1 The Honorable Theodore McMillian diedon January 18, 2006. This opinion is being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 03-3819

___________ Dee Ella Lee, *
* Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Margaret Spellings, Secretary of * the Department of Education, *
* Appellant. *

___________ Submitted: January 26, 2006 Filed: May 18, 2006

___________ Before ARNOLD, McMILLIAN, 1 and MELLOY, Circuit Judges.

___________ ARNOLD, Circuit Judge.

In Lee v. Paige , 376 F.3d 1179 (8th Cir. 2004), we held that the ten-year time limit in the Debt Collection Act, see 31 U.S.C. § 3716(e)(1), barred the Secretary of Education from offsetting a porti on of Dee Ella Lee's social security benefits to repay a student-loan debt that she owed to th e government. The Supreme Court granted certiorari , vacated our judgment, and remanded the case to us for reconsideration in-2- light of its subsequent opinion in Lockhart v. United States , 126 S. Ct. 699 (2005). Spellings v. Lee , 126 S. Ct. 825 (2005).

In Lockhart , 126 S. Ct. at 700-02, the Cour t held that the time limit in § 3716(e)(1) did not bar the government from o ffsetting the plaintiff's social security benefits to repay federally-reinsured student loans. Relying on 20 U.S.C.A. § 1091a (a)(2)(D), the Court ruled that the time limits of § 3716(e)(1) did not apply to "various student loans, including the loans at issue" in Lockhart

. Id. at 701. The Court observed that although social security payments were not reachable at the time Congress passed § 1091a (a )(2)(D), when Congress later ma de social security benefits available for collection, § 1091a (a)(2)(D) precluded any time limit for offsetting those benefits to pay debts that the beneficiaries owed to the Secretary on the "various student loans."

Although Ms. Lee did not have reinsured student loans, as did the borrower in Lockhart , the statute that the Court relied on in Lockhart also eliminates any time limits for collecting payments on the so-called Federal Perkin's Loans that Ms. Lee obtained. See 20 U.S.C.§§ 1091a(a)(2)(D), 1087aa, 1087cc(a)(5). Thus no time limitation prevents the Secretary from offse tting Ms. Lee's social security benefits.

We may, of course, affirm the summary judgment entered for Ms. Lee in the district court on any basis supported by the record, Koscielski v. City of Minneapolis , 435 F.3d 898, 901 (8th Cir. 2006), and Ms. Lee also claimed below that the Secretary violated her due process right s by offsetting her social security benefits and that the Secretary was precluded by laches from collecting on the student-loan debt. We address those claims in turn.

Ms. Lee based her due proce ss argument, in part, on the fact that the six-year statute of limitations for filing suit agai nst persons who had defaulted on various students loans was in effect when she took out the loans, 20 U.S.C. § 1091a(a)(4)(B),-3- (C)(1986), but was retroactively eliminat ed years later by § 1091a (a)(2)(D). See United States v. Hodges , 999 F.2d 341, 342 (8th Cir. 1993). Initially, we question the relevance of the six-year statute of limita tions to Ms. Lee's due-process claim, since she challenges only the government's offset of her social security benefits. As we have said, the time limit for using a governmentoffset to repay a student loan was ten years (not six) before C ongress passed § 1091a(a)(2)(D). See 31 U.S.C. § 3716(e)(1). In 1991, § 1091a(a)(2)(D) eliminated both the te n-year time limit for an offset and the six-year time limit for filing suit to collect student-loan debts such as Ms. Lee's, and we do not believe that the elimination of either time limit violated her due process rights.

Although Ms. Lee acknowledged that a cha nge in a statute of limitations does not, in itself, violate due process, see Chase Sec. Corp. v. Donaldson , 325 U.S. 304, 315-16 (1945), she argued that permitting the government to collect on the loans after its "extreme delay" caused he r a particular hardship because of her loss of memory and paperwork and her decreas ed ability to work. In Chase , 325 U.S. at 316, the Supreme Court left open the possibility thatlifting the bar of a statute of limitations could offend the due process clause if it re sulted in "special hardships or oppressive effects." See also United States v. Hodges , 999 F.2d 341, 342 (8th Cir. 1993) (per curiam).

But the district court, after expressing its sympathy for Ms. Lee's circumstances, concluded that they did not amount to a "s pecial hardship" and that she therefore could not make out a due-process claim. Lee v. Paige , 276 F. Supp. 2d 980, 984-85 (W.D. Mo. 2003). The court noted that Ms. Lee did not dis pute that she owed money on the loans or that the government had "u tilized nine different collection agencies over the course of twelve years" and she admitted receiving repeat ed calls and letters about the debt. Id. at 984. The court concluded th at no "extreme delay" occurred on the part of the government.-4- We believe that the district court's ru ling here is correct, and that, although the court stated that it was not addressing whethe r the offsets, in particular, violated the due process clause, see id. at 984 n.2, the same reasoning precludes her from prevailing on such a claim. We agree that the government did not engage in "extreme delay." The record reflects that the defaulted loans were assi gned to the government in 1987 and 1989, and the Secretary began se nding letters to Ms. Lee about the debt no later than 1989. In additi on, the Department of Edu cation began assigning the debt to collection agencies in 1989 and continue d to do so until 2002, when Ms. Lee filed this lawsuit. We also thi nk that Ms. Lee's contention that the Secretary's alleged delay somehow prevented her from working to pay th e debt is belied by her statement in the record that "over the years" the Secretary had demanded payment and that at all of these times she was disabled and unable to pay. And Ms. Lee confirmed her inability to work and her awareness of the debt by calling the Department of Education beginning in 1988 to ask that the debt be forgiven based on her disability. (Although disability may sometimes be the basis for discharging a student-loan debt, see 34 C.F.R. § 682.402(c), the Department deniedMs. Lee's requests because it found that she was disabled at the time that she took outthe loans; that issue is not before us.)

We also note that the six-year and te n-year time limits were eliminated only four years after the first loan was assigned to the Department, see 20 U.S.C.A. § 1091a (a)(2)(D), and thus the time limits never expired and § 1091a (a)(2)(D) did not "revive" any claims against her. We think that Ms. Lee's st atements indicate that she was aware of the debt but was simply unable to pay, and there is no evidence to support a finding that she would (or could) have acted different ly if she had known that the time limits for pursuing the debt w ould be eliminated and her social security benefits would be subject to offset. Cf. Chase , 325 U.S. at 315-16. We conclude that although Ms. Lee suffered hardship s due to her lack of income, she failed to show the "special hardships or oppressive effects" of the elimination of a statute of limitations that the Supreme Court stated might support a due process claim. See id. at 316.-5- We also reject Ms. Lee's laches argument because we have held that a laches defense may not be asserted against the government. See United States v. Brown , 835 F.2d 176, 180 (8th Cir. 1987). And, in a ny event, Ms. Lee has not shown that the government inexcusably delayed asserting its claim, a requirement for laches, see Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc. , 182 F.3d 598, 602 (8th Cir. 1999).

We therefore vacate both our previous opinion and the district court's judgment for Ms. Lee, and we remand with directi ons to enter a judgment in favor of the Secretary.

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