Dаniel and Eva Leavell, the proprietors of several businesses, did not file their 1985 and 1986 tax returns until 1990. An audit concluded that they owed substantial additional taxes. The Tаx Court fixed their tax liabilities for 1985 to 1987 at approximately $1 million, including hefty interest and penalties.
Leavell v. CIR,
A little more than 13 months later, the Leavells struck back with this
Bivens
action against Charles Kieffer, who conducted the audit and presented his conclusions as a witness at the trial. See
Bivens v. Six Unknown Named Agents,
Kieffer moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief may be granted; the district judge wrote that he was dismissing the suit under Fed. R.Civ.P. 12(b)(1) for lack of jurisdiction. Neither rule supports the disposition. The statute of limitations is an affirmative defense. Comрlaints need not anticipate or plead around affirmative defenses,
Gomez v. Toledo,
Federal law defines the accrual of a
Bivens
claim.
Kronisch v. United States,
These principles doom the Lea-vells’ suit. They contend that Kieffer committed twо wrongs: he testified falsely at a trial that occurred in January 1994 and intimidated the Leavells’ accountant before trial. These steps caused immediatе injury. Suppose Kieffer threatened to audit the accountant’s own tax returns if he persisted in working for the Leavells. Then the Leavells either would have hаd to compensate the accountant for the cost of this threat, or hire a new accountant whose personal finances made him threat-proof. Either kind of expense would have been incurred before trial, though the full cost of (say) an accountant with higher hourly rates could not be determined until later, when the number of hours finally would have been known. Likewise there was immediate injury if Kieffer lied to the court. A false accusation of cheating оn one’s taxes is defamatory, and the Leavells would have suffered an injury to their reputation—an injury on which an immediate suit could have been based (all questions about testimonial immunity to one side). False testimony that prolongs or complicates a lawsuit also causes the adverse party to incur attorneys’ fees in order to set the record straight, and these fees are a concrete loss that may be recovered as damages. So no later than January 1994 the Leavells knew that they had suffered injury from Kieffer’s supposedly wrongful conduct. The claim accrued then, and not in March 1996 when the Tax Court released an opinion showing that the judge believed Kieffer, or in July 1996 when the Tax Court quantified the taxes and penalties due. The decisions of March and July 1996 may havе added an element of damages, but they were not the first injuries the Leavells suffered—and the pe *496 riod of limitations runs from the first injury, not the last.
Like most rules, the first-injury principle has a few exceptions. One is that if separate injuries represent separate claims — for example, monthly payments missed under an installment note — then a new period of limitations begins with each distinct claim.
Bay Area Laundry Fund v. Ferbar Corp.,
Triviality is a second exception to the first-injury principle. Suppose A hits B and breaks B’s glasses. Three years later a physician diagnoses a serious internal injury cаused by the punch, but an injury that had no earlier manifestation. B’s time to sue does not begin until the hidden injury is discovered. Courts generalize this as the principle that a сlaim does not accrue until the victim knows of an injury sufficiently serious to cause a reasonable person to seek legal redress.
Goodhand v. United States,
One last issue. The Leavells contend that equitable estoppel extends the time for suit because “the Internal Revenue Service agreed to conduct a completely new audit of Plaintiffs [sic] records” and did not renege on this offer until June 1998. That might be an interesting event if the Leаvells were suing the Internal Revenue Service, but they are not. They want Kieffer, personally, to pay them a million dollars. They do not allege that Kieffer did anything to lull them into delaying a Bivens suit, so he can’t be equitably estopped to plead the statute of limitations.
Affirmed.
