F I L E D

United States Court of Appeals

Tenth Circuit

FEB 12 2002

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VICKI DISTEFANO,

Defendant-Appellant.

No. 01-3126

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 00-CV-2267-CM)

Submitted on the briefs:

James E. Flory, United States Attorney, and Nancy Landis Caplinger, Assistant

United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.

Vicki Distefano, pro se.

Before MURPHY , McKAY , and BALDOCK , Circuit Judges.

McKAY , Circuit Judge.
1 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

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Defendant-appellant Vicki Distefano appeals from the district court’s order

granting summary judgment to the United States of America. 1 The United States,

acting through its agency the Department of Education (DOE), brought this action

seeking to recover on defaulted student loans made to Ms. Distefano under

federally funded loan programs authorized under Title IV-B of the Higher

Education Act of 1965, 20 U.S.C. §§ 1071-1087-4 (“Title IV-B”). Ms. Distefano

contends that the loans have been paid in full, and that this action is barred by the

statute of limitations.

On June 9, 1981, Ms. Distefano signed a promissory note in favor of the

Home State Bank of Kansas City, Kansas (“Home State Bank”), in the principal

amount of $2,500, with an interest rate of nine percent. On August 18, 1981,

Ms. Distefano signed a second promissory note in favor of Home State Bank in

the amount of $500, also carrying an interest rate of nine percent. The loan

obligation evidenced by the two notes was guaranteed by a guaranty agency, and

then reinsured by the DOE under Title IV-B.

The United States contends that Ms. Distefano defaulted on her loan

obligations on March 8, 1984. Based on the alleged default, the guaranty agency
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paid the holder of the note $3,161.89. As the guaranty agency was unable to

collect the debt, the DOE reimbursed the guaranty agency under its reinsurance

agreement. On October 2, 1991, the DOE took assignment of the unpaid loans.

The United States filed this action on June 13, 2000. In an affidavit filed

in support of its motion for summary judgment, the United States contended that

only $400 was ever paid on the loans from any source, that Ms. Distefano owed

$6,072.67 in principal and interest as of May 1, 2000, and that interest continues

to accrue at the rate of $0.69 per day. The district court granted judgment in

favor of the United States in the principal sum of $2,811.67, plus interest of

$3,498.73 through March 27, 2001, plus post-judgment interest and $150.00

filing fee.

“We review a district court’s grant of summary judgment de novo, applying

the same legal standard used by the district court.” Hollins v. Delta Airlines ,

238 F.3d 1255, 1257 (10th Cir. 2001). Summary judgment is proper if the moving

party shows “there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “When

applying this standard, we view the evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party.” Scull

v. New Mexico , 236 F.3d 588, 595 (10th Cir. 2000) (quotation omitted).
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1. Statute of limitations

We first consider Ms. Distefano’s argument that this action is barred by the

statute of limitations. In support of her argument, she references 20 U.S.C.

§ 1091a(a)(4)(B) and (C) (1986). These subsections, in effect until 1991,

required the Attorney General to file suit within six years of the date a delinquent

loan was assigned to the Secretary of Education. 

Effective April 9, 1991, however, Congress amended § 1091a to eliminate

the statute of limitations associated with collection of Title IV-B student loans. 

Section 1091a(a)(2) now provides:

Notwithstanding any other provision of statute, regulation, or

administrative limitation, no limitation shall terminate the period

within which suit may be filed, a judgment may be enforced, or an

offset, garnishment, or other action initiated or taken by --

. . .

(B) a guaranty agency that has an agreement with the Secretary . . .

that is seeking the repayment of the amount due from a borrower on a

loan made under part B of this subchapter [Title IV-B] after such

guaranty agency reimburses the previous holder of the loan for its

loss on account of the default of the borrower; [or]

. . .

(D) the Secretary, the Attorney General, or the administrative head of

another Federal agency, as the case may be . . . for the repayment of

the amount due from a borrower on a loan made under this

subchapter and part C of subchapter I of chapter 34 of Title 42 that

has been assigned to the Secretary[.]
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The revised version of § 1091a thus abrogated the previous statute of

limitations. The abrogation operates retroactively and is constitutional. United

States v. Hodges , 999 F.2d 341, 341-42 (8th Cir. 1993).

Moreover, in Ms. Distefano’s case, by the time the DOE took assignment of

the defaulted loans (the event that would have started the six-year clock under the

1986 statute) the new version of § 1091a eliminating the statute of limitations had

already gone into effect. Thus, this case does not present the sort of retroactivity

problem that arises when a new statute revives claims already barred under

a previous statute of limitations. Even if it did, the Supreme Court has upheld,

against due process challenges, statutes reviving such barred claims. See Chase

Sec. Corp. v. Donaldson , 325 U.S. 304, 311-14 (1945); Campbell v. Holt ,

115 U.S. 620, 628 (1885). As have we. See Bernstein v. Sullivan , 914 F.2d 1395,

1400-03 (10th Cir. 1990).

The Supreme Court has indicated in dicta the possibility that abrogation of

a statute of limitations might result in a due process violation if it resulted in

“special hardships or oppressive effects.” Chase Sec. , 325 U.S. at 316. 

Construing Ms. Distefano’s pro se brief broadly, she may present such an

argument. Ms. Distefano argues that her father paid off her loans in 1982. She

contends that since her father’s bank only keeps cancelled checks for five years,

and since her father died in 1997, she has been unable to substantiate the
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payment. She also complains that the DOE did not demand payment on the notes

until seventeen or eighteen years after they first became due.

These facts are not sufficient to establish special hardship, however. First,

we note that even under the prior six-year statute of limitations, the attorney

general would have had until October 2, 1997 to bring suit. Thus, abrogation of

the statute of limitations extended the time period before suit was brought by less

than three years. Ms. Distefano fails to show that the harms she complains of are

attributable in any way to this three-year delay.

If anything, most of the lapse in time can be attributed to Congress’s

decision, in the former version of § 1091a, not to begin running the six-year

statute of limitations against the Attorney General until the date of assignment to

DOE. To the extent Ms. Distefano argues that the seven-year delay between

default and assignment constitutes a special hardship, however, this argument

must also fail. Courts have routinely rejected statute of limitations arguments in

cases involving delays much longer than seven years between default and

assignment. See United States v. McLaughlin , 7 F. Supp. 2d 90, 91 n.3 (D. Mass.

1998) (collecting cases). 

Turning to Ms. Distefano’s claim concerning demand for payment, the

affidavit of Jessica Liu, loan analyst, states that “[t]he holder of the notes made

demand for payment according to the terms of the notes.” R. doc. 10,
2 Ms. Distefano’s pleadings might also be read to state a defense of laches. 

Such a defense would fail, however, because laches may not be asserted against

the United States in an action brought to enforce a public right or a public

interest. See, e.g., United States v. Telluride Co. , 146 F.3d 1241, 1246 n.7

(10th Cir. 1998).

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Liu Declaration at 2. Although no date is given for the alleged demand,

a reasonable inference may be drawn that it was made prior to the date the

guaranty agency paid the holder, sometime between March 8, 1984, and October

2, 1991. Ms. Liu’s affidavit further recites that the guaranty agency attempted to

collect the debt from Ms. Distefano before the assignment was made. Such

collection attempts are required by statute, prior to reimbursement by the

Secretary of the guaranty agency’s loss. See 20 U.S.C. § 1080(a). Ms. Distefano

has presented no testimony, by affidavit or in other form suitable for

consideration on summary judgment, that contradicts the claim of the United

States that demand for payment was made many years prior to the institution of

this suit. She has failed to show a special hardship, resulting in a denial of due

process, in her case. 2

2. Alleged repayment

Ms. Distefano argues that her father paid off her loans in 1982, using

a check from the drugstore he owned at that time. Unfortunately, she did not

present this argument in district court through a signed affidavit or through other

evidence that would be admissible to rebut the United States’ showing on
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summary judgment that she owed the debt. Fed. R. Civ. P. 56(e). In general,

litigants proceeding pro se are held to the same procedural standards as those with

counsel. Green v. Dorrell , 969 F.2d 915, 917 (10th Cir. 1992). The district court

properly determined that Ms. Distefano’s claim of repayment was unsupported by

the evidence and could not survive summary judgment.

The judgment of the United States District Court for the District of Kansas

is AFFIRMED. Ms. Distefano’s motion to proceed in forma pauperis is

GRANTED. All pending motions are DENIED. The mandate shall issue

forthwith.