April 16, 2021

DeVos Seeks Emergency Order to Avoid Deposition by Defrauded Students

DeVos Seeks Emergency Order to Avoid Deposition by Defrauded Students

Seeking to avoid being questioned under oath by lawyers for defrauded for-profit college students, Trump education secretary Betsy DeVos has filed an unusual emergency petition with a federal appeals court.

On Thursday, DeVos’s lawyer, former top Trump administration lawyer Jesse Panuccio, now with the Ft. Lauderdale office of famed litigator David Boies’s law firm, filed an Emergency Petition for a Writ of Mandamus with the U.S. Court of Appeals for the Eleventh Circuit, asking that court to take the rare step of blocking a South Florida federal trial court from transferring the dispute over DeVos’s deposition to the federal judge in San Francisco who is hearing the lawsuit between the defrauded students and DeVos.

The students, represented by lawyers from Harvard Law School’s Project on Predatory Student Lending and the group Housing & Economic Rights Advocates, sued DeVos in her official capacity as education secretary in 2019, alleging the Department of Education was improperly delaying review of applications for loan relief.

After a remarkable hearing last fall via Zoom where students described predatory and deceptive conduct by big for-profit college chains like the demised Corinthian Colleges and ITT Tech, and the still-in-business Perdoceo, the San Francisco judge, William Alsup, said their lawyers could depose five Department of Education officials to find out what had happened.

The students’ lawyers subpoenaed DeVos on January 26, in South Florida, where she has a home, after she had resigned and the Trump administration had ended. Judge Alsup had initially barred the students’ lawyers from deposing Secretary DeVos, but after her resignation, he issued an order saying the lawyers could subpoena “Citizen DeVos.”

DeVos went to a Florida federal court and filed a motion to block the deposition. Dismayingly, as we first reported, DeVos was joined in that motion by the Biden Justice Department, in a brief signed by new Biden appointee Brian Boynton, who had represented the for-profit college industry as a lawyer at the giant corporate firm WilmerHale.

Without deciding on the joint DeVos-Justice Department motion to block the deposition, a Florida federal magistrate took the logical step, over the objections of DeVos and the Justice Department, of transferring the dispute to the court, in San Francisco, which was already hearing the case. Judge Alsup then directed DeVos’s lawyer to file a new brief in his court.

Boynton and the Justice Department have not joined the new DeVos “emergency” motion, which seeks the rare legal remedy of a writ of mandamus, asking the Atlanta-based federal appeals court, which has jurisdiction over Florida, to overturn the transfer decision and itself order the “quashal” (cool word) of the deposition subpoena.

DeVos’s lawyer admits in his brief to the appeals court that legal precedent considers mandamus to be “an extraordinary remedy… appropriate only when no other adequate means are available to remedy a clear usurpation of power or abuse of discretion by the district court.” But he insists the dramatic step is needed because it is inappropriate to depose a cabinet secretary, in a lawsuit over government actions, as courts in the past have speculated that cabinet secretaries are very busy and held that they should not be probed regarding their “mental state” in connection with agency decisions.

But the lawyers for students have pointed to evidence that DeVos was personally involved in decisions to deny students debt relief.

Indeed we know that, when forced early in her tenure to sign a directive implementing an Obama-era decision to cancel the loans of some defrauded students, DeVos added a gratuitous notation that she was doing so “with extreme displeasure.” She repeatedly sought to portray former for-profit college students not as victims of predatory schools but as con artists seeking “free money.”

I’d also be curious how busy the billionaire former secretary is these days in her Vero Beach, Florida, home. My guess is that DeVos just doesn’t want to have to defend her repeated decisions to side with the predatory for-profit college industry over the low-income veterans, single moms, and others this industry has systematically deceived, abused, and defrauded. 

UPDATE: On Friday, April 16, the 11th Circuit Court of Appeals denied DeVos’s motion to stay the lower court proceedings, meaning the appeals court refused to block immediately the transfer of the subpoena fight to the California court. The 11th Circuit gave lawyers for the students a week to respond to the petition. 

UPDATE: On Monday, April 19, Judge Alsup in San Francisco denied DeVos’s motion to stay the parties’ briefing of the issue of whether the students can depose her. “Even if the Court of Appeals for the Eleventh Circuit ruled that the matter should return to Florida,” Judge Alsup writes, “there will be no harm in completing the briefing. There will be time enough in the future to consider a stay if we reach the point that an order to appear at her deposition is imminent.” 

UPDATE: On Friday, May 7, a three-judge panel of the 11th Circuit Court of Appeals denied DeVos’s motion for a writ of mandamus. All three judges agreed that DeVos did not demonstrate  that her right to relief is clear and indisputable, as required for a mandamus writ. In a separate brief concurring statement, Judge Andrew Brasher opined, “Speaking only for myself, I believe the order to transfer was erroneous and that the subpoena should be quashed. But, assuming the petitioner raises these arguments again in the transferee court, that court must be the one to rule on those issues.” The other two judges did not comment on the merits of those issues.

UPDATE 05-14-21: Betsy DeVos wants so badly not to be deposed by lawyers for defrauded for-profit college students, or even to let a California-based federal judge decide whether she should be deposed, that her attorney, that former top Trump administration lawyer, has filed an extraordinary second appeal of the denial of an extraordinary request, asking the full 11th Circuit Court of Appeals to decide the matter, and certifying, as required, “that this appeal involves … questions of exceptional importance.” It doesn’t. 

If you have enough money — and Betsy DeVos does — you can hire the most expensive lawyers, seek endless reversals and delays, and try to avoid justice by outlasting your public interest law opponents who represent low-income people. Luckily I know the students’ lawyers, from the Project on Predatory Student Lending and Housing & Economic Rights Advocates, will persist.

UPDATE 05-19-21:

Judge Alsup, the federal trial judge in San Francisco, today denied DeVos’s motion to quash the subpoena, finding the required “extraordinary circumstances” to justify the deposition of a former cabinet secretary. Judge Alsup found “bad faith” by the Department in that it first asserted in court that processing borrower claims took extensive time but then began denying claims at “breakneck pace.” He found DeVos had personal involvement in the decisions, based on her senior aides, including Diane Auer Jones, passing the buck in their depositions. He cited a number of cases allowing the deposition of senior officials in comparable circumstances.

Alsup directed that the lawyers for the students may depose DeVos “for three hours, excluding breaks.” He stayed his order for fourteen days, or until the resolution of any review of DeVos’s mandamus petition (which, I suppose could include an attempt to go to the U.S. Supreme Court), whichever comes later. 

UPDATE 10-07-21:

The Biden Justice Department, continuing its joint efforts with lawyers for Betsy DeVos to prevent students’ lawyers from deposing DeVos, sought mandamus of Judge Alsup’s decision from the 9th Circuit Court of Appeals. The 9th Circuit held oral argument on October 6. You can listen to it here