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

                                                                            FILED
                                                                         February 14, 2008

                                     No. 07-30525                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MICHAEL R MITCHELL

                                                  Plaintiff-Appellant
v.

CRESCENT RIVER PORT PILOTS ASSOCIATION; ALLEN J GIBBS, in his
individual and personal capacity; BOARD OF RIVER PORT PILOTS
COMMISSIONERS FOR THE PORT OF NEW ORLEANS; JACK H
ANDERSON, in his individual and personal capacity; DONALD J SHORT, in
his individual and personal capacity; SCOTT A LOGA, in his individual and
personal capacity; CRAIG ANDREWS, in his individual and personal
capacity; JAMES E CRAMOND, in his individual and personal capacity for
current and former members of the Board of River Pilots Commissioners

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:06-CV-3746


Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-30525

      Plaintiff-Appellant Michael Mitchell (“Mitchell”) appeals the order of the
district court dismissing all of his claims against Defendants-Appellees Crescent
River Port Pilots Association, Board of River Port Pilots Commissioners for the
Port of New Orleans, and various members of these two groups (collectively,
“Defendants”). Mitchell asserts that the Defendants discriminated against him
on the basis of his race in a manner that precluded him from becoming a river
port pilot. The district court, in a detailed thirty-six page order, granted the
Defendants’ motions to dismiss under Federal Rule of Civil Procedure 12(b)(6).
For the following reasons, we AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Although the district court’s opinion sets out the facts in copious detail,
here we merely summarize the facts most relevant to this appeal. Mitchell, who
is African-American, wanted to earn his commission as a river port pilot under
Louisiana law. He has been a first class pilot of passenger vessels since 1996,
and becoming a river port pilot would have allowed him to pilot vessels in
various parts of the Mississippi River near New Orleans. To become a river port
pilot, an applicant first must satisfy several conditions, including the completion
of “an approved apprenticeship program within the geographic area.” LA. REV.
STAT. ANN. § 34:993.       The Crescent River Port Pilots Association (the
“Association”), which consists of the current river port pilots, runs the approved
apprenticeship program in the New Orleans area, and it admits applicants to its
program through an election. To be eligible for the election to the apprenticeship
program, an applicant must possess the U.S. Coast Guard pilot’s licenses for the
designated portions of the Mississippi River and must not have reached his
fortieth birthday prior to the Association’s election day.
      Mitchell alleges that he began his attempts to become a river port pilot in
November 2001. At that time, Allen J. Gibbs (“Gibbs”), the president of the
Association, told Mitchell to apply for its apprenticeship program. However,


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                                       No. 07-30525

Jack H. Anderson, the president of the Board of River Port Pilots Commissioners
for the Port of New Orleans (the “Board”),1 informed Mitchell that he did not
meet the requirements to stand as a candidate for a river port pilot
apprenticeship because he did not hold the U.S. Coast Guard pilot’s licenses for
all of the required portions of the Mississippi River. Mitchell then began his
attempt to obtain his remaining required pilot’s licenses.                      One of the
requirements for receiving a pilot’s license is the completion of a certain number
of rides aboard piloted ships. Therefore, Mitchell asked Gibbs for permission to
ride with current river port pilots on their vessels. Gibbs responded that the
Association was not allowing riders at that time, but that Mitchell should try
again in early 2002. Mitchell then found three river port pilots who offered to
have Mitchell ride with them. When Mitchell asked Gibbs again in 2002 to ride
along with these river port pilots, Gibbs responded that the Association was not
allowing riders for insurance reasons.
       Mitchell continued in his attempts to go on piloted ships with current river
port pilots, including drafting his own indemnity agreement for the Association
to have the current river port pilots sign before permitting Mitchell to ride with
them after the Association failed to follow up on its promise to draft one. Gibbs
responded that Mitchell’s form was unsatisfactory, but he did not provide his
own form at that time. Mitchell also sought to ride with Errol Williams
(“Williams”), an African-American deputy pilot (i.e., a first-year river port pilot),
but Williams would not allow Mitchell to ride in his vessel because he said that
the Board and Association would not allow a deputy pilot to take along
prospective apprentices. Mitchell alleges, however, that the Board permitted

       1
         The Board is a statutorily created body that consists of three river port pilots whom
the Governor selects as Commissioners, with the state senate’s consent. See LA. REV. STAT.
ANN. § 34:991(A). The Governor designates which Commissioner serves as its president. Id.
The Board is responsible for establishing the qualifications of river port pilots and providing
for the examination and approval of apprenticeship programs, among other duties. See id.
§ 34:991(B).

                                              3
                                      No. 07-30525

white deputy pilots to have prospective apprentices ride with them and that the
Board did not promulgate a provision banning this practice until after Mitchell
asked to ride with Williams.2
       Gibbs finally provided Mitchell with an approved indemnity agreement in
May 2003, even though the Association had apparently finished drafting it in
January 2003. In June 2003, the Association held an election for river port pilot
apprentices.     Mitchell was not on the ballot, and he contends that the
Association elected six whites and no African-Americans to the apprenticeship
program. After the election, Mitchell sent the Board several letters requesting
placement in the next apprenticeship program, but he contends that the Board
ignored his letters.
       Mitchell asserts that in May 2005 he finally obtained his U.S. Coast Guard
pilot’s licenses for all portions of the Mississippi River in question. He informed
the Board that he had met its licensing requirement. The Association held its
next election on April 3, 2006, and Mitchell’s name again was left off of the
ballot. Mitchell asserts that the Association elected five whites and no African-
Americans in this election. The Board—which determines the eligibility of
prospective apprentice candidates—first told Mitchell that he was not on the
ballot because it had lost his application, but it then stated that he was ineligible
because he had turned forty years of age in November 2004, making him older
than the age limit for new river port pilots. It also informed him that he had not
in fact obtained the necessary licenses for all of the geographic areas because he
was not licensed for certain waterways. Mitchell argues that the Board should
have waived the license requirement for those waterways pursuant to its
statutory discretion because ship traffic on them was “severely restricted” after
Hurricane Katrina.


       2
        The Board did permit Mitchell to ride with Williams after Williams completed his year
as a deputy pilot.

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      After the April 2006 election, Mitchell filed another application to become
a river port pilot apprentice, and on July 14, 2006, he filed this suit. His
complaint alleges that the acts of the Defendants, individually and in concert,
prevented him from meeting the requirements of becoming a river port pilot on
the basis of his race, in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986, the
Equal Protection and Due Process Clauses of the Fourteenth Amendments, and
the Louisiana Constitution. The Defendants filed several motions to dismiss,
which the district court granted in their entirety. Mitchell appeals. We have
jurisdiction over the district court’s final judgment pursuant to 28 U.S.C. § 1291.
                         II. STANDARD OF REVIEW
      We review the district court’s grant of a Rule 12(b)(6) motion to dismiss de
novo, construing the plaintiff’s complaints in the light most favorable to him and
accepting all well-pleaded facts as true. Ferrer v. Chevron Corp., 484 F.3d 776,
780 (5th Cir. 2007). Although we view a dismissal pursuant to Rule 12(b)(6)
with “disfavor,” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 (5th
Cir. 2005), we will affirm a district court’s decision if the plaintiff has failed to
allege “enough facts to state a claim to relief that is plausible on its face” or
failed to “raise a right to relief above the speculative level,” Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1965, 1974 (2007).
                               III. DISCUSSION
A.    The Statute of Limitations Bars Mitchell’s Pre-July 14, 2005,
      Claims
      The district court dismissed many of Mitchell’s claims because the facts
upon which they are based occurred before the relevant statute of limitations
expired. On appeal, the Defendants agree with the district court that a one-year
statute of limitations applies, while Mitchell argues that this court should
impose a four-year statute of limitations.




                                         5
                                       No. 07-30525

       Mitchell claims violations under 42 U.S.C. §§ 1981, 1983, 1985, and 1986.
Sections 1981, 1983, and 1985 do not include a statute of limitations.3 For these
claims, a federal court generally must apply the state law statute of limitations
that would govern an analogous state law cause of action. See Goodman v.
Lukens Steel Co., 482 U.S. 656, 660 (1987); Johnson v. Ry. Express Agency, Inc.,
421 U.S. 454, 462 (1975) (“Since there is no specifically stated or otherwise
relevant federal statute of limitations for a cause of action under § 1981, the
controlling period would ordinarily be the most appropriate one provided by
state law.”). Under this rule, the court here would apply Louisiana’s one-year
prescriptive period for torts. See LA. CIV. CODE ANN. art. 3492; Johnson v. Crown
Enters., Inc., 398 F.3d 339, 341 (5th Cir. 2005) (noting that courts traditionally
apply a state’s personal injury limitations period in a § 1981 claim); Clifford v.
Gibbs, 298 F.3d 328, 332 (5th Cir. 2002) (applying Louisiana’s one-year statute
of limitations for personal injury actions to a § 1983 claim); Helton v. Clements,
832 F.2d 332, 334 (5th Cir. 1987) (noting that a state law limitations period
applies to a § 1985 claim). However, in 1990 Congress passed a “catchall”
four-year statute of limitations for actions arising under federal statutes enacted
after December 1, 1990, the date of the enactment of that law. See 28 U.S.C. §
1658(a). Therefore, if Mitchell’s causes of action arise under a federal statute
enacted after December 1, 1990, we must apply a four-year statute of
limitations. Mitchell argues that his § 1981 causes of action should have a four-
year statute of limitations pursuant to this standard.
       In Jones v. R.R. Donnelley & Sons, Co., the Supreme Court held that “a
cause of action ‘aris[es] under an Act of Congress enacted’ after December 1,
1990—and therefore is governed by § 1658’s 4-year statute of limitations—if the
plaintiff’s claim against the defendant was made possible by a post-1990

       3
        Section 1986 specifically includes a one-year statute of limitations for causes brought
under that provision. 42 U.S.C. § 1986.

                                              6
                                  No. 07-30525

enactment.” 541 U.S. 369, 382 (2004). Thus, we must determine whether a
post-1990 enactment created a “new right” that enables Mitchell to bring his
causes of action. Id. In Jones, the plaintiff alleged wrongful termination, refusal
to transfer, and hostile work environment related to his then-current
employment, which all arose under the 1991 revision to the Civil Rights Act and
therefore required the imposition of the federal four-year statute of limitations.
In stark contrast, Mitchell’s causes of action involve pre-employment claims.
That is, in essence he is alleging discrimination in the formation of a contract,
not in the “benefits, privileges, terms, and conditions of the contractual
relationship,” which is the language Congress added in the Civil Rights Act of
1991. See 42 U.S.C. § 1981(b).
      The Supreme Court’s 1989 decision in Patterson v. McLean Credit Union,
491 U.S. 164 (1989), makes clear that Mitchell would have a claim under § 1981
even without the added language. In Patterson, the Court held that the then-
current language of § 1981 provided two rights: protection against the refusal to
enter into a contract with someone on the basis of race and protection against
racial discrimination that infects the legal process in ways that prevent one from
enforcing contractual rights. Id. at 176-77. The Court specifically held that
§ 1981 does not reach post-formation conduct, a holding that prompted Congress
to amend the statute, but the Court explicitly recognized a cause of action for
pre-formation conduct. Id. at 177; see also Jones, 541 U.S. at 383. Thus, because
Mitchell never entered into a contract with the Defendants, his allegations that
they discriminated against him in preventing him from qualifying as a candidate
for an apprenticeship would have been actionable before the enactment of the
1990 federal “catchall” statute of limitations. It follows that we must borrow the
analogous state tort statute of limitations, which is Louisiana’s one-year
prescriptive period.



                                        7
                                  No. 07-30525

      Mitchell argues that his claims are possible only because of the addition
of § 1981(c) in the 1991 amendment to the Civil Rights Act, thereby making the
federal four-year statute of limitations apply. Section 1981(c) provides that “The
rights protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State law.”
Mitchell argues that the Defendants acted “under color of State law” because the
state, through the Board, promulgated the requirements for becoming a river
port pilot, and that before the addition of this provision he would not have been
able to sue the Defendants for “acting under color of State law.” However, the
legislative history of the Civil Rights Act of 1991 makes clear that this provision
did not make new law but instead codified previous Supreme Court precedent.
H.R. REP. NO. 102-40(I), at 92 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 630
(stating that § 1981(c) “confirms section 1981’s coverage of both public and
private sector employment”); H.R. REP. NO. 102-40(II), at 37 (1991), reprinted in
1991 U.S.C.C.A.N. 694, 731 (stating that subsection (c) “is intended to codify
Runyon v. McCrary[, 427 U.S. 160 (1976)]”); see Oden v. Oktibbeha County, 246
F.3d 458, 463 (5th Cir. 2001) (noting that Congress’s goal in enacting § 1981(c)
was to codify Runyon); see also Pittman v. Or., Employment Dep’t, No. 05-35900,
2007 WL 4246114, at *2 (9th Cir. Dec. 5, 2007) (recounting the legislative history
of § 1981(c)); Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 211 (4th Cir.
2007) (noting that § 1981(c) merely codifies the previous understanding that §
1981 prohibits all discrimination whether or not under color of law). In Runyon,
the Court held that § 1981 prohibits both private parties and state entities from
discriminating in the formation of contracts. See Runyon, 427 U.S. at 168-71.
Thus, the 1991 enactment of § 1981(c) merely codified the preexisting case law,
meaning that Mitchell still would have had a cause of action against the
Defendants under the old version of § 1981.



                                        8
                                   No. 07-30525

      Mitchell further argues that one of his causes of action under § 1981 is a
claim for retaliation, which he alleges this court concluded became possible only
after the amendments in the Civil Rights Act of 1991. See Foley v. Univ. of
Houston Sys., 355 F.3d 333, 339 (5th Cir. 2003). However, Mitchell fails to
recognize that a retaliation claim typically involves a plaintiff who is a current
or former employee, that is, one who already has entered into a contract, and the
1991 amendments made clear that § 1981 reaches post-formation conduct. See
id. Here, there was no formation of a contract whatsoever. That is, Foley does
not help Mitchell because it dealt with whether § 1981 could reach post-
formation retaliation, not whether § 1981 reaches a retaliation claim in general,
and Mitchell has provided no other authority to suggest that the 1991
amendments created a new cause of action for pre-formation retaliation. See id.
      Finally, Mitchell asserts that his claims are not time-barred because they
fall under the “continuing violation” theory of discrimination. He contends that
all of the Defendants’ actions dating back to 2001 comport with the notion that
“where the last alleged act is part of an ongoing pattern of discrimination and
occurs within the filing period, allegations concerning earlier acts are not time-
barred.” McGregor v. La. State Univ. Bd. of Supervisors, 3 F.3d 850, 866 (5th
Cir. 1993) (internal quotation marks omitted). The district court properly
rejected this argument. In National Railroad Passenger Corp. v. Morgan, 536
U.S. 101, 113 (2002), the Supreme Court held that allegations based on “discrete
discriminatory acts are not actionable if time barred, even when they are related
to acts alleged in timely filed charges. . . . Each discrete discriminatory act starts
a new clock for filing charges alleging that act.” The Court then described
various “discrete acts,” which include “termination, failure to promote, denial of
transfer, or refusal to hire.” Id. at 114. The Court concluded that, unlike a
hostile work environment claim—which by nature involves repeated
conduct—each distinct alleged unlawful employment practice must fall within

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                                      No. 07-30525

the statute of limitations. Id. at 114, 115. Although Mitchell is correct that
Morgan involved Title VII and not § 1981, we have previously applied Morgan
to reject the “continuing violation” theory in a § 1981 case. See Pegram v.
Honeywell, Inc., 361 F.3d 272, 280 (5th Cir. 2004). Therefore, because Mitchell
asserts discrimination based on various discrete acts, only those acts that fall
within the relevant statute of limitations period are actionable. In short,
Mitchell points to no authority applying the continuing violation theory to a
similar claim, and given Supreme Court guidance and our previous case law, we
reject his invitation to do so here.
       As Mitchell does not allege any other bases for construing his causes of
action to be possible only because of a post-1990 law, we are bound to apply the
analogous state tort statute of limitations. Mitchell filed his complaint on July
14, 2006. Therefore, Louisiana’s one-year prescriptive period bars his claims for
any acts that the Defendants took prior to July 14, 2005.4 The district court
properly granted the Defendants’ motions to dismiss for all of these allegations.
B.     Mitchell’s Ineligibility to be a River Port Pilot Precludes his Post-
       July 14, 2005, Allegations
       Mitchell argues that the Defendants’ conduct, including the 2006 election
for apprenticeships, exhibited racial discrimination in their failure to consider
him for a river port pilot position. When a plaintiff alleges facts that he claims
creates an inference of discrimination under §§ 1981 or 1983 but does not allege
direct discrimination, we invoke the familiar McDonnell Douglas framework.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).                      Under
McDonnell Douglas, a plaintiff establishes a prima facie case of discrimination
if he demonstrates that (1) he is a member of a protected class, (2) he was


       4
         Mitchell knew or had reason to know of the Defendants’ allegedly discriminatory acts
when they occurred, especially given that he complained to the Board and the Association on
numerous occasions, meaning that the statute of limitations began to run at that time. See
Jones v. Alcoa, Inc., 339 F.3d 359, 364-65 (5th Cir. 2003).

                                             10
                                   No. 07-30525

qualified and applied for the job, (3) the employer rejected him for the job despite
his qualifications, and (4) the position remained open and the employer
continued to seek applicants from persons of the plaintiff’s qualifications. Id.
If the plaintiff fails to demonstrate that he is qualified for the position he sought,
then he has failed to make out a prima facie case of discrimination and the
inquiry ends. See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 318 (5th
Cir. 2004).
      The Supreme Court has ruled that at the Rule 12(b)(6) stage, a plaintiff
need not plead all of the elements of a prima facie case of discrimination under
McDonnell Douglas in his complaint but instead must simply present a “short
and plain statement of the claim showing that [the plaintiff] is entitled to relief.”
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002) (quoting FED. R. CIV. P.
8). Therefore, a dismissal for failure to state a claim under Rule 12(b)(6) cannot
be based on a failure to plead the McDonnell Douglas elements. However, we
may consider McDonnell Douglas when a plaintiff asserts circumstantial
evidence of discrimination and then affirmatively defeats his own claim by
admitting that he cannot later meet his burden. Cf. Jordan v. Alternative Res.
Corp., 458 F.3d 332, 346 (4th Cir. 2006) (noting that the Court’s holding in
Swierkiewicz “left untouched the burden of a plaintiff to allege facts sufficient
to state all the elements of her claim.” (internal quotation marks and citation
omitted)).
      Here, Mitchell expressly negated one of the factors that he eventually
would have to demonstrate to obtain relief by admitting that he was ineligible
for the position he sought because of his age. Mitchell acknowledged in his
complaint that he turned forty years old in November 2004. The Louisiana
administrative code states that an applicant “must not have reached his fortieth
birthday prior to the day when the Crescent River Port Pilots Association votes
on accepting new apprentices.” LA. ADMIN. CODE. tit. 46 § 3201. Because

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                                        No. 07-30525

Mitchell was past his fortieth birthday for all of the alleged acts that occurred
after July 14, 2005, his complaint fails to state a claim that he was the subject
of discrimination based on his race because it expressly negates one of the
McDonnell Douglas factors.5 His ineligibility for the position also means that he
cannot make out a claim for conspiracy to interfere with his civil rights under
§§ 1985 or 1986 because he has failed to demonstrate an underlying violation of
his civil rights. See Earnest v. Lowentritt, 690 F.2d 1198, 1202 (5th Cir. 1982)
(noting that a violation of § 1985 requires an act in furtherance of a conspiracy
that is independently illegal); see also Bryan v. City of Madison, Miss., 213 F.3d
267, 276 (5th Cir. 2000) (noting that a valid § 1985 claim is a prerequisite to a
§ 1986 claim). The district court therefore properly granted the Defendants’
motions to dismiss for all of Mitchell’s claims that were within the statute of
limitations.6
                                   IV. CONCLUSION
       At the end of its lengthy and well-reasoned opinion, the district court
expressed its concerns regarding the “seriousness” of Mitchell’s claims given the
Defendants’ “allegedly deficient record of including African-Americans in their
number.” We agree with the district court’s sentiment, especially given that
Mitchell attempted to comply with the Defendants’ requirements for entering
the apprenticeship program and was diligent in his efforts. However, as the
district court concluded, the law is clear that the statute of limitations for the
pre-July 14, 2005, claims and Mitchell’s ineligibility for the position of a river


       5
         The Defendants also assert that Mitchell was not qualified because he had not
obtained his necessary U.S. Coast Guard licenses, while Mitchell argues that the Board should
have waived this requirement because those waterways had very little traffic. However,
Mitchell still would have been age-barred under the state’s regulations even if the Board had
waived this requirement.
       6
         The district court also did not abuse its discretion in failing to exercise supplemental
jurisdiction over Mitchell’s state law claims given that it dismissed all of his federal claims.
See Priester v. Lowndes County, 354 F.3d 414, 425 (5th Cir. 2004).

                                              12
                                        No. 07-30525

port pilot for the remainder of his claims preclude him from obtaining relief.
Therefore, we AFFIRM the district court’s order granting the Defendants’ Rule
12(b)(6) motions to dismiss.7
       AFFIRMED.




       7
         Because we affirm the district court’s dismissal of Mitchell’s claims based on the
statute of limitations and his ineligibility for the position, we will not address the Defendants’
arguments that they are not state actors for the purposes of Mitchell’s § 1983 claims.

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