources to obtain the information they want from DeVos.
Attorneys representing the student borrowers on Tuesday asked the federal judge in Florida to transfer the subpoena fight to the California judge overseeing the class-action lawsuit. That judge is set to hold a hearing on discovery disputes later this month.
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