Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—11th Cir.: District court erred in dismissing TSA screener’s Rehab Act claim pursuant to Castro, (Oct 20, 2025)

By Kathleen Kapusta, J.D.

“That the WPEA does not explicitly overrule ATSA’s bar on TSOs bringing Rehabilitation Act claims does not undermine this plain reading of the statute.”

The Whistleblower Protection Enhancement Act (WPEA) extends Rehab Act protections to TSA security screeners, the Eleventh Circuit ruled, finding that it supersedes the Aviation and Transportation Security Act (ATSA), which provided that TSA personnel are not subject to the normal remedial processes outlined in the Rehab Act, and abrogates its 2006 decision in Castro v. Secretary of Homeland Security, which held that the ATSA exempts TSA from the requirements of the Rehab Act with respect to the hiring of security screeners. Accordingly, the court vacated the dismissal of a former TSA security screener’s Rehab Act claims (Simone v. Secretary of Homeland Security, No. 23-11411 (11th Cir. Oct. 17, 2025)).

Heart condition. At the time he was hired as a Transportation Security Officer (TSO), the plaintiff disclosed his heart condition, a mitral valve prolapse and was cleared by a TSA physician. He occasionally took leave during his employment to rest for a day or two to recover from heart palpitations but in general, his condition did not affect his ability to perform his job’s essential functions. In 2014, however, TSA determined that he was no longer medically qualified to serve as a TSO and placed him on administrative leave. He was ultimately removed from federal service in 2015.

Lower court proceedings. The TSO sued the Secretary of Homeland Security, asserting claims under the Rehab Act for disability discrimination and retaliation and the federal district court, finding that the ATSA precluded his claims, granted the Secretary’s motion to dismiss.

ATSA. On appeal, the Eleventh Circuit noted that the ATSA provides that the TSA Administrator “shall establish qualification standards for individuals to be hired by the United States as security screening personnel” and that these qualification standards apply to TSA hiring “[n]otwithstanding any other provision of law.” As a result, the court observed, TSA personnel are not subject to the Rehab Act’s normal remedial processes because “[n]otwithstanding any other provision of law, the [TSA Administrator] may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for... individuals... to carry out the screening functions.” Thus, observed the court, ATSA allows TSA to discriminate based on disability when hiring TSOs.

Castro. Addressing the tension between the ATSA and the Rehab Act, the court, in its 2006 Castro decision, held that “[t]he plain language of ATSA indicates that TSA need not take the requirements of the Rehabilitation Act into account when formulating hiring standards for screeners.” In that decision, the court noted, it pointed to ATSA’s clause allowing “TSA to establish hiring criteria... for security screeners ‘notwithstanding any other provision of law.’” The “notwithstanding” clause, the Castro panel reasoned, indicated that Congress meant for the language of ATSA “to take precedence over any preexisting... legislation on the same subject.”

Because in Castro it read the “notwithstanding” clause “as Congress’s indication that” ATSA allows TSA to establish “standards and conditions of employment... whether or not those standards and conditions of employment are consistent with the Rehabilitation Act,” the court explained now that “unless the WPEA abrogates our holding in Castro, we are bound to hold that [the TSO] cannot state a claim against the Secretary under the Rehabilitation Act.”

WPEA. Turning to the WPEA, the court noted that it was passed in 2012 and amended the Civil Service Reform Act to provide enhanced whistleblower and employment discrimination protections to federal employees. Ultimately, said the court, the WPEA mandates that “[n]otwithstanding any other provision of law, any individual holding or applying for a position within the Transportation Security Administration shall be covered by” the provisions of the Rehab Act prohibiting disability discrimination and retaliation for the exercise of any right granted by the Act.

“Notwithstanding.” In reviewing statutory text, said the court, “the use of ‘notwithstanding’ carries a lot of weight: indeed, as the Supreme Court has explained, for a statute ‘to supersede all other laws,’ a ‘clearer statement is difficult to imagine’ than ‘notwithstanding’ language.” Further, the court stated, in Castro, it explained that “notwithstanding” language indicated Congressional intent for “the statute containing that language... ‘to take precedence over any preexisting... legislation on the same subject.’”

And here, said the court, “the plain language of the WPEA confers Rehabilitation Act protections on TSA security screeners, which conflicts with ATSA. Because the later-enacted WPEA confers its protections using ‘notwithstanding’ language, it supersedes ATSA.” While the court acknowledged that the WPEA does not explicitly overrule ATSA’s bar on TSOs bringing Rehab Act claims, it explained that when two statutes irreconcilably conflict, it was required to give effect to the later statute as repealing the prior, “even if that repeal occurs by implication.”

Prior panel decision. As to Castro, the court noted that while it may not typically disregard a prior panel’s holding absent a Supreme Court or Eleventh Circuit en banc decision, its precedent may be abrogated by statute, and specifically, by a clear change in the law. And here, said the court, “the prior-panel-precedent rule and our holding in Castro do not prevent us from holding that Rehabilitation Act protections are available for TSOs like [the employee] because the WPEA specifically provides them with Rehabilitation Act protections.”

Dicta. Pointing, however, to the language in Castro that ATSA’s “notwithstanding” clause indicates that Congress intended for ATSA “to take precedence over any preexisting or subsequently-enacted” legislation on the same subject, the Secretary argued that it does not matter that the subsequently enacted WPEA also includes a “notwithstanding” clause. But this “too narrowly focuses on what Castro said, as opposed to what it held,” said the court, explaining that the Castro panel did not deal with conflict between ATSA and subsequently enacted legislation and “any statement in Castro about the superiority of ATSA’s ‘notwithstanding’ clause over subsequent legislation was dicta because Castro only concerned the effect of a single ‘notwithstanding’ clause on an earlier statute that did not contain a ‘notwithstanding’ clause.”

Nor was the court persuaded by the Secretary’s contention that Castro was not abrogated by the WPEA because the Eleventh Circuit relied on Castro in a case analyzing the Rehab Act after the WPEA was signed into law. But that case, Center v. Secretary, Department of Homeland Security, the court stated, was not about the WPEA and in that decision, it only referenced ATSA and TSOs for illustrative purposes.

Irreconcilable conflict. As to the Secretary’s assertion that ATSA’s bar on TSOs bringing Rehab Act claims and the WPEA’s apparent reinstatement of certain Rehab Act rights are “are capable of co-existence,” the court found that “a plain reading of both statutes shows that they irreconcilably conflict. And where statutes irreconcilably conflict, we read the latter as repealing the former.”

Finally, rejecting the Secretary’s argument that every circuit to consider whether the WPEA repealed ATSA’s bar on TSOs bringing claims pursuant to the Rehab Act has agreed with its reading, the court noted that “the Secretary overstates the holdings of those cases, which shed no light on the issue we confront today.” Only two of the cited cases, observed the court, have acknowledged the WPEA’s effect on the ATSA expressly. The first declined to address the issue because it was not raised in the district court and the second chose not to answer the question by dismissing the case on the merits without addressing the conflict between ATSA and the WPEA.

Thus, vacating the lower court’s decision, the appeals court explained that the WPEA abrogated its holding in Castro and the district court erred by dismissing the employee’s complaint pursuant to that holding.

The case is No. 23-11411.

Judge: Branch, L.

Attorneys: Donald R. McCoy (Law Offices of Donald R. McCoy) for Joseph Simone. Brittany Bull Panuccio, U.S. Department of Justice, for Secretary of Homeland Security.

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