Ex-Cabinet member can be deposed as ‘Citizen DeVos’

Plaintiffs can depose former U.S. Education Secretary Betsy DeVos in a lawsuit challenging her department's decision to halt processing applications by defrauded students seeking debt relief, a federal judge in San Francisco ruled Tuesday.

Explaining he "appreciates class counsel's request to depose DeVos," U.S. District Judge William Alsup ruled a "prior order restricted deposition of the secretary" but that it "imposed no such restriction regarding Citizen DeVos."

DeVos resigned from President Donald Trump's Cabinet on Thursday.

Eileen Connor, director of the Project on Predatory Student Lending at Harvard Law School, which represents the plaintiffs, said in a statement that DeVos "personally drove policies that delayed justice for students."

"She has the obligation to explain why defrauded student borrowers were ignored for years by the Education Department and then summarily denied their rights, and that obligation does not expire with her resignation," Connor said.

The Departments of Justice and Education did not immediately respond to requests for comment. It's unknown whether Justice Department attorneys will continue representing DeVos, or whether her personal attorneys will take over on her behalf.

Under the borrower defense rule, federal loans to students defrauded by predatory for-profit colleges can be forgiven. The plaintiffs sued the Education Department, which said that it was going to stop processing the claims to re-evaluate President Barack Obama administration policies. The lawsuit alleges the Education Department purposely enacted a "policy of inaction and obfuscation" to prevent them from obtaining debt relief.

The plaintiffs seek information concerning the development of the blanket denials and an order from the Education Department to Federal Student Aid for it to halt issuing decisions on the applications..

In a one-page order, Alsup gave the green light for plaintiffs to depose DeVos. He cited her resignation as secretary of education on Thursday.

"Now, given her new status, if counsel pursues such deposition, it must subpoena Ms. DeVos," he wrote.

Four department officials, including Federal Student Aid Director of Borrower Defense Colleen Nevin, FSA Chief Operating Officer Mark Brown and Education Department Deputy Undersecretary Diane Jones, have already been deposed. They testified that DeVos has "unique first-hand knowledge" Connor said.

Plaintiffs have requested information about the process and individuals involved in drafting and reviewing the form denial letters at issue in discovery disputes. The defendants responded that they "lack knowledge or information to provide a further response to this interrogatory," according to court filings.

Connor said in a Monday letter to Alsup urging him to allow the deposition of DeVos that the deposed individuals were "no more forthcoming."

"None of the four deponents took responsibility for setting, developing, or even understanding what agency policy was regarding borrower defense," she wrote.

The deposed department officials, however, all pointed to DeVos as the "person in a position to approve the form denial notices," the plaintiffs claimed. They named her as the only individual with authority to stop or restart issuing borrower defense decisions, the plaintiffs claimed.

"All discovery thus far suggests that former Secretary DeVos drove the policies that caused the delay, developed and disseminated the pretextual excuses for the delay, and has knowledge about the development of the denial letters," the letter said.

Alsup left open in previous orders the possibility for plaintiffs to pursue testimony from DeVos, explaining that they cannot depose her "at this time" and that "extraordinary circumstances may justify such a deposition at a later date."

There was a deal to settle the lawsuit, but it fell apart in October after the plaintiffs said the department started to issue blanket denials with little explanation for its findings. Sweet v. DeVos, 19-cv-03674 (N.D. Cal., filed June 25, 2019).

Rejecting the settlement, Alsup concluded that "the secretary's new perfunctory denial notices undermine the proposed settlement, contradict her original justification for delay, raise substantial questions under the APA, and may impose irreparable harm upon the class of student loan borrowers."

DeVos was also hit with a $100,000 contempt fine in a separate case from former Corinthian College students seeking debt relief because they were allegedly required to repay federal loans in violation of a court order.