                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               MAY 11 1998
                                       TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 R. LEON SMITH and S. DIANE SMITH,

           Plaintiffs-Appellants,
 v.
                                                              No. 97-2057
                                                      (D.C. No. CIV-96-878-LH)
 THOMAS C. HUNTON, FRANK
                                                       (District of New Mexico)
 GLOVER and WINFRED RILEY,

           Defendants-Appellees.




                                    ORDER AND JUDGMENT*



Before PORFILIO, LOGAN, and MURPHY, Circuit Judges.




       Leon and Diane Smith farmed land in Curry County, New Mexico, which was sold

in a foreclosure action. During the proceeding, the Smiths, appearing pro se, filed a

counterclaim against FmHA which they ultimately agreed to dismiss with a stipulation

that the claims made by the Smiths “remain viable for independent adjudication.”




       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Relying upon Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the

Smiths filed this action in June 1996 alleging Frank Glover, Thomas Hunton, and

Winfred Riley, FmHA officials, committed violations of plaintiffs’ rights to due process

and equal protection under the Fifth Amendment as well as various violations of FmHA

rules and procedures. The Smiths sought injunctive relief “to insure that they can obtain

FmHA loans and loan servicing in the future” and unspecified damages. Defendants

moved to dismiss on grounds of failure to state a constitutional claim, statute of

limitations, and qualified immunity.

       The district court granted the motion primarily upon statute of limitations

grounds.1 First, it found the actions complained of in this action initially arose in March

1991 and reoccurred in March 1993. The court then concluded the nature of those

allegations triggered a three-year statute of limitations, making the present action filed in

June 1996 untimely. The court next found the reservation of claims in the foreclosure

action did not toll the statute of limitations because the Smiths’ claims were asserted

against the FmHA and not the individual defendants in this case.

       On appeal, the Smiths raise three issues, none of which has merit. What the

Smiths ignore is they have chosen to bring a new action against three individuals who

were not parties to the prior suit instituted by the FmHA. Moreover, the counterclaims




       The court also noted in passing the defendants were entitled to qualified
       1

immunity.

                                             -2-
they asserted in that prior action were made against the agency, and not the individuals.

Independently, these factors are sufficient to bar their claims here regardless of their

arguments to the contrary.

       Bivens, the jurisdictional basis for the present action, is a judicially created remedy

having no inherent limitation of action; consequently, it borrows from any closely

analogous state statute of limitations. Industrial Constructors Corp. v. United States

Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994). In this case, New Mexico’s

three-year limitary period for personal injury applies. Id. However, we look to federal

law to determine when a cause of action accrues. “The statute of limitations begins to run

when the plaintiff knows or has reason to know of the existence and cause of the injury

which is the basis of his action.” Id. at 969.

       Plaintiffs alleged they were injured by a March 1991 denial of loan restructuring or

lease/buy back; a January 1992 objection to their failed bankruptcy Chapter 12 plan; and a

March 1993 rejection of loan restructuring. Thus, it is indisputable that in March 1993,

the Smiths knew their efforts to obtain any FmHA relief were stillborn. Accordingly, the

Smiths had until March 1996 to file their Bivens action.

       Their resort to the New Mexico tolling statute must fail because different parties

are involved and the actions are totally dissimilar. Rito Cebolla Investments, Ltd. v.

Golden West Land Corp., 607 P.2d 659, 666 (N.M. Ct. App. 1980) (The tolling statute

requires both actions involve the same parties, the same cause of action, and the same


                                             -3-
right appearing from the record.). Even if the foreclosure counterclaim included similar

allegations, it was a different cause of action against different parties.

       Although the Smiths characterize the language in the stipulation to dismiss the

foreclosure action as deceptive, any plain reading produces the conclusion the parties

wanted to be clear the foreclosure was dismissed with prejudice leaving the counterclaim

viable for the Smiths to pursue. Under any scenario, it is impossible to reshape that

possibility into the basis for equitable tolling.

       Having reached this point, we do not need to consider the Smiths’ argument

regarding qualified immunity. The lack of timeliness of this action is adequate grounds

for its dismissal.

       The motion to supplement the record is GRANTED, and the judgment of the

district court is AFFIRMED.



                                             ENTERED FOR THE COURT



                                             John C. Porfilio
                                             Circuit Judge




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