FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 13, 2012

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-11852 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 4:08-cv-00550-RH-WCS

TROY G. AVERA, 

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,

versus

UNITED AIRLINES, INC.,

UNITED STATES OF AMERICA,

U.S. DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION,

llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.

________________________

 Appeal from the United States District Court

 for the Northern District of Florida

 ________________________

(March 13, 2012)

Before CARNES, BARKETT, and ANDERSON, Circuit Judges.

PER CURIAM:

Troy G. Avera, a former United Airlines pilot, brought this action against

the United States of America (the government), the U.S. Department of
Transportation, and the Federal Aviation Administration (collectively, the federal

defendants), and United Airlines, Inc. He alleged violations of the Age 1

Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a), and the Employee

Retirement Income Security Act, 29 U.S.C. § 1001 et seq., and sought a

declaratory judgment that the Fair Treatment of Experienced Pilots Act (the Pilots

Act), 49 U.S.C. § 44729, and the FAA’s “Age 60 Rule,” 14 C.F.R. § 121.383

(2006), are unconstitutional. Avera contends that the district court erred when it:

(1) denied his motion to compel discovery; (2) denied his motion to amend his

complaint a second time; (3) denied his motion to “strike down” the Pilots Act and

the Age 60 Rule; (4) granted the federal defendants’ motion to dismiss; and

(5) granted United’s summary judgment motion on his ADEA and ERISA claims. 

I. 

In 1959 the FAA issued the so-called Age 60 Rule that no person could

serve as “a pilot on an airplane . . . if that person has reached his 60th birthday.”

14 C.F.R. § 121.383(c). Avera became a pilot for United in 1995. In 2007, two

months before his 60th birthday, he asked United to join him in petitioning the

FAA to waive the Age 60 Rule for him. United declined, and the FAA later

denied his petition. 

Avera is proceeding pro se but he is a licensed member of the Florida Bar. 1

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At the time of the denial, there was speculation that Congress would

invalidate the Age 60 Rule soon, allowing pilots to fly beyond their 60th birthday. 

Avera asked United to grant him an 18-month leave of absence to bridge the gap

in his employment from the point he turned 60 to when, he hoped, the rule would

be eliminated. United again said no, citing its policy to terminate leaves of

absence when a pilot turned 60 years old and was ineligible to continue serving as

a pilot under the Age 60 Rule. When Avera turned 60 years old, United fired him. 

Five months later, Congress passed the Pilots Act, which raised the mandatory

retirement age to 65 years old. 

Avera then applied for a pilot’s position with United. He received an

electronic error message rejecting his first application because his “answers did

not satisfy minimum requirements” for the position. The reason it was rejected is

that Avera answered in the negative a question about whether he was able to fly in

all the countries United served. A United employee contacted him a month later

and as a result of that conversation, Avera filled out a second application, which

was accepted. After his second application was filed and accepted, Avera was put

in United’s pilot hiring queue; he was being considered for a pilot position until

United instituted a hiring freeze a couple of months later. 

Avera then filed two lawsuits alleging similar facts and making similar

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claims. The first, which is the subject of this appeal, brought claims against

United and the federal defendants and sought a declaratory judgment that the

Pilots Act and the Age 60 Rule were unconstitutional. Avera’s second lawsuit

claimed that the union that represented him violated the ADEA, ERISA, and

contract law. That second lawsuit also sought a declaratory judgment that the Age

60 Rule and the Pilots Act were unconstitutional. The government intervened in

that case to defend the Age 60 Rule and the Pilots Act. 

While the first lawsuit, the one involved in this appeal, was still pending the

district court dismissed under Rule12(b)(6) all of Avera’s claims in the second

lawsuit and entered judgment against him. We affirmed the district court’s

judgment on every issue raised on appeal in that second lawsuit except for the

dismissal on the merits of Avera’s claims challenging the constitutionality of the

Age 60 Rule. Avera v. Airline Pilots Ass’n Int’l, 436 F. App’x 969, 973–80 (11th

Cir. 2011) (unpublished). We vacated that part of the district court’s judgment

and remanded with direction for the district court to dismiss that claim for lack of

subject matter jurisdiction instead of on the merits. We did so because we

concluded that 49 U.S.C. § 46110(a) grants the federal appellate courts exclusive

jurisdiction to review a final order of the FAA and that the Age 60 Rule is

considered a “final order.” Avera, 436 F. App’x at 973. 

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Our opinion in the appeal of that second lawsuit was not issued until after

the district court in this first lawsuit granted the federal defendants’ motion to

dismiss Avera’s claims against them. The district court thereafter granted

summary judgment against Avera on all of his claims against United. This is

Avera’s appeal from the judgment against him on all of those claims.

II.

Avera contends the magistrate judge erred in denying his motion to compel

discovery. We review a denial of a motion to compel discovery only for abuse of

discretion. Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006). 

Failure to raise an issue in the district court generally is fatal because we usually

do not consider an issue not passed upon below. Iraola & CIA, S.A. v.

Kimberly-Clark Corp., 325 F.3d 1274, 1284–85 (11th Cir. 2003). 

The magistrate judge denied Avera’s motion to compel without prejudice

because Avera had not sought to resolve his discovery dispute with United before

filing his motion. See Fed. R. Civ. P. 37(a) (“The motion must include a

certification that the movant has in good faith conferred or attempted to confer

with the person or party failing to make disclosure or discovery in an effort to

obtain it without court action.”). Avera could have reinstated or refiled his motion

to compel after making an effort to resolve the matter by consulting with United

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about it, but he never did. There was no abuse of discretion. 

III.

Avera contends that the district court erred by denying his untimely motion

to amend his complaint for a second time, but he makes only conclusory

statements without any real argument as to how the district court erred. Therefore,

he has waived this issue. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570,

1573 n.6 (11th Cir. 1989) (finding that an issue was waived where the appellant

“elaborate[d] no arguments on the merits as to this issue in its initial . . . brief”).

IV.

To the extent Avera contends that the district court erred by granting the

federal defendants’ motion to dismiss on his ADEA claim against them, that also

is waived because he does not present any arguments on this issue. See id.

V. 

Avera’s contention that the district court erred in not striking down the

Pilots Act as unconstitutional is barred because it “has already been litigated and

resolved in a prior proceeding.” Pleming v. Universal-Rundle Corp., 142 F.3d

1354, 1359 (11th Cir. 1998). Collateral estoppel applies only if:

(1) the issue at stake is identical to the one involved in the prior

proceeding; (2) the issue was actually litigated in the prior

proceeding; (3) the determination of the issue in the prior litigation

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must have been a critical and necessary part of the judgment in the

first action; and (4) the party against whom collateral estoppel is

asserted must have had a full and fair opportunity to litigate the issue

in the prior proceeding.

Id. (quotation marks omitted). All of those requirements are met here. 

Avera pressed the same arguments against the Pilots Act’s constitutionality

—violation of the Equal Protection, Due Process, and Takings Clauses and the

prohibition against bills of attainder—in his second lawsuit. The government

intervened in that lawsuit. The district court entered judgment in it rejecting all of

Avera’s arguments and dismissing his claims involving the Pilots Act, and this

Court affirmed that part of the judgment. Avera, 436 F. App’x at 973–78. Having

had a full and fair opportunity to litigate those issues, Avera is collaterally

estopped from arguing them again here. 

2

VI.

Avera’s contention that the district court erred when it ruled that it did not

have subject matter jurisdiction to review his appeal of an FAA decision denying

him an exemption to the Age 60 Rule is without merit. See 49 U.S.C. § 46110(a)

(placing exclusive jurisdiction to review an FAA order with the federal courts of

Although the federal defendants did not raise a collateral estoppel defense against 2

Avera’s Pilots Act claims in the district court, we may raise on our own the preclusive effect of

an earlier judgment. Cmty. State Bank v. Strong, 651 F.3d 1241, 1261 n.17 (11th Cir. 2011). 

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appeal). 

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VII.

Avera contends that the district court erred in its summary judgment rulings

on his various Age Discrimination in Employment Act claims. We review de

novo a district court’s order granting summary judgment. Holloman, 443 F.3d at

836. “Summary judgment is appropriate when the evidence, viewed in the light

most favorable to the nonmoving party, presents no genuine issue of material fact

and compels judgment as a matter of law in favor of the moving party.” Id. at

836–37. “A grant of summary judgment may be upheld on any basis supported by

the record.” Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1277 (11th Cir. 2001).

 All of Avera’s ADEA claims have in common the premise that any action

by United based on his age was unlawful. The ADEA generally makes it unlawful

for an employer to fail to hire or to discharge or otherwise discriminate against any

individual with respect to the compensation, terms, conditions, or privileges of

employment, because of an individual’s age. 29 U.S.C. § 623(a)(1). An ADEA

plaintiff must prove that age was the “but for” cause of the employer’s adverse

decision. Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201, 1204 (11th Cir.

To the extent Avera appeals the denial of his motion to “strike down” the Age 60 Rule, 3

which the district court rejected because the Pilots Act had rendered the regulation and issue

moot, we affirm that decision as Avera has failed to establish that the district court erred. 

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2010). An ADEA plaintiff must also present evidence of an “adverse employment

action,” which is an “ultimate employment decision, such as discharge or failure to

hire, or other conduct that alters the employee’s compensation, terms, conditions,

or privileges of employment, deprives him or her of employment opportunities, or

adversely affects his or her status as an employee.” Van Voorhis v. Hillsborough

Cnty. Bd. of Cnty. Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (quotation

marks omitted). Even if a plaintiff makes a prima facie showing of discrimination,

the employer may proffer a nondiscriminatory reason to rebut that presumption,

and in order to prevail, a plaintiff must prove that the proffered reason “was a

pretext to mask unlawful discrimination.” Smith v. J. Smith Lanier & Co., 352

F.3d 1342, 1344 (11th Cir. 2003). 

A.

Avera argues that the district court erred in ruling that the Pilots Act

precluded his ADEA claim based on the termination of his employment. But the

Pilots Act clearly states that “[a]n action taken in conformance with [the Age 60

Rule] (as in effect before [the Pilots Act’s] enactment), may not serve as a basis

for liability or relief in a proceeding, brought under any employment law or

regulation.” 49 U.S.C. § 44729(e)(2) (emphasis added). United’s action in

terminating Avera’s employment was taken in conformance with the Age 60 Rule

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while that rule was still in effect. The court did not err. 

B. 

Avera argues that the district court erred by granting summary judgment in

favor of United on his claim that United’s refusal to grant him a leave of absence

violated the ADEA. The court found that United’s policy of denying a leave of

absence to pilots after they reached 60 years was an attempt to comply with the

Age 60 Rule. Avera does not contend that the district was wrong about that

finding. The district court properly granted summary judgment in favor of United

on this claim. See Mora, 597 F.3d at 1204.

C. 

Avera argues that the district court erred in granting summary judgment in

favor of United on his claim that United violated the ADEA by not rehiring him as

a pilot following the enactment of the Pilots Act. He asserts that the reason he was

not rehired was his age. Assuming Avera established a prima facie case of

discrimination, United offered nondiscriminatory reasons why he was not rehired:

he was not put in the hiring queue initially because he incorrectly filled out his

first application, and by the time he corrected that error in a second application

and he was being considered for the position, a hiring freeze was put into effect. 

Because there is no evidence creating a genuine issue about those facts, the district

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court correctly granted summary judgment against Avera on this ADEA claim. 

D. 

Avera also argues that the district court erred in granting summary judgment

against him on his claim that United violated the ADEA by refusing to hire him as

a flight simulator instructor. However, because it is undisputed that Avera never

applied for such a position, he cannot establish any “adverse employment action”

by United. See Van Voorhis, 512 F.3d at 1300. It follows that there was no

genuine issue of material fact precluding summary judgment on this claim.

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VIII.

Finally, Avera contends the district court erred in granting summary

judgment in favor of United on his ADEA and ERISA claims regarding certain

distributions of United securities and on his ERISA claim alleging an illegal

cutback of insurance benefits. Because Avera’s ADEA and ERISA claims

regarding the distributions of United securities were not raised in his amended

complaint, they are not properly before this Court. See Iraola & CIA, S.A., 325

F.3d at 1284–85. In addition, Avera has abandoned any claims regarding changes

Avera also asserts in passing that United violated the ADEA by refusing to join him in 4

his FAA exemption petition requesting that he be exempted from the Age 60 Rule, but a passing

reference is insufficient to preserve an issue on appeal. See Greenbriar, Ltd., 881 F.2d at 1573

n.6.

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to his retirement insurance benefits by failing to make a sufficient argument to us

about them. See Greenbriar, Ltd., 881 F.2d at 1573 n.6. 

AFFIRMED.

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