           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 14, 2009

                                       No. 08-50584                    Charles R. Fulbruge III
                                                                               Clerk

GLENN BRAGG; JOLYNN BRAGG,

                                                   Plaintiffs - Appellants,
v.

THE EDWARDS AQUIFER AUTHORITY; VELMA DANIELSON, in her
official capacity as General Manager of The Edwards Aquifer Authority

                                                   Defendants - Appellees.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:06-CV-1129


Before DAVIS, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants Glenn and JoLynn Bragg, owners of two pecan
orchards located above the Edwards Aquifer in Texas, sued the state regulatory
agency in charge of the Aquifer, the Edwards Aquifer Authority, and its general
manager (collectively, “the Authority”) under 42 U.S.C. § 1983 for alleged
violations of the United States constitution; they also asserted related state law
takings claims.        They sued because the Authority denied the Braggs’
applications for withdrawal permits for their two orchards, allegedly refused to

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
approve settlements between the Braggs and third parties, and implemented a
purportedly unconstitutional junior/senior water withdrawal rights regulatory
scheme.
       In its well reasoned order of August 31, 2007, the district court dismissed
certain claims, including the third-party settlement claims, as time barred under
Fed. R. Civ. P. 12(b)(6). In its order of March 25, 2008, the court granted
summary judgment in favor of the Authority on the remaining federal law
claims, concluding that the Braggs failed to state constitutional violations. The
court then exercised its discretion to dismiss the remaining state law claims. In
addition to the cogent reasons assigned by the district court, for the following
reasons we conclude that the district court is correct in all respects:
       1) On the issue of timeliness, the Braggs focused their oral argument on
the proposition that the Authority’s actions constitute a continuous course of
conduct and thus make all their claims timely. We disagree. This case clearly
involves a discrete series of individual events, each subject to its own two year
statute of limitations.1 Claims relating to some of those events are clearly time
barred.
       The Braggs properly cite Williamson County Regional Planning
Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 200 (1985), for the
proposition that the effect of regulations “cannot be measured until a final



       1
         The Braggs largely rely on Huckabay v. Moore, 142 F.3d 233 (5th Cir. 1998), and
Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102 (5th Cir. 1990), neither of which supports
the application of the continuous course of conduct theory in this case. In Hendrix, we applied
the theory only to a hostile work environment claim but did not apply it to claims relating to
demotion and denial of promotion because they were “isolated occurrence[s] apart from the
continuously violative hostile work environment.” 142 F.3d at 240. In Hendrix, we refused
to apply the theory to a series of paychecks received by the plaintiffs where the underlying
claim was a reduction in base pay which occurred outside the statute of limitations and which
“had ‘the degree of permanence that should trigger an employee’s awareness of and duty to
assert his or her rights.’” 911 F.2d at 1104 (quoting Berry v. Board of Supervisors, 715 F.2d
971, 981 (5th Cir. 1983)). Here, each of the Authority’s actions (e.g., denying each permit
application or reducing the Braggs’ withdrawal rights under the junior/senior rights scheme)
was such an “isolated occurrence” with the requisite “degree of permanence.”

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decision is made as to how the regulations will be applied.” In that case, the
Supreme Court held that the respondent’s § 1983 claim was premature because
the respondent filed suit before applying for a variance from the regulations and
thus did not give the agency an opportunity to make a decision. Id. That is not
the situation here.
      For each of their orchards, the Braggs applied to the Authority for a
permit and the Authority issued a final decision, triggering a separate two year
§ 1983 statute of limitations with each decision. Although the Braggs continued
to enjoy interim water rights on each orchard until January 1 of the year
immediately following the Authority’s permit application decision concerning
that orchard, the district court correctly concluded, under Burns v. Harris
County Bail Bond Board, 139 F.3d 513 (5th Cir. 1998), that the § 1983 statute
of limitations began to run from the Authority’s final decision permanently
denying water rights and not from the time the interim rights expired by
operation of law.
      The Authority issued a final decision completely denying the Braggs’
permit application on their smaller D’Hanis orchard on October 21, 2004 and
issued a final decision substantially denying their application on their larger
Home Place orchard on February 8, 2005. Because the Braggs did not file suit
until November 21, 2006, it is plain that claims relating to the D’Hanis denial
(but not the Home Place denial) are untimely under the two year statute of
limitations. Moreover, the Braggs made it clear in their amended complaints
that the Authority had already refused to approve the 2001 and 2002 third-party
settlement agreements when it denied the D’Hanis permit application on
October 21, 2004, so the settlement claims are also time barred. Therefore, the
district court’s Rule 12(b)(6) dismissal of claims relating to the smaller orchard’s
permit application as time barred was correct for the reasons given in the court’s
August 31, 2007 order.




                                         3
       2) The district court correctly dismissed the Braggs’ substantive due
process claims because even if the Authority happened to be incorrect on issues
of state law, its actions do not approach the arbitrariness or conscience-shocking
standard required for such a violation.2
       3) The district court correctly dismissed the Braggs’ equal protection
claims because such a claim requires proof “that [the plaintiff] has been
intentionally treated differently from others similarly situated and that there is
no rational basis for the difference in treatment.” Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (emphasis added).                 The Braggs, who are
permitted (i.e., non-exempt) users entitled only to the statutory minimum
withdrawal rights, base their equal protection claims on comparisons with
Aquifer users who are not similarly situated to them. Those users are either
exempt users or permitted users who are entitled by permit (based on their
historical use) to greater withdrawal rights than the Braggs. The district court
properly concluded that the Braggs failed to demonstrate an equal protection
violation.
       4) Because the district court correctly dismissed all of the federal law
claims, it acted within its discretion in remanding the remaining state law
claims to state court. 28 U.S.C. § 1367(c)(3).
       Accordingly, for these reasons and those set forth in the district court’s
careful orders of August 31, 2007 and March 25, 2008, the judgment is affirmed.


AFFIRMED.



       2
         See Marco Outdoor Advertising, Inc. v. Regional Transit Authority, 489 F.3d 669, 673
n.1 (5th Cir. 2007). For instance, the Braggs argue that the Authority illegally implemented
the junior/senior water rights scheme in violation of the Edwards Aquifer Authority Act’s
guaranteed statutory minimum withdrawal rights for certain users, but the Authority only
implemented the scheme to avoid exceeding the aggregate statutory maximum withdrawal
rights, which it was not free to ignore or alter under the law, considering the drought
conditions at the time. Thus, the Authority’s implementation of the junior/senior rights
scheme was certainly not arbitrary, though it may have been wrong under the state law.

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