United States v. Mark Falcon

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-16588
Plaintiff-Counter-defendant-
Appellee, D.C. No.
4:11-cv-00006-
v. FRZ
MARK J. FALCON,
Defendant-Counter-claimant- OPINION
Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Submitted October 23, 2015*
San Francisco, California
Filed November 9, 2015
Before: Michael Daly Hawkins, Barry G. Silverman, and
Morgan Christen, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. FALCON
SUMMARY**
Student Loans
The panel affirmed the district court’s judgment in favor
of the United States in the government’s action to collect
unpaid federally insured student loans.
The panel held that the Higher Education Technical
Amendments of 1991, which eliminated all statutes of
limitations on actions to recover on defaulted federally
guaranteed student loans, did not violate a student loan
debtor’s due process rights. The panel also held that the
student loan debtor failed to raise a genuine issue of material
fact or a question as to liability for the amount of
indebtedness alleged in the complaint.
COUNSEL
Vincent Lee Rabago, Tucson, Arizona, for Defendant-
Counter-claimant-Appellant.
John S. Leonardo, United States Attorney, Robert L. Miskell,
Appellate Chief, and Denise Ann Faulk, Assistant United
States Attorney, Tucson, Arizona, for Plaintiff-Counter-
defendant-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. FALCON 3
OPINION
PER CURIAM:
This appeal arises from the United States’ action to
collect unpaid federally reinsured student loans from
defendant-appellant Mark J. Falcon. Falcon obtained several
student loans between 1983 and 1991. Falcon then allegedly
defaulted. We affirm the district court’s grant of summary
judgment to the United States, and its denial of Falcon’s
motion to alter or amend the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The material facts are not in dispute. Between 1983 and
1991, Falcon signed several promissory notes to secure
guaranteed student loans, known as “Stafford Loans,” totaling
$47,900. On or about October 2, 1990, Falcon signed another
promissory note to secure a guaranteed loan from the Higher
Education Loan Plan, a so-called HELP Loan, in the amount
of $4,000. The promissory notes Falcon signed in connection
with his Stafford Loans and HELP Loan include promises to
pay all amounts disbursed, plus interest and fees. The loan
obligations evidenced by these notes were guaranteed by a
guaranty agency, and the guarantor was reinsured by the U.S.
Department of Education.
The government contends that Falcon defaulted on his
HELP Loan in 1993 and on his Stafford Loans in 1994 and
1997. As a result of the alleged defaults, the guaranty agency
paid the holders of the loans, and Department of Education
reimbursed the guaranty agency under a reinsurance
agreement. On May 6, 2005, the rights and title to Falcon’s
unpaid loans were assigned to DOE.
4 UNITED STATES V. FALCON
On January 4, 2011, the government filed this action. On
its motion for summary judgment, the United States argued
that Falcon owed a total of $112,563.51 on the Stafford
Loans, consisting of $53,697.74 in principal and $58,865.77
in accrued interest as of October 5, 2010, and that interest
continues to accrue on the principal balance at a rate of
$11.76 per day. It further contended that Falcon owed a total
of $10,088.21 for the HELP Loan, consisting of $4,778.74 in
principal and $5,309.47 in accrued interest as of October 10,
2010, and that interest continues to accrue on the principal
balance at a rate of $0.46 per day. The district court entered
judgment in favor of the United States. Falcon timely moved
to alter or amend the judgment under Fed. R. Civ. P. 59(e),
and raised a constitutional argument that Congress’
elimination of the statute of limitations for federally
guaranteed student loan collection actions violates his due
process rights. The district court denied Falcon’s motion, and
Falcon timely appealed.
STANDARD OF REVIEW
We review de novo the district court’s summary
judgment, and we review the denial of a motion under Rule
59(e) for an abuse of discretion. McCarthy v. Mayo, 827 F.2d
1310, 1314 (9th Cir. 1987).
DISCUSSION
The Higher Education Technical Amendments of 1991
(“HETA”) eliminated all statutes of limitations on actions to
recover on defaulted federally guaranteed student loans. 20
U.S.C. § 1091a(a)(2); see also United States v. Phillips, 20
F.3d 1005, 1007 (9th Cir. 1994) (“Congress not only
eliminated [the prior] six-year statute of limitations period,
UNITED STATES V. FALCON 5
but also revived all actions which would have otherwise been
time-barred.”).
Falcon’s primary argument is that HETA violates his due
process rights because, he contends, it creates eternal
indebtedness for a class of borrowers. Other circuits have
held that HETA’s retroactive abrogation of the statute of
limitations does not violate a student loan debtor’s due
process rights. See, e.g., United States v. Distefano, 279 F.3d
1241, 1244 (10th Cir. 2002); United States v. Hodges, 999
F.2d 341, 342 (8th Cir. 1993); see also Campbell v. Holt, 115
U.S. 620, 629–30 (1885) (holding that a legislature may
repeal or extend a statute of limitations, without violating the
Constitution, even after a right of action is barred). We join
the other circuits in holding that HETA’s elimination of the
limitations period for actions to collect on federally
guaranteed student loans does not result in a denial of due
process.
Falcon relies on Chase Securities Corp. v. Donaldson,
325 U.S. 304 (1945) to argue that Congress’ repeal of his
statute of limitations defense violates federal due process
because it generates oppressive effects and has created a
special hardship. He acknowledges, however, that no court
has found the repeal of a limitations period to work any such
hardship. In Chase Securities, the Court rejected the notion
that a change in the statute of limitations worked “special
hardships” on the defendant because his “conduct would have
been different if the present rule had been known and the
change foreseen.” Chase Sec., 325 U.S. at 316. Chase
Securities held that the existence of a legislatively provided
statute of limitations, and its subsequent repeal, did not give
rise to “a constitutional right against change of policy before
final adjudication.” Id.6 UNITED STATES V. FALCON
HETA’s change in law presents a weaker case for Falcon
than the change at issue in Chase Securities. HETA did not
revive an otherwise untimely action to collect as to Falcon’s
debt. Not only did HETA not resuscitate otherwise time-
barred claims in this case, but Falcon would not have had a
defense under the prior six-year statute.1 And even if he had,
congressional repeal of a statute of limitations does not
violate the due process clause. See In re Lewis, 506 F.3d 927,
932–33 (9th Cir. 2007) (rejecting due process challenge to
retroactive amendment of the Bankruptcy Code as to the
dischargeability of certain student loans).
Because Falcon’s constitutional challenge to summary
judgment fails, we must consider whether genuine issues of
material fact exist regarding the loan amounts alleged in the
complaint and Falcon’s default. The government established
a prima facie case through certificates of indebtedness, which
were signed under the penalty of perjury, showing that Falcon
executed promissory notes to secure loans, defaulted on the
loans, and owed the United States certain amounts after
offsets from various sources. See United States v.
Petroff–Kline, 557 F.3d 285, 290 (6th Cir. 2009). Falcon, on
the other hand, failed to present testimony for consideration
1
Before Congress enacted HETA, the statute of limitations for actions
to recover on defaulted student loans was six years, commencing from the
date on which the loan was assigned to DOE. See Higher Education Act
of 1965 as amended by the Consolidated Omnibus Budget Reconciliation
Act of 1985, Pub. L. No. 99-272 (1986); see also United States v.
Menatos, 925 F.2d 333, 335 (9th Cir. 1991), superseded by statute,
HETA, Pub. L. No. 102-26, 105 Stat. 123, as recognized in United States
v. Phillips, 20 F.3d 1005, 1007 (9th Cir. 1994). Under the prior law, the
government’s action would have accrued when Falcon’s loans were
assigned to DOE. This occurred in 2005 – less than six years before the
government filed suit.
UNITED STATES V. FALCON 7
on summary judgment to refute the government’s showing
that it was entitled to a judgment in the amount sought. As
the district court held, Falcon “failed to present sufficient
evidentiary facts to raise a genuine issue of material fact or a
question as to liability for the indebtedness alleged in Counts
I and II of the Complaint.” See Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(e)).
AFFIRMED.