[DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                FILED
                                                    U.S. COURT OF APPEALS
                            No. 10-14905              ELEVENTH CIRCUIT
                        Non-Argument Calendar            AUGUST 9, 2011
                      ________________________             JOHN LEY
                                                            CLERK
                 D.C. Docket No. 4:09-cv-00218-RS-WCS

TROY G. AVERA,

                                                        Plaintiff-Appellant,

                                versus

AIRLINE PILOTS ASSOCIATION INTERNATIONAL,
AIRLINE PILOTS ASSOCIATION MASTER EXECUTIVE COUNCIL,
UAL Corporation and United Airlines, Inc.,

                                                     Defendants-Appellees,

UNITED STATES OF AMERICA,

                                                      Intervenor-Appellee.
                     ________________________

             Appeal from the United States District Court
                 for the Northern District of Florida
                   ________________________

                           (August 9, 2011)
Before EDMONDSON, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

      Proceeding pro se, Troy G. Avera sued the Airline Pilots Association,

International, and the United Airlines Master Executive Council (collectively,

“ALPA”) for violations of the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. § 621; the Employee Retirement Income Security Act

(“ERISA”), 29 U.S.C. § 1101; and for breach of the duty of fair representation under

the Railway Labor Act, 45 U.S.C. § 151, et seq. Avera also petitioned for a

declaratory judgment that the Fair Treatment of Experienced Pilots Act (“FTEPA”),

49 U.S.C. § 44729, and the Federal Aviation Administration’s (“FAA”) “Age 60

Rule,” 14 C.F.R. § 121.383, were unconstitutional. Pursuant to 28 U.S.C. § 2403(a),

the United States intervened to defend the constitutionality of the FTEPA. The

district court dismissed the ADEA, ERISA, and constitutional claims for failure to

state a claim and dismissed the Railway Labor Act claim as barred by the statute of

limitations.

      On appeal, Avera argues that the district court erred by dismissing his

complaint because (1) the FTEPA is unconstitutional and could not shield ALPA

from liability on his claims, (2) he stated a claim for violations of the ADEA, ERISA,

and the Railway Labor Act, and (3) his claims under the Railway Labor Act were

                                          2
timely under the delayed-discovery doctrine. Avera also appeals the district court’s

dismissal of his challenge to the Age 60 Rule, but the government argues that the

district court lacked jurisdiction over this claim. After thorough review, we agree

with the government, and affirm in large part, but reverse and remand the district

court’s ruling on the Age 60 Rule.

                                          I.

      “The issue of whether the district court had subject matter jurisdiction over

[the] complaint is a question of law subject to de novo review.” Tamiami Partners,

Ltd. ex rel. Tamiami Dev. Corp. v. Miccosukee Tribe of Indians of Fla., 

, 1222 (11th Cir. 1999). “The constitutionality of a statute is a question of law

subject to de novo review.” Cooper v. Dillon, 

, 1213 (11th Cir. 2005)

(quotation omitted). “A district court’s dismissal for failure to state a claim under

Rule 12(b)(6) is reviewed de novo.” Albra v. Advan, Inc., 

, 829 (11th

Cir. 2007).

                                          II.

      As an initial matter, the United States argues that the district court lacked

jurisdiction over Avera’s challenge to the Age 60 Rule. We have a special obligation

to satisfy ourselves not only that we have jurisdiction over this appeal, but also that

the district court had jurisdiction over the various counts of the complaint. Tamiami

                                          3


. “When the lower federal court lacks jurisdiction, we have

jurisdiction on appeal, not of the merits but merely for the purpose of correcting the

error of the lower court in entertaining the suit.” 

quotation

omitted).

      Pursuant to 49 U.S.C. § 46110(a):

      a person disclosing a substantial interest in an order issued by the
      Secretary of Transportation (or . . . the Administrator of the Federal
      Aviation Administration with respect to aviation duties and powers
      designated to be carried out by the Administrator) in whole or in part
      under this part [pertaining to air commerce and safety], [or] part B
      [pertaining to airport development and noise] . . . may apply for review
      of the order by filing a petition for review in the United States Court of
      Appeals for the District of Columbia Circuit or in the court of appeals
      of the United States for the circuit in which the person resides or has its
      principal place of business. The petition must be filed not later than 60
      days after the order is issued. The court may allow the petition to be
      filed after the 60th day only if there are reasonable grounds for not filing
      by the 60th day.

49 U.S.C. § 46110(a); see also George Kabeller, Inc. v. Busey, 

, 1422

(11th Cir. 1993). “[T]he court has exclusive jurisdiction to affirm, amend, modify,

or set aside any part of the order and may order the Secretary, Under Secretary, or

Administrator to conduct further proceedings.” 49 U.S.C. § 46110(c). The term

“order” in the statute “has been given expansive instruction.” Green v. Brantley, 

, 519 (11th Cir. 1993) (quotation omitted). Although the issue has not arisen

in this Court, the D.C. Circuit has stated that the statute could encompass “direct

                                           4
review of regulations promulgated through informal notice-and-comment

rulemaking.” City of Rochester v. Bond, 

, 933 n.26 (D.C. Cir. 1979).

“Where Congress has provided in the courts of appeals an exclusive forum for the

correction of procedural and substantive administrative errors, a plaintiff may not

bypass that forum by suing for damages in district court.” 

.

Stated differently, the district court lacks subject matter jurisdiction to consider “an

impermissible collateral challenge to [an] agency order.” 

is charged with “promot[ing] safe flight of civil aircraft in air

commerce by prescribing . . . regulations in the interest of safety for the maximum

hours or periods of service of airmen and other employees of air carriers.” 49 U.S.C.

§ 44701(a)(4). The FAA promulgated the Age 60 Rule in 1959 pursuant to this

mandate. The Rule provided that no pilot may serve as a pilot in operations of a

commercial aircraft if that person has reached his 60th birthday. 14 C.F.R. §

121.383(c) (2007).

      In count four of the amended complaint, Avera sought a declaration that both

the FTEPA and the Age 60 Rule were unconstitutional both facially and as applied

to him. But as described above, only the court of appeals has exclusive jurisdiction

to review a final order of the FAA. Avera may not bypass our exclusive jurisdiction

by pursuing in the district court a collateral attack on the FAA’s orders. See Brantley,

                                           

. Accordingly, we remand with instructions to vacate the district

court’s order in part and to dismiss for lack of subject matter jurisdiction Avera’s

constitutional challenges to the Age 60 Rule. See 

.

                                         III.

      Next, we reject Avera’s claims that the FTEPA violates the Due Process and

Equal Protection Clauses of the Fifth Amendment, violates the prohibition against

bills of attainder, and effects an unconstitutional taking without compensation. Prior

to enactment of the FTEPA, the Age 60 Rule provided that no person could fly a

commercial aircraft after his 60th birthday. 14 C.F.R. § 121.383(c) (2007). However,

section (d) of the FTEPA expressly states that, after its enactment, the Age 60 Rule

“shall cease to be effective.” 49 U.S.C. § 44729(d). Instead, the FTEPA provides

that “a pilot may serve in multicrew covered operations until attaining 65 years of

age.” 49 U.S.C. § 44729(a). On appeal, Avera challenges two specific provisions of

the FTEPA: the non-retroactivity clause and protection-for-compliance clause. The

FTEPA’s non-retroactivity provision provides:

      No person who has attained 60 years of age before the date of enactment
      of this section may serve as a pilot for an air carrier engaged in covered
      operations unless --

      (A) such person is in the employment of that air carrier in such
      operations on such date of enactment as a required flight deck crew
      member; or

                                          6
      (B) such person is newly hired by an air carrier as a pilot on or after such
      date of enactment without credit for prior seniority or prior longevity for
      benefits or other terms related to length of service prior to the date of
      rehire under any labor agreement or employment policies of the air
      carrier.

49 U.S.C. § 44729(e)(1). The FTEPA also includes a protection-for-compliance

provision, which provides:

      An action taken in conformance with this section, taken in conformance
      with a regulation issued to carry out this section, or taken prior to the
      date of enactment of this section in conformance with [the Age 60 Rule]
      (as in effect before such date of enactment), may not serve as a basis for
      liability or relief in a proceeding, brought under any employment law or
      regulation, before any court or agency of the United States or of any
      State or locality.

49 U.S.C. § 44729(e)(2).

      There is no merit to Avera’s claim that the FTEPA violates the Equal

Protection Clause by targeting “a small ascertainable class” of pilots born between

1942 and 1947 and extinguishing that small group’s “property rights (work,

employment, and contract rights), while affording every other person in every other

profession . . . the protections of the ADEA.” The Equal Protection Clause requires

the government to treat similarly situated persons in a similar manner. Gary v. City

of Warner Robins, 

, 1337 (11th Cir. 2002). “When legislation

classifies persons in such a way that they receive different treatment under the law,

the degree of scrutiny the court applies depends upon the basis for the classification.”

                                           7


law treats individuals differently on the basis of race or another suspect

classification, or if the law impinges on a fundamental right, it is subject to strict

scrutiny. Eide v. Sarasota County, 

, 722 (11th Cir. 1990). Otherwise,

the law need only have a rational basis -- i.e., it need only be rationally related to a

legitimate government purpose. 

based on race or gender receive strict scrutiny, “[a]ge

classifications . . . cannot be characterized as ‘so seldom relevant to the achievement

of any legitimate state interest that laws grounded in such considerations are deemed

to reflect prejudice and antipathy.’” Kimel v. Florida Bd. of Regents, 

,

83 (2000). Accordingly, “age is not a suspect classification under the Equal

Protection Clause,” and a classification based on age receives rational-basis review.

      The rational-basis test asks (1) whether the government has the power or

authority to regulate the particular area in question, and (2) whether there is a rational

relationship between the government’s objective and the means it has chosen to

achieve it. Leib v. Hillsborough County Public Transp. Comm’n, 

,

1306 (11th Cir. 2009). This standard is easily met. As the Supreme Court has held,

under rational-basis review, a state “has no obligation to produce evidence to sustain

the rationality of a statutory classification.” Heller v. Doe by Doe, 

, 320

                                            8
(1993). “Rather, a statute is presumed constitutional, and the burden is on the one

attacking the law to negate every conceivable basis that might support it, even if that

basis has no foundation in the record.” 

. “Under rational basis

review, a court must accept a legislature’s generalizations even when there is an

imperfect fit between means and ends.” 

complies with the Equal Protection Clause. Although Avera

argues that this Court should review the FTEPA under the strict-scrutiny standard,

age is not a suspect classification and Avera identifies no fundamental right burdened

by the FTEPA. Applying rational-basis review, the Supreme Court has rejected

equal-protection challenges to mandatory-retirement schemes. See Gregory v.

Ashcroft, 

(1991) (mandatory retirement at age 70 for state court judges

complied with the Equal Protection Clause).             Additionally, the FTEPA’s

non-retroactivity provision is rationally related to the government’s objective of

avoiding disharmony and discord in the labor market. See 

(Stevens, J., concurring in part and dissenting in part) (“Congress’ power to regulate

the American economy includes the power to regulate both the public and the private

sectors of the labor market.”). Congress could rationally have concluded that

allowing all retired commercial pilots between the ages of 60 and 65 to return to their

prior positions with full seniority would disrupt the airline pilots’ labor hierarchy.

                                          9
Finally, the FTEPA’s protection-for-compliance provision is rational because

Congress may legitimately seek to minimize any conflict between the FTEPA and

other employment laws. Accordingly, the FTEPA survives rational-basis review, and

Avera’s equal-protection challenge fails.

      Nor is there any merit to Avera’s claim that the FTEPA violates the Due

Process Clause because the Act’s non-retroactivity provision prevented him from

being re-employed at his former position and deprived him of his longevity and

seniority at his former airline, the Act violated his right to procedural due process by

preventing him from seeking reinstatement at United Airlines at his old position, and

the Act is unconstitutionally vague. The Fifth Amendment provides that no person

shall “be deprived of life, liberty, or property, without due process of law.” U.S.

Const. Amend V. The Due Process Clause provides “two different kinds of

constitutional protection: procedural due process and substantive due process.”

McKinney v. Pate, 

, 1555 (11th Cir. 1994) (en banc). “The substantive

component of the Due Process Clause protects those rights that are ‘fundamental,’

that is, rights that are ‘implicit in the concept of ordered liberty.’” 

(quoting Palko v. Connecticut, 

, 325 (1937)).

      “A finding that a right merits substantive due process protection means that the

right is protected against certain government actions regardless of the fairness of the

                                          10
procedures used to implement them.” 

However, “areas in

which substantive rights are created only by state law (as is the case with tort law and

employment law) are not subject to substantive due process protection under the Due

Process Clause because substantive due process rights are created only by the

Constitution. 

      In analyzing a procedural due process claim, on the other hand, we ask whether

the plaintiff identified a property interest of which he was deprived by state action

and, if so, whether the plaintiff received sufficient process regarding that deprivation.

Ross v. Clayton County, Ga., 

, 1307 (11th Cir. 1999). Nevertheless,

      [t]he Constitution does not require all public acts to be done in town
      meeting or an assembly of the whole. General statutes within the state
      power are passed that affect the person or property of individuals,
      sometimes to the point of ruin, without giving them a chance to be
      heard. Their rights are protected in the only way that they can be in a
      complex society, by their power, immediate or remote, over those who
      make the rule.

Minnesota State Bd. for Cmty. Colleges v. Knight, 

, 284 (1984)

(quotation omitted).

      Moreover, “[d]ue process requires ‘that the law must be one that carries an

understandable meaning with legal standards that courts must enforce.’” Harris v.

Mexican Specialty Foods, Inc., 

, 1310 (11th Cir. 2009) (quoting

Giaccio v. Pennsylvania, 

, 403 (1966)). “The void-for-vagueness

                                           11
doctrine reflects the principle that a statute which either forbids or requires the doing

of an act in terms so vague that persons of common intelligence must necessarily

guess at its meaning and differ as to its application, violates the first essential of due

process of law.” 

brackets omitted). “The Supreme Court has

warned against the mechanical application of vagueness doctrine, emphasizing that

an ‘economic regulation is subject to a less strict vagueness test’ and there should be

‘greater tolerance of enactments with civil rather than criminal penalties because the

consequences of imprecision are qualitatively less severe.’” 

(quoting

Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 

, 498-99

(1982)).

      To the extent Avera challenges the FTEPA as violating his right to substantive

due process, the challenge fails because Avera identified no fundamental right

burdened by any of the FTEPA’s provisions and because, as described above, the Act

survives rational-basis review. Avera’s procedural due process challenge also fails.

Even assuming that the FTEPA revoked Avera’s property interest in his seniority at

United Airlines (which interest Avera no longer had because he was terminated in

accord with the Age 60 Rule and no longer had any expectation of future employment

as a commercial pilot), Congress acted rationally and within its power by enacting the

FTEPA and therefore Avera’s rights were protected only by his power, “immediate

                                           12
or remote, over those who make the rule.” 

. Finally, Avera’s

vagueness challenge fails because the FTEPA is understandable by persons of normal

intelligence, and Congress need not define every term in a statute and need not

dedicate a federal agency to interpret each provision of a statute.

      We likewise reject Avera’s claim that the FTEPA is an unlawful bill of

attainder because the Act singles out an easily ascertainable group of commercial

pilots born between 1942 and 1947 and punishes the group by depriving the pilots of

their rights under the employment laws and their rights to negotiate a return to work

and to negotiate better terms of employment. The U.S. Constitution provides that

“[n]o Bill of Attainder or ex post facto Law shall be passed.” U.S. Const. art. I, § 9,

cl. 3. A bill of attainder is “a law that legislatively determines guilt and inflicts

punishment upon an identifiable individual without provision of the protections of a

judicial trial.” Nixon v. Administrator of Gen. Servs., 

, 468 (1977). “A

statute inflicts constitutionally forbidden punishment if (1) the statutory penalty falls

within the historical meaning of legislative punishment, (2) the statute fails to further

any nonpunitive legislative purpose, or (3) the legislative history establishes a

congressional intent to punish.” Whitney v. Heckler, 

, 973 (11th Cir.

1986).




                                           13
       As applied here, neither the non-retroactivity provision nor the protection-for-

compliance provision inflicts the sort of burden “historically associated with

punishment.” Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 

, 853 (1984)). Although “legislative bars to participation by individuals or groups

in specific employments or professions” may constitute punishment, 

the

FTEPA’s non-retroactivity provision does not bar Avera from working as a

commercial airline pilot. Furthermore, the FTEPA’s protection-for-compliance

provision does not, by merely narrowing the scope of statutory causes of action, deny

Avera access to the courts. See Logan v. Zimmerman Brush Co., 

, 432

(1982) (“[T]he State remains free to create substantive defenses or immunities for use

in adjudication -- or to eliminate its statutorily created causes of action altogether.”).

Although these provisions restrict Avera’s new right to fly until the age of 65,

“[f]orbidden legislative punishment is not involved merely because the Act imposes

burdensome consequences.” 

. Accordingly, the FTEPA is not

a bill of attainder.

       Nor does the FTEPA effect a “taking” without just compensation. The Takings

Clause in the Fifth Amendment provides that “private property [shall not] be taken

for public use, without just compensation.” U.S. Const. amend. V. To state a takings

claim, “a plaintiff must first demonstrate that he possesses a ‘property interest’ that

                                            14
is constitutionally protected.” Givens v. Alabama Dept of Corrs., 

,

1066 (11th Cir. 2004). “The Takings Clause protects private property; it does not

create it.” 

determine whether a particular property interest is

protected, we look to “existing rules or understandings that stem from an independent

source such as state law.” 

However, as described above,

Avera has no constitutionally protected property interest in being rehired as a pilot

with his former level of seniority. Accordingly, Avera’s takings claim fails.

                                         IV.

      We are also persuaded by Avera’s argument that the district court erred by

dismissing his ADEA claim because his allegations stated a plausible, prima facie

case for relief under the ADEA. “The ADEA makes it ‘unlawful for an employer to

fail or refuse to hire or to discharge any individual or otherwise discriminate against

any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s age.’” Chapman v. AI Transport, 

, 1024 (11th Cir. 2000) (en banc) (quoting 29 U.S.C. § 623(a)(1)). The ADEA

also precludes a union from discriminating based on age or causing an employer to

discriminate based on age. 29 U.S.C. § 623(c). Although a Title VII plaintiff may

prove his case by showing that his membership in a protected class played a

“motivating part” in the employment decision, an ADEA plaintiff must “prove that

                                          15
age was the ‘but for’ cause of the employer’s adverse decision. Gross v. FBL Servs.,

Inc., __ U.S. __, 

, 2349-50 (2009). Stated differently, the ADEA does

not permit a “mixed-motive” claim for disparate treatment. Mora v. Jackson

Memorial Foundation, Inc., 

, 1204 (11th Cir. 2010).

      In this case, the district court correctly dismissed Avera’s ADEA claim. To the

extent Avera challenged ALPA’s actions in conformance with the Age 60 Rule or the

FTEPA, the protection-for-compliance provision expressly barred his claim. See 49

U.S.C. § 44729(e)(2) (“An action taken in conformance with this section . . . [or the

Age 60 Rule] may not serve as a basis for liability or relief in a proceeding, brought

under any employment law or regulation, before any court or agency of the United

States or of any State or locality.”). To the extent Avera argues that ALPA violated

the ADEA by lobbying for the FTEPA or opposing changes to the Age 60 Rule,

Avera fails to specify how these acts discriminated against Avera based on his age.

Finally, Avera’s allegations pertaining to the bond-proceeds distribution formula fail

because Avera conceded in the complaint that ALPA used a formula that, “because

of the Age 60 Rule requiring ‘early’ retirement, resulted in younger Flight Officers

. . . with levels of seniority equal or comparable to Plaintiff, receiving substantially

larger monetary distributions from the sale of the UAL bonds than the distribution of

$26,000.00 received by the Plaintiff.” In other words, the formula’s allegedly

                                          16
discriminatory effect resulted from an application of the Age 60 Rule’s mandatory

retirement and not from invidious age discrimination. Therefore, Avera could not

establish that age was the but-for cause of ALPA’s discrimination, and the district

court did not err by dismissing the ADEA claim. See 

.

                                        V.

      We likewise find no merit in Avera’s argument that the district court

erroneously dismissed his ERISA claim. ERISA governs only “employee benefit

plans.” Fort Halifax Packing Co. v. Coyne, 

, 11 (1987) (ERISA regulates

employee benefit plans, not employee benefits); see also 29 U.S.C. § 1002(1).

However, ERISA provides little guidance regarding the meaning of the phrase

“employee benefit plan.” See Fort 

. Nevertheless, in Fort

Halifax, the Supreme Court held that a Maine statute requiring lump-sum severance

payments to employees displaced by plant closures was not an employee benefit plan.

The Court explained that ERISA was not triggered because the Maine

statute created no “need for an ongoing administrative program for processing claims

and paying benefits.” 

district court correctly dismissed Avera’s ERISA claim because

Avera neither identified an ERISA plan nor alleged any facts from which the district

court could infer an ERISA violation.        To the extent Avera argues that the

                                        17
bond-proceeds distribution formula violated ERISA, this claim fails because, as in

Fort Halifax, the distribution constituted lump-sum payments that required no

ongoing administrative program for processing claims. Accordingly, the district court

properly dismissed the ERISA claim.

                                          VI.

      Finally, we reject Avera’s arguments that the district court erred by dismissing

his claims for breach of the duty of fair representation (“DFR”). The DFR is a

judicially derived corollary to the union’s statutory status as the employees’ collective

bargaining representative. See Air Line Pilots Ass’n, Int’l v. O’Neill, 

,

75-76 (1991). A union owes members a duty to represent them adequately, honestly,

and in good faith. 

a union needs wide latitude to ensure

effective performance of its duties, judicial review of union action must be “highly

deferential.” 

Moreover, a union violates the duty of fair representation only

if its actions are “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 

, 190 (1967).

      In the interest of labor relations stability, courts have adopted a short,

six-month statute of limitation for the filing of DFR claims. Coppage v. U.S. Postal

Serv., 

, 1204 (11th Cir. 2002); Smallakoff v. Air Line Pilots Ass’n,

Int’l, 

, 1546 (11th Cir. 1987). The limitations period begins to run

                                           18
once the plaintiff discovers or should have discovered the acts that form the basis of

the DFR claim. See 

(six-month statute of limitations

began to run when employee received notice of unfavorable settlement agreement

between union and employer ending the grievance process).

      In this case, the district court did not err by dismissing the DFR claim as

untimely. Although the complaint included few dates, Avera was terminated in 2007,

and all of ALPA’s lobbying efforts concerning the FTEPA and the Age 60 Rule must

have occurred before the FTEPA was enacted in December 2007. Furthermore,

although Avera argues that his claim was timely under the “delayed discovery”

doctrine because he did not learn of the relative distributions of the bond proceeds

until June 2009, Avera alleged in his October 2007 EEOC charge that ALPA

“negotiated a formula for the distribution of the proceeds of the UAL bond sale which

resulted in younger Flight Officers with levels of seniority comparable to mine being

given a larger amount of the monetary distribution from this bond sale from 2/06 to

2/07.” Because Avera discovered the acts that formed the basis for this claim no later

than October 2007, the six-month statute of limitations for his DFR claim expired by

April 2008. Avera’s June 2009 complaint was therefore untimely with respect to the

DFR claim.




                                         19
        As for Avera’s argument that he also asserted a state law claim for breach of

“fiduciary duty,” Avera failed to develop this claim in his complaint. But even

assuming that this claim was timely and that ALPA was a “contractual fiduciary” for

Avera, this claim would fail because ALPA was not responsible for drafting,

interpreting, administering, or enforcing any of the FTEPA’s provisions, and ALPA

has not adjudicated its liability for administering the statute. Accordingly, the district

court did not err by dismissing Avera’s DFR claim or his claim for breach of fiduciary

duty.

        AFFIRMED IN PART, REMANDED IN PART WITH INSTRUCTIONS.




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