## 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 L andis Caplinger, Assistant United States Attorney, Topeka, Kansas, for Plainti ff-Appellee. Vicki Distefano, pro se.

Before MURPHY , McKAY , and BALDOCK , Circuit Judges.

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

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. -2- Defendant-appellant Vicki Distefano appeals from th e district court’s order granting summary judgment to the United States of America. 1 The United States, acting through its agency the Department of Educati on (DOE), brought this action seeking to recover on defaulted student loans made to Ms. Distefano under federally funded loan programs authorized under Tit le IV-B of the Higher Education Act of 1965, 20 U.S.C. §§ 1071-1087-4 (“T itle 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 per cent. 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 guarantee d by a guaranty agency, and then reinsured by the DOE under Title IV-B. The United States contends that Ms. Distefano defau lted on her loan obligations on March 8, 1984. Based on the alleged default, the guaranty agency-3-

paid the holder of the note $3,161.89. As the guar anty agency was unable to collect the debt, the DOE reimbursed the guaranty a gency under its reinsurance agreement. On October 2, 1991, the DOE took assign ment of the unpaid loans. The United States filed this action on June 13, 200 0. 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 sourc e, that Ms. Distefano owed $6,072.67 in principal and interest as of May 1, 20 00, and that interest continues to accrue at the rate of $0.69 per day. The distri ct 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 judg ment 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 judg ment 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 dr aw 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 omi tted).-4-

1. Statute of limitations We first consider Ms. Distefano’s argument that thi s 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 s ix 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 collecti on of Title IV-B student loans. Section 1091a(a)(2) now provides: Notwithstanding any other provision of statute, reg ulation, or administrative limitation, no limitation shall term inate the period within which suit may be filed, a judgment may be e nforced, or an offset, garnishment, or other action initiated or t aken by --

. . . (B) a guaranty agency that has an agreement with th e Secretary . . . that is seeking the repayment of the amount due fro m 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 adm inistrative head of another Federal agency, as the case may be . . . fo r the repayment of the amount due from a borrower on a loan made underthis subchapter and part C of subchapter I of chapter 34 of Title 42 that has been assigned to the Secretary[.]-5-

The revised version of § 1091a thus abrogated the p revious 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 eliminatin g the statute of limitations had already gone into effect. Thus, this case does notpresent 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 possib ility that abrogation of a statute of limitations might result in a due proc ess 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 pai d off her loans in 1982. She contends that since her father’s bank only keeps ca ncelled checks for five years, and since her father died in 1997, she has been una ble to substantiate the-6-

payment. She also complains that the DOE did not d emand 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 bri ng 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 thatthe harms she complains of are attributable in any way to this three-year delay. If anything, most of the lapse in time can be attri buted 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 s even-year delay between default and assignment constitutes a special hardsh ip, 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 no tes.” 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 apublic right or a public interest. See, e.g., United States v. Telluride Co. , 146 F.3d 1241, 1246 n.7 (10th Cir. 1998). -7- Liu Declaration at 2. Although no date is given fo r the alleged demand, a reasonable inference may be drawn that it was mad e prior to the date the guaranty agency paid the holder, sometime between M arch 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 assi gnment 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 othe r 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 hardsh ip, resulting in a denial of due process, in her case. 2
2. Alleged repayment Ms. Distefano argues that her father paid off her l oans 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 s igned affidavit or through other evidence that would be admissible to rebut the Unit ed States’ showing on-8-

summary judgment that she owed the debt. Fed. R. C iv. 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 districtcourt properly determined that Ms. Distefano’s claim of r epayment was unsupported by the evidence and could not survive summary judgment

. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED. Ms. Distefano’s motion to proceed in forma pauperis is GRANTED. All pending motions are DENIED. The mand ate shall issue forthwith.